JoAnn Yukimura: A Résumé

Bill No. 2173, Relating to Additional Dwelling Units on other Than Residentially Zoned Lots
Floor Amendment (Draft 10-29-06)
Introduced by: JoAnn A. Yukimura, Councilmember

SECTION 1. Bill No. 2173, Section 1 is amended to read as follows:

“SECTION 1. Findings and Purpose. The Kauai County Council finds that Ordinance 551, the Additional Dwelling Unit (ADU) law, was passed in 1989 to create affordable housing on Agriculture and Open zoned lands. It was extended for four times with various modifications. While well-intentioned, this law, in combination with state laws respecting Horizontal Property Regime, has caused the unintended consequences of residential growth on lands not primarily intended for residential use, and has thwarted one of the main goals of the Kauai County General Plan to “limit and control the dispersal of residential and urban use within agricultural lands” By not insuring that infrastructure could be available to qualifying lots before they were granted the privilege of applying for an additional dwelling units, the law has distorted the planning process and created a demand for infrastructure that is not in accordance with orderly community development. While it has created some affordable housing, the ADU law has also fueled speculation and the fragmentation of land which has increased rather than decreased the cost of housing. It has added a potential of ___ units to Agriculture and Open lands.

The Kaua`i County Council finds that it is critical to terminate the ADU law and stop the creation of new Agricultural and Open lots entitled to apply for additional dwelling units. To not terminate the ADU law would be to encourage land use patterns that will be expensive to service and to live in. It will generate low density sprawl that could destroy the rural character and agricultural value of Kaua`i’s lands without providing affordable housing in effective and efficient ways.

In order to mitigate the lack of notice that so many have experienced, the Council finds it is appropriate to create a limited right for a period of three years to allow people to apply for a building permit for those who have qualifying lots of record as of the expiration date of Section 8-26.1. However, the Council finds that the County cannot be expected to provide infrastructure for all such lots, and it was never the intention of the Council that the County provide such infrastructure. Hence, the provision of such infrastructure is a private responsibility, unless the provision of infrastructure is part of a county infrastructure plan in both time and space.

Finally, the Kauai County Council finds that it is creating a new privilege and in doing so the Council finds that it is in the best interest of the community to return to the historical purpose of the additional dwelling unit, which was to provide an additional dwelling unit for family members and to optimize infrastructure by promoting the sharing of infrastructure, both objectives of which presume a common ownership. The Council also finds that it is desirable to allow additional dwelling units that are in common ownership with the principal single family house to be used for farm worker housing.”

SECTION 2. Bill No. 2173, Section 2 is amended to read as follows:

“SECTION 2. Section 8-26.1, Kauai County Code, 1987, as amended, is hereby amended as follows:

“ Sec. 8-26.1 Additional Dwelling Unit On Other Than Residentially Zoned Lots.

(a) Additional Dwelling unit. Notwithstanding other provisions to the contrary, for any lot where only one single-family residential dwelling or farm dwelling is a generally permitted use or is allowed through a use permit, one additional single-family residential dwelling unit (attached or detached) or farm dwelling may be developed, provided:

(1) All applicable county requirements, not inconsistent with Section 46- 4 (c), Hawaii Revised Statutes, and the county’s zoning provisions applicable to residential use are met, including but not limited to, building height, setback, maximum lot coverage, parking, and floor area requirements.

(A) If the additional dwelling unit is to be built in a Special Treatment District or Constraint District, all requirements of such district shall be met.

(B) Notwithstanding any other provision to contrary, for lots in the Urban and Rural State Land Use Districts which were re-zoned from Residential to Open District after September 1, 1972, the maximum lot coverage shall be the same as the residential district requirement.

(2) The provisions of this subsection shall not apply to lots developed under a project under a project development, or other multi-family development, or similar provisions where the aggregate number of dwelling units for such development exceeds the density otherwise allowed in the zoning district.

(3) For lots on which an additional dwelling unit is developed, no guest house under Sec. 8-3.3(a)(2) shall be allowed. An existing guest house may be converted into a dwelling unit, but no additional guest house may be constructed.

(4) The following public facilities are found adequate to serve the additional dwelling unit:

(A) Public sanitary sewers, an individual wastewater system (or cesspool), or a private sanitary sewer system built to County standard and approved by the Department of Health

(B) .For sewered areas, the availability and capability of a public sewer system shall be confirmed in writing by the Department of Public Works. The availability of a private sewer system shall be confirmed in writing by the Department of Health.

(D) Approval in writing from the Kauai Fire Department is required for all parcels.

(E) The lot must have direct access to a street which has an all weather surface (asphalt or concrete) roadway pavement continuous to the major thoroughfare, or if the street does not have such all weather surface there shall be funds specifically appropriated in the capital improvement budget ordinance for such roadway pavement. The Planning Director and County Engineer shall apply the standards and criteria for requiring road improvements established in the Subdivision Ordinance and the “Kauai County Planning Commission Road Widening Policy,” (as may be amended from time to time), for those roads which are considered substandard.

(5) Facilities clearance may be obtained prior to application for building permit. Forms for facilities clearance will be available from the Building Division, Department of Public Works. The form, approved by all agencies, shall be submitted with the building permit application processing, the submission of the facilities clearance form will be attached with the building permit and processed concurrently.

(6) Nothing contained in this section shall affect private covenants or deed restrictions that prohibit the construction of second dwelling unit on any lot.

(b) Expiration. Section 8-26.1(a) is hereby repealed December 31, 2006. No building permit shall be granted for an additional dwelling unit under this Section 8=26.1(a) after such repeal date.

(c) Upon expiration of Sec. 8-26.1(a), any additional dwelling unit built pursuant to a valid building permit obtained under Sec. 8-26.1(a) shall thereafter be considered a conforming structure and use, notwithstanding Article 23 of the Comprehensive Zoning Ordinance relating to non-conforming structures and uses.

(d) Notwithstanding the expiration of Section 8-26.1(a), a building permit for an ohana dwelling unit shall be granted, subject to meeting requirements described in Section 8-26.1(d) through (v) for legal lots of record in existence as of December 31, 2006 which, prior to December 31, 2006 and subject to certain conditions, were eligible to apply for an additional dwelling unit under Section 8-26.1(a). Notwithstanding any law to the contrary, no building permit shall be issued after December 31, 2009.

(e) All applicable county requirements, not inconsistent with.Section 46-4 (c), Hawai`i Revised Statues, and the county’s zoning provisions applicable to residential use shall be met, including but not limited to building height, setback, maximum lot coverage, parking and floor area requirements.

(1) If the ohana dwelling unit is to be built in a Special Treatment District or Constraint District, all requirements of such districts shall be met.

(2) Notwithstanding any other provision to the contrary, for lots in the Urban and Rural State Land Use Districts which were re-zoned from Residential to Open District after September 1, 1972, the maximum lot coverage shall be the same as the residential district requirement.

(f) Subsection 8-26.1(c) shall not apply to lots developed under a project development, or other multi-family development, or similar provisions where the aggregate number of dwelling units for such development exceeds the density otherwise allowed in the zoning district.

(g) For lots on which an ohana dwelling unit is developed, no guest house under Section 8-3.3 (a) (2) shall be allowed. An existing guest house may be converted into a dwelling unit, but no additional guest house may be constructed.

(h) The following public facilities shall be adequate to service the ohana dwelling unit:

(1) There must be a connection to a public sanitary sewer system, an individual wastewater system (septic tank), or appropriate sanitary sewer system built to County standard and approved by the Department of Health .

(2) For sewered areas, the availability and capability of a public sewer system shall be confirmed in writing by the Sewers Division of the Department of Public Works. The availability of a private sewer system shall be confirmed in writing by the Department of Health.

(3) The availability of potable water for both the single family unit and the ohana dwelling unit shall be confirmed in writing by the Department of Water.

(4) The availability of adequate fire protection shall be confirmed in writing by the Kaua`i Fire Department.

(i) No Ohana Dwelling Unit permit shall be granted unless an Ohana Unit Facilities Clearance Form prescribed by the Planning Department showing adequate public facilities is first completed and an SMA permit, where required by law, is first approved. No building permit shall be issued without the aforesaid permits first being issued. It shall not be the responsibility of the County to provide the needed infrastructure except if it is in accordance to an official government master plan and timetable.

(j) Only one permit application for an ohana dwelling unit may be active for any one applicant at any time. Any applicant who has obtained an ohana dwelling unit permit shall not be eligible to apply for a subsequent ohana dwelling unit permit on any lot for a period of two years from the date on which the first ohana dwelling unit was completed to the satisfaction of the County Engineer. For purposes of this subsection, each owner of the lot of record and person named in the application for an ohana dwelling unit permit, pursuant to section 8-26.1(c) shall be considered the applicant. The Planning Director shall maintain and keep readily available for public reference a current list of applicants for ohana dwelling units, including the dates of application and approval or denial of said application.

(k) An application form for an ohana dwelling unit permit shall be filed with the Planning Director on a form prescribed for this purpose by the Planning Director, and shall be accompanied by:

(1) A filing fee as set by the Planning Department

(2) The names and addresses of all the owners of the lot of record, provided that when the property is owned by a corporation , association, partnership or trust, the names and addresses of all partners, directors, officers, shareholder or beneficiaries holding an ownership or beneficial interest of at least ten or more percent shall be included; and

(3) An affidavit, in the form prescribed by the Planning Director, verifying that there is no restriction or covenant applicable in any deed, lease, or other recorded document, which prohibits the construction or placement of an ohana dwelling unit or a second dwelling unit on the applicable lot.

(l) The applicant shall serve notice of the ohana dwelling permit application on adjacent lot owners and lessees of record. The applicant shall also serve notice on all owners of property identified in the application who did not execute the application, and any known association of property owners which has jurisdiction or authority over the subdivision in which the building site is situated. Notice shall be served either by hand delivery to said persons or by certified mail to the addresses shown on the current Notice of Property Assessment Card File located at the Real Property Division of the Department of Finance of the County of Kauai. The notice shall include the street location of the ohana dwelling unit and tax map key and shall be in a form approved by the Planning Director. The applicant shall submit together with the ohana dwelling unit permit application, an affidavit as to the mailing or delivery of such notice and a list of person which such notice were sent.

(m) A building permit for the construction of an ohana dwelling unit shall be secured within one years from the that the ohana dwelling unit permit was issued. A thirty (30) day time extension may be granted by the Planning Director if it can be demonstrated by the applicant that nonperformance was not the result of the applicant’s fault or negligence. In the event that the applicant fails to secure a building permit for the construction of the ohana dwelling unit within the one-year time period, or any extension granted by the Planning Director, the ohana dwelling unit permit shall be void.

(1) The time extension provided for an ohana dwelling unit permit under subsection (a) above shall be the only time extension available to an applicant and not further time extension shall be allowed. Further, the failure to obtain any further time extension of an ohana dwelling unit permit shall not be cause to petition the Planning Director or the Planning Commission for relief from the time limitation for an ohana dwelling unit permit as provided under this section.

(n) A permit for an ohana dwelling unit shall be personal to the applicant and shall not be transferable or assignable to any other person until construction of the ohana dwelling unit has been completed and final approval has been issued by the County Engineer.

(1) No person shall advertise or represent to the public that a permit to construct an ohana dwelling unit is transferrable with the sale of the property on which the permit has been granted.

(o) In the event that an ohana dwelling unit is constructed contrary to the provision of these subsections, with or without a permit therefor having been issued, the ohana dwelling unit shall be considered unlawful and a public nuisance, and action or proceedings for abatement, removal and enjoinment of the unlawful ohana dwelling shall immediately be commenced in accordance with this article.

(p) The Planning Director may initiate proceedings to revoke the permit for an ohana dwelling unit if:

(1) The applicant intentionally misrepresented a material fact in the permit application, including all attachments; or

(2) The applicant transferred or attempted to transfer an ohana dwelling unit permit issued by the Planning Director prior to completion of the construction of the ohana dwelling unit and final approval by the County Engineer.

(q) The Planning Director shall serve written notice of the proposed revocation on the applicant by registered or certified mail with return receipt.

(r) The applicant, may, within thirty (30) days after receipt of the proposed revocation notice, appeal the revocation notice to the Planning Commission per rules promulgated by the Planning Commission.

(s) Any person aggrieved by the decision of the Planning Director in the issuance of an ohana dwelling unit permit decision, except for a decision regarding the duration of a permit under section 8-26.1(m), may appeal the Planning Director’s action to the Planning Commission. An appeal to the Planning Commission shall stay the provisions of the Planning Director’s orders pending final decision of the Planning Commission.

(t) Notwithstanding any provisions of County law to the contrary, any ohana dwelling unit shall not be used as for transient vacation rental and bed and breakfast purposes. Such use shall be grounds for abatement, removal and enjoinment under sections 8-26.1(o)-(s).

(u) The ohana dwelling unit shall be occupied by persons who are related by blood, marriage or adoption to the family residing in the principal dwelling or, where the land is zoned Agriculture, who are employees of a farm enterprise existing on the lot of record of the principal dwelling or ohana dwelling unit. Where ownership of the principal dwelling and the additional dwelling unit was severed prior to December 31, 2006, by a horizontal property regime action, no ohana dwelling unit permit shall be issued unless the owner-applicant records in the Bureau of Conveyances of the State of Hawaii or if the lot is subject to Land Court registration under HRS Chapter 501, they shall record in the land court, a covenant that the property will not be sold for a period of ten (10) years from December 31, 2006.

(v) The owner or owners of the applicable lot of record shall record in the Bureau of Conveyances of the State of Hawai`i, or if the lot is subject to Land Court registration under HRS Chapter 501, they shall record in the Land Court, a covenant that neither the owner or owners, nor the heirs, successors or assigns of the owners or owners shall submit the lot or any portion thereof to the condominium property regime established by HRS Chapter 514A. The covenant shall be recorded on a form approved by or provided by the Planning Director and may contain such terms as the Planning Director deems necessary to ensure its enforceability. The failure of an owner or of an owner’s heir, successor or assign to abide by such a covenant shall be deemed a violation of this Article and be grounds for enforcement of the covenant by the Planning Director pursuant to Section 8-26.1(o)- (s)., and shall be grounds for action by the Planning Director to require the owner or owners to remove, pursuant to HRS Section 514A-21 the property from a submission of the lot or any portion thereof to the condominium property regime made in violation of the covenant.””

SECTION 3. Bill No. 2173, is amended by amending SECTION 3 and inserting a new SECTION 4 as follows:

“SECTION 3. Ordinance material to be repealed is bracketed. New ordinance material is underscored. When revising, compiling, or printing this ordinance for inclusion in the Kauai County Code, 1987, the bracketed material and underscoring shall not be included.

SECTION 4. This ordinance shall take effect upon its approval.”