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HomeMy WebLinkAboutCOM 0687.078 2004-2006 v V 1 f ??~S JUG 5 Ali 8 " ~ I 6 l ` 1 V" cam,. No. ~0$~.18 Ref. Tde*N$~=-~~ Raf. Uate As spokesman for the Makalei Estates Community Association, 1 assure you it's not our intention to block the development of Pala~~? ~Lik~ ypp~ "Y~ , { nize the value of the promised infrastructure. But previous promises haven t been delivered and requirements have been ignored. Ourt~'concerns pertain to the safety and liability issues of Makalei Drive, and these dan't be-alleviated by further empty promises. Ordinance 93-45 required a specific road on the property owned by the developer, not on non-owned land or land not covered by the Ordinance. Building to the stated standards would have required a series of switchbacks resulting in fewer lots to sell. The road that was buiR maximized profd at the expense of public safety. That's the same decision Ford Motor Company made in the Pinto and Mustang II gas tank cases that resulted in compensatory and punitive damages of hundreds of millions of dollars. As an insurance claims professional I was involved in one of those cases that resulted in a jury verdict of $106.8 M. As background, I am a senior vice president of an international firm providing litigation services to attorneys and insurance companies. I have lectured and conducted seminars domestically to countless claims offices and law firms, and internationally at Lloyds of London and the Institute of London Undenroriters. I've been qualified as an expert witness in various courts. It is my professional opinion the County faces potential liability for negligent design and maintenance of Makalei Drive if it accepts dedication of the road. You will find attached a legal opinion dated June 1 which I hope you will read, consider, and discuss. The County owes a duty to the public to design and maintain reasonably safe highways, and three cases are cited supporting that statement. Government officials are generally protected form personal liability for negligent acts or omissions in the scope and course of employment, and they should be, by the doctrine of qualified immunity. However, that immunity can be lost where the offiaal acts maliciously, intentionally, with gross negligence, or in knowing violation of the law. Three supporting cases are cited. The road has been constructed in violation of the County of Hawaii Zoning Code and Subdivision Code and supporting information is supplied. If the County accepts dedication of the road as a collector, the County will be in further violation of its own codes and ordinances and that could eliminate the qualified immunity protection of government officials. At the May 16 meeting, Mr. Yuen confirmed Makalei Drive is a minor road and said grade standards could be exceeded, so the road may not really be in violation. But he failed to state what the "unusual conditions" allowed by the Subdivision Code are that apply here. Fommer councilman Jim Rath stated it clearly in a letter in the County file. The only unusual condition is that it was then Nansay, and now Hiluhilu, doing the asking. The County's file is devoid of any mention of unusual circumstances and so the standards stated in the Subdivision Code apply. All we're asking is that our laws are followed. We all want the university and we all want a mauka-makai connector road. But it must be a safe road, built to required standards to minimize risk to us all. It's been required bylaw all along. Thank you. Jerry Schneyer 72-1173 Ho'opai Road Kailua-Kona, HI 96740 AL~TbN HUNT F1AYD CONFIDENTIAL i N ~ ATTORNEY-CLIENT 1 COMMUIQICATION LAWYERS ~rt~. ~~c~ June 1, 2006 Board of Directors a 1O°~ Makalei Estates Community Association Kailas-Ilona, Haasii P.O. Box 2002 ~A7A1L' Kailas-Kona, Hawaii 96745 kemfohhfLcom Re: Makalei Drive -Liability Issues Dear Board Members: At your request, we have prepared the following analysis of the history of Makalei Drive and the liability issues presented by the potential dedication of the road to the County of Hawai4 for use as a mauka-makai connector. Specifically, you asked what the Count}~s obligations are with respect to the design and maintenance of Makalei Drive in the event of its dedication to the County. You also asked whether the Planning Director or County _ Council members are exposed to personal liability in the event Makalei Drive is dedicated and used as a collector road. Please note that in preparing this letter, we reviewed correspondence and other documents you provided to us from Planning Department and Department of Public Works files. We have not made an independent review of those files or any other government records pertaining to Makalei Estates or Makalei Drive. Accordingly, there may be additional documents or information that if brought to our attention would affect our analysis or the conclusion reached herein. SHORT ANSWER The County has a duty to design and maintain safe roads and highways. Makalei Drive appears to have been constructed in violation of the County of HawaiS Zoning Code and Subdivision American saw sa`a`'r°~` Code. To the extent Makalei Drive is unsafe, the County may be io~oI >~enw s~ held liable for damages arising from aaadents on the road if it Homlulu, Hawn 96813 al,on~: lava) sz4.Ieao accepts dedication of the road from developer Hiluhilu Fez: (808) 324.4391 Development I.LC (°Hiluhilu°). Government officials are generally Faisal Comr, smr~ I04 not personally liable for negligent acts or omissions occurring In 74-s6zo e°(°"` n°.a the course of their official duties or employment. If officials xaism-Icon., Hawai i 96740 I~,nrK: cave) 3z6.7979 commit acts outside the course and scope of employment, commit Fez: (e08) 37b4779 www.ehftcom 615197.1.8334-I June 1, 2006 Board of Directors Page 2 intentional torts, act with gross negligence, or knowingly violate the law, they cat3 sometimes be held personally liable for resulting torts. FACTS A reiteration of some of the facts from my letter of Apri126, 2006 is necessary to establish relevant background. In 1989, Nansay Hawaii, Inc. ('Nansay') acquired the real property that now includes Makalei Estates and the Palamanui project. I3iluhilu acquired the property in 1999. A portion of the property was rezoned from Unplanned to Agricultural (A-3a) by County Ordinance 850 effective February 15, 1983. With respect to a mauka- makai connector road, Ordinance 850 provided: (G) that the proposed 80-foot wide right-of--way and its improvements shall be extended to the Queen Kaahumanu Highway if and when any development occurs within the existing Conservation District portion of the parcel identified as TMK: 7-2-5-1 . Ordinance 850 at 3. County Ordinance 88-23 effective February 29, 1988 modified some of the conditions imposed upon the rezoning but did not affect condition (G) of Ordinance 850. County Ordinance 93-45 effective May 12, 1993 changed the second word of condition (G) from `the' to "a': (G) that a proposed 80-foot wide right-of-way and its improvements shall be extended to the Queen Kaahumanu Highway if and when any development occurs within the existing Conservation District portion of the parcel identified as TMK: 7-2-5-1 . Ordinance 93-45 at 5-6. Thereafter, Nansay sought county approval to construct Makalei Drive (also called Road "A' in some of the correspondence referenced herein) as a 50-foot wide road with a maximum grade of 18%. A letter dated June 28, 1993 from Galen M. Kuba, Acting Division Chief, Engineering Division, County of Hawaii Department of Public Works (`DPW"), to John Sato, PE, R M Towill Corporation, states in part as follows: This letter serves to follow-up on our meeting of June 4, 1993, and your minutes received on June 18, 1993. The following outlines our discussions and comments pertaining to your minutes. We are in 615197.L83S1-I June 1, 2006 Board of Directors Page 3 agreement to your discussions as mentioned, with the following exceptions. 1. You will need to confirm and have us formally notified by the Planning Department that the main roadway (Road `A~ will not be a major mauka-makai connection between Maiaalahoa Highway and Queen Kaahumanu Highway; and that this roadway will be a nondedicable private roadway in perpetuity. 2. If the subject roadway is a nondedicable private roadway, then we will allow: a. A maximum grade of 18 percent; b. Direct individual lot accesses; and c. Nondedicable roadway sections. In a letter dated September 7, 1993 from Nansa 's vice president of development, Gregory R. Mooers, to Virginia Goldstein, then Planning Director, Mr. Mooers wrote: The Department of Public Works has raised the question of ownership of the roadway, in our subdivision, while processing our subdivision application. We would like to state for the record that the subdivision roads were designed as private roads, will be reviewed as private roads and that we intend to maintain them as private roads. The roadways will eventually pass to the homeowners association who will maintain them per the legal documentation that has been prepared. By letter dated September 16, 1993, Ms. Goldstein wrote to Mr. Mocers stating: This is to acknowledge receipt of your recent letter regarding the private ownership of the roadway system within the subject subdivision. As requested, we are making your correspondence a part of the public record in the subdivision file. The Department of Public works was copied on the letter. 615197.1.8351 June 1, 2006 Board of Directors Page 4 By memorandum dated November 2, 1993, Ms. Goldstein wrote to Donna Fay Kiyosaki, Chief Engineer, with reference to the Nansay development: As previously discussed, the roadway system for the subject subdivision application sow under revive [sic[ is to remain in private ownership. By letter dated December 29, 1993, Mr. Mocers wrote on behalf of Nansay to Ma. Goldstein: After our recent meeting of December 17"' and subsequent phone conferences, it is my understanding that we have agreed to the following: 1. Plarming has determined that Road `A' is not a collector but a minor street. 2. Road `A" will be designed and reviewed as a 50' ROW county dedicable roadway with existing grades, which includes two sections up to 18%... . By letter dated January 24, 1994, Ms. Goldstein wrote to Mr. Mooera as follows: This is to acknowledge receipt of your recent letter regarding the subject subdivision application. Please be advised that it is agreed that proposed Roadway `A" is to be considered a `minor' street consisting of a 50-foot wide county dedicable right-of--way which will include two sections up to 18% grade... . By letter dated July 20, 1994, Ms. Goldstein wrote to Keith H. Kato, Project Manager at Nansay, stating: Reference is made to our letter of March 17, 1993 which granted tentative approval to the subject subdivision application. Specifically, please delete Condition Nos. 10 and 11. In there [sic] place please add the following amdition: `Proposed Roadway `A' is to be amsider~ed a `minor" street consisting of a 50-foot wide county dedicable right-of--way which will include two (2) sections up to 18 615197.1.8351-I June 1, 2006 Board of Directors Page 5 per cent grade.' Our information is that Malcalei Drive was thereafter constructed as a 50- foot wide road with a ma3dmum grade of 18%. In 2003, after Hilvhilu had acquired the property, Planning Director Chris Yuen wrote to Guido Giacemetti of Island Advisors, Inc., regarding Hiluhilu's request to defer dedication of Malsalei Drive to the County. Mr. Yuen stated: As we have discussed, I believe that decisions made in the previous administration that allowed the development of Maltalei Dr. with a 50' r.o.w. and a steep grade in certain sections clearly were inconsistent with Ord. 93-45, but these earlier decisions do not excuse performance of the remaining conditions of the ordinance. Clearly, the condition in Ord. 93-45 requiring that an 80' r.o.w. be extended to the Queen Kaahumanu Highway if there was any development in the Conservation District, meant that there was supposed to be an 80' r.o.w. in the A-3a area which could then be extended... . In a letter dated July 8, 2004, Mr. Kuba of DPW provided c~mmenta on an environmental impact statement preparation notice for Hiluhilu's Palamanui development. Mr. Kuba wrote in part that: Malcalei Drive, which is proposed in this study to provide the maulsa connection to Mamalahoa Highway through Malralei Subdivision, was not designed and constructed to County collector street standards. It is constructed to local street standards with a 50-foot wide right-of- way, maximum grades of 18% and with individual parcels felting direct access from it. Construction of University Drive from the Airport Access connection as Queen Kaahumanu Highway to Mamalahoa Highway, bypassing Malralei Drive is recommended. According to a May 31, 2006 article appearing in the Weat HawaiS Today, Mr. Kuba reiterated these concerns in an October 24, 2005 memorandum to Mr. Yuen. The article states in part: "Malralei Drive was not designed or approved as a (connector) street," Kuba wrote. °'It has 18 percent grades, a 50-foot wide right-of-way and individual lots taking direct access from it We also have some doubts about the feasability of designing an intersection at the immediate end of Malcalei Drive, which presently ends on a 15.7 percent grade.° West Hawai i Today, "Palamanui faces sew challenge,° at page 1. 613197.1.83541 June 1, 2006 Board of Directors Page 6 Two bills presently before the County Council, Bills 224 and 225, proposed by the Planning Department, essentially make Makalei Drive the mauka-makai connector wad until a separate connector road to the north of Makalei Estates is constructed at an unspecified future date. With respect to the mauka-makai connector wad, Bill 224 states as a condition that the applicant shall comply with all conditions of approval of the State Land Use Commission's Decision and Order (Docket No. A03-744) dated May 19, 2005" ("LUC Orde3'°). Bill 224 at 1, condition B. The LUC Order provides in part as follows: 5. Traffic Imvact and Mitigation. Petitioner shall fund, design and construct its share of local and regional transportation improvements as determined by the SDOT and the County, which includes but is not limited to:.. . b. lkfauka Makai Connector Road. A mauka-makai connector road providing public access between Queen Kaahumanu Highway and the Mamalahoa Highway shall be provided at Petitioner's sole cost and expense. Said mauka-makai connector road shall connect to Mamalahoa Highway as Petitioner and County may agree. c. 12ivht-Of-Wav For An Alternative Mautko.-Ma ni [~snn~or Petitioner shall reserve aright-of-way along the east (mauka) portion of the Petition Area to support the possible future connection to the Mamalahoa Highway. Petitioner shall construct at its sole cost and expense all portions of said future wad that is within the Petition Area... . d. R w;~Pnt t., r ~r~+t Vehicle 1Yaffic on Portions of Malmlei Drive. In the event the mauka-makai connector road connects through Makelei Drive, to promote greater traffic safety, Petitioner shall prior to final subdivision approval, use reasonable efforts to petition the County to limit motor vehicle traffic on Makalei Drive as a through street, as it transverses Makalei Estates, to only those vehicles that have a gross vehicle weight of less than 10,000 pounds. LUC Order at 3-4. Bill 224 imposes additional road construction requirements on Hituhilu. The Bill covers five roads that Hiluhilu must either construct or share in the coat of constructing. The wads are numbered 1 through 5 and are depicted on Exhibit °B' to Bill 224. But the only mauka-makai road expressly referenced in Bill 224 is Road 4 which is only partly located on Hiluhilu's property. Moreover, Road 4 is 615197.1.83Y1-1 June 1, 2006 Board of Directors Page 7 not required to be completed before the issuance of certificates of occupancy for Hiluhilu's Palamanui project. LEGAL ANALYSIS Ordinance 93-45, a Zoning Code amendment, required that an 80-foot wide right-of-way and its improvements be to Queen Kaahumanu Highway if and when any development occurred within the existing conservation district portion of the Palamanui project. The record shows that Malsalei Drive was built as a minor road with a 50-foot wide right-of-way and, therefore, is not in compliance with the Zoning Code. Furthermore, Malcalei Drive is not in compliance with the road construction requirements of the Subdivision Code. Nor was any variance granted to permit construction of Malcalei Drive as a 50-foot- wide minor road with 18% maximum grades. The County faces potential liability for negligent design and maintenance of Malcalei Drive if it accepts dedication of the road. Malcalri t7,;ve+. TA in woLtior± Of The Z-~ninQ Code Ordinance 93-45 was an amendment to the Zoning Code. The road construction conditions contained in Ordinance 93-45 therefore became a part of the Zoning Code upon the approval of the ordinance. Two methods for deleting the road requirements from the ordinance would be a further amendment to the ordinance or a variance from it. See Zoning Code, Sections 25-2-40 through 25-2- 45 (amendments) and Sections 25-2-50 through 25-2-58 (variance). Amendments to the Zoning Code are obtained by filing an application that includes detailed information about the property that is the subject of the application. Notice of the application must be provided to surrounding landowners, At least one public hearing is to be held on the application. Zoning Code, Sectioa 25-2-42. An applicant for a variance must show that there are special or unusual circumstances applying to the real property, that there are no other reasonable alternatives, and that the variance would be consistent with the general purpose of the district, the code, the County general plan, and not be detrimental to the public welfare. Zoniag Code, Section 25-2-52. Notice of the application must be provided to affected landowners. Zoning Code, Section 25-2-53. Neither the amendment or variance procedure appears to have been used with respect to the construction of Malcalei Drive. Rather, Nansay and the Planning Department exchanged correspondence that purported to change the road requirements. The correspondence did not constitute an amendment to or variance from the Zoning Code. Malralei Drive therefore appears to have been 613197.1.8334-1 June 1, 2006 13oard of Directors Page 8 constructed in violation of the Zoning Code. Malratei Drive Is In Violation Of ThP Subdivision Code men if the County were to approve an ordinance amendment that deleted the road construction conditions of Ordinance 93-45, Makalei Drive would still be non-compliant with the Subdivision Code. If Makalei Drive were made into a mauka-makai connector, it would be a collector street. This is the term Mr. Kuba of DPW uses in his correspondence to describe Makalei Drive in the event it is made into a mauka-makai connector. °Collector street' is defined in the Subdivision Code to mean: a street supplementary to the arterial street system which is a means of intercommunication between this system and smeller areas, and which may be used to some extent for through traffic and to some extent for access to abutting properties. Subdivision Code, Section 23-3(29)(0. With respect to road grades, the Subdivision Code provides: (a) A grade of a street shall be a reasonable minimum but in no case less than one-half of one percent and shall not exceed seven percent on major arterials, eight percent on secondary arterials, ~ggrcent on collector streets or twelve percent on any other street . (b) Variations from the required grades or curves may be permitted by the director of public works where advisable to meet unusual conditions and the director of public works xnay specify additional standards accordingly. Subdivision Code, Section 23-50 (emphasis added). Makalei Drive is not a major arterial, secondary arterial or collector street. It is, rather, a minor street defined in the Subdivision Code to mean "a street intended exclusively for access to abutting property." Subdivision Code, Section 23-3(29(N~. Our information is that Chris Yuen himself acluiowledged that Makalei Drive is a minor street at the May 16, 2006 Planning Committee meeting. The Subdivision Code sets forth specific procedures for obtaining a variance from its requirements. Subdivision Code, Sections 23-14 through 23-18. An applicant for a variance must show that there are special or unusual circumstances applying to the real property, that there are no other reasonable 61519'/.1.833-1 i' June 1, 2006 Board of Directors Page 9 alternatives, and that the variance would be consistent with the general purpose of the district, the code, the County general plan, and not be detrimental to the public welfare. Subdivision Code, Section 23-15. An application for the variance must be submitted and notice must be given to surrounding property owners. Subdivision Code, Sections 23-16 and 23-17. Again, as to Makalei Drive, no variance application was submitted. Rather, the developer exchanged correspondence regarding the standards for Makalei Drive. As built, Makalei Drive appears to be in violation of the Subdivision Code. Notably, the Subdivision Code provides in part: The council shall not take over, receive by dedication, do any repair or construction work upon streets or pavements, water lines, street lighting systems, sewer lines, or in any way accept as public highways any street in any subdivision opened or platted is the County after December 21, 1966, except upon full compliance with the provisions of this chapter. Subdivision Code, Section 23-9. The Coun~,y's Day To Desivn And Maintain_Safe Road-s Our understanding is that Makalei Drive is owned by Iiiluhilu and has not yet been dedicated to the County. If the road were to be dedicated, the liability for the design and maintenance of the road would pass to the County. If the road were used as collector street in its present design, the County could face liability for property damage, injury, and death for aardents caused by any negligent design of Makalei Drive. The County owes a duty to the public to design and maintain reasonably safe highways. Breed v. Shaner. 57 Haw. 656 (1977) (county and state have duty to keep their respective highways in reasonably safe condition, including duty to design highway to be safe for travel by people exercising ordinary care); ~ ,~nd~rs v_ 3ta_ te, 60 Haw. 381 (1979) (state must exercise Ordinary care in maintaining state highway in reasonably safe condition); ICienker v. Bauer. 110 Haw. 97 (2006) (state held liable for negligent design of highway). The Land Use Commission recommended in its order that vehicles with .weights of 10,000 pounds or more not be permitted to use the road. Mr. Kuba stated in his correspondence that Makalei Drive `was not designed and constructed to County collector street standards". Accordingly, there appears to be some concern at the government level that the road is not safe for use as a collector street, and the County is on notice of this concern. However, the expertise of a road design or engineering professional would be necessary to 615197.IA)54-1 -June 1, 2006 Board of Directors Page 10 determine whether a particular road design was negligent and caused or contributed to the cause of an accident on Makalei Drive. Government officials are generally protected by the doctrine of qualified immunity. Qualified immunity means that a government official or employee will not be held personally liable for negligent acts or omissions in the scope and course of employment. The immunity can be lost where the government official acts maliciously, intentionally, with gross negligence, or in knowing violation of the law. Fuiiwara v. Clark, 703 F.2d 357 (9s' Cir. 1983); `~~s v O'~paryr 55 F.3d 320 (7'~ Cir. 1995); Harlow v Fi~gerald 457 U.S. 800 (1982). It appears that the County Council members and other government officials involved with the Makalei Drive dedication know, or are at least on notice, that Makalei Drive was constructed in violation of the Zoning Code and Subdivision Code. If the government officials accept the dedication of the road, and someone is hurt on the road as a result of a negligent design of the road, arguably the injured person would have viable claims against the responsible officials personally. Further research would be required to evaluate the likelihood of a plaintiff in such a case succeeding on these claims. CONCLUSION Under the Subdivision Code, the County can only aaxpt dedication of roads that are in compliance with the Subdivision Code. If the County accepts the dedication of Makalei Drive as a collector street, the County will be in further violation of its own codes and ordinances. Additionally, the County may be in breach of its duty to provide reasonably safe roads to the public if it allows Makalei Drive to be used as a collector street. Government officials are generally not liable for negligent acts or omissions occurring in the oaurae of their official duties or employment. If government officials commit acts outside the course and scope of employment, commit intentional torts, act with gross negligence, or knowingly violate the law, the officials can arguably be held personally liable for resulting torts. Should you have any questions, please do not hesitate to contact me. ery ~Y , KEVIN E. 00 KEM/la 615197.I.S354-I