HomeMy WebLinkAboutCOM 1480.016 2006-2008Harry Kim
Mayor
l'1.IILltC~~1 II~ ~tt~lTttt~t
DEPARTMENT OF PUBLIC WORKS
Aupuni Center
101 Pauahi Street, Suite 7 ~ Hilo, Hawaii 96720-4224
(808)961-8321~Fax (808)961-8630
www.co.hawaii.hi.us
October 30, 2008
THE HONORABLE PETE HOFFMANN, COUNCIL CHAIRPERSON
AND MEMBERS OF THE COUNTY COUNCIL
HAWAII COUNTY COUNCIL
COUNTY OF HAWAII
HILO, HI 96720
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SUBJECT: BILL 373 (DRAFT 2 RAMSEYERED) TO AMEND CHAPTER 10, RELATING
TO EROSION AND SEDIMENTATION CONTROL OF THE HAWAII
COUNTY CODE
Please replace the Bill 373 (Draft 2), forwarded to you on October 9, 2008 with the enclosed. Please
accept my apologies to you and the Council for not submitting the Drafr 2 in ramseyered format.
APPROVED:
BRUCE C. McCLURE, PE
Director of Public Works
HARRY KIM
Mayor, County of Hawaii
Enclosure: Ramseyered Bill 373 Drafr 2
cc: Eng (Hilo & Kona)
County of Hawaii is an Equal Opportunity Provider and Employer
Bruce C. McClure
Director
Comm; No. ~ O ~ , ~(o
Ref. To: uJ /
Ref. Dote NOV 1---- 0--~~_
COUNTY OF HAWAII
STATE OF HAWAII
BILL NO. 373 Draft 2
ORDINANCE NO.
AN ORDINANCE AMENDING CHAPTER 10, EROSION AND SEDIMENTATION
CONTROL, HAWAII COUNTY CODE 1983 (2005 EDITION, AS AMENDED).
BE TT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII:
SECTION 1. Chapter 10, Hawaii County Code 1983 (2005 edition, as amended), is
hereby repealed in its entirety.
SECTION 2. The Hawaii County Code is amended by adding a new Chapter 10, which
shall read as follow:
"Chapter 10
EROSION AND SEDIMENTATION CONTROL
Article 1. General Provisions.
Section 10-1. Purpose.
The purpose of this chapter is to provide minimum standards to protect property, promote
public health, safety and welfare, and to preserve and enhance the natural environment, including
water quality, by regulating grubbing and grading operations and controlling soil erosion and
sedimentation in construction and in agricultural operations within the County.
Section 10-2. Definitions.
Whenever used in this chapter, the following words shall have the meaning indicated:
"Agriculture" or "Agricultural operations" means the care and production of livestock,
livestock products, poultry or poultry products, aquaculture or aquaculture products, apiary,
horticultural, agronomical or floricultural products or the planting, cultivating and harvesting of
crops or trees, including tree farms to produce the same. Agricultural production may include
but not be limited to land preparation in accordance with acceptable conservation practices.
"Best management practices" or "BMPs" mean schedules of activities, prohibitions or
designations of practices, maintenance procedures, and other management practices to prevent or
reduce the pollution of State waters. Best management practices include treatment requirements,
operating procedures, and practices to control site runoff.
"Burial site" means any burial site, as defined in section 6E-2, Hawaii Revised Statutes,
which has been recorded in an archaeological survey of the property or is otherwise known to the
owner.
"Conservation Plan" means a document submitted by a landowner or land user,
containing information for the conservation of soil, water, vegetation and other applicable natural
resources for an area of land to be used for agricultural operations, and not adversely affecting
the watershed. The conservation plan shall include appropriate monitoring and reporting
provisions for the scheduled activities.
"Conservationist" means an employee of the U. S. Department of Agriculture Natural
Resources Conservation Service (MRCS) or the soil and water conservation district or an NRCS
certified Technical Service Provider with background and training to recommend conservation
practices on agricultural land under the guidance of the local NRCS engineer.
"Contractor" means any individual, firm, corporation, partnership or other responsible
legal entity who performs grading, grubbing or stockpiling work under a contract.
"Engineer" means a professional engineer (civil or structural) licensed in the State of
Hawaii.
"Engineer's soils report" means a report that describes soil conditions with grading and
construction recommendations applicable to the soil conditions and other pertinent information
relevant to this chapter prepared by an engineer experienced in the practice of soil mechanics and
foundation engineering.
"Erosion" means the weazing away of the ground surface as a result of action by wind
and/or water.
"Excavation," "cut" or "borrow" means any act by which soil, sand, gravel, rock or any
similar material is cut into, dug, uncovered, removed, displaced, relocated or bulldozed.
"Fill" means ariy act by which soil, sand, gravel, rock or any other material is deposited,
placed, pushed, dumped, pulled, transported, or moved to a new location.
"Grading" means any excavation or fill or any combination thereof.
"Grubbing" means any act by which vegetation, including trees, timber, shrubbery and
plants, is dislodged or uprooted from the surface exposing bare ground.
"Historic and archaeological sites" mean those sites listed with the County general plan,
the Hawaii Register of Historic Places, the State Inventory of Historic Places or any historic
property, as defined in section 6E-2, Hawaii Revised Statutes, which has been recorded in an
archaeological survey of the property or is otherwise known to the owner.
"Land surveyor" means a person duly licensed as a professional land surveyor in the
State.
"Maximum extent practicable" means economically reasonable measures for the control
of the addition of sediments from non-point sources, which reflect the greatest degree of
sediment reduction achievable through the application of the best available non-point
sedimentation control practices, technologies, processes, siting criteria, operating methods or
other alternatives.
"National pollutant discharge elimination system permit" or "NPDES permit" means an
authorization, license, or equivalent control document issued by .the U.S. Environmental
Protection Agency or the director of health, State of Hawaii, to implement the requirements of
40 CFR Parts 122, 123, and 124. NPDES permit includes an NPDES general permit according
to 40 CFR §122.28 and a notice of general permit coverage or "NGPC," as the context requires.
NPDES permit does not include any permit which has not yet been the subject of final agency
action, such as a draft permit.
"Overburden" means a soil material overlaying another geologic formation.
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"Permittee" means the person or party to whom the permit is issued and shall be the
property owner and/or developer of the property including but not limited to any lessee,
attorney-in-fact or other person, firm, corporation, partnership, limited liability company, or
other legal entity with the right to use and occupy the property.
"Person" means an individual, firm, corporation, partnership or other responsible legal
entity.
"Plasticity" means the property of a soil which allows it to be deformed beyond the point
of recovery without cracking or appreciable volume change.
"Public utility" means any utility regulated by the State Public Utilities Commission.
"Sedimentation" means the deposition of erosional debris-soil sediment displaced by
erosion and transported by water from a high elevation to an azea of lower gradient whete
sediments aze deposited as a result of slack water.
"Soil and water conservation districts" means the legal subdivisions of the State of
Hawaii authorized under chapter 180, Hawaii Revised Statutes.
"Stockpiling" means the temporary storage of soil, sand, gravel, rock or other similar
material in excess of five hundred cubic yards upon any premises for the purpose of using the
material as fill material at some future time.
Section 10-3. Minimum BMPs.
Regardless of whether a permit is required pursuant to this chapter, all grading, grubbing
and stockpiling activities shall provide BMPs in accordance with erosion and sedimentation
control standards and Guidelines established by the department of public works to the maximum
extent practicable to minimize erosion and to prevent damage by sedimentation to streams,
watercourses, undisturbed areas and the property of others. It shall be the permittee's and/or the
property owner's and/or contractor's responsibility to ensure that the BMPs are satisfactorily
implemented and maintained.
(a) Runon and runoff [I~,e€fJ control. Off-site runon and on-site [8~t-site] runoff shall be
managed in such a way so as to control erosion to prevent damage to downstream
properties and to return waters to the natural drainage [eet~se] atterns to the maximum
extent practicable.
(b) Dust control. All work azeas within and [ivithext] outside the actual grading azea shall be
maintained free from fugitive dust which will cause a nuisance or hazard to others in
conformance with the air pollution control standards contained in Hawai `i Administrative
Rules, chapter 11-60, "Air Pollution Control," as may be amended.
(c) Vegetation. Whenever feasible, natural vegetation, especially grasses, should be
retained. If it is necessary to be removed, trees, timber, plants, shrubbery and other
woody vegetation, after being uprooted, displaced or dislodged from the ground by
excavation, clearing or grubbing, shall not be stored in or deposited along the banks of
any stream, river or natural watercourse.
(d) Erosion controls. All disturbed areas subject to erosion shall be addressed with erosion
control measures in accordance with erosion and sedimentation control standards and
guidelines established by the department of public works. Erosion control measures may
include but are not limited to: staging construction; clearing only areas essential for
construction; locating potential non-point pollutant sources away from steep slopes, water
bodies, and critical areas; routing construction traffic to avoid existing or newly planted
vegetation; protecting natural vegetation with fencing, tree armoring, and retaining walls
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or tree wells; stockpiling topsoil, covering the stockpile to prevent dust, and reapplying
the topsoil; covering or stabilizing all soil stockpiles; using wind erosion control;
intercepting runoff above disturbed slopes and conveying it to a safe place to deposit and
receive such waters; constructing benches, terraces, or ditches at regular intervals to
intercept runoff on long or steep disturbed or man-made slopes; providing linings or other
method to prevent erosion of storm water conveyance channels; using check dams where
needed to slow flow velocities; and using seeding and fertilizing, mulching, sodding,
,matting, blankets, bonded fiber matrices, or other effective soil erosion control technique
A ««....: A:«.. ~~1.:..10 ...heel .......1. F ..:1 a: e.. F ,. ..el.:..l e.. l.eF «e A. e.. le....,. 1. ]
[~ u.... Y.v .... ..F,
(e) Sediment control. In addition to the erosion control measures above, provide practices to
capture sediment that is transported in runoff to prevent the sediment from leaving the
site in accordance with erosion and sedimentation control standards and euidelines
established by the department of public works. Filtration and detention (gravitational
settling) are the main processes used to remove sediment from construction site runoff.
Sediment control measures include sediment basins; sediment traps; filter fabric silt
fences; straw bale, sand bag, or gravel bag barriers; inlet protection; stabilized
construction entrances, vehicle wheel wash facilities and other measure to minimize
off-site tracking of sediment by construction vehicles; and vegetated filter strips.
(f) Material and waste management. Measures to ensure the proper storage of [tex-iE
xiate~ial] potential pollutants and prevent the discharge of pollutants associated with
construction materials and wastes shall be implemented.
(g) Timing of control measure implementation. Timing of control measure implementation
shall be in accordance with the approved erosion control plan if such plan is required. At
a minimum, when there aze no approved erosion control plans, disturbed areas of a
construction site that will not be redisturbed for 21 days or more will be stabilized
(grassed, graveled or other measures) by no later than the 14th day after last disturbance.
Section 10-4. Hazardous conditions.
(a) Whenever the director of public works determines that any existing excavation, fill,
grubbing, stockpiling or grubbed vegetation has become a hazard to property, or
adversely affects the safety, use, or stability of a public way or drainage channel, the
owner of the property upon which the excavation, fill, grubbing, [er] stockpiling or
grubbed vegetation is located, or other person or agent in control of said property [~tpen
..,.,eipt ~f ^~t:c........it:.b a.,, «he a: ,.«,. ,.r «..ht: ..1...] shall [; ,:,/.: ,h ~ a
.~oa
spec-i€ed-therein,] repair or eliminate the hazard and be in conformance with the
requirements of this chapter.
(b) The director of public works or the director's authorized representatives are hereby
authorized to enter any property to determine or to enforce the provisions of this chapter:
Section 10-5. Agricultural Operations.
(a) Agricultural operations, including ranching incidental to or in conjunction with crop or
livestock production, that conform with soil conservation practices and are in accordance
with an actively pursued comprehensive conservation plan, prepared by an [~]
engineer or conservationist, shall be exempt from the provisions of this chapter provided:
(1) Such operations do not alter the general and localized drainage patterns with
respect to abutting properties based on best available information.
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(2) The conservation plan for the affected properties have been reviewed and
approved by the applicable soil and water conservation district directors.
(3) The conservation plan,. including any approved modifications, is reviewed and
reapproved by the applicable soil and water conservation district directors not less
than once every five years.
(4} The conservation plan for a property shall terminate upon transfer of ownership of
the property unless the new owner applies to and is accepted as a cooperator by
the applicable soil and water conservation district.
(b) This section shall not [e*errtpt] be applicable for the construction of [perrnexent
.,.,..,n. ,.,...va] infrastructure [ ,.~»a: ~.~.,., ..,~a,. ww_~a: .d othe..,....i~
, ~ ::b w .,, ., ..g~,
e..,.. a ..... .. .....:......:..........:.......e .. ,.F.,,:.. ,.,..._..._ ....a ......] that is
.::pr.,.
required to comply with County buildine, zoning, State of Hawaii NPDES and/or other
County, State or Federal [reguirements] regulations unless otherwise excluded by Section
10-6.
(c) Should the soil and water conservation district directors find that an agricultural operation.
is not in conformance with its approved conservation plan; the district directors shall
immediately notify the director of public works. Upon receipt of the notification, the
director of public works shall issue a notice of violation and implement applicable
provisions of Article 5 of this chapter, to enforce compliance with this section.
Section 10-6. Exclusions.
(a) All work in this section must conform to the provisions of sections 10-3 and 10-38 to be
considered for exclusion. Exclusions do not relieve anyone of their responsibility to
secure all other applicable County, State or Federal permits including, but not limited to,
those described in section 10-12(b).
(b) This chapter shall not apply to the following:
(1) Mining or quarrying operations regulated by other County ordinance or
governmental agencies.
(2) Excavation within the building lines for basements and footings of a building,
retaining wall, or other structure, authorized by a valid building permit.
(3) Grading and grubbing on individual cemetery plots.
(4) Sanitary land filling and similar solid waste disposal facilities with an approved
operating permit from the State of Hawaii Department of Health.
(5) Excavation which does not alter the general drainage pattern with respect to
abutting properties, which does not exceed one hundred cubic yards of material
on any one site, and does not exceed five feet in vertical height at its highest
point; provided that the cut meets the cut slopes and the distance from property
lines requirements in article 4 of this chapter.
(6) Fill which does not alter the general drainage pattern with respect to abutting
properties, which does not exceed one hundred cubic yards of material on any one
site and does not exceed five feet in vertical depth at its deepest point, provided
that the fill meets the fill slopes and distance from property lines requirements in
article 4 of this chapter.
(7) Grubbing which does not alter the general and localized drainage pattern with
respect to abutting properties and does not exceed a total area of one acre.
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(8) Exploratory excavations not to exceed fifty cubic yards under the direction of an
engineer for the purpose of subsurface testing provided that the director of public
works has been advised in writing a minimum of ten calendar days prior to the
start of such excavation.
(9) Clearing, excavation and filling required in conjunction with the installation
and/or maintenance of septic tanks, dry welts, poles for overhead public utilities,
street lighting, traffic signal systems and trenching for underground public
utilities, public water and sewer systems and temporary BMPs.
(10) Grading, grubbing or stockpiling work wholly regulated by any of the following
permits: Stream channel alteration permit; Department of the Army permit;
permit to work within State Highway or County right-of--ways; and well drilling
permits.
(11) Grubbing of trails for survey lines and access for soil exploration equipment.
Article 2. Permits.
Sectiou 10-7. Required.
Except as excluded in section 10-6: .
(a) No grading work shall be commenced or performed without a grading permit.
(b) No grubbing work shall be commenced or performed without a grubbing permit except
where grubbing concerns land for which a grading permit has been issued.
(c) No stockpiling work shall be commenced or performed without a stockpiling permit,
except where stockpiling is on land for which a grading permit has been issued and
stockpiling areas are shown on the approved grading plan.
Section 10-8. Application.
(a) An applicant for a grading, grubbing, or stockpiling permit shall first file an application
on a form furnished by the County department of public works. An application may be
made on behalf of the prospective pennittee by its contractor or other authorized agent.
Each application shall:
(1) Describe by tax map key number or street address the land on which the proposed
work is.to be done;
(2) State the estimated dates for the starting and completion of the proposed work;
and
(3) Show the name of the permittee, owner, engineer, surveyor or other person
preparing the plans as may be applicable, and contractor.
(4) Be reviewed and approved by the State of Hawaii Historic Preservation Division
for compliance with chapter 6E, Hawai`i Revised Statutes, and other applicable
regulations and laws.
(5) Be reviewed and approved by the County of Hawaii planning department for
compliance with the County general plan and applicable land use regulations and
laws. No approval will be granted unless the director of the planning department
determines that:
(A) The proposed work implements a legal use of the property; or
(B) Is an approved remedial action.
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(b) Each application for a grading permit shall also be accompanied by three sets of plans
and specifications prepared by an engineer or land surveyor ['~°°~°°a ~~ '''° c.°,° ,.r
f-lawa~i], including:
(1) For all areas:
(A) A vicinity sketch or other data adequately indicating the site location;
(B) Boundary lines of the property on which the work is to be performed;
(C) Location of any buildings, structures, designated or otherwise known
historic, burial and archaeological sites, preservation buffer zones and/or
easements, known previous grading and grubbing sites, lazge trees,
definable rock outcroppings, lava tubes, and other significant topographic
features on the property where the work is to be performed;
(D) Location of any buildings [;] and structures [, a°°~'-~°'°a °- °'''°~°~°°
v~,...m w:°.°.:,. ~..._:°i ~a ..,.,.°,.,.,,.,.:°°i °:,,...] on adjacent property
which is within fifteen feet of the area to be graded that may be affected
by the grading work;
(E) Contours, elevations and cross-sections showing the topography of the
land before and after the completion of the proposed grading.
(F) Contours showing the topography of the existing ground extending five
feet into adjacent property when required by the director of public works.
(G) Location of known water courses;
(H) Location of temporary and permanent BMPs;
(I) The area in square feet of the land to be graded and the quantities of
excavation and fill involved; and
(J) Any additional plans, drawings, or calculations required by the director of
public works.
(2) For grading of areas of more than fifteen thousand square feet an erosion and
sedimentation control plan shall be prepared by an engineer and approved by the
director of public works. This plan shall include detailed plans, and specifications
of all drainage devices and utilities, including bank protection, walls, cribbing,
dams, silting or sediment basins, landscaping,. screen planting, erosion control
planting, or other BMPs or protective devices to be constructed in connection
with, or as a pazt of the proposed work, together with a map showing the drainage
area and estimated runoff of the area served by any drains.
(3) Where a proposed cut or fill is greater than fifteen feet in height, or on land with
slopes exceeding fifteen percent in an azea with high plasticity soils, or when any
fill is to be placed over a swamp, pond, gully, or lake, the permittee shall submit
an engineer's soils report which shall include data regazding the nature,
distribution and strength of existing soils and substantiating data from an engineer
regazding the safety of the proposed grading, the fill, and the material to be used,
and describing the cut sections showing the height, cut slope, benches, and
material composing the cut bank.
(c) An applicant for a grubbing permit shall furnish three sets of plot plans showing
the location, the property boundaries, and any other pertinent information as may
be required by the director of public works. Grubbing or land cleazing by
bulldozer for the purpose of making topographic survey shall not be permitted
without an authorized grubbing permit. For grubbing more than one acre, an
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erosion and sedimentation control plan shall be prepared by an engineer and
approved by the director of public works. This plan shall include detailed plans,
and specifications of all drainage devices and utilities, including bank protection,
walls, cribbing, dams, silting or sediment basins, landscaping, screen planting,
erosion control planting, or other BMPs or protective devices to be constructed in
connection with, or as a part of the proposed work, together with a map showing
the drainage area and estimated runoff of the area served by any drains.
(d) An applicant for a stockpiling permit shall furnish three sets of plot plans showing the
property lines and the location of the proposed stockpile, quantities, height of stockpile,
duration of stockpile, source, and type of the material to be stockpiled and furnish any
other pertinent information as may be required by the director of public works to control
the creation of dust, drainage, or sedimentation problems. The plot plan for stockpiling
shall be approved by the director of public works.
(e) If no action (approval, disapproval, deferral, or modification) is taken by the director of
public works within thirty days after submittal of the completed application (including
approvals from other agencies as needed), the permit shall be deemed approved.
Section 10-9. Fees.
(a) Before issuing a grading permit, the director of public works shall collect a permit fee for
grading on the same site based on the volume of excavation or fill, whichever is greater,
according to the following schedule:
Volume of Material
Permit Fee
0 - 1,000 cubic yards ....................................$15 per 100 cubic yazds.
1,001 -10,000 cubic yards ...........................$150 for the first 1,000 cubic yards plus $15
for each additional 1,000 cubic yards or
fraction thereof.
10,001 cubic yards or more .......................... $285 for the first 10,000 cubic yazds plus $9
per 1,000 cubic yards or fraction thereof.
(b) Before issuing a grubbing permit, the director of public works shall collect a permit fee of
$30 for grubbing in excess of one acre, plus $20-for each additional acre or fraction
thereof.
(c) Before issuing a stockpiling permit, the director of public works shall collect a permit fee
of $15 for stockpiling in excess of the first one hundred cubic yards, plus $3 for each
additional one thousand cubic yards or fraction thereof.
(d) When grading, grubbing, or stockpiling is performed by or on behalf of the County, State,
or Federal govenunent, the director of public works shall waive the collection of any
permit fee required in subsections (a), (b), and (c) above.
(e) All permiffees shall be deposited in the general fund.
Section 10-10. Grading, grubbing or stockpiling without a permit.
(a) Where work for which a grading, grubbing or stockpiling permit is required by this
chapter is started or proceeded with before obtaining the permit, the fees shall be doubled
or increased by an additional $200, whichever is greater, as a minimum penalty for
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~. ~
noncompliance with the permit requirements of this chapter. Payment of this penalty
shall not relieve any person from fully complying with the requirements of this chapter in
the execution of the work nor from any other penalties prescribed herein.
(b) The owner and developer of the property and/or the person or persons responsible for the
initiation of grading, grubbing or stockpiling shall be responsible for correcting any
damages done by the grading, grubbing or stockpiling on-site or off-site.
(1) Off-site corrections and restoration shall include, but not be limited to, repair of
damages to improvements within the public right-of--way, to any portions of the
County-owned or privately owned storm drainage systems or natural resources
such as streams, wetlands, or reefs and will include the removal of any sediment
and debris from these azeas.
(2) On-site corrections and restoration shall include covering of exposed soil surfaces
with planting, and correction of improper grading, grubbing or stockpiling, and
drainage.
(c) In the event that the person or persons responsible do not or cannot satisfactorily perform
restoration to comply with the provisions of this chapter, they shall post a performance
bond in an amount sufficient, as determined by the director of public works, to ensure
payment of all costs of restoring the land to its original condition, and for repair of any
damages which may have occurred to any improvements in the public right-of--way.
Such performance bond shall be subject to the requirements of section 10-11, paragraphs
(c) to (e) and'shall be maintained in force for a period up to one year to ensure the
establishment of adequate ground cover and completion of the restoration work. No
certificate of completion for said work shall be issued by the director of public works
without satisfactory completion of the restoration work.
Section 10-11. Bond.
(a) Bond required. A grading or stockpiling permit shall not be issued for any cut, fill or
stockpiling involving quantities more than one thousand cubic yards or for excavations or
fills over fifteen feet in vertical height, or for work being done in increments of one
thousand cubic yards or less, which is part of a larger development unless the permittee
shall first file a bond for the benefit of the County of Haivai`i.
(1) If the proposed grading or stockpiling is to be performed under a subdivision
agreement and bond approved and accepted by the County in compliance with
Chapter 22 of the Hawaii County Code or under a County, State or Federal
government contract, then the director of public works shall not require a bond for
grading or stockpiling. A copy of the approved and accepted subdivision
agreement and bond shall be presented as evidence by the applicant for a grading
or stockpiling permit.
(2) At the option of the applicant, the applicant may either file a bond guazanteed by a
surety company duly authorized to transact business within the State, or the
applicant may deposit cash or letter of credit in lieu of a bond. No interest shall
be paid by the County on such cash deposit. The provisions herein relating to a
surety bond shall be equally applicable to a cash deposit pledged as a bond.
-9-
(b) Amount of bond. The amount of the bond shall be based on the number of cubic yards of
material in excavation, fill, or stockpiling, whichever is the greatest volume. The amount
of the bond shall be computed as set forth in the following schedule:
Volume of Material Permit Bond
10,000 cubic yazds or less .............................. $8 per cubic yard.
Over 10,000-100,000 cubic yards ...............$80,000 plus $3 per cubic yard for each
additional cubic yazd in excess of 10,000.
Over 100,000 cubic yards ..............................$350,000 plus $1 per cubic yard in excess of
100,000.
(c) At the option of the applicant, the applicant may file a bond in an amount equal to the
cost of all work and services required to complete all of the work under the grading or
stockpiling permit as approved by the director of public works. Cost estimates prepared
by the permittee shall be subject to approval of the director of public works to determine
the exact amount of the bond.
(d) Conditions. The bond shall be conditioned to be payable to the County upon failure of
the permittee to complete all of the required work within the specified time. The director
of public works shall collect the moneys from the bond and complete the necessary work
to control soil erosion and sedimentation or all unfinished work required by the permit.
The parties executing the bond shall be firmly bound to pay for this entire cost. Any
remaining sum should be returned to permittee.
(e) Additional conditions. Each bond shall provide that the surety shall be held and firmly
bound unto the County for so long as the following conditions have not been met:
(1} The permittee shall comply with all of the terms and conditions of the permit to
the satisfaction of the director of public works;
(2) The permittee shall complete all of the work authorized under the permit within
the time limit specified in the permit; and
(3) The surety company shall not terminate or cancel said bond until notified in
writing by the director of public works of any termination or cancellation.
(f) Period and termination of bond. The term of each bond shall begin upon the date of
issuance of the permit and shall remain in effect until the completion of the work to the
satisfaction of the director of public works. An amount equal to one-third of the bond
may be retained for a period of six months after completion. Such completion shall be
evidenced by a certificate signed by the director of public works. In the event of failure
to complete the work or failure to comply with all of the conditions and terms of the
permit, the director of public works may order the work to be completed as required by
the permit and to the satisfaction of the director of public works. The surety executing
such bond or the cash depositor, shall continue to be firmly bound under a continuing
obligation for the payment of all necessary costs and expenses that may be incurred or
expended by the County, in causing any and all of such required work to be done, and
said surety and the permittee assents to the completion of the work even though it is
performed after the time allowed in the permit. Upon completion of such work by the
County, the bond shall be terminated. In the case of a cash deposit, such a deposit or any
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unused portion thereof not required to complete the work authorized by the permit shall
be refunded to the pennittee.
Section 10-12. Conditions and limitations.
(a) The issuance of a grading permit shall constitute an authorization to do only that work
which is described on the permit and on the plans and specifications approved by the
director of public works.
(b) Permits issued under the requirements of this chapter shall not relieve the permittee of the
responsibility for securing required permits for work to be done which is regulated by any
other County, State, or Federal agency, including approvals of permits which may be
required under chapters 6E, 205, 205A and 343, Hawaii Revised Statutes.
(c) In the event the area to be graded requires an NPDES permit, approval of the NPDES
permit may be obtained after the approval of the Grading application: however, the
Grading plans, including anv drainaGe and erosion control plans, shall conform to the
conditions of the approved NPDES permit. In case of conflictinG requirements, the most
restrictive shall apply.
(d [e]) A copy of the permit issued shall be posted in a conspicuous place on the site at or near
the property boundary adjacent to an accessible road bordering the property during the
~ progress of work.
(e [d]) In granting any permit under this chapter, the director of public works may attach such
conditions as may be reasonably necessazy to prevent creation of a nuisance or hazazd to
public or private property. Such conditions may include, but shall not be limited to:
(1) Improvement of any existing grading to bring it up to the standards of this
chapter;
(2) Requirements for fencing of excavations or fills which otherwise would be
hazardous; '
(3} Screen planting, landscaping, erosion control planting, or other treatments to
maintain good appearance of graded azea and reduce the detrimental impact on
adjacent properties of the community;
(4) Cleaning up the area; and
(5) Days and hours of operation.
Section 10-13. Expiration.
Every grading, grubbing or stockpiling permit shall expire and become void no later than
two years after the date of issuance. All stockpiled material temporarily stored on the premises
shall be removed from the premises or used on the premises as fill material under a grading
permit for fill prior to the expiration date.
Section 10-14. Denial.
(a) If the director of public works finds that the work as proposed by the applicant is likely to
cause hazardous conditions that may endanger any property or public way or structure or
endanger the public health or welfare, the director shall deny the grading, grubbing or
stockpiling permit. Factors to be considered in determining probability of hazardous
conditions shall include; but not be limited to, possible geological instability caused by
saturation of the ground by rains, earth movements, geological or flood hazards,
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subsurface conditions such as the stratification and faulting of rock and the nature and
type of soil or rock.
(b) Failure of the director of public works to observe or recognize hazardous conditions or
the director's failure to deny the grading, grubbing or stockpiling permit shall not relieve
the permittee or the permittee's agent from being responsible, or cause the County, its
officers or agents, to' be held responsible for the conditions or damages resulting
therefrom.
Section 10-15. Suspension or revocation.
(a) The director of public works may, in writing, suspend or revoke a permit issued under the
provisions of this chapter whenever:
(1) The permit has been issued on the basis of incorrect or insufficient information
supplied by the permittee;
(2) The grading, grubbing, or stockpiling is not being performed in accordance with
the terms and provisions of the permit; or
(3) The grading, grubbing, or stockpiling discloses objectionable or unsafe
conditions.
(b) When a permit has been suspended or revoked, the pennittee shall submit detailed plans
and proposals for compliance with the provisions of this chapter and for correcting the
objectionable or unsafe conditions. Upon approval of such plans and proposals by the
director of public works, the director may authorize the permittee in writing, to proceed
with the work.
Section 10-16. Construction prohibited prior to grading.
Whenever a grading permit is required by this chapter, construction of any structure
within the graded area shall not commence until a grading permit has been issued in accordance
with this chapter or the director of public works has otherwise authorized portions of
construction to proceed.
Section 10-17. Inspections.
(a) Each permit issued under this chapter shall be deemed to include the right of the director
of public works or the director's authorized representatives to enter upon and to inspect
the grading, grubbing, or stockpiling operations.
(b) The permittee shall notify the ;director of public works at least two working days before
the pennittee or the permittee's agent begins any grading, grubbing or stockpiling. A
copy of the permit, approved plans and specifications for grading, grubbing, or
stockpiling shall be maintained at the site during the progress of any work. Where it is
found by inspection that the soil or other conditions are not the same as stated or shown
in the application for grading, grubbing, or stockpiling permit, the director of public
works may stop the grading, grubbing, or stockpiling until revised plans; based upon the
existing conditions, are submitted by the permittee and approved by the director of public
works. Approval or disapproval of applicant's revised plan shall be made within fourteen
days from the date of receipt by the director of public works.
(c) If the director of public works or the director's representative finds that the work is not
being done in conformance with this chapter or the plans and specifications approved by
the director of public works, the director shall immediately notify the person in charge of
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the grading work of the nonconformity and immediately notify the. responsible party of
need for corrective measures to be taken pursuant to section 10-35. Grading operations
shall cease until corrective measures satisfactory to the director of public works have
been taken.
(d) ~ When a permittee has been served with a written notice, either by mail or personal
service for failure to comply with any provisions of this chapter pursuant to section 10-
35, or when a permittee has had the permittee's permit suspended or revoked by the
director of public works, the permittee and any person connected with execution of the
work authorized by the permit shall be denied a grading, grubbing, or stockpiling permit
for such work until the permittee has complied and initiated action satisfactory to the
director of public works to comply with the provisions of this chapter.
Article 3. Conditions and Specifications.
Section 10-18. Conditions of permit.
(a) The requirements of this section may be waived by the director of public works after the.
permittee submits an engineer's soils report substantiating data regarding the stability of
the cut or fill slopes without complying with any of the requirements therein.
(1) Height. Where a cut or fill is greater than fifteen feet in height, terraces or
benches shall be constructed at vertical intervals of fifteen feet except that where
only one bench is required, it shall be at the midpoint. The minimum width of
such terraces or benches shall be eight feet or as determined by the director of
public works, based upon the type of material encountered and shall have suitable
drainage provisions to control erosion on the slope face.
(2) Cut slopes. Under the following soil conditions, no cut may be steeper in slope
than the ratio of its horizontal to its vertical distance as shown below:
'/z horizontal to 1 vertical in unweathered rock;
1'/z horizontal to 1 vertical in decomposed rocks or rock and soil
mixture;
2 horizontal to 1 vertical in low plasticity soils;
3 horizontal to 1 vertical in high plasticity soils for cuts up to five feet
in vertical depths.
Slopes for cuts exceeding this depth shall be as recommended in the engineer's
soils report.
(3) Fill slopes. Under the following soil conditions, no fill may be steeper in slope
than the ratio of its horizontal to its vertical distance as shown below:
1'/z horizontal to 1 vertical in rock and soil mixture;
2 horizontal to 1 vertical in low plasticity soils;
3 horizontal to 1 vertical in high plasticity soils for fills up to five feet
in vertical height.
Slopes for fills exceeding this height shall be as recommended in the engineer's
soils report.
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Section 10-19. Distance from property line of cut or fill slope.
(a) The horizontal distance from the top of a cut slope or the bottom of a fill slope to the
adjoining property line shall be as follows:
Height of Cut or Fill Distance from Property Line
(in feet)
Zero feet to 4 feet 2
More than 4 feet to 8 feet 4
More than 8 feet to 15 feet 6
More than 15 feet 8
These requirements may be modified by the director of public works when cuts or fills
are supported by retaining walls, approved by the director, or when the permittee submits
an engineer's soils report stating that the soil conditions will permit a lesser horizontal
distance without causing damage or danger to the adjoining property.
(b) A retaining wall of six feet and over, or as otherwise provided by the County building
code, shall be designed by an [a--gre€essienal] engineer when deemed necessary by the
director of public works. Setback requirements of the County zoning ordinance are
referenced herein and the State land use commission and County zoning ordinance and
other agencies' requirements on shoreline improvements shall be complied with.
Section 10-20. Maximum cleared area.
The maximum azea of land that may be cleared for grading or grubbing is fifteen acres.
Noncontiguous increments may be worked on concurrently provided that no single graded area
exceeds fifteen acres and the work is in conformance with an annroved NPDES permit. The azea
of land that may be cleazed may be reduced by the director of public works to control pollution
and minimize storm damage. However, if soils, hydrologic, climatic and construction conditions
warrant, and adequate erosion and sedimentation control measures are taken, the director of
public works may authorize additional area to be opened. Additional area shall not be cleared
for grading or grubbing until erosion and sedimentation control measures to prevent dust or
erosion problems in the area already graded or grubbed have been undertaken incompliance with
the requirements of this chapter.
Section 10-21. Fill materials.
(a) The fill material may consist of rock, gravel, sand, soil, or a mixture thereof. Except for
slopes, the fill shall be compacted to minimum ninety percent of maximum density as
determined by the ASTM soil compaction test D1557, as amended. The director of
public works shall inspect the work and may require adequate inspection and compaction
control substantiated by test results by an engineer qualified to prepare an engineer's soils
report. These requirements may be modified by the director of public works if the
permittee submits an engineer's soils report substantiating with appropriate investigation
and analysis that the required ninety percent compaction density may be lowered without
causing excessive settlement, creep, or stability problems.
(b) Before placing fill or stockpiling, the natural ground surface shall be prepared and, if
required by the director of public works, shall be keyed by a series of benches. No fill
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shall be placed over any water spring, mazsh, refuse dump, nor upon a soggy or springy
foundation, provided that this requirement may be waived by the director of public works
if the permittee submits an engineer's soils report substantiating data regarding the safety
of the fill. Hazazdous materials shall not be stockpiled.
Section 10-22. Vegetation.
Whenever feasible, natural vegetation should be retained by becoming part of the erosion
control plan during construction or part of the permanent landscaping plan if applicable. If
removed, trees, timber, .plants, shrubbery, and other vegetation, after being uprooted, displaced,
or dislodged from the ground by excavation, clearing, or grubbing, shall not be stored or
deposited along the banks of any stream, river, or natural water course. After being uprooted,
displaced or dislodged, such vegetation shall be disposed of and removed from the site.
Exceptions providing for burial in open areas may be allowed as determined by the director of
public works.
Section 10-23. Debris prohibited.
No person shall perform any grading operation so as to cause falling rocks, soil or debris
in any form to fall, slide, or flow onto adjoining properties, streets or natural watercourses.
Sectiou 10-24. Dust control,
All work areas within and beyond the actual grading azea shall be maintained free from
fugitive dust which will cause a nuisance or hazazd to others and in conformance with the air
pollution control standards contained in Hawaii Administrative Rules, chapter 11-60, "Air
Pollution Control," as may be amended.
Section 10-25. Noise control.
All grading, grubbing and stockpiling operations authorized under this chapter shall be
performed in conformance with the applicable provisions of the noise rules contained in Hawaii
Administrative Rules, chapter 11-46, "Community Noise Control," as may be amended.
Section 10-26. Water quality standards.
All grading, grubbing and stockpiling operations authorized under this chapter shall be
performed in conformance with the applicable provisions of the water pollution control and
water quality standards contained in Hawaii Administrative Rules, chapter 11-55, "Water
Pollution Control," as may be amended, and chapter 11-54, "Water Quality Standazds," as may
be amended.
Section 10-27. Special conditions and requirements.
(a) Any person performing or causing to be performed an excavation or fill shall, at that
person's own expense, provide the necessary means to preverit the movement of earth of
the adjoining properties, to protect the improvements thereon, and to maintain the
existing natural grade of adjoining properties.
(b) Any person performing or causing to be performed, any excavation or fill shall be
- responsible for the maintenance or restoration of street pavements, sidewalks, curbs, and
improvements of public utilities which may be affected. The maintenance or restoration
of street pavements, sidewalks and curbs shall be performed in accordance with the
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requirements of the County and the maintenance and restoration of improvements of
public utilities shall be in conformity with the standards of the public utilities companies
affected.
(c) Any person depositing or causing to be deposited, any silt or other debris in ditches,
water courses, drainage facilities, and public roadways, shall remove such silt or other
debris. In case such person shall fail, neglect, or refuse to commence remedial work for
compliance with the provisions of this section within forty-eight hours after written
notice, served upon the person, pursuant to section 10-35, the director of public works,
upon a determination of imminent peril, may proceed to remove the silt and other debris
or to take any other action the director deems appropriate. A notice of violation shall be
issued and the costs incurred for any action taken by the director of public works shall be
paid by such person.
(d) At any stage of the grading, grubbing or stockpiling work, if the director of public works
finds that further work as authorized by an existing permit is likely to create soil erosion
problems or to endanger any life, limb, or property, the director may require safety
precautions, which may include but shall not be limited to the construction of more
gradual slopes, the construction of additional silting or sediment basins, drainage
facilities or benches, the removal of rocks, boulders, debris, and other dangerous objects
which, if dislodged, are likely to cause injury or damage, the construction of fences or
other suitable protective barriers, the planting and sodding of slopes and baze areas and
the performance of additional soil compaction. All planted or sodded areas shall be
maintained. An irrigation system or watering facilities shall be provided as necessazy to
ensure proper maintenance.
Section 10-28. Drainage.
(a) Adequate provisions shall be made to prevent surface waters from damaging the cut face
of an excavation or the sloping surfaces of a fill. All drainage provisions shall be
designed to carry surface waters to a storm drain system, natural watercourse, or other
area approved by the director of public works as a safe place to deposit and receive such
waters.
(b) Whenever the surface of a lot is excavated or filled, positive drainage shall be provided to
prevent the accumulation or retention of surface water in pits, gullies, holes, or similar
depressions which may create a public safety hazard.
(c) . The flow of any existing and known natural underground drainage shall not be impeded
or changed so as to cause damage to adjoining property.
Section 10-29. Erosion and sedimentation control.
All grading, grubbing, and stockpiling permits and operations shall confonn to the
erosion and sedimentation control standards and guidelines established by the department of
public works in conformity with chapters 180C and 342D of the Hawaii Revised Statutes.
Section 10-30. Report after grading; notification on completion.
(a) When grading involves cuts or fills for which an engineer's soils report is required, the
permittee shall submit a report by an [a--lieensed] engineer summarizing the construction
technique, monitoring, and inspection data as well as a statement regarding conformity to
this chapter and the project specifications..
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(b) The permittee or the permittee's agent shall notify the director of public works or the
director's representative when the grading operation is ready for final inspection. Final
approval shall not be given until all work, including installation of all drainage structures
and their protective devices have been completed and the required reports have been
submitted.
Article 4. Variances
Section 10-31. Variances; application.
(a) In unique cases where strict enforcement of this chapter would result in unnecessary
hardship or practical difficulty, and where desirable relief may be granted without
detriment to the public interest, convenience or welfare, a request for a variance may be
submitted to the director for his consideration.
(b) Vaziance applications shall be submitted upon a form designated by the director and shall
include the following information and attachments:
(1) Applicant's name, phone number, and mailing address.
(2) Tax map key number of the affected property.
(3) Code section from which a variance is requested.
(4) Explanation of the applicant's unique circumstances and why compliance with the
applicable code section would be difficult or cause an unnecessary hardship.
(5) Explanation of alternative measures that applicant is proposing to take in lieu of
compliance with the applicable code section.
(6) Evidence that desired relief may be granted without adversely affecting the rights
of adjacent property owners or tenants or detrimentally affecting the public
interest.
Section 10-32. Variances; criteria for granting.
Only in situations where the following conditions exist may a variance be granted by the
director:
(a) A grant of a variance is necessitated by peculiar physical conditions not ordinarily found.
(b) Granting the variance will not adversely affect the rights of adjacent property owners or
tenants.
(c) Granting the variance will not unreasonably violate the interest, safety, convenience, or
general welfare of the public.
(d) A strict application of the terms of this chapter would result in unnecessary hardship and
practical difficulty upon the applicant or community.
Section 10-33. Variance application fees.
(a) Upon submission of an application for a variance provided for in this article, applicants
shall submit a processing fee of $25.
(b) Fees shall be waived for any variance applied for by a federal, state or county agency
including the department of water supply.
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Article 5. Violations, Penalties, Enforcement.
Section 10-34. Violations.
(a) Failure to comply with any provision of this chapter or with any rule adopted pursuant to
this chapter or with conditions imposed as part of any permit, approval or waiver under
the provisions of this chapter, shall constitute a violation of this chapter.
(b) Violations of State of Hawaii Administrative Rules and statutes referenced in this
chapter shall be as determined by final order, after exhaustion of administrative appeals
from decisions of the State agency having enforcement jurisdiction over the respective
State rules or statutes, unless otherwise provided by law.
Section 10-35. Administrative enforcement.
It shall be unlawful for any person and/or contractor to perform or cause to be performed
any grubbing, grading, or stockpiling on any property contrary to any provision of this chapter,
or to use or maintain such property in an unlawfully graded condition, or to commit any other act
prohibited by this chapter. This prohibition shall apply to any person operating grading or
cleazing equipment or otherwise performing work for hire.
(a) In lieu of or in addition to enforcement pursuant to any other provisions of this chapter, if
the director of public works determines that any person is violating any provision of this
chapter, any rule adopted pursuant to this chapter or any conditions imposed as part of
any permit, approval or waiver under the provisions of this chapter, the director shall
serve the person with a notice of violation and order pursuant to this section. Service
may be accomplished through personal service or by certified mail. The director of
public works may also post a copy of the notice of violation and order at the site of the
violation.
(b) The notice of violation shall state with reasonable specificity the nature of the violation,
and include at least the following information:
(I) Date of the notice.
(2) Name and address of the person noticed.
(3) Section number of the provision and/or permit that was violated.
{4) Nature of the violation.
(5) Location and date of the violation.
(c) The order may require the person to do any or all of the following:
(1) Cease and desist from the violation.
(2) Correct the violation at the person's own expense before a date specified in the
order.
(3} Reimburse the County for costs incurred during the course of performing any
corrective work.
(4) Pay a civil fine not exceeding $1,000 in the manner, at the place, and before the
date specified in the order.
(5) Pay a civil fine not exceeding $1,000 per day for each day in which the violation
persists, in the manner and at the time and place specified in the order. Each day
a violation persists will be considered a separate violation.
(d) The provisions of the order issued by the director of public works under this section shall
become final thirty days after the receipt of the order, unless the director's action is
appealed to the County board of appeals as provided in this section. All fines, penalties,
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costs or other monetary charges imposed under this chapter shall be due and payable
thirty days after the notice of such charges is served, unless the director's action is
appealed to the County board of appeals as provided in this section. Whenever an appeal
is filed with the board of appeals as provided herein, [arry] all daily fines shall continue to
accrue during the appeal process. Any monetary charges so appealed shall only become
due and payable upon completion of all board of appeals proceedings and issuance of a
final boazd of appeals order confirming the monetary charges in whole or in part.
(e) Any person adversely affected by any order issued under this section may within thirty
days after the service of the order, appeal the order to the County board of appeals. An
appeal to the County board of appeals shall stay the provisions of the director's order
pending the final decision of the board, except as ordered under sections 10-37 and
10-38. All work by the person cited shall stop during this appeal process except as may
be required to correct an imminent peril to public health or safety. The appeal hearing
before the board of appeals shall be conducted as a contested case under chapter 91,
Hawaii Revised Statutes. If, after a heazing held pursuant to this section, the boazd of
appeals finds that a violation or violations have occurred, the board shall affrm or
modify any penalties imposed or may modify or affirm the order previously issued, or
issue an appropriate order or orders for the prevention, abatement, or control of the
violation, or for the taking of other corrective action as may be appropriate, consistent
with the director's authority under this chapter. If, after a hearing held pursuant to this
section, the board of appeals finds that no violation has occurred or is occurring, the
board of appeals shall rescind the order or penalty. Any order issued by the board of
appeals after hearing may prescribe the date or dates by which the violation or violations
shall cease and may prescribe timetables for necessary action in preventing, abating, or
controlling the violation.
(f) If any party is aggrieved by the decision of the board of appeals, the party may appeal the
board's decision to the circuit court in the manner provided by chapter 91, Hawaii
Revised Statutes; provided that the operation of a cease and desist order or other
corrective or remedial order affirmed or issued by the board of appeals shall not be stayed
on appeal unless specifically ordered by a court of competent jurisdiction.
(g) The director of public works may institute a civil action in any court of competent
jurisdiction for the enforcement of any order issued pursuant to this section. Where the
civil action has been instituted to enforce the civil fine, recover County costs, or both, as
imposed by final order, the director of public works need only show that:
(1) The notice of violation and order were served.
(2) That a civil fine, County costs, or both were imposed.
(3) The amount of the civil fine, County costs, or both imposed.
(4) That the fine, County costs, or both imposed have not been paid.
(h) The director of public works may work cooperatively with the planning department to
allow the planning department to conduct inspections and draft citation orders on behalf
of the department of public works.
Section 10-36. Criminal prosecution.
(a) Any person, whether as principal, agent, employee, or otherwise, violating or causing or
permitting the violation of any of the provisions of this chapter, shall be guilty of a
violation, and upon conviction thereof, shall be punished by a fine not exceeding $1,000,
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or by imprisonment not to exceed one year, or both, for each offense. Each day of each
violation shall constitute a separate offense.
(b) After a conviction for a first violation under this chapter, each further day of violation
shall constitute a separate offense if the violation is a continuance of the subject of the
first conviction.
(c) The imposition of a fine under this section shall be controlled by the provisions of the
Hawaii Penal Code relating to fines, sections 706-640 through 706-649, Hawaii
Revised Statutes.
(d) Any authorized personnel may issue a sumtnons or citation to an alleged violator in
accordance with the procedure specified in this section. Nothing in this section shall be
construed as barring such authorized personnel from initiating prosecution by penal
summons, by complaint, by warrant or such other judicial process as is permitted by
statute or rule of court.
(e) Any authorized personnel issuing a summons or citation for a violation of this article may
take the name and address of the alleged violator and shall issue to the alleged violator a
written summons or citation notifying the alleged violator to answer at a place and at a
time provided in the summons or citation.
(f) There shall be provided for use by authorized personnel a form of summons or citation
for use in citing violators of this article which does not mandate the physical arrest of
i such violators. The form and content of such summons or citation shall be as adopted or
prescribed by the administrative judge of the district court and shall be printed on a form
commensurate with the form of other summonses or citations used in modern methods of
arrest, so designed to include all necessary information to make the same valid under the
laws and regulations of the State of Hawaii and the County of Hawaii.
(g) In every case when a citation is issued, the original of the same shall be given to the
violator, provided that the administrative judge of the district court may prescribe the
giving to the violator of a carbon copy of the citation and provide for the disposition of
the original and any other copies.
(h) Every citation shall be consecutively numbered and each carbon copy shall bear the
number of its respective original.
Section 10-37. Injunctive action.
The County of Hawaii may maintain an action for an injunction to restrain any violation
of the provisions of this article and may take any other lawful action to prevent or remedy any
violation.
The Constitution of the State of Hawaii (1978) provides that for the benefit of present
and future generations, the state and its political subdivisions shall conserve and protect
Hawai`i's natural resources, including land and water, and that all public natural resources are
held in trust by the state for the benefit of the people. The County has an affirmative public trust
duty to enact, maintain and enforce this chapter to protect public land and water resources.
Violations of this chapter individually and cumulatively increase the likelihood of erosion of
private and public lands, and injury to public waters, which are irreplaceable natural resources.
Therefore, the County Council finds and declares that violations of this Chapter are public
nuisances, which are subject to abatement and remedy by injunctive or mandatory equitable
relief action by the County, through its Corporation Counsel or such special counsel as may be
retained by the County for that purpose.
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Section 10-38. Emergency powers; procedures.
(a) Notwithstanding any other law to the contrary, if the director of public works determines .
that a violation of this chapter will cause imminent peril to the public health and safety,
the director, without a public hearing, may order the responsible persons to immediately
cease their activities, and may perform all necessazy work and other actions as may be
necessary to correct the violation. The order shall fix a place and time, not later than
twenty-four hours thereafter, for a hearing to be held before a hearings officer appointed
by the director of public works.
(b) Nothing in this section shall be construed to limit any power authorized by law which the
director of public works or any other County official may have to declare an emergency
and act on the basis of such declaration.
Section 10-39. Corrective work by the County; costs.
(a) When the director of public works determines that a violation of this chapter will cause
imminent peril to the public health and/or safety, the department of public works may
perform all necessary work to correct the violation. This work may include, but may not
be limited to, clearing ox removing of encroachments and obstructions, installation of
erosion and sediment control measures, completion of authorized work, and restoration
and revegetation of the site.
(b) All costs incurred during the course of perfonring any corrective work shall be paid by
the violator. The department of public works shall give, by certified mail, a bill to.the
violator. The violator shall then have thirty days from the date of mailing to pay the bill.
(c) Should the violator fail to make full legal payment within thirty days, the County may use
all legal means available to recover its expenses and costs by any action allowed in law or
equity.
Section 10-40. Liability. ,
The provisions of this chapter shall not be construed to relieve or alleviate the liability of
any person for damages resulting from performing, or causing to be performed, any grading,
grubbing or stockpiling operation. The authorized personnel charged with the enforcement of
this article, acting in good faith and without malice in the dischazge of the duties required by this
article or other pertinent law or ordinance, shall not thereby be rendered personally liable for
damages that may accrue to persons or property as a result of an act or by reason of an act or
omission in the dischazge of such duties. A suit brought against the authorized personnel
because of such act or omission performed by the authorized personnel in the enforcement of any
provision of this article or other pertinent laws or ordinances implemented through the
enforcement of this article shall be defended by the County of Hawaii until final termination of
such proceedings, and any judgment resulting there from shall be assumed by the County. _
Section 10-41, Remedies cumulative.
The remedies provided in this article shall be cumulative and not exclusive.
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Article 6. Rule Making
Section 10-42. Adoption of rules.
This chapter is intended to be self-executing to the extent permitted by law. The director
of public works is authorized to promulgate rules pursuant to chapter 91 of the Hawaii Revised
Statutes as may be necessary for implementation of this chapter."
SECTION 3. If any provision of this ordinance or the application thereof to any person
or circumstance, is held invalid, such invalidity shall not affect other provisions or applications
of the ordinance which can be given effect without the invalid provision or application, and.to
this end, the provisions of this ordinance are declared to be severable.
SECTION 4. This ordinance shall take effect six months after its approval.
INTRODUCED BY:
COUNCIL MEMBER, COUNTY OF HAWAII
Hilo, Hawaii
Date of Introduction:
Date of 1st Reading:
Date of 2nd Reading:
Effective Date:
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