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HomeMy WebLinkAboutCOM 0067.060 2006-2008 .J,~<~ a N1y,~ Harry Kim Christopher J• Yueu Mayor Director Brad Kurokawa, ASLA LEED®AP ~ulxrty~ gr ~tI~2Ttt DepuryDirector PLANNINi1G DEPARTMENT 101 Pauahi Sveet. Suite 3 Hilo, Hawaii 967203043 (808) 961-8288 FAX (808) 961-8742 r\+ 0 ~ March 7, 2007 -mss w !O Honorable Pete Hoffrnann - Chair and Presiding Officer and Members of the County Council COUNTY COUNCIL 333 Kilauea Avenue, Second Floor Hilo, HI 96720 Deaz Chair Hoffmann and Members of the County Council: SUBJECT: BILL 345 -RELATING TO FAMILY/GROUP LIVING FACILITY I have reviewed the proposed Draft 4 of Bi11345, attached to Councilmember Brenda Ford's letter of February 28, 2007 (Comm. No. 67.58). It basically resolves the issue discussed at our meeting regarding compliance with state law allowing adult residential care homes or intermediate care facility/mental retardation communities in residential azeas by stating that the distance restrictions do not apply to these. There is a legal issue, however, with subsea (c), however, which reads: "A croup livin fg acility in existence on the effective date of this ordinance may continue in operation despite non-compliance with the criteria contained in the definition of `group livin fg acility' for a maximum of 15 months from the effective date of this ordinance to allow the croup livin fg acility to come into compliance with said criteria or to obtain a use permit or special permit." There was some discussion in the council about trying to give a grace period for existing operations to continue for a period of time even though they may not conform to the distance criteria. Subsection (c), however, cannot be applied to group living facilities that are legally in operation in conformance with zoning at the present time because of state law limitations on the county zoning powers. If there is a change in the zoning ordinance that makes them not in compliance, they are considered "nonconforming uses." Comm. No. Ref. To• Pre:srtaQ Ref. Late. ' _ Hawaii County is an Equa[ Opportunity Provider and Employer. 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 Honorable Pete Hoffinann Chair and Presiding Officer and Members of the County Council COUNTY COUNCIL Page 3 March 7, 2007 code, and (2) are within 500' of each other and thus cannot be allowed to operate with eight under Bi11345, Draft 4, wording could allow this, but it would have to be very specific. Sincerely, CHRISTOPHE . YUEN Planning Director CJY:pak Wpwin60/Chris 07/Hoffmann-GLF nonconfortni~g