REPORT TITLE:
Right to Farm


DESCRIPTION:
Amends definition of "farming operation" to include silviculture;
permits a finding that a farming operation is not a nuisance to
be based on substantial compliance with pertinent regulations;
and requires the award of court costs and attorneys fees for
frivolous lawsuits relating to use of farm lands.  (SD1)

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
                                                        2999
HOUSE OF REPRESENTATIVES                H.B. NO.           H.D. 2
TWENTIETH LEGISLATURE, 2000                                S.D. 1
STATE OF HAWAII                                            
                                                             
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                   A  BILL  FOR  AN  ACT

RELATING TO THE RIGHT TO FARM.



BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 1      SECTION 1.  Section 165-2, Hawaii Revised Statutes, is
 
 2 amended to read as follows:
 
 3      "§165-2 Definitions.  As used in this chapter, unless the
 
 4 context otherwise requires:
 
 5      ["Established date of operation" means the date on which the
 
 6 original farming operation first commenced operation.  If the
 
 7 physical facilities of the farming operation are subsequently
 
 8 expanded or new technology adopted, the established date of
 
 9 operation for each change shall be the same as the established
 
10 date of operation for the original operation, provided that this
 
11 does not violate existing state law or county ordinances.]
 
12      "Farming operation" means a commercial agricultural,
 
13 silvicultural, or aquacultural facility or pursuit conducted, in
 
14 whole or in part, including the care and production of livestock
 
15 and livestock products, poultry and poultry products, [and]
 
16 apiary[, horticultural, or floricultural products;] products, and
 
17 plant and animal production for nonfood uses; the planting,
 
18 cultivating, [and] harvesting, and processing of crops; and the
 
19 farming or ranching of any plant or animal species in a
 

 
Page 2                                                     2999
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 1 controlled salt, brackish, or freshwater environment.  "Farming
 
 2 operation" also includes[,] but shall not be limited to[,
 
 3 marketed]:
 
 4      (1)  Marketed produce at roadside stands or farm markets;
 
 5           [noises,]
 
 6      (2)  Noises, odors, dust, and fumes emanating from a
 
 7           commercial agricultural or an aquacultural facility or
 
 8           pursuit; [operation]
 
 9      (3)  Operation of machinery and irrigation pumps; [ground]
 
10      (4)  Ground and aerial seeding and spraying; [the]
 
11      (5)  The application of chemical fertilizers, conditioners,
 
12           insecticides, pesticides, and herbicides; and [the]
 
13      (6)  The employment and use of labor.
 
14 A farming operation that conducts processing operations or salt,
 
15 brackish, or freshwater aquaculture operations on land that is
 
16 zoned for industrial, commercial, or other nonagricultural use
 
17 shall not, by reason of that zoning, fall beyond the scope of
 
18 this definition; provided that those processing operations form
 
19 an integral part of operations that otherwise meet the
 
20 requirements of this definition.
 
21      "Nuisance" means any interference with reasonable use and
 
22 enjoyment of land, including but not limited to smoke, odors,
 
23 dust, noise, or vibration; provided that nothing in this chapter
 

 
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 1 shall in any way restrict or impede the authority of the State to
 
 2 protect the public health, safety, and welfare.  "Nuisance" as
 
 3 used in this chapter, includes all claims that meet the
 
 4 requirements of this definition regardless of whether a
 
 5 complainant designates such claims as brought in nuisance,
 
 6 negligence, trespass, or any other area of law or equity;
 
 7 provided that nuisance as used in this chapter does not include
 
 8 an alleged nuisance that involves water pollution or flooding."
 
 9      SECTION 2.  Section 165-4, Hawaii Revised Statutes, is
 
10 amended to read as follows:
 
11      "§165-4  Right to Farm.(a)  No court, official, public
 
12 servant, or public employee shall declare any farming operation a
 
13 nuisance for any reason if [all of the following have been
 
14 proven:
 
15      (1)  That during the twelve-month period preceding the
 
16           filing of the nuisance complaint with a court or other
 
17           adjudicative public body, the farming operation
 
18           complied with statutes, ordinances, regulations, or
 
19           rules relevant to the nuisance complaint; and
 
20      (2)  That the farming operation has used reasonable care in
 
21           conducting its operation.
 
22      (b)  Notwithstanding a farming operation's satisfaction of
 
23 subsection (a)(1) and (2), a farming operation may be declared a
 

 
Page 4                                                     2999
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 1 nuisance if:
 
 2      (1)  The farming operation or any aspect thereof has been
 
 3           previously determined to be injurious to public health
 
 4           or safety by the department of health, the department
 
 5           of agriculture, or a court of competent jurisdiction;
 
 6           and
 
 7      (2)  The complainant establishes by a preponderance of the
 
 8           evidence that the alleged nuisance resulted from the
 
 9           injurious operation or aspect thereof.  Any
 
10           determination of injuriousness shall be in writing and
 
11           shall set forth the bases for the determination.]
 
12 the farming operation has been conducted in a manner consistent
 
13 with generally accepted agricultural and management practices.
 
14 There shall be a rebuttable presumption that a farm operation
 
15 does not constitute a nuisance."
 
16      SECTION 3.  Section 165-5, Hawaii Revised Statutes, is
 
17 amended to read as follows:
 
18      "[[]§165-5[]]  Frivolous lawsuits [.]; award of costs and
 
19 fees.  [Any nuisance action, found to be frivolous by the court,
 
20 in which a farming operation is alleged to be a nuisance as
 
21 defined in section 165-2, shall be governed by section 607-14.5.]
 
22 If a court determines that an action alleging that a farming
 
23 operation is a nuisance is frivolous, the court shall award to
 

 
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 1 the defendant costs of court, reasonable attorney fees, and other
 
 2 costs in amounts deemed appropriate by the court."
 
 3      SECTION 4.  Statutory material to be repealed is bracketed.
 
 4 New statutory material is underscored.
 
 5      SECTION 5.  This Act shall take effect upon its approval.