Mar 14, 2010

Nonconformities in Honolulu's Land Use Ordinance

According to Honolulu's Land Use Ordinance, there are 5 types of Nonconformities:
  • Dwelling Units
  • Parking and Loading
  • Structure and
  • Use
  • Lot (area of property)

A Nonconformity means that the use/structure/etc was legally established (ie built with a permit), but over time, through changes in the law, is no longer allowed. Most importantly, the City places limits on the amount of work that can be done to the nonconformity. Typically, if it is destroyed by any means to an extent greater than 50%, it cannot be rebuilt, except in full conformity with the current zoning ordinance.

This is also why (some, but not all) Appraisers and Lenders will not include the value of a nonconforming structure or nonconforming use. If the use is discontinued or the structure destroyed by fire, insurance may cover a portion of the value, but the structure most likely cannot be restored, except in full conformity with the current Zoning and Building Ordinances.

When buying property or applying for building permits that have a Nonconforming situation, it can be an uphill battle. The City's preference is to create Conforming (ie. uniform) land uses, structures, etc. However, to have everyone upgrade their properties every time the law changes would create an undue burden on owners. (Try telling that to Microsoft when it's time to upgrade your software) So to compromise, the City allows you to maintain the status quo, within limits. The theory is that over time, structures will become obsolete and be rebuilt in full conformity with current zoning laws. In practice, and especially in a weakened economy, this has not been the case. (See Patricia Salkin's article for more background on the Nonconforming Uses)

Some Examples:
  • Nonconforming Use: a mom and pop type grocery store in the middle of a residential neighborhood
  • Nonconforming Structure: an old Carport that is built right up to the front property line 
  • Nonconforming Dwellings: multiple single-family homes built on one lot 
  • Nonconforming Lot: a 6,667 sq ft lot, zoned R-7.5, since current zoning requires a min of 7,500 sq ft of land per lot. Interestingly, this does not preclude you from building a new home. But it does mean you cannot build an Ohana Unit, since your lot lacks the min lot size.
  • Nonconforming Parking and Loading: an existing apartment building has parking stalls located against the front property line. If owner can prove that stalls existed this way at the time the building was originally built, the stalls may remain. However, if over time the stalls magically migrated closer and closer to the property line to make more space for extra stalls, then they would not be considered Nonconforming and instead may be considered illegal stalls.

You might be amazed at what the City does and does not have in their records. Hawaii did not become a state until 1959, however the building permit record stretches back much further than that.

When dealing with nonconformities, the most important thing is to do a thorough Permit History Search. It should include old building permits, correspondence, inspectors notes, real property tax office field sheets, history sheets, and any old plans the City and owner may have. This is critical because when it comes to nonconformities, the burden of proof is on the owner to authenticate that the use/structure/etc was legally established (ie. built with a permit at the time of its construction).

Today, records are scanned as pdf images and databases make records easy to find. It's no longer realistic for an owner to claim "it's always been there" when available records will indicate otherwise. If the owner is unable to provide such documentation, then the nonconformity will be deemed illegal. Just because it's old ( or looks old), does not mean it was ever legally built.

To do a thorough Permit History Research for a property, there are service providers you can hire to do the legwork for you https://www.hawaiiresearch.com/

Interpreting the results and obscure notes is an art. Tax map key numbers change over time. Dimensions are never quite exact. Structures are slightly modified over time: a small closet added here, a lanai enclosed there. If there are multiple structures, it can be challenging to match the correct permit to each structure. In the absence of a building permit, the nonconformity will be deemed illegal.

By researching and interpreting documents, we have been able to offer our Clients a better insight into their real estate purchase or construction project. (see our Portfolio here)

We can review your specific property and discuss how the nonconformity might affect your project. If you need help with due diligence on a property, please give us a call.