HomeMy WebLinkAboutBIL 220 Draft 01 2000-2002 COUNTY O~ ~-iAW.~I`~ _ ST'1~.'TE O~ I-i~`~~`~
BILL NO.
ORDINANCE NO.
AN ORDINANCE AMENDING CHAPTER 23 (SUBDIVISION CODE) OF THE
HAWAII COUNTY CODE, RELATING TO CONDOMINIUM PROPERTY
REGIMES.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII:
SECTION 1. Findings. The Subdivision Code is meant to ensure 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.
The condominium property regime ("CPR") law allows separate
ownership of apartments in real estate projects, while allowing for "common elements"
like the roof, hallways, driveways, yards, and so forth, to be held in common. The CPR
disclosure and review process is regulated by the State Real Estate Commission.
CPR permits ownership of a lot by separate owners owning separate apartments.
These apartments may have "limited common elements" which are certain type of
common elements reserved for the use of a certain apartment or apartments to the
exclusion of other apartments. The "limited common element" is often an area of land.
The apartments can be sold separately and individually mortgaged. In Hawaii County,
CPRs have been used in the agricultural and residential districts to create separate areas
of ownership on a single lot, without following the subdivision code, by defining set
areas of land as "limited common elements." The result can be similar to subdivision,
although not officially called subdivision. The CPRs typically have not complied with
the subdivision code. The CPR is typically not reviewed by the Department of Public
Works for adequacy of the roads or drainage. A CPR may be created simply by filing a
declaration, bylaws, and condominium map with the Bureau of Conveyances, although
the individual apartments cannot be sold until the Real Estate Commission issues an
effective date for a final public report. The definition of "apartment" is very broad and
can include a toolshed, a parking stall, a portion of a warehouse, a portion of a loading
dock, a lobby or front desk area in a condo hotel, etc.
Most CPR's in Hawaii County, in the agricultural district, have actually involved
lots that could not legally be subdivided because they were not large enough to meet the
minimum lot size required for additional lots in the Zoning Code. For example, a 20-acre
lot in the A-20a zone cannot be legally subdivided because it is already the smallest legal
parcel, but it has been possible to create several CPR units and sell them off separately.
This completely destroys the intent of the minimum lot size established by the zoning,
and is, in effect, a do-it-yourself rezoning.
In response to concerns about the use of the CPR to circumvent the zoning and
subdivision codes, the 2000 State Legislature passed Act 251, which added a new section
to the condominium law to state that "any condominium property regime established
under this chapter shall conform to the existing underlying county zoning for the
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property..." H.R.S. sec. 514A-45 gives the county council the power to enact
supplemental regulations governing CPRs.
In trying to regulate CPRs that are the equivalent of subdivisions of land it is
important not to interfere with the use of the CPR to own multi-unit buildings. For that
reason, the proposed ordinance does not cover zoning districts in which multi-unit
buildings are allowed.
The implementation of Act 251 may cause hardship for some individuals who
made investments in the expectation that it would be possible to do a CPR. The council
finds that it is reasonable to allow some to complete the CPR process in this transitional
period, but limited to owners who had made their initial filings within one year of the
enactment of Act 251, or who wish to create a CPR on property which had two legal
dwellings, or permits for two dwellings. (Act 251 took effect on June 19, 2000.)
SECTION 2. Chapter 23, Hawaii County Code, is hereby amended by adding a
new article which shall read as follows:
"Article .Condominium Property laegiYnes.
Section 23A-1. Purpose. The purpose of this article is to ensure that when land
is placed under a condominium property regime, the individual units created are
adequately served by roads, water systems, and other infrastructure, and that wastewater,
drainage and flooding issues are properly addressed. It also clarifies the applicability of
zoning regulations to condominium developments.
Section 23A-2. Definitions.
"Apartment" shall mean any area designated as an "apartment" in the declaration.
"Common element" means any area designated as a "common element" in the
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declaration.
"Condominium" means the ownership of single units, with common elements,
located on property within a condominium property regime.
"Condominium property regime" means the legal status created by Chap. 514A,
H.R.S.
"Declaration" means the instrument by which property is submitted to Chap.
514A, H.R.S., and as such declaration is amended from time to time.
"Developer" means a person who undertakes to develop a real estate
condominium project.
"Limited common element" means any common element designated in the
declaration as reserved for the use of a certain apartment to the exclusion of the other
apartments.
"Minimum building site area" means the minimum building site area established
for the zoning district by the zoning code. For example, in the FA-3a district, the
minimum building site area is 3 acres. In the RS-10 district, the minimum building site
area is 10,000 square feet.
"Project" means a real estate condominium project; a plan or project whereby a
condominium of two or more apartments located within the condominium property
regime is offered or proposed to be offered for sale.
"Unit" means an apartment and any contiguous limited common elements.
Section 23A-3. Applicability. Sections 23A-1 to 23A-20 apply only to
condominium property regimes in the RS, RA, A, FA, IA, and APD zoning districts, and
to no other zoning districts.
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Section 23A-4. Approval required.
(a) No developer shall certify that the project is in compliance with all
applicable county permitting requirements, pursuant to H.R.S. §514A-1.6,
§514A-11(13) and §514A-40(a)(9) or any successor statute, unless the
project has received final map approval for a condominium property
regime from the director as provided herein.
(b) The director shall not certify that the project is in compliance with all
applicable county permitting requirements, pursuant to H.R.S. §514A-1.6,
§514A-39.5(c), and §514A-40(b)(1), or any successor statutes, unless the
project has received final map approval for a condominium property
regime from the director as provided herein.
(c) The application for map approval for a condominium property regime
shall conform to the procedures for subdivision approval except as
otherwise stated herein.
Section 23A-5. Submission of preliminary map. The applicant shall submit a
preliminary map for a condominium property regime containing the information required
by a preliminary plat. It shall also show the location of all apartments, limited common
elements, and common elements, shall identify which apartment each limited common
element is appurtenant to, and shall identify each unit. The preliminary map shall
conform to the declaration.
Section 23A-6. Standards of review. In considering the application for
preliminary map approval, the reviewing agencies shall consider each unit as a lot for the
purpose of determining the necessary improvements. The applicant shall pay an
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application fee per unit equal to the fee required by a subdivision application containing
the same number of lots.
Section 23A-7. Common elements. The project may have common elements
that are not included within a unit.
Section 23A-8. Maximum number of units. The number of units shall not
exceed the area of the project divided by the minimum building site area.
Section 23A-9. Minimum building site area and unit dimensions.
(a) Each unit shall contain no less than the minimum building site area, except
as stated in (b). No limited common element maybe included in more
than one unit for the purpose of determining the minimum building site
area.
(b) The director may allow a reduction of the minimum building site area for
a project not exceeding two acres, or for a project not exceeding three
units, if the director finds that the overall development is consistent with
the zoning district, and that the project would meet the applicable criteria
for a planned unit development. In such projects, not exceeding two
acres or three units, common areas not included in a unit may be
apportioned to the units in determining whether the units meet the
minimum building site area. The director shall not waive the
requirement that the number of units shall not exceed the area divided by
the minimum building site area. In the state land use agricultural or
rural districts, the unit shall not be less than the minimum lot size
required by the state land use law.
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Section 23A-10. Minimum unit dimensions. The width and length of a unit
shall conform to the requirements for a building site established by the zoning district in
question, except that the director may allow modification of dimensions if the director
finds that the overall development is consistent with the zoning district, and that the
project would meet the applicable criteria for a planned unit development. Common
elements not included in a unit may be considered in making this determination.
Section 23A-11. Tentative approval. The director shall grant tentative approval
to a preliminary map for a condominium property regime in the same manner as tentative
approval of a preliminary plat, with conditions consistent with those that would be
imposed for a preliminary subdivision plat.
Section 23A-12. Final approval if no infrastructure required. If the project
requires no construction of streets, private streets, drainage improvements, sewers, water
systems, utilities, or other infrastructure, the director shall issue final map approval for a
condominium property regime at the same time as tentative approval.
Section 23A-13. Construction plans. After the developer has secured tentative
approval pursuant to sec. 23A-11, and before beginning construction, the developer shall
submit construction plans for approval pursuant to sec. 23-79.
Section 23A-14. Final approval. After approval of construction plans under
sec. 23-79, the director shall issue final map approval for a condominium property regime
after the developer has (1) obtained certification of completion under sec. 23-98; or
(2) entered into a bond for completion of improvements under sec. 23-81 to 83.
Section 23A-15. Conformance with conditions of approval required. The
developer shall disclose the tentative approval and any conditions attached thereto in any
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filings with the real estate commission for obtaining an effective date for a final public
report.
Section 23A-16. Final condominium map. The developer shall prepare and file
a final map for a condominium property regime that conforms to the preliminary map as
tentatively approved. The review and approval of the final map shall conform to
sec. 23-72 to 23-74, insofar as applicable.
Section 23A-17. No change in condominium after approval. After final
approval of the map for a condominium property regime, no change may be made in the
boundaries of the limited common elements or their assignment to apartments, or to the
boundaries of the common elements, without the approval of the director. Approval shall
be granted only if the changes also conform to the provisions of this chapter.
Section 23A-18. Effect of condominium map approval. A unit within a project
that has received final map approved for a condominium property regime and an effective
date for a final public report shall be considered a legal building site and a lot for
purposes of the Zoning Code and Subdivision Code.
Section 23A-19. Development as a PUD or CPD. A project may be developed
as a planned unit development or a cluster plan development. The standards of the
approved planned unit development or cluster plan development shall supersede the
standards of this chapter.
Section 23A-20. Exemptions.
(a) Notwithstanding sec. 23A-4, the director shall certify compliance with all
county laws if requested under H.R.S. sec. 514A-40, to permit the developer to obtain an
effective date for a final public report for a condominium property regime creating 2 units
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on a lot, if the declaration involving the condominium property regime was filed with the
Bureau of Conveyances pursuant to H.R.S. sec. 514A-20, or a notice of intent was filed
with the real estate commission, pursuant to H.R.S. sec. 514A-31, on or before June 19,
2001, and the project complies with applicable county requirements, except for the
minimum building site area, minimum dimensions, and the provisions of this article.
Under this section, the developer may also amend a declaration or notice of intent filed
on or before June 19, 2001, creating more than two units, to allow the creation of only
two units.
(b) Notwithstanding sec. 23A-4, the director shall certify compliance with all
applicable county laws under H.R.S. sec. 514A-40(b), to permit the issuance of an
effective date for a final public report creating two condominium units on a lot, if the lot
contained, on June 19, 2001, two or more legal dwellings, either completed or with valid
building permits, and the project complies with applicable county requirements, except
for the minimum building site area, minimum dimensions, and the provisions of this
article. The declaration establishing the condominium property regime shall be filed with
the Bureau of Conveyances no later than one year after the effective date of this
ordinance.
Section 23A-21. Assessments and rollback taxes on condorniniurns. In all
zoning districts, if a rezoning ordinance applicable to the property imposes a fair share
assessment, impact fee, or other similar assessment payable upon subdivision, said fee
shall be paid prior to final map approval for a condominium property regime or prior to
the effective date of a final public report, if a condominium is created on the property.
For purposes of rollback taxes undo Hawaii County Code sec. 19-53, the creation of
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units by condominium property regime shall be treated as subdivision into lots of like
size.
Section 23A-22. Effect of modification of state law. If state laws regulating
condominium property regimes are amended or modified the provisions of this chapter
shall be interpreted to preserve the intent of this article.
Section 23A-23. No retroactive effect. This ordinance shall not affect the legal
status of any project that had received an effective date for a final public report before the
effective date of this ordinance."
SECTION 3. 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.
INTRODUCED BY:
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CO a IL MEMBER, COUNTY OF HAWAII
Hawaii
Date of Introduction:
Date of 1st Reading:
Date of 2°d Reading:
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