This chapter shall be known as the “Kula agricultural park regulations.” (Ord. 3133 § 2 (part), 2003)

The regulations established herein shall govern the procedure for the County of Maui relative to the administration of the Kula agricultural park. (Ord. 3133 § 2 (part), 2003)

The purpose of the Kula agricultural park is to promote the development of diversified agriculture by providing appropriately-sized agricultural lots at reasonable rent and long-term tenure. (Ord. 3133 § 2 (part), 2003)

Notwithstanding any other provision in this code to the contrary, leases for lots within the Kula agricultural park shall be exempt from the provisions of chapter 3.40 of this code, and disposition of lots to lessees within the Kula agricultural park shall be exempt from the provisions of chapter 3.44 of this code. (Ord. 3133 § 2 (part), 2003)

The following words and phrases shall have the meaning indicated whenever used in this chapter, unless a different meaning clearly appears from the context:

“Agricultural park” means the Kula agricultural park subdivision at Kula, Maui, Hawaii.

“Agriculture” means the production of plant and animal life for food and fiber, and for raw materials for processed products. Agriculture includes, but is not limited to: fruit, vegetable, and flower growing; forestry; aquaculture; beekeeping; grazing and dairying; and their accompanying services and facilities.

“Applicant” means any individual, corporation, partnership, association or organization which submits an application for a Kula agricultural park lease to the office of economic development.

“Application” means a request filed by an applicant for a Kula agricultural park lease pursuant to the regulations set forth herein.

“Bona fide farmer” means an individual who has at least two years experience as a full-time owner of a farm, was an operator or manager of an established farm for at least two years, or who has for a period of more than five years worked on a farm or depended on farm income for livelihood. The term “bona fide farmer” includes agricultural cooperatives organized under chapter 421, Hawaii Revised Statutes, or other agricultural associations, partnerships, or organizations of which at least fifty-one per cent of the members qualify individually as bona fide farmers. The term “bona fide farmer” also includes corporations incorporated primarily for agricultural production purposes where at least fifty-one per cent of the stock issued by the corporation is owned by persons who qualify individually as bona fide farmers. For purposes of this chapter, “bona fide farmer” also includes “qualified aquaculturist” as defined in Section 219-2, Hawaii Revised Statutes.

“Chair” means the chair of the Kula agricultural park committee.

“Committee” means the Kula agricultural park committee.

“Council” means the Maui County council.

“Coordinator” means the economic development coordinator of the County of Maui or a designated representative.

“Displaced farmer” means an individual engaged on a continuous and full-time basis in agriculture for a minimum of seven years who becomes displaced because of reasons beyond the individual’s control. The term “displaced farmer” includes agricultural cooperatives organized under chapter 421, Hawaii Revised Statutes, or other agricultural associations, partnerships, or organizations of which at least fifty-one per cent of the members qualify individually as displaced farmers. The term “displaced farmer” also includes corporations incorporated primarily for agricultural production purposes where at least fifty-one per cent of the stock issued by the corporation is owned by persons who qualify individually as displaced farmers.

“Dwelling” means a room or group of rooms connected together constituting an independent housekeeping unit for family and containing a single kitchen.

“Established farm” means a farm from which the operator derives more than fifty per cent of the operator’s total income.

“Farm” means a lot on which the majority of the land is used for and the predominant activity is agriculture and/or agricultural land conservation.

“Farmer” means an individual who operates or works on a farm.

“Lessee” means a qualified individual or entity who is awarded a lease at the Kula agricultural park pursuant to the regulations set forth herein.

“Lot” means a lot within the Kula agricultural park.

“Managing director” means the managing director of the County of Maui.

“Mayor “ means the mayor of the County of Maui.

“New farmer” means an individual who is displaced from employment in agriculture, is a college graduate in agriculture, is a community college graduate in agriculture, or is a Future Farmers of America graduate with a farming project; who has at least two years experience as a part-time farmer; who for two years last preceding the application date obtained more than fifty per cent of income from farming operations; who has not owned or operated a farm on full-time basis for more than two years; and who otherwise meets the eligibility requirements for loans under chapter 155, Hawaii Revised Statutes. The term “new farmer” includes agricultural cooperatives organized under chapter 421, Hawaii Revised Statutes, or other agricultural associations, partnerships, or organizations of which at least fifty-one per cent of the members qualify individually as new farmers. The term “new farmer” also includes corporations incorporated primarily for agricultural production purposes where at least fifty-one per cent of the stock issued by the corporation is owned by persons who qualify individually as new farmers.

“Proposed base annual rent” means the minimum negotiable rent for a Kula agricultural park lot.

“State” means the State of Hawaii.

“Useable acres” means acres of land within the Kula agricultural park which can be used directly for agriculture, as determined by the economic development coordinator. (Ord. 3133 § 2 (part), 2003)

Unless otherwise specified, the coordinator shall administer the provisions of this chapter.

A. There is established a Kula agricultural park committee, which shall consist of the following eleven members:

1. Two representatives: agricultural lending or banking community;

2. One representative: Maui County farm bureau board member;

3. One representative: agricultural trade organization;

4. One representative: Maui farmers exchange or other produce processing co-op;

5. One representative: tenants association of the Kula agricultural park;

6. One representative: University of Hawaii extension service;

7. One representative: office of the mayor;

8. One representative: council; and

9. Two representatives: general public.

B. The representative from the council shall be appointed by the council for a term concurrent with the council member’s term of office. The representative from the office of the mayor shall be appointed by the mayor without approval by the council for a term concurrent with the mayor’s term of office. The remaining nine members of the committee shall be nominated by the mayor, approved by the council, and serve staggered terms of five years.

C. Six members shall constitute a quorum of the committee.

D. The affirmative vote of six or more members of the committee shall be necessary in order to take any action.

E. The committee shall be advisory and shall make recommendations to the coordinator on matters pertaining to the agricultural park.

F. The committee shall form a finance sub-committee of no more than three committee members. At least one finance sub-committee member shall be from the agricultural lending or banking community. The committee may refer financial matters to the finance sub-committee for its review and recommendation. (Ord. 3491 § 1, 2007: Ord. 3133 § 2 (part), 2003)

A. A notice that applications are available for a lot(s) and the date(s) , place(s) , and time(s) an application may be obtained shall be published County-wide in accordance with Section 1-28.5, Hawaii Revised Statutes. The publication shall be made once in each of two consecutive weeks. A notice shall also be posted in the County building for a period of two consecutive weeks.

B. The notices shall identify a deadline for submitting an application, which date shall not be less than ninety nor more than one hundred eighty calendar days after the date of the last publication and/or posting.

C. The notices shall also include the proposed base annual rent for each lot. Rent greater than the minimum may be assessed based on any fixed improvements on the lot, provided that such rent shall not be greater than the current prevailing market rental rates for comparable properties. (Ord. 3133 § 2 (part), 2003)

A. The application to lease a lot shall be made on forms provided by the office.

B. The application for individuals shall include, but is not limited to, the following information:

1. The name and address of the applicant;

2. A detailed resume of the applicant’s agricultural experience;

3. A financial statement of the applicant prepared by a certified public accountant or the applicant’s federal and state tax returns for the two years immediately preceding the application date;

4. An original federal and state tax clearance dated within six months of the application date;

5. A detailed business plan for the proposed agricultural use of the lot including the type of product(s) to be raised, projected income statements, balance sheets, and projected cash flow statements on a monthly basis for a minimum of the first two years of the lease or a term determined by the coordinator, provided that such plan must include the utilization of not less than fifty percent of useable agricultural land within the first two years of the lease term and the remainder within the first five years of the lease term;

6. An identification of the source and anticipated use of capital to finance the proposed agricultural use of the lot including a letter of commitment for funding from a financial institution;

7. An indication of marketing areas; and

8. New farmer information pursuant to Section 22.04A.l00.F.2, if applicable.

C. The application for a corporation, partnership, association or organization shall include, but is not limited to, the following information:

1. The name and address of the applicant;

2. A detailed resume of the stockholders’, partners’, or members’ agricultural experience;

3. A financial statement of the applicant prepared by a certified public accountant or the applicant’s federal and state tax returns for the two years immediately preceding the application date;

4. An original federal and state tax clearance dated within six months of the application date;

5. A detailed business plan for the proposed agricultural use of the lot including the type of product(s) to be raised, projected income statements, balance sheets, and projected cash flow statements on a monthly basis for a minimum of the first two years of the lease or a term determined by the coordinator, provided that such plan must include the utilization of not less than fifty percent of useable agricultural land within the first two years of the lease term and the remainder within the first five years of the lease term;

6. An identification of the source and anticipated use of capital to finance the proposed agricultural use of the lot including a letter of commitment for funding from a financial institution;

7. An indication of marketing areas; and

8. For corporations, a copy of the articles of incorporation reflecting the date of filing, purpose of the corporation, and disclosure of all directors and officers. (Ord. 3133 § 2 (part), 2003)

A. The applicant or the applicant’s authorized representative shall attend a prerequisite workshop to obtain application information, including application procedures.

B. Each applicant is limited to applying for a lease of one lot at any one time, provided that the applicant’s total acreage within the agricultural park shall not exceed seventy-five useable acres.

C. The applicant shall submit a complete application and other required information to the office. The office must receive the application by the deadline.

D. The coordinator shall notify the applicant of any deficiencies in the application by certified mail. The applicant shall resolve any application deficiencies and submit any requested information to the office within ten calendar days from the date of receipt of the notification.

E. The coordinator shall submit the application to the committee within forty-five calendar days after the coordinator deems the application complete.

F. The committee shall evaluate the application to determine if the applicant meets the minimum qualifications. Determination of qualifications shall be as of the date of application. Qualifying indices must also be factual through date of lease execution. To meet minimum qualifications, an applicant must satisfy paragraphs 1, 2 or 3 and paragraphs 4 and 5:

1. Bona fide farmer; or

2 . New farmer. The applicant must have in liquid assets at least ten percent of the proposed development cost. A new farmer applicant must also include the following additional information in the application:

a. Present or past agricultural project;

b. Current financial statement;

c. Plan of development and utilization of the lot including the estimated cost of development ; and

d. Statement of willingness, readiness, and ability to undertake agriculture on the lot on a full-time basis immediately or shortly after commencement of the lease; or

3. Displaced farmer. Circumstances under which a displaced farmer may qualify is loss of farm because of actual or documented and verified threat of:

a. Non-renewal of rental agreement;

b. Land rendered inadequate for economic operation because of loss attributable to condemnation, withdrawal, or natural disaster; or

c. Farm relocation necessitated by forces such as urban encroachment or change in land use zoning, provided that voluntary sale or surrender of farm shall disqualify applicant as a displaced farmer; and

4. The applicant shall not be delinquent in the payment of taxes or other obligations to the United States, the State of Hawaii or to any of its political subdivisions, including the County; and

5. Financial resources. The applicant must have proof of adequate financing as determined by the coordinator.

G. If an applicant meets the minimum qualifications, the committee shall evaluate the application by assigning points as follows:

1. Resident of Maui County for at least five years preceding the application date (for a corporation, partnership, association or organization, at least fifty-one percent of its stockholders, partners, or members must qualify): ten points.

2. Agricultural farming skills (for a corporation, partnership, association or organization, at least fifty-one percent of its stockholders, partners, or members must qualify).

a. Agricultural college, two years minimum: five points.

b. Farming for a minimum of two years: five points.

c. Farming for more than ten years: ten points.

3. Unemployed farmer who has no farm (for a corporation, partnership, association or organization, at least fifty-one percent of its stockholders, partners, or members must qualify): ten points.

4. An applicant with financial backing to start operations immediately: ten points.

5. Quality business plan, as determined by the coordinator: five points.

6. Documented and verified threat to the applicant’s current farm by (for a corporation, partnership, association or organization, at least fifty-one percent of its stockholders, partners, or members must qualify):

a. Loss of lease or imminent loss of lease: twenty points.

b. Cost of water reducing income: five points.

c. Regulations making farming too

costly to continue: five points.

H. The applicant(s) with the highest score(s) shall be recommended by the committee to the coordinator to receive a lease.

I. In the event of a tie of points, the applicant shall be selected by the committee for recommendation as follows:

1. The coordinator shall place each of the applicant names receiving identical scores in a separate sealed envelope.

2. The sealed envelopes will be placed into a selection container which shall be brought to the next available committee meeting.

3. The chair shall select a committee member to draw an envelope from the selection container.

4. The envelope shall be opened by the chair and the applicant selected shall be read into the public record.

J. The committee shall make a recommendation to the coordinator on the application within thirty calendar days of the application first appearing on the committee’s agenda. The committee shall provide all documents, written findings, conclusions and recommendations, and any proposed conditions or qualifications to the coordinator.

K. The coordinator shall review the recommended application as well as those documents, written findings, conclusions and recommendations, and any proposed conditions or qualifications provided by the committee.

L. The coordinator shall deny, approve, or approve with conditions the recommended application within thirty calendar days after the recommendation by the committee is made.

M. The coordinator shall notify the applicant of the coordinator’s decision by certified mail within fourteen calendar days after making a decision on the application.

N. Lot selection. If more than one lot becomes available at the same time, the applicant with the highest score pursuant to subsection G of this section shall select a lot first, followed by the next highest scorer, and so on. In the event of a tie, lots shall be selected in the order applicants were drawn pursuant to subsection I of this section. Except as otherwise specified in this chapter, lot selection shall take place at a place, date, and time determined by the coordinator. Applicants must be present in person for lot selection. An authorized agent may represent the applicant with prior approval by the coordinator. An applicant shall waive the right to select a lot if the applicant or the applicant’ s authorized representative is not present when the drawing for lot selection begins. The coordinator shall assign a lot to any absent applicant(s) after the lot selection ends. The coordinator may reserve lots during any lot selection procedure for matters such as pending administrative appeals, litigation, or other matters beyond the County’s control. The coordinator shall assign a reserved lot to an applicant who prevails in an administrative appeal or legal proceeding.

O. Upon fulfillment of all prospective lessee’s duties and completion of lot selection, if any, the coordinator shall tender a lease for execution to prospective lessee(s) by certified mail. In the event a prospective lessee fails to execute the lease within thirty calendar days after receipt thereof, the coordinator shall deem such failure to terminate any and all rights which such defaulting prospective lessee may have been entitled to.

P. If a prospective lessee fails to execute the lease within the time permitted, a new qualified applicant shall be selected in accordance with this section from those qualified applicants who received a score pursuant to subsection G of this section but did not receive a lot award. If there are no such qualified applicants, the office shall provide notice of lot availability and go through the application and evaluation process again in accordance with this chapter. (Ord. 3133 § 2 (part), 2003)

A. Any applicant aggrieved by a decision or determination of the coordinator, may appeal the coordinator’s decision or determination to the managing director within ten calendar days after notice of such decision or determination.

B. The appeal shall clearly state with particularity the coordinator’s decision or determination being appealed from and the applicant’s position on the matter. The applicant may request, at the same time the appeal is filed, a hearing on the matter. Any such hearing shall be held within ten calendar days after filing the appeal and request for hearing. If no hearing is requested, the managing director shall render a decision within fourteen calendar days after the appeal is filed. If there is a hearing, the managing director shall render a decision within fourteen calendar days after the hearing is concluded. The managing director shall examine the application, written findings, conclusions and recommendations, and any other relevant information before rendering a decision. The managing director may reverse, affirm or modify, wholly or partly, the decision of the coordinator. If the managing director does not render a decision within the applicable fourteen day limit specified above, the decision of the coordinator shall be deemed reversed or modified in accordance with the applicant’s stated appeal position. The decision of the managing director shall be deemed a final decision. (Ord. 3133 § 2 (part), 2003)

In addition to the standard County lease provisions, each agricultural park lease shall contain the following:

A. A lease term of fifty years.

B. The lease rental rate to be paid quarterly by the first of January, April, July, and October, provided that the lessee may pre-pay rent without penalty.

C. The general agricultural use or uses to which

the land is to be employed.

D. A provision that the lessee shall remain current in payment of all taxes, rents, or other obligations to the United States, the State of Hawaii, or any of its political subdivisions, including the County.

E. A provision that the lessee shall pay or cause to be paid, when due, the amount of all taxes, rate assessments and other outgoings of every description as to which said demised premises or any part thereof, or any improvements thereon or the County or lessee in respect thereof, may be assessed or become liable by authority of law during the term of the lease; provided, however, that with respect to any government assessment which may be payable in installments lessee shall be required to pay only such installments, together with interest, as shall become due and payable during the term.

F. A provision that the lessee may sublease, with coordinator’s approval , one time only for a period not to exceed five consecutive years, the whole or any portion of the demised premises to a sublessee who meets the minimum qualifications pursuant to Section 22.04A.100.F to lease property in the agricultural park, provided that the sublease agreement shall be year to year and approved by the coordinator, and provided further that the sublessee cannot lease or sublease more than seventy-five usable acres within the agricultural park.

G. A provision that a lessee may assign the lease for the remainder of the lease term to any individual, corporation, partnership, association or organization, provided that such assignee meets the minimum qualifications pursuant to Section 22.04A.l00.F to lease property in the agricultural park, and provided further that such assignee cannot lease or sublease more than seventy-five useable acres within the agricultural park;

H. A provision that the lessee may mortgage or create a security interest in the demised premises or any portion thereof with coordinator’s approval, provided that in the case of default the leasehold interest may only be foreclosed via judicial action pursuant to chapter 667, HRS, and the purchaser of the leasehold interest at any foreclosure and sale meets the minimum qualifications pursuant to Section 22.04A.l00.F to lease property in the agricultural park, and provided further that in the event of default any financial lending institution mortgage holder may purchase the leasehold interest at any foreclosure and sale to temporarily hold title to such leasehold interest for a reasonable time so long as such mortgage holder uses its best efforts to convey such leasehold interest to a person or entity who meets the minimum qualifications pursuant to Section 22.04A.l00.F, of this code to lease property in the agricultural park, and provided further that such leasehold interest shall be transferred via assignment of lease for the remainder of the lease term only.

I. A provision that the lessee may sell capital improvements at anytime with coordinator approval during the lease term and within a ninety day period after expiration or termination of the lease.

J. The lessee must utilize the land for agricultural and related purposes in accordance with the following schedule:

1. Not less than fifty percent of useable agricultural land within the first two years of the lease term and the remainder within the first five years; and

2. The above utilization schedules shall be made a part of the plan of development and utilization which must be submitted to the County.

K. A provision that the lessee shall keep the demised premises and improvements thereon in a strictly clean, sanitary and orderly condition.

L. A provision that the lessee shall not commit, suffer or permit to be committed any waste, nuisance, strip or unlawful, improper or offensive use of the demised premises or any part thereof.

M. A provision that the lessee shall not engage in any activity which may result in soil erosion, except in accordance with Chapter 20.08, of this code.

N. A provision that the lessee shall utilize best management practices as all times.

O. A provision that the lessee shall comply with all requirements of County, state and federal authorities and observe all County rules, regulations, and ordinances and state and federal statutes pertaining to the premises, now in force or which may hereinafter be in force.

P. A provision that the lessee shall permit the County and its agents to enter the demised premises and examine the state of and condition thereof at all reasonable times during the term of the lease.

Q. A provision that, to the extent permitted by law, the lessee shall indemnify, release, defend and hold the County harmless from and against any claim or demand for loss, liability or damage which arises from the lessee’s action, omission, or use of the property and that such provision shall remain valid and binding against lessee notwithstanding expiration or termination of the lease.

R. A provision that the lessee fully understands that any water made available to the demised premises shall be for agricultural purposes only and not for human consumption, and provided further that the lessee shall post signs adequate to provide notice to anyone entering upon the lot that the water is not for human consumption.

S. A provision that failure to comply with all provisions of the lease shall be cause for termination of the lease. (Ord. 3133 § 2 (part), 2003)

Should any section, clause, or phrase of these regulations be for any reason held invalid by a court of competent jurisdiction, such decision(s) shall not affect the validity of the remaining portion of these regulations. (Ord. 3133 § 2 (part), 2003)