Mar 11, 2013

Lost TMK's and the Burden of Proof

Another piece of datum that should be saved in Institutional Memory: Tax Map Key numbers. A TMK number is a unique sequence of numbers that identify a specific property for property tax assessment purposes. TMKs are also used by many other gov't agencies. For example, the Dept of Planning and Permitting matches building permits, land use data and other information, to TMKs.

Over time, when properties boundaries are consolidated, subdivided, or adjusted, TMKs are changed and it can be very difficult to find documentation of previous building and land use permit approvals that may have been filed under the previous TMK. In this writer’s experience, both the City Real Property Tax Assessment Office (Dept of Budget and Fiscal Services) and the City Department of Planning and Permitting keep very good records of current TMKs, but previous TMKs are hard to track, especially since both departments have undergone numerous upgrades to different computerized database systems over the years.

Finding old permits can be crucial in a City like Honolulu, because so many projects are urban in-fill: pre-existing buildings/uses that are often integrated into a new project. Being able to determine which structures/uses were legally established (ie. built with all proper gov't approvals and permits) and which were not, can be critically important for a land owner/developer.

Over time, these records become even more valuable to land owners, who shoulder the burden of proof to prove that structures/uses were legally established and should be allowed to continue.  When the land use ordinance is updated, certain structures and/or uses that were legally established (ie. built with all proper gov't approvals and permits), can become nonconforming (ie. the same use/structure would not be approved today). According to the Land Use Ordinance, it is the land owner’s responsibility to provide this documentation:
The Land Use Ordinance, (ROH 21-4.110) states: “In other than criminal proceedings, the owner, occupant or user shall bear the burden to prove that a lot, a structure, a use, a dwelling unit, or parking or loading was legally established as it now exists.”

In other words, according to the wording in the Land Use Ordinance, if the City Dept of Planning and Permitting cannot find those old permit records to authenticate a nonconformity, then they could be illegal structures, subject to a Notice of Violation and possible forced removal of the structure and/or discontinuation of use.

Here’s a practical example of how this affects development in Honolulu. Over time, the City has widened certain streets so that a few apartment buildings lack the minimum front yard setback. However, today’s Zoning Code, parking stalls and vehicle maneuvering is not allowed in required yard setbacks. In these cases, the question arises: does an apartment building have the required minimum number of parking? A developer planning to create a condominium regime and sell each unit separately will want to verify this information and make the appropriate disclosures in the Condominium documents. Even if not explicitly documented in the permit record, based on available documentation, would the City be willing to modify the front yard setback? More parking would probably increase the value of the overall development.

For more information about nonconformities in Honolulu, see previous post: