HomeMy WebLinkAboutCOM 0632.032 2000-2002 BILL NO. 220
(Draft 4)
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ORDINI~NC~ NO. ~
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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 apartment can be sold separately
and individually mortgaged. In Hawaii County, CPRs have been used in the agricultural and
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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 subdivisions, 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 Eureau 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 unit 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 property..." H.R.S. sec. 514A-45
gives the county council the power to enact supplemental regulations governing CPRs.
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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 filing within one year of the enactment of Act 251, or who
wish to create CPR on property which had two legal dwellings, or permits for two dwellings.
(Act 251 took effect on June 19, 2000.)
SECTION 2. Chapter 23,1-Iawaii County Code, is hereby amended by adding a new
article which shall read as follows:
s`.~rticle Concloflniniuin Property Iteginaes.
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
declaration.
"Condominium" means the ownership of single units, with common elements, located on
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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.
"1Vlinimum 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.
Secti®n 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.
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
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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. Subanission of preiiminary Hasp. The applicant shall submit a
preliminary map for a condominium property regime cantairung 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 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
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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 may be 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 are 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.
Section 23A-10. M1n1mUYn 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.
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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 filings with the
real estate commission for obtaining an effective date for a final public report.
Section 23A-16. Final condoaniniutn 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.
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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 in this chapter.
Section 23A-18. Effect of condominium map approval. A unit within a project that
has received final map approval 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 honing
Code and Subdivision Code.
Section 23A-19. (Development as a I'i]D or CPD. A project maybe developed as a
planned unit development or a cluster plan development. the standards of the approved planned
unit development or cluster plan development shall supercede 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 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_
1~ involves an ohana dwelling that has received an ohana dwelling
permit in compliance with the provisions of Chanter 25, Article 6,
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Division 3, of the Zoning Code or
complies with applicable county requirements, except for the minimum
building site area, minimum dimensions, and the provisions of this article,
and, on or before [June 19, 2001] the effective date of this ordinance:
(a) the declaration involving the condominium property regime had
been filed with the Bureau of Conveyances, pursuant to H.R.S.
section 514A-20, or
(b) a notice of intent had been filed with the real estate commission,
pursuant to H.R.S. section 514A-31, or
{c) fees had been committed for attorneys or surveys directly related
to creating a condominium property regime on the lot.
Documentary evidence to qualify under paragraph [{3)] ~ shall be submitted to
the director within six months of the approval of this ordinance.
Under this section, the developer may also amend a declaration or notice of intent
filed on or before [June 19, 2001] the effective date of this ordinance creating
more than two units, to allow the creation of only two units.
(b) Nothwithstanding 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
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the lot contained, on [June 19, 2001 ]the effective date of this ordinance, 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 condominiums. 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 under
Hawaii County Code sec. 19-53, the creation of units by condominium property regime shall be
treated as subdivision into lots of like size.
Secti®n 23A-22. Effect of modification of state lave. 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. 1~1o 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
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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 4. This ordinance shall take effect upon
its
an~roval
INTRODUCED BY:
COUNCIL MEMBER, COUNTY OF HAWAII
Hawaii
Date of Introduction:
Date of 1 S` Reading:
Date of 2"d Reading:
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Zo1vIIJG § 25-6-25
areas with tree cover, land along usable shoreline areas, and low land along streams or areas of rough
terrain where such areas are extensive and have natural features worthy of preservation and are usable
for normal recreational pursuits.
(b) The method of maintenance of common land for open space or recreational use shall be approved by the
director.
(1996, Ord. No. 96-160, sec. 2.)
Section 25-6-26. Appeal of a C.I'.D. decision.
VVflthfln thirty days after the date of the director's written decision regarding a C.P.I., any person
aggrieved by the decision may appeal the director's action to the board of appeals in accordance with this
chapter. (1996, Ord. No. 96-160, sec. 2.)
IDivision 3. ®hana IDwellings.
Section 25-6-30. General pa'ovisions9 applicability.
Ghana dwellings shall Ise permitted on a building site within the RS, RA, FA and A districts; provided
that:
(a) The building site is a legal lot of record as determined by the director;
(b) Any building site which is within the State land use agricultural district shall be subject to agricultural
requifl?ements for farflta dweilflngs as established by ordinance or by rule of the director, adopted pursuant
to chapter 91, l~awaii Revised Statutes;
(c) All applicable pigvisions of this chapter are riiet, including but not limited to, height limits, minimum
yards and parking; ,aiid
(d) The ftsllot~irtg :public facilities eras adequate to serve the ohana dwelling unit:
(1) 5~~:~isposal System. The building site shall be served by a public or private sewage disposal
system. An adequate public sewage disposal system shall meet with the i~quirements of flee
departflnent of public works and an adequate private sewage disposal system, cesspool or septic tank
shall inset with the requiieiiients of the State depaitlTflent of health,
(2) Potable mater Supply. ~`lfle building sine shall be served by an approved public or private water
systeiri meeting with the requirements of the depaitrnent of water supply which system can
accommodate the ohana dwelling acid the main dwelling unit. An ohana dwelling that is not served
by an approved public or private water system may use a. water catchiiient system provided this the
director determines that there is sufficient annual rainfall in the area to accomma~date a water
catchment system and water catchment system meets the requirements of the department of health
.and the department of water supply.
(3) Fire Protection. The building site shall be served by adequate fire protection measures meeting with
the mquirements of the fire department.
(4) Streets. The building site shall gain access to a public or private street meeting with the
requirements of the department of public works.
(1996, Ord. No. 96-160, sec. 2.)
Section 25-6-31. Eligibility for ohana dwelling permit.
(a) An applfcation for an ohana dwelling permit on any building site shall only be accepted by the director
after the completion of all subdflvision improvements required by chapter 23 (subdivisions), for the
subdivision in which the building site is located. For purposes of this subsection, "completion" means
the construction of all of the subdivision improvements including the subdflvision roads, drainage, water,
and if applicable, wastewater systems, in accordance with approved construction plans, which
improvements have been completed to the satisfaction of the chief engineer.
25-99 (Hawaii County 5-I-98)
~XI-II~'
§ 25-6-31 l-€AWAII COUNTY CODE
(b) Only one permit application for an ohana dwelling unit may be active for any one applicant at any time.
Any applicant who has obtained an ohana dwelling permit shall not be eligible or apply for a subsequent
ohana dwelling permit on any building site for a period of two years from the date on which the first
ohana dwelling unit was completed to the satisfaction of the Chief engineer. For purposes of this
subsection, each titleholder and person named in an application for an ohana dwelling permit, pursuant
to section 25-6-39(a)(2}, shall be considered the applicant. The director shall maintain and keep readily
available for public reference a current list of applicants for ohana dwelling units, including the
dates of application and approval or denial.
(1996, Ord. No. 96-160, sec. 2.)
Section 25-6-32. Prohibited areas,
Ghana dwelling units shall be prohibited in the following areas:
(a) Any building site within the State land use conservation district;
(b) Any building site developed under an affordable housing project approved by the State housing finance
and development corporation (1°1F1~C) and/or the County housing agency which has been granted pre-
- emptions from the requirements of this Code;
(c) Any building site developed as a planned unit development (P.U.1~.) or a cluster plan development
(d) Any building site where more than one dwelling unit is permitted in the zoning district, including
building sites that permit more than one dwelling unit in the RS district, building sites with duplex and
multiple-family dwellings, care homes, fancily child care homes, group living facilities, and single-family
dwellings which are transient vacati®n units;
(e) Any building site which is the subject of an approved variance from the provisions of this chapter or
chapter 23 (subdivisions);
(f) Any g .site on which flee construction of an ohana dwelling or a second dwelling unit is
specifrcally prohibited by a change of zone ordinance.
(1996, (ord. No. 96-160, sec. 2.)
Section 2533. taon of flee ohana dwc ' anat.
(a) Regardless of the size of a building site, not snore than one ohana dwelling unit shall be permitted on
the sense luilding site with the first single-family dwelling unit.
(b) `l`ice director may designate an existing, first single-family dwelling unit as an ohana dwelling unit in
order to allow permitting of a new first single-family dwelling unit when such existing dwelling is the
only dwelling unit on the building site and the dwelling unit complies or will be modified to comply
with all the requii~ments of this division.
(1996, Ord. No. 96-160, sec. 2.)
Section 2534. lEieiglat laniite
fixcept when the living areas of the ohana dwelling unit and the first dwelling unit are joined by a
common wall, floor, or ceiling, the height limit for an ohana dwelling unit shall be twenty-five feet, regardless
of whether a greater height limit is provided for the zoning district.
(1996, Ord. No. 96-160, sec. 2.)
Section 25-b-35. l~araarnuaii building sate area and yards.
(a) The minimum building site area for a building site containing both the first dwelling and the ohana
dwelling unit shall be ten thousand square feet.
(b) The minimum front, rear, and side yard requirements for a detached ohana dwelling unit shall be the
minimum yard requirements for the zoning district in which the building site is situated plus an
additional five feet.
(Hawaii Coaaty 5-1-98) 25-1~
ZONII~IG § 25-6-35
(c) An ohana dwelling unit and asingle-family dwelling unit may be constructed as a duplex (i.e., there is
a common wall or floor/ceiling).
(1996, Ord. No. 96-160, sec. 2.)
Section 25~6~36. Guest laoeeses.
A guest house, as described in section 25-4-9, shall not be permitted on any building site where an ohana
dwelling unit has been permitted or constructed. If an existing guest house is situated on a building site, an
ohana dwelling unit shall not also be permitted on the building site. Provided, that an existing guest house may
be converted into an ohana dwelling unit in accordance with the requirements of this division.
(1996, Ord. No. 96-160, sec. 2.)
Section 2537. ®ff-street parking spaces.
The number of parking spaces for an ohana dwelling unit shall be as provided undo section 25-4-51.
(1996, Ord. No. 96-160, sec. 2.)
Section 25-6a3S. Variances prohibited.
No variance from either this chapter or chapter 23 (subdivisions), shall be granted to permit the
construction or placement of an ohana dwelling unit on a buildang site. In addition, an ohana dwelling unit
shall not be permitted on a building site for which a variance from either this 'chapter or chapter 23
(subdivisions), has already been granted.
(1996, Ord. No. 96-160, sec. 2.)
Secti®n 25-6a39. Appli~ti®n f®r ohaiaa dwelling permit; regeairents.
(a) An application for an ohana dwelling permit shall be filed with the director on a form prescribed for this
purpose by the director, asad .shall be taccompanied by:
(1) A filing fee of $25;
(2) Ilse names and addresses of all the owners of the buildang site, provided that when the property
is owned by a corporation, association, partnership or trust, the names and addresses of all partners,
director, officers, shareholders or benei~ciaries holding an ownership or beneficial interest of at least
ten more percent shall be included; and
(3) An affidavit, in the form prescribed by the director, verifying that there is no restriction or covenant
applicable to the building site, contained in any deed, lease, or other recorded document, which
prohibits the construction or placement of an ohana dwelling or a second dwelling unit on the
buildang sits.
(b) The applicant shall serve notice of the ohana dwelling permit application on surrounding owners and
lessees of record as provided by section 25-2-4. The applicant shall also serve notice on all owners of
the property identified in the application who dad not execute the application, and any known association
of property owners which has jurisdiction or authority over the subdivision in which the building site
is situated. Proof of service of the notice, in the manner provided under section 25-2-4, shall be
submitted together with the ohana dwelling permit application.
(1996, Ord. No. 96-160, sec. 2.)
Section 25~~39.1. Action on ohana dwelling peranite
(a) Upon acceptance of an ohana dwelling permit application, the director shall forward the application to
appropriate agencies for review and comment on the adequacy of those infrastaucture facilities required
for the ohana dwelling unit, under section 25-6-30.
(b) Within a period of at least thirty days but not more than sixty days after acceptance of an ohana dwelling
permit application, the director shall either approve or deny the application.
25_10] (Hawaii County 5-1-98)
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