The URL can be used to link to this page

Home My WebLink AboutCOM 0730.002 1996-1998 ~ ~ ~d• • ~MtY or N 4f~ ilk, Stephen K. Yamashiro Richard Wurdeman Mayor Corporation Counsel +t of •Hi:MJ ~nixixf~r of ~ttfirttii OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Streee, SuiCe 325 • Hilo, Hawaii 96720.4262 • (808) 961-8251 • Fax (808) 961.8622 March 17, 1998 Councilman Dominic Yagong Hawaii County Council 25 Aupuni Street Hilo, Hawaii 96720 Dear Councilman Yagong: Re: Moratorium on Grubbing and Grading Permits You have requested an opinion as to whether the County could institute a moratorium on grubbing and grading permits due to the drought situation. The County would have the ability to declare a moratorium on grubbing and grading permits either through action by the council by ordinance, McQl~illin Ml~n Corp § 15.42 (3d Ed suspending Chapter 10, or through the civil defense administrator's powers under Section 128-10(5), Hawaii Revised Statutes, when there is a delegation from the Governor While the suspension of Chapter 10 may prevent the granting of new grading or grubbing permits, those already in existence should still be allowed to proceed. Estoppel and vested rights would prevent a moratorium from affecting current permits. Cor~»ty of Ka12ni v. Pacific .S[d Life b)surarlce, 65 Haw. 318 (1982); Life of the Land v. City and County, 61 Haw. 390 (1980). To deny those with permits the right to use those permits may result in a deprivation of rights without due process. Secondly, under § 128-10(5), the County, through its civil defense administrator, can control and utilize governmental agencies, including taking actions or measures for health, safety and welfare. It would be our opinion, under the circumstances as provided for in subsection (5), the civil defense administrator may have the ability to suspend or place a moratorium on grubbing and grazing permits. However, while grubbing and grading may cause wind-borne erosion, which may always be a problem, we don't feel that aisland-wide moratorium on grubbing and grading is advisable without further input. 73 0. oz ta~cmar. Dia?~.--, it.._ WAT_____ ll,et, 2a Pq,~.._,..._. ltet. I9ate ~ 2 5 1~ _ C . Councilman Dominic Yagong Page -2- March 17, 1998 We can think of several instances in which grubbing and grading is more likely to take place during these times and may not always be adverse to environmental or public health, safety and welfare. First, while in a letter from Rene Siracusa would make an exception for the bulldozing of fire breaks, building and construction projects typically use periods of good weather to put in many good days of work versus rain days. To place a moratorium on any bulldozing, grubbing or grading work would virtually bring a halt to any construction projects, including county projects, which will severely cripple the construction industry and have very severe economic consequences to those involved in construction. Secondly, the grading ordinance at §10-24 and §10-24(e) allows the chief engineer to control erosion and dust respectively. Thus, an alternative to an outright ban already exists. Third, grubbing and grading are also used to control overgrowth and bushes in agricultural areas which typically are very serious wild fire threats. While fire breaks may be exempted, the grubbing and grading of these areas before fires may start would be a much greater benefit to those involved and may prevent the start of wild fires. Even on the County's lands, which the County currently has in the Hamakua area, the threat of wild fires through much of the areas is great now that the plantation no longer maintains those fields and bulldozing of those overgrown areas would provide a very real benefit in terms of reducing fire hazards in those areas. Therefore, while the ability of the County to place a moratorium on bulldozing, grubbing and grading is possible, we feel that the subject should be given much more serious thought before implementing such a widespread moratorium, especially when the main purposes, dust and fire control, can be prevented by other means or may even be hampered by such a moratorium. Sincerely, RICHARD D. WURDEMAN Corporation Counsel sy--~~~~ dam--. G D TAKASE Deputy Corporation Counsel GT:de a:\dpw\grubbing.ltr