Ohana Dwelling Unit - P&Z code

[Rob Tucker]

For those of you who like to read non-fiction:

Division 3. Ohana Dwellings.

Section 25-6-30. General provisions, applicability.
Ohana dwellings shall be permitted on a building site within the RS,RA, FA and A districts; provided that:
(a) The building site is a legal lot of record as determined by the director;
(b) Any building site which is within the State land use agricultural district shall be subject to agricultural requirements for farm dwellings as established by ordinance or by rule of the director, adopted pursuant to chapter 91, Hawaii Revised Statutes;
© All applicable provisions of this chapter are met, including but not limited to height limits, minimum yards and parking; and
(d) The following public facilities are adequate to serve the ohana dwelling unit:
(1) Sewage Disposal System. The building site shall be served by a public or private sewage disposal system. An adequate public sewage disposal system shall meet with the requirements of the department of public works and an adequate private sewage disposal system, cesspool or septic tank shall meet with the requirements of the State department of health.
(2) Potable Water Supply. The building site shall be served by an approved public or private water system meeting with the requirements of the department of water supply which system can accommodate the ohana dwelling and the main dwelling unit. An ohana dwelling that is not served by an approved public or private water system may use a water catchment system provided that the director determines that there is sufficient annual rainfall in the area to accommodate a water catchment system and water catchment system meets the requirements of the department of health and the department of water supply.
(3) Fire Protection. The building site shall be served by adequate fire protection measures meeting with the requirements of the fire department.
(4) Streets. The building site shall gain access to a public or private street meeting with the requirements of the department of public works.
(1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.)

Section 25-6-31. Eligibility for ohana dwelling permit.
(a) An application for an ohana dwelling permit on any building site shall only be accepted by the director after the completion of all subdivision improvements required by chapter 23 (subdivisions), for the subdivision in which the building site is located. For purposes of this subsection, "completion" means the construction of all of the subdivision improvements including the subdivision roads, drainage, water, and if applicable, wastewater systems, in accordance with approved construction plans, which improvements have been completed to the satisfaction of the chief engineer.
(b) Only one permit application for an ohana dwelling unit may be active for any one applicant at any time. Any applicant who has obtained an ohana dwelling permit shall not be eligible or apply for a subsequent ohana dwelling permit on any building site for a period of two years from the date on which the first ohana dwelling unit was completed to the satisfaction of the chief engineer. For purposes of this subsection, each titleholder and person named in an application for an ohana dwelling permit, pursuant to section 25-6-39(a)(2), shall be considered the applicant. The director shall maintain and keep readily available for public reference a current list of applicants for ohana dwelling units, including the dates of application and approval or denial.
(1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.)

Section 25-6-32. Prohibited areas.
Ohana dwelling units shall be prohibited in the following areas:
(a) Any building site within the State land use conservation district;
(b) Any building site developed under an affordable housing project approved by the State housing finance and development corporation (HFDC) and/or the County housing agency which has been granted pre- emptions from the requirements of this Code;
© Any building site developed as a planned unit development (P.U.D.) or a cluster plan development (C.P.D.);
(d) Any building site where more than one dwelling unit is permitted in the zoning district, including building sites that permit more than one dwelling unit in the RS district, building sites with duplex and multiple-family dwellings, care homes, family child care homes, group living facilities, and single-family dwellings which are transient vacation units;
(e) Any building site which is the subject of an approved variance from the provisions of this chapter or chapter 23 (subdivisions);
(f) Any building site on which the construction of an ohana dwelling or a second dwelling unit is specifically prohibited by a change of zone ordinance.
(1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.)

Section 25-6-33. Designation of the ohana dwelling unit.
(a) Regardless of the size of a building site, not more than one ohana dwelling unit shall be permitted on the same building site with the first single-family dwelling unit.
(b) The director may designate an existing, first single-family dwelling unit as an ohana dwelling unit in order to allow permitting of a new first single-family dwelling unit when such existing dwelling is the only dwelling unit on the building site and the dwelling unit complies or will be modified to comply with all the requirements of this division.
(1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.)

Section 25-6-34. Height limit.Except when the living areas of the ohana dwelling unit and the first dwelling unit are joined by a common wall, floor, or ceiling, the height limit for an ohana dwelling unit shall be twenty-five feet, regardless of whether a greater height limit is provided for the zoning district.
(1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.)

Section 25-6-35. Minimum building site area and yards.
(a) The minimum building site area for a building site containing both the first dwelling and the ohana dwelling unit shall be ten thousand square feet.
(b) The minimum front, rear, and side yard requirements for a detached ohana dwelling unit shall be the minimum yard requirements for the zoning district in which the building site is situated plus an additional five feet.© An ohana dwelling unit and a single-family dwelling unit may be constructed as a duplex (i.e., there is a common wall
or floor/ceiling).
(1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.)

Section 25-6-36. Guest houses.
A guest house, as described in section 25-4-9, shall not be permitted on any building site where an ohana dwelling unit has been permitted or constructed. If an
existing guest house is situated on a building site, an ohana dwelling unit shall not alsobe permitted on the building site. Provided, that an existing guest house may be converted into an ohana dwelling unit in accordance with the requirements of this division.
(1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.)

Section 25-6-37. Off-street parking spaces.
The number of parking spaces for an ohana dwelling unit shall be as provided under section 25-4-51.
(1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.)

Section 25-6-38. Variances prohibited.
No variance from either this chapter or chapter 23 (subdivisions), shall be granted to permit the construction or placement of an ohana dwelling unit on a building site. In addition, an ohana dwelling unit shall not be permitted on a building site for which a variance from either this chapter or chapter 23 (subdivisions), has already been granted.
(1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.)

Section 25-6-39. Application for ohana dwelling permit; requirements.
(a) An application form for an ohana dwelling permit shall be filed with the director on a form prescribed for this purpose by the director, and shall be accompanied by:
(1) A filing fee of $25;
(2) The names and addresses of all the owners of the building site, provided that when the property is owned by a corporation, association, partnership or trust, the names and addresses of all partners, director, officers, shareholders or beneficiaries holding a ownership or beneficial interest of at least ten more percent shall be included; and
(3) An affidavit, in the form prescribed by the director, verifying that there is no restriction or covenant applicable to the building site, contained in any deed, lease, or other recorded document, which prohibits the construction or placement of an ohana dwelling or a second dwelling unit on the building site.
(b) The applicant shall serve notice of the ohana dwelling permit application on surrounding owners and lessees of record as provided by section 25-2-4. The applicant
shall also serve notice on all owners of the property identified in the application who did not execute the application, and any known association of property owners which has jurisdiction or authority over the subdivision in which the building site is situated.
Proof of service of the notice, in the manner provided under section 25-2-4, shall be submitted together with the ohana dwelling permit application.
(1996, Ord. No. 96-160, sec. 2; ratified and amended April 6, 1999.)

Section 25-6-39.1. Action on ohana dwelling permit.
(a) Upon acceptance of an ohana dwelling permit application, the director shall forward the application to appropriate agencies for review and comment on the adequacy of those infrastructure facilities required for the ohana dwelling unit under section 25-6-30.
(b) Within a period of at least thirty days but not more than sixty days after acceptance of an ohana dwelling permit application, the director shall either approve or deny the application.
© If the director fails to render a decision within the prescribed sixty-day period, the application shall be considered as being approved.
(1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.)

Section 25-6-39.2. Building permit for an ohana dwelling.
(a) A building permit for the construction of an ohana dwelling unit shall be secured within one year from the date that the ohana dwelling unit permit was issued. A thirty-day time extension may be granted by the director if it can be demonstrated by the applicant that nonperformance was not the result of the applicant's fault or negligence. In the event that the applicant fails to secure a building permit for the construction of the ohana dwelling unit within the one-year time period, or any extension granted by the director, the ohana dwelling unit permit shall be void.
(b) The time extension provided for an ohana dwelling permit under subsection (a) above shall be the only time extension available to an applicant, and no further time extension shall be allowed. Further, the failure to obtain any further time extension of an ohana dwelling permit shall not be cause to petition the director, the commission or the board of appeals for relief from the time limitation for an ohana dwelling permit as provided under this section.
(1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.)

Section 25-6-39.3. Nontransferability of permit.
(a) A permit for an ohana dwelling unit shall be personal to the applicant and shall not be transferable or assignable to any other person until construction of the ohana dwelling unit has been completed and final approval has been issued by the chief engineer.
(b) No person shall advertise or represent to the public that a permit to construct an ohana dwelling unit is transferable with the sale of the property on which the permit has been granted.
(1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.)


Section 25-6-39.4. Pending applications.
All pending applications for ohana dwellings filed with the director prior to May 4, 1996 shall be processed in accordance with this division, with the exception of the filing fee. The director may require the applicant to submit additional information to comply with this division.
(1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.)

Section 25-6-39.5. Illegally constructed ohana dwellings.
In the event that an ohana dwelling unit is constructed contrary to the provisions of this division, with or without a permit therefor having been issued, the ohana dwelling unit, shall be considered unlawful and a public nuisance, and action or proceedings for abatement, removal and enjoinment of the unlawful ohana dwelling shall
immediately be commenced in accordance with this chapter.
(1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.)

Section 25-6-39.6. Revocation of an ohana dwelling permit.
(a) The director may initiate proceedings to revoke a permit for an ohana dwelling unit if:
(1) The applicant intentionally misrepresented a material fact in the permit application, including all attachments; or
(2) The applicant transferred or attempted to transfer an ohana dwelling unit permit issued by the director prior to completion of the construction of the ohana dwelling unit and final approval by the chief engineer.
(b) The director shall serve written notice of the proposed revocation on the applicant by registered or certified mail with return receipt.
© The applicant may, within thirty days after receipt of the proposed revocation notice, appeal the revocation notice to the board of appeals as provided by section 5-6.3 of the County Charter and sections 25-2-20 through 25-2-24 of this chapter. An appeal to the board of appeals shall stay the provisions of the director's order pending the final decision of the board of appeals.
(1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.)

Section 25-6-39.7. Appeals.
Any person aggrieved by the decision of the director in the issuance of an ohana dwelling permit decision, except for a decision regarding the duration of a permit under section 25-6-39.2, may appeal the director's action to the board of appeals, in accordance with this chapter, within thirty days after the date of the director's written decision.
(1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.)

Guest Houses:
Section 25-4-9. Guest houses.
One guest house may only be established on a building site that is at least seven thousand five hundred square feet in area. A guest house shall not exceed five hundred square feet in gross floor area, shall not be more than twenty feet in height, and shall not have a kitchen.
(1996, Ord. No. 96-160, sec. 2; ratified April 6, 1999.)

[puna_bound]

A county zoning person tells me that ohanas cannot be built (under permit) in the Puna areas zoned Agricultural. That would include HPP and Orchid Land. I believe Hawaiian Shores' CR&Rs do not allow for ohanas, either.

Edit. Just talked with someone there. You can have a guest house, which is defined as a studio (under 500 square feet) without a kitchen.





Edited by - puna_bound on 06/21/2007 16:01:11

[emorata]

Good to know that guest studio aka ohanas are still allowed, does anyone know if more than one guest studio is allowed, or do they have to be named something else like shed????

[emorata]

one way i heard of getting a larger secondary unit is to attach the rooflines to the main home so they are still connected so the 2nd unit can be any size as long as it does not have a kitchen, but it can be titled anything else "game room", "family room", bedroom"

didn't read the code completely above to see that only one guest unit is allowed per property....although if you tie most of these separate units to the main unit it would still be allowed, i'm sure you just have to put in the right titles to these rooms.

[missydog1]

as I understand it, an attached room (connected = attached, even if by breezeway) is simply an Addition. You can always make additions as long as you're within setbacks, why not? The addition can't be a separate dwelling unit.

Adding plumbing to the addition has to meet the requirements for tying it into the wastewater system.

I've been told by Planning that bar sinks with counters can be flagged as second kitchens because so many people have gone that route to create a second "illegal" kitchen/dwelling unit.

This is stuff I've picked up from talking to Planning about former properties I had. One can also build a detached garage and workshop on ag land.

Even the additional farm dwelling is not that hard. An ohana is a second dwelling for residential purposes, and not allowed, but an ADF is, I talked to them back in May and picked up the application. If you have enough ag activity and a decent plan you can have a second dwelling for someone who works with it, a partner, a family member.

What you cannot do is have no ag activity and build a rental.

[John S. Rabi]

Kathy is correct, as long as it's under one roof, it's just an addition. Just remember, you can not have more than five bedrooms on one waste water system. Additional Farm Dwelling is under the jurisdiction of the Planning Department and not the Building Department. You have to submit your AG plans there and once/if approved you submit your building plans to the Building Department.

Aloha,
John S. Rabi, ABR,CM,CRB,FHS,PB
http://www.JohnRabi.com
Typically Tropical Properties

[Kelena]

So let's say you have a 1500 square foot house, and above you have a 500 square foot studio (on the second floor) that is accessed independently (outside stairway). The land is zoned agricultural. There is sink to make drinks but no cooking surfaces. What have I created? An ohana? A guesthouse....or an addition that will need to be torn down at great expense.

[John S. Rabi]

Addition. Ohana Dwelling and Guuest House are separate structures.

Aloha,
John S. Rabi, ABR,CM,CRB,FHS,PB
http://www.JohnRabi.com
Typically Tropical Properties

[emorata]

What do you think the effect be of installing an outdoor kitchen that is either in the breezway = for outside dining purposes which alot of people want to do nowadays?

[John S. Rabi]

If it's a separate dwelling you need a permit. If it's just in the breezeway than you don't need a permit but you need a licensed plumber and electrician to do the work.

Aloha,
John S. Rabi, ABR,CM,CRB,FHS,PB
http://www.JohnRabi.com
Typically Tropical Properties