HomeMy WebLinkAboutCOM 0496.001 2022-2024Matt K5neali'i-Kleinfelder
Hawaii County Council
District 5
Phone No.: (808) 961-8263
in att. kan eali i-kl ein felder@?hawai icounty.gov
HAWAVI COUNTY COUNCIL
County of Hawaii
Hawaii County Building
25 Aupuni Street, Suite 1405 - Hilo, Hawaii 96720
DATE: October 2, 2023
TO: Heather Kimball, Chair
And Members of the Hawai'i County Council
eqL
FROM: Matt Kdneali'i-Kleinfelder, Council Member
SUBJECT: Proposed Amendment to Bill 82; an Ordinance Amending Chapter 2, Article 9,
Section 2-40 and Adding a New Article to Chapter 14 of the Hawaii County
Code 1983 (2016 Edition, as Amended), Relating to Improving, Grading,
Repairing, or Construction Work Upon Private, Nondedicated, and Non -
Surrendered Roads.
Transmitted herein are proposed amendments to Bill No. 82. These proposed amendments are
shown below in Ramseyer format with respect to the contents of Bill No. 82; material to be
deleted is bracketed and stricken and new material is underscored. A copy of the revised draft of
Bill No. 82, that would result if these proposed amendments are adopted is attached.
1. SECTION I of Bill No. 82, would be amended to read as follows:
"SECTION 1. Chapter 2, article 9, section 2-40, of the Hawaii County Code 1983 (2016
Edition, as amended), is amended to read as follows:
"Section 2-40. Duties and functions of department.
The department shall be responsible for:
(1) The performance of all matters relating to engineering;
(2) Public and private building construction and inspection;
(3) Public improvements;
(4) Construction, inspection, and maintenance of public highways, bridges, streets, and
sidewalks;
Cornm. NQ-- qU.1
Hawai'i County is an Equal Opportunity Provider and Employer
(5)
[(6)] Acquisition of public and private property for public purposes;
[(7)]Co Design and maintenance of a system of traffic control and devices;
[(8)](7) Floodplain management; [ate]
[(9)]M Construction and inspection of all other County projects, except for matters
relating to the department of water supply[.]; and
(9) Such other duties or functions conferred upon the department by ordinance or
statute.""
2. In SECTION 2 of Bill No. 82, section 14-26-6 would be amended to read as follows:
"Section 14-26-6. Process to request improvement, grading, repair, or construction work
upon private, nondedicated, and non -surrendered roads, resolution.
(a) The requester for a private, nondedicated, and non -surrendered road, may initiate and
submit a written request to the director for assistance to improve, grade, repair, or do
construction work upon a subject road. The request shall specify the area and nature of the
requested improvement, grading, repair, or construction work and provide evidence that
demonstrates that the request satisfies the eligibility criteria for assistance set out in section
14-26-4.
(b) The director shall determine whether the subject road proposed for consideration satisfies
the eligibility criteria set out in section 14-26-4 d [an ' ntly eligible f0f 14th
(.Lull. liJ NVQ
risidef do ]. The director shall notify the requester of the director's determination
within six months of the date the written request is received by the department.
(c) The director shall request comments from the civil defense agency, Ilawai`i fire
department, mass transit agency, and the planning department, regarding whether the
subject roads found to satisfy section 14-26-4, meet any or all of the following criteria:
(1) The roads were created or platted before December 21, 1966;
(2) The roads are necessary to maintain emergency and mass transportation access;
(3) The roads can be utilized to develop emergency or alternate routes and thereby
promote community safety and the public interest; or
(4) The roads can be integrated into public transportation routes for mass transit, multi-
modal transportation systems, or department of education bus routes.
These agencies and departments shall respond to the director's request for comment within
thirty calendar days from the date the request for comment is received. If any agency or
department does not respond within this time, the director may proceed without their input.
(d) The director shall identify subject roads that have satisfied section 14-26-4 criteria and
have been identified by the civil defense agency, Hawaii fire department, mass transit
agency, or the planning department, as satisfying any or all of the criteria in subsection (c).
Higher priority shall be afforded to subject roads that meet two or more criteria listed in
subsection (c).
(e) With respect to subject roads deemed by the director to satisfy the criteria in subsection (d),
the director shall [dine] assess whether the requests are feasible after consideration of:
(1) The area of the requested [imp,- e ......„* grading, ^r^ r ] improvements, gradings,
repairs or construction work [feq#e4e-E1];
(2) The [des -i -g -n] designs and the [type] types and [ameunt] amounts of materials
appropriate forthe ���� ,evement „,.^ding r^r^r
[ N ,] improvements, gradings,repairs,
or construction work, pursuant to section 14-26-5; and
(3) [Whethef the wofk will be a ene time pfejeet, ef ongoing wefk: that will be done on
periodic basis to help maintain the impfeved eandition of the subject foad-,
(4) if the weflE will be done an aii ongoing basis, a tefmination date f6f Getinty
assistance, if apple b,le;
(5)] The estimated cost and nature of resources necessary to complete the work[; and] for
each request.
(f) The director after consideration of the criteria set out in section 14-26-6(g) and
appropriation and resource limitations, shall [prioritize requests deerned to be feasi gra ]
identify feasible requests, if sufficient appropriations and necessary resources can be
secured.
(g) The director shall annually compile a report that summarizes its activities from January 1 to
December 31. This report shall be submitted to the Council by the end of January of the
following year, and include the following information:
(1) A summary of requests for assistance received in the calendar year;
(2) A list of requests found to be eligible for assistance pursuant to section 14-26-4;
(3) A list of requests found to satisfy section 14-26-6(c) criteria;
(4) [ n ft ,.o side„^+;,,,, of se , ,] A list of requests found feasible pursuant to sections
14-26-6(e) and ft [a list of pfiofity „equests ] if sufficient appropriations and
necessary resources can be secured; and
(5) An update regarding the status of projects identified as feasible in prior calendar
years, if sufficient appropriations and necessary resources could be secured.
(h) If sufficient appropriations and necessary resources for a road on the [pfier4ty] list of
feasible requests become available, the requester must submit written approval of the
proposed improvement, grading, repair, or construction work that has been determined by
the director to be appropriate. Further the requester shall agree to such terms, conditions,
and covenants as may be determined by the director to be required for the convenience and
protection of the County and the public, including but not limited to, the granting of
necessary licenses, rights of entry, [er•] easements[...], and insurance.
(i) The requirement for a written request, approval, and agreement will not apply, however, to:
(1) A subject road over which the department exercises surface maintenance
responsibilities on the day prior to the effective date of this ordinance; or
(2) A road that the County determines has been dedicated by implication to public use for
roadway purposes.
(j) Nothing contained in this article shall be construed as prohibiting the director from
requiring a written approval and agreement for [neve impfavement, grading,
fe-spensil-0:4-:—,
en the day pfiof to the effeetive date of this efdinanee, if the difeetef
determines that stieh an agf eement is in the best intefests ft he,-G�.e] work undertaken
pursuant to this article.
(k) Prior to the department proceeding with improvement, grading, repair, or construction
work, the council shall authorize the proposed work by a resolution that shall include, the
following findings:
(1) The name of the subject street and area of the improvement, grading, repair, or
construction work requested;
(2) The name of the requester and that the requester has requested this assistance;
(3) The nature of the improvement, grading, repair, or construction work requested,
whether the work will be a one-time project, or ongoing, and a summary of any other
information demonstrating that the work satisfies the provisions of this article;
(4) Appropriations and necessary resources are available to do the work;
(5) That the requested improvement, grading, repair, or construction work serves a public
purpose;
(6) Improvement, grading, repair, or construction work conducted pursuant to this article
on any private, nondedicated, and non -surrendered road shall neither constitute
dedication nor condemnation of the subject road to public use;
(7) The County shall neither be responsible nor liable for any personal injuries or
property damage arising from the design of or any improvement, grading, repair, or
construction work done pursuant to this article upon any private, nondedicated, and
non -surrendered road;
(8) The County makes no representation as to the safety or suitability of roads upon
which any improvement, grading, repair, or construction work has been done
pursuant to this article, for public vehicular or nonvehicular transportation; and
(9) Any other information deemed necessary."
3. In SECTION 2 of Bill No. 82, subsection (b) of section 14-26-7, relating to
"Discontinuance of County assistance to improve, grade, repair, or do construction work
upon a private, nondedicated, and non -surrendered road" would be amended to read as
follows:
"(b) Where assistance is discontinued because the road has been signed, marked, delineated,
fenced, barricaded, or otherwise designed, constructed, or operated to exclude the general
public, in whole or in part, the director is authorized[, in the difeetef's disefetien and to the
extent legally and eeenornieally feasible-,] to:
(1) Recover removable fixtures [of] and materials, if any, installed by the County, and to
recover from the requester the value of the fixtures or materials left in place; and
(2) Recover from the requester the total cost incurred by the County for paving or other
improvement, grading, repair, or construction work done pursuant to this article
within the five-year period preceding the closure of the road to the public. The
requester may avoid liability for the costs by making signage, design, construction,
operational, or other changes, or any necessary combination thereof, to again open the
road to the general public and meet all criteria set forth in this article."
rd
4. In SECTION 2 of Bill No. 82, section 14-26-8, would be amended to read as follows:
"Section 14-26-8. Control and liability.
Nothing contained in this article and no action undertaken pursuant to this article shall be
construed as the County:
(1) Taking control of a subject road;
(2) Assuming responsibility either to improve a subject road to a dedicable standard or to
a standard above the condition at the time repairs are undertaken;
(3) Making any warranties or representation as to the safety or suitability of roads that
have been improved, graded, repaired, or constructed pursuant to this article, for
public vehicular or nonvehicular transportation; [ef]
(4) Adopting, accepting, or approving of a private, nondedicated, and non -surrendered
road as a public highway[-.] , or
(5) Agreeing to approve or undertake future work pursuant to this article."
MKK: lc
Att.
Attachment
AN ORDINANCE AMENDING CHAPTER 2, ARTICLE 9, SECTION 2-40 AND
ADDING A NEW ARTICLE TO CHAPTER 14 OF THE HAWAII COUNTY CODE
1983 (2016 EDITION, AS AMENDED), RELATING TO IMPROVING, GRADING,
REPAIRING, OR CONSTRUCTION WORK UPON PRIVATE, NONDEDICATED, AND
NON -SURRENDERED ROADS.
BE IT ORDAINED BY THE COUNCIL OF THE COUNTY OF HAWAII:
SECTION 1. Chapter 2, article 9, section 2-40, of the Hawaii County Code 1983 (2016
Edition, as amended), is amended to read as follows:
"Section 2-40. Duties and functions of department.
The department shall be responsible for:
(1) The performance of all matters relating to engineering;
(2) Public and private building construction and inspection;
(3) Public improvements;
(4) Construction, inspection, and maintenance of public highways, bridges, streets, and
sidewalks;
(5) Acquisition of public and private property for public purposes;
(6) Design and maintenance of a system of traffic control and devices;
(7) Floodplain management;
(8) Construction and inspection of all other County projects, except for matters relating
to the department of water supply[-.]-, and
(9) Such other duties or functions conferred upon the department by ordinance or
statute."
SECTION 2. Chapter 14, of the Hawaii County Code 1983 (2016 Edition, as amended), is
amended by adding a new article 26 to read as follows:
"Article 26. County Authority to Improve, Grade, Repair, or
Do Construction Work Upon Private, Nondedicated, and Non -surrendered roads.
Section 14-26-1. Purpose.
Section 265A-1, Hawaii Revised Statutes, provides that the council may enact an
ordinance that authorizes the County to improve, grade, repair, or do construction work upon
private roads. The council finds that there are private, nondedicated, and non -surrendered roads
in flawai'i County that are open to the general public and necessary for public transportation or
public safety, or both. The council further finds that the public interest of the County is served
by performing such improvement, grading, repair or construction work upon such roads, in
limited circumstances. Any such work undertaken by the County pursuant to this article shall
not be construed as evidence of intention by the County to dedicate or condemn any subject road
to the public use, take control over the subject road, nor obligate the County to improve, grade,
repair, or do construction work upon the subject road in the future.
0
Section 14-26-2. Definitions.
As used in this article, unless it is apparent from the context that a different meaning is
intended:
"County" means the County of Hawaii
"Department" means the department of public works of the County of Hawaii.
"Director" means the director of the department of public works of the County of Hawaii
or the director's duly authorized representative.
"Private, nondedicated, and non -surrendered roads" or "subject roads" means streets, roads,
highways, ways, or lanes used for purposes of vehicular traffic that are owned, in whole or in
part, by persons other than governmental entities and which have not been dedicated or
surrendered to the County in accordance with section 264-1(c)(1) and (2), Hawaii Revised
Statutes.
"Requester" means:
(1) The representative body authorized to make legal decisions about a private,
nondedicated, and non -surrendered road on behalf of the owners of the subject road
as to the: use, improvement, repair, and maintenance of the road; sign agreements
with respect thereto; and bind all other persons having rights in or to such road or
other property or;
(2) In the absence of a representative body, persons collectively owning a sixty percent or
greater interest in the fee title or an appropriate roadway easement in a private,
nondedicated, and non -surrendered road, and who have delegated authority to one or
more of the owners to act on behalf of the ownership.
"Speed hump" means a gentle rise in the profile of the road that is used to regulate
the speed of a vehicle.
Section 14-26-3. Powers and duties of director.
Upon request and subject to council authorization, the availability of appropriations, and
necessary resources, the director may improve, grade, repair, or do construction work upon
portions of private, nondedicated, and non -surrendered roads that have been determined by the
director, in the director's discretion, to meet the criteria set forth in this article.
Section 14-26-4. Eligibility criteria to be considered.
Subject to the availability of appropriations and necessary resources, the department may
improve, grade, repair, or do construction work by remedial patching, resurfacing, or paving
upon those portions of private, nondedicated, and non -surrendered roads that have been
determined by the director to meet the following criteria:
(1) The subject road has not been dedicated or surrendered to the County or any other
governmental entity, and is not otherwise owned by the County or any other
governmental entity;
(2) The subject road is not maintained by any governmental entity other than the County
pursuant to this article;
7
(3) The subject road is open to, serves, and benefits the general public;
(4) The subject road is not signed, marked, delineated, fenced, barricaded, or otherwise
designed, constructed, or operated to exclude access by the general public, in whole
or in part, which may be through such means as signs indicating that the road is a
"private" road, or any restrictions on parking that are not applicable to all persons
except as otherwise provided by law;
(5) The subject road directly serves one of the following:
(A) Fifty or more contiguous parcels;
(B) Fifty or more residential structures; or
(C) A parcel of land which has two or more condominium buildings or apartment
buildings that contain twenty-four or more condominium or apartment units;
(6) The subject road is not part of a cluster plan development, planned development, or
similar type of development;
(7) Improving, grading, repairing, or construction work upon the subject road by the
County will be practicable and safe;
(8) The developer or subdivider of the subject road has not agreed to maintain the subject
road in perpetuity;
(9) Improvement, grading, repair, or construction work upon the subject road surface will
increase the safety of motorists, bicyclists, and pedestrians or is otherwise in the
public interest;
(10) The current owners have lacked the financial resources or ability to secure authority
to improve, grade, repair, or do construction work upon the subject road for a period
sufficient to demonstrate this ability will not be restored or obtained within the
foreseeable future; and
(11) The subject road does not suffer such design defects as to make use of the subject
road hazardous to the general public regardless of improvement, grading, repair, or
construction work.
Section 14-26-5. Allowable work upon private, nondedicated, and non -surrendered roads.
(a) Paved private, nondedicated, and non -surrendered roads shall be improved, graded, or
repaired by:
(1) Remedial patching with like materials, for example:
(A) Asphalt concrete shall be used for asphalt concrete paved roads;
(B) Portland cement concrete or asphalt concrete, as determined by the director,
shall be used for Portland cement concrete paved roads; or
(C) Gravel for gravel.
(2) Resurfacing, if the director determines that the pavement is in such poor condition
that remedial patching is impractical and not cost effective.
(b) Unpaved private, nondedicated, and non -surrendered roads shall be improved, graded, or
repaired by:
(1) Remedial patching with like materials, for example:
(A) Coral for coral; or
(B) Gravel for gravel.
(2) Paving with asphalt concrete material, if the director determines that the road surface
is in such poor condition that remedial patching is not cost effective and does not
serve the best interests of motorists, bicyclists, and pedestrians, and available funds
and resources permit.
8
(c) Improvement, grading, repair, or construction work performed by the County pursuant to
this article, shall not include installation or maintenance of curbs, shoulders, gutters,
drainage facilities, or similar infrastructure, provided that speed humps that are removed as
part of the County's improvement, grading, repair, or construction work upon private roads
may be reinstalled by the County if the director determines that the conditions for
reinstallation have been met.
Section 14-26-6. Process to request improvement, grading, repair, or construction work
upon private, nondedicated, and non -surrendered roads, resolution.
(a) The requester for a private, nondedicated, and non -surrendered road, may initiate and
submit a written request to the director for assistance to improve, grade, repair, or do
construction work upon a subject road. The request shall specify the area and nature of the
requested improvement, grading, repair, or construction work and provide evidence that
demonstrates that the request satisfies the eligibility criteria for assistance set out in section
14-26-4.
(b) The director shall determine whether the subject road proposed for consideration satisfies
the eligibility criteria set out in section 14-26-4. The director shall notify the requester of
the director's determination within six months of the date the written request is received by
the department.
(c) The director shall request comments from the civil defense agency, Hawaii fire
department, mass transit agency, and the planning department, regarding whether the
subject roads found to satisfy section 14-26-4, meet any or all of the following criteria:
(1) The roads were created or platted before December 21, 1966;
(2) The roads are necessary to maintain emergency and mass transportation access;
(3) The roads can be utilized to develop emergency or alternate routes and thereby
promote community safety and the public interest; or
(4) The roads can be integrated into public transportation routes for mass transit, multi-
modal transportation systems, or department of education bus routes.
These agencies and departments shall respond to the director's request for comment within
thirty calendar days from the date the request for comment is received. If any agency or
department does not respond within this time, the director may proceed without their input.
(d) The director shall identify subject roads that have satisfied section 14-26-4 criteria and
have been identified by the civil defense agency, Hawaii fire department, mass transit
agency, or the planning department, as satisfying any or all of the criteria in subsection (c).
Higher priority shall be afforded to subject roads that meet two or more criteria listed in
subsection (c).
(e) With respect to subject roads deemed by the director to satisfy the criteria in subsection (d),
the director shall assess whether the requests are feasible after consideration of:
(1) The area of the requested improvements, gradings, repairs or construction work;
(2) The designs and the types and amounts of materials appropriate for the
improvements, gradings, repairs, or construction work, pursuant to section 14-26-5;
and
(3) The estimated cost and nature of resources necessary to complete the work for each
request.
(f) The director after consideration of the criteria set out in section 14-26-6(g) and
appropriation and resource limitations, shall identify feasible requests, if sufficient
appropriations and necessary resources can be secured.
(g) The director shall annually compile a report that summarizes its activities from January 1 to
December 31. This report shall be submitted to the Council by the end of January of the
following year, and include the following information:
(1) A summary of requests for assistance received in the calendar year;
(2) A list of requests found to be eligible for assistance pursuant to section 14-26-4;
(3) A list of requests found to satisfy section 14-26-6(c) criteria;
(4) A list of requests found feasible pursuant to sections 14-26-6(e) and (f), if sufficient
appropriations and necessary resources can be secured; and
(5) An update regarding the status of projects identified as feasible in prior calendar
years, if sufficient appropriations and necessary resources could be secured.
(h) If sufficient appropriations and necessary resources for a road on the list of feasible
requests become available, the requester must submit written approval of the proposed
improvement, grading, repair, or construction work that has been determined by the
director to be appropriate. Further the requester shall agree to such terms, conditions, and
covenants as may be determined by the director to be required for the convenience and
protection of the County and the public, including but not limited to, the granting of
necessary licenses, rights of entry, easements, and insurance.
(i) The requirement for a written request, approval, and agreement will not apply, however, to:
(1) A subject road over which the department exercises surface maintenance
responsibilities on the day prior to the effective date of this ordinance; or
(2) A road that the County determines has been dedicated by implication to public use for
roadway purposes.
(j) Nothing contained in this article shall be construed as prohibiting the director from
requiring a written approval and agreement for work undertaken pursuant to this article.
(k) Prior to the department proceeding with improvement, grading, repair, or construction
work, the council shall authorize the proposed work by a resolution that shall include, the
following findings:
(1) The name of the subject street and area of the improvement, grading, repair, or
construction work requested;
(2) The name of the requester and that the requester has requested this assistance;
10
(3) The nature of the improvement, grading, repair, or construction work requested,
whether the work will be a one-time project, or ongoing, and a summary of any other
infornnation demonstrating that the work satisfies the provisions of this article;
(4) Appropriations and necessary resources are available to do the work;
(5) That the requested improvement, grading, repair, or construction work serves a public
purpose;
(6) Improvement, grading, repair, or construction work conducted pursuant to this article
on any private, nondedicated, and non -surrendered road shall neither constitute
dedication nor condemnation of the subject road to public use;
(7) The County shall neither be responsible nor liable for any personal injuries or
property damage arising from the design of or any improvement, grading, repair, or
construction work done pursuant to this article upon any private, nondedicated, and
non -surrendered road;
(8) The County makes no representation as to the safety or suitability of roads upon
which any improvement, grading, repair, or construction work has been done
pursuant to this article, for public vehicular or nonvehicular transportation; and
(9) Any other information deemed necessary.
Section 14-26-7. Discontinuance of County assistance to improve, grade, repair, or do
construction work upon a private, nondedicated, and non -surrendered
road.
(a) The director shall discontinue County assistance to improve, grade, repair, or do
construction work upon a specific private, nondedicated, and non -surrendered road, if the
director determines that such road no longer meets all criteria set forth in this article or
when requested in writing by the requester. Prior to discontinuing any improvement,
grading, repair, or construction work upon any private, nondedicated, and non -surrendered
road, the director shall provide the requester with written notice, thirty days in advance of
such proposed action.
(b) Where assistance is discontinued because the road has been signed, marked, delineated,
fenced, barricaded, or otherwise designed, constructed, or operated to exclude the general
public, in whole or in part, the director is authorized to:
(1) Recover removable fixtures and materials, if any, installed by the County, and to
recover from the requester the value of the fixtures or materials left in place; and
(2) Recover from the requester the total cost incurred by the County for paving or other
improvement, grading, repair, or construction work done pursuant to this article
within the five-year period preceding the closure of the road to the public. The
requester may avoid liability for the costs by making signage, design, construction,
operational, or other changes, or any necessary combination thereof, to again open the
road to the general public and meet all criteria set forth in this article.
Section 14-26-8. Control and liability.
Nothing contained in this article and no action undertaken pursuant to this article shall be
construed as the County:
(1) Taking control of a subject road;
(2) Assuming responsibility either to improve a subject road to a dedicable standard or to
a standard above the condition at the time repairs are undertaken;
11
(3) Making any warranties or representation as to the safety or suitability of roads that
have been improved, graded, repaired, or constructed pursuant to this article, for
public vehicular or nonvehicular transportation;
(4) Adopting, accepting, or approving of a private, nondedicated, and non -surrendered
road as a public highway; or
(5) Agreeing to approve or undertake future work pursuant to this article.
Section 14-26-9. Administrative rules.
The director may adopt administrative rules pursuant to chapter 91, Hawaii Revised
Statutes, as may be necessary to implement this article."
SECTION 3. Severability. If any provision of this ordinance, or the application thereof to
any person or circumstance, is held invalid, the invalidity does not affect other provisions or
applications of the ordinance that can be given effect without the invalid provision or
application, and to this end the provisions of this ordinance are severable.
SECTION 4. This ordinance shall take effect one year after approval.
12