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Honorable Pete Hoffinann Chair and Presiding Officer and Members of the County Council COUNTY COUNCIL Page 2 March 7, 2007 A "nonconforming use" is one that was legal when it began, but no longer conforms because of a subsequent change in the zoning law. State law requires the counties to allow nonconforming uses to continue, at least in residential areas. Our county zoning powers come from sec. 46-4 of the Hawaii Revised Statutes, which includes this clause: "Neither this section nor any ordinance enacted pursuant to this section shall prohibit the continued lawful use of any building or premises for any trade, industrial, residential, agricultural, or other purpose for which the building or premises is used at the time this section or the ordinance takes effect; provided that a zoning ordinance may provide for elimination of nonconforming uses as the uses are discontinued, or for the amortization or phasing out of nonconforming uses or signs over a reasonable period of time in commercial, industrial, resort, and apartment zoned aeeas only. In no event shall such amortization or phasing out of nonconforming uses apply to any existing building or premises used for residential (single-family or duplex) or agricultural uses." The Hawaii Supreme Court said that there is a constitutional requirement to allow nonconforming uses to continue when a zoning code change is made. Waikiki Marketplace Investment Co. v. Zoning Board of Anneals, 86 Haw. 343, 949 P.2d 183 (1997). The Hawaii County Zoning Code has sections concerning nonconforming uses, sec. 25-4- 60 to 65.1. Basically, nonconforming uses can continue. They cannot be enlarged, and if they aze discontinued for one yeaz, it cannot be reinstated. My recommendation would be to eliminate subsection (c) from the proposed Draft 4. If it is meant to create a 15 month period in which currently legal group living facilities must be discontinued, it goes beyond our county zoning powers, at least with respect to residential areas. Without subsection (c), a nonconforming group living facility could still be terminated if it is discontinued according to the general provisions of the Zoning Code. If the clause is meant to give group living facilities that are not currently legal some time to come into compliance, it should be re-written. For example, if it is meant to allow 15 months for special treatment facilities or therapeutic living programs that currently have eight residents, but which are: (1) not allowed to have eight under the current zoning