HomeMy WebLinkAboutCOM 0946.000 1996-1998
N<Y Os y
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Stephen K. Yamashiro Richard Wurdeman
Mayor Corporation Cause!
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OFFICE OF THE CORPORKhON COUNSEL
101 Aupuni Street, Suite 325 • Hilo, Hawaii 96720.4262 • (808) 961-8251 • Fax (808) 961-8622
16 April 1998
OPINION NO, 98-02
Mr. Aaron Chung, Councilmember
Hawaii County Council
25 Aupuni Street
Hilo, Hawaii 96720
RE: COUNTY JURISDICTION ON HAWAIIAN HOME LANDS
Dear Mr. Chung:
This is in response to your letter requesting an opinion on the
extent of County authority over lands under the jurisdiction of
the Department of Hawaiian Home Lands (DHHL). This subject has
been the subject of much emotion and political rhetoric, but
little definitive judicial determination. For reasons that are
not entirely clear, perhaps because DHHL customarily deferred
to County jurisdiction (HI AG OP 72-21, P 3.), this issue
created little controversy until the 1970's.
Then, in AG Op 72-21, the question of this County's ability to
rezone certain lands at Keaukaha from residential to light
industrial use was raised. Noting, that the purpose of the
Hawaiian Homes Commission Act (hereinafter, the "Act") was to
create a special category of lands controlled by the Commission,
and by no other agency, the Attorney General found that to
subject such lands to County zoning would be contrary to the
purpose of the Act. A contrary result would occur, however,
when the Commission had found the lands to be surplus to its
needs, and had returned the lands to the jurisdiction of the
Board of Land and Natural Resources, pursuant to Section 212 of
the Act.
AUG u 7 1998
Aaron Chung, Councilmember
16 April 1998
Page 2
In 1979, a taxpayer challenged the right of the State to collect
real property taxes on his residential lease with the Hawaiian
Homes Commission. Construing Section 208 of the Act, the Court
found a clear congressional purpose to require lessees to pay
their fair share of taxes on the land leased to them. In the
Matter of Ainoa, 60 Haw 487, 491 591 P.2d. 607 (1979).
In 1987, the Attorney General, reaffirming support for the
position that Commission exercised "exclusive control" over
Hawaiian Home Lands, rendered the opinion that Shoreline
Management Permits were a land use control analagous to zoning,
and therefore that counties had no authority to require such
permits on Hawaiian Home Lands. Legal Memorandum, John W.
Anderson to Roger A. Ulveling, October 23, 1987.
In 1992, in a letter to Hawaii County Corporation Counsel,
Michael Matsukawa, the Attorney General went one step further,
finding that subdivision ordinances, as well as zoning, can not
be construed to apply to Hawaiian Home Lands, under the
jurisdiction of the Commission. Letter, George K. K. Kaeo to
Michael J. Matsukawa, August 6, 1992., and that even where the
State requires compliance with County regulations, the State
would be the enforcement agency, rather than the Counties. Ibid
P.9-10.
When this County, along with Honolulu, took this advice
seriously and declined to enforce County regulations, even when
enforcement was desired by DHHL, Letter, Ronald B. Mun,
Corporation Counsel, City and County of Honolulu to Robert A
Marks, Attorney General, August 16, 1993; the State seemingly
realized that they had bitten off more responsibility than they
could handle.
Thus, on May 6, 1994, a letter was sent to all the County
Corporation Counsels b? Deputy Attorney General Sonia Faust,
which ws prefaced by the statement that "(w)e understand the
certain statements in that letter (the Kaeo letter to
Matsukawa), have caused confusion and concern". In an attempt
to back away from their previous position, this letter sought to
"withdraw as overly broad" the statement that only the State
could enforce State Statutes, and sought to draw a distinction
between the activities of private persons on DHHL lands, and
actions taken on behalf of the Department. The status of this
letter, which was not reissued as an opinion, is unclear
however; since Ms. Faust orally informed the recipients that her
effort was being distributed to solicit comments, and not as a
final position.
Since that time, the Supreme Court has had further opportunities
to wrestle with this thorny issue. In State v. Jim, 907 P.2d.
80 Hawaii 168 754 (1995), the Court found that the exercise of
Aaron Chung, Council-member
16 April 1998
Page 3
the State's inherent police power did not conflict with the
responsibility to manage trust lands, and that absent clear
authority to the contrary, the Court was unwilling to find that
the act precluded enforcement of such laws as criminal trespass.
Just this year, in Kepo'o v. Watson, 1998 WL 29635 (Hawaii
1998), (a case not yet released for publication), the Supreme
Court initiated the creation of a test to be applied in the
analysis of such issues. In finding the provisions of State
environmental law to be applicable on Hawaiian Home Lands, the
Court found that such laws, unlike zoning, only had an
incidental effect on the use of the land. Thus, when a statute
or ordinance has the effect of requiring DHHL to use land for a
particular purpose, or is clearly contrary to the interests of
native Hawaiian beneficiaries, it is in conflict with the Act,
and therefore of no effect. When, like the environmental law,
they merely impose a procedural requirement on the use of the
land, they have only incidental effect, and will be upheld.
Ibid p.8.
With this background established, I will attempt to answer your
particular questions, as they were presented.
1) Real Property Taxes - This issue seems settled by Ainoa
supra, and by the language of Sec. 208 of the Act. Counties
have authority to levy real property taxes on Hawaiian Home
Lands, and DHHL is specifically authorized to assist in
their collection, and to place liens upon the property.
2) Water fees - Section 221 (b) of the Act grants to the
Department (emphasis supplied) the right to use, upon
demand, any water from a water licensee, which they feel
necessary to supply the needs of individuals upon the
"tract". Section 221 (f) directs that all water systems in
the exclusive control of the Department shall remain under
its exclusive control, provided that the Department may
enter into agreements to maintain the system and collect
fees.
Notwithstanding these provisions, a practice has developed
around the State, of county water departments accepting
control of DHHL water lines, and operating them as part of
the County system. Such practice was clearly not what the
law contemplates. Irrespective of that, however, the Act
does not afford occupants of DHHL lands any right to free
water, and in fact, clearly shows an intention that they pay
for water, albeit to DHHL rather than the County Water
Department.
Aaron Chung, Councilmember
16 April 1998
Page 4
3) Sewer Fees - The Act does not address sewer systems, but
since sewer fees are assessed to promote the health and
welfare of the community and, since they do not control the
manner in which DHHL lands are to be used, neither are they
adverse to the purposes of the Act; appropriate sewer fees
may be assessed against uses of that service.
4) Police Powers - The authority of the County's police power
is applicable on DHHL lands. Jim supra, Kepo'o supra.
5) Road Maintenance - Section 220 (b) of the Act clearly
imposes upon the various Counties the duty to maintain
roads, other than Federal Aid Highways, through or over
Hawaiian Home Lands. "Maintenance" of roads has been
defined as that which is necessary to keep the road
efficient, Contractors Association of West Virginia v.
Department of Public Safety 434 SE 2d 357, 189 W. Va 685
(1993), or as "...the preservation of the entire highway,
including surface, shoulders, roadsides, structures, and
such traffic-control devices as are necessary for its safe
and efficient utilization." 23 USCA §101 (a).
As such, the term has been held to include law enforcement
expenses, Contractors Association supra; the distribution of
road maps, Keck v. Manning, 313 Kent. 433, 231 SW 2d 604
(1950); relocation of utilities, Edge v. Brice, 253 Iowa 710
113 NW 2d. 755, (1962); and the maintenance of lighting
fixtures, State ex rel Walter v. Vggel, 108 Ohio. App 294,
161 NE 2d. 449, affd 169 Ohio St. 368, 159 NE 2d 812 (1958).
6) Building Permits - This is a more difficult question, in
that the subject has never been directly addressed.
Building Safety requirements are clearly imposed pursuant to
the police power. On the other hand, building permit
approvals are inexorably linked with zoning requirements,
and for that reason, I believe that they directly control
the use of the land, and can not be enforced on Hawaii Homes
Land. In an analagous and well reasoned, although old,
case, Hilo Meat Co. v. Antone, 23 Haw 675 (1917), ordinances
of this County relating to construction, were held to
restrict the Territory in the exercise of its right to use
its property, and to therefore be inapplicable to the Hilo
Armory. Similar reasoning would seem to be applicable to
DHHL.
7) Zoning - Zoning Ordinances obviously directly control the
use of land, and thus are unenforceable on Hawaiian Homes
Land. Kepo'o supra. HI AG. Op. 72-21.
8) Liquor Laws - Although these laws indirectly could affect
the use of land, s,j^h impact seems incidental. Therefore,
they are enforceable on Hawaiian Home Lands.
Aaron Chung, Councilmember
16 April 1998
Page 5
I hope that these comments have been of assistance to you.
Please feel free to call if you should have any further
questions.
Sincerely,
w / r
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}2D ` RDEMAN
Corporation Counsel
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