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HomeMy WebLinkAboutCOM 0910.003 1996-1998 •4 w4441 ~A% JU^~ e i DEPARTMENT OF WATER SUPPLY COUNTY OF FfAWAll G6 ~ •i, ~A1 x4wP" 25 AUPUNI STREET • HILO, HAWAII 96720 or TELEPHONE (808) 961-8660 FAY (808) 961-8657 July 24, 1998 TO: Chairperson Bobby Jean Leithead-Todd, Committee on Planning Hawaii County Council FROM: Milton D. Pavao, Manager RECEIVED rime-..-----' 91-1--r- BY SUBJECT: WATER AVAILABILITY DOte KALOKO MAUKA SUBDIVISION CountY Council;;-, TAX MAP KEY 7-3-024, 025. 026, 027, AND 028 This is in response to your memorandum of July 22, 1998. Please be informed that the subject subdivision was developed as an agricultural subdivision that did not require fire requirements. For your information, we are enclosing two (2) copies of the water system by plats for the Kaloko Mauka Subdivision. The following is in response to Paragraph 2 of the above-referenced memorandum: 1. There are no fire hydrants within the Kaloko Mauka Subdivision. 2. The existing water system consists of four (4), six (6), and eight (8)-inch waterlines, booster pumps, reservoirs, and pressure reducing valve units which extend to the top of the subdivision. Please refer to the enclosed plats for the extent of the water system and specific waterline sizes. 3. Lots located less than the 100-foot elevation from the over-flow elevation of any reservoir servicing that lot, and particularly the lots serviced by the highest reservoir site No. 8, do not have enough pressure for fire-flow requirements. A particular parcel or lot should be specified for pressure evaluation. Poe No. d K I'~ Presented c-6,Mc , Ref. To: Water brin d - - roread... AUG 5 1998 Ref. Chairperson Bobby Jean Leithead-Todd Page 2 July 24, 1998 Please refer to the notation in red on the enclosed plats in relating to the following fire hydrant installation cost estimates: A. Tax Map Key 7-3-025:012 and 013 1 fire hydrant installation at $5,000.00 each $ 5,000.00 B. Tax Map Key 7-3-026:005 Approximately 1,500 feet of 6-inch waterline at $65.00 per foot 97,500.00 1 fire hydrant installation at $5,000.00 each 5.000.00 Total $107,500.00 Should there be any questions or if you need assistance, please contact our Water Resources and Planning Branch at 961-8660. Milton D. Pavao, P.E. Manager WA:gms Enc. MAMALAHOA HWY/KALOKO DR r RPT-NUM LOCI LOC2 ACC-DATE CAUSE ACC-Y 930571 MAMA HWY (KALOKO) KALOKO DR 020993 01 93 930710 OLD GOVT RD (KALAOA) .1 S KALOKO DR 021493 13 93 930789 RT 190 (KALAOA) .3 S 34 MM 022293 21 93 931806 KALOKO DR MAMALAHOA HWY, 50' S 050393 13 93 932599 KALOKO DR .6 E MAMALAHOA HWY 062993 13 93 933566 KALOKO DR 5.6 E HAWAII BELT ROAD 083093 01 93 934603 MAMALAHOA HWY 14' KALOKO DR 111493 13 93 934898 RT 190 (KALAOA) KALOKO DR 120293 13 93 940342 KALOKO DR .3 E RT 190 012493 01 93 940433 KALOKO DR .2 E MAMALAHOA HWY 020194 21 94 940474 KALOKO DR 2.3 E MAMALAHOA HWY 020394 24 94 941615 MAMALAHOA HWY KALOKO DR 041894 13 94 942068 RT 190 (KALAOA) 300' S KALOKO DR 051994 13 94 942471 RT 190 (KALAOA) KALOKO DR 061794 01 94 943098 KALOKO DR 5.5 E MAMALAHOA HWY 073194 01 94 951212 KALOKO DR 2.4 M E RT 190 (KALAOA) 033195 02 95 951440 MAMALAHOA HWY (KALAOA).1 N KALOKO DR 051095 13 95 954668 KALOKO DR., KAILUA 5.4M/E INTER.KALOKO 120895 21 95 962894 OLD MAMALAHOA HWY (KALAOA) .5W KALOKO DR 072796 13 96 963524 RT 190 (KAILUA) 5' S KALOKO ST 091796 01 96 963640 KALOKO DR .1 E RT 190 100696 01 96 964326 KALOKO DR 3.6 E MAMALAHOA HWY 111696 01 96 970956 RT 190 KALOKO DR 031397 03 97 971315 KALOKO DR 2.3 E RT 190 040697 01 97 971599 KALOKO DR .1 E RT 190 042497 09 97 972112 RT 190 (KALAOA) 30' S KALOKO DR 060497 03 97 972175 KALOKO DR RT 190 060797 01 97 974672 RT 190 (KALAOA) .5 S 34 MM 121097 13 97 974824 KALOKO DR .5 E RT 190 122197 13 97 980042 KALOKO DR .1 E MAMALAHOA HWY 010398 08 98 982364 KALOKO DR .8 E RT 190 062098 01 98 CODES FOR Q9S-, OF AC--=M 01 Eccessive speed 02 Speed to fast for cnnditic" 03 Failed to yield the right of way to vehic'_e 04 Failed to yield the right of way to pedestrian 05 Riqht tors an red, without yielding 06 Passed stop sign 07 Disregarded traffic signal 08 Drove left of center 09 Improper overtaking 10 Followed too Closely 11 Made improper turn - left 12 !fade improper turn - right 13 Inattention 14 Drinking Driver 15 No or improper signal 16 Improper starting 17 Improper hacking is improper use of lane 19 Other improper driving 20 Driving with physical defect 21 other not involving driver error 22 Inadequate brakes 23 Defective tires 24 Other mechanical defects 25 Road defect 26 pedestrian error 27 Drinking Pedstrian 28 Not Stated/Unknown i Sheetl J Proposed Setbacks Kaloko Rezoning - in Lot Forest 1 - Forest Usable Size P cent Acres Acres 3 0.50 1.50 1.50 - - S .67 3.35 1.65 - 10 0.80 8.00 2.00 - -1 - - - e= 0.071429. - - ~ - slop acres _ useable forest x ax b y % % - 3 _0.21 1.291 1.5_01 0.50 0.50 5 0.36 1.291 1.64 0.33 0.67 10 0.71 1.29 2.00 0.20 0.80 20 1.43 1.291 - 2.71 0.14 _ 0.86 Min Lot Road Other Size - rSetback Setback 3 60 3:0 51 701 30 10 100 301 - - slope= 15.714286 - - - acres setback x ax b y _ 31 _ 17.14 42.86 60.00 51 - 28.57 42.86 71.43 10, 57.14 42.86 100.00 201 114.29 42.86 15214 Page 1 4 . 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Yamashiro Richard Wurdeman Mayor Corpomuon Coin:d Irk O! M~~. CIIixnfu of ~FIf1T2Itt OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Streets Suite 325 • Hilo, Hav Vi 96720-4262 • (808) 961-8251 • Fax (808) 961.8622 July 30, 1998 TO: Bobby Jean Leithead-Todd, Chair Committee on Planning FROM: Patricia K. O'Toole Deputy Corporation Counsel RE: Condominium Property Regime This is in response to your memo in which you ask whether the Council can insert language into rezoning ordinances to restrict the development of CPRs. We believe that the Council cannot prohibit CPRs. This has been the consistent opinion of this office. Past opinions are attached for your reference. The condominium property regime is a form of land ownership which is authorized by State statute. Should the Council wish to prohibit CPR ownership in certain designated areas, it would be necessary to seek an amendment to Chapter 514A of the Hawaii Revised Statutes. The authority of the County under its zoning powers relates to land use, rather than land ownership. The zoning authority is described in §46-4, which states, in part: The zoning power granted herein shall be exercised by ordinance which may relate to: (l) The areas within which agriculture, forestry, industry, trade, and business may be conducted. (2) The areas in which residential uses may be regulated or prohibited. (3) The areas bordering natural watercourses, channels, and streams, in which trades or industries, filling or dumping, erection of structures, and the location of buildings may be prohibited or restricted. (4) The areas in which particular uses may be subjected to special restrictions. (5) The location of buildings and structures designed for specific uses and designation of uses for which buildings and structures may not be used or altered. (6) The location, height, bulk, number of stories, and size of buildings and other structures. Memo to Bobby Jean Leithead-Todd, Chair Page -2- July 30, 1998 (7) The location of roads, schools, and recreation areas. (8) Building setback lines and future street lines. (9) The density and distribution of population. (10) The percentage of lot which may be occupied, size of yards, courts, and other open spaces. (11) Minimum and maximum lot sizes. (12) Other such regulations as may be deemed by the boards or city council as necessary and proper.to permit and encourage orderly development. of land resources within their jurisdictions. If the council has any particular proposal which relates to the zoning powers it can be reviewed wilh Chapter 514A in mind. It is preferable to amend the zoning code rather than to place ad hoc d conditions in rezoning ordinances as they arise. p PKO:de Encs. a \pko\todd.ltr a ` y u Bernard K.tAkaru ' _ Mayor Richard 1. Wyatnot0 Corporation Cou l teven nt Corporation ' ' ~ ] Office of the Corporation Counsel Amutt Hilo Lagoon centre • 101 Aupunl Sheet, Sidle 323 a Hilo, Hav,ail x720 a (808) %1-8231 ~K•.t•rl November 20, 1989 Honorable Helene H. Hale, Councilwoman County Council County of Hawaii 25 Aupuni Street Hilo, Hawaii 96720 Dear Councilwoman Hale: Re: Kamani Trees Subdivision: 'Subterfuge' This is in response to your November 2, 1989 memorandum in which you requested an opinion on whether or not the Kamani Trees subdivision is a 'subterfuge.' It is our opinion that the Kamani Trees subdivision is not a 'subterfuge,' and that its development so far has not violated either Hawaii County Code chapter 23, the Subdivision Code, or Hawaii County Code chapter 25, the Zoning Code. As this office's opinion of October 24, 1989 stated, the Kamani Trees project is a legal subdivision, which meets all of the requirements for subdivision approval by the Planning Director, as set forth in Hawaii County Code chapter 23. As that opinion pointed out, it is legally possible for real property to be both subdivided and owned as part of a condominium property regime. As the October 24, 1989 opinion further pointed out, the use of condominium development as subterfuge deals with situations in which a developer creates a condominium form of ownership for a parcel of land and then attempts to sell the land as divided parcels without putting in improvements which meet county subdivision standards. The Kamani Trees subdivision has been approved by the Planning Director pursuant to chapter 23, and it does have proper improvements. Your question is apparently directed at the prospect of each subdivided lot being granted an ohana permit and then the subsequent conveyance under the condominium property regime of each dwelling unit. Although the result is that there will be more than one single family residence per Honorable Helene H. Hale, Councilwoman Page 2 November 20, 1989 10,000 square feet of property by way of ohana permits, this is n2t 'subterfuge,' because it is legally permissible through Hawaii County Code chapter 25, article 25. The ohana permit was intended to allow two separate single family residential units on a 10,000 square foot lot in an RS-10 district. No illegal tactic is being attempted. If the subdivision had been sold as individual 10,000 square foot lots, with a single family residence on each one, it would be legally possible for each of those lots to eventually have two single family residences on it, because it would be possible for each of those lots to obtain an ohana permit. The conveyance of each unit separately as part of a condominium property regime is not necessarily a subdivision of the underlying property. We believe that as the Hawaii County Code and the Hawaii Revised Statutes now stand, developments such as Kamani Trees are not prohibited. If the Council concludes that it is not in the public's best interest to allow more of these developments, then the Council has the power to amend the County Code to provide more stringent regulations in the area of ohana permits to attempt to assure that there will not be similar developments in the future. As was pointed out in this office's opinion of October 3, 1989, if the ohana law were amended to bar the granting of ohana permits to any piece of land smaller than 15,000 square feet, it would insure that single family residential density would never be greater than one single family residence per 7,500 square feet of land, which is the maximum single family residential density allowed by the zoning code. It would also be possible to amend the subdivision code to allow the Planning Director to impose restrictions on ohana permits as a condition of subdivision approval. Still another possible change would be to amend the ohana law to bar multiple applications for ohana permits after subdivision approval, as is being done with Kamani Trees. All of these are viable alternatives. Conveyances of property under the condominium property regime is however a matter of state legislation. Please contact this office if there are any questions. Very truly yours, RICHARD I. MIYAMOTO Corporation Counsel By FREDERICK GIANNINI Deputy Corporation Counsel xc Mayor's Read File FG:de 4 Bernard r. AkaN Mayor Richard 1. Wyamoto co,pora~ C~i Office of the Corporation Counsel Assistant rrpo~titon Counsel w OeTr Wi; Hilo tASooo Centre • 101 Aupunl Stmt, Suite 325 • H110, Hawrail %720 a (808) %1-8231 n~~ G a December 21, 1989 PILE COPY J CIV CHIEF ACCT/ CC MEMO TO: Planning Director FROM Frederick Giannini, Deputy Corporation Counsel SUBJECT: Condominium Property Regime 149-A/B Puako Beach Drive TMK• 6-9-6:41 This is in response to your May 26, 1989 inquiry about the above-noted Condominium Property Regime (CPR). You have asked whether or not the project in question violates any of the County of Hawaii's ordinances concerning subdivisions or zoning. Our response is that it does not. The facts are as follows: the property in question is a 14,000 square foot lot in an area zoned RS-10 (one single family residence per 10,000 square foot lot). On July 18, 1984, an ohana permit was granted pursuant to Hawaii County Code, chapter 25, article 25. The owner of the property then constructed a second single family dwelling on the property. In April of 1989, the owner applied to the Real Estate Commission to create a CPR on the property, pursuant to HRS chapter 514A. The documents filed with the Real Estate Commission describe two individual units, consisting of two separate 952 square foot single family, two bedroom residences, common elements, and 'limited common elements. The 'common elements' include the real property, a fence separating the two individual units, and utility installations. Under 'limited common elements,' the document states: Certain parts of the common elements,'herein referred to as the 'limited common elements,' are designated and set aside for the exclusive use of one or more apartments, and such apartment(s) shall have appurtenant thereto exclusive easements for the use of such limited common elements. The limited common elements so set aside and reserved are as follows: Planning Director Page 2 December 21, 1989 (a) That certain land area upon and around which 0149-A Puako Beach Drive' is located, and being approximately 7,000 square feet, is deemed a limited common element appurtenant to and for the exclusive use of said 0149-A Puako Beach Drive.' (b) That certain land area upon and around which •149-B Puako Beach Drive• is located, and being approximately 7,000 square feet, is deemed a limited common element appurtenant to and for the exclusive use of said '149-B Puako Beach Drive.' All costs of every kind pertaining to the aforesaid limited common elements, including, but not limited 'to, costs of landscaping, maintenance, repair, replacement and improvement, shall be borne solely by the owner of the unit to which said limited common elements are appurtenant. NOTE: The land are appurtenant to each apartment does not represent a legally subdivided lot. In past opinions, this office has pointed out the difference between condominium developments and subdivisions, and noted the possibility of a developer's use of a CPR as a means of avoiding subdivision improvement mandated by Hawaii County Code chapter 23. See memorandum to Planning Director, dated September 21, 1987 [Exhibit A] and memorandum to Chairman and Members, Hawaii'County Council, dated October 3, 1989 [Exhibit B]. Both of those opinions note that where developments are created with the intention of transferring real property, while circumventing improvement requirements, the County should force the developments to provide the necessary improvements. An example would be where a developer tries to use a CPR for a number of residential lots, while providing roads, drains, and other improvements which do not meet the standards of the Hawaii County Code. No such circumvention of the subdivision code appears in the present case. There are no road, sewer, or drainage requirements which anyone is attempting to avoid. It may be argued that the property owners are increasing the density of the neighborhood, but that is permissable because an ohana permit has been obtained pursuant to Hawaii County Code chapter 25, article 25. It may also be argued that by limiting the land around each unit to the exclusive use of that unit alone, the development is trying to create a separate subdivided lot. Such a limitation is permitted by law: Planning Director Page 3 December 21, 1989 'Limited common elements' means and includes those common elements designated in the declaration as reserved for the use of a certain apartment or certain apartments to the exclusion of the other apartments; provided that no amendment of the declaration affecting any of the limited common elements shall be effective without the consent of the owner or owners of the apartment or apartments for the use of which such limited common elements are reserved. Hawaii is one of the States which has a statute which allows limited common elements to be assigned to the exclusive use of one unit. 1 Rohan & Reskin, Condominium yew Ind Practice,-- §6.01(5),. In conclusion, the CPR in question does not violate any County ordinances. Please contact this office if there are any questions. FG:jk Enclosures APPROVED: RICHARD . MIY W: Corporation Counsee$ . 10: ML . Air eIt Lunu Li 111.a I Planning Direct From: Patricia K. O'Toole, Deputy Corporation Counsel Y~ subj.c+: Puna bhures, Inc., Panaewe Acres, TMK: 2-4-04:02 4 03 This is in response to your memo concerning building permit appitcattuns for the above-reterencea subaivision. Tentative subuivlsion approval has been granted for each of the two.parcels to be suuutvided into six lots, making a total of twelve lots. building permit applications have been filed to construct twenty storage shoos on the property. You reviewed the bankruptcy file for Puna Shores, Inc., and noteo that it contained a proposal for the creation of an agricultural condominium. The State of Hawaii tax map shows twenty-two separate parcels. Your tirst question is whether. an agricultural condominium falls within the definition,~of suodi0ioed land. In our opinion it goes notav "A c'ondbmrnium.oe...rizontal property regime (hereinafter "HPR") is reco'gnizea as? a metnoo of ownership of lano, whereas subaivi"sion laws deal-with the use of iand. Baker v. T(:,wrr of ScIliya11'S Isllanu, 3.10 S.E.2o 433 S1983) A true conouminium would not involve the division of land.dna woulo thereture not tali within the uefinition of subaiv.cej land. In this case, however, you feel there are facts which iocicate that the property is being divideo°in a way which woula tail within the oefinitton of a suLaivision. This may be so, however, it is a separate issue. It the HPR has Dern approveu ano we cur,teno that in fact, the land is being subdivided, we woula have to be able to prove that this is so. Chapter 514A, Hawaii Revisea Statutes, controls the establishment of HPR. According to the aefinitions founa in y514A-3, an apartment means "a part of the property intended for any type of use or uses." "Common elements" includes the land iticluoeo in the regime. Condominium is the "ownership of single units with common elements." There is no prohibition against a HPR for agricultural purposes. _ EX`-_"31T i ^ bepcem~ec u, ydi You next ask whether it (an agricultural condominium) is required to comply with the requirements of the subdivision code. A HPR which does not involve a division of land would not have to comply with the code. Under the County code, a subdivision "means improved or unimproved land or lands divided into two or more lots, parcels, sites, or other divisions of land for the purpose, whether immediate or future, of sale, lease, rental, transfer of title to or interest in any or all such parcels, includes resut,oivision, and when appropriate to the context, relates to the process of subdividing the land or territory subdivided." A HPR noes not involve the division of land with a transfer of interest in the divided land., in this case, you believe there are indications that this project involves a subdivision of land. The real property tax map shows twenty-two parcels with specific metes and bounds descriptions. Apparently this map reflects information from a HPR filed for the property. We should obtain the declaration of HPR required to be tiled in accordance with Chapter 514A, Hawaii Revised Statutes, and see if the declaration contains any information which will clarify the matter. In the case of Planning Board of the Town of Naples v. Michaud, 444 A.2a 40 (1982), a vendor sold what he described as a common and undivided interest in a campground with the right to use the facilities at a particular campsite. He likened the selling of interests to a condominium conversion. The court found that the selling of these interests amounted to a "division of a tract or parcel of land into 3 or more lots within [a] 5-year period" ana was thus subject to the municipalities subdivision law. A key factor was the factual finding of exclusive use of a particular area. The court said: "Plainly the key fact in Swain was the tenuous connection petween the campers and the campsites they occupied. The facts of the case at bar are much different, and the reasoning of Swain leads us to the opposite conclusion. Purchasers of interests in the Birch Point Colony Club make a substantial investment and acquire a fee simple interest of perpetual duration. Although the Declaration of Covenants and Restrictions is drafted to suggest that Michaud may from time to Mr. Albert Lono [ an Page 3 September 21, 1987 time move his purchasers from one campsite to another--so he now argues to us--the evidence supports the Superior Court's finaing that in reality a purchaser acquires an indefinite interest in a particular campsite. The purchaser chooses his campsite at the time of purchase and pays a price for it that varies by as much as $10,000 depending on the campsite's location. Further, although the stipulation of facts says only that the purchaser receives the right to exclusive use of the 'facilities' at his campsite (a term that, as used in the stipulation, apparently refers only to the campsite hookups for water, sewage, and electricity), it is plain that the purchaser receives exclusive use of a broader area surrounding the facilities as well. This is evident from the fact that he may erect a tent pad, tireplace, and other minor installations. As a matter or conunon sense, one does more while camping than simply use the facilities. Although Wilkinson attempted to avoid a direct answer on this point, he eventually aumitted that a purchaser of one campsite would not be permitted to pitch a tent on a campsite alreauy purchased by someone else. Clearly, each purchaser receives an indefinite tee interest in a unique and identifiable parcel of iana, although the boundaries of the parcel are not well defined. We therefore conclude that there has been a division of the campground into lots so as to bring the Birch Point Colony Club within the scope of 30 M.R.S.A. $ 4956." 444 A.2d pp. 42-430 Another case is People, eetta__ v. Grund City National Bank, 422 N.E.2d 648 (1981). In this case the defendants p annex convert a mobile home park to a conoominium by selling cubicles of air over pads. These would be the units which were independently owned. Then each owner would own an undivided share of the common elements consisting of the remaining grounds and facilities of the trailer park. The County brought an action claiming the plan was not allowable under the Condominium Property Act. The court found that the mobile home park was not convertible to condominium form of ownership of property. it found that "jt)he type of conversion which defendants envision is essentially nothing more than a subdivision of the existing park. If defendants' argument were accepted, a developer who owned land which he divided into lots, PagE a September 21, 187 and on which he constructed single residence dwellings, could sell each residence as a unit with certain areas commonly owned, call it a condominium, and avoid any subdivision requirements imposed by the county in which the land was located." 422 N.E.2d at 649. Your last question is whether building permits can be approved on the proposed plans for which final approval have not been granted. The answer to this question depends upon a determination of whether subdivision laws are being violated. The issuance of building permits is generally not a discretionary act and our code provides that a permit shall be issued if the fee is paid and the plans, specifications and other data conform to the requirements of the code and other pertinent laws and ordinances. $5-13 Hawaii County Code. I would not recommend withholding building permits unless we have good reason to believe the property owner is not entitled to the permits. PKO:mo (returned map) Bernard K Akana w~or Richard Mlyamoeo corpontioe Counw] ,.r,.. Office of the Corporation Counsel Arshnt Ccponaeb Counod Hilo Lagoon Centre • 101 Aapanl Street. Suite 725 • Hilo, Hawaii %720 • (000) %1-0251 • fNE Cp?/~ `M V Qctober 3, 1989 7 CC Honorable Russell S. Kokubun, Chairman, and Members County Council County of Hawaii Hilo, Hawaii 96720 Dear Council Members: Re: Relationship of Ohana Permits to Condominium Development This is in response to your question, raised at the Council meeting of August 30, 1989, as to whether or not permits for 'ohana' units, as defined in Hawaii County Code, Chapter 25, Article 25 may be allowed in condominium developments. Based upon the current state of the law, our response is that property which is owned and developed pursuant to H.R.S. Chapter 514A, the Condominium Property Act, may receive ohana permits if the County of Hawaii Planning Department has granted subdivision approval to the property. I. Condominiums To understand the issue at hand, the term 'condominium' must be clearly understood. Condominiums in the State of Hawaii are defined and controlled by H.R.S. Chapter 514A, 'Condominium Property Regimes,' formerly referred to as Horizontal Property Regimes. H.R.S. $514A-3 defines 'condominium' as: [T]he ownership of single units, with common elements, located on property within the condominium property regime. Essr_r7 ~ w Honorable Russell S. Kokubun, Chairman, and Members Page 2 October 3, 1989 The same section defines 'apartment' as: (A] part of the property intended for any type of use or uses, with an exit to a public street or highway and may include such appurtenances as garage and other parking space, storage room, balcony, terrace, and patio. Obviously, this definition covers the type of dwelling unit in a multiple family residential unit that most people associate with a condominium; however, it can also apply to a development with parcels of land upon which single family dwellings maybe constructed. As noted above, since a 'condominium' is a type of ownership rather than a use, a 'condominium property regime' does not involve the division of land with s transfer of interest in the divided land. Pursuant to Hawaii County Code §23-3(a)(29), 'subdivided land" is defined as: (I]mproved or unimproved land or lands divided into two or more lots, parcels, sites, or other divisions of land for the purpose, whether immediate or future, of sale, lease, rental, transfer of title to or interest in, any or all such parcels, includes re-subdivision, and when appropriate to the context, relates to the process of subdividing of the land or territory subdivided. 0 This distinction between type of ownership and use has been followed in other jurisdictions. In Maplewood Village Tenants Ass,n.•y. Maplewood Village, 116 N.J. Super 372, 282 A.2d 428 (1987), the court stated that municipal zoning and planning regulations were meant to control use rather than ownership. Therefore, where an owner wanted to convert a building from an apartment rental project to a condominium building, the municipal government could not impose requirements in the subdivision ordinance, because there was not a change in the use of the building. See also Gerber y. To Ow Qf Clarkston, 78 Misc. 2d 221, 356 N.Y.S.2d 926 (1974). While there is the distinction between 'condominium' as a type of ownership and 'subdivision' as a use of land, a municipal government must be careful to prevent 'condominium' ownership from being used as a subterfuge to create a subdivision without complying with subdivision requirements. Where the evidence shows that the Honorable Russell S. Rokubun, Chairman, and Members Page 3 October 3, 1989 property developer is attempting such a subterfuge, the municipal government may impose the requirements of a subdivision. Planning Board 2f thg Town of Naples y~ mud, 444 A.2d 40 (Fla. 1982); People y.. Grundy County National Bak, 97 Ill. App. 3d 101, 52 Ill. Dec. 646, 422 N.E.2d 648 (1981). Therefore, a condominium and a subdivision are neither identical, nor mutually exclusive. Real property may be subdivided and receive approval from the County as a subdivision pursuant to the Subdivision Code, yet still be sold and owned as a condominium under HRS SS514A, et seq. The distinction between condominium ownership and subdivision use is important, because as will be shown below, an ohana permit may only be granted on subdivided land. II. Ohana Permits The so-called ohana dwellings are permitted by the Planning Department in accordance with Chapter 25, Article 25 of the County Code. This article was based upon Act 229, S.L.H. 1981, which amended 546-4 of the Hawaii Revised Statutes. In its initial form, the act stated: Neither this section nor any other law, county ordinance, or rule shall prohibit the construction of two single-family dwelling units on any lot where a residential dwelling unit is permitted; provided: (1) All applicable county requirements, not inconsistent with the intent of this subsection, are met, including building height, setback, maximum lot coverage, parking and floor area requirements; and (2) The county determines that public facilities are " adequate to service the additional dwelling units permitted by this subsection. Each county shall establish a review and permit procedure necessary for the purposes of this section. Over the years, however, the county governments have been given more control over this permitting process until the present r Honorable Russell S. Rokubun, Chairman, and Members Page 4 October 3, 1989 time, in which all control over ohana dwellings rests with the county government. H.R.S. 546-4(c), as amended by Act 313, S.L.H. 1989, states in its entirety: Each county may adopt reasonable standards to allow the construction of two single family dwelling units on any lot where a residential dwelling unit is permitted. Consequently, the sections of the Hawaii County Code are all of the standards for ohana permits. Hawaii County Code 525-4(b)(41) defines 'ohana dwelling' as: [A) second dwelling unit permitted to be built as a separate or an attached unit on a lot where a dwelling unit is permitted pursuant to the provisions of Article 25 of this chapter. The word 'lot' is defined as '...a building site or a parcel of land shown as a unit on an approved and recorded subdivision map.' Hawaii County Code S25-4(b)(36)(A). [Emphasis supplied.] As was pointed out above, condominium 'apartments' do not fall within the definition of subdivided land, and may be transferred without having received subdivision approval by the County of Hawaii. However, if they are not approved as subdivisions, then the 'apartments' cannot be defined as 'lots' and are therefore not capable of being issued 'ohana' permits pursuant to Chapter 25, Article 25. III. issuance of Ohana Permit to Lots in a Subdivision to be Owned Under Condominium Property Reaimes Where land owned as a condominium property regime has been properly subdivided and approved by the County of Hawaii pursuant to the Subdivision Code, then it is possible for ohana permits to be granted to the subdivided parcels. As an example, suppose a parcel of land located in a district zoned RS-10 (single family residential, 10,000 square foot minimum lot size) were to be legally subdivided into a number of 10,000 square foot lots. Improvements were properly completed, and final approval received from the Planning Director. Each lot is then a 'unit on an approved and recorded subdivision map.' Hawaii County Code S25-4(b)(36)(A). Instead of selling Honorable Russell S. Kokubun, Chairman, and Members Page 5 October 3, 1989 each lot in fee simple, however, the developer then takes the proper steps, pursuant to HRS SS514A, et. seq., to create a condominium property regime. He applies for an ohana permit for each lot within the subdivision. His plan is to create two subdivision 'apartments' on each subdivided lot and sell them to different owners under the condominium property regime statute. Since each 10,000 square foot piece of land complies with the Hawaii County Code's definition of 'lot,' there is nothing which legally bars each of these ohana permit applications from being granted. They must be considered as any other permits, and approved or denied on the same standards. • IV. Conclusion The practice of using condominium developments to create single family residential housing has been the object of criticism. As was noted above, the developments are sometimes viewed as attempts to evade subdivision improvement requirements. Another recent criticism is that by combining condominium ownership with subdivisions and ohana permits, zoning laws concerning density can be circumvented. It should be noted that in the example given above, the subdivision in question looks like a subdivision of single family residences set on 5,000 square foot lots, all within an area which is zoned RS-10. Without amending the zoning code, the property now contains population density twice that deemed proper by legislation. While these criticisms point to valid problems, these problems are not caused by the nature of condominiums. There are ways of dealing with the situations noted above, and they would require changing the County Code with regard to subdivisions and ohana permits. As was stated in part II, supra, the County of Hawaii now has the power to drastically change the code section on ohana permits, even to the point of abolishing the ohana permit altogether. Changes made in the ohana section of the code could control the double density problem illustrated by the above-cited example. One suggestion would be for a minimum size for any piece of land, regardless of ownership type, in order to receive an ohana permit. For example, if the law stated that ohana permits could not be granted for any lot of less than 15,000 square feet, then the situation noted above could not occur. Such a change would also assure that areas zoned for single family residential use would not have a density greater than one residence per 7,500 square foot lot. The focus of , a Honorable Russell S. Kokubun, Chairman, and Members Page 6 October 3, 1989 these problems should be turned away from the condominium aspect and aimed at the other ways of solving them. Please contact this office if there are any questions. f Very truly yours, RICHARD I. MIYAMOTO Corporation Counsel By FREDERICK GIANNINI Deputy Corporation Counsel FGthc cc: Planning Department r Ikmna Fay IC Kiyosaki ChwfLngmeer Stephen IC Yamashiro 0 p)")~,. Jiro A. Sumada Deputy Chie/ 1, "gmeer Guntv of RliuMYi DEPARTMENT OF PUBLIC WORKS 25 Aupuni Slrm, Room 202 - Hilo, Hawaii 96720-4252 (808) 961-8721 - Faz (808) 969-7138 Date August 4, 1998 To BARBARA HASHIMOTO, Legistative Auditor r~ From DONNA FAY K. KIYOSAKI, Chief Engineer SUBJECT: BILL 269 (Draft 2) - CHANGE OF ZONE Improvements to the Hawaii Belt Highway/Kaloko Drive Intersection Applicant: Star Market, Ltd. Tmk: 7-3-26: 5 Because the subject intersection is under the jurisdiction of the Hawaii State Department of Transportation (HDOT), we have and will continue to defer any comments or recommendations to them. The "fair share" concept being used to improve the subject intersection was developed and implemented and is inappropriate without the concurrence ofHDOT. An appropriate agreement between HDOT and the County should have been reached before implementation. The "fair share" contributions are presently in a County account. In 1994 we tried, unsuccessfully, to transfer funds to HDOT. Although we understand the concerns being raised by HDOT , this Department does not have the personnel or the financial resources to construct the intersection improvements on behalf of HDOT at this time. Based on our experiences with Kaloko, to have a workable "fair share" condition for highway improvements, there must be an agency that is willing to advance construction funds before all contributions are received. The need for it improvements will not occur "overnight" with the completion of the last development. Improvements will be needed before full development. However, once improvements are provided, impacts caused by the remainder of the developments would have already been addressed. Subsequent contributions will than be a reimbursement to the contracting agency. If you have any questions, please contact the Galen Kuba, Engineering Division Chief at x8327. Enclosures cc: DOT Highway (Hawaii District Office) Eng (Hilo & Kona) E( WP Pike'.M1IP.M1fOS`COIiN(YL.WNU(67) • 4OJM`V`Of N,t'LSi Donna Fay K. Kiyosaki Chief Engineo Stephen K. Ya ash o Rile W. Smith Mayor Y ~i~r ±°';N 17rp~ty Chief Fegir¢er ~ or a~ &III11fu IIf'Pufuuii DEPARTMENT OF PUBLIC WORKS 25 Aupunl Street, Rmm 202 • Hilo, Hawaii 96720-4252 (808) 9618721 • Fax (808) 969 7138 December 19, 1994 MR GLENN M OKIMOTO ACTING DIRECTOR OF TRANSPORTATION STATE DEPARTMENT OF TRANSPORTATION 869 PUNCI-IBOWL STREET HONOLULU HAWAII 96813-5097 SUBJECT: KALOKO DRIVE/MAMALAHOA INTERSECTION Thank you for considering the subject improvements. We were hoping that you could use these monies as your share for an ISTEA highway safety improvement. Funds for the intersection improvements will continue to be held by the County until you have a need for them. DO A F Y K K "SAKI, PC Chie Engineer cc: Mayor Councilman Childs Eng (G- Okada) DPW nnortriiex) JOHN WAJHEE r° o - • R[% D. JOHNSON G[IVCHNOf1 ^i'95e ~k ~ 01RECTOR uKAN ns 1II KANANI NIHOL HOLT GLENN M. OKIMOTO JOYCE T. OMINE CALVIN M TSUDA IN REPLY REFER 10 STATE OF HAWAII DEPARTMENT OF TRANSPORTATION S.LI' 8.6491 869 PUNCHBOWL STREET HONOLULU, HAWAII 96813-5097 December 7, 1994 Ms. Donna Kiyosaki Chief Engineer Department of Public Works County ofI lawaii 25 Aupuni Street Hilo, Hawaii 96720 Dear Ms. Kiyosaki: Subject: Kaloko Drive/Mamalahoa Intersection 71Tank you for your letter of October 28, 1994, requesting that we accept existing and future funds for the roadway improvements at the intersection of Kaloko Drive and Mamalahoa Highway. We regret that we will be unable to assist you with the project at this time. The monies you ultimately expect to collect from the lot holders will be $160,000 short of the estimated costs for the improvement ($450,000). Due to higher priority projects, we do not have the supplemental finds and other resources available to undertake the project. SuTcerely, Glenn M. Okimoto Acting Director of Transportation oJ,ti1 or Nk ~1J~;<. Donna Pay K. Kiyosaki Stephen K. Yamashiro Chi4E"Ai"e<, bfora. - - ' Riley W. Smith •i Deputy Chit Engineer C lunfu of'Pawati DEPARTMENT OF PUBLIC WORKS 25 Aupuni Strcct, Room 202 • Hilo, Hawaii 96720-4252 (808) 9618321 • Fax (808) 969-7138 October 28, 1994 MR HUGH Y ONO PE DISTRICT ENGINEER STATE DEPARTMENT OF TRANSPORTATION HIGHWAYS DIVISION 50 MAKAALA STREET HILO HAWAII 96720 SUBJECT: KALOKO DRIVE/MAMALAHOA INTERSECTION In granting change of zones for certain areas within the Kaloko Mauka Subdivision, the County of Hawaii is collecting $3,000 per lot for improvements to the subject intersection. Improvements are to consist of full channelization with turning lanes as described by condition "E" of the attached ordinance 92-116. Currently the County has $69,000 in Account No. 110-399-5397.50-115 and we should receive an additional $21,000 during the first quarter of 1995 There are other change of zone requests that could generate an additional $200,000. Because work is to be performed at a State intersection, we are requesting that you accept existing and future funds for the intersection improvement. There would be no conditions except that the funds must be used for the intersection and that unused funds are returned to the County Your favorable consideration of this matter will be sincerely appreciated. If you have any questions please contact my deputy, Riley Smith at 961-8321- DO A FArY K. KNOSAKI, PE -Chief Engineer cc. Mayor Councilman Childs Eng (S. Takemura) I-11)OT(Pile7) DPW