Maile Davis has been running her daycare business in upcountry Maui for more than a decade.

Over the years, Davis has taken care of kids from more than 30 families, teaching them about gardening and how caterpillars change into butterflies.

Her business is located on a farm in the community of Haiku in Maui County where she and her family grow produce and raise cows, horses and chickens.

Davis’ business has been licensed by the Department of Human Services for 11 years, but she was recently told that she must apply for a special use permit in order to continue her work. The DHS said Davis owns one of several child care facilities that violates a decades-old law limiting how agricultural land can be used.

Davis said the application process for a permit is too expensive and she wants lawmakers to pass House Bill 2560, which would allow family care centers to operate on agricultural land.

The bill is one of several that the Legislature is mulling this session that would add more exemptions to the growing list of structures that are permitted on Hawaii’s farmland.

Legislators are grappling with how to balance the various needs of their communities while at the same time trying to preserve farmland to avoid urban sprawl and improve Hawaii’s food self-sufficiency.

Legislative Solutions?

While zoning is traditionally a county responsibility, Hawaii established a state-level land use law back in 1961 in part to protect its limited farmland.

Over the years, a widening array of structures have been allowed on agricultural land, with more than a dozen types now permitted, including wind farms, agricultural tourism businesses and solar energy facilities.

HB 2560 would add family child care homes to that list, and limit the number of kids allowed in each home to a maximum of six to help small businesses like Davis’.

Maui County Chairwoman Gladys C. Baisa urged state lawmakers to approve the bill, saying that child care is needed in Maui’s agricultural communities and that many caregivers don’t have the money, time or expertise to obtain special use permits.

Another measure making its way through the Legislature this year would increase the number of solar energy facilities allowed on farmland.

Right now, the state permits solar panels on farmland that has a fertility rating of B through E on the state’s A through E productivity rating scale. (An A designation is for the most productive land, while an E denotes the least fertile.)

But while there’s no limit to how many solar panels can be on land that’s considered less fertile, the facilities are limited to just 10 percent of land that is more productive (rated B or C, or about 21 percent of the state’s 1.9 million acres of agricultural land).

Senate Bill 2658 would allow solar companies to place panels on fairly productive agricultural land (rated B or C), if the landowner obtains a special use permit and allows commercial farming at the same time.

Advocates for the measure, including solar energy advocacy groups and companies, say that this proposal would help improve Hawaii’s energy sustainability while also encouraging farming.

Proponents point to sheep grazing under and around solar panels as an example of how the two land uses may complement each other. One sheep farmer, Luann Casey from Tin Roof Ranch, testified in favor of the bill and said that her small farm is unable to keep up with the demand for locally grown lamb.

A related bill, Senate Bill 2775, would allow solar energy facilities on class A agricultural land as long as the panels are located on a road and certain other conditions are met.

Residents of Puna on the Big Island are also pushing a proposal that would create a permit to allow “sustainable living research” on agricultural land on Maui and the Big Island. Senate Bill 2274 is aimed at promoting a shared living environment that emphasizes conservation and waste re-use.

Graham Ellis, chairman of the Hawaii Sustainable Community Alliance, said the bill would allow “ecovillages” for people studying farming, recycling and other forms of sustainable living. He said the bill would help Hawaii better prepare to address the effects of climate change.

Concerns About Impact

Critics say the measures are well-intentioned but raise broader questions about what should be allowed on agricultural land and whether Hawaii should comprehensively reform its land use laws.

Nearly half of the state’s land is classified as agricultural. Since 1978 Hawaii has had a constitutional obligation to preserve and protect important farmland, but the state hasn’t yet identified those lands. Instead, over the years the Legislature has allowed a growing number of uses on farmland.

Critics say adding more exemptions to land use regulations encourages landowners to lease out the property for other uses and makes it more likely that land won’t be used for farming. Ambiguous definitions also allow the exemptions to be interpreted broadly. For example, the law permits “farm dwellings” to exist on agricultural land but doesn’t offer a clear definition, leading counties to approve applications to build residential subdivisions and even luxury homes.

Office of Planning Director Leo Asuncion questioned whether the new proposals would further weaken the state’s land use law.

“We’re pulling thread from a tapestry that was the land use law,” he said. “We’re pulling these threads and pretty soon you don’t have that tapestry, you don’t have that structure that is supporting all of our land use decisions.”

Jeff Mikulina from the Blue Planet Foundation maintains that solar panels will not interfere with farming. He also noted that the SB 2658 would require that solar facilities be removed from farmland at the end of their use.

But Sen. Laura Thielen argued that expanding the solar energy exemption will drive up the value of land, making it harder for farmers to obtain long-term leases.

“The land market doesn’t take the agricultural land use laws seriously,” she said.

She’s also worried that SB 2658 doesn’t have a strong enough enforcement mechanism and could open the floodgates for more facilities without any complementary farming.

“My feeling is that we’re getting to the point on our agricultural land use laws that it’s like death by a thousand paper cuts,” she said. “We have this exemption, we have that exemption — how many more are we going to do?”

Despite her misgivings about the proposals to allow more solar facilities and child care businesses, Thielen thinks SB 2274, the measure to promote sustainable research sites, holds promise because it creates a permit, rather than adding a blanket exemption.

Supporters of the measure also defend it as unique because it promotes a lifestyle of conservation. Thielen noted that county building codes are designed for urban areas and that the permit could create pilot projects for alternative building codes.

But some state officials are still concerned.

“The Department of Agriculture supports efforts to increase food production and promote agricultural education,” said state Agriculture Director Scott Enright in his testimony. “However, we feel that agricultural production should be the primary activity on agricultural land.”

Asuncion emphasized that there is already a mechanism in place — a special use permit — that people can seek if they want to use agricultural land for something other than farming.

He worries that the bills before the Legislature will continue to erode the efficacy of the state land use law.

“Child care facilities today, what’s next tomorrow?” Asuncion said.

Contact Anita Hofschneider on Twitter at @ahofschneider or via email at anita@civilbeat.com

About the Author