2007-07-26_County_ownership_of_Homestead_Road_North_Kona

Home

Haff9 Kim Lincoln S.T.Ashida Mayor y Corporation Counsel Gerald Takase COUNTY OF HAWA Assistant Cmporadon Courud II OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street Suite 325 - Hilo,Hawail 96720-4262 -(808)961-6251 - Fax(808)961.8622 July 26,2007 Naomi U. Kuwaye, Esq. Jesse K. Souki, Esq. Imanaka Kudo&Fujimoto TOPA Financial Center 745 Fort Street, 17" Floor Honolulu, HI 96813 Re: County Ownership of Homestead Road,North Kona,Hawai`i TMK Nos- (3) 7-3-007.038, 039 and(3) 7-3-009.007 Dear Ms. Kuwaye and Mr. Souki: This is in response to your letter dated May 10,2007 to Corporation Counsel Lincoln S.T.Ashida. In that letter,you asked, on behalf of your client The Shopoff Group,L.P., (hereinafter, "Shopoff'),for confirmation of County ownership of a"homestead road"which is represented on homestead maps of the subject property owned by Shopoff. We understand you are seeking this information as requested by the State of Hawaii Land Use Commission (hereinafter,"LUC"), in context of a petition before the LUC to redistrict 127.94 acres of land from the State Land Use Agricultural district to the Urban district,for a residential development. We also understand that your client may in the future seek rights to use the homestead road area in conjunction with the proposed development. Your letter posits a belief that the County is the fee owner of the homestead road. This is based upon the evidence in early maps and land grants that the homestead road was"laid out"on paper by the Hawaiian"government"(not the County) in creating the homestead subdivision. Our County surveyors generally agree with this historical background. However,we understand that there is no actual homestead road constructed, but only a rough trail that traverses the general area. Hence,we must regard this not as an actual road for highway use, but no more than a"paper"road,not in actual existence. We understand the legal analysis explained in your letter, by which you suggest that this paper road might be opined to be County property. However, Hawaii Revised Statutes (hereinafter, "HRS"), § 264-1 states that"All roads"(not"proposed"roads or road reserves) laid out by the government are public highways. None of the cases cited governs here,where there is no actual useable highway in existence, only a"paper"road. Neither does the cited attorney general's opinion deal with this scenario. The cited cases deal with private roads which are sometimes held impliedly dedicated to public use via platting and lot sales. Even in those cases, the dedication is not held to be a fee, Hawaii County is an Equal Opportunity Provider and Employer