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Home My WebLink AboutCOM 0632.020 2000-2002 014/02 08:04 Fr1X _ _ MITCH . _ - _ 01002/019 ~v °F_h_ yy,, OJ~•• 9•~L ~ ~ECInIVE{~ Harry Kam ; • p V L Christopher J. Yuen MAP SEAL ESTATE ~FtAN~F~ D<~ror f~4 F oc Wo~* ltoy 12. ~'aBleeHYlOtO ~ ~ ~ ~ ® DeprcryDirector ? ~F 1r~Q~~41:~11~ PLANNING DEPARTMEN7t~ fv~! @~'i9'~` AF F~ { ~ 25 Aaupuni Stccc(, Room 109 a lino, Iiawaii 96720-~5~~4~~ ~ I1 (R0~196a-a2ee -Pax (eos) 961-8742 March 11, 2002 Ms. Cynthia 1V[_L. Yee Senior Condo Specialist -'~~.--------~~:r--- i 4...~....:........mussc-v-a.•: REAL ESTATE COMMISSION 250 South King Street, Room 702 r~~n33 Honolulu, HI 96$13 Deat 1Vls_ Yee: Thank you for your Ja.~~uary 31, 2002 letter corrunenting on the proposed county of Hawaii ordinance covering condominium property regimes in the county's agricultural and residential zones. I have enclosed a revised drag that incorporates many of the changes suggested in your letter. The proposed. ordinance is currently being corsidered by the Planning Comrrussion and will eventually be considered by the County Cocxncil. The proposed ordinance implements H.R.S. sec. 514A~1.6: "Coezformfrrece r~vitlx a®ua~ty lured use ®rdinareees. Any condominium property regime established under this chapter shall conform to the existing underlyire~~ counl~ zon~~ for the property and all a licable count erinitriz] re uirerrtents adopted by the county in w z~c z she property is located, including. any supplemental rules adopted by the county, pursuant to sec. 514A-45, to ensure the conPorxnance of condominiusYt property regimes to the purposes and provisions of county zoning and development ordinances and chapter 205." In the agricultural and residential zoning districts in Hawaii County, the condominium has been used as a substitute for subdivision, without following any of the infrastructure standards necessary for subdivision. In many cases, it has had the effect of a subdivision where tl~e coning does not a11ow o»e_ ~ef5%lfi'~ii~ I~ta4 ' Ia ilk $loa l~fa fi ---~°P~E~ ~cf. l~at~_~.~®~~~ 03/14/02 08:04 FAX _ _ _ DiITCH 07]00::;/019 Ms. Cynthia Ivl_L,_ Yce Senior Condo Specialist REAL ESTATE COMMISSION Page 2 1Vlarch 11, 2002 Tlie typical condominium that we see in the agricultural district consists of "apartments", which maybe as simple as toolsheds or 6' X 8' greenhouses, and-associated-"limited common elements", which are defined as fur the exclusive use of a particular apartment. Usually, the apartments and "limited common elements" cover the entire property. Although a condominium is not supposed to be a division of land, the reality is that it is being used as a division of land. We regularly see condominium units sold for prices over $100,000 that consist of a 6' X S' greenhouse and a "limited common elerr~ent". It is obvious that what is being sold for over $100,000 is not the greenhouse, bum t tho exclusive right to use an area of land. The essence of subdivision is the division of land into smaller areas that can be bought and sold as individual units. The counties have been given the po~uver and respozasibility to regulate subdivisions. This ordinance is sixr?ply a means to clarify the pourers of the county over condominiLUns pursuant to ]~[_R.S. sec. 514A-1.6 and sec. 514A.-45 in such things as minimum lot size, which the counties are ceq~tired to regulate in the agricultural district. Ii.R.S. sec. 205~5(b). The JEl:awaii County Subdivision Code defines a "lot" as a "parcel of land intended as a unit for the transfer of ownership or development". Clearly, this is what many condominiums in the agricultural and residential districts have been trying to create, without complying with the subdivision laws. In your January 31 letter, you raised an issue of possible state preemption with respect to sections in the draft ordinance that prohibited a developer from offering units for sale or lease unless the developer had obtained county approval We have dealt with this issue in the latest draft by making county approval a prerequisite to the deveIoper's eertif cation that theproiect is incompliance with all county codes, for `mew construction", and a prerecltusrte for the developer's and planning director's certi cations, for those involving conversions. Clearly, the county has been given the right and power to specify supplemental rules for condominiums; this ordinance would be one of these rules, and the developer and county cannot certify compliance until these rules have been met. Because there is no conflict with the Real Estate Commission's ultimate power to issue the effective date For the final public report, there is no issue of preemption. The key section is now sec. 23A-4. 01/14/02 08:04 FAX- AiITCH _ _ _ 004/01' Nls. Cynthia 1VI..L. 'Yee Senior Condo Specialist REAL ESTATE COMMISSIO~t Page 3 March 11, 2002 Naturally,. there would be no problem of enforeen~ent with respect to conversions, because.thP couxrty would. not certify compliance unless tlie, ordinance, had: be®n.~ollow,ed, _ , Iu the case of new construction, which under current la~v does not require a county certification of compliance, we would request that the Real Estate CommissxQ~ ,provides us with copies of the notice of intent, so that we can deter%nine if the developer has correctly cent ed compliance- t is ar better that the county be able to raise issues before the eFfcetive date for flee final public report so that it is not necessary to issue a stop-sales letter afterwards. A few corxuments on other issues in the Jan. 31 letter: Definitions--it is better to have definitions in the ordiz~anee, rather than simply refer to the corresponding definitions in state law. If definit7ons are changed in the recodXfication of state law, the county ordinance nay no longer be coherent. "Apartment" vs. `~init": condominiums in the agricultural and residential districts have almost invariably included a limited common element of land associated with the apartment- For this reason, the "unit", consisting of the apazianemt and the associated li~aaited common element, is the clearer term. Generally, to most people, the apartment connotes the structure, although it is possible to define it as inehiding the limited common element. Rollback taxes: the county assesses rollback taxes when land dedicated to agricultural use is subdivided to lots of less than five acres. It is not fair to allow owners to achieve the same result parcels of less than five acres that can be sold separately-by CPR and escape rollback taxes- Grandrathcring: apartments could be rebuilt if destroyed. In closing, we understand and respect that the powers of the Real Estate Commission are lirruted by statute and that it does not either approve or disapprove a project. We hope that you will understand the concerns and interests of the county planning department that led it to propose this ordinance, which deals with land use and subdivision issues that are within the powers granted to the counties generally. We are trying to solve a problem _ 03/14/02 08:04 FAg i~ITCH X008-x019 Ms_ Cynthia M_~L. Yce Senior Condo Specialist REAL ESTATE COMMISSION Page 4 March 11, 2002 that exists in our cornm«nity, and that is within our responsibilities. We welcoax~,e your fisher oca~.ents on khe-proposed csrdinauxce~ anal hope that you concur that it is 'within the statutory Powers of the county. Sincerely } CI-IRTSTOPHER J. N Planning Director CJY:pal~ Wpwin601Cbris\CPR Ie4tcY to R1ECl.doc Attachment cc: Ms. Alzce I~awaha Plaxuiing Program Manager Lester Ishado, Esq. Corporation Counsel _