Now that Mayor Kirk Caldwell has signed Bill 20 into law, allowing accessory dwelling units in all residential areas, I’ll make a prediction: There are going to be a lot of unhappy homeowners across Oahu when they find out that they won’t be able to take advantage of the new law.
Here’s the problem. News coverage of the debate has focused on the broad coverage of the new bill, which applies to all areas that are zoned residential or country. In all of those areas, accessory units will now be allowed by the city zoning, with some restrictions.
But what wasn’t really clear in the coverage or discussion of the measure is that the change in zoning does not override restrictive covenants that apply in most planned communities, where they are enforced by a developer or a homeowners’ association.
There are six important words, missing in the news coverage, that appear in a new set of frequently asked questions just posted on the website of the Department of Planning and Permitting.
Here’s item #3.
3. Where can I build an ADU?
An ADU can be built on any lot zoned Residential (R-3.5, R-5, R-7.5, R-10, and R-20) or Country District with a lot area of 3,500 square feet (SF) or more provided that there is adequate infrastructure and subject to meeting all other Land Use Ordinance provisions for the zoning lot and there are no restrictive covenants.
Here in Kahala, for example, there are restrictive covenants that trace back to the original Bishop Estate leases in the area. Only single family homes are allowed on each lot, so no accessory units can be added here.
Mililani? Planned community, lots of rules. I’m guessing that most of the growing areas of Ewa and Kapolei are also subject to restrictions. If there’s a list of planned communities, and their community associations, I’m guessing that every place on that list will be off-limits for the new accessory dwelling units. And, further, I predict that homeowners will be blindsided by these restrictions, and will start putting pressure on their association boards to allow ADUs. This is likely to become a new policy battleground in neighborhoods around the island.
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I’m not a lawyer, and I have not seen the language in the Kahala restrictive covenant (nor any such covenant in any other area). However, I would guess that a freestanding small house in the backyard of a larger house would be acceptable so long as the new little house is in fact a “single family house.” Having its own kitchen, bathroom, and bedroom and onsite parking would seem to meet the definition of a single family home.
Here’s another way to look at it. The owner of a large parcel of land located in a neighborhood with a restrictive covenant would certainly have the right to subdivide his parcel to create several house lots, each with its own property deed (so long as each lot is large enough to satisfy the minimum square-footage and setback specified in the restrictive covenant), and then a single-family home could be built on each of the subdivided lots.
I have seen many so-called “flag lots” — an ordinary single-family house with frontage on a street has a second single-family house behind it whose only access to the street is a driveway (the flagpole) running from the street alongside the main house to the land in the back that belongs to the second house. Each house is fee-simple and the owners have no relationship to each other. The addresses are 46-255 Nanea St. and 46-255-A Nanea St. but A is freestanding and not merely an annex. At some point the owner of the original house decided to make money by subdividing to create the new house and endowed it with land in his backyard and a driveway for access, and a separate fee-simple deed.
The other big elephant: Will the city actually and consistently enforce prohibitions against turning new ADUs into illegal vacation rentals, in light of its failure (or choice to fail) to enforce similar long-existing prohibitions, which has effectively removed housing from the long-term rental market and fueled the housing crunch and homelessness crisis?
There are some requirements in the ADU bill that will make it easier for the City to enforce the prohibition which are lacking from the tools that they have to enforce the rules on Transient Visitor Units and Bed and Breakfast units. (Basically the TVU/B&B situation required an almost impossible level of proof to be sustainable in court.)
Like many things at the CCH, though, enforcement will still largely be complaint-driven so scofflaws renting these ADUs as TVUs or allowing on-street parking for ADU occupants will go their merry ways until or unless someone complains. Even then chances are good that DPP will find many “reasons” NOT to enforce this law before they actually investigate a complaint. Been there, seen it, have little hope things will be different.
Restrictive covenant enforcement can be owner v. owner, the city doesn’t need to get involved.
https://www.courtlistener.com/opinion/1290807/sandstrom-v-larsen/