Many times clients or real estate agents will ask if a legal nonconforming house or structure can be rebuilt in the same location or the same size. A nonconforming property or a grandfathered property is a property that was legal at the time was built but because there were changes to the zoning rules, that property no longer conforms to current rules. In most cases you may remodel and enlarge the legal nonconforming property but you may not be able to rebuild unless you follow the current zoning rules. You have to check with the city to see what you can or cannot do with these types of properties.
NONCONFORMING LOTS
A nonconforming lot is a lot that is smaller than the minimum lot size for that zoning district. For example, R-5 means residential land with a minimum of 5,000 sq. ft. There are many lots on Oahu in this zoning district that is less than 5,000 sq. ft. Any conforming structure or use may be constructed, enlarged, extended or moved on a nonconforming lot as long as requirements of the Land Use Ordinance (LUO) are met. Substandard sized lots have a legal right to obtain a building permit and existing buildings may be torn down and a new structure built as long as the building and zoning code requirements are met.
NONCONFORMING STRUCTURES
A nonconforming structure is defined as a structure that was built in accordance to the building code at the time the structure was built but over time, zoning code changes have made the structure not in conformance with the new codes.
If a nonconforming structure is destroyed by any means to an extent of more than 50% of its replacement cost at the time of destruction, it shall not be reconstructed except in conformity with the provisions of the LUO. If the nonconforming structures (multi-family) have been converted to a condominium or a co-op, the structure may be restored to its former condition, provided that such restoration is permitted by the building code and flood hazard regulations and is started within two years. If the structure is voluntarily destroyed by the owner, the structure may not be rebuilt except in full conformity with the LUO provisions. Any nonconforming structure may be repaired, expanded or altered in any manner which does not increase its nonconformity.
NONCONFORMING USES
A nonconforming use property is a property whose usage was allowed when the structure was built but through changes in the zoning designation, the usage is considered to be nonconforming to the new underlying zoning. For example, if an apartment building was allowed when the building was built and the zoning designation has been changed to business, the usage of the building as an apartment is nonconforming to the underlying zoning designation. Any nonconforming use that is discontinued for 12 consecutive months, or for 18 months during any three year period, shall not be resumed.
Work may be done on any structure devoted in whole or in part to any nonconforming use, provided that work is limited to ordinary repairs, including repair or replacement of walls, roofs, fixtures, wiring or plumbing. This work shall not exceed 10% of the current replacement cost of the structure within a 12 month period and the floor area of the structure shall not be increased. If the building cost is estimated at $200,000 and the cost of the repair of the roof is $30,000, only $20,000 worth of work on the roof can be done in a 12 month period and the remaining $10,000 of work must be done in the next 12 month period. Any nonconforming use may be changed to another nonconforming use of the same nature and general impact, or to a more restricted use if the new usage will not impact on the neighboring properties any more than the current usage.
EXISTING USE PERMIT
Existing Use Permits (EU) recognize the hardships imposed upon properties that were legal at the time the structures were built but through zoning changes the structures have become nonconforming and now fall under the standard development requirements if the property was to be developed. The EU allows structures to be rebuilt in the event of destruction following the same general footprint and density and without standard development requirements, provided that such restoration is permitted by the Building Code and Flood Hazard Regulations and is started within two years.
The EU imposes size limitations on the structures when the owners want to expand the structures based on allowable building footprint. There are different requirements if all of the structures is owned by one owner versus if the structures have been sold to different owners under a condominium property regime when the owners want to destroy a structure and build a new structure.
Multiple single family homes (more than 2 units) on one lot are nonconforming unless the EU permit is obtained. If the homes are destroyed before the EU permit is obtained, the homes may not be rebuilt.
READERS ARE WELCOME TO ATTEND MY CONTINUING EDUCATION CLASSES AT NO CHARGE (IF SEATS ARE AVAILABLE)
If you are not a real estate licensee (active or inactive) you are welcome to attend my CE classes at no charge. An educated consumer makes wiser decisions and it is my goal to help consumers understand the zoning rules and know what they can or cannot do with their properties. Please go to
www.abeleeseminars.com and look at the schedule for live CE classes. You can sign up via the web and I will comp you. This is a busy year for CE because the real estate agents must take their CE classes to renew their licenses. This offer is good if there are seats available. If you have any questions re: the articles or anything else that I teach in my classes, you are welcome to call me at 216-4999 and there will be no charge.
