HomeMy WebLinkAboutCOM 0496.046 2022-2024Matt I(aneali'i-Kleinfelder
Hawai'i County Council
District 5
Phone No.: (808) 961-8263
matt. kanealii-kleip?fc,,Idel-(a,)h(zw6iiicotinty. gov
Hawai'i County Council
County of Hawaii
Hawaii County Building
25 Aupuni Street, State 1405 • Hilo, Hawai'i 96720
DATE: December 4, 2023
TO: Heather Kimball, Chair
And Members of the Hawaii County Council
FROM: WMatt Kdneali'i-Kleinfelder, Council Member
SUBJECT: Proposed Amendment to Bill No. 82, D2; an Ordinance Amending Chapter 2,
Article 9, Section 2-40 and Adding a New Article to Chapter 14 of the I-lawai'i
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, D2. These proposed amendments
are shown below in Ramseyer format with respect to the contents of Bill No. 82, D2; material to
be deleted is bracketed and stricken and new material is underscored. A copy of the revised draft
of Bill No. 82, D2, that would result if these proposed amendments are adopted is attached.
1. In SECTION 2 of Bill No. 82, D2, section 14-26-4 would be amended to read as follows:
"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, [er] paving, or
other improvements as defined in section 14-26-5, 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;
(3) The subject road is open to, serves, and benefits the general public;
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(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 unit 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;
(1.0) [The euffent owners have lacked the finaneial fesourees of ability to seetife atithefity
to improve, grade, fepaif, of do eonstfuetion wofk upon the subjeet read f0f a period
suffieient to demenstr-a4e this ability will not be r-estafed or obtained within the
fefeseean=e future; and] The requesters demonstrate a lack of ability to improve
grade repair or perform the construction work requested pursuant to section
14-26-6 and supply documentation to this effect;
(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...], and
(12) The County is provided legal access and right of entry to work within the roadways
and adjacent areas necessary to complete the work."
2. In SECTION 2 of Bill No. 82, D2, section 14-26-5, subsection (c) would be amended to
read as follows:
"(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. Suns, marking, and lighting that were either removed as part
of the County's improvement, grading, repair, or construction work upon private roads or
nonexistent prior to the work, may be reinstalled or installed if the director deems
necessary."
In SECTION 2 of Bill No. 82, D2, 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 [die] process requests for assistance as follows:
(1) The director shall determine whether the subject road proposed for consideration
satisfies the eligibility criteria set out in section 14-26-4[. The dife ter shall] and
notify the requester of the director's determination within six months of the date the
written request is received by the department.
[(e)]Q [The] If the director determines that the subject road satisfies the eligibility criteria
set out in section 14-26-4 the director shall request comments from the civil defense
agency, Hawaii fire department, police department, mass transit agency, and [the]
planning department, regarding whether the subject roads [found to satis6, etio 1
26--4,] meet any or all of the following criteria:
[0)](A The roads were created or platted before December 21, 1966;
[(2-)]�B,) The roads are necessary to maintain emergency and mass transportation
access;
[(3)]n The roads can be utilized to develop emergency or alternate routes and
thereby promote community safety and the public interest; or
[(4)](D) 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)](3) [The] Following either the receipt of comments, or the expiration of the comment
period specified in section 14-26-6(b)(2), the director shall identify subject roads that
[have satisfied] satisfy section 14-26-4 criteria and have been identified by the civil
defense agency, Hawaii fire department, police department, mass transit agency, or
[the] planning department, as satisfying any or all of the criteria in [subseetion
(}]section 14-26-6(b)(2). Higher priority shall be afforded to subject roads that meet
two or more criteria listed in [subseetion ( ]section 14-26-6(b)(2).
[(e)](4) Feasibility. With respect to subject roads deemed by the director to satisfy the
criteria in [subsection (" ]section 14-26-6(b)(3), the director shall assess whether the
requests are feasible for assistance pursuant to this article, after consideration of-
[(4)]LAThe area of the requested improvements, gradings, repairs or construction
work;
[(2)](B) 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]
[0)]CQ The estimated cost and nature of resources necessary to complete the work
for each request[...]; qqd
(D) Appropriation and resource limitations.
[flLcjhe directors after consideration of the criteria set out in [seetion 14 2 ] sections 14-
26-4 and 14-26-6(b)(2) and appropriation and resource limitations, shall identify [feasible]
requests that are feasible, if sufficient appropriations and necessary resources can be
secured.
[(g)]Ld) The director shall annually compile and submit a report [that sufflinafizes its aetivi
from jantfafy 1 to Deeembef 3 1. This fepeft shall be submit ] to the Council by the end
of January [of the following year, and include-] that includes the following information:
(1) A summary of requests for assistance received [in] from January through December
of the previous calendar year[;]. This summary shall also include requests to
-
assistance received in previous years that have not been granted-,
(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(e)] 14-26-6(b)(2) criteria;
(4) A list of requests found to be feasible pursuant to [seetions 14 26 6(e) and ( ",*
stiffieient appfopfiations and neeessafy resoufees ean be see section 14-26-
6(b)(4); and
(5) An update regarding the status of [prejeets] requests identified as feasible in prior
calendar years[ , if suffieient appfopr-iations and neeessafy fesouf ees eauld be
secured.] that have not yet been granted.
[(h)]fgj 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, and easements[, and insufanee].
[(i)]� The requirement for a written request, approval, and agreement will not apply, however,
to:
(1) A [subjeet] 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.
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4. In SECTION 2 of Bill No. 82, D2, section 14-26-7 would be amended to read as follows:
"(a) The director [shall] may immediately 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:
(11) [sued] Such road no longer meets all criteria set forth in this article [&F]s
(2) The requested work is no longer feasible, pursuant to section 14-26-6(b)(4): or
(3) [when r-equested in 1,witing] The request has been withdrawn by the requester.
fb) 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[, thifty days] in advance of such proposed action.
[(b)]Ccj 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."
MKK:lc
Att.
ATTACHMENT
AN ORDINANCE AMENDING CHAPTER 2, ARTICLE 9, SECTION 2-40 AND
ADDING A NEW ARTICLE TO CHAPTER 14 OF THE HAWAIJ 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 HAWAPI:
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
,Ztntlifi. "
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, Hawai'i 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 Hawaii 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.
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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), Flawai'i 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, paving, or
other improvements as defined in section 14-26-5, 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;
(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 unit 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 requesters demonstrate a lack of ability to improve, grade, repair, or perform the
construction work requested pursuant to section 14-26-6 and supply documentation to
this effect;
(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; and
(12) The County is provided legal access and right of envy to work within the roadways
and adjacent areas necessary to complete the 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.
I
(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.
(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. Signs, marking, and lighting that were either removed as part
of the County's improvement, grading, repair, or construction work upon private roads, or
nonexistent prior to the work, may be reinstalled or installed if the director deems
necessary.
Section 1.4-26-6. 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 process requests for assistance as follows:
(1) The director shall determine whether the subject road proposed for consideration
satisfies the eligibility criteria set out in section 14-26-4 and notify the requester of
the director's determination within six months of the date the written request is
received by the department.
(2) If the director determines that the subject road satisfies the eligibility criteria set out
in section 14-26-4, the director shall request comments from the civil defense agency,
flawai`i fire department, police department, mass transit agency, and planning
department, regarding whether the subject roads meet any or all of the following
criteria:
(A) The roads were created or platted before December 21, 1966;
(B) The roads are necessary to maintain emergency and mass transportation access;
(C) The roads can be utilized to develop emergency or alternate routes and thereby
promote community safety and the public interest; or
(D) 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.
(3) Following either the receipt of comments, or the expiration of the comment period
specified in section 14-26-6(b)(2), the director shall identify subject roads that satisfy
H
section 14-26-4 criteria and have been identified by the civil defense agency, Hawaii
fire department, police department, mass transit agency, or planning department, as
satisfying any or all of the criteria in section 14-26-6(b)(2). Higher priority shall be
afforded to subject roads that meet two or more criteria listed in section 14-26-
6(b)(2).
(4) Feasibility. With respect to subject roads deemed by the director to satisfy the criteria
in section 14-26-6(b)(3), the director shall assess whether the requests are feasible for
assistance pursuant to this article, after consideration of.
(A) The area of the requested improvements, gradings, repairs or construction work;
(B) The designs and the types and amounts of materials appropriate for the
improvements, gradings, repairs, or construction work, pursuant to section 14-
26-5;
(C) The estimated cost and nature of resources necessary to complete the work for
each request; and
(D) Appropriation and resource limitations.
The director, after consideration of the criteria set out in sections 14-26-4 and 14-26-
6(b)(2) and appropriation and resource limitations, shall identify requests that are feasible,
if sufficient appropriations and necessary resources can be secured.
(d) The director shall annually compile and submit a report to the Council by the end of
January that includes the following information:
(1) A summary of requests for assistance received from January through December of the
previous calendar year. This summary shall also include requests for assistance
received in previous years that have not been granted;
(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(b)(2) criteria;
(4) A list of requests found to be feasible pursuant to section 14-26-6(b)(4); and
(5) An update regarding the status of requests identified as feasible in prior calendar
years that have not yet been granted.
(e) 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, and easements.
(f) The requirement for a written request, approval, and agreement will not apply, however, to:
(1) A 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 detennines has been dedicated by implication to public use for
roadway purposes.
(g) 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.
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 may immediately 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:
(1) Such road no longer meets all criteria set forth in this article;
(2) The requested work is no longer feasible, pursuant to section 14-26-6(b)(4); or
(3) The request has been withdrawn by the requester.
(b) 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 in advance of such proposed action.
(c) 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 malting 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 1.4-26-8. 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;
(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, Hawai`i Revised
Statutes, as may be necessary to implement this article."
12
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.
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