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HomeMy WebLinkAboutBIL 213 Draft 01 2000-2002 COUNT' OF ~AW`I _ STATE OF I ~AWAI`I SILL NO. 2~ OI~INANCE NO. AN ORDINANCE AMENDING CHAPTER 23 OF THE HAWAII COUNTY CODE 1983 (1985 EDITION) RELATING TO PRE-EXISTING LOTS. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: SECTION 1. FINDINGS. The law regarding lots that pre-exist the subdivision code, and their use for consolidation and re-subdivision, needs clarification. This is particularly true for "lots" that are claimed to result from leases or other temporary arrangements, such as units within abandoned plantation camps. The council should clarify that units within abandoned plantation camps cannot be considered as pre-existing lots. Control over the creation of lots-the subdivision of land into units that can be sold separately-is an essential tool of modern planning. The Subdivision Code ensures that when land is subdivided, the new lots have adequate access, drainage, and other infrastructure. The Subdivision Code specifies the minimum requirements for subdivision, such as road standards. The County has many examples of infrastructure problems from subdivisions developed before there was a strong subdivision code. The Zoning Code works with the Subdivision Code to specify the minimum area and dimension of lots. This is the basic control of density. Lot sizes are a basic difference between agricultural and urban areas. The County's first Subdivision Code was enacted in 1944. On January 8, 1948, the subdivision law was amended so that the lease, as well as the sale of lots, must conform to the Subdivision Code. The County has recognized the legal validity of lots created by sale or other transfer of fee simple interest before the creation of lots was formally regulated by the Subdivision Code. All grants and awards of land from the government created separate "lots" when they were conveyed. When portions of those properties were later sold or otherwise permanently transferred, if in full compliance with the laws of the time, new lots were created with the new boundaries. When an owner sold, devised, or otherwise permanently transferred a portion of a lot, it was clearly the intent to make a permanent separation of one part of the property from another. If the County did not recognize the creation of a separate lot by such actions that occurred before the first Subdivision Code, the owners of the areas in question would not own separate properties, and might be co- tenants in one larger lot. Property that was only leased separately is different. The leasing of a portion of a lot does not imply the intent to permanently create a separate legal entity. The owner takes back the area at the end of the lease. Bylaw, when the owner of a fee interest also acquires the leasehold interest, the leasehold interest "merges" into the fee interest, and no longer constitutes a separate interest. Simerson v. Simerson, 20 Haw. 57 (1910). The Planning Department has, however, in the past, recognized some pre-existing lots based upon leases, or other temporary arrangements, in certain circumstances. This was done primarily in allowing existing plantation camps to be converted to fee ownership. This preserved existing communities after the demise of the sugar plantations. 2 It allowed the residents of the camps to purchase their homes, in furtherance of the general public policy in favor of home ownership. While some vacant lots were also recognized, these lots were within existing communities. All of the existing camps- those that contain residences-have now been subdivided and transferred. The Council finds that recognizing lots based upon leases maybe abused to create new development that is not in conformance with the subdivision and zoning codes. In particular, if "lots" are recognized in long-abandoned plantation camps and these "lots" are then developed without following the regular subdivision and zoning codes, this undermines the public health, safety, and welfare, and the public interest in the orderly development of land. The rationale for recognizing the continuing existence of lots that pre-date the Subdivision Code is that if the land has already been divided and developed, recognizing the lots does not contradict the purposes and spirit of the Code. Akai v. Lewis, 37 Haw. 374, 379 (1946). Obviously, to allow subdivision of areas based upon small "lots" whose separate use has long been abandoned would contradict the purposes of the subdivision law. At one time, there were many plantation camps scattered around the island which were closed and abandoned because the companies and workers wanted a higher quality of housing. At one time, the camps did contain residential dwellings. The employees typically did not have long-term or recorded leases to the dwellings. When employees occupied the dwellings as an incident of employment, without a separate contract giving a set term of occupancy, the use of the home was not even considered a lease. Eciia v. Paauhau Sugar Plantation Co., 26 Haw. 42 (1921). The owners have demonstrated that 3 they had no long-term intent or expectation to retain the separate identity of the units within the camps by their actions in demolishing them and putting the land back to agricultural use. For the most part, these areas are in large-lot agricultural zoning, and have been for many years. The owners of areas containing abandoned plantation camps have no reasonable expectation that the individual units in these camps can now be revived and used to subdivide the surrounding agricultural land to lots that do not conform to the subdivision and zoning codes. Past County actions in recognizing pre-existing lots based upon leases might not have adequately considered the significance of other statutes. After 1859, the laws of the Kingdom, and later the Territory, required the recordation of leases with a term of more than a year. Unrecorded leases with a term of more than a year were not valid against third parties without notice. From 1911 on, Territorial law required that when property was subdivided to be sold or leased by lots, the plan of the subdivision would have to be recorded with the Bureau of Conveyances. The Council finds that there is some lack of certainty and clarity in the present law. By enacting this ordinance, it does not imply that the law presently recognizes abandoned plantation camps or other abandoned leasehold interests as pre-existing lots. The ordinance creates two basic exceptions: property that contains a legal dwelling; and property continuously leased as a separate unit. The first exception recognizes the public policy in favor of converting leasehold residential interests to fee ownership. See Chapter 516, H.R.S. The exception for property continuously leased recognizes that this shows a continued intent to treat the property as a separate unit, and that the lease did not merge into the fee. 4 Another related issue in consolidation and resubdivision is the use of lots that were not created to be building sites, such as road lots, flume lots, or railroad rights-of- way. Section 23-7 of the Subdivision Code provides that the normal standards of the Code do not apply if a consolidation and resubdivision does not create a greater number of lots. The rationale for this exception is that the potential for additional development does not result if no additional lots are created. But this exception should not apply to the conversion of lots not meant for buildings to lots that can be used for dwellings and other substantial structures, by the consolidation and resubdivision process. SECTION 2. Anew Chapter 23 of the Hawaii County Code 1983 (1985 Edition) is hereby amended by adding the following to be appropriately numbered and to read as follows: "Article 11. Pre-existing Lots. Section 23-117. Purpose. The purpose of this article is to specify when pre-existing lots maybe recognized based upon leases, and to limit the use of certain pre-existing lots for consolidation and resubdivision. Section 23-118. Definitions. As used in this article, the following terms shall have the meanings indicated: "Pre-existing lot" means a specific area of land that will be treated as a legal lot of record because of actions that occurred before the enactment of the first applicable county subdivision ordinance. 5 "Conforming" means in compliance with the requirements of the applicable zoning district, including minimum building site area and minimum dimensions. Section 23-119. Requirements for pre-existing lots based upon leases. No pre-existing lot shall be recognized based upon a lease except for a lease which complied with all other applicable laws when made, including Territorial statutes regulating the sale or lease of property by lot number or block number, and on the effective date of this ordinance, the proposed lot: (a) contains a legal dwelling, or (b) has been continuously leased since January 8, 1948, as a separate unit. Section 23-120. Proof. The owner of property seeking recognition as apre-existing lot under section 23-119b shall provide evidence that a valid lease was in existence on January 8, 1948, which specifies the boundaries of the claimed lot with reasonable certainty. Section 23-121. Use of certain pre-existing lots in consolidation and resubdivision. A pre-existing lot that was created for use as a road lot, a railroad right-of--way, a flume line, or a pole anchor, shall be excluded for calculating the number of lots in applying section 23-7, unless it is conforming. SECTION 3. Section 2 shall not affect any pre-existing lots recognized by official action of the director, or within any subdivision which had received tentative or final approval, prior to the effective date of this ordinance. SECTION 4. New material is underscored. In printing this ordinance, the underscoring need not be included. 6 SECTION 5. Severability. If any provision of this ordinance or application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this ordinance which can be given effect without the invalid provision or application, and to this end, the provisions of this ordinance are declared to be severable. SECTION 6. The Clerk of the County of Hawaii is directed to insert the effective date of this ordinance in any section of the Subdivision Code which requires reference to this date. SECTION 7. This ordinance shall take effect upon its approval. INTRODUCED BY: . ~ i C CIL MEMBER, COUNTY OF HAWAII Hilo, Hawaii ` Date of Introduction: Date of 1 Sc Reading: Date of 2"d Reading: 7