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HomeMy WebLinkAboutCOM 0230.005 1996-1998 - 4O,V~OF xw9i _ iliEi Stephen K. Yamashiro y i, Richard Wurdeman il~tayor Corporation Counsel 1Tt.'usiwe.N ~aixnf~r >r~ ~~£uttti OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street, Suite 325 • Hilo, Hawaii 96720-4262 • (808) 961.8251 . Fax (808) 961-8622 August 17, 1998 RECFJV® 1 Lk++a 8 t7 ~'af Co~niy Covn~il Ms. Leslie Chow Office of the County Clerk County of Hawaii. 25 Aupuni Street ]Flilo, Hawaii 96720 Dear Ms. Chow: Re: Bi1168. Draft 2 You requested our legal advice as to the following questions raised by the Public Works and Parks Committee in their discussions on Bi1168, Draft 2. 1. Section 46-1G, HRS, excludes private roads used primarily for agricultural and ranching purposes from operation of the County's authority to impose and enforce traffic regulations on private roads. If the Council wishes to regulate such roads, is it precluded by Section 46-16, HRS, from doing so? Language in 46-16 in quite clear. It states: "Any provision of law to the contrary notwithstanding, any county and its authorized personnel may impose and enforce traffic regulations and place appropriate traffic control devices, and may enforce chapters 286 and 291C, on the following categories of private streets, highways, or thoroughfares, exeeot private roads used primaril, f~a~licultural and ranching_purooses." [Emphasis added.] Thus it is clear from the statute that the County does not have the authority to regulate private roads used primarily for agricultural and ranching purposes. Undoubtedly it will become a factual question as to whether the agricultural and ranching purposes exceed the other purposes which we will assume are primarily residential. 2. Section 46-16, HRS, was adopted by the State Legislature to regulate private roads such as those contained in the many private subdivisions in Puna and Hawaii Ocean View Estates. However, many of these subdivisions are designated for agricultural use by the County Zoning Code. Does Section 46-16, HRS, preclude the County from imposing and enforcing zap. ~s Y°°tle Ne. ~C.~~VIEH~,~;,~ 12ef. tbi Presented W/'C_. ,tea AtlG 1 8.1998 Ms. Leslie Chow Page -2- August 17, 1998 traffic regulations on roads in areas that are designated for agricultural use by the County Zoning Code? Once again, based on the language of the statute and its legislative history, it is our opinion that the controlling factor is the agricultural and ranching use rather than the agricultural zoning. The amendments made by the legislature to 46-16 were specifically made with such private agricultural subdivisions as Hawaiian Ocean View Estates and Paradise Park, etc. in mind. Therefore it is our opinion that the based on the specific language of the statute, and the legislative history which took into account the necessity of regulating traffic within these agricultural subdivisions, that 46-16 does not preclude the County from imposing and enforcing traffic regulations in agriculturally zoned areas. 3. Inclusion of traffic regulations regarding private roads in the County traffic code, obligate the County Police to enforce these regulations, pursuant to Section 24-12, HCC. Can private roads be excluded from operation of this law if they are in such poor condition that it would be imprudent for police vehicles to traverse them? Since the County Council needs to adopt any of the traffic regulations for each and every private road, private roads can be excluded from enforcement under this law. Thus the County can decide which roads they will accept or not. Furthermore, the decision to enforce is within the administrative authority of the Police Department. Section 24-8(b) creates a bad road exemption for the County Council and will not require it to impose traffic regulation where both the chief engineer and the chief of police inform the Council that the conditions may result in the likelihood of damage to the vehicles or personal injury. 4. If, at the request of a private road owner, the Department of Public Works drafts and submits to the Council a bill which would implement traffic regulations on that private road, but does not evaluate the traffic regulations proposed by the bill for reasonableness or consistency with relevant engineering standards, in any way, could the County later be held liable for the traffic regulation? At the present time, the Department of Public Works' traffic engineers do not do any evaluation of proposed traffic regulations as to reasonableness or consistency with relevant engineering standards. While Cootey v. Sun Investment, 6 Haw.App. 268 (1984) provides some measure of immunity to the County for Department of Public Works' review, it is our opinion that the more the department becomes involved in the reviewing of the traffic regulations there will be greater opportunity for liability on the part of the County. Therefore it has been our opinion that the Department of Public Works should not become involved in the reviewing or adopting regulations oftraffic controls for private roadways in order to avoid liability. Ms. Leslie Chow Page -3- August 17, 1998 5. Bi1168, Draft 2, adds language from Section 46-16, HRS, that provides that the imposition of traffic regulations shall neither result in County responsibility for maintenance and repair of these streets, nor constitute ownership or control over such streets. Assuming that these proposed amendments have been passed, if the Council adopts a bill that contains traffic regulations that have been proposed without any regard for relevant traffic engineering standards, principles, or other criteria that may determine the reasonableness of the regulation, could the County later be held liable for the traffic regulation? The County Council enjoys legislative immunity from its acts as has been reaffirmed in the U.S. Supreme Court case ofBogan, et al. v. Scott-Harris, Case No. 96-1569, decided March 3, 1998. In that case, the Supreme Court once again reaffirmed the legislative immunity of municipal officials, and it is our opinion under that basis that the Council by adopting traffic regulations without regard to any relevant traffic safety engineering standards or principles cannot be later held liable for such traffic regulations as this adoption is a legislative act. Sincerely, RICHARD D. WURDEMAN Corporation Counsel By G D TAKASE Deputy Corporation Counsel GT:de a:\vaffic\bi1168.1tr