Rules for Keeping Nonconforming Lots, Buildings, and Uses

A. Nonconforming lots, structures, uses, and parking may be continued, subject to this section's provisions. B. Nonconforming lots. 1. A nonconforming lot may not be reduced in area, width, or depth, except by government action to further public health, safety, or welfare. 2. A nonconforming structure or use may be constructed, enlarged, extended, or moved on a nonconforming lot if all other requirements of this title are met. C. Nonconforming structures. 1. If a nonconforming structure 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 unless the reconstruction conforms with the provisions of this title; except that: a. A nonconforming structure that is a historic property as defined in chapter 6E, Hawaiʻi Revised Statutes, and a nonconforming structure devoted to a conforming use that contains multi-family dwelling units owned under the authority of chapter 514B, Hawaiʻi Revised Statutes, and whether the structure is destroyed by accidental means, including destruction by fire, other calamity, or natural disaster, may be restored to its former condition if the restoration is in compliance with title 16 and is started within two years. b. The burden of proof to establish that a structure was destroyed by accidental means as described in subparagraph (C)(1)(a) and that the structure was legally nonconforming is on the owner. c. Except as otherwise provided in this title, a nonconforming structure that is voluntarily razed or required by law to be razed by the owner may not be restored except in full conformity with the provisions of this title. d. On Lāna‘i and Maui, a nonconforming structure that is damaged or destroyed to an extent of more than 50 percent of its replacement cost by an emergency or disaster proclaimed by the governor or mayor to constitute a state of emergency or local state of emergency, respectively, under section 127A-14, Hawaiʻi Revised Statutes, may be repaired or reconstructed to its former nonconforming condition, if: i. The property with the former nonconforming structure is located within an area covered by the proclamation. ii. The repair or reconstruction is permitted in compliance with title 16 . The fire chief may require residential structures to exceed the standards of chapter 16.08A by imposing the requirements of chapters 16.25 and 16.26C , or portions of those chapters, as may be necessary to improve public safety. iii. The nonconforming structure is repaired, expanded, renovated, or altered in a manner that does not increase its nonconformity. iv. The property owner meets the burden of proof to establish the nonconforming portion of the structure existed before the emergency or disaster. Evidence supporting the property owner's burden of proof is subject to review and approval by the director. v. The building permit must be obtained, the repair or reconstruction completed, and the final inspection of the nonconforming structure issued: aa. Within four years of the initial date of the governor's or mayor's proclamation, whichever occurred first; or bb. By April 1, 2029, for structures affected by the August 2023 Maui wildfires. The director may grant a two-year extension of the deadline for good cause if the structure is within a historic district or within the special management area, or both. 2. A nonconforming structure repaired or reconstructed under subparagraph (C)(1)(d) will continue to be nonconforming upon completion and will be subject to all other requirements of this section. 3. If a nonconforming structure is moved, it must conform to the provisions of this title. 4. A nonconforming structure may be repaired, expanded, renovated, or altered in a manner that does not increase its nonconformity. D. Nonconforming uses. Except for those nonconforming uses on Lāna‘i and Maui affected by emergency or disaster under subsection E, all nonconforming uses must comply with the following: 1. A nonconforming use may not extend to a part of the structure or lot that was not arranged or designed for the use at the time the use became nonconforming. 2. A nonconforming use that is discontinued for twelve consecutive months may not be resumed. 3. Work may be done on a structure devoted in whole or in part to a nonconforming use if the work is limited to ordinary repairs, including repair or replacement of walls, fixtures, wiring, or plumbing. Further, the work may not exceed 50 percent of the current replacement cost of the structure within a twelve-month period, and the floor area of the structure, as it existed at the time the nonconforming use was created, may not be increased. 4. A nonconforming use may not be changed to another nonconforming use. E. Nonconforming uses affected by emergency or disaster on Lāna‘i and Maui. Nonconforming uses that were discontinued because of an emergency or disaster proclaimed by the governor or mayor to constitute a state of emergency or local state of emergency, respectively, under section 127A-14, Hawaiʻi Revised Statutes, may continue if: 1. The property owner meets the burden of proof to establish the nonconforming use existed before the disaster. Evidence supporting the property owner's burden of proof is subject to review and approval by the director. 2. If the nonconforming use occurred in a structure that was damaged or destroyed by the emergency or disaster: a. The nonconforming use must be reestablished: i. Within four years of the initial date of the governor's or mayor's proclamation, whichever occurred first, within the structure that has been repaired or reconstructed in compliance with title 16 ; or ii. By April 1, 2029, for nonconforming uses affected by the August 2023 Maui wildfires. The director may grant a two-year extension of the deadline for good cause if the nonconforming use is within a historic district or within the special management area, or both. b. As determined necessary to improve public safety, the fire chief may require the relocation of an area of nonconforming use to a more suitable portion of a lot or structure. The property owner bears the burden of proof to establish that a structure or use area will not increase a nonconforming use. Evidence supporting the property owner's burden of proof is subject to review and approval by the director. 3. If the nonconforming use did not occur within a structure that was damaged or destroyed by the emergency or disaster, but was otherwise discontinued by the emergency or disaster, the nonconforming use may continue if the nonconforming use: a. Occurred within the specific area of the emergency or disaster. b. Was discontinued because of a lack of access or lack of business activity directly resulting from the emergency or disaster. c. Is reestablished: i. Within four years of the initial date of the governor's or mayor's proclamation, whichever occurred first; or ii. By April 1, 2029, for nonconforming uses discontinued by the August 2023 Maui wildfires. The director may grant a two-year extension of the deadline for good cause if the nonconforming use is within a historic district or within the special management area, or both. 4. A nonconforming use may not be changed to another nonconforming use. 5. An inspection which may be required to verify compliance with title 16 must be completed before occupancy. Upon reestablishment of the nonconforming use, the use will still be considered nonconforming and will be subject to all other requirements of this section. F. Nonconforming parking and loading. 1. If there is a change in use of a structure or lot or a portion of a structure or lot, the area of the new use must meet the off-street parking and loading requirement established in chapter 19.36B . 2. A use that adds floor area must provide off-street parking and loading for the additional area as required by chapter 19.36B . 3. A nonconforming parking or nonconforming loading may be repaired, expanded, or altered in a manner that does not increase its nonconformity. G. Nonconforming transient vacation rental uses; exception. Notwithstanding subsection E, nonconforming transient vacation rental uses that were discontinued for twelve consecutive months or more because the transient vacation rental was within a structure that was damaged or destroyed in an emergency or disaster may not be resumed. This subsection does not apply to nonconforming transient accommodations occupied by the owner. For purposes of this subsection, "transient accommodations" has the same meaning as in section 237D-1, Hawaiʻi Revised Statutes. ( Ord. No. 5780 , § 3, 2025; Ord. No. 4921 , § 19, 2018; Ord. 2032 § 5 (part), 1991)