§205-45  Petition by farmer or landowner. (a)  A farmer or landowner with lands qualifying under section 205-44 may filewith the commission a petition for declaratory order to designate the lands asimportant agricultural lands.  The petition may be filed at any time in thedesignation process.

(b)  Any law to the contrary notwithstanding,within the same petition for declaratory order as described in subsection (a),the petitioner may seek a reclassification of land in the agricultural districtto the rural, urban, or conservation district, or a combination thereof;provided that:

(1)  The land sought to be reclassified to the rural,urban, or conservation district is within the same county as the land sought tobe designated as important agricultural lands;

(2)  If the reclassification of the land is proposedto the  urban district, that reclassification to urban is consistent with therelevant county general and community, development, or community developmentplans; and

(3)  The total acreage of the land sought to bedesignated or reclassified in the petition complies with the followingproportions:

(A)  At least eighty-five per cent of the totalacreage is sought to be designated as important agricultural land; and

(B)  The remainder of the acreage is sought tobe reclassified to the rural, urban, or conservation district.

(c)  The petition for declaratory order shallbe submitted in accordance with subchapter 14 of the commission's rules andshall include:

(1)  Tax map key numbers of the land to be designatedas important agricultural lands and, if applicable, the land to be reclassifiedfrom the agricultural district to the rural, urban, or conservation district,along with verification and authorization from the applicable landowners;

(2)  Proof of qualification for designation asimportant agricultural lands under section 205-44, respecting a regionalperspective;

(3)  The current or planned agricultural use of thearea sought to be designated as important agricultural lands; and

(4)  If applicable, the current or planned use of thearea sought to be reclassified to the rural, urban, or conservation district.

(d)  Prior to the commission considering apetition for a declaratory order to designate important agricultural land incombination with the reclassification of agricultural land to the rural, urban,or conservation district, the petitioner shall submit to the commission acertification issued by the department of agriculture as to the quality of theland for which designation as important agricultural land is being sought.

(e)  The commission shall review the petitionand the accompanying submissions to evaluate the qualifications of the land fordesignation as important agricultural lands in accordance with section 205-44.

If the petition also seeks the reclassificationof land to the rural, urban, or conservation district, the commission shallreview the petition and accompanying submissions to evaluate:

(1)  The suitability of the land for thereclassification in accordance with section 205-2;

(2)  If the reclassification of the land is proposedto the urban district, that reclassification to urban is consistent with therelevant county general and community, development, or community developmentplans; and

(3)  Compliance with the other provisions ofsubsection (b).

If the commission, after its review, finds thatthe designation and, if applicable, reclassification sought in the petitionshould be approved, the commission shall vote, by a two-thirds majority of themembers of the commission, to issue a declaratory order designating thepetitioner's identified lands as important agricultural lands and, ifapplicable, reclassifying the petitioner's identified land from theagricultural district to the rural, urban, or conservation district.  Thecommission may include reasonable conditions in the declaratory order.

With respect to a petition that seeks to bothdesignate important agricultural lands and reclassify agricultural lands to therural, urban, or conservation district, if the commission finds that either thedesignation or reclassification as proposed by the petitioner should not beapproved, the commission shall deny the petition in its entirety.

(f)  The designation or reclassification ofland pursuant to subsection (a) or (b) shall not be subject to the districtboundary amendment procedures of sections 205-3.1 and 205-4 or become effectiveprior to legislative enactment of protection and incentive measures forimportant agricultural land and agricultural viability, as provided in section9 of Act 183, Session Laws of Hawaii 2005.

(g)  Farmers or landowners with landsqualifying under section 205-44 may file petitions for a declaratory order todesignate lands as important agricultural lands following the legislativeenactment of protection and incentive measures for important agricultural landsand agricultural viability, as provided in section 9 of Act 183, Session Lawsof Hawaii 2005.

(h)  A petitioner granted a declaratory orderthat designates important agricultural land, whether or not combined with thereclassification of land to the rural, urban, or conservation district, shallearn credits if the amount of land reclassified to the rural, urban, orconservation district is less than fifteen per cent of the total acreage ofland subject to the order.  The "total acreage of land subject to theorder" means the total acreage designated as important agricultural landand, if applicable, reclassified to the rural, urban, or conservation districtby the declaratory order.

The credits shall equal the difference betweenthe following, rounded to the nearer tenth of an acre:

(1)  The number that is fifteen per cent of the totalacreage of land subject to the order; less

(2)  The amount of the petitioner's land that isreclassified from the agricultural district to the rural, urban, orconservation district by the declaratory order.

A petitioner with credits earned within acounty may petition the commission for a declaratory order to reclassify any ofthe petitioner's other land in the same county from the agricultural districtto the rural, urban, or conservation district until the credits are exhaustedor expired.  The "petitioner's other land in the same county" meansland owned by the petitioner that is in the same county as the land designatedor reclassified under the petition.  The commission may issue the declaratoryorder if it finds that the land is suitable for reclassification in accordancewith section 205-2 and that the reclassification is consistent with therelevant county general and community, development, or community developmentplans.  The petitioner may petition for such reclassification until all of thepetitioner's credits are exhausted.  Any unexhausted credits shall expire andbecome unusable ten years after the granting of the declaratory order thatdesignated the important agricultural land and, if applicable, reclassifiedland to the rural, urban, or conservation district.

A petitioner with unused and unexhaustedcredits shall not transfer the credits to another person.

(i)  Notwithstanding any other law to thecontrary, the land use commission may grant declaratory orders pursuant to thissection before the commission receives from any county a map delineatingrecommended important agricultural lands.

(j)  Land designated as important agriculturalland pursuant to a declaratory order that both designates land as importantagricultural land and reclassifies land in the agricultural district to therural, urban, or conservation district, or a combination thereof pursuant tothis section shall be redesignated only with the prior authorization of thelegislature.  The authorization shall be expressed by the adoption of aconcurrent resolution approved by a two-thirds vote of each house of thelegislature voting separately.  When making its decision, the legislature shallconsider the standards and criteria in section 205-50.

(k)  The commission may adopt rules pursuant tochapter 91 to effectuate this section. [L 2005, c 183, pt of §2; am L 2008, c233, §19]

 

Note

 

  Section 9 of Act 183, Session Laws of Hawaii 2005, is printedafter section 205-41.

  Designations made pursuant to this section take effect at anytime after incentives and protections for important agricultural lands andagricultural viability are enacted.  L 2005, c 183, §14(1).

  Land use commission rules, see chapter 15-15, HawaiiAdministrative Rules.