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HomeMy WebLinkAboutORD 1996-047 1994-1996COUNTY OF HAWAII ORDINANCE NO. STATE OF HAWAII 96 47 BILL NO. 307 (Draft 3) AN ORDINANCE AMENDING ARTICLE 25, CHAPTER 25 (ZONING CODE) OF THE HAWAII COUNTY CODE, RELATING TO REGULATIONS FOR AN OHANA DWELLING UNIT. BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII: Section 1. Findings and Purpose. It was the legislative intent of Act 229, Session Laws of Hawaii 1981, to assist families to purchase affordable individual living quarters and at the same time to encourage the preservation of the extended family. Unfortunately, the legislature found that the ohana law has not produced the desired effect as it had originally intended for families to afford a home but instead, has found that it has promoted increased densities in our communities without the proper infrastructure requirements. Therefore, the legislature recently gave each county the authority to adopt reasonable standards to allow the construction of two single-family dwelling units on any lot where a residential dwelling unit is permitted, pursuant to Section 464(c) of the Hawaii Revised Statues. The council finds that although there is an immediate need to address the housing problem, there is also a need to assure the residents of the County of Hawaii that the development of land, infrastructure, and public service systems will occur in a planned and organized manner, consistent with the goals, policies, and standards of the Hawaii County General Plan and the Hawaii County Code, and particularly that our public infrastructure systems and services of our communities will not be unduly overburdened. The county council also finds that there is a need to protect and preserve our agricultural lands by limiting and controlling the dispersal of residential and urban use and to uphold the overall zoned density limits for existing neighborhoods in order to protect those areas from increased densities which may substantially alter their character. Therefore, to balance the need for immediate housing, and to keep the densities of each zoned district consistent with the Hawaii County Zoning Code without jeopardizing the safety, health and welfare of the communities, this ordinance proposes a new Article 25 which would allow an ohana dwelling unit only on a lot within the specified county zoned districts. Section 2. Article 25 of Chapter 25 of the Hawaii County Code (1988) relating to "Ohana Dwelling" is repealed. Section 3. A new Article 25 is added to Chapter 25 of the Hawaii County Code (1991) to read as follows: "Article 25. Ohana Dwelling Unit Section 25- . General Provisions, applicability. The limitations and requirements of this chapter shall apply to a lot within the county zoned Single -Family Residential (RS) district, the Unplanned (U) district, the Residential and Agricultural (RA) district, and the Agricultural (A) district; provided that: (a) The lot is a legal lot of record as determined by the planning department; (b) Any lot which is classified Agricultural by the state land use commission shall be subject to agricultural requirements for farm dwellings as established by department rule or ordinance; (c) All applicable county requirements, not inconsistent with the provisions of this chapter, are met, including but not limited to, building height, minimum yard requirement, setback, and parking requirements; and (d) The following public facilities are adequate to serve the ohana dwelling unit: (1) Sewage disposal system. A lot on which an ohana dwelling unit would be permitted shall be served by a public or private sewage disposal system. An adequate public sewage disposal system to accommodate the ohana dwelling unit shall meet with the -2- requirements of the department of public works and an adequate private sewage disposal system, cesspools, or septic tanks to accommodate the ohana dwelling unit shall meet with the requirements of the state department of health. (2) Potable water supply. A lot on which an ohana dwelling unit would be permitted shall be served by an approved public or private water system meeting with the requirements of the department of water supply to accommodate the ohana dwelling unit. An ohana dwelling unit that is not served by an approved public or private water system meeting with the requirements of the department of water supply may be permitted to use a water catchment system subject to the sufficient annual rainfall in the area as approved by the planning department and meeting the requirements of the department of health and the department of water supply. (3) Fire protection. A lot on which an ohana dwelling unit would be permitted shall be served by adequate fire protection measures meeting with the requirements of the fire department. (4) Streets. A lot on which an ohana dwelling unit would be permitted shall gain access to a public or private street meeting with the requirements of the department of public works. Section 25- . Eligibility. (a) No application for a permit for an ohana dwelling unit shall be accepted by the director prior to the completion of all subdivision improvements required for final subdivision approval for any lot established by a subdivision under the provisions of Chapter 23 of the Hawaii County Code. For purposes of this section, "completion" shall mean actual construction has been completed to the satisfaction of the chief engineer. (b) No more than one permit application may be active for any one applicant at any time. Any applicant who has previously obtained a permit for an ohana dwelling unit in the -3- County of Hawaii shall not be eligible to apply for a subsequent permit for another ohana dwelling unit on a different lot until two years has elapsed from the date on which the prior permitted ohana dwelling unit was completed to the satisfaction of the chief engineer. For purposes of this section, each titleholder and person named in the application pursuant to Section 25- (b) Procedures, shall be construed as an applicant or permittee. The director shall maintain and keep readily available for public reference a current list of applicants and permittees for ohana dwelling units, including the dates of application and approval or denial. Section 25- . Non -applicability. The provisions of this article shall not apply to: (a) A lot within the State Land Use Conservation District; (b) A lot developed under an affordable housing project approved by the state housing finance and development corporation (HFDC) and/or the county housing agency which has been granted pre-emptions from the requirements of the Hawaii county code; (c) A lot developed as a Planned Unit Development (P.U.D.) or a Cluster Plan Development (C.P.D.); (d) A lot where more than one dwelling unit is permitted in the zoned district or is permissible in the RS zoned district. No ohana dwelling unit shall be permitted on the same lot with a two-family or multi -family dwelling, a family care home, a public or private care facility, or a single-family dwelling with transient accommodations; (e) A lot subject of an approved variance from the provisions of the zoning and subdivision control codes; (f) A lot on which the construction of an ohana dwelling or a second dwelling unit is specifically prohibited by a change of zone ordinance. Section 25- . Designation of the ohana dwelling unit. (a) Regardless of the size of a lot, no more than one ohana dwelling unit shall be permitted on the same lot with the first single-family dwelling unit. EI (b) Through the application and permitting procedures set forth in this article, the planning 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 subject property and it complies or will be modified to comply with all the requirements of this article. Section 25- . Maximum height limitation. Except when the living areas of the ohana dwelling unit and the first dwelling unit are joined by a common wall, floor, or ceiling, the ohana dwelling unit shall not exceed the maximum height of twenty-five feet regardless of the maximum height limitation in the zoned district. Section 25- . Minimum lot size and yard requirement. (a) The minimum lot size for a lot containing both the first dwelling and the ohana dwelling unit in the RS, U, RA, and A districts shall be 10,000 square feet. (b) The minimum front, rear, and side yard requirements to permit the construction or placement of a detached ohana dwelling unit shall be the minimum yard requirements stipulated for the zoned district in which the subject lot is situated plus an additional five (5) feet. (c) The ohana dwelling unit and single family dwelling unit may be constructed as a duplex (i.e., there is a common wall or floor/ceiling). Section 25- . Guest Houses. A guest house, as described in Section 25-49, Hawaii County Code, shall not be permitted on any lot where an ohana dwelling unit has been permitted or constructed. In the event a lot contains an existing guest house, an ohana dwelling unit shall not be permitted, however, an existing guest house may be converted into an ohana dwelling unit in accordance with the requirements of this chapter. -5- Section 25- . Off street parking required. Parking shall comply with the requirements set forth in Section 25-73(a) of the Hawaii County Code. Section 25- . Ohana dwelling units and variances. No variance from the zoning or subdivision control codes shall be granted to permit the construction or placement of an ohana dwelling unit. An ohana dwelling unit shall not be permitted on a lot which has been the subject of favorable action on a variance application previously granted from the provisions of the zoning and subdivision control codes. Section 25- . Application form. The application form for an ohana dwelling shall be prepared by the planning director. Section 25- . Procedure. (a) A completed application and a filing fee of $25.00 for an ohana dwelling unit shall be filed with the planning director for review and action. (b) The application shall be executed by all titleholders and shall include their individual names and addresses. When titled interests in the subject lot are held by a corporation, association, partnership, or trust, the names and addresses of all partners, directors, officers or shareholders or beneficiaries holding an ownership or beneficial interest of ten or more per cent thereof shall be listed. (c) The applicant shall submit with the application, an affidavit stating that provisions of any restriction, covenant or other land use restriction applicable to the subject lot by way of a deed or lease or other provision do not prohibit the construction or placement of an ohana dwelling or a second dwelling unit. The affidavit shall be on a form prescribed by the planning director. (d) The applicant shall deliver a notice of the application to all parties listed in the application who did not execute the application as a titleholder, owners of properties within I on three hundred feet of the perimeter boundary of the subject lot, and any known association of such property owners, informing the recipient that the applicant has made an application for an ohana dwelling unit. Proof of such service of notice shall be submitted with the ohana dwelling unit application. Failure to identify and to notify all such owners of interests, property owners and association of owners shall render the application incomplete. (e) Upon filing a complete and acceptable application, the planning director shall forward the application for the ohana dwelling unit to appropriate agencies for review and comment on the adequacy of infrastructure facilities to accommodate the ohana dwelling unit pursuant to Section 25-( )( ). Section 25- . Action. The planning director shall render a decision (approve or deny) following thirty (30) days but no more than sixty (60) days after receipt of a complete and acceptable application. If the planning director does not render a decision within the sixty day period from the date the application was filed, the application shall be deemed approved. Section 25- . Building Permit. (a) A building permit for the construction of an ohana dwelling unit shall be secured within one year from the date of issuance of the ohana dwelling unit permit. A thirty (30) day time extension may be granted by the planning director if it can be demonstrated by the applicant that non-performance is not the result of their fault or negligence. In the event that the applicant fails to secure a building permit for the construction of the ohana dwelling unit on the lot within the one year time period, or in the case when a thirty -day time extension was granted, the ohana dwelling unit permit shall be void. (b) The applicant shall not be able to obtain any extension of time thereof, further, such failure shall not be cause to petition the planning director, board of appeals or any other governmental body for relief from the one-year limitation set forth in this section. -7- Section 25- . Revocations. (a) The planning director may initiate proceedings to revoke the permit for an ohana dwelling unit in the event that: (1) The applicant intentionally misrepresents a material fact in the application or its attachments; (2) The applicant transfers or attempts to transfer an ohana dwelling unit permit issued by the planning director prior to completion of the construction of the ohana dwelling unit and to the satisfaction of the chief engineer; (b) A written notice of revocation shall be made to the applicant by registered or certified mail with return written receipt as prescribed in Chapter 91-9.5 of the Hawaii Revised Statutes. (c) The applicant shall have the opportunity for a hearing with the board of appeals on the revocation of an ohana dwelling unit permit in accordance with Chapter 91, Hawaii Revised Statutes. (d) In the event that an ohana dwelling unit is constructed contrary to the provisions of this article, with or without a permit therefor having been issued, it shall be considered unlawful and a public nuisance and action or proceedings for abatement, removal and enjoinment of the unlawful ohana dwelling shall immediately commence pursuant to Division 2 of Chapter 25 of the Hawaii County Code. Section 25- . Non -transferability. A permit for the ohana dwelling unit shall be personal to the applicant until construction of the ohana dwelling unit has been completed to the satisfaction of the chief engineer and shall not be transferable or assignable to any other person prior to its completion. 10 Section 25- . Prohibition of Advertising, Sales, Transfers. No person shall advertise or represent to the public that a permit to construct an ohana dwelling unit is transferable with the sale of the property on which the permit has been granted. Section 25- . Rules. The planning director shall promulgate rules within three months from the effective date of this ordinance in accordance with Chapter 91, Hawaii Revised Statutes, necessary to implement the provisions of this article, with the assistance of other agencies, as appropriate. Section 25- . Pending Applications. (a) Any permit issued for an ohana dwelling prior to the effective date of this ordinance but for which no building permit has been obtained shall be void one year from the effective date of this ordinance or on the expiration date of the dwelling approval, whichever occurs first. (b) All pending applications for an ohana dwelling filed with the planning director prior to the effective date of this ordinance shall be processed in accordance with this ordinance, with the exception of the filing fee. The planning director may require the applicant to submit additional information to comply with this article. Section 25- . Appeals. The approval or disapproval of the ohana dwelling unit by the planning director may be appealed to the Board of Appeals in accordance with its rules." SECTION 4. Section 25-73(a) relating to Off -Street Parking is hereby amended by adding the following to be appropriately designated: " ( ) Ohana dwelling unit: two for every unit." SECTION 5. In the event that any portion of this ordinance is declared invalid, such invalidity shall not affect the other parts of this ordinance. SECTION 6. Material to be repealed is bracketed. New material is underscored. In printing this ordinance, the underscoring, brackets and bracketed material need not be included. 0 SECTION 7. This ordinance shall take effect upon its approval. INTRODUCED BY: COUNCIL M EA,-COl TY OF HAWAII Hilo, Hawaii Date of Introduction: September 21, 1994 Date of 1st Reading: April 3, 1996 Date of 2nd Reading: April 17, 1996 Effective Date: May 2, 1996 APPROVED AS TO FORM AND LEGALITY: DEPL)TY ORPORATION COUNSEL DATED: -10- OFFICE OF THE COUNTY CLERK County of Hawaii Hilo Hawaii Introduced By: Takashi Domingo Date Introduced: _September 21, 1994 First Reading: April 3, 1996 Published: April 10, 1996 REMARKS: 09/21/94 - Referred to Planning Department 02/07/96 - Deferred and referred back to Planning Committee Second Reading: April 17, 1996 To Mayor: April 18, 1996 Returned: May 2, 1996 Effective: May 2, 1996 Published May 10, 1996 REMARKS: ( DRAM I DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as indicated above. Approved/Disapppv&ed this Z day of ,19�_. Ak�WR, COUNTYF WAII COUNCIL CHAIRMAN IJCOUNTYCLERK Bill No.: 307 ( Draft 3 ) Reference: C-1296/1994/C-100.01/PC-111 Ord. No.: 96 47 ROLL CALL VOTE AYES , NOES ABS EX Arakaki x Bonk -Abramson X Childs X De Lima X Domingo X Osorio X Rath x Ray X Smith X 8 1 0 0 I DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as indicated above. Approved/Disapppv&ed this Z day of ,19�_. Ak�WR, COUNTYF WAII COUNCIL CHAIRMAN IJCOUNTYCLERK Bill No.: 307 ( Draft 3 ) Reference: C-1296/1994/C-100.01/PC-111 Ord. No.: 96 47 ROLL CALL VOTE AYES NOES ABS EX Arakaki x Bonk -Abramson X Childs X De Lima X Domingo X Osorio X Rath X Ray X Smith X 7 1 1 0 I DO HEREBY CERTIFY that the foregoing BILL was adopted by the County Council and published as indicated above. Approved/Disapppv&ed this Z day of ,19�_. Ak�WR, COUNTYF WAII COUNCIL CHAIRMAN IJCOUNTYCLERK Bill No.: 307 ( Draft 3 ) Reference: C-1296/1994/C-100.01/PC-111 Ord. No.: 96 47