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

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

(2)  Game and fishpropagation;

(3)  Raising oflivestock, including poultry, bees, fish, or other animal or aquatic life thatare propagated for economic or personal use;

(4)  Farmdwellings, employee housing, farm buildings, or activities or uses related tofarming and animal husbandry.  "Farm dwelling", as used in thisparagraph, means a single-family dwelling located on and used in connectionwith a farm, including clusters of single-family farm dwellings permittedwithin agricultural parks developed by the State, or where agriculturalactivity provides income to thefamily occupying the dwelling;

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

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

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

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

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

(10)  Buildings anduses, including mills, storage, andprocessing facilities, maintenance facilities, and vehicle and equipmentstorage areas that are normally considered directly accessory to the above-mentioneduses and are permitted under section 205-2(d);

(11)  Agricultural parks;

(12)  Plantationcommunity subdivisions, which as used in this chapter means an establishedsubdivision or cluster of employee housing, community buildings, andagricultural support buildings on land currently or formerly owned, leased, oroperated by a sugar or pineapple plantation; provided that the existingstructures may be used or rehabilitated for use, and new employee housing andagricultural support buildings may be allowed on land within the subdivision asfollows:

(A)  Theemployee housing is occupied by employees or former employees of the plantationwho have a property interest in the land;

(B)  Theemployee housing units not owned by their occupants shall be rented or leasedat affordable rates for agricultural workers; or

(C)  Theagricultural support buildings shall be rented or leased to agriculturalbusiness operators or agricultural support services;

(13)  Agriculturaltourism conducted on a working farm, or a farmingoperation as defined in section 165-2, for the enjoyment, education, orinvolvement of visitors; provided that the agricultural tourism activity isaccessory and secondary to the principal agricultural use and does notinterfere with surrounding farm operations; and provided further that thisparagraph shall apply only to a county that has adopted ordinances regulatingagricultural tourism under section 205-5;

(14)  Wind energyfacilities, including the appurtenances associated with the production andtransmission of wind generated energy; provided that the wind energy facilitiesand appurtenances are compatible with agriculture uses and cause minimaladverse impact on agricultural land;

(15)  Biofuel processing facilities, including theappurtenances associated with the production and refining of biofuels that isnormally considered directly accessory and secondary to the growing of theenergy feedstock; provided that biofuels processing facilities andappurtenances do not adversely impact agricultural land and other agriculturaluses in the vicinity.

For the purposes of this paragraph:

"Appurtenances" means operationalinfrastructure of the appropriate type and scale for economic commercialstorage and distribution, and other similar handling of feedstock, fuels, andother products of biofuels processing facilities.

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

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

As usedin this paragraph:

"Agriculturalactivity" means any activity described in paragraphs (1) to (3) of thissubsection.

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

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

"Appurtenances"means operational infrastructure of the appropriate type and scale for theeconomic commercial generation, storage, distribution, and other similarhandling of energy, including equipment, feedstock, fuels, and other productsof agricultural-energy facilities;

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

(18)  Agricultural education programs conducted on afarming operation as defined in section 165-2, for the education andparticipation of the general public; provided that the agricultural educationprograms are accessory and secondary to the principal agricultural use of theparcels or lots on which the agricultural education programs are to occur anddo not interfere with surrounding farm operations.  For the purposes of thissection, "agricultural education programs" means activities or eventsdesigned to promote knowledge and understanding of agricultural activities andpractices 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 sections205-6 and 205-8, and construction of single-family dwellings on lots existingbefore June 4, 1976.  Any other law to the contrary notwithstanding, nosubdivision of land within the agricultural district with soil classified bythe land study bureau's detailed land classification as overall (master)productivity rating class A or B shall be approved by a county unless those Aand B lands within the subdivision are made subject to the restriction on usesas prescribed in this section and to the condition that the uses shall beprimarily in pursuit of an agricultural activity.

Any deed,lease, agreement of sale, mortgage, or other instrument of conveyance coveringany land within the agricultural subdivision shall expressly contain therestriction on uses and the condition, as prescribed in this section that theserestrictions and conditions shall be encumbrances running with the land untilsuch time that the land is reclassified to a land use district other thanagricultural district.

If the foregoing requirement of encumbrancesrunning with the land jeopardizes the owner or lessee in obtaining mortgagefinancing from any of the mortgage lending agencies set forth in the followingparagraph, and the requirement is the sole reason for failure to obtainmortgage financing, then the requirement of encumbrances shall, insofar as suchmortgage financing is jeopardized, be conditionally waived by the appropriatecounty enforcement officer; provided that the conditional waiver shall becomeeffective only in the event that the property is subjected to foreclosureproceedings by the mortgage lender.

The mortgage lending agencies referred to inthe preceding paragraph are the Federal Housing Administration, FederalNational Mortgage Association, Veterans Administration, Small BusinessAdministration, United States Department of Agriculture, Federal Land Bank ofBerkeley, Federal Intermediate Credit Bank of Berkeley, Berkeley Bank forCooperatives, and any other federal, state, or private mortgage lending agencyqualified to do business in Hawaii, and their respective successors andassigns.

(c)  Within the agricultural district, alllands with soil classified by the land study bureau's detailed landclassification as overall (master) productivity rating class C, D, E, or Ushall be restricted to the uses permitted for agricultural districts as setforth in section 205-5(b).

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

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

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

(1)  The principal use of the leased land isagriculture;

(2)  No permanent or temporary dwellings or farmdwellings, 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 activitycarried on within the lot; and

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

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

(B)  Five years.

Lots created and leased pursuant to this sectionshall be legal lots of record for mortgage lending purposes and shall be exemptfrom county subdivision standards. [L 1976, c 199, §1; am L 1977, c 136, §1; amL 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 L2007, 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'sAgricultural 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'sland use law, where plaintiffs challenged this section and §205-6 to the extentthe 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 aspecial permit under §205-6 to place the tower in a state agriculturaldistrict. 90 H. 384, 978 P.2d 822.

  Under subsection (a)(4) and (10), a chimney and garage arepermitted as accessories to a farm dwelling; however, utilizing the chimney toconceal an antenna and the garage to house communication equipment were notpermitted uses under either paragraph (4) or (10). 106 H. 343, 104 P.3d 930.

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