HomeMy WebLinkAboutCOM 0370.009 2000-2002
DEC-19-2001 WED 08 07 AM CORPORATION COUNSEL FAX N0. 9618622 P, O1
r,
~`o: Chaigrnan .Tames Arakaki
F°a~ 8912
Subject: 13111225, I,~ra~ 4
1aa~: December 19, 2001
Pages: 3, including this cover sheet.
T°~ANSMTTTING: Letter to Galen Kuba dated 12/1$/01 regarding concerns raised by the
County Cotzraeil on 13111225 amending Chapter 22, Streets and Sidewalks, ;~awaii Cotanty Code.
COIViMENTS: laor Counci's information.
C®NF„e~`J,a1T.,I1`~'• This docuttacnt is intended only for the personal and confidential use of the person aaazayed
above and tnay be a privileged and confidential attorney-client cosa~ttsunication. If you are not the person agastacd
above, NOTICB IS ~lfY GIVEN that you are strictly prohibited from readitag, reviewing, disseminating and/or
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from the desk ot...
~e~a T~RtCA;9E
ASSISTANT CORP043ATION COUNSEL
COUNTY O4° FIAWAII
101 AUPUNI STREET' SUITE 325
HILO. HAWAII 96720
(808)96151
Fax: (808) 961-8622
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DEC-19-2001 WED 08:07 AM CORPORATION COUNSEL FAX NO, 9618622 P, 02
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lOl Aupuafi Street, Suite 325 • Heto, Hawaii 96720.362 ¦ (808) 961-8251 • FAX (808) 961-8622
I)ecernber 18, 2001
~1en Kuba, Director
Delsartment of Environanental 1Vlanagement
County of ~€awai`i
25 ~upuni Strut
13i1o, ~ia'wai`i 96720
Dear C;alen:
Re: CQrtcerais wised C cil on ' 1225
Azr;iendinsr Clraa9ter ~2. Streets and Sidewalks
Pll try ~d answer the questions as discussed with you regarding the concerns raised by
the Council on Bi11225 arraending Chapter 22, Streets grad Sidewalks, I~awai`i County Code.
(1) Wla i; Co 'l r ve from the variance rocess in Secti 22-71? ha
reviewing the other vaa7an~ provisions within the County Code, only the sign code requires th~¢
variances be granted by the County Co>tncil. F'or the most past, variaaaces are t~hraical in nataare
.grad therefore it was felt ur~ecessary to raise this processing to the level of the County Couxacil.
Building, stabdivision, - g, plumbing, and zoning vaxiaraces arc all done at deparCara.tal or
board level and do snot require Council approval.
(2} c 'on 2 - , c su a is t e D' for c e not to enforce the code.
8,.,~ ~ 2>: - recauestcd. We do not see the interpretation that is put forth by Council. The
wording in;Section 22-8.2(a) states that "the director shall serv® the person with a notice of
violation and osier pursuant to this section." Subsection (c) states that the "order gnay require the
person to do any or all of the following," and lists Svc separate actions that may take place. That
appears to only discretionary lara~aage and we feel it is appropriate for the director to be .given
soYrae latitude in detea~naining vrlaat type of penalties will lee required in an order of notice of
violation.
(3) Bxolain w11y Septemiser 1 ~sras used aid n®t Junc 30 in Suction 22 Vi(i)?
September 1 was the date drat was referenced in the zoning. code and there is no rationale as to
DEC-19-2001 WED 08 07 AM CORPORATION COUNSEL FAX N0, 9618622 P, 03
Galen Kuba, Director
Page -2-
Dccernber 18, 2041
why Septelrnber 1 rather than Juno 30 was chosen. V6~e would actually reconarnend that ito data bo
ixacluddd in order to allow the director to f lc with the Bureau at anytirnc, and not raise an issue as
to whether a filing if not Heads on Septetnber 1 of the year is still a valid ~1ing. Therefore we
recoa~nend deletion of the Septeanber t requirement entirely from this section,
(4) 1 c do o e o e o~ d so a" i .The
use of authorized personnel to issue a sumgraon or citation in a crianinal prosecution is made
necessary by Section 803-691<iawai`i Revised Statutes which states that officers are authorized to
issue citations in lieu of arrest. `hat authorization may be extended by the police chief to
specially deputized personnel.
(s) ~ . ~tiou ~2-8.5, which reXate~,s to egencv
Hewers is
~o~' ertt - coa><s~. tional rights. This section authoa~es the director where a violation
causes itaraent peril to public health and safety to, without a public hearing, order the
responsible person to ixrediately cease the activities, pcrgoran all accessary work and other
actions necessary to correct the violation. ~4, person's constitutional ~ghts are not absolute and
she County--has a legatiareate interest in protecting flee health, safety and welfare of the r~zernbers oJ'
the public, especially in emergency situations. Z`laese have -been recognized as corr~pellia~g state
interests seed as such >inay infiatsge upon the constitutional rights ofothers. See L)®e v. Cary grad
County, 8 ~aw.App. 571 (1991);1!?ar~darad v. ~'arag, 5 I~avv.l~pp. 453 (1985). T>1e general toile
govea~aia~g delegation of authority to executives, o~r'acers and bodies with respect to the
admia-zistratioa~ of statutes for the protection of public health, safety and welfare are generally
recognized as constitutional. 16 C.J.S. Constitutional I.aw ~ 161. Tt is our opinion that
Section 22-8.5 is constitutional for the protection of the health, safety, grad welfare of the public,
and there eacists a coanpelling state interest and a rational basis for the emergency powers to be
exercised by the director.
Sincerely,
It.AI.D TAKA.S~
Assistant Corporation Counsel
C.rT: de
r:/depdcrvilD4T g~lon council concereas bill 225/12-U1/G7de.wpd