§205-4.5  Permissible uses within the
agricultural districts.  (a)  Within the agricultural district, all lands
with soil classified by the land study bureau's detailed land classification as
overall (master) productivity rating class A or B shall be restricted to the
following permitted uses:



(1)  Cultivation
of crops, including crops for bioenergy, flowers, vegetables, foliage, fruits,
forage, and timber;



(2)  Game and fish
propagation;



(3)  Raising of
livestock, including poultry, bees, fish, or other animal or aquatic life that
are propagated for economic or personal use;



(4)  Farm
dwellings, employee housing, farm buildings, or activities or uses related to
farming and animal husbandry.  "Farm dwelling", as used in this
paragraph, means a single-family dwelling located on and used in connection
with a farm, including clusters of single-family farm dwellings permitted
within agricultural parks developed by the State, or where agricultural
activity provides income to the
family occupying the dwelling;



(5)  Public
institutions and buildings that are necessary for agricultural practices;



(6)  Public and
private open area types of recreational uses, including day camps, picnic
grounds, parks, and riding stables, but not including dragstrips, airports,
drive-in theaters, golf courses, golf driving ranges, country clubs, and
overnight camps;



(7)  Public,
private, and quasi-public utility lines and roadways, transformer stations, communications equipment buildings, solid
waste transfer stations, major water storage tanks, and appurtenant small
buildings such as booster pumping stations, but not including offices or yards
for equipment, material, vehicle storage, repair or maintenance, treatment
plants, corporation yards, or other similar structures;



(8)  Retention,
restoration, rehabilitation, or improvement of buildings or sites of historic
or scenic interest;



(9)  Roadside
stands for the sale of agricultural products grown on the premises;



(10)  Buildings and
uses, including mills, storage, and
processing facilities, maintenance facilities, and vehicle and equipment
storage areas that are normally considered directly accessory to the above-mentioned
uses and are permitted under section 205-2(d);



(11)  Agricultural parks;



(12)  Plantation
community subdivisions, which as used in this chapter means an established
subdivision or cluster of employee housing, community buildings, and
agricultural support buildings on land currently or formerly owned, leased, or
operated by a sugar or pineapple plantation; provided that the existing
structures may be used or rehabilitated for use, and new employee housing and
agricultural support buildings may be allowed on land within the subdivision as
follows:



(A)  The
employee housing is occupied by employees or former employees of the plantation
who have a property interest in the land;



(B)  The
employee housing units not owned by their occupants shall be rented or leased
at affordable rates for agricultural workers; or



(C)  The
agricultural support buildings shall be rented or leased to agricultural
business operators or agricultural support services;



(13)  Agricultural
tourism conducted on a working farm, or a farming
operation as defined in section 165-2, for the enjoyment, education, or
involvement of visitors; provided that the agricultural tourism activity is
accessory and secondary to the principal agricultural use and does not
interfere with surrounding farm operations; and provided further that this
paragraph shall apply only to a county that has adopted ordinances regulating
agricultural tourism under section 205-5;



(14)  Wind energy
facilities, including the appurtenances associated with the production and
transmission of wind generated energy; provided that the wind energy facilities
and appurtenances are compatible with agriculture uses and cause minimal
adverse impact on agricultural land;



(15)  Biofuel processing facilities, including the
appurtenances associated with the production and refining of biofuels that is
normally considered directly accessory and secondary to the growing of the
energy feedstock; provided that biofuels processing facilities and
appurtenances do not adversely impact agricultural land and other agricultural
uses in the vicinity.



For the purposes of this paragraph:



"Appurtenances" means operational
infrastructure of the appropriate type and scale for economic commercial
storage and distribution, and other similar handling of feedstock, fuels, and
other products of biofuels processing facilities.



"Biofuel processing facility" means
a facility that produces liquid or gaseous fuels from organic sources such as
biomass crops, agricultural residues, and oil crops, including palm, canola,
soybean, and waste cooking oils; grease; food wastes; and animal residues and
wastes that can be used to generate energy;



(16)  Agricultural-energy
facilities, including appurtenances necessary for an agricultural-energy
enterprise; provided that the primary activity of the agricultural-energy
enterprise is agricultural activity.  To be considered the primary activity of
an agricultural-energy enterprise, the total acreage devoted to agricultural
activity shall be not less than ninety per cent of the total acreage of the
agricultural-energy enterprise.  The agricultural-energy facility shall be
limited to lands owned, leased, licensed, or operated by the entity conducting
the agricultural activity.



As used
in this paragraph:



"Agricultural
activity" means any activity described in paragraphs (1) to (3) of this
subsection.



"Agricultural-energy
enterprise" means an enterprise that integrally incorporates an
agricultural activity with an agricultural-energy facility.



"Agricultural-energy
facility" means a facility that generates, stores, or distributes
renewable energy as defined in section 269-91 or renewable fuel including
electrical or thermal energy or liquid or gaseous fuels from products of
agricultural activities from agricultural lands located in the State. 



"Appurtenances"
means operational infrastructure of the appropriate type and scale for the
economic commercial generation, storage, distribution, and other similar
handling of energy, including equipment, feedstock, fuels, and other products
of agricultural-energy facilities;



(17)  Construction and operation of wireless
communication antennas; provided that, for the purposes of this paragraph,
"wireless communication antenna" means communications equipment that
is either freestanding or placed upon or attached to an already existing
structure and that transmits and receives electromagnetic radio signals used in
the provision of all types of wireless communications services; provided
further that nothing in this paragraph shall be construed to permit the
construction of any new structure that is not deemed a permitted use under this
subsection; or



(18)  Agricultural education programs conducted on a
farming operation as defined in section 165-2, for the education and
participation of the general public; provided that the agricultural education
programs are accessory and secondary to the principal agricultural use of the
parcels or lots on which the agricultural education programs are to occur and
do not interfere with surrounding farm operations.  For the purposes of this
section, "agricultural education programs" means activities or events
designed to promote knowledge and understanding of agricultural activities and
practices conducted on a farming operation as defined in section 165-2.



(b)  Uses not expressly permitted in subsection
(a) shall be prohibited, except the uses permitted as provided in sections
205-6 and 205-8, and construction of single-family dwellings on lots existing
before June 4, 1976.  Any other law to the contrary notwithstanding, no
subdivision of land within the agricultural district with soil classified by
the land study bureau's detailed land classification as overall (master)
productivity rating class A or B shall be approved by a county unless those A
and B lands within the subdivision are made subject to the restriction on uses
as prescribed in this section and to the condition that the uses shall be
primarily in pursuit of an agricultural activity.



Any deed,
lease, agreement of sale, mortgage, or other instrument of conveyance covering
any land within the agricultural subdivision shall expressly contain the
restriction on uses and the condition, as prescribed in this section that these
restrictions and conditions shall be encumbrances running with the land until
such time that the land is reclassified to a land use district other than
agricultural district.



If the foregoing requirement of encumbrances
running with the land jeopardizes the owner or lessee in obtaining mortgage
financing from any of the mortgage lending agencies set forth in the following
paragraph, and the requirement is the sole reason for failure to obtain
mortgage financing, then the requirement of encumbrances shall, insofar as such
mortgage financing is jeopardized, be conditionally waived by the appropriate
county enforcement officer; provided that the conditional waiver shall become
effective only in the event that the property is subjected to foreclosure
proceedings by the mortgage lender.



The mortgage lending agencies referred to in
the preceding paragraph are the Federal Housing Administration, Federal
National Mortgage Association, Veterans Administration, Small Business
Administration, United States Department of Agriculture, Federal Land Bank of
Berkeley, Federal Intermediate Credit Bank of Berkeley, Berkeley Bank for
Cooperatives, and any other federal, state, or private mortgage lending agency
qualified to do business in Hawaii, and their respective successors and
assigns.



(c)  Within the agricultural district, all
lands with soil classified by the land study bureau's detailed land
classification as overall (master) productivity rating class C, D, E, or U
shall be restricted to the uses permitted for agricultural districts as set
forth in section 205-5(b).



(d)  Notwithstanding any other provision of
this chapter to the contrary, golf courses and golf driving ranges approved by
a county before July 1, 2005, for development within the agricultural district
shall be permitted uses within the agricultural district.



(e)  Notwithstanding any other provision of
this chapter to the contrary, plantation community subdivisions as defined in
this section shall be permitted uses within the agricultural district, and
section 205-8 shall not apply.



[(f)]  Notwithstanding any other law to the
contrary, agricultural lands may be subdivided and leased for the agricultural
uses or activities permitted in subsection (a); provided that:



(1)  The principal use of the leased land is
agriculture;



(2)  No permanent or temporary dwellings or farm
dwellings, including trailers and campers, are constructed on the leased area. 
This restriction shall not prohibit the construction of storage sheds,
equipment sheds, or other structures appropriate to the agricultural activity
carried on within the lot; and



(3)  The lease term for a subdivided lot shall be for
at least as long as the greater of:



(A)  The minimum real property tax agricultural
dedication period of the county in which the subdivided lot is located; or



(B)  Five years.



Lots created and leased pursuant to this section
shall be legal lots of record for mortgage lending purposes and shall be exempt
from county subdivision standards. [L 1976, c 199, §1; am L 1977, c 136, §1; am
L 1980, c 24, §3; am L 1982, c 217, §1; am L 1991, c 281, §3; am L 1997, c 258,
§11; am L 2005, c 205, §3; am L 2006, c 237, §4, c 250, §2, and c 271, §1; am L
2007, c 159, §3 and c 171, §1; am L 2008, c 145, §3; am L 2009, c 53, §1]



 



Law Journals and Reviews



 



  Avoiding the Next Hokuli‘a:  The Debate over Hawai‘i's
Agricultural Subdivisions. 27 UH L. Rev. 441.



 



Case Notes



 



  Religious Land Use and Institutionalized Persons Act of 2000
(RLUIPA), assuming it was constitutional, did not facially invalidate Hawaii's
land use law, where plaintiffs challenged this section and §205-6 to the extent
the sections required a religious organization to obtain a special use permit,
as violations of the "equal terms" and "nondiscrimination"
provisions of the RLUIPA. 229 F. Supp. 2d 1056.



  "Communications equipment buildings" and
"utility lines" in subsection (a)(7) do not encompass
"telecommunications antennas" or "transmission antennas"
such as a cellular telephone tower; public utility thus had to apply for a
special permit under §205-6 to place the tower in a state agricultural
district. 90 H. 384, 978 P.2d 822.



  Under subsection (a)(4) and (10), a chimney and garage are
permitted as accessories to a farm dwelling; however, utilizing the chimney to
conceal an antenna and the garage to house communication equipment were not
permitted uses under either paragraph (4) or (10). 106 H. 343, 104 P.3d 930.



  Under the circumstances of the case, the residence and the
chimney with the concealed antenna constituted a "communications equipment
building" and, thus, were permitted uses under subsection (a)(7); also, as
the garage was not abnormally large and was designed specifically to store the
communications equipment for the concealed antenna, utilizing the permitted
garage structure to house the communications equipment for the antenna was a
permitted use under subsection (a)(7). 106 H. 343, 104 P.3d 930.