HomeMy WebLinkAboutCOM 1025.000 1996-1998
Hawaii State Association of Counties
Counties of I(auai, Maui and Hawaii, City & County of Honolulu
October 9, 1998
TO: Chairman James Arakaki and Members
of the Hawai'i County Council
FROM: Al Smith, HSAC Vice President
SUBJECT: HSAC LEGISLATIVE PACKAGE
I submit for your consideration, a proposed bill relating to Condominium Property
Regimes for inclusion as part of the 1999 HSAC Legislative Package. I have included,
for purposes of information, a copy of testimony that was presented in support of this
proposal by Council Member Tyler at the 1998 Legislature. This proposal needs to be
reintroduced, as it did not pass in 1998.
Attachments
xc: Curtis Tyler
Oooam. No. / 0.2.5
r Ile No. )qS C •
LpuN(!C
® Stet. To!
S.B. NO. S1D51
THE SENATE
NINETEENTH LEGISLATURE, 1998
STATE OF HAWAII
A BILL FOR AN ACT
RELATING TO CONDOMINIUM PROPERTY REGIMES.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:
I SECTION 1. The legislature finds that the function of
2 county zoning and county subdivision and development ordinances
3 and rules is to protect public health, safety, and welfare. The
4 purpose of this Act is to ensure that projects created and
5 established as condominium property regimes are subject to the
6 provisions of underlying county zoning and county subdivision and
7 development ordinances and rules.
8 SECTION 2. Chapter 514A, Hawaii Revised Statutes, is
9 amended by adding a new section to part I to be appropriately
10 designated and to read as follows:
11 "5514A- Conformance with county zoning. (a) Any
12 project including any additional later phases of any project,
13 established under this chapter shall conform to the existing
14 underlying county zoning for the property and all subdivision,
15 develo ment building and permitting requirements adopted by the
16 county by ordinance or rule The number of apartments intended
17for residential use including farm dwellings and the number of
18 apartments intended to be conveyed with reservation rights to
19 alter, improve expand convert or replace a nonresidential
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l apartment shall not exceed the number of dwelling units allowed
2 per zoned lot of record by the existing underlying county zoning.
3No apartment shall be established or held for sale for
4 residential use or intended to be conveyed with reservation
5 rights to alter, improve expand convert or replace a
6 nonresidential apartment with a residential apartment, that
7 exceeds the number of dwelling units allowed per zoned lot of
8 record by the underlying county zoning existing at the time the
9 declaration and condominium plans are recorded.
10 (b) For any project with individual detached apartments
11intended for residential use including farm dwellings, or
12intended to be converted to residential use, the area of the
131imited common element designated for exclusive use by each
14 detached apartment shall conform to minimum lot size
15 requirements use restrictions and development standards of the
16 underlying county zoning existing at the time the declaration and
17condominium plan are recorded; except for those projects that
18 have been granted cluster zoning or planned unit development
19approval by the appropriate county land use decision-making
20 authority of the county in which the project is located."
21 SECTION 3. Section 514A-3, Hawaii Revised Statutes, is
22 amended by amending the definitions of "apartment" and
23 "condominium" to read as follows:
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S. B . n' O , S 3195
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1 ""Apartment" means a unit or a part of the property intended
2for any type of use or uses, and with an exit to a public street
3 or highway or to a common element or elements leading to a public
4 street or highway, and may include such appurtenances as garage
5 and other parking space, storage room, balcony, terrace, and
6 patio.
7 "Condominium" means the ownership of single [units,]
8 apartments, with common elements, located on property within the
9 condominium property regime."
10 SECTION 4. Section 514A-11, Hawaii Revised Statutes, is
11amended to read as follows:
12 "4514A-11 Recordation and contents of declaration. The
13 bureau of conveyances and the land court shall immediately set up
14 the mechanics and method by which recordation of a master deed or
15lease and the declaration may be made. Provisions shall be made
16 for the recordation of instruments affecting the individual
17 apartments on subsequent resales, mortgages, and other
18 encumbrances, as is done with all other real estate recordations;
19 provided that land court certificates of title shall not be
20issued for apartments. The declaration to which section 514A-20
21refers shall express the following particulars:
22 (1) Description of the land, whether leased or in fee
23 simple, on which the building or buildings and
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1 improvements are or are to be located;
2 (2) Description of the building or buildings, stating the
3 number of stories and basements, the number of
4 apartments, and the principal materials of which it or
5 they is or are constructed or to be constructed;
6 (3) The apartment number of each apartment, and a statement
7 of its location, approximate area, number of rooms, and
S immediate common element to which it has access,
9 designated parking stall, if considered a limited
10 common element, and any other data necessary for its
11 proper identification;
12 (4) Description of the common elements;
13 (5) Description of the limited common elements, if any,
14 stating to which apartments their use is reserved;
15 (6) The percentage of undivided interest in the common
16 elements appertaining to each apartment and its owner
17 for all purposes, including voting;
18 (7) Statement of the purposes for which the building or
19 buildings and each of the apartments are intended and
20 restricted as to use;
21 (8) The name of a person to receive service of process in
22 the cases hereinafter provided, together with the
23 residence or place of business of the person which
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1 shall be within the county in which the property is
2 located;
3 (9) Provision as to the percentage of votes by the
4 apartment owners which shall be determinative of
5 whether to rebuild, repair, or restore the property in
6 the event of damage or destruction of all or part of
7 the property;
8 (10) Any further details in connection with the property
9 which the person executing the declaration may deem
10 desirable to set forth consistent with this chapter;
11 (11) The method by which the declaration may be amended,
12 consistent with this chapter; provided that an
13 amendment to the declarations of all condominium
14 projects existing as of May 22, 1991, and all
15 condominium projects created thereafter shall require a
16 vote or written consent of seventy-five per cent of all
17 apartment owners, except as otherwise provided in this
18 chapter; provided further that the declarations of
19 condominium projects having five or fewer apartments
20 may provide for the amendment thereof by a vote or
21 written consent of more than seventy-five per cent of
22 all apartment owners;
23 (12) Description as to any additions, deletions,
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1 modifications, and reservations as to the property,
2 including without limitation provisions concerning the
3 merger or addition of later phases of the project. To
4 the extent provided in the declaration, an amendment to
5 the declaration which is made to implement those
6 additions, deletions, modifications, reservations or
7 merger provisions shall require the vote or written
8 consent of only the declarant or such percentage of
9 apartment owners as is provided in the declaration; and
10 (13) [In the case of a project which includes one or more
11 existing structures being converted to condominium
12 status, a] Receipt of a written statement or other
13 administrative procedure evidencing the certification
14 by the county officer or officers having jurisdiction
15 over county zoning and subdivision ordinances and rules
16 and the issuance of building permits that the project
17 is in compliance with all zoning, subdivision, and
18 building ordinances and codes applicable to the
19 project, and specifying, if applicable:
20 (A) Any variances which have been granted to achieve
21 such compliance; and
22 (B) Whether, as the result of the adoption or
23 amendment of any ordinances or codes, the project
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1 presently contains any legal non-conforming uses
2 or structures[.);
3 except that a project that is registered pursuant to
4 section 514A-31 shall not include that statement in the
5 declaration and shall provide the statement pursuant to
6 section 514A-40."
7 SECTION 5. Section 514A-12, Hawaii Revised Statutes, is
8 amended to read as follows:
9 "5514A-12 Copy of the [floor] plans to be filed. a)
10 Simultaneously with the recording of the declaration, there shall
11be filed in the office of the recording officer a set of plans to
12include the floor plans and elevations of the building or
13buildings, showing the layout, location, apartment numbers, and
14 dimensions of the apartments, stating the name of the property or
15 that it has no name, and [bearing the] a project site plan or map
16showing the property or boundaries of recorded lots, common
17 elements limited common elements for exclusive use of each
18 apartment easements and rights of way if any, the area measures
19for the preceding location and uses of apartments and
20 buildings zoning and tax map key.
21 (b) The project site plan for all projects filed under this
22chapter shall bear a statement from the county officers having
23jurisdiction over zoning subdivision and development permitting
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I certifying the project to be in compliance with county zoning,
2 subdivision and development ordinance and rules. The floor
3 plans shall bear a statement of a registered architect or
4 professional engineer certifying that it is an accurate copy of
5 portions of the plans of the building or buildings as filed with
6 the county or city and county officer having jurisdiction over
7 the issuance of permits for the construction of buildings and, if
8 construction of the building or buildings is completed, as
9approved by the county or city and county officer. If the floor
10 plans do not include a statement by the architect or engineer
11 that the floor plans fully and accurately depict the layout,
12location, apartment numbers, and dimensions of the apartments as
13approved by the county or city and county officer having
14jurisdiction over the issuance of permits for the construction of
15 buildings and as built, there shall be recorded within thirty
16 days from the date of completion of the building or buildings as
17"date of completion" is defined in section 507-43, or from the
18 date of occupancy of the building or buildings, whichever shall
19first occur, an amendment to the declaration to which shall be
20 attached a statement of a registered architect or professional
21 engineer certifying that the final floor plans theretofore filed,
22or being filed simultaneously with such amendment, fully and
23 accurately depict the layout, location, apartment numbers, and
1998-0772 SB3195 SDI SMA
Page9 S.B. NO. S.D51
1 dimensions of the apartments as approved by the county or city
2 and county officer having jurisdiction over the issuance of
3 permits for the construction of buildings and as built, which
4 amendment shall require only the vote or written consent of the
5 declarant or such other person or persons as are provided in the
6 declaration.
7 (c) The plans shall be kept by the recording officer as
8 provided by rules adopted by the department of land and natural
9 resources, pursuant to chapter 91, indexed in the same manner as
10a conveyance entitled to record, numbered serially in the order
11of receipt, each designated "apartment ownership," with the name
12 of the property, if any, and each containing an appropriate
13 reference to the recording of the declaration. Correspondingly,
14 the record of the declaration shall contain a reference to the
15 file number of the project site plan and floor plans of the
16 building or buildings on the property affected thereby."
17 SECTION 6. Section 514A-36, Hawaii Revised Statutes, is
18 amended by amending subsection (a) to read as follows:
19 "(a) Concurrently with its filing with the commission of
20 the notification of intention pursuant to sections 514A-31 and
21514A-32, the developer shall prepare and submit to the commission
22a public report disclosing all material facts pertaining to the
23project. The public report shall be in such form and content as
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1prescribed by the commission. Such public report may not be used
2for the purpose of selling any apartments in the project unless
3 and until the commission issues an effective date for the public
4 report. The commission's issuance of an effective date for a
5public report shall not be construed to constitute the
6 commission's approval or disapproval of the project, or the
7 commission's representation that all material facts concerning
8the project have been fully or adequately disclosed, or the
9 commission's judgment of the value or merits of the project. No
10 effective date for a final public report shall be issued until
11execution and recordation of the deed or master lease, the
12 declaration, the bylaws, and plans including site and floor
13 plans, as provided by sections 514A-12, 514A-20, 514A-40, and
14514A-81."
15 SECTION 7. Section 514A-40, Hawaii Revised Statutes, is
16 amended by amending subsections (a) and (b) to read as follows:
17 "(a) No effective date shall be issued by the commission
18for a final public report prior to completion of construction of
19the project, unless there is filed with the commission:
20 (1) A statement showing all costs involved in completing
21 the project, including land payments or lease payments,
22 real property taxes, construction costs, architect,
23 engineering, and attorneys' fees, financing costs,
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1 provisions for contingency, etc., which [must] shall be
2 paid on or before the completion of construction of the
3 project;
4 (2) An estimate of the time of completion of construction
5 of the total project;
6 (3) Satisfactory evidence of sufficient funds to cover the
7 total project cost from purchasers' funds, equity
8 funds, interim or permanent loan commitments, or other
9 sources;
10 (4) A copy of the executed construction contract;
11 (5) Satisfactory evidence of a performance bond issued by a
12 surety licensed in the State of not less than one
13 hundred per cent of the cost of construction, or such
14 other substantially equivalent or similar instrument or
15 security approved by the commission;
16 (6) If purchasers' funds are to be used for construction,
17 an executed copy of the escrow agreement for the trust
18 fund required under section 514A-67 for financing
19 construction, which expressly shall provide for:
20 (A) No disbursements by the escrow agent for payment
21 of construction costs, unless bills are submitted
22 with the request for disbursements that have been
23 approved or certified for payment by the project
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Page 12 S, B, NO. S.D.-'1
1 lender or an otherwise qualified financially
2 disinterested person; and
3 (B) No disbursements from the balance of the trust
4 fund after payment of construction costs pursuant
5 to the preceding paragraph until construction of
6 the project has been completed and the escrow
7 agent receives satisfactory evidence that all
8 mechanics' and materialmen's liens have been
9 cleared, unless sufficient funds are set aside for
10 any bona fide dispute;
11 (7) A parking plan to include designated residence parking
12 stalls and guest parking, if any, exclusive of
13 assignment to individual apartments, if parking stalls
14 are to be considered limited common elements; [and]
15 (8) A copy of the disclosure statement required by section
16 514A-62(f)(3) if an effective date for a contingent
17 final public report has been issued by the commission
18 and the report has not expired[.]; and
19 (9) A signed statement or other administrative evidence
20 issued by the appropriate county officer or officers
21 having jurisdiction over county zoning subdivision
22 ordinances and rules and the issuance of building
23 permits certifying that the project is in compliance
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1 with all zoning subdivision and building ordinances
2 and codes applicable to the project.
3 (b) No effective date shall be issued by the commission for
4a final public report for a project that includes one or more
5 existing structures being converted to condominium status unless
6 there is filed with the commission all items required under
7 subsection (a) and:
S (1) A statement signed by (an] appropriate county
9 [official] officers that the project is in compliance
10 with all zoning, subdivision, and building ordinances
11 and codes applicable to the project, and specifying, if
12 applicable:
13 (A) Any variances which have been granted to achieve
14 such compliance; and
15 (B) Whether the project contains any legal
16 nonconforming uses or structures as a result of
17 the adoption or amendment of any ordinances or
18 codes;
19 (2) A statement by the declarant, based upon a report
20 prepared by an independent Hawaii registered architect
21 or engineer, describing the present condition of all
22 structural components and mechanical and electrical
23 installations material to the use and enjoyment of the
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Poge 14 S. B. NO. S.D. 1
1 project; and
2 (3) A statement by the declarant of the expected useful
3 life of each item reported on in paragraph (2) or a
4 statement that no representations are made in that
5 regard; provided that this paragraph and paragraph (2)
6 apply only to apartments that may be occupied for
7 residential use and have been in existence for five
8 years or more."
9 SECTION 8. Statutory material to be repealed is bracketed.
10 New statutory material is underscored.
11 SECTION 9. This Act shall take effect upon its approval.
1998-0772 SB3195 SD1 SMA
10%07.98 WED 10:18 F:1% 8083 139 X002
r. Gum I yev 11 Y (QUO) Jgsu45[ v Jno U a.. J r.n1 u i
February 10, 1998 VIA FACSIMILE 1-800-586-6659
TO: Senators Robert Sunda and Marshall K. Ige, Co-Chairs
COMMITTEE ON GOVERNMENT OPERATIONS & HOUSING (GOH)
AT: Conference Room 224, State Capitol, 1:00 P.M.
RE: S B 31 95, RFI ATIN TO ON OMINIUM PROPERTY REGIMES
Aloha Cc-Chairs Sunda and Ige and Members of the Committee:
I have reviewed the referenced bill and submit this testimony in strong
qupport of the intent and stated purpose of this legislation.
In recent years, West Hawaii and Kona, in particular, have experienced
increasing use of the condominium property regime (CPR) to develop land
and "subdivide" its ownership, especially in areas zoned for agricultural
use. Increasingly, the net result has been that underlying county land use
laws and regulations have been bypassed and/or rendered ineffective.
This practice, in turn, has led to significant local controversy, costly
legal challenges, and the inability of Hawaii County to properly address
the impacts these kinds of projects have on the community in which they
are located. There is a widespread feeling among Kona residents that the
establishment of the CPR under H.R.S. 514A did not envision this result.
For these reasons, it is necessary to amend this statute to prevent its
further unintended application. The referenced bill clearly addresses this,
and the proposed amendments appear to provide a reasonable resolution.
Therefore, I respectfully urge your favorable consideration of this bill.
Thank you for the opportunity to comment on this important matter.
Sincerely,
J. Curtis Tyler, III
Council Member - District 8 (North Kona)
County of Hawaii
Tel: (808) 326-5684 Fax: (808) 326-5697
IW(17 NN5 n'ED 16:18 FAS 5087 897 u0[
URG3 I Y14H nl Y Inuit) Js 4n a w,u iuno _ y n.n _ ,
February ?0. 1998 y-1A.-EACSIMiLE 1=800-5
i U: senators Rocert dunda ana Marsnali K. Ige, Co-Chairs
COMMITTEE ON GOVERNMENT OPERATIONS & HOUSING (GOH)
A1: Conference Room 224, State Capitol, 1:00 P.M.
RE: S. B. 3195, RELATING TO CONOOMINILIM_ PROPERTY RESiMES
A oha Co-Chairs Bunda and lge and Members of the Comm,ttee:
r. reviewed the referenced bill and submit this testimony tll, strong
aUD _gLS. of the intent ana stated purpose of this leg ssatior.
In recent years, West Hawaii and Kona, in particular, have experienced
increasing use of the condomirium property regime (CPR) to develop land
and "subdivide" its ownership, especially in areas zoned for agricultural
use. ncreasingly, the net result has been that underlying county Tana )se
laws and reguwatuors have peen bypassed and/or rendered ineffectwe.
T h,5 practice, in turn, has led to significant locai controversy, costly
iega cha lenges, and the inability of Hawaii County to proper iv ac-dress
the impacts these kinds of projects have on the community it, whicn tnev
are located. There is a widespread feeling among Kona residents that the
establisnmert of the CPR under M.R.S. 514A did not envesior tris result
For these reasons, it is necessary to amend this statute ':c prevent ,s
further unintended application. The referenced bd c,early addresses tr.is,
and the proposed amendments appear to provide a reasonab ° resolution.
Therefore, I resoecttuily urge your favorable consideration of this bin.
T hank you for the opF y to comment on this moortant matter.
Swc.erely,
liras Tyler, ill
Colin(" %'ember - district 8 iN:,, . Kona,
Caur,ty Hawaii
Tel: i 3~8 328-5634 Fax: ;806' _1'6-569 /
~ Mtv os M~
AARON S.Y. CHUNG ~aJ,c,;• Phone: (808) 961-8396
Cnunribnrrnbcr FAX: (808) 969-3291
1T( ui•M
COUNTY COUNCIL
County of Hawaii
Hawaii County Building
25 Aupuni Street
Hilo, Hawaii 96720
October 12, 1998
James Y. Arakaki, Chair
Hawai'i County Council
25 Aupuni Street
Hilo, Hawaii 96720
RE: Attached Communication
Pursuant to Section I (e) of Rule 4 of the Rules of Procedure of the Council of the County
of Hawai'i, this written approval is submitted in regards to Communication No. 1025,
regarding a proposal for the 1999 HSAC Legislative Package, waiving said referral from
the Committee on Finance in order that appropriate action be taken by the Council.
In reviewing the contents of the referral, it is deemed advisable that this waiver be
granted.
Aaron S.Y. Chung, Ch it
Committee on Finance
Approved:
Jame, aki, air
aw i County Council
e~
AS/jmn