Loading...
HomeMy WebLinkAboutCOM 0229.002 1996-1998 co''N<v of Mq~'' DOMINIC YAGONG ; ~~a?,~, Phone: (808) 961-8264 Councilmember ,1 FAX: (808) 969-3291 ~~111 .J`!ro . ` f Of Mr COUNTY COUNCIL County of Hawaii co Hawaii County Building n ~ 25 Aupuni Street ~ C7 ~ ~ Hilo, Hawaii 96720 Z~ (-{1 z o Apri19, 1997 ~ ~r~r} O ~ - ~ ^'i Co Mr. Richard Wurdeman, D ~ c ~ Corporation Counsel = .s Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Dear Mr. Wurdeman: Subject: Request for Legal Opinion regarding Basil's Restaurant Application for a Sidewalk Use Permit Mr. Moustafa Mohamed of Basil's Restaurant (Applicant) has applied to the Council for a sidewalk use permit. This application, Communication No. 229, has been referred to the Council's Public Works and Parks Committee and placed on the agenda for the Committee's April 15, 1997 meeting. We request your advice regarding the appropriateness of granting this application. Factual Background The Applicant seeks a sidewalk use permit to place tables and chairs outside Basil's Restaurant at 75-5707 Alii Drive. In support of his application Mr. Mohamed submitted an information sheet for sidewalk use permits, a certificate of insurance, letters from Ohana Aloha and Casual Weaz and Shell Development Corporation - Paniolo Greens, and a site map. We attach copies of these. Planning Department staff has advised Committee staff that the azea where the applicant proposes placing tables and chairs is withiti a beautification project area. The landscaping that res..::ed from this effort was an effort that involved the Count} . nd the Kona Outdoor Circle. The Depaztment of Public Works has further advised us that the subject area is within the County of Hawaii's right-of--way. ~ q ~ ~ F'~9e 170.. ~~1Z Presented •~P(~ i APR 1 5 1937 Mr. Wurdeman Apri19, 1997 Page Two Legal Context Chapter 22, Division 5, Hawaii County Code (HCC) -Use of Sidewalks contains a number of provisions that pertain to the placement of objects on sidewalks. Section 22-20, Hawaii County Code, provides that: "No person shall place, leave, or deposit for the purpose of displaying, vending, hawking, selling, or soliciting any goods, wares, or merchandise on any sidewalk within the city limits of Hilo without first obtaining a permit from the council...." (emphasis added) Section 22-58(c), HCC, further provides that: "Objects on Sidewalk. No person shall place any object on a sidewalk except as hereinafter provided. Should any person desire to place an object on a sidewalk (including but not limited to a planter box, litter receptacle, or bench), such person shall, upon recommendation of the chief engineer, obtain the approval of the council by resolution of the council. When an object is approved by the council, the donors and abutting landowners of such object shall not be liable for any injuries resulting from the placement of such object. Responsibility for the maintenance of such objects shall be as provided by the council." Although chapter 22, HCC, does not define the term "sidewalk," chapter 24, HCC, which relates to vehicles and traffic, offers the following defmition in section 24-3(39): "`Sidewalk' means that portion of a street between the curb lines, or the lateral lines of a roadway and the adjacent property lines, intended for use of pedestrians." With respect to "encroachments," section 22-2, HCC, states: "If any encroachment exists in, under or over any portion of any street or highway within the County or if any obstruction exists within the City of Hilo, and the encroachment or obstruction is observed or a complaint is made to the department of public works of the County, then the department of public works shall investigate and forthwith, give notice to move the encroachment or obstruction, in the manner provided in this chapter." Section 22-1, HCC, defines "encroachment" as "any hedge, shrubbery, crop, fence, flume, tree or other similar objects which exist in, under or over the highway excepting w:at which has a cleazance of fourteen feet above the surfac : ~f the highway, or any railway bridge." Mr. Wurdeman April 9, 1997 Page Three Section 22-1, HCC, defines "Sweet or highway" as "the entire width between property lines of every way or place of whatever nature when any part thereof is open to the use of the public, as a matter of right, for the purpose of vehicular traffic." Finally, with respect to "obstructions," section 22-7, HCC, provides: "No person shall install or place anything which protrudes upon, over, or across a roadway so as to obstruct, in any way, the passage of vehicular or pedestrian traffic, unless the obstruction is clearly visible so as to give reasonable warning to all travelers that the course of their travel is obstructed." Section 22-6, HCC, defines "Roadway" as "any public or private street, avenue, road, alley, highway, lane, path, or other place located in the County and established for the use of vehicular or pedestrian traffic." Discussion The applicant's proposed use is to place tables and chairs on a sidewalk located within the County right-of--way in Kona. This application is similar to the Pink Elephant Thrift Shop's application, which you previously advised us on, in that the proposed activity would take place in a County right-of--way. It differs in that the applicant's proposed use is to place objects, rather than a sign, on a sidewalk area, and that it would take place in Kona. A copy of your opinion of February 27, 1997 is attached. Because the proposed action would take place in Kona, we assume that section 22-20, HCC, which pertains to activities within the city limits of Hilo, does not directly apply to this situation. We thus turn for guidance to section 22-58, HCC, which relates to the placement of objects on sidewalks. We note however the existence of two other sections in chapter 22, HCC, which may have some relevance to this matter. Section 22-2, HCC, appeazs to prohibit "encroachments" and section 22-7, HCC, allows "obstructions" which are clearly visible. We would appreciate your guidance on whether these provisions or any other legal considerations would apply to the present situation. Mr. Wurdeman Apri19, 1997 Page Four Request In light of the foregoing and any other considerations concerning the use of a County right-of--way, please advise us as to the appropriate disposition of Mr. Mohamed's application. If you find that this application should come before the Council for its review, please identify any conditions that should, as a matter of law, be attached to the granting of a permit to place objects on a County sidewalk, located within the County right-of-way in Kona. As this matter has been placed on the agenda of the Committee's April 15, 1997 meeting, your response at the eazliest opportunity would be very helpful. If you have any questions, please contact Leslie Chow or Connie Kiriu at 961-8386. Thank you very much. Sin~ely, tl~~~ Dominic Yagong, Cha' Public Works and Pazks Committee LC Encl.