(a) The purpose of this section is to encourage and accommodate the construction of accessory dwelling units to increase the number of affordable rental units, without substantially altering existing neighborhood character, to alleviate the housing shortage in the city.
(b) It is intended that accessory dwelling units only be allowed in areas where wastewater, water supply, and transportation facilities are adequate to support the additional dwelling units.
(c) One accessory dwelling unit may be located on a zoning lot in the country, R-3.5, R-5, R-7.5, R-10, and R-20 zoning districts, subject to the following conditions.
(1) The maximum size of an accessory dwelling unit is as follows:
Lot Area | Maximum Floor Area |
3,500 to 4,999 sq. ft. | 400 sq. ft. |
5,000 sq. ft. or more | 800 sq. ft. |
(2) Accessory dwelling units are not permitted:
(A) On zoning lots with a lot area of less than 3,500 square feet;
(B) On zoning lots that have more than one dwelling unit, including but not necessarily limited to more than one single-family dwelling, two-family dwelling, accessory authorized ohana dwelling, guest house, multi-family dwellings, planned development housing, cluster housing, or group living facility; or
(C) On lots that are landlocked.
(3) The property owner, or persons related by blood, marriage, or adoption to the property owner, or a designated authorized representative, shall occupy the primary dwelling unit or the accessory dwelling unit; except in unforeseen hardship circumstances (e.g., active military deployment, serious illness) that prevent the continued occupancy of the primary dwelling unit or the accessory dwelling unit, subject to confirmation by the director.
(4) One off-street parking space per accessory dwelling unit must be provided in addition to the required off-street parking for the primary dwelling unit, except for accessory dwelling units located within 0.5 mile of a rail transit station. For purposes of this section, the minimum distance requirement is measured as the shortest straight line distance between the edge of the station area and the zoning lot lines of the project site.
(5) The owner of the zoning lot shall record covenants running with the land with the State of Hawaii bureau of conveyances, or the office of the assistant registrar of the land court of the State of Hawaii, or both, as is appropriate, stating that:
(A) Neither the owner, nor the heirs, successors, or assigns of the owner, will submit the zoning lot or any portion thereof to a condominium property regime pursuant to the State of Hawaii Condominium Property Act to separate the ownership of an accessory dwelling unit from the ownership of its primary dwelling unit;
(B) The property owner, or persons related by blood, marriage, or adoption to the property owner, or a designated authorized representative, shall occupy the primary dwelling unit or the accessory dwelling unit so long as the other unit is being rented or otherwise occupied; except in cases of unforeseen hardship circumstances (e.g., active military deployment, serious illness) that prevent the continued occupancy of the primary dwelling unit or the accessory dwelling unit, subject to confirmation by the director. For purposes of this section, "designated authorized representative" means the person designated by the property owner to the department as being responsible for managing the property;
(C) The accessory dwelling unit may only be used for long-term rental or otherwise occupied for periods of at least six months, and must not be used as a bed and breakfast home or transient vacation unit;
(D) If the property owner, or persons who are related by blood, marriage, or adoption to the property owner, or a designated authorized representative, choose to receive rent for the primary dwelling unit and occupy the accessory dwelling unit, the primary dwelling unit may only be used for long-term rental or otherwise occupied for a minimum period of six months, and must not be used as a bed and breakfast home or transient vacation unit;
(E) The accessory dwelling unit is limited to the approved size in accordance with the provisions of this chapter; and
(F) The deed restrictions lapse upon removal of the accessory dwelling unit, and all of the foregoing covenants are binding upon any and all heirs, successors, and assigns of the owner.
The covenant must be recorded in a form approved or provided by the director and may contain such terms as the 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 will be deemed a violation of this chapter and will be grounds for enforcement by the director pursuant to §§ 21-2.150 et seq.
(6) All other provisions applicable to the zoning district apply.
(7) All rentals of an accessory dwelling unit, or of the primary dwelling unit if the property owner, or persons who are related by blood, marriage, or adoption to the property owner, or a designated authorized representative, choose to receive rent for the primary dwelling unit and occupy the accessory dwelling unit, must be evidenced by a written rental agreement signed by the owner and the tenant for a lease period of at least six months; provided that after the initial lease period is concluded, the owner may allow the same tenant to continue renting the accessory dwelling unit on a consecutive month-to-month basis.
(d) At the time of application, the applicant shall first obtain written confirmation from the responsible agencies that wastewater treatment and disposal, water supply, and access roadways are adequate to accommodate the accessory dwelling unit.
(e) An accessory dwelling unit may be created by building a new structure (attached or detached from the primary dwelling unit) or through conversion of a legally established structure (attached to or detached from the primary dwelling unit), attic, or basement, subject to meeting all pertaining zoning requirements.
(f) The owner of a structure constructed without a building permit before September 14, 2015*, who wants to convert that structure to an accessory dwelling unit shall obtain an after-the-fact building permit. In addition to fulfilling the base requirements of the after-the-fact permit, any adjustments to the structure must conform with this section and any additional adopted policies and rules.
(g) The department of planning and permitting must be notified upon removal of an accessory dwelling unit.
(h) Prima facie evidence. If an accessory dwelling unit is advertised as a bed and breakfast home or transient vacation unit, the existence of such advertisement will be prima facie evidence of the following:
(1) That the owner of the advertised unit disseminated or directed the dissemination of the advertisement in that form and manner; and
(2) That a bed and breakfast home or transient vacation unit, as applicable, is being operated at the location advertised.
The burden of proof is on the owner to establish otherwise with respect to the advertisement and that the subject property either is not being used as a bed and breakfast or transient vacation unit, or that it is being used legally for such purpose.
(1990 Code, Ch. 21, Art. 5, § 21-5.720) (Added by Ord. 15-41; Am. Ord. 20-6)
Editor’s note:
* “September 14, 2015” is substituted for “the effective date of this article.”