HomeMy WebLinkAboutCOM 0699.001 1996-1998 tv or H
`
Stephen K. Yamashiro Richard Wurdeman
Mayor Corporation Counsel
'+~•.......y
~ or x~
~uixnfg of "~tlaltir
OFFICE OF THE CORPORAT1ON COUNSEL
101 Aupuni Street, Suite 325 • Hilo, Hawaii 96720-4262C(8Q8,) 961.8251 • Fax 6808bi961-8622
Apri16, 1998
Mr. Dominic Yagong, Chairman
Committee on Public Works and
Parks and Recreation
Hawaii County Council
25 Aupuni Street
Hilo, Hawaii 96720
Dear Councilman Yagong:
Re: Dedication Deed--Sunstone Realty Partners LLC
Waiakea Heights Subdivision, Unit II
TMK: 2-4-37:014
This is in response to your March 13, 1998 memorandum in which you raised
questions about the dedication deed from Sunstone Realty Partners LLC, Waiakea
Heights Subdivision, Unit II, TMK: 2-4-37:014. The issues raised dealt with questions
about drainage and potential flooding in the subdivision. On March 18, 1998, you
received a memorandum addressing these concerns from the Department of Public Works
(Galen Kuba). That memorandum gives a clear answer to your questions about the
subdivision being traversed by a natural water course and the description of property
which the FIRM (Flood Insurance Rate Maps) and Chapter 27 of the Hawaii County
Code designates as "Zone AH". As Mr. Kuba states:
Subdivisions in an AH zone should pose no danger to the "health and safety of its
occupants" when the requirements of Chapter 27, "Flood Control," are followed.
That statement is also true of liability and legality. In the second and third
questions of the March 13, 1998 memo you raised questions about the health and safety,
. 9.0
rzet. ~;-tt.e_ AfR 7 1998
Mr. Dominic Yagong
Page -2-
Apri16, 1998
as well as about liability concerning the flooding in the area. These relate to the afore-
mentioned Chapter 27 of the Hawaii County Code.
Chapter 27 is entitled Flood Control and was passed pursuant to Federal law (the
U.S. National Flood Insurance Law) and the Hawaii Revised Statutes. Hawaii County
Code §27-1. Section 27-4 lists the methods that the Code establishes to accomplish its
purposes, including:
(a) Restricting or prohibiting uses which are dangerous to health, safety, and
property due to water or erosion hazards, or which result in damaging
increases in erosion or flood heights or velocities.
(b) Requiring that uses vulnerable to floods, including facilities which serve
such uses, be protected against flood damage at the time of initial
construction.
In the present situation, the concern is with portions of Waiakea Heights, Unit II, which
Chapter 27 classifies as "Zone AH", which is defined as:
...[T]he special flood hazard area that corresponds to the areas of
one-hundred-year shallow flooding (usually areas of ponding) where
average depths are between one and three feet. Whole-foot base flood
elevations derived from the detailed hydraulic analyses have been
determined at selected intervals within this zone.
Hawaii County Code §27-12(a)(67). This does not mean that nothing may be built in an
area zoned "AH". Structures may be built in those areas if they comply with standards
set out in Hawaii County Code §§27-20 and 27-21. The seller of the property would be
likely to protect itself by disclosing the appropriate flood control information at the time
of the sale. In approving development in such zones, the obligation of the County is to
review subdivision development plans submitted by the owner to assess compliance with
the law, not to conduct their own engineering studies to ensure the validity and
correctness of the developer's plans. Cootey v. Sun Investment, Inc., 68 Haw. 480
(1986).
Mr. Dominic Yagong
Page -3-
Aprit 6, 1998
A further question was raised about the whether the County was legally vulnerable
if it did not require the subdivider to provide an alternative access route connection in the
event of flooding. As the Public Works memorandum of March 19, 1998 stated, there is
no requirement that another access be provided in this situation. Chapter 23, the
Subdivision Code, §23-44, provides that streets may be required to be extended to
property boundaries in order to simplify future connection with adjoining property, but
there is no provision in that chapter or in any other part of the Code requiring an alternate
exit. The general duty of the County is to keep its roads in reasonably safe condition.
Breed v. Shaner, 57 Haw. 656, 664 (1977). This would be necesssary without regard to
whether or not the roads are dead ends and stub-outs or through streets. Furthermore,
HRS §264-1(c) states, in relevant part:
In every case where the road, alley, street, bikeway, way, lane, trail,
bridge, or highway is constructed and completed as required by any
ordinance of the county or any rule, regulation or resolution thereof having
the effect of law, the legislative body of the county shall accept the
dedication or surrender of the same without exercise of discretion.
Therefore, unless there is an ordinance, rule or regulation which requires that roads be
built to provide alternate access to a subdivision, and the roads as constructed are up to
dedicable standards, the Council must accept the dedication.
Please contact this office if there are any questions.
Sincerely,
RICHARD D. WURDEMAN
Corporation Counsel
~
gy -,iu~~,_ u,. ~
Frederick Giannini
Deputy Corporation Counsel
FG:ch
comma/sunstone