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HomeMy WebLinkAboutCOM 0114.002 2006-2008 +3'•°i Phone: (808) 326-5421 ~ . fug Fax: (808) 329- 4786 BRENDA FORD, E-Mail: bford@co.hawaii.hi.us Council Member, Dis[ric[ 7 South Kona a„q~( ~~r~ oi'N''M~ r.... a'_ HAWAII COUNTY COUNCIL ; , County of Hawai `i w Kailua Trade Center : - 75-5706 Hanama Place, Suite /09 .r-i. Kailua-Kona, Hawaii 96740 J DATE: March 13, 2007 TO: Pete Hoffmann, Chairperson, and Council Members of the Hawaii County Council 25 Aupuni Street Hilo, Hawaii 96720 FROM: Brenda Ford, Council Member District 7 RE: Public Works Department Committee Agenda for April 3, 2007 Roads in Limbo Dear Chair Hoffmann, Please include the attached letter, with attachments, from Council Member Angel Pilago to Lincoln Ashida Re: Liability for Tomi Tomi Drive and Kuni Road with information on the Roads in Limbo for the Public Works Committee meeting for April 3, 2007 Attachment: Letter from Council Member Angel Pilago to Lincoln Ashida (1 page) Letter from M. Matsukawa (5 pages) Petition (1 page) Area Map (1 page) BF/dh Comm. No. ~ ~ Z f. ~arF~ AR 1 6 2007 Rawai'i County /s An Equal Opportunity Provider And Employer FC. ,a°ngel PiZago ...q. Phore No.: (SO8) 327-3542 Vice Ckair r>~'~,'"' ~y Fax No.: (8Q8) X29-4786 Dstrict8-1`'onkKona - E-Mail: kapila8o~co.hawaii.hi.us w' HA.WAI`I COUNTY COUNCIL County ofHawai'i ~ [ ~ Kailva Trade Center ~ ~ L" i ' c- 75-5706 Hawma Place, Suire 109 i Kailva-Kona, Hawaii 96740 u February 20, 2007 ~f Fax To: 961-8622 - 8 Pages Total Te: Mr. -Lincoln Ashida 101 Aupuni Street Hila. i?i 96720 Re: Lizbility for Tomi Tomi Drive and Kuni Road Dear :dlr. Ashida/I.incoln, At the Febrsary 7; 2007 County Council meeting, testimony included the "Roads in Limbe" issue. 1 requested isaac Harp, Deputy Assistant to the Chair to investigate the matter. Mr. Hasp cand~ctsd a site visit on February 16, 2007 with area residents Brian Lee and Harry Prtiken. The visit began on Tomi Tomi Road and proceeded up Tomi Tomi Road and onto what as now referred to as "Old Palani Road." Du~ng'r>is sate visit, Mr. Harp obtained: r l-iatographs of the roadways, which cleazly shows the need for repairs. 2) A copy of a letter dated Februazy 2, 2007 regazding the roadways from Ms. Michael Ma?sukawa, Attorney At Law, to an azea resident, Mr. Teruo Matsumoto. 3) petition seeking repairs to the roadways from seventeen (17) of the area's residents. 4) '~%e.bal com.-nents regazding personal vehicle damages due to poor road condata:as. ~e test,x?any what was provided to the Council hinted of potential County liability; wliiC is ti:e reason. t:'rai 1 am writing you. According to the letter from Attorney Matsukawa "...the Coun~'v -rot JY~7 b4Yc5 tF'e YQadS the County also has the obligation (as owner) to maintain same." Please provide an opinion on whether or not the roadways in question aze the CaurzEy's responsibility. If so, is the County liable for damages for failure to maintain the roadways? ~auld yctc have env recommendations for the Council at this point? t~ v Sincerely; K. Aa~ Pilago ~,i°ac ~>s<nts Letter frog, Matsukawa (5-pages), Petition (1-page), Area Map (1-page) Hnwrti`F ('nnnhr /c An Rnunl nnnnr/unine Prnvidor And RrrrnJrsnnr MICHAEL J. MATSUKAWA ATTORNEY AT LAW TERRITORIAL CENTRE. SU1TE 201 _ 75.5751 KUAKINI HIGHWAY KAILUA-KONA, HI 96740 TELEPHONE NO. (8081329-1586 FAX NO. 18081 329-0512 February 2, 2007 t~:r. Te?~ao Matsumoto P.O. Box 727 iCailua-Kona, ?iS 96745-0727 Dear Teru: I Qnclose a report on the history of Tomi Tomi Drive and y._gi^ii Road. In summary, the County not only owns the roads, the County also-has the obligation (as owner) to maintain the same. At this time, some people who own property along Tomi Tomi Drive and Kuni Aoad have formed a group to address this subject in anticipation of the Department of Water supply's new ^ro-iect, The Department has denied its obligation to repair the roads to a reasonable standard when the project is over (because the Department of Public Works denies that the County has aay obiiga.tion to maintain the roads at ail, no less to ansr acceptable ~~gree of care), I informed the owners that you expressed an interest in getting this issue resolved as well. I also told they„ that the anly way to get the County's attention is to file a declaratory judgment action in circuit court o f the County denies ownersi:ip or ebliaaticn to maintain the road), Please let me know what you want to do. Yours truly, Michael J. Matsukawa i~`:~ i? . j f f \ tern\taa i taai . l tt H.n C . REPORT ON FEBRUARY 1, 2007 INVESTIGATION A. Homestead Act of 1884 The Homestead Act allowed the government to cause public land to be surveyed and "laid out in lots not over twenty and not less than two acres in extent in dry or kula land with convenient roads in connection therewith." the Act was amended over the years and continued in full force during the Territorial period. S. State Archives and Survey Office (Honolulu) Records ofthe Interior Department fn 1887, the Minister of the Interior received. a petition to set aside sor e of the public land at Kealakehe, North Kona for homestead purposes. fn response the Hawaiian Government laid out the Kealakehe Homesteads with "convenient roads in connection therewith° as Homestead Map No. 11 September 1889). Records of the Superintendent bf Public Works Prior to 1925, the Territory "strip map" showed that the ~ :orokohau to Kaiiua Road {now known as Palani Road) was realigned where present day T omi Tomi Drive now intersects Palani Road. In the 1930s, the Trustees of Queen liiiuokalani's Estate exchanged land with the Territory to continue the realignment to Kaiiua Village. Records indicate that the county may Faye records on the Palani Road realignment project. 1 C. Discussion Kealakehe Homesteads-was "laid out" by September 1889. Thus, ±he roads within the Homestead plat (like Tomi Tomi Drive and Kursi Road} are government roads. Having been "laid out" prior to 1892 (prior to the enactment of the Highway Act of 1892), the Homestead roads became "public highways" under control of the Hawaiian Government. Upon annexation, these roads were transferred to the United States, but were left under the administration of the Territory of Hawaii Because the Homestead roads are ire-1892 roads, no government sntifiy or body had to "accept" the roads. Since these roads were ope~sd and laid o:.i by the governme~ ~ on govemment land, the roads became °pubiic highways" automatically by operation of law. See In Re Application ofKellev, 5C 1-law.567; 579 (1968) . After the creation of counties, the Territoria4 Legislature enacted a statute that gave the general supervision and control over ail public highways, transferring the same from the Territorial Superintendent of Public V~lorks to each of the counties. Act 107, Session Laws (1917). Wemple ex rel. P, o.,~~; v. Dahman, 102 Haw. 27, 49 (App. 2002), rev'd on other grounds, 103 Naw. 385 (2003). Consistent with that delegation, the Territorial government (and th~reaiter the State government} continued to treat roads that were opened and !aid cut by the govemment prior to 1892 and delegated to the counties for su;~ervision, as noted in Section 264-1, HRS: (a) All roads ways in the State, opened, laid out, or built by the uovernment are declazed to be public highv*ays. Public highways aze of two types: (1) State highways, which aze all those under the ju*isdiction of the department of transportation; and (2) Coun highways, which are all other public highways. 2 Landowner Set Aside Consent Required Developer Year Opened to County? from County? Gov't Pre-1892 Yes Igo Distinguished from Roads Opened by Private Persons The recent discussion on pOSt_1892 roads that were built by rivate persons and that have been open to public use is not relevant. The Kealakehe Homestead roads were opened and built on government land by the government befare 1&92. These roads became public highways by operation at lava anal the Territorial Legislature later set aside the roads in question to the counties for management and later for ownership. Unlike roads that were built by private parties or that were built after 1892, the counties did not have to "accept° the Transfer or "agree" to the transfer. Duty of Repair .5s to the county's duty of maintenance and repair, the Hawaii S~,±preme Court held in Reinhardt v. Maui, 223 Haw. 102, 106-107 (1915): [fin 1913, the above mentioned duties [of maintenance] were transferred from the territorial officer to the several boards of supervisors of the several political subdivisions of the Territory.... Whereas the, e existed formerly a dual right or power to repair the general charge of and control over public highways, subject to certain exceptions not material to his case, since the passage of the act of 1913, have been vested in the several counties. Under these circumstances the power to rtipair highways must be held to imply the duty to repair them.... `[A] duty arises to the public from the nature of the powers granted to keep the streets in a reasonably safe condition for the ordinary use to which they are subjected and a corresponding liability exists to respond in damages to those injured by a neglect to perform the duty."' A~ot a "Road in Limbo " This phrase developed when the Legislative Reference Bureau prepared a paper an the various types of roads or ways that were in dispute as to ov~~nership and as to maintenance. Much of the problem stemmed from roads of ways from 3 unclear sources, such as long .(prescriptive) use, unquestioned possession, forgotten or lost conveyances, etc. However, in this instance, the source of ownership is clear and unambiguous. The source is the Hawaiian government. The government's ownership is also clear under the Highway Aci of 1882. P,s to which of the two entities (State or County) now holds both ownership andlor management responsibilities, the Territorial and State Legislatures both delegated the same to the county. In Reinhardt v. Maui, supra, the Hawaii Supreme Court affirmed the Legislature's authority and power to make such a delegation. 4 t'C I I I IVrv rvK H I I trv I IVN I V KVHU IN LINtl3V We the undersigned, do respectively request that our dirt road be given special consideration by the county when the time comes to fund the Roads in Limbo program. 'E'lls road is an ofd Hawaiian Homestead road that used to go from the very old Mamalahoa Highway (above the existing Mamalahoa Highway) down into Kona through what is now Harborview before the existence of Palani Road. There is a short connector to Tomi Tomi Road of unknawn.origin which we use rather than driving straight onto Palani Road. The county has refused us the rgllt to enter Palani Road even though our road actually intersects with Palani Road above the Tomi 3or~i Road intersection. The Ready Mapbook of West Hawaii is tali"sng our road Old Palani Road. wo famiiies on our road are caring for elderly parents. One family is caring for their mother in her ~~°s ~vho is undergoing chemotherapy. She is very fragile and the drive in and out to ~~e dc•~~at, is agony for her. This woman's husband, now deceased, had a head a~taci; a fe~v ;ears ago and the ambulance refused to come up the road. The property o~;^ners ~,Fere ir:structed to Goad their father in a car and bring him tp the bottom of the road; a Rife is I-ea`eo ing situation. Now they fear something similar could happen to their mot:ler no~~= that she has income a full time resident. Another family is caring for several eideriy memtrers of a"y ler families, some of whom are in wheel chairs. Other homeowners along t~`se road sui#ers 5-am asthma and are bothered by the dust and still another has bone spurs in her neck and suffers paini~,afly when traversing the road in an automobile. Another concern is that fire ~~,.ek4 ~.^.~ir€ ref;~se'to come up this road in case of fire; a very serious matter. i here are rlo.;~ 13 fat-niliRs on 8 properties that use this road. r,E act; ;p, i:r~ab"sem is the wear and tear on vehicles using the road. Some or our friends ev4n refuse to visi*_ us because the road had damaged their vehicles in the past. Also the road is too hard for us to maintain as we don't have the proper equipment and materiais. Likewise, as indiviuoais,, ti~re can't afford the cost of paving the road or properly maintaini;g it. ~f ii Vaas pealed ve wouidn°t have to wont' about it washing out every time it rained. each time iE r~~~l~es o~E it gets that much harder on the vehicles that have to come up and doa~~n, '~"e rer~e~st f9e County acknowledge the emergency situation this road is causing far it's t~esidc-rt}: ~A.~i~= ~ ADDRES ~ rte!-@O~~ :'~E1i~~i~~t, / ~ 1 '~.a . ~ v' , ~ - tf _ ~'~iC _~7 ~ ~ :~.+.F-f?r~e'c-[/ ~ , p, 'a-. ccc_- '~Ta-• . raj- ~4' J tai tiQ ~ i ^F-~ K i . ~ F. CJ Ci ~~~~47 F ~ OC7 _ L, ~r f~„ `I ~ P. 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