HomeMy WebLinkAboutCOM 0244.004 1998-2000 •
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Stephen K. Yamashiro , ~u..' ° '~~LI1~~LiJ
~i~~~dbaa~; Richard Wurdeman
Mayor r~9 JUN 7 P,f'1 g ~grpo.ntlen ce"nrel
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COUNTY CLERK
~IIllltf~T II~ ~MfUIITt COUNTI' OF FiAW,NI
OFFICE OF THE CORPORATION COUNSEL
101 Aupuni Area, Suite 12S • Hib, Hawaii %7204262 • (808) %1.8151 • Fax (808) 969.7049
FAMILY SUPPORT DIVISION: HILO-688 Kinoole Arcs, Suiu 214 Hilo, Hawaii %720 • (808) 961375 • Faa (808) 935.7128
KONA-P.O. Boa 1748 • Keah4ekua, Hawau 96750 • (808) )14.7117 • Faa (808) )24.1150
February 9, 1994
TO: S. KALANI SCHUTTE, CHAIR and
MEMBERS, HAWAII COUNTY/ COUNCIL
FROM: RICHARD D. WURDEMAN//J,/
Corporation Counse y" -
SUBJECT: GHANA ZONING IN AGRiCULTt7ImAL DISTRI_ TS
(Opinion 94-1)
This is a response to the request of the Planning Committee for
an opinion on whether it is permissible to allow the
construction of two single family ("ohana") units on lots which
are classified agricultural by the State Land Use Commission.
Our answer is in the affirmative, with qualifications.
State Land Use Law, HRS §205-2 provides for the districting and
classification of lands. Among the uses specified as
appropriate for agricultural districts are, under the category
of services and uses accessory to farminq•activities, living
quarters and dwellings. -
In 1976, the legislature became concerned about the perceived
development of "urban type residential Communities in the guise
of residential subdivisions" Conf. Com. Rep. No. 6 on HB
3262-76, House Journal 1976, p. 1095. To avoid what they felt
to be this possible abuse, they enacted the law, now codified as
HRS §205-9.5 which specified twelve types of uses permitted in
agricultural districts. Included among these permitted uses is
a category which includes "farm dwellings" and "employee
housing'. HRS §205-4.5(4)
The section goes on to define the term "farm dwelling" as
meaning:
00 „
Comm. No. 2~ .-tr'v
File No. ZNG/Kt~ d~-~
Ref. To: P-ret-~~Me-d-Co= Nct~
Iief. Date (O ~ ~ ~ 9 9
S. Kalani Schutte, Chair and
Members, Hawaii County Council
February 4, 1999
Page 2
...a single family dwelling located on and used in
connection with a farm, where agricultural activity provides
income to the family occupying the dwelling.
_ Originally, this definition only applied to lands which were
classified as being of productivity rating A or B. However, in
1991, by means of Act 281, it was made applicable to all State
agricultural districts.
The County derives the authority to establish zoning _caithin such
districts by virtue of HRS §205-5(b) which allows theme Counties
to further define accessory uses by ordinance and by HRS §46-9,
the general grant of zoning power, a power which by virtue of
that section shall be "liberally construed in favor of the
county..." The same section goes on to provide that each county
map adopt reasonable standards to allow the construction of two
single family dwelling units on any lot where a rosidential
dwelling unit is permitted. HRS §46-9 (4)
Both State law, as discussed above, permits single family
dwellings, so long as they are "farm dwellings". The County
Code categorizes single family dwellings as permitted uses i~'
Agricultural Districts. §25-152(A)(1) HCC. Section 25-271 HCC
goes on to permit two dwelling units on any lot within
agricultural districts, subject to certain conditions.
This office has rendered an opinion (November 15, 1985, see
attached) to the effect that not only an ohana dwelling, but a
single family dwelling, and a "farm" dwelling can be built on an
agricultural lot, that is, each lot can accommodate not two, but
three dwellings. Such a construction, could obviously lead to
the creation of urban density in agricultural lands, and
completely frustrate the intent of the State law. Thus, we
cannot agree with that conclusion.
lie do, however, agree that under ezisting law, both State and
County, "ohana" dwellings are permissible on land classified as
agricultural, so long as they meet the definition of farm
dwellings. Although this requirement is not eaplicit in the
County Ordinance, that ordinance must be construed with
reference to the State Statute, or in pari materia. HRS §1-16.
To summarize, multiple dwellings are permissible on agricultural
lands, if they are farm dwellings used in connection with income
producing activity. The law, however, does not set a minimum
level of such activity. This would seem to be a proper matter
for County definition. HRS §205-5(b). with the exception of
employee housing, however, any residential unit must be used in
connection with some agricultural activity that provides income,
however. minimal, to the Accupants. Because.ohana units may be
S. Kalani Schutte, Chair and
Members, Hawaii County Council
February 9, 1999
Page 3
located anywhere that single family units are permitted, they
are permitted, but are subject to the same limitations ~
Enforcement of any violation of this use limitation is pursuant
to HRS §205-12,13, which provides for a system of notice and
fines.
Because of the tangled relationship between State and County law
in this area, it is recommended that this area be given special
attention in the ongoing review of the zoning cads being
conducted by the Planning Director.
The opinion of this office of November 15, 1985, is hereby
rescinded.
RW:bud/0877
co: yVirginia Goldstein
Planning Director
*In addition, the HCC §25-152(7) permits "dormitories and
additional dwellings for persons employed on the premises" State
law, however has no such restrictions to the premises, and
conceivably farm workers could be housed one place, and
transported miles away to do their work. HRS §205-2.
I.UV\ll la tt:\fl nll
OF ll OF THE CORPORATION COUNSV. " 1 ~ i
25 Aupuni Street i ~
Hllo, Hawaii 98720 ~
•~~i.ll~\.\
MEMORANDUM J 33
To: Mr. Albert Lo no Lyman poq November 15, 1985
Planning Director
From: Thomas L. H. Yeh, Deputy Corporation Counse]./~
Ohana Dwellings on Lands Zoned ~ ~
Subject: for Agricultural Use;
Application of Stephen S. Arnett.
This memorandum is submitted pursuant to your oral
request for an opinion on the number of dwellings, including
ohana and farm dwellings, which may be permitted v-a land
zoned for agricultural use. The question has been raised as
to whether an ohana dwelling may be permitted on a lot zoned
for agricultural use where the land presently has a fazm
dwelling and a single-family dwelling constructed upon same.
Background.
in this situation, reference must be made to both the
County's land use law and the more recently enacted ohana
swelling law.
The provisions of the Hawaii County Code relating to
the permitted uses within agricultural districts allow,
under 525-152, one single-family dwelling per building site
and additional single-family dwellings for persons employed
on the premises when found to be necessary to the conduct of
an agricultural use by the director.
Subsequent to the enactment of the provisions of
525-152 of the County Code, the legislature, by Act 229,
1981 SLH, added a provision to HRS $q'6-4, which reads as
follows:
'(c) Neither this section nor an other law
count ordinance or ru e s a 1 ro ibit the -
construction of two s n le-famil dwellin units on
an lot where a res dential dwellin unit is
permitteds prove e
All applicable county requirements, not
inconsistent with the intent of this
subsection, are met, including wilding
height, setback, maximum lot coverage,
parking, and floor area requirements; and
~ 0
Mr. Albert Lono Lyman
Page 2
November 15, 1985
(2) The county determines that public facilities
are adequate to service the additional
dwelling units permitted by this subsection.
This subsection shall not apply to lots
developed under planned unit development, cluster
development, or similar provisions which allow the
aggregate number of dwelling units for the
development to exceed the density otherwise allowed
in the zoning district.
Each county shall establish a review and
permit procedure necessary for the purposes of this
subsection." (emphasis added)
Pursuant to the authority provided by the Above-cited
provisions of HRS 546-4(c), the County enacted legisiation
now codified as Article 25, Chapter 25, Hawaii County
Code 1983. General provisions concerning ohana dwellings
are found in 5525-271 and 25-272, which provide in pertinent
part as follows:
"General provisions. Notwithstanding any law,
ordinance, or rule to the contrary, two dwelling
units ma be constructed on an lot within all
state land use urban a rlcu tura rura and
conservation districts provide that:
(1) Applicable County requirements, not
inconsistent with the intent of this section and
the zoning provisions aPP scab a to residential use
are met, including use, building height setback,
and off street parking;...." (emphasis added)
Section 25-272(a), HCC, provides as follows:
(a) An ohana dwellina_ shall comply with all
other requirements of this article and of the
County Code, except with regard to density.- On an
lot where a dwe ling unit is perm tted, an ohana
dwellin ma be constructed provided that:....
(emp axis a de
The term "ohana dwelling" is defined by §25-4(41) of
the Code as follows:
Mr. Albert Lono Lyman
Page 3
November 15, 1985
"(41) 'Ohana dwelling' means 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."
• "Dwelling unit" is further defined by 525-4(18) of the
Code to mean:
"(c) 'Dwelling unit' means one or more rooms
designed for or contained or used as the complete
facilities for the cooking, sleeping and liv~g
area of a single family only and occupied by no
more than one family and containing a single
kitchen."
Discussion. •
We are of the position that when the ohana dwelling
law, as contained in HRS 546-9 (c) and SS25-271 and 25-272 of
the Hawaii County Code, is applied to agricultural lands, an
interpretation can be made that a single-family dwelling and
an ohana dwelling may be constructed on a lot so long as
other applicable County requirements are met, regardless of
whether a farm dwelling is already situated on the lot.
Our position is based upon the criteria initially
established by the provisions of HRS 546-4, which provides
that no law shall prohibit the construction of two
single-family dwelling units on any lot where a residential
dwelling unit is permitted, provided that all applicable
County requirements not inconsistent with the intent of that
section are met. Since 525-152 of the Hawaii County Code
permits a single-family dwelling to be constructed on a lot
zoned for agricultural use, the provisions of 525-272 (a)
would appear to permit the construction of an ohana dwelling
in addition to the single-family dwelling.
Furthermore, the purpose of the ohana dwelling law is
to assist families in purchasing affordable living quarters
and, at the same time, to encourage the preservation of the
extended family. §1, Act 229 (1981 SLH); 525-270, Hawaii
County Code. A review of the minutes of the Council's
Planning Committee meeting concerning the draft of the ohana
dwelling bill which was enacted into what is now Article 25,
Mr. Albert Lono Lyman
Page 4
November 15, 1985
Chapter 25, of the Hawaii County Code reveals the express
concern for the applicability of the ohana dwelling law to
agricultural lands and indicates an intent to have the ohana
dwelling law apply to lands within agricultural districts.
The purpose of the County's ohana dwelling law may also
_ not be achieved by including farm dwellings in the
determination of the permissible number of dwellings for a
particular lot. The different purposes behind allowing farm
dwellings and ohana dwellings arise from separate and
distinct legislation which might well be frustrated were
existing farm dwellings to be used as a bar to the:
construction of an ohana dwelling. Further, it would be
somewhat inconsistent to allow a single-family dwelling, an
ohana dwelling, and subsequent farm dwelling on the same lot
yet prohibit a single-family dwelling, farm dwelling, and
subsequent ohana dwelling.
In light of the above, an interpretation can be made
that the County's land use law would not prohibit the ohana
dwelling requested in the subject application.
TLHY:sw
E o urea
APP
ALD IBARRA
Corporation Counsel