Haw. Code R. § 15-22-15 - Nonconformities

(a) Except as otherwise provided, nonconforming uses of land and structures, and nonconforming lots, structures, parking and loading within the mauka area may be continued subject to the provisions hereinafter specified.

(b) Any provision to the contrary notwithstanding, existing industrial and commercial uses which meet reasonable performance standards as contained in this chapter shall be permitted to continue in appropriate locations within the district.

(c) Nonconforming use of land shall not:

(1) Be enlarged, increased or extended to occupy a greater area of land than was occupied on February 27, 1982;

(2) Continue if it ceases for any reason (except where government action impedes access to the premises) for a period of more than six consecutive months or for twelve months during any three-year period; or

(3) Be moved in whole or in part to any portion of the lot or parcel other than that occupied by the use on February 27, 1982;

(d) The following are rules with respect to nonconforming uses of structure:

(1) Nonconforming use of structure shall not extend to any part of the structure which was not manifestly arranged or designed for the use on February 27, 1982; and a nonconforming use shall not be extended to occupy any land outside the structure. The structure shall not be enlarged, extended, constructed, reconstructed, moved, or structurally altered;

(2) Nonconforming use of structure shall not continue if it is discontinued for twelve consecutive months or for eighteen months during any three-year period;

(3) If structural alterations are not made, any nonconforming use of a structure, or structure and premises in combination, may be changed to another nonconforming use of the same nature, or to a more restricted use, or to a conforming use; provided that change to a more restricted use or to another nonconforming use may be made only if the relation of the structure to the surrounding property is such that adverse effects on occupants and neighboring property will not be greater than if the original nonconforming use continued;

(4) On any building devoted in whole or in part to any nonconforming use, work may be done in any period of twelve consecutive months on ordinary repairs, or on repair or replacement of nonbearing walls, roofs, fixtures, wiring or plumbing, to an extent not exceeding ten per cent of the current replacement value of the building; provided that the cubic content of the building as it existed on February 27, 1982, shall not be increased;

(5) Nothing contained in this chapter shall be deemed to prevent the strengthening or restoring to a safe condition of any building or part thereof declared to be unsafe by any official charged with protecting the public safety, upon order of that official.

(e) The following are rules with respect to nonconforming structures:

(1) A nonconforming structure may be continued as long as it remains otherwise lawful.

(2) A nonconforming structure may be altered in any way which does not increase its nonconformity. However, a nonconforming structure may be enlarged without satisfying the public facilities dedication, open space and recreation space requirements of this chapter, provided that:

(A) The floor area of the proposed construction does not exceed twenty-five per cent of the floor area of the structure as it legally existed on February 27, 1982, or floor area of the structure at the time of application for a development permit excluding proposed demolitions, whichever is less;

(B) The proposed construction does not encroach into a required yard, except that roof overhangs, eaves, sunshades, sills, frames, beam ends, projecting courses, planters or awnings are allowed if they do not extend more than four feet from the existing structure. However, in no event shall roof overhangs, eaves, sunshades, sills, frames, beam ends, projecting courses, or planters be closer than five feet from the property line; and awnings may extend over the property line above public property pursuant to the provisions of subsection (e)(6) below;

(C) The total floor area of the existing structure and the expansion do not exceed 1.5 FAR;

(D) The proposed construction does not exceed forty-five feet in height;

(E) The proposed construction does not adversely affect neighboring properties;

(F) The parking requirements of this chapter are satisfied for the area proposed to be constructed; and

(G) The area created by the proposed construction will be utilized for a permitted use.

(3) Any provision of these rules to the contrary notwithstanding, if a nonconforming structure is proposed to be partially acquired as part of an improvement district or other public project, the remainder of the structure may be demolished and the equivalent floor area reconstructed on the lot without satisfying the public facilities dedication, open space and recreation space requirements of this chapter, provided that the executive director shall find that the proposed reconstruction will be utilized for a permitted use, is practically and aesthetically superior to that which would otherwise result if the partially acquired structure was refaced at the new property line, and does not substantially increase nonconformity. Any additional floor area created by the proposed reconstruction shall be subject to the applicable requirements of this chapter.

(4) If a nonconforming structure is destroyed by any means to an extent of more than fifty per cent of its replacement cost at the time of destruction, it shall not be reconstructed except in conformity with the provisions of these rules.

(A) Notwithstanding the foregoing provision, a nonconforming use which contains multiple units owned by owners under the authority of chapter 514A or chapter 421H, HRS, or units owned by a "cooperative housing corporation" as defined in chapter 421I, HRS, and which is destroyed by accidental means, including destruction by fire, other calamity, or Act of God, may be restored to its former condition and use, provided that such restoration is permitted by the Building Code and is started within two years;

(B) The burden of proof to establish that the destruction of a structure was due to accidental means as described above and that the structure was legally nonconforming shall be on the owner; and

(C) Except as otherwise provided herein, no nonconforming structure that is voluntarily razed or required by law to be razed by the owner therefore may thereafter be restored except in full conformity with the provisions of this chapter.

(5) If a nonconforming structure is moved for any reason, it shall thereafter conform to the applicable rules of this chapter after it is moved.

(6) Any awning may extend from a nonconforming structure over public property, provided approvals from the appropriate governmental agencies are secured and the awning does not extend more than four feet from the face of the building to which it is attached.

(7) Upon satisfaction of the zoning adjustment provision set forth in section 15-22-21:

(A) Walls and fences may project into or enclose any part of any front yard provided that the wall or fence does not exceed a height of six feet and front yard nonconformities already exist on the development lot;

(B) Other structures may be allowed in side and rear yards provided that the structure does not exceed a height of six feet and side or rear yard nonconformities already exist on the development lot.

(f) The following are rules with respect to nonconforming lots:

(1) A nonconforming lot shall not be reduced in area, width or depth, except because of a government project that is intended to further the public health, safety or welfare or the intent of the mauka area plan.

(2) Any conforming structure or use may be constructed, enlarged, extended or moved on a nonconforming lot as long as all other requirements of this chapter are complied with.

(g) Nonconforming parking and loading may be continued, subject to the following provisions:

(1) If there is a change in use which has a greater parking or loading requirement than the former use, additional parking and loading shall be required and shall not be less than the difference between the requirements for the former use and the proposed use.

(2) Off-street parking and loading requirements of this chapter shall be satisfied for additional floor area constructed.

Notes

Haw. Code R. § 15-22-15

[Eff 9/8/86, comp 1/28/88, am 12/10/88, am and comp 2/24/90, am 12/15/94, am 1/13/00] (Auth: HRS §§ 206E-4, 206E-5, 206E-7, 206E-33) (Imp: HRS §§ 206E-4, 206E-5, 206E-7, 206E-33)
15-22-15 is based substantially upon § 15-17-17. [Eff 2/27/82; am 1/21/83; am 5/31/84; am 3/13/86; R 9/8/86]