COM 0128.081 2010-2012 - Laserfiche WebLink

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Dominic Yagong, Chair Hawaii County Council October 17, 2011 Page 2 of 9 II. BRIEF ANSWER The Council may amend the State Building Code and may include such amendments in the County's building code ordinance. However, such amendments may not be inconsistent with or contrary to State law or they will be void as preempted by State law. III. DISCUSSION The questions presented require an examination of HRS § 107 -28, its legislative history, and relevant Hawaii Administrative Rules ( "HAR "). HRS § 107 -28 reads as follows: §107 -28 County building code authority to amend the state model building code without state approval. (a) The governing body of each county shall amend the state building code as it applies within its respective jurisdiction, in accordance with section 46- 1.5(13), without approval of the council. Each county shall use the model codes and standards listed in section 107 -25, as the referenced model building codes and standards for its respective county building code ordinance, no later than two years after the adoption of the state building code. (b) If a county does not amend the statewide mode code within the two -year timeframe, the state building code shall become applicable as an interim county building code until the county building code adopts the amendments. HAW. REV. STAT. § 107 -28 (2007). The issue presented is whether the phrase "[t]he governing body of each county shall amend the state building code as it applies within its respective jurisdiction" should be interpreted as granting the Council unfettered discretion to amend the State Building Code when crafting the County's building code ordinance. Because no other State county has, to date, adopted its building code ordinance, there is no precedent on this issue. A. Proposed Amendments to Bill 270, as Set Forth in Communication 128.74 At the October 5, 2011, Council meeting, Councilmember Brenda Ford requested an opinion from this office as to the legality of each of the proposed amendments set forth in Communication 128.40. However, at that Council meeting, Councilmember Brittany Smart withdrew Communication 128.40 and introduced Communication 128.74. Both of these Communications proposed amendments to Bill 270, Draft 3, and are substantially similar. Because Communication 128.40 was withdrawn, it will not be addressed in this opinion.