Constraints are placed on nonconformities to facilitate eventual conformity with this chapter. 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. Nonconforming lots, structures, uses, dwelling units, commercial use density, and parking and loading may be continued, subject to the following provisions.
(a) Nonconforming lots.
(1) A nonconforming lot shall not be reduced in area, width, or depth, except by government action to further the public health, safety, or welfare.
(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 met.
(b) Nonconforming structures.
(1) If that portion of a structure that is nonconforming is destroyed by any means to an extent of more than 90 percent of its replacement cost at the time of destruction, it may not be reconstructed except in conformity with this chapter. All reconstruction and restoration work must comply with building code and flood hazard regulations, and commence within two years of the date of destruction.
(A) Notwithstanding the foregoing provision, a nonconforming structure devoted to a conforming use that contains multifamily dwelling units owned by owners under the authority of the State of Hawaii Condominium Property Act or HRS Chapter 421H, or units owned by a “cooperative housing corporation” as defined in HRS § 421I-1, whether or not the structure is located in a special district, and that is destroyed by any means, may be fully reconstructed and restored to its former permitted condition; provided that such restoration is permitted by the current building code and flood hazard regulations and is started within two years from the date of destruction.
(B) A nonconforming structure that is required by law to be razed by the owner thereof may not thereafter be reconstructed and restored except in full conformity with this chapter.
(2) If a nonconforming structure is moved, it must conform to this chapter.
(3) Any nonconforming structure may be repaired, expanded or altered in any manner that does not increase its nonconformity.
(4) Improvements on private property, that become nonconforming through the exercise of the government’s power of eminent domain may obtain waivers from this subsection, as provided by § 21-2.130.
(5) Nonconforming commercial use density will be regulated under the provisions of this subsection. For purposes of this section, “nonconforming commercial use density” means a structure that is nonconforming by virtue of the previously lawful mixture of commercial uses on a zoning lot affected by commercial use density requirements in excess of:
(A) The maximum FAR permitted for commercial uses; or
(B) The maximum percentage of total floor area permitted for commercial uses.
(c) Nonconforming uses. Strict limits are placed on nonconforming uses to discourage the perpetuation of these uses, and to facilitate the timely conversion to conforming uses.
(1) A nonconforming use may not extend to any part of a structure or lot that was not arranged or designed for such use at the time of adoption of the provisions of this chapter or subsequent amendment; nor may the nonconforming use be expanded in any manner, or the hours of operation increased; provided that a recreational use that is accessory to the nonconforming use may be expanded or extended if the following conditions are met:
(A) The recreational accessory use will be expanded or extended to a structure in that a permitted use also is being conducted, whether that structure is on the same lot or on an adjacent lot; and
(B) The recreational accessory use is accessory to both the permitted use and the nonconforming use.
(2) Any nonconforming use that is discontinued for any reason for 12 consecutive months, or for 18 months during any three-year period, may not be resumed; provided that a temporary cessation of the nonconforming use for purposes of ordinary repairs for a period not exceeding 120 days during any 12-month period will not be considered a discontinuation.
(3) Work may be done on any structure devoted in whole or in part to a nonconforming use; provided that work on the nonconforming use portion of the structure must be limited to ordinary repairs. For purposes of this subsection, the term "ordinary repairs" means only the following:
(A) The repair or replacement of existing walls, floors, roofs, fixtures, wiring, or plumbing;
(B) Work required to comply with city, State, or federal mandates, including but not limited to the Americans with Disabilities Act (ADA) or the National Environmental Policy Act (NEPA); or
(C) Interior and exterior alterations; provided that there is no physical expansion nor intensification of the nonconforming use;
provided that, ordinary repairs must not exceed 10 percent of the current replacement cost of the structure within a 12-month period, and the floor area of the structure, as it existed on October 22, 1986, or on the date of any subsequent amendment to this chapter pursuant to which a lawful use became nonconforming, must not be increased; and further provided that the 10 percent of the current replacement cost limitation does not apply to work involving that portion of a structure devoted to nonconforming hotel use in the Diamond Head special district.
(4) Any nonconforming use may be changed to another nonconforming use subject to the prior approval of the director; provided that:
(A) The change in use is only permitted if any adverse effects on neighboring occupants and properties will not be greater than if the original nonconforming use were to be continued; and
(B) The director may impose conditions on the change in nonconforming use necessary or appropriate to minimize impact or prevent greater adverse effects related to a proposed change in use. Other than as provided as "ordinary repairs" under subdivision (3), improvements intended to accommodate a change in nonconforming use or tenant are not permitted.
(5) Any action taken by an owner, lessee, or authorized operator that reduces the negative effects associated with the operation of a nonconforming use, including but not limited to reducing hours of operation or exterior lighting intensity, may not be reversed.
(d) Nonconforming dwelling units. With the exception of ohana dwelling units, which are subject to the provisions of § 21-2.140-1(h), nonconforming dwelling units are subject to the following provisions:
(1) A nonconforming dwelling unit may be altered, enlarged, repaired, extended, or moved; provided that all other provisions of this chapter are met;
(2) If a nonconforming dwelling unit is destroyed by any means to an extent of more than 50 percent of its replacement cost at the time of destruction, it may not be reconstructed; and
(3) When detached dwellings constructed on a zoning lot before January 1, 1950, exceed the maximum number of dwelling units currently permitted, they will be deemed nonconforming dwelling units.
(e) Nonconforming parking and loading. Nonconforming parking and loading may be continued, subject to the following provisions.
(1) If there is a change in use to a use with a higher parking or loading standard, the new use must meet the off-street parking and loading requirements established in Article 6;
(2) Any use that adds floor area must provide off-street parking and loading for the addition as required by Article 6. Expansion of an individual dwelling unit that results in a total floor area of no more than 2,500 square feet will be exempt from this requirement;
(3) When nonconforming parking or loading is reconfigured, the reconfiguration must meet current requirements for arrangement of parking spaces, dimensions, aisles and, if applicable, ratio of compact to standard spaces, except as provided in subdivision (4). If, as a result of the reconfiguration, the number of spaces is increased by five or more, landscaping must be provided as required in §§ 21-6.80 and 21-6.90; and
(4) Parking lots and other uses and structures with an approved parking plan on file with the department before May 10, 1999, and that include compact parking spaces as approved in the plan, may retain up to the existing number of compact spaces when parking is reconfigured.
Editor’s note:
* “July 24, 1986” is substituted for “at the time of adoption of the provisions of this chapter or subsequent amendment.”