HomeMy WebLinkAboutCOM 0710.001 1996-1998 NAHEKEAOPONO KA`IUWAILANI 6285
56 Waianuenue Avenue Suite 201
Hilo, Hawaii 96720 j
(808) 935-3385 ~ , ~ f
Attorney for Petitioner
BEFORE THE PUBLIC WORKS COMMITTEE
HAWAII COUNTY COUNCIL
In the Matter of ) Project No. P-3269
Ha` aheo Elementary School Sidewalk ) PETITION FOR ADOPTION AND/OR
Improvements -Negative Impacts of ) ENFORCEMENT OF POLICY AFFECTING
Project as Designed on Properties Bordering ) CERTAIN PUBLIC WORKS ACTIONS
the Route and Unjustified Disparate )
Treatment of Adjacent Properties )
PETITION FOR ADOPTION AND/OR ENFORCEMENT OF POLICY
AFFECTING CERTAIN PUBLIC WORKS ACTIONS
Petitioner David Benazoya Helfant, through his attorney Nahekeaopono
Ka`iuwailani, brings this petition before the Hawaii County Public Works Committee for
the dual purpose of obtaining relief in his own situation and requesting policy adjustments
to afford future protections for other citizens similazly situated. Two County policies are
especially implicated in this situation:
1) notice to affected homeowners, and
2) maximization of shoulder width.
Additionally, the County already has adopted the Uniform Building Code which, it
appears, has not been properly adhered to in the Project plans as they affect Mr Helfant's
property.' The adoption of this Code mandates that the provisions of the Code shall be
followed and that the intent of the Code and its provisions be satisfied.
Appendix to Chapter 33, 1997 Unifonn Building Code
Section 3314 SETBACKS
3314.1 General. Cut and fill slopes shall beset back from site boundaries in accordance with
this section. Setbacks dimensions shall be horizontal distances measured perpendicular to [he site
boundary....
3314.2 Top of Cut Slope. The [op of cu[ slopes shall no[ be made nearer [o a site boundary
line than one fifth of the vertical height of cut with a minimum of 2 feet (610 mm) and a
maximum of 10 fee[ (3048 mm). The setback may need [o be increased for any required interceptor
drains. (emphasis added) ~~y` ~
Mia 1ltR i,~l L1
Page 1 of 8 Itef ~ P'resen!~ PW PG
lief. Dele..FEB ] ~1 ~`SX? _
Notice
It is not known to Mr Helfant when the initial planning for this project began, or
when the project was funded and bids solicited. It is reasonable to presume that it was a
few years prior to acceptance and approval of the final plans for the project. Official final
approval of the Project plans was given by the Chief Engineer of the Department of Public
Works on 4 September 1996 and by the Mayor on 16 July 199'7. Mr Helfant and his
neighbors were never directly informed of the impending work along the road frontage of
their properties, except those from whom a strip of land was being taken through
condemnation. Others who have children at Ha` aheo Elementary School learned through
the school newsletter of a meeting to discuss the project, which meeting was held several
days after bulldozers began excavating the banks along the route. The rest heard through
word of mouth in the neighborhood. None was given any opportunity for input into the
design of Project and its effect on the residents along the affected route.
Wainaku Street is a section of the Old Mamalahoa Highway which has been
renamed. This road has evolved over the past couple of centuries from a foot path to a
horse trail to a wagon road to a paved street for cars. Many if not most of the homes along
this road have been there for a century or more, including Mr Helfant's. There were no
Building or Zoning Codes regulating placement of structures on the lots along this road or
3314.3 Toe of Fill Slope. The [ce of fill slopes shall no[ be made nearer [o a site boundary
than one-half the height of the slope with a minimum of 2 feet (610 mm) and a maximum of 20
feet (6090 mm). Where a fill slope is to be located near the site boundary and the adjacent off-site
property is developed, special precautions shall be incorporated in [he work as the building official
deems necessary to protect [he adjoining property from damage as a result of such grading. These
precautions include but aze not limited to:
1. Additional setbacks
2. Provisions for retaining of slough walls.
3. Mechanical or chemical treatment of the fill slope surface to minimize erosion.
4. Provision for [he control of surface waters.
3314.4 Modification of Slope Location. The building official may approve alternate
setbacks. The building official may require an investigation and recommendation by a qual~ed
engineer or engineering geologist [o demonstrate that the intent of [his section has been satisfied.
Appendix to Chapter 33, 1997 Uniform Building Code
Section 3301 EXCAVATIONS AND FILLS
3301.1 General. Excavations or fills for buildings or structures shall be so constructed or
protected that they do no[ endanger life or property....
Page 2 of 8
any other. Some of the houses sit a distance from the roadway. Others, like Mr Helfant's,
are very near. The road has grown over time, so virtually all are nearer to the road than
when they were first positioned on the lots they occupy. However close they may be,
though, they are not in violation of modern Code requirements as they predate those
requirements.
It is not known to what extent planners on the Project did or did not take into
account the possible negative impacts of the project on homes along the road, and ways in
which those impacts might be mitigated. What is known is that [hey did no[ ask the
homeowners about their wncems or allow them to make requests or suggestions regarding
the way the Project would affect their homes and their lives. At this last meeting of this
Committee, Deputy Chief Engineer Jiro Sumada, under questioning by Council members,
admitted that residents of the area were given no notice of the Project.
Mr Helfant believes that public servants are supposed to serve the public, that
government should be accountable to its citizens, and that this public duty mandates that
when any County Public Works project will affect the residences of owners whose
properties border such projects, those people should be notified that such a project is
planned and offered the opportunity for input into [he Project's design as it affects them.
We respectfully request that this Committee recommend to the full
Council adoption of a policy that would require consultation with affected
homeowners prior to any final approval of plans. This consultation is critical
where the adjoining property is residential, especially in the case of single family homes.
The Committee and/or the Council may want to vary notice requirements for wmmercial
and/or undeveloped properties.
Shoulder Width
Mr Helfant and his counsel have been informed by senior officials in the
Department of Public Works that County policy calls for the maximization of shoulder
width wherever possible.
Page 3 of 8
Application of this policy by government officials has the force and effect of law.
The Fourteenth Amendment to the Constitution of the United States requires that States
afford their citizens equal protection of the laws. This provision has been interpreted by
courts to mean also the equal application of laws, barring some compelling government
reason for dispazate application to some citizens as distinguished from others.
The above-stated County policy has not been applied equally to Mr Helfant and his
neighbors, and no compelling government interest has been shown to justify the disparate
treatment. The two excuses proffered for the disparity are:
1) the adjacent homes have steps providing access from the street; and
2) if County officials authorize a change order narrowing the shoulder width after
the plans have been approved, they and the County could be held liable for any vehicular
accident at the site of the wall along Mr Helfant's frontage that could be proved to have
been caused by the change-that is to say, if it could be proved that this hypothetical
accident would have been avoidable if the shoulder at this pazticulaz location had been four
feet as shown in [he original plans rather than two feet, as modified.
As to the first excuse, a mere examination of the plans and the site demonstrates
even to the non-expert that "steps" aze not a compelling government interest. It is true that
the two homes on either side of Mr Helfant's property have steps providing access to a
paved pathway to the front door. It is also true that each of those homes also has driveway
access and that the steps leading up from the street do not provide the primary or most
frequently used access to the home. It is also true that there is a paved path across the lawn
leading to Mr Helfant's front door that was once accessed by steps from the street, just
behind the mailbox, but those steps have been allowed to erode and deteriorate because no
one ever used them any more since few visitors arrive these days other than by caz, and
rare walkers can walkup the driveway. If it will restore him to equal treatment, he will be
happy to restore his steps.
Further, the County had to rebuild all those steps anyway when it removed a
portion of the embankment, along Mr Helfant's neighbors frontages, as shown in the
Page 4 of 8
Project plans at D4 and F4. The County also has to repave the transition from driveway to
street at the affected homes whose driveway is on the Project route. This includes Mr
Helfant's home, as indicated on sheet 7 of the Project plans. The plans call for a driveway
transition that is acceptable to Mr Helfant, arrived at by negotiations between him and the
contractor. Strangely, no one made any attempt to negotiate this transition prior to finalizing
the plans and no one has yet provided a proposal showing enough detail to allow Mr
Helfant to form an intelligent and informed opinion on the proposal- this despite repeated
requests for such information. The was the driveway is connected to the road is
inextricably intertwined with the width and pitch of the shoulder. The shoulder and wall
indicated on the Project plans appear to be in violation of the Uniform Building Code
quoted earlier. The Project design along this frontage must be brought into compliance with
the Code through modifications to the shoulder width and wall structure. Mr Helfant, an
engineer, has made suggestions, all of which have been summarily rejected. Public Works
has expressed their intention to press ahead with the Project along Mr Helfant's frontage,
but many issues remain [o be resolved. They have not even addressed the issue of Code
violations. They should not be allowed to proceed until all the genuine issues aze resolved.
Mr Helfant has tried to negotiate in good faith, but the Public Works has made no
modifications. They have made certain demands of Mr Helfant, to be extracted in exchange
for their concessions. When he has agreed, they have reneged. For example, when Mr
Helfant suggested an engineered retaining wall the height of the embankment, which he
offered to backfill level with the top of the bank, Galen Kuba said that if Mr Helfant did
that, he would have to buy that strip; from the County. Mr Helfant agreed to do so. That
option then became unacceptable to the County. At the second "mediation" session, Jiro
Sumada informed Mr Helfant that if his attorney and Deputy Corporation Counsel Gerald
Takase could devise a way to effect indemnity for the County's potential liability as
described above, they could build a straight wall at a two-foot shoulder. When Mr Helfant
came up with the requested coverage, they again reneged. These aze only a couple of
examples.
Page 5 of 8
As for the hypothesized liability, the County has stated repeatedly that they cannot
narrow the shoulder width to two feet because of liability concerns, and they stated as a
requirement for the requested modification that Mr Helfant indemnify the County and the
Public Works professionals responsible for the Project from the above-described liability.
Gerald Takase specified the required coverage. Mr Helfant agreed to provide the requested
coverage, which provides for up to one million dollars per accident for a period of one
hundred years, with the coverage attaching to the property so that the indemnity would
outlive Mr Helfant and the officials concerned, and likely the house and maybe even the
wall. After having been told that this condition had been met, Takase then stated that the
appropriate language would be too hard to craft and therefore they could not accept the
coverage they had just requested.
They are willing to consider using a different wall design from another section of
the Project along Mr Helfant's frontage, which would give him the same straight wallas
his neighbors. They provided a quote for [he modification which would have Mr Helfant
paying about $77,000. The reinforced retaining wall Mr Helfant first submitted for their
consideration was costed at only around $7,600, plus stone facing. Figures received by
Mr Helfant from the contractor produce dramatically different figures. The details of this
gross overcharge aze detailed in Mr Helfant's presentation, contemporaneous with this one.
As a final affront, just to make sure Mr Helfant obtains no advantage from any
change to the wall or the shoulder, Public Works insists that wherever the wall is placed,
the fence must be placed along the property line. Every other fence in the whole Project
azea is being placed on top of the wall. Public Works wants to make sure Mr Helfant will
not be able to use any part of the County right of way as if it were his own, even though a
narrow strip of County land remains inside the fences of his neighbors and is
indistinguishable from their front yards, being covered with the same lawn grass and
unmarked in any way. Public Works has not indicated what use Mr Helfant might make of
a nazrow strip of steeply sloping land. Public works has also said they would like to pave
or gravel the slope between their wall and their fence so that it requires no maintenance.
Page 6 of 8
When it was pointed out to them that such treatment would preclude any vegetation screen
to damp noise, mask the house from the road, and reduce the amount of pollution rising to
be caught under the overhang of the roof outside the bedrooms because there is no room to
plant such a barrier between the house and a fence on the property line, Public Works
agreed to permit vegetation to be planted that will not harm the wall as long as MR Helfant
undertakes the responsibility for maintaining it. He has agreed to do so.
We respectfully request that this Committee interpret the County
policy of maximizing the shoulder width wherever possible to include a
caveat that neiehborine properties within a Proiect area shall be treated
equally absent some compelline eovernment interest that necessitates a
disparity, and wherever such disparity is necessary to meet a compellin¢
government interest, the disparate treatment shall be narrowly tailored to
meet the eovernment interest and shall not extend beyond what is required,
making the treatment of neiahborin¢ properties in such circumstances as
similar and as near to equality as possible. This interpretation of the County
shoulder width policy ensures that enforcement of the policy does not run violate citizens'
consitutionallyguarantaed protections.
Under this interpretation of the policy, we believe that asix-or seven-foot straight
wall, designated in the plans as C4, will be built along the lower embankment portion of
Mr Helfant's frontage, leaving a strip of steep slope at the top, which Mr Helfant agrees to
plant with low- or no-maintenance plants for which he will assume responsibility. Afour-
footfence will be built on top of the wall as called for in the original design, the same as all
the other walls along the route, in order to preserve the design integrity of the Project and
the appearance of the neighborhood rather than to secure any advantage for Mr Helfant in
minding the vegetative screen to be planted along the top strip of slope above the wall.
As pointed out by Mr Helfant in contemporaneous presentation, these changes will
save the County money as this treatment of his frontage will be less costly than what was
proposed and approved in the original design of the Project. The changes do not
Page 7 of 8
compromise the integrity of the overall design, as the replacement wall design is already a
part of the Project. They also bring this portion of the Project into compliance with the
Uniform Building Code.
We believe that the requirement for indemnity is counter to this policy, but Mr
Helfant is still willing to provide the coverage if required to ensure Public Works
cooperation in providing the above-described result.
Thank you for your concern and willingness to hear the voice of your citizenry.
DATED: Hilo, Hawaii -t ~ ~J~.
'
AHEKEA N `IUWAILANI
Attorney for Petitioner
Page 8 of 8
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1. Mr. Helfant's Hamakua-side next door 2. Mr. Helfant's property from Hamakua-
neighbor's frontage with 3-ft. shoulder, side boundary marker property peg,on
showing house farther from property Hamakua side of driveway. The next
line than Mr. Helfant's. property pin is seen in circle near house.
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_r, I .4 - r ' 3. Mr. Helfant's driveway. Property
- boundary can be seen at right of photo.
••`. ‘. `. N` Green markings on street and driveway
show new center line of road, new white
- ,.- :....:4i....1 „,,...„ edge of roadway line,and position of
'+ - - shoulder edge at two-foot shoulder width
4. County is required to re-grade and re-
- pave driveway to owner's satisfaction due
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`' .. to changes in roadway and shoulder.
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<, ,-w4 7. County plans call for the removal
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r4; , %� . I r : j '' . ment along Mr. Helfant's
'-.,: ' -1''Skl:-" 4' -;..t.4� -4 ,'4`"s,,, * ' `1---:, '.' ' frontage,creating a much steeper
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8. A Puna-side view of Mr. Helfant's house 9. The flat portion of Mr. Helfant's lot, showing the
showing its relationship to the embankment relationship of the house to the slope, and a pro-
along the road frontage. perry pin in the middle distance showing the
County right of way.
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10. Alignment of the two property pins 11. The two neighboring homes on the Puna side
shown on the lower portion of Mr. have 2-3 ft shoulder with a fence atop the wall
Helfant's lot shows that most of the and the remaining portion of the County right of
embankment is on County side of of way indistinguishable from the front lawns of
property line. County has suggested the homeowners.
putting a fence on the property line.
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\' .__ Puna side, viewed from the lower
�� _ portion of Mr. Helfant's lot. As seen ii
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j' l' — ', much farther back from the property lin
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