HAR §15-215-89. Nonconformities

(a) Applicability. This section applies to nonconformities, including their continuation, cessation, enlargement, or expansion. There are two categories of nonconformities: uses and structures. (b) Continuation. A nonconformity that was lawfully operated, established, or commenced in accordance with the provisions of the applicable statutes or regulations in effect at the time that it was established, but which is no longer permitted or authorized under these rules, may continue subject to the provisions of this section. (c) Violation of rules. The failure to comply with the requirements of this section shall immediately disallow a nonconformity. (d) Nonconforming uses: (1) Continuance of nonconforming uses. The lawful use of any structure existing as of the effective date of the rules may be continued, although such use does not conform to the provisions of the rules. Such use may be extended throughout the structure, provided that no structural alterations or additions to the structure occur, except those made in conformance with 215-105 the rules. A conforming structure in which a nonconforming use is operated shall not be enlarged or extended except as may be required by the rules; and (2) Changes of nonconforming use: (A) Any nonconforming use may be changed to a use conforming with the rules established for the transect zone in which the nonconforming use is located; provided, however, that a nonconforming use so changed shall not in the future be changed back to [a] the original or another nonconforming use; (B) A nonconforming use may only be expanded under the provisions of section 15-215-89(f) (nonconformities); and (C) If a nonconforming use is abandoned for twelve consecutive months, any future use of such premises shall be in conformity with the provisions of the rules. Abandonment of a nonconforming use shall terminate the right to continue the nonconformity (e) Nonconforming structures: (1) Continuance of nonconforming structures. Subject to the provisions of section 15-215-89(b) (nonconformities) any nonconforming structure may be occupied, operated, and maintained in a state of good repair[;]. Permitted maintenance on nonconforming structures includes work on exterior façades, roofs, railings, gutters, and other maintenance activities that do not increase any nonconformities; (2) Enlargement, conforming use. A nonconforming structure in which only lawfully permitted uses are operated may be enlarged or extended if the enlargement or extension can be made in compliance with all regulations established in subchapter 2 (regulating plan, transect zones and thoroughfare plan), subchapter 3 (general development standards), and subchapter 4 (district wide standards); 215-106 (3) Enlargement, nonconforming use. A nonconforming structure in which only nonconforming uses are operated may be enlarged or extended if: (A) The enlargement or extension can be made in compliance with all provisions of subchapter 2 (regulating plan, transect zones and thoroughfare plan), subchapter 3 (general development standards) and subchapter 4 (district wide standards); and (B) The requirements of section 15-215-89(f)(nonconformities) are met; (4) Enlargement, limited up to twenty-five per cent of the floor area. A nonconforming structure may be altered or enlarged without compliance with all provisions of subchapter 2 (regulating plan, transect zones and thoroughfare plan), subchapter 3 (general development standards) and subchapter 4 (district wide standards), 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 [October 27, 2012,] , excluding proposed demolitions; (B) The proposed construction does not encroach into a frontage area; (C) The proposed construction does not adversely affect neighboring properties; and [(D) The parking requirements of this chapter are satisfied for the area proposed to be constructed;] (D) The area created by the proposed construction is a permitted use; (5) Damage to structures. The right to operate and maintain any nonconforming structure shall terminate and shall cease to exist whenever the nonconforming structure is damaged in any manner and from any cause whatsoever, and the cost of repairing such damage exceeds fifty per cent of the 215-107 replacement cost of such structure on the date of such damage. (A) In determining the replacement cost of any nonconforming structure, the cost of land or any factors other than the nonconforming structure itself shall not be included[.]; and (B) The executive director shall require the submission of sufficient evidence to verify the cost of repairing such structure and the final determination of replacement cost shall be made by the executive director. [A nonconforming single-family dwelling unit that is destroyed or damaged more than fifty per cent of the replacement cost may be rebuilt, provided that a permit is issued within one year of the date of such damage or destruction. The executive director shall require the submission of sufficient evidence to verify the date of damage or destruction; and] (6) Exception for repairs pursuant to public order. Nothing in this subsection shall be [deemed to prevent] construed as preventing the strengthening or restoration to a safe condition of a building or structure in accordance with an order of a public official who is charged with protecting the public safety and who declares such structure to be unsafe and orders it [to restoration] restored to a safe condition[,]; provided that such restoration is not otherwise in violation of the various provisions of this subsection prohibiting the repair or restoration of partially damaged or destroyed buildings or structures. (f) Expansion of nonconformities: (1) Applicability. No nonconforming use or structure shall expand more than twenty-five per cent of the floor area of the structure, exclusive of any proposed demolition, as it legally existed on [October 27, 2012,] , unless a conditional 215-108 use permit has been granted as set forth in section [15-217-81] 15-215-79 (conditional use permit); and (2) Evaluation criteria. In addition to the criteria required to be met for a conditional use permit under section 15-215-79 [(conditional use permit)], the following criteria shall apply to the issuance of a conditional use permit for the expansion of a nonconforming use or structure: (A) The termination of such nonconformity will result in unnecessary hardship[;] that is not solely economic or financial; (B) The expansion of the nonconformity will not be contrary to the public interest; (C) The expansion of the nonconformity will not substantially or permanently injure the appropriate use of adjacent conforming property; (D) The use is consistent with the spirit and purpose of these regulations and the KMP and goals, objectives, and policies; (E) The plight of the developer for which the expansion of the nonconformity is sought is due to unique circumstances existing on the property and within the surrounding area; (F) The expansion of the nonconformity will not substantially weaken the general purposes of this section or the regulations established in this section for the applicable transect zone; (G) The expansion of the nonconformity will not adversely affect the public health, safety[, and] or welfare; and (H) Nonconforming [parking and] loading may be continued, subject to the following provisions: (i) If there is a change in use which has a greater [parking or] loading requirement than the former use, additional [parking 215-109 and] loading shall be required and shall not be less than the difference between the requirements for the former use and the proposed use; and (ii) [Off-street parking and loading] Loading requirements of this section shall be satisfied for additional floor area constructed. [Eff 10/27/12; am and comp ] (Auth: HRS §§206E-4, 206E-5, 206E-7) (Imp: HRS §§206E-4, 206E-5, 206E-7)