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HomeMy WebLinkAboutMIN PCHSW 2023/10/03 (2022-2024) Policy Committee on Health, Safety, and Well-being 4th Session Hawaii County Building 25 Aupuni Street Hilo, Hawaii October 3, 2023 CALL TO The regular meeting of the Policy Committee on Health, Safety, and ORDER: Well-being was called to order at 9:30 a.m., in the Council Chambers, Hilo, by Ms. Jenn Kagiwada, Chair. ROLL CALL: Present: Ms. Jenn Kagiwada, Chair Mr. Matt Kaneali`i-Kleinfelder, Vice Chair Ms. Cindy Evans, Member Ms. Michelle M. Galimba, Member Mr. Holeka Goro Inaba, Member Ms. Ashley L. Kierkiewicz, Member Ms. Heather L. Kimball, Member Ms. Susan L. K. Lee Loy, Member Absent& Excused: Ms. Rebecca Villegas, Member STATEMENTS The Chair directed the Committee to proceed to the next order of business, FROM THE Statements from the Public on Agenda Items. PUBLIC ON AGENDA ITEMS: The following individuals registered to speak and came forward when called by the Chair: Eileen O'Hara: Bill 82 (Comm. 496), in support. (representing Hawaiian Shores Community Association) Timothy Rowan: Bill 82 (Comm. 496), in support. (representing Malama O Puna) Greg DiBenedetto: Bill 82 (Comm. 496), in support. Stephanie Bath: Bill 82 (Comm. 496), in support. James Hoffman: Bill 82 (Comm. 496), in support. Virginia Aste: Bill 82 (Comm. 496), in support. PCHSW-4 October 3,2023 Nanette Savage: Bill 82 (Comm. 496), comment. Carrie Kowalski: Bill 82 (Comm. 496), in support. Gilbert Hauanio, Jr.: Bill 82 (Comm. 496), in support. Ruth Ann Tarletz: Bill 82 (Comm. 496), in support. Hannah L. Hedrick: Bill 82 (Comm. 496), in support. Frank Commendado: Bill 82 (Comm. 496), in support. Jolani Shrinski: Bill 82 (Comm. 496), comment. Jordan Epperson: Bill 82 (Comm. 496), in support. Sheldon Lehman: Bill 82 (Comm. 496), in support. Jon Olson: Bill 63 (Comm. 395); and Bill 82 (Comm. 496), in support. CHR KAGIWADA: Thank you, Relley, and thank you all for your testimony. We really do value community input. Clerk, could you please read in Bill 63? BILLS FOR The Chair directed the Committee to proceed to the next order of business, ORDINANCES: Bills for Ordinances. Bill 63: AMENDS CHAPTER 14, OF THE HAWAII COUNTY CODE 1983 (2016 EDITION, AS AMENDED), BY ADDING A NEW ARTICLE RELATING TO MAINTENANCE OF PRIVATE, NONDEDICATED, AND NON-SURRENDERED ROADS Provides the opportunity for entities who control the use of private, nondedicated, and non-surrendered roads that are open to the general public and necessary for public transportation to request that the County assist with the maintenance of such roads. Reference: Comm. 395 Intr. by: Mr. Kaneali`i-Kleinfelder Postponed: August 15 and September 5, 2023 (Note: There is a motion by Mr. Kaneali`i-Kleinfelder, seconded by Ms. Evans to recommend passage of Bill 63 on first reading.) CHR KAGIWADA Thank you so much, Clerk. So, the bill is already on the table, to the introducer. Page 2 PCHSW-4 October 3,2023 Withdraw Bill 63: Mr. Kaneali`i-Kleinfelder announced the withdrawal of Bill 63. CHR KAGIWADA: Alright, thank you so much. Any comments from anybody else? Okay we'll go ahead and withdraw that. And Clerk, could you please read in Bill 82. STATEMENTS The Chair directed the Committee to proceed to the next order of business, FROM THE Statements from the Public. PUBLIC ON BILL 82 The following individual registered to speak and came forward when called by (COMM. 496): the Chair: Margaret Bartell: In support. CHR KAGIWADA: Thank you. Clerk, could you please read in Bill 82. Bill 82: AMENDS CHAPTER 2, ARTICLE 9, SECTION 2-40 AND ADDS 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 Allows for entities who are authorized to make legal decisions regarding private, nondedicated, and non-surrendered roads that are open to the general public and necessary for public transportation to request that the County improve, grade, repair, or perform other construction work upon such roads. Reference: Comm. 496 Intr. by: Mr. Kaneali`i-Kleinfelder Motion to Approve: Mr. Kaneali`i-Kleinfelder moved to recommend passage of Bill 82 on first reading. Seconded by Ms. Kierkiewicz. (Note: Comm. 496.1 dated October 2, 2023, from Council Member Matt Kaneali`i-Kleinfelder; and Comm. 496.2 dated October 2, 2023, from Council Member Cindy Evans transmitting proposed amendments to Bill 82, were circulated.) CHR KAGIWADA: Alright, to the introducer, please go ahead. MR. KANEALII-KLEINFELDER: Thank you. Okay, Bill 82. So just a quick backstory, Bill 63 was our first draft—was doing very well, but some of the amendments that you're going to see in Bill 82 necessitated a title change. When you change a title of a bill, you have to restructure and bring in a brand new bill. So, Bill 63 was withdrawn this morning. Bill 82 is the replacement; same intent, little bit different in structure. Page 3 PCHSW-4 October 3,2023 So, this is four years of hard work from myself, the community, leaning on State laws in collaboration with our departments. We have Public Works joining us today. We have Corporation Counsel in house. I see Fire and Finance here as well. I have been in discussion with all the departments throughout this process over four years, and I've been racking my brain on how to fix the problems we have in our community that stem from, as we are today, 60 years; 80 years of creation. So, I really do feel that Bill 82 is a good place to land, and we have crafted something pretty amazing here. I also want to mahalo Chair Kimball for allowing me to keep this on the agenda. It was asked by the Council, when are you going to come back with something solid? I was going back and forth amending and amending, and I said October, and here we are in October, and it required a breach. And so, we are here today to discuss. So, thank you for that. I was going to give some background, but I think the community expressed it this morning. We have ambulances, we have emergency response, we have police; we have public safety. All these different issues that we're hoping to address, and the community is looking for a way forward. The funding isn't there. The roadway miles are tremendous. And there's just this feeling of hopelessness, is what I get a lot when I speak to people in the community because we haveI don't want to say we. They're not the Council or not this Council at least, but I mean just in this state of being, here we are. We have miles of private roads that the community is in charge of and doesn't have the funding to take care of. So, we've created an impossible situation and handed it to the community. This bill becomes the process by which we hope to start making amends. So, I'm not going to get into how it feels to drive the roads. They're brutal, and this is island-wide. This is not a Puna specific issue. I have to mention, a big mahalo to the folks who drove here on those roads today to testify in front of us to tell us how they feel, and what it's actually like to do that every day of your life. You go home and make dinner for the kids, and between you and that dinner and your job is 10 miles and 45 minutes of driving through potholes, washouts, gravel; just pretty bad circumstances. So, today we have the opportunity to uplift our residents' lives, by creating a process that helps improve private roads in our subdivisions island-wide. This is a monumental change in the way we look at our private subdivisions and the effects of these roadways on our citizens. It's a monumental change for our constituents if we're able to do this and move it forward, and it helps address Page 4 PCHSW-4 October 3,2023 60 years of issues that have been created by pre-statehood subdivisions and no Subdivision Codes in place to make sure things were done properly at the beginning. Again, Department of Public Works (DPW) have been more than helpful, and I really do appreciate the collaboration in getting us here. Ms. Strance has been more than helpful in helping us get amendments together to make sure this bill seats well in our law set and also is legal. The staff in Legislative Research Branch (LRB) has been absolutely amazing in helping it get to this point today and make sure we're on track. And the community has been solid in their push to make this come forward and help find a solution. I am hoping that everyone had a chance to read this bill. There is an amendment I'm going to go ahead and motion in that will amend our last comments from our meeting on Friday with the departments. So at this time, I'm going to go ahead and make that motion. Motion to Amend: Mr. Kaneali`i-Kleinfelder moved to amend Bill 82 with the contents of Comm. 496.1. Seconded by Mr. Inaba. CHR KAGIWADA: Discussion on the amendment. MR. KANEALI`I-KLEINFELDER: Thank you. There's a number of amendments here. I want to call attention to the first section, which is Section 2. This bill does two things. Chapter 2 is where we seat a lot of our departmental regulations. Chapter 2 is being amended to allow and to follow-up some of the wording that is in place in other sections to allow other duties and functions conferred upon by the department by ordinance or statute. That's the only place that we're touching Chapter 2 in this bill. That's important to know. The rest of the bill focuses on a new Section 14-26, and that's the home of this bill in Chapter 14. So, it's important to know we have two different homes for this. Chapter 2 and Chapter 14. Many of you have had the opportunity to read this. The amendments were suggested by Corporation Counsel, and we were able to process them over the weekend and get them back onto the Council for today to meet the deadline. Given everyone's ability to have this document in front of them and read it, I'm going to yield to questions from the Council at this point. Thank you, Chair. CHR KAGIWADA: Okay, thank you. Comments or questions from the body about the amendment? Yes, go ahead, Council Member Kimball. MS. KIMBALL: Note, no questions on the amendment. I'm supportive and want to go forward with the main conversation . Page 5 PCHSW-4 October 3,2023 CHR KAGIWADA: Thank you. Council Member Galimba. MS. GALIMBA: This is (Comm.) 496.1, right, that we're talking about? I guess, correct, basically it's a lot of amendments to kind of digest. So, maybe could you talk us through it a bit? CHR KAGIWADA: Thank you, go ahead, to the maker. MR. KANEALI`I-KLEINFELDER: I can either answer now or wait until everyone's has a chance to speak. CHR KAGIWADA: Why don't you go ahead and just talk us through it. That might help, as Council Member Galimba stated, it is a lot and we just got it. So, go ahead. MR. KANEALI`I-KLEINFELDER: Thank you, Chair. I do appreciate that, Council Member Galimba. It's a heavy bill and it was a heavy lift to get to this point. The meeting on Thursday was substantial and the amendments were pretty much all in alignment but required a lot of changes throughout the whole bill. So, I'll run through it in a summary kind of a way. I won't go step by step, but that should give the background. So, the main comments on what you're going to see here is how we—after a review by the department of the roads that are brought forward by the community. It was more the change to bringing it back as feasible projects. And the difference between, "shall identify and shall bring forward projects"to "shall identify feasible projects,"really begins starting to summarize what you're seeing here. That required a long list of amendments to bring that into effect across multiple sections of the bill. The reasoning for that is, the community is going to request the road to be improved, and we as a body need to know funding wise what it's going to take and whether it's even a feasible project to take on. That's a department driven aspect of this process, and the feasibility does come back to the review by the department. So, you're going to see a lot in here. You know, we're moving a section, and then putting a feasible list, or work undertaken be feasible. So, that really does center, I think, a majority of the amendments being provided to the bill within this amendment. As well, there's some housekeeping in Chapter 2. That's the first section that we had. That's pretty straightforward. Then skimming over a little bit more, the Control and Liability section was amended, as well as, I'm looking for the major changes, and that the way that the director and the community worked together towards the end of the process. Page 6 PCHSW-4 October 3,2023 These were comments from Ms. Strance. If there were further comments here from the Council, I may lean in on Ms. Strance to help me answer why these amendments were done. Mainly, to summarize really well, we're looking to protect both the community and the County on the backend of an agreement that is formed in lieu of this process being created by us. I think this would be a better conversation as we get to the main body of the bill. So, I can run through the whole thing versus just the amendment. And it is a lot. Sorry, it's a lot of—we're talking about a lot of different chapters and sections, and been a big undertaking. MS. GALIMBA: I appreciate that, Council Member Kaneali`i-Kleinfelder. You're talking it through, and also that it's a big lift that you're undertaking, and I do appreciate you undertaking it. So, I'm understanding that most of these amendments are from a legal standpoint from Judge Strance, or was some of it also from Public Works? MR. KANEALI`I-KLEINFELDER: These were a blend of community, Public Works, and Corporation Counsel's comments, as well as the Council's. Then coming back. I mean, in two steps: One, a brand new bill to codify the results of many discussions over the last six months. Then, finally the last-minute amendments to the bill, which were necessitated by some of the issues that were pointed out by Corporation Counsel and Public Works last week and working with LRB over the weekend to get those back in front of us today. MS. GALIMBA: It is a much better bill than (Bill) 63. So, I commend you on that. Much better, and I will yield for now. CHR KAGIWADA: Okay. Council Member Inaba. MR. INABA: Thank you. On the amendment,just if there's any comment from any of the departments right now? Alright, if not, I'll be supporting the amendment, thank you. CHR KAGIWADA: Okay, any other comments on the amendment? Council Member Kierkiewicz. MS. KIERKIEWICZ: Thank you, Chair. On the amendments, there are a lot of changes with respect to ensuring that we're very clear about the list of projects that Public Works may act upon, are feasible. There's the eligibility that list of 10 criteria, but then there is this insertion of the word, "feasibility." And I wonder if that is going to be defined anywhere, because I think we all have a very broad or different definition of what a project that is feasible looks like. Page 7 PCHSW-4 October 3,2023 CHR KAGIWADA: Go ahead, back to the maker. MR. KANEALI`I-KLEINFELDER: Thank you. Feasibility and then good catch. Yes, the move towardsoriginally, this came back to us with a list of projects. As we looked at that, that could be cumbersome, and that's heavy for the department, and it's also heavy for us in the community. So, I'm trying to figure out a way to qualify any number of roads that are brought forward by our island community. And come back to the Council with a list of roads that has laid out costs, how it meets the criteria; what it does for the community. Does it crosshatch with DOE (Department of Education), Mass Transit routes? Hitting that level of feasibility in the department, do they have funding, do they have the manpower; does it meet our criteria and our guidelines that we set forth in the main content of the bill? Then coming back to us with a list of feasibility and feasible projects, and you can see the transition from just projects to feasibility. Definition, I would lean in on the department at this point in the conversation to see if they're looking for a definition of feasibility. But I know on the general sense for us, feasibility, meaning you know, adhering to a number of guidelines and criteria that we've set forth, which is in the main bill, and do we have funding and manpower to get it done? So, I think that may be a question for me, and that's about the best that I can answer right now. I would lean in on Steve a little bit to see if he has a better definition of feasibility or a requirement. CHR KAGIWADA: Thank you, the floor is still yours, Council Member Kierkiewicz. MS. KIERKIEWICZ: Thank you, Chair. Director Pause, thanks for tuning in and being part of the conversation. Just wondered if you might want to weigh in on what your department considers to be a feasible project. And I just bring that up because there are so many priorities that your department and our County juggles with a limited budget. So, you know, I certainly am very supportive of this work considering the number of private roads that are in Council District 4, and I just want to find a path forward and sort of level expectations of community. You know, I certainly don't want anybody to think that they fill out a form and automatically the County is going to pave that road, because that's not what's going on here, right? There's eligibility criteria, but then also there's a determination by the County around what is feasible. And I would be more comfortable going forward if there is some sort of definition; a prescription of what is being considered to deem a project feasible. Because people come and go from the dais; from the Administration, and I think we all, as members of the community,just want Page 8 PCHSW-4 October 3,2023 something very clear that we can lean on to ensure that decisions are being made fairly. CHR KAGIWADA: Director Pause. (Note: At this time, Public Works Director Steve Pause came forward to address the members of the Committee.) MR. PAUSE: Yes, thank you, Council Member Kierkiewicz. Steve Pause, Director of Public Works. I think Council Member Kaneali`i-Kleinfelder captured a number of the items around feasibility. Obviously, it speaks to funding. It also speaks to resources, and I think we've captured that Public Works, especially with our Highways group has a lot of resources; has a lot of equipment. But it also has a lot of additional work to do as well. So, you speak to those two things as well as a little bit further down, we talk about access and being able get the legal agreements in place. Right of entry, those sorts of things. And then also just comparing from a feasibility standpoint, looking at all the other work we've got going on. Prioritization with the condition of say, these roads, the private roads versus the County roads. I don't think we've landed on exactly what a definition of feasibility is, but I think at a minimum, you're looking at a number of items that all kind of have to be part of that decision criteria. So, it speaks to a number of items, I guess it's the best way that I could describe it. MS. KIERKIEWICZ: Thank you. To the introducer and folks collaborating on this bill, I'm going to push for a definition of what feasibility looks like, especially because so many of these amendments rest upon a list of feasible projects. Unless we know what is being considered to make a decision, it's really hard to get behind, you know, fully supporting this bill. Thank you, Chair, I yield. CHR KAGIWADA: Thank you, Council Member. I just want to take a brief second to say that we're at the 10:30 (a.m.) mark right now, which is, we're supposed to be starting our Finance Committee meeting. If it's okay, I'd like to extend this meeting. It looks like we'll have plenty of time for Finance. We have some extra time built in after that before the Policy Committee on Planning. So, I guess I just want to hear from the body, is that okay with people if we extend our time now to finish this discussion? Anybody have concerns? Okay, thank you. Then we will continue the discussion on the amendment. Council Member Lee Loy. MS. LEE LOY: Thank you. I have a question actually, about resources. Because what I don't think has been answered for me is the ability to use public dollars on a private road, and maybe this is a question for Judge Strance. Help Page 9 PCHSW-4 October 3,2023 me walk over that question of is it possible to use fuel tax dollars, you know, other public dollars on private roads? Point of Order: MR. INABA: I just want to make sure that we're on the amendment, right? CHR KAGIWADA: Right. Are we still on the amendment? MS. LEE LOY: Well, it's about resources, right? CHR KAGIWADA: So, it's about the feasibility question? MS. LEE LOY: The feasibility and there's language within this amendment that talks about available resources, and one resource would be funding. So, that's my question. CHR KAGIWADA: Okay, since we're talking about feasibility and everything and it seems like resources and being able to pay for that is a major issue around that, I'll allow it. So, let's go ahead. Judge Strance, would you like to weigh in? (Note: At this time, Corporation Counsel Elizabeth Strance came forward to address the members of the Committee.) MS. STRANCE: Thank you and good morning. Elizabeth Strance, Corporation Counsel. Council Member Lee Loy, there's two parts related to your question. One on, may public dollars be used for private roads? As you know, when we've had lots of discussions about the Public Purpose Doctrine that normally would prevent public money being spent for private purposes. What Section 265-1(a) does by Statute, the Legislature is saying, this limited purpose is a public purpose. So generally, you can look at case law for public purposes, and you can look to identification of public purpose through legislative action. So, this would be one of those whereby legislative action, the Legislature has determined that they're under certain circumstances, this relationship shares a public purpose. Having said that, there are other laws regarding other funds that limit funding to public roads. So, the County's work on private roads does not make those roads public. And so, it's a limited exception to the law allowing the County to do work on private property, but it doesn't displace other laws that are expressed. MS. LEE LOY: Thanks, Judge Strance. I yield. CHR KAGIWADA: Thank you. Council Member Evans, on the amendment. Page 10 PCHSW-4 October 3,2023 MS. EVANS: Yes, okay. So, I'm looking on Page 3, (h), and it's talking about, "if sufficient appropriations and necessary resources for roads on the list of feasible requests become available. . ." Then it goes down and now we've added, "and insurance." Now, my question is, is this liability insurance that the County is looking for and that's why we added it to this section? So, Judge Strance? CHR KAGIWADA: I don't know if this was your addition, Judge Strance, but could you maybe speak to it? MS. STRANCE: Thank you. Yes, it was. So, the law envisions that there be three to four different place categories that we look at. First is eligibility. So, there's several different parts of the law. One is eligibility; who can ask, feasibility, what can be done; approval, then execution of it. On the execution part, the bill envisions that there would be a contract entered between the County and whatever entity has come forward and that there would be various provisions within the contract that sets out the rights and responsibilities of the parties. One of which may be that the private owners provide liability insurance so that the County doesn't get held liable for work that is done or other conditions outside its control, and so it's not unlike most contracts that the County has with private parties. I'm trying to think if I've seen private contracts that don't have insurance provisions, and I'm not thinking of any offhand. MS. EVANS: I guess I get a little confused because other places in this talk about the Director of Public Works putting together some agreement that people have to sign. Okay, somewhere else in there, there's something about him trying to get approvals and agreements from the requester. Then of course, I have issues, what does requester really mean? Because I heard from everybody here that spoke up, you know, you have a road association; you have people that live down the end of the road. So, who's really going to be the requester? So, I have a big question about officially the requester for the road, and do they have the right as the requester to do that? But then, I get into, so now we have the requester. Then the department determines it and then it says in here that, requirements through an approval and agreement can be done by the Director of Public Works. Now, we've thrown into this section, that now they have to provide liability insurance, and I have concerns about adding the liability insurance. I guess I'm thinking that if the County has gone through the list and they've really thought through how important it is to the community for emergency access route for the ability for people to get in and out. And the County's decided to use funds to actually do that, I would kind of think anything that's Page 11 PCHSW-4 October 3,2023 being done on the road, we're already covered by our own insurance. I mean, doing the work. So, I guess what you're concerned with, and maybe this is the bigger question. Do you think that if we go in and repair the road to make it passible, that we're still going to have problems because it might be, substandard to normal engineering standards? Is that going to be a problem if it's substandard, even after we fix it so people can drive out? I just don't see how asking them to do the liability is going to be the right thing to do. I don't know, I mean it could be fixed so it's going to be substandard. I mean it may be that they fix the potholes and make sure it's passible, and maybe it's only one lane and people still have to pull off to let people go by. So, what is the liability insurance really for? MS. STRANCE: Okay, there's a lot in that. First the definition of requester is contained in the bill that you folks will discuss. There is caselaw around not so much the County's work because you can't contract away your own negligence. So, if the County was negligent in its repair or whatever work that gets done. That's not what we're talking about. And the County is self-insured. We don't have insurance, but there's caselaw, because the County comes in to enter private property. It's not taking control of the road, and there have been lawsuits filed against the County for work unrelated to the road, or the work that the County has done on the road. So, the purpose of the liability insurance is really to cover the County for those kinds of other claims that might be made against the road owners. But because the County has done some work, is now being sued because it has the deep pocket. So, the idea of insurance is to protect the County from those kinds of broader claims. MS. EVANS: I guess it just goes back to the requester because you can't indemnify. So, the people asking for the work can't indemnify the County from doing the work. Instead, you're going to have them do liability insurance. I just see that as a heavy lift. MS. STRANCE: Yeah, I think we're talking about a couple of different things. I don't really know whether—and my hope would be that most road associations already have some insurance. So, it would be just a matter of adding the County as an additional insured. But the County, if it's going to do work on private property, it will be my very strong recommendation that it not undertake liability beyond its own work, and that would be what the purpose of insurance is. MS. EVANS: I don't know. I don't know where to go with this. I'm just real uncomfortable with it, but thank you, I yield. CHR KAGIWADA: Okay, thank you so much, Council Member. Council Member Kimball. Page 12 PCHSW-4 October 3,2023 MS. KIMBALL: Thank you, Chair. You know, I wouldn't be comfortable with this piece of legislation without that word of insurance in there. As Judge Strance mentioned, we are self-insured. So, when an incident happens and people look to who they're going to sue, they're going to look to who has the deepest pockets and that's us. With that said, you know, when we support projects through our Contingency Relief Funds or through our Grant-In-Aid funds, even those we ask to make the recipient an additional insured. Like, this is common practice for all of the activities we engage in when we are supporting private entities in their operations to protect us because we are self-insured. So, that has always been a concern of mine. This bill is what our liability is in our ability to protect ourselves and whether or not we can just do that through the legislation that's in here. I feel a greater peace of mind with the way this is going with that language in here. I think it's critical to the forward movement of this legislation. Thank you, I yield. CHR KAGIWADA: Okay, thank you so much. Anybody else on the amendment? If not, we have an amendment on the floor. I'll take a vote, all those in favor of the amendment,please say "aye." Vote on Motion The motion to amend Bill 82 with the contents of to Amend: Comm. 496.1, was carried by the following voice vote: (Approved) Ayes: Committee Members Evans, Galimba, Inaba, Kaneali`i-Kleinfelder, Kierkiewicz, Kimball, Lee Loy, and Chair Kagiwada—8. Noes: None. Absent: Committee Member Villegas — 1. Excused: None. CHR KAGIWADA: Thank you. Okay, back to the main bill. MS. EVANS: Chair. CHR KAGIWADA: Go ahead, Council Member Evans. Motion to Amend: Ms. Evans moved to amend Bill 82 with the contents of Comm. 496.2. Seconded by Ms. Lee Loy. CHR KAGIWADA: Alright, Council Member Evans, go ahead. MS. EVANS: Thank you. This is a change in definition for Bill 82. My community called and really pushed me to make clarity in the definition. It will Page 13 PCHSW-4 October 3,2023 read, "Private, nondedicated, and non-surrendered roads or subject roads means streets, roads, highways, ways, lanes." Then I'm adding "or emergency access routes used for purposes of vehicular traffic." The reason they wanted the emergency access route is because a couple places up in my community there have been recognized these emergency access routes which have been pushed in by bulldozers and gravel put on them. But because of washouts and rain, you know, it's been a problem to keep them passable. So, they just wanted to make sure that emergency access routes get included in this bill. Thank you. CHR KAGIWADA: Thank you. Anybody else on this amendment? Council Member Kimball. MS. KIMBALL: I don't necessarily have any objection per se to the language, although I'm not sure that it is necessary to distinguish it from ways and lanes. I don't see a problem with having it in there, but I think it's already covered. I don't know, Clerk, any thoughts on that? MR. BROWN: I might want to recommend maybe that question be deferred to Corporation Counsel,just if she wants to give a legal opinion on that. MS. KIMBALL: Okay, Judge Strance, is there really a distinction between emergency access routes and ways or lanes, the other items identified in here in this definition already? MS. STRANCE: Good morning, Elizabeth Strance, Corporation Counsel. The simple response is, I don't know. I think you have streets, roads, highways, or lanes. I think the critical part of what can be repaired will really go to the authority of the requesters. I don't want to pass the buck to Steve, but there may be a legal definition in highway parlance that I don't know off the top of my head. I can look to see if there are definitional differences either in our Code or the Hawaii Revised Statute and get back to you if that's important. MS. KIMBALL: Yeah, to the requester, I'd almost like to just have a little bit more feedback on this. I mean the other thing is too, as I don't know if this would inadvertently like loop in the firebreaks that fire builds, that I don't think was ever intended to be added to what we're considering here. But you know, a piece of legislation this complex, I think we'd want to be super careful about this wording. So, I kind of want to wait and get more information on this. Thanks. CHR KAGIWADA: Would it help, Director Pause, do you have anything at this time to add that you could clarify for us. MR. PAUSE: Hello, Steve Pause, Director of Public Works. No, this discussion, I think, as Judge Strance summed up, it comes down to a legal Page 14 PCHSW-4 October 3,2023 definition. I know that it's part of the bill, there is language in there about conferring with Civil Defense, and clearly when we have those conversations about emergency egress and evacuation routes, that would be considered in identifying the types of work that we would be looking to do. So, I'm not sure that that sufficiently captures it, but I'd defer to Judge Strance as far as the legal words. CHR KAGIWADA: Alright, thank you Director. Council Member Kaneali`i- Kleinfelder. MR. KANEALI`I-KLEINFELDER: I think for the maker, I too, I'm open to this, and I can see the direction and I like it. We were very careful about the wording we used in our definitions, and we even necessitated some major revisions to the bill to reallyI mean the title itself is a revision because we used the exact same language from the State Statute in the title. And we did that because we have concerns about using any other words, because that was our allowance via State Law. So, I don't have any glaring issues with this. I'm not Corporation Counsel. I almost would want to approach this just to run through the bill the way it is. I'm not saying take this off the table, but maybe let us get to the conversation for Bill 82 as it is right now, as amended, which is again a lot to take in, and then see how it fits in and how it plays into our definition of private, nondedicated, non- surrendered roads, if you're open to that? Thank you. CHR KAGIWADA: Alright. Council Member Lee Loy. MS. LEE LOY: Thank you, since I seconded the motion. Actually, I wanted it in there because I think about some of our emergency evacuation routes that we have in Keaukaha. I understand that it's for private, nondedicable roads, and so, I mean, let's face it, Chapter 2 is the junk drawer of codes. Everything gets dumped in there if it doesn't fit someplace else. So, I'm game to take it out for a walk and see if it works. If not, it can be amended out later, or just sometimes not even considered. So, I think it just gives us as much crayons in the crayon box that we need if this bill keeps moving forward. So, I'm going to support it. I yield. CHR KAGIWADA: Thank you. Anybody else on the amendment before going back to Council Member Evans? Okay, Council Member Evans. MS. EVANS: Thank you. Well, you know, I'm in strong support of it because I think the community even today, really pointed out the need for emergency access. These roads really need to be for people to get in and out for emergencies. Page 15 PCHSW-4 October 3,2023 This is a definition. I think definitions are really critical; it shows legislative intent, it shows that we didn't leave it out. We could be silent on it and not mention it, but I think mentioning it does take into account like what happened in, you know, these tsunami evacuation routes, for example; or in Waikoloa, the wildfire evacuation routes. The discussion that keeps going on, for example, you know, I'm looking at Sheldon and I'm thinking of Volunteer Fire Departments and how they punch in these amazing firebreaks that are 100-feet firebreaks that people want to be maintained as their emergency access route. I just think it gives a little flexibility. I'd be surprised if it jeopardizes against the Hawaii Revised Statute if someone feels they need to review the statute to move it forward. I respect that, but then I would ask that, you know, I'd really like to see this changed, but I don't now what the way forward would be. To postpone it or to put it off until you have an opportunity to review it, or table it until a little later so you can double check, you know, the State Statute. CHR KAGIWADA: So, those are options, but we have Corp. Counsel who seems like they might have more to add to this conversation. Let's see what she has to say. MS. STRANCE: Thank you. Elizabeth Strance, Corporation Counsel. My preference would be that you not vote on the amendment. The comment was made we could amend it out later, but I'm not sure that that's accurate. Once you pass the amendment, it would probably require a motion to reconsider to undo it. So, procedurally more palatable to add it in later, and that between now and the next meeting, it would put together some comments on the issues that were raised both by you, Council Member Evans, and by Council Member Kaneali`i-Kleinfelder regarding the scope of the statute. CHR KAGIWADA: Okay, thank you so much. Council Member Inaba. MR. INABA: I would just maybe ask DPW and the Fire Department when we do take this back up, if we could get an answer as to whether there are emergency access routes for purposes of vehicular traffic that are not streets, roads, highways, ways or lanes. Because then I think that kind of gives us an idea what adding this term would do for us or wouldn't do for us. So, yeah, that's my thoughts, thank you. CHR KAGIWADA: Okay, thank you. So, to the maker of the amendment, if you'd like to table, you could table. Page 16 PCHSW-4 October 3,2023 MR. BROWN: Excuse me, Chair, if you don't mind, I might be able to offer an option that the body could consider. CHR KAGIWADA: Thank you. MR. BROWN: The maker of the motion could withdraw her motion at this time, her amendment. She'll have the ability to bring that back later. Withdrawing it allows you to do that. If you vote it up or down, you know, you kind of lose that ability to do that. So, one option is you could withdraw right now, and then bring it back at a later time, if she so pleased? CHR KAGIWADA: Alright to the maker, what do you want to do? Withdraw Motion Ms. Evans withdrew her motion to amend Bill 82 to Amend: with the contents of Comm. 496.2. CHR KAGIWADA: Alright, thank you so much. Okay, back to the main motion. Anybody want to speak? Council Member Kaneali`i-Kleinfelder, go ahead. MR. KANEALI`I-KLEINFELDER: Thank you. Okay, as far as Ms. Evans, I'll work together with you, and LRB, and Corporation Counsel to figure out whether it's already included or whether we need to add to make you more comfortable to get that in. Because I know that's important to the community, and that's what we're addressing and all at once. MS. EVANS: Right. Thank you. MR. KANEALI`I-KLEINFELDER: Okay, so real generally, looking at Bill 82, as amended now, this is allowed via Hawaii Revised Statutes 265A-I provides that by ordinance we can authorize, in general, the use of public funding towards public roadways. But there has to be a public purpose, and that's what we're here to do, and that's what this bill begins to do. The revision from Bill 63 to Bill 82, as amended, really laid out eligibility requirements, and I'll answer questions as we go. But the eligibility requirements, the process by which we're creating, and I think this is important. I've seen this a number of times in my time on the Council. We create the process, the department implements the process, and the community is served. So, that's what we're doing right now. This is the process by which the community asked for a road to be improved. The department has full discretion to review, and we also play a role, but it's this process development tool that we are making right now. That's what's in front of you. This doesn't mean we do anything. This just creates the process by which the community and the County work together to provide public safety. Page 17 PCHSW-4 October 3,2023 Okay, so from Bill 63 to Bill 82, and again LRB, mahalo for what you guys did. One person in particular, and you know who you are. We defined requesters, the people who are going to come and request. This is community driven. So, I'm not as a Council Member, going to walk into the community and say, we're fixing that road. It is community driven. The community wants something improved; they're going to come to the department. We as the Council, we can't make good decisions unless we know what we're looking at. So, the department, through this process that we're creating is then reviewing the requests by the community. That means looking at it in the feasibility lens, which is what we've spoken to this morning, which is looking at a project for cost, how we're going to do it, who's the requester? Does it meet the criteria, does it meet the guidelines; does it overlay with Mass Transit, DOE, is there an evacuation route? What criteria is it meeting, what guidelines is it meeting? Do we have an agreement with them? Can we get it done and how much is it going to cost? Because we, as the Council can say, "Hey, we need to appropriate funds to this idea that we've created, this process." And the department said, "This is how much it's going to cost." They either do or don't have enough money and do or don't have enough manpower. But the least we can do is create the process, okay. So, the process is laid out very clearly in this bill; how, who, what, where, when. Once that's done, there's a review period within the Department of Public Works to actually reach out to our other departments to see how it overlays with them. Mass Transit, Civil Defense, Fire, Police. This creates a very well-rounded discussion. When it comes to the Council finally, to move and appropriate or to fund and move forward via Council resolution, we now have had the full data spectrum presented to us. Community driven, department reviewed, what it's going to take, is there funding, and we can move it forward via resolution. That's another catch, too, for the community to come forward and say, "yes" or "no"to a road being improved. It creates, to me, a very nice circle of community, department, Council, action. That is a beautiful combination of work. It's not a one-sided move by the Council or the Administration. It's a very well-rounded spectrum. The most important thing I think I need to lay out is this (HRS) 14-26-6 Section, which lays out the process. You know, Steve and I went back and forth, and ultimately, we centered in on really defining the process itself. And I'm going to Page 18 PCHSW-4 October 3,2023 lean on questions from the Council to answer. I'm not going to run through the whole process, it's lengthy. We've all had this bill, we've had time to review. So, process very heavily defines, maybe even a little bit too heavily defined, but sometimes clarity is better than vague. Then finally, control and liability, because these are always things we centered on. As far as County's liability, the liability of the folks asking for the improvements, and the discontinuance of work, if so requested by the community. So, Chair, I'm going to yield. I'd like to answer questions if there are any and work our way through this and not take up too much time. I apologize. CHR KAGIWADA: Thank you so much. Okay, Council Member Lee Loy. MS. LEE LOY: Thanks. Thank you, Mr. Kaneali`i-Kleinfelder. So, I want to walk this process out real quick. Mr. Pause, you know, a requester comes in and you guys go in to do this analysis, the feasibility. How long does that take? How much gravel? I'm trying to understand what would go into the feasibility of determining what the road requires and if there are road standards that would need to be met? MR. PAUSE: Steve Pause, Director of Public Works. So, a lot in that question. I think the first assumption we can make is that we're going to be requested to do work or make repairs on substandard roads. So, I think that going in, that's going to be the likelihood, and on the other side of that, if it's a fair bat, that whatever work we do is still not going to bring it up to County standards, or at least the current County standards. So, having said that, there's information in the proposed bill, especially around the eligibility for the criteria. I think it really becomes a matter of doing an analysis on, you know, once the request comes in and making it as specific as possible. But as you pointed out, we're going to need to go out, we're going to need to take a look at the request. We're going to need to look at what level of repairs are required. You know, it's not going to be a simple thing because the problem you're going to have is, when you send an engineer out to the field, they're going to want to continue until it's done completely properly right. So, that's going to be, I think, our biggest challenge is, how do you identify where your work zone is, if you will. What level of work needs to be done to, at a minimum, make that roadway safe again, or safer improved for safety. So, I think as you pointed out, there's going to be some level of assessment and analysis that's going to have to be done just in the physical roadway itself or you know, say we're dealing with a drainage culvert that's collapsing or something Page 19 PCHSW-4 October 3,2023 associated with the features of that road. I think that work is going to have to be done, and I think that the bill is allowing for us to take some time to do that. Come up with measurements as far as, you know, how much asphalt, how much shoulder work. All of those sorts of things, that you'll come up with something that is going to allow us to at least understand what the undertaking is. MS. LEE LOY: Thanks, Mr. Pause. Follow-up question. Could the community deviate from a particular standard? So, you know, maybe they just want to get some potholes filled and not go through the extensive work of, you know, grading the shoulder; creating, you know, a real robust road or travel-way. There really is just what I heard some of the testifiers mention is just to minimize wear and tear, and damage to their cars. Could they deviate from the standard? MR PAUSE: I think the answer to that question is, there's going to be circumstances where we will have to deviate. Simple things; to use cold patch or hot patch. The bottom line is whatever we do has to be an improvement, and it has to not sacrifice safety. So, whatever improvements are made, have to make the road safer. That is probably one of the most difficult parts of this is when you come across a situation where, you know, you've got issues with shoulders, you've got issues with striping, you've got issues with pavement surface, you might have some drainage issues. It may not be as simple as just going out and repairing a pothole. I think we'll have to assess it, and yes, do the minimum. But at the same time, walk away and create a situation that's safe. I think ultimately, Public Works would support a policy that would improve safety for public use of the roads, and I think the challenge is going to be, where does that begin and where would it end when someone requests work on a particular road? MS. LEE LOY: Could they also deviate? You mentioned like cold patch, could they also deviate from that type of material? MR. PAUSE: How so? I'm sorry. MS. LEE LOY: You know, Director Ramzi Mansour walked in and made me think about construction demolition material, and I have a whole hotel to take down at Banyan Drive, which has a lot of construction rubble that could be laid to help to begin to improve the roadways. MR. PAUSE: So, recycled materials. Yeah, I think you and I talked about that. It would be a good discussion to have with Director Mansour as well. Any sort of reuse or recycling. You're aware that we recycle cold plane when we take up old asphalt. Recycle that, and we use it for dressing shoulders and doing some repairs on gravel roads. So, yeah, anything we could do to reuse materials we would definitely consider. Page 20 PCHSW-4 October 3,2023 MS. LEE LOY: Thanks, Mr. Pause. A little bit of latitude. Mr. Mansour, if you don't mind, because I'm really looking at maybe even developing a pilot project with acknowledging that this bill in its form could pass. But let's try and work out a pilot program while we go through the strokes of getting it passed. Mr. Mansour, construction demolition material. You and I have had conversations about that related to Uncle Billy's. Could some of that construction demolition material be ground down to a particular size aggregate for use on roads in Puna? (Note: At this time, Environmental Management Director Ramzi Mansour came forward to address the members of the Committee.) MR. MANSOUR: Aloha, Ramzi Mansour, Director for DEM (Department of Environmental Management). The answer to your question is, yes. We could work with the contractor who's working on Uncle Billy's Hotel and specify certain gradation for road-mix material. MS. LEE LOY: Thanks for that. Then we also had a conversation that Mr. Kaneali`i-Kleinfelder and I had with you regarding tires, right? We were going to try and get a lot of the tires that are being incentivized, people returning their tires. Could that be chipped up and mixed in to help develop material for road paving? MR. MANSOUR: This is possible as well. We need to look at the size of how far we could get these tires, because they're rubber. If you don't add adhesive to it, it's rubber and when you drive over it, it's going to move around and it's going to jump all over the place. So, the idea of it getting mixed with demolition material that's probably made out of concrete, to a smaller size and get mixed with—maybe added some type of adhesive or water or something to put them together, it could be possible. So, for a pilot program, it'll probably be a good one if everybody is willing to do it. Bring the synergy and it'll be a great pilot program to do. MS. LEE LOY: Love it. If it's circled back around, maybe we can hand off a pilot program for Mr. Kaneali`i-Kleinfelder to tackle, as we start to take down Uncle Billy's and do the tires—look at him smiling. He and I sat in that meeting earlier about the tires and just almost—stars are beginning to line up a little bit. Excited about what this could turn into. MR. MANSOUR: I agree. We need to start thinking outside the box. Our landfill is filling fast. So, I agree with Director Pause about—they are really recycling their old asphalt as they remove it, and some of these demo material would be great for subgrade or you could use it for all-weather roadways, because concrete is made of gravel as well. So once you demolish it and recycle it, it'll give you the same benefits. Page 21 PCHSW-4 October 3,2023 MS. LEE LOY: Thanks Mr. Mansour. Thanks Mr. Pause. Mr. Kaneali`i- Kleinfelder, I think I have a pilot program for you. You guys keep working on putting this process together, but I would want to try it without it, because there might be more tinkering you would need to do as we go forward. Thank you, I yield. CHR KAGIWADA: Okay, sounds good. Thank you, Director, and thanks for that possibility going forward. But back to the main motion. Who's interested? Council Member Evans. MS. EVANS: Thank you. For Mr. Pause, good morning. So, I'm looking at the details that are in this bill and wondering if you will be doing any rulemaking after this bill gets passed, or are you looking that we get real deep? It seems that we're getting deep in the weeds a little bit here. Some of it looks like rulemaking to me. But would you do rulemaking on this? MR. PAUSE: It's an interesting question because we've had this discussion. Mr. Kaneali`i-Kleinfelder mentioned when we met last week. It seems that if we're doing a good job of really defining a process here, that it takes away from the need to do any specific rulemaking. And I think a lot of our conversations we're trying to provide the right amount of guidance, if you will, in setting up a process to really identify, you know, how do you make a request and what happens after that. I think some of it also was with this process in allowing DPW to do an assessment. It was also to kind of align with funding opportunities, so that we're on a cycle that would allow us to, you know, come to Council once we've received the request; and we've gone out; and done our homework to evaluate and analyze, and then come up with numbers. So, I haven't thought it all the way through, but I think that we're doing a fairly good job of being prescriptive enough that we may not need additional rules. MS. EVANS: Yeah, and that means a lot to me because if we don't do rulemaking then we have to get a little bit more in the weeds and process in the bill. So, I'm looking at Section 14-26-5 on page 4 (c). You know, I know you made a statement earlier about whatever you do to the road, you'd want to make sure it becomes passible and it's a very safe road. But it's saying under (c), that, "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,"whatever that means, "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 installation have been met." That's a lot in that paragraph. Page 22 PCHSW-4 October 3,2023 So, it kind of takes away or does it take away from the original comment, that you would make repairs that would make it safe, which means maybe not up to what? There's nothing in here that says to what level or standard to make it safe. So, there's just a lot of like unknowns, that's why I was thinking rulemaking sometimes is an opportunity to clarify things. But if you don't want to go that route, it just seems to me we're doing a lot. And I want to say, thank you to the maker, because I know this was a heavy lift, no doubt. Because if we're not going to do rulemaking, we've got to really get clear what the process is in the bill. So, curious how you're going to address (c), when it says you're not supposed to include installation or maintenance. MR. PAUSE: Well, at some point, as you're aware, there's some judgement that has to be incorporated here. You know, this section for instance says, we're not going to deal with drainage facilities. But you're out in the middle of a private road that has all kinds of potholes and one of the biggest potholes is because you've got a collapsed 50-year-old galvanized pipe that goes underneath the road or drains from the road. So, I mean, those sorts of things, I think, the intent here is whatever we do when we touch the road, it has to be safe when we leave it. And there's a lot of language in here about liability and insurance. But at the end of the day when Public Works is out there and making repairs, I feel like we have to address the issue of, you know, what is causing this? And that will be part of the analysis and assessment that's done upfront, right? It may not be feasible to take on some of these things, and we'll clearly define feasibility. But all of that work has to be done as part of that front end evaluation of what you're going to be doing before you get out there. MS. EVANS: Thank you, I yield. CHR KAGIWADA: Alright. Council Member Inaba. MR. INABA: Alright. Regarding the requesters. So, requester means, the representative body authorized to make legal decisions about the road, or in the absence of that body,persons collectively owning a 60 percent or greater interest. So, I'm just wanting to make sure, in some cases, there's a road that is used by the public that may be owned, like I said in a previous meeting, either by an entity that no longer exists or exist but the entity doesn't have a representative on island or who can be contacted. In the case where they can't be contacted or they're not able to be reached, do we know whether the collective ownership could still make the request? Is that something that was previously discussed? And most of these questions are for the maker. Page 23 PCHSW-4 October 3,2023 CHR KAGIWADA: Okay, go ahead. MR. KANEALI`I-KLEINFELDER: Okay, so the defunct organization ownership having ownership of the road. We have that situation actually in a number of these subdivisions. The original developer is no longer present or has gone defunct. And now they are in charge of upkeeping the roads. They, as a collective, because there's two pieces to the answer. One, the road has to meet the criteria that we set forth in this ordinance; and then two, the organization or body or group of people who want to request that the road be improved, it would have to be 60 percent of that. So, it's allowing either to happen as long as they meet the general criteria of the roadways we're looking to improve. The third part would be more behind that where we, sorry, I'm thinking of three different pieces of this. This is for private, nondedicated and non-surrendered roads. So, that definition, and that's why I was hesitant for Ms. Evans' bill. When we define private, nondedicated, and non-surrendered, that's for roadways that are owned by persons other than governmental entities which have not been dedicated or surrendered to the County. So, that's the third piece of the answer for you. That would qualify; that roadway, because it's not owned by a government, it's not owned by an individual. It's a non-owned private, nondedicated, or non-surrendered roadway. So, the definition kind of answers your question in a roundabout way. MR. INABA: Okay, thank you. For DPW, and kind of in line with Council Member Evans' question, do we anticipate creating a form or some type of document for the public to use? Because right now it's saying that they'll request in writing, I believe, but I know in other cases we do provide forms to kind of help focus in and assist the public and assist us in getting information that we need. MR. PAUSE: Thanks for that question. It was something I hadn't thought about. But absolutely, anything we can do to simplify the process. You're well aware that we have lots of forms and request-type of applications on our website. We're also in the process of redoing our website, but I think that this appears to be one of those circumstances or situations where providing kind of clear-cut guidance and/or a form would probably be in the best interest of everyone. So, definitely something I hadn't thought about. Thanks for the idea. MR. INABA: Awesome. Thank you. To the maker, Section 14-26-4, Subsection (5), which determines whether a road is eligible. It says, "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 Page 24 PCHSW-4 October 3,2023 has two or more condominium buildings . . . What was the reason for selecting those numbers? MR. KANEALI`I-KLEINFELDER: Thank you for that question. Can I? CHR KAGIWADA: Yes, go ahead. MR. KANEALI`I-KLEINFELDER: These were, again, two-part answer. Existing ordinances within Oahu and Maui. And they actually classified them at 12 to 15 (percent) instead of 50 (percent). For our island, I found this more fitting. My intention or our intention really, is to focus this ability, this process into our subdivisions that are large, not improved, and not a smaller subdivision that has a half-mile of roadway instead of 70 (percent), and a better ability to take care of their issues that they face. Again, I'm really trying to focus on our large, unimproved, substandard subdivisions across the island. So, numbers, I would say, are open to change if you have a situation that you're looking at in particular. But these, in my mind, shift us to the right area; as far as classifying who's eligible. MR. INABA: Thank you. Section 14-26-5 talks about the type of work that's allowable based on this bill. Have we considered painting, striping of the roads? Because in some cases we don't have asphalt or paving that is, you know, damaged or in bad condition, but no striping on the roads. So, does this bill allow for striping? CHR KAGIWADA: Go ahead. Thank you MR. KANEALI`I-KLEINFELDER: I would say, it's considered, but I'd have to lean on the Director. For me, 14-26-5 lays out how we would respond to a request by the community, and what work we would do, and with what kind of material. If striping was not allowed, I would be surprised, but I'll leave that to the Director. MR. INABA: Thank you. Director Pause. MR. PAUSE: Yes. I don't know that it's specifically there, but clearly if you were to go in and repave sections of roadway that had striping, you'd want to replace it and return it to its original intent. I don't know that the language is there, specifically. But you know, it might be something to also consider, because in some cases, not having the proper lane markings may also impact, you know, the safety of that roadway. So, I don't know that it's here specifically. I guess I would think that maybe it should be or maybe it's implied. I'd have to read this a little further. Page 25 PCHSW-4 October 3,2023 MR. INABA: Okay, thank you. I would like that just to be clear, because in some cases we won't need paving we just need striping and want to make sure that we can get that if that's the case. Let's see, 14-26-6, Subsection (c), number (1). We're talking about—it seems the more of these numbers that are checked off, the higher the priority would be for a request that is submitted. So, the roads that were created or platted before December 21, 1966. To the maker, the reason for that? MR. KANEALI`I-KLEINFELDER: Subdivision Code. MR. INABA: Okay. So, we're saying based on this that roads that were platted prior to then, get priority? Am I reading it correctly? MR. KANEALI`I-KLEINFELDER: Yes, that is the intention. It's to not be selective towards those projects only, but to hold them to a higher standard or to a higher level of consideration better wording. As well as looking at emergency mass transportation, alternate routes. Basically, the more public purpose that you're showing and the more reason for having these roads improved, would be for them to be evaluated higher by the department and come back in that feasible list of projects. So that when we're reviewing, we can make a good decision on what's the best way. If we get a thousand roads requested, we have to have a way of going to the information and making a good decision. MR. INABA: Okay, understood. I don't know that I can support that being that a lot of the roads in my own district were not platted before 1966. So, in some cases, roads in other districts might always get a few extra points there. So, I have to think about that. And not that there are a lot of roads in my district that would need, you know, this Section of the Code for help. But I just wanted to point that out. Section 14-26-7, Subsection (a)regarding discontinuance of County assistance to improve these roads. It says, "if the director determines that such road no longer meets criteria set forth in this article or when requested in writing by the requester." What was the intention of this subsection because it's saying discontinue assistance? Last question, thank you. So, is this implying that once we offer assistance that we continue to maintain it in that same way that we originally helped for that road, or is it again, like a one-time request where we fulfilled the request, and that's it? There's no further expectation of continued assistance for that road. CHR KAGIWADA: Go ahead. MR. KANEALI`I-KLEINFELDER: So, this Bill 82 actually necessitated the removal of the word, "maintenance," and that was at the comment of Page 26 PCHSW-4 October 3,2023 Corporation Counsel and DPW. Because maintenance actually begins to say, we're going to do this all the time, every six months, every two years. So, the moving to the wording of, "repair,"which is more of one-time fix. And there being this ongoing process within the County where we're reviewing roads and finding resources and then doing the repairs. That's one-half of the answer. Two, if the community ever did come forward and say, "hey, we don't need this repaired anymore, we're going to fix it" or "it's no longer something we're going to hold open to the public." Whatever could happen or disappears, covered by lava, there has to be a way of stopping the process and allowing the department to remove it from their list, or if the director finds it not applicable, then he can remove it as well. I like this because it actually creates the end. MR. INABA: Got it. Thank you so much, Chair. I yield. CHR KAGIWADA: Okay, thank you. Council Member Kimball. MS. KIMBALL: Thank you, Chair. A few questions and some editorial changes which I'll connect with you about later in the interest of time. But maybe I'll start with asking a couple questions of Judge Strance. I know my colleague brought up with the definition of requestor, this idea of only getting 60 percent of the ownership signing on. I wanted to just affirm, because that was a question I had last time, that that was going to be okay to not have full endorsement from all of the owners of the road for something like this, because there'll be insurance requirements and the grant of easement, right of entry and all of that. Is it okay to only have only 60 percent? MS. STRANCE: Elizabeth Strance, Corporation Counsel. Because this statute allows for the entry onto private roads, the number it implies is sufficient expression of desire. I think that, you know, there has to be a strong enough expression for the County to come do this work and then, an ability to take responsibility for basically having a client to communicate with as the process moves forward. So, rather than reinventing the wheel, Council Member Kaneali`i-Kleinfelder simply adopted procedures that were already being used by other counties. And I think our requirements may be a little higher than others. The 60 percent is something that we've seen over time in some condominium documents. Sometimes you see 66 percent, sometimes you see, you know, 75 percent, but this seems like a reasonable number in light of the challenges being faced by some of these associations where they can't get enough votes. MS. KIMBALL: I really appreciate what Council Member Kierkiewicz said at the beginning, kind of addressing the issue of managing expectations with this Page 27 PCHSW-4 October 3,2023 bill. And one of those has to do with roads in limbo, which I want to make sure we're very clear, would this or would this not cover roads in limbo? MS. STRANCE: I don't think so, because there's nobody to act on behalf of the owners of the road because the road is in limbo. MS. KIMBALL: Right. Thank you for that. We'll have that on the record. I did have concerns about the area of, let's see, "shall not do improvements that include drainage." Okay, 14-26-5 (c); this is more for the maker and for DPW. Since it's a"shall not" and not a"may not." You know, it is a"shall" here. I'm imagining where there will be incidents where alterations to the road may result in movement of water into different places. And so, given that we have limitations about what can be done with that, I think there's got to be some wiggle room in this provision with respect to that. The other one here, I'm sorry I skipped over it, where Council Member Inaba was talking about with the 50 or more contiguous parcels, residential structures—did a quick cursory look at the code to see if we had residential structures defined elsewhere. I didn't see it. It might be a question for LRB but are we talking permitted structures? Are we talking ohana units; are we talking, you know, there's lots of structures that could be counted. Given that they're going to be probably competition for funds for different roads, we need to have that pretty clearly defined in my mind. The other perhaps radical comment that I will make is per Section 2, 14-26-6 (k). You bring in this whole procedure of authorizing—after the department has looked at things, determining that they're eligible, determining if they're feasible, we are now bringing it to the Council for resolution. And it may be unusual for a Council Member to say, "but I don't want this authority." I think that it's an additional step that is potentially going to muddy the waters a lot. I would rather have a really well-defined eligibility, feasibility,prioritization from the department and let them move on it with their expertise rather than bringing a potentially lengthy and political final step in the process. So, as I said, unusual for a Council Member to say, " I don't want to vote on this." So, I consider putting this to the rest of my colleagues. I mean, do we need this? It feels a little bit like Council overreach in my mind too, so. Then lastly, I concur with Council Member Inaba with respect to the identification of the Subdivision Code 1966. If we are truly thinking about health and safety and wellness, it should matter most, the condition of the road; the public benefit, and not necessarily a somewhat arbitrary date. So, I would prefer to see that excluded as well. Thank you, I yield. Page 28 PCHSW-4 October 3,2023 CHR KAGIWADA: Alright. Anybody else want to weigh in? Council Member Galimba. MS. GALIMBA: Thank you, and I would agree with Chair Kimball's assessment about not wanting to have the Council having to make decisions on every road. I think it'll be better if it was a very clearly delineated priority process within the department. I guess I wanted to ask and maybe I'll ask it first of the maker. Given all of this process that it goes through, I'm just wondering if it might be better to actually turn the road into a public road. Like some of the testifiers talked about,just one or two key roads into or out of their subdivision be possible. And given that, I'm just wondering whether that might be the better option rather than having it be a private road that we're going to have all of these worries about, you know, is it safe, it is not safe? I know being new, maybe the discussion already happened a long time ago. But I just wanted to see if that sort of had been part of the thought process, or if it was, you know, that danger there kind of a thing. MR. KANEALI`I-KLEINFELDER: There's a number of ideas there, Council Member. Classically cost, I think is really your up front to that. The cost of taking on four miles of roadway when we struggle to do a 30 to 50 miles of roadway a year and find finding. Having that cost of taking a road that may or may not be wide enough, that we may not have easements for. Condemning, improving and then adding to our inventory becomes your enemy. It's what I've seen in the past. I love the idea. It did come up in our meeting, how we just take ownership of these and move on. There's a huge cost in taking over the ownership of some of these roadways if they include bridges; if there's a waterway, drainage, curbs, gutters; a standard that we have to meet. So, yes, I love it. I'd love to see us get there one day. For the time being, this is a comfortable step we can take, resources wise. But I hear you. MS. GALIMBA: Right. Yeah, I just wanted to go there just to find out what the thought process was on it. Because this is not just in Puna, there's a couple of subdivisions in my district which are gigantic. So, yeah, I think the question of priority and how do we rate, you know, importance is going to be really key in this whole discussion in creating something that's helpful and realistic and gets the most important things done. So, that's all I have. CHR KAGIWADA: Thank you. Council Member Kierkiewicz. MS. KIERKIEWICZ: Thank you, Chair. Director Pause, could you walk me through hypothetically, if this ordinance was adopted by the Council, the process and timeframe to implement including resources, staffing to set all of that up? Page 29 PCHSW-4 October 3,2023 MR. PAUSE: To answer your question, I'm not quite sure that I'm in a place to walk you through the process. I was sitting here and there's a person here from DEM, and we were talking about process mapping and how much maybe we could visually show the mapping of the process that's identified here. But you did bring up a point about resources, and I think that is listed as one of our largest concerns. Council Member Kaneali`i-Kleinfelder mentioned that, you know, we're looking to continue what we started last year with respect to paving miles. This just adds additional work to our Highways group,primarily, Traffic, Engineering as well. But I think that's the challenge. I haven't thought far enough in terms of what additional resources we may or may not need to implement this. But I think, again, the process is laid out. I just need a little bit more time to digest it and speak with a little bit more factual knowledge, Council Member. MS. KIERKIEWICZ: Thank you for your honesty. You know, I'm assuming because this is such a heavy lift that it will remain in Committee for further discussion and refinement. And I'm hoping that by the next discussion you would be able to provide us with some kind of infographic that walks the Council and the community through a potential process just so that we're really clear. I'm curious and to the introducer, this ordinance that is before us, this draft bill, was developed based on other counties' codes, and I wondered if you had an opportunity to speak with other counties; their Public Works Director or other Council Members, to understand how they've been able to successfully implement the legislation and how many miles of road and communities were positively impacted. Do you have that information? MR. KANEALI`I-KLEINFELDER: I don't, but I can get that for you. MS. KIERKIEWICZ: Thank you. I think it's really helpful to understand the real-world experiences other counties have faced, especially for modeling legislation after them. Just some questions about the ordinance, and again, very supportive of this, but I think you have a little bit more work to do here. Section 14-26-5 regarding allowable work upon private, nondedicated, non-surrendered roads, my colleague, Council Member Inaba brought up striping. I also wondered if lights and signage would also be considered improvements that the Public Works Department would be making? And I say that because you know, my partner is a fire fighter. He works at Station 5 in Kea`au, so he often responds to calls in the acres. He has also worked at Station 18 in HPP (Hawaiian Paradise Park), and I can tell you that in addition to the road Page 30 PCHSW-4 October 3,2023 conditions, there isn't adequate lighting, and you're not quite sure what road you're turning onto. So, if we're talking about really improving these roads, signs to mark what street you're on and other lights, I think, could be helpful. Just a thought. Also, in that Section (c), I do, you know, concur with my colleagues around reconsideration around other improvements. If we are paving roads, I just worry about unintended consequences, as it relates to drainage. So, working with the departments to come up with something reasonable there. There was discussion around the word, "maintenance" Corp. Counsel Strance in Section 14-26-6 (e). I feel like there's a workaround that has been developed when we talk about maintenance. Can you speak a little bit further on this because there is something here that talks about ongoing work? So, I just want clarity for community. Is it a one-time thing? Are we taking on maintenance? What does that look like? MS. STRANCE: Thank you. Elizabeth Strance, Corporation Counsel. I believe the intention of the Statute is that it's a one-off kind of thing, and the reason for that is that if the County were to undertake ongoing maintenance responsibilities, there's a legal issue that it now controls the road, and that is not the intent of this Statute. It's simply to make roads more passable. There's been roads that haven't been worked on for all the reasons that testifiers stated. So, it's an attempt to come in and provide some relief. But the intention of this bill is not to undertake ongoing responsibility for the conditions of private roads. MS. KIERKIEWICZ: Okay, I think we may have a problem then with Section 14-26-6 (e) (3) and(4), where it talks about ongoing work,potentially. MS. STRANCE: Agree. Point of MR. KANEALI`I-KLEINFELDER: For Section 14-26-6 (e), there is no 4. Clarification: MS. KIERKIEWICZ: In (3) and(4), it mentioned ongoing work. So, I'm looking at Bill 82. MR. KANEALI`I-KLEINFELDER: Because we've amended, we should be reviewing the amended version, and there is no (4)under that Section. MS. KIERKIEWICZ: Sorry, we just got this this morning. So, it's a lot to sift through. I just want to make sure that any reference to ongoing work is removed. MR. KANEALI`I-KLEINFELDER: I think we did catch that. It was a substantial shift from Bill 63 to 82, so excuse the amount of clarifications we've Page 31 PCHSW-4 October 3,2023 included. The white copy would be the best copy to read from, which would be the amended version. MS. KIERKIEWICZ: Thank you. Lots of papers to sift through. I appreciate everyone's patience. There was also reference in the ordinance related to less feasible projects being provided to the Council on an annual basis. Sorry, were there changes made to that section as well? I don't think so, not seeing it in my white copy. In Bill 82, first version, it's Section (g). I don't recall seeing any amendments to this particular section. CHR KAGIWADA: Sorry, can you clarify which section that was? MS. KIERKIEWICZ: Yes, Chair. Still in Section 14-26-6 (g), the annual report that's compiled for the Council. CHR KAGIWADA: Okay, there does look like there's an amendment to (4). Is that correct? MS. KIERKIEWICZ: Just confirming there's going to be a list that's provided and wondering if the timeframe of calendar year is most appropriate or if we should be aligning with our budget schedule, our fiscal year. So again, a question for the introducer and project collaborators to consider. I guess, I just want more clarification about this list. Is it like our Capital Improvement Projects, CIP, list where something stays on for three years or does it stay on forever similar to PONC (Public Access, Open Space, and Natural Resources Preservation Commission) until the issue has been resolved? Just looking for a little bit of clarity on what we can expect from this list. CHR KAGIWADA: You can answer. MR. KANEALI`I-KLEINFELDER: I don't want to speak for the department. There's a few things to your answer. The end of this bill proposed has a one-year effective date. It gives the department one year to figure out process. The list coming back to the Council was aligned with our budgetary process. Because if they're coming back to us December 31st with a list, that give us and the departments time to figure out budgetary needs prior to when we see our first budget in March; then finally approved, June 30th, or in our process towards the end of our fiscal year. So, that was discussed in our meetings. And again, I don't want to speak for you, Steve, but that was the intention, was to bring this list back to us and give us time to think about what we want to do as far as funding; what the department can do as well with that one-year implementation effective date; allow us to create process; run through what the application process looks like; and get this Page 32 PCHSW-4 October 3,2023 together while we figure out the details. There's a lot going on. There's a lot of different moving pieces. So, to your question, yes it does align in my eyes. If there are suggestions, completely open, and it allows us time and the department time. But even more so, with that one-year date of implementation of this ordinance, allows them to figure out the process within the next year before we even begin. You know, those are all really important aspects to answer your question. MS. KIERKIEWICZ: Thank you. There was a second part in terms of how long projects that are identified as feasible remain on the list. Do they stack similar to PONC, or is it like our CIP process where a project is elevated and it's good for three years and then it has to be reupped? I mean, I don't know this is not my bill and you might not have an answer today, but I think it's really important for us to know what that is before we make decisions on how we move this forward and if there is, you know, clarity that's needed. Chair, I really appreciate the latitude, I just have a couple more questions. I'm hoping that it's something that, again, the team that's working on this bill can, you know, make a decision around. And I do want to give Finance and Public Works the opportunity to just ensure that the timeframe for submitting the report is something that you know works for them. Completely agree with your response, Mr. Kaneali`i-Kleinfelder, but at the end of the day, the Council does not implement this legislation. It is going to be under direction of the Administration. You know, Council Member Kimball did make a really interesting and provocative idea with removing the Council resolution requirement. I think if that's going to be done, I'm going to continuously push for having a definition of what feasibility means and having a scoring rubric similar to what's seen developed for the Council Grant-In-Aid process. Because at the end of the day, we are relying on a department to make decisions, and I trust them. They're experts in their field, but we also know that sometimes decisions are made in a vacuum for what is perceived to be political reasons, and we want to remove politics for the decision-making process. So, I think it's really important to have clear guidelines around how decisions are made when we identify that a project is feasible or not. Then again, I just want to point out, very important, because we refer to enabling Statute to (HRS) 265A-1. It says the counties may do this. It's not a requirement that we maintain roads. So again, I really appreciate the creation of the process, but going back to leveling expectations around what is actually possible. Page 33 PCHSW-4 October 3,2023 So, I look forward to hearing, not just from Public Works, but I think it's really important to hear from our Finance Department. But at our next, you know, subsequent meetings to understand the fiscal impact of this potential legislation. Thank you, Chair, I yield. CHR KAGIWADA: Thank you. I think Council Member Evans, you have a quick thing, and then we'll try to wrap this up so we can get to our next committee. MS. EVANS: Just wanted to point out, it says in here that, when a requester submits an application, the director is to respond within six months. So, I'm just following the timing issues. So, when you look at this and analyze it a little bit more, look at the timing of it. Because you know, if these requesters come in within six months, he has to go "yeah or nay" and has done all the work that he has to do to make a"yeah or nay." That doesn't mean they have the money. So, they still have to come back to us and ask for the money. That's why I'm thinking the resolution, to me, it still has purpose. It really brings it out forward. It really talks about, you know, the due diligence. And in fact, we're estimating this to be the dollar amount,because my concern is, we just don't have enough money for our roads, and we'll probably never have enough money for roads. But if it really elevates itself to a really public safety issue and getting people in and out safely, let's do it. You know, but anyway I like the resolution. Thank you, I yield. CHR KAGIWADA: Thank you so much. I'm going to just give a couple comments and then we're going to wrap this up, because we need to go to our next committee meeting. Thank you, all my brilliant colleagues, for asking so many good questions and coming up with issues, I think, the maker probably has a lot to think about. I'll just say, that I'm in agreement with my colleagues around not having this come to Council for every individual decision. I really like the idea of seeing the list presented to us, and Council Member Kierkiewicz's idea of making sure we really define feasibility, and we understand what the rubric is for how the decisions are made, making it very transparent. So, I think that's all good. Also, the issue around setting up expectations. We had so many wonderful people come out and testify and why this is so important. But I think it really is critical that we say that this is not going to be a solution for every road problem. We have a lot of issues in the County, and I second other people's thoughts that we really need to understand the cost to our County doing this. Page 34 PCHSW-4 October 3,2023 I understand there's a year to kind of set this up, but even before that, before we vote on it in the final form, I think we really need to understand. Even though you said it doesn't mean that the County would do anything or has to do anything. Really, we are committing to looking at, if people ask for their road to be evaluated, at least evaluating them. So, we are committing to that piece, and that does come with a cost with, you know, time from DPW and other agencies that have to weigh in. So, trying to get a handle on what those basic costs are, I think are super important. One question that is just a minor thing, but I just had a question about, with this issue about the owners being 60 percent. If you're in the other 40 percent, could you lodge a protest order or say, I don't want this to happen? Is that something that could happen? MS. STRANCE: Thank you, Elizabeth Strance, Corporation Counsel. That's an interesting question, and one we haven't necessarily talked about. But the process doesn't currently envision a public notice type of piece to it, and that might be something to consider because it may affect the feasibility if there were a lot of objections to it. So, I think that would be worth having further discussion on. CHR KAGIWADA: Okay, thank you. Alright, I think with that it sounds like, as a group we'd like some more information around things going forward, and we'll look forward to that and further discussions. But at this point, we have a motion on the table to move forward Bill 82 with a favorable rating, and I'd like to take the vote. All those in favor ofoh, sorry. MR. INABA: Chair, I think we would like to keep it in Committee. Mr. Kaneali`i-Kleinfelder. CHR KAGIWADA: Okay, go ahead. MR. KANEALI`I-KLEINFELDER: Chair, yeah, the original motion was to forward to Council with a favorable recommendation. Given the amount of amendments we've brought in today and some of the discussion, I would like to keep it in Committees for at least one more meeting to catch up with the departments and then bring some of the comments I heard today or find ways to seat them in this bill. CHR KAGIWADA: Okay, would you like to make a motion? MR. KANEALI`I-KLEINFELDER: So, at this point, I'm going to motion to postpone Bill 82, as amended with the contents of Communication 496.1 to our next meeting, which is October 17 at Committees. Page 35 PCHSW-4 October 3,2023 Motion to Postpone: Mr. Kaneali`i-Kleinfelder moved to postpone Bill 82, as amended to Draft 2, to October 17, 2023. Seconded by Mr. Inaba. CHR KAGIWADA: Any discussion? MR. KANEALI`I-KLEINFELDER: I did have one thing, Chair. Thank you everyone who came today. One, we're going to postpone this for further discussion, further consideration, and to find out the details of what transpired today. So, thank you for your patience. And two, I appreciate everyone's time today. This is a heavy lift. We over-ran our Finance Committee, and we have people waiting for us. So, I really do appreciate time at all levels spent on this. This really is probably one of the bigger issues that we have island-wide in my opinion. So, thank you for your time today. CHR KAGIWADA: Alright with that, we have a motion on the floor. All those in favor, please say "aye." Vote on Motion The motion to postpone Bill 82, as amended to Draft 2 to Postpone: to October 17, 2023, was carried by the following (Approved) voice vote: Ayes: Committee Members Evans, Galimba, Inaba, Kaneali`i-Kleinfelder, Kierkiewicz, Kimball, Lee Loy, and Chair Kagiwada—8. Noes: None. Absent: Committee Member Villegas — 1. Excused: None. CHR KAGIWADA: We have a motion to adjourn. ADJOURN- There being no further business, at 12:01 p.m., Ms. Kimball moved to adjourn MENT: the meeting. Seconded by Mr. Inaba and carried by the following voice vote: Ayes: Committee Members Evans, Galimba, Inaba, Kaneali`i-Kleinfelder, Kierkiewicz, Kimball, Lee Loy, and Chair Kagiwada—8. Noes: None. Absent: Committee Member Villegas — 1. Excused: None. CHR KAGIWADA: We are adjourned at 12:01 (p.m.). Thank you. Page 36 PCHSW-4 October 3,2023 ADJOURN- There being no further business, at 12:01 p.m., Ms. Kimball moved to adjourn MENT: the meeting. Seconded by Mr. Inaba and carried by the following voice vote: Ayes: Committee Members Evans, Galimba, Inaba, Kaneali`i-Kleinfelder, Kierkiewicz, Kimball, Lee Loy, and Chair Kagiwada–8. Noes: None. Absent: Committee Member Villegas– 1. Excused: None. CHR. KAGIWADA: We are adjourned at 12:01 (p.m.). Thank you. Approved: li 2 9-3 Ms.venn Kagiwada, (Date) Policy Committee on 'ealth, Safety, and Well-being JK/dt Page 37