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Home My WebLink AboutCOM 0709.001 1998-2000 is j i t Stephen K. Yamashiro \ rgE.CFi\ Richard Wurdeman Mayor I�� t.l Corporation Counsel rr `�+na'•� " UA! 2g PPS 11 57 Taunt of Xu aii rcE, - j i ;JAW OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720-4262 • (808) 961-8251 • Fax (808) 961-8622 • June 15, 2000 c . O L rr • C C OPINION NO. 2000-01[ — N k r t - Honorable Nancy Pisicchio Councilmember, Hawaii County Council g — 25 Aupuni Street y N i , ; Hilo, Hawaii 96720 c SUBJECT: Sign Variance for Konawaena High School Dear Ms. Pisicchio: This is a response to your request for an opinion on the legality of a proposed sign to the located on private property along Mamalahoa Highway between Kealakekua and Captain Cook in South Kona.. The purpose of this sign would be to advertise various events, to be held at Konawaena High School. As the school is off the highway, such a sign on school property would not be adequate for that purpose. That segment of Mamalahoa Highway is maintained by the County, but is a Federal Aid Highway (FAP 11). It is a condition of Federal Highway Aid that the states initiate "effective control" over signs visible from Federal Aid Highways. Effective control, is defined as limiting signs to directional and official signs, signs pertaining to natural wonders and historic sites, signs advertising the sale or lease of the property on which they are located, signs advertising activities conducted on the property on which they are located, signs in existence before 1965, and certain informational signs to serve the traveling public. 23 USC §131(c). States which do not establish such controls are subject to having their highway aid reduced. 23 USC 131(b). Hawaii, to comply with this mandate, enacted what is now HRS §264 -71 -79 in 1966. This law prohibited the erection or maintenance of any outdoor advertising visible from a federal aid highway, again with exceptions similar to those noted above. HRS §264 -72. Such signs are deemed to be public nuisances HRS §264 -76, and criminal penalties were provided. HRS §264- 77. Another law, Act 233 of 1965, now HRS §445-111-121, regulates outdoor advertising generally without regard to visibility from federal aid highways. By virtue of the Act, a wide variety of signs are prohibited, including signs advertising meetings when not displayed on the Comm. No. • 00 File No., A Ref. To: PW ➢C ReCnite JJN 1 5 2000 Honorable Nancy Pisicchio June 15, 2000 Page 2 premises where the meeting is to be held. Although that Act delegates to the Counties to further regulate and control signs and billboards, that authority does not extend to signs that are prohibited. HRS §445 -113. Civil and criminal penalties are provided for violators. HRS §445- 121, 121.* The legislative power of the County to enact ordinances ends where it conflicts with a statute that is intended to be uniform in application throughout the State, HRS §46.1.5 (13), Citizens Utilities Co. v. County of Kauai 72 Haw 389 (1991). The billboard law previously discussed only delegates to the counties the limited authority to regulate signs that are otherwise legal, not to use a variance procedure to legalize prohibited signs. While I recognize the valid public purpose of this proposal, it is clearly prohibited by both the highway advertising laws. I reluctantly, therefore, conclude that the proposal that has been presented to you can not legally be accomplished. Sincerely, d er RICHARD D. WURDEMAN Corporation Counsel RDW:B3 PISICCHIO - Konawaena Hi Sch Sign *The constitutionally of this Statute has been questioned in light of the decision in Metromedia Inc. v. City of San Diego, 453 US 490 (1981). See Caldwell, K. Metromedia Inc. v. City o/' San Diego: The conflict between Aesthetic Zoning and Commercial Speech Protection; Hawaii's Billboard Law under fire, 5 Univ. of Hawaii Law Review 79 (1983). The law remains in effect, however, and for purposes of this discussion, it will be presumed constitutional. C — G — fJP:' x f ,� l \ -d. r r o• Nancy Pisicchio'c'!o'•. Tel: (808) 961 -8266 Council Member .,r Fax: (808) 961 -8912: ..�.r. r , COUNTY COUNCIL Coun FILE COPY County of Rowan ✓' Hawaii CauiryBuilding . 25 Aupuni Street Hilo, Hawn 'i 96720 June 15, 2000 `• Mr. Richard Wurdeman, Esq. Corporation Counsel Office of the Corporation Counsel Hilo Lagoon Centre 101 Aupuni Street, Suite 325 Hilo, Hawai'i 96720 Dear Mr. Wurdeman: Enclosed is a copy of a request from Mr. Daniel Yoshida, Principal of Konawaena High School, for two variances from the County Code regarding signs. See the attached description of the sign and variances sought. I would appreciate it if you could provide me with an opinion in writing regarding the following: 7 ; Under State law, does the County have the legal authority to approve a request for a variance to permit this sign to be installed off site, not on State property? Thank you for your assistance in this matter. • Sincerely, ti '`' i ;.. Nancy Pisicchio NP:sd Enclosure 77 -6399 Nalani St., Suite 104 Kailua -Kona, Hawaii 96740 Kona Telephone: (808) 326 -5684 Kona Fax: (808) 326 -5697 • •