HomeMy WebLinkAboutCOM 0128.081 2010-2012William P. Kenoi
Mayor
Lincoln S.T. Ashida
Corporation Counsel
Katherine A. Garson
Assistant Corporation Counsel
COUNTY OF HAWAII
OFFICE OF THE CORPORATION COUNSEL
333 Kilauea Avenue, 2nd Floor • Hilo, Hawai'i 96720 • (808) 961 -8251 • Fax (808) 961 -8622
October 17, 2011
Sent via email only; no hard copy will follow
Dominic Yagong, Chairperson
Hawai`i County Council
25 Aupuni Street
Hilo, Hawai`i 96720
Dear Chairperson Yagong:
Re: BILL 270 (DRAFT 3),
AN ORDINANCE REPEALING CHAPTER 5 OF THE HAWAII COUNTY
CODE 1983 (2005 EDITION, AS AMENDED), TO BE REPLACED BY A
NEW CHAPTER 5, RELATING TO BUILDING
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This letter is written in response to your request for the Corporation Counsel's opinion
regarding Bill 270 (Draft 3), an Ordinance Repealing Chapter 5 of the Hawai`i County Code
1983 (2005 Edition, As Amended), to be Replaced by a New Chapter 5, Relating to Building, as
a result of inquiries by members of the Hawai` i County Council ( "Council ").
Council members inquired whether the Council has discretion to amend the State
Building Code, codified in Hawai`i Revised Statutes ( "HRS ") Chapter 107, Part II, for purposes
of including such amendments in the County of Hawaii's ( "County ") building code ordinance,
and, if the Council has such discretion, to what extent may the Council amend the State Building
Code.
I. QUESTION PRESENTED
A. Does HRS Chapter 107, Part II, permit the counties of the State of Hawai`i
( "State ") to amend the State Building Code for purposes of including such amendments in the
County's building code ordinance?
B. If HRS Chapter 107, Part II, permits the counties of the State to amend the State
Building Code, to what extent may the Council amend the State Building Code?
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Dominic Yagong, Chair
Hawaii County Council
October 17, 2011
Page 2 of 9
II. BRIEF ANSWER
The Council may amend the State Building Code and may include such amendments in
the County's building code ordinance. However, such amendments may not be inconsistent with
or contrary to State law or they will be void as preempted by State law.
III. DISCUSSION
The questions presented require an examination of HRS § 107 -28, its legislative history,
and relevant Hawaii Administrative Rules ( "HAR ").
HRS § 107 -28 reads as follows:
§107 -28 County building code authority to amend the state
model building code without state approval.
(a) The governing body of each county shall amend the state
building code as it applies within its respective jurisdiction, in
accordance with section 46- 1.5(13), without approval of the
council. Each county shall use the model codes and standards
listed in section 107 -25, as the referenced model building codes
and standards for its respective county building code ordinance, no
later than two years after the adoption of the state building code.
(b) If a county does not amend the statewide mode code within the
two -year timeframe, the state building code shall become
applicable as an interim county building code until the county
building code adopts the amendments.
HAW. REV. STAT. § 107 -28 (2007). The issue presented is whether the phrase "[t]he governing
body of each county shall amend the state building code as it applies within its respective
jurisdiction" should be interpreted as granting the Council unfettered discretion to amend the
State Building Code when crafting the County's building code ordinance. Because no other
State county has, to date, adopted its building code ordinance, there is no precedent on this issue.
A. Proposed Amendments to Bill 270, as Set Forth in Communication 128.74
At the October 5, 2011, Council meeting, Councilmember Brenda Ford requested an
opinion from this office as to the legality of each of the proposed amendments set forth in
Communication 128.40. However, at that Council meeting, Councilmember Brittany Smart
withdrew Communication 128.40 and introduced Communication 128.74. Both of these
Communications proposed amendments to Bill 270, Draft 3, and are substantially similar.
Because Communication 128.40 was withdrawn, it will not be addressed in this opinion.
Dominic Yagong, Chair
Hawai` i County Council
October 17, 2011
Page 3 of 9
However, Communication 128.74 will be discussed at the upcoming October 19, 2011, Council
meeting. Accordingly, the proposed amendments to Bill 270, Draft 3, as contained in
Communication 128.74, will be discussed below.
1. Section 5 -11. Amendments to this section should NOT BE VOID. However, insomuch
as this proposed amendment contemplates additional /other ordinances enacted by the Council, it
is important to note that any such additional /other ordinances that may be adopted by the Council
will be preempted by State law and BE VOID to the extent that they conflict with State law.
This section addresses the administration, permitting, and /or enforcement and inspection
procedures of the County building code and is, accordingly, within the purview of the Council.
See, HAW. REV. STAT. § 107 -26 (2007). If enacted, it should not be preempted by the State
Building Code.
However, the proposed amendment discusses the Council enacting additional /other ordinances
relating to the County building code.1 Accordingly, any such additional /other ordinances that
the Council may adopt will be preempted by State law in the same way that State law preempts
Bill 270, Draft 3.
2. Section 5 -19. Amendments to this section should NOT BE VOID.
This section addresses the administration, permitting, and /or enforcement and inspection
procedures of the County building code and is, accordingly, within the purview of the Council.
See, HAw. REV. STAT. § 107 -26 (2007). If enacted, it should not be preempted by the State
Building Code.
3. Section 5 -22. Amendments to this section should NOT BE VOID.
This section addresses the administration, permitting, and /or enforcement and inspection
procedures of the County building code and is, accordingly, within the purview of the Council.
See, HAw. REV. STAT. § 107 -26 (2007). If enacted, it should not be preempted by the State
Building Code.
4. Section 5 -41. Amendments to this section should NOT BE VOID.
This section addresses the administration, permitting, and/or enforcement and inspection
procedures of the County building code and is, accordingly, within the purview of the Council.
Councilmember Smart's proposed amendment to Section 5 -11 reads that "[t]he administrative authority shall ...
enforce the provisions of [the County building] code and shall interpret[ the] code ... [and that such interpretations,
policies and procedures shall be in compliance with the intent and purpose of this code and any other(s) relating to
this building code that may be adopted by Hawai `i County." (Councilmember Smart's added language in bold
italics.)
Dominic Yagong, Chair
Hawai`i County Council
October 17, 2011
Page 4 of 9
See, HAW. REV. STAT. § 107 -26 (2007). If enacted, it should not be preempted by the State
Building Code.
5. Section 5 -61. Amendments to this section should NOT BE VOID.
This section addresses the administration, permitting, and /or enforcement and inspection
procedures of the County building code and is, accordingly, within the purview of the Council.
See, HAw. REV. STAT. § 107 -26 (2007). If enacted, it should not be preempted by the State
Building Code.
6. Section 5 -76. Amendments to this section will likely BE VOID.
This section is from Article 4 of Bill 270, Draft 3, which addresses County -made amendments to
the IBC. As such, it does not address the administration, permitting, and /or enforcement and
inspection procedures of the County building code. See, HAw. REV. STAT. § 107 -26 (2007).
Accordingly, if enacted, this amendment will likely be preempted by the State Building Code
and declared void.
7. W101.4, Section 1609.1.2. Amendments to this section will likely BE VOID.
This section is from Appendix W, added to Bill 270, Draft 3, as discussed in Article 4, which
addresses County -made amendments to the IBC. As such, it does not address the administration,
permitting, and /or enforcement and inspection procedures of the County building code. See,
HAw. REV. STAT. § 107 -26 (2007). Accordingly, if enacted, this amendment will likely be
preempted by the State Building Code and declared void.
8. Section 5 -85. Amendments to this section should NOT BE VOID. However, this
amendment is NOT NECESSARY, as similar language that directly corresponds to the State
Building Code is already found in Bill 270, Draft 3.
This section addresses the administration, permitting, and /or enforcement and inspection
procedures of the County building code and is, accordingly, within the purview of the Council.
See, HAW. REV. STAT. § 107 -26 (2007). However, the State has adopted the International
Energy Conservation Code ( "IECC ") as part of the State Building Code, so any Bill 270
amendment inconsistent or in conflict with the IECC will be preempted by the State Building
Code and declared void. This amendment, as drafted, is not inconsistent with the State Building
Code. However, this amendment is not needed, as similar language that is consistent with the
State Building Code is found in Article 5, Section 5- 84(8), of Bill 270. See, HAR § 3- 181 -15.
B. Statutory Interpretation
Statutory interpretation begins with the language of the statute itself. Consumer Prod.
Safety Comm'n v. GTW Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056 (1980); see
Dominic Yagong, Chair
Hawai`i County Council
October 17, 2011
Page 5 of 9
also, State v. Toyomura, 80 Hawai`i 8, 18, 904 P.2d 893, 903 (1995) (adopting the same rule of
statutory interpretation in Hawai`i). Where the statutory language is plain and unambiguous, the
plain and obvious meaning should be given effect. AIG Hawai`i Ins. Co. v. Estate of Caraang,
74 Hawai`i 620, 633, 851 P.2d 321, 328 (1993). Moreover, ordinary meanings should be given
to terms not otherwise statutorily defined. State v. Chen, 77 Hawai`i 329, 337, 884 P.2d 392,
400 (1994). The plain language of HRS § 107 -28 states that, "The governing body of each
county shall amend the state building code as it applies within its respective jurisdiction" and
that, "Each county shall use the model codes and standards listed in section 107 -25, as the
referenced model building codes and standards for its respective county building code
ordinance ". Here, there is no ambiguity that the counties are required by State law to amend the
State Building Code in fashioning their building code ordinances. Additionally, there is no
ambiguity that the counties are required by State law to use the International Building Code
( "IBC ") as part of their building code ordinances, as the IBC is part of the State Building Code.2
If the language of a statute is clear, the courts look no further than that language in
determining the statute's meaning. State v. Kalama, 94 Hawai`i 60, 64, 8 P.3d 1224, 1228
(2000). However, assuming for purposes of a complete analysis, that there is some ambiguity in
the language of HRS § 107 -25, i.e., doubt, doubleness of meaning, indistinctiveness, or
uncertainty of an expression, the Hawai`i Supreme Court has held that in construing an
ambiguous statute, the meaning of the ambiguous words may be sought by "examining the
context, with which the ambiguous words, phrases, and sentences may be compared, in order to
ascertain their true meaning." Awakuni v. Awana, 115 Hawai`i 126, 133, 165 P.3d 1027, 1034
(2007).
As a starting point, the argument has been put forward that the State intended the State
Building Code to be merely a guideline for the counties to use, and that the counties are
ultimately free to create and implement their own standards into their respective building code
ordinances. It appears that the first sentence of HRS § 107 -28 is being used to bolster this
argument ( "The governing body of each county shall amend the state building code as it applies
within its respective jurisdiction... "). The Hawai`i Supreme Court has held that laws addressing
2 HRS § 107 -25, which is expressly referenced in HRS § 107 -28, established the State Building Code and reads as
follows:
§107 -25 State building code; requirements. There is established a state
building code applicable to all construction in the State of Hawaii. The state
building code shall include:
(3) The latest edition of the International Building Code, as published by the
International Code Council;
HAW. REV. STAT. § 107 -25 (2007). Thus, the State adopted the IBC as part of the State Building
Code.
Dominic Yagong, Chair
Hawai`i County Council
October 17, 2011
Page 6 of 9
the same matters should be construed with reference to each other. Richardson v. City and
County of Honolulu, 76 Hawai`i 46, 55, 868 P.2d 1193, 1202 (1994) ("Maws in pari materia, or
upon the same subject matter, shall be construed with reference to each other. What is clear in
one statute may be called in aid to explain what is doubtful in another. "). In this case, HRS §
107 -28 must be read together with HRS § 107 -25. The plain language of HRS § 107 -25 states
that, "There is established a state building code applicable to all construction in the State of
Hawai`i." See n.2. Here, there is no ambiguity that the State Building Code applies to all
construction in the State.3 Because the County is a county within the State, the State Building
Code applies to all construction in the County. And, because the State Building Code includes
the IBC, all construction in the County is subject to the IBC.
This analysis makes sense because of the doctrine of preemption, which is the rule that
federal laws will prevail over state laws, and state laws will prevail over local /municipal laws. In
general, "a municipal ordinance may be preempted pursuant to HRS § 46- 1.5(13) if (1) it covers
the same subject matter embraced within a comprehensive state statutory scheme disclosing an
3 The argument has been raised that HRS § 107 -27(a) implies that the counties are not required to adopt the State
Building Code. Specifically, HRS § 107 -27 reads as follows:
§107 -27 Exemptions. (a) Upon adoption of rules under this chapter, the
design of all state building construction shall be in compliance with the state
building code within one year of its effective date, and state building
construction shall be allowed to be exempted from:
(1) County codes that have not adopted the state building code;
(2) Any county code amendments that are inconsistent with the minimum
performance objectives of the state building code or the objectives
enumerated in this part; or
(3)
Any county code amendments that are contrary to code amendments
adopted by another county.
(b) Exemptions shall include county ordinances allowing the exercise of
indigenous Hawaiian architecture adopted in accordance with section 46 -1.55.
HAW. REV. STAT. § 107 -27 (2007). Although HRS § 107- 27(1)(a) suggests that county building codes need not
incorporate and adopt the State Building Code, this notion is only partially correct. As discussed herein, the Council
may enact a building code ordinance inconsistent with the State Building Code, but such an ordinance will be
preempted by the State Building Code to the extent that it is less restrictive than the State Building Code. See infra,
discussion on preemption. Furthermore, as discussed herein, a local /municipal law that has been preempted by a
state law is void. Id.
Additionally and importantly, HRS § 107 -27 addresses State buildings only and does not apply to
constructions owned by either the counties or private persons and entities. Notably, even if it can be argued that
HRS § 107 -27 applies to all construction statewide, it is clear that all said construction "shall be in compliance with
the state building code ". HAW. REV. STAT. § 107 -27 (2007). Thus, the State Building Code applies to all
construction of buildings statewide, whether it be through the preempting of county ordinances or application of
HRS § 107 -27. Id.; see also, infra, discussion on preemption.
Dominic Yagong, Chair
Hawai`i County Council
October 17, 2011
Page 7 of 9
express or implied intent to be exclusive and uniform throughout the state or (2) it conflicts with
state law." Richardson, 76 Hawai`i at 62, 868 P.2d at 1209. Thus, if a county ordinance
addresses the same subject matter as a State statute, the State statute will control and, if
challenged in court, the county ordinance will be declared void. Id. at 61 -62, 868 P.2d at 1208-
09. Here, Bill 270 addresses the same subject matter as the State Building Code, so preemption
applies. If the County were to enact a version of Bill 270 that is less restrictive than the State
Building Code, as defined by the HRS, then the State Building Code will prevail over Bill 270,
as the State Building Code is established by state statute. Any such version of Bill 270 would be
void on the basis of its provisions being less restrictive than the State Building Code because the
people of the County are governed by the provisions of the State Building Code when
constructing new buildings, irrespective of Bill 270.4
C. Legislative History
As discussed above, the language of HRS § 107 -28 is plain and unambiguous and when
the statutory language is plain and unambiguous, the courts look no further than the plain and
obvious meaning. Assuming for purposes of complete analysis that there is some ambiguity,
extrinsic aids such as legislative history may be used to determine legislative intent. State v.
Reis, 115 Hawai`i 79, 84, 164 P.3d 980, 985 (2007).
The bill that ultimately became HRS Chapter 107, Part II, was Senate Bill ( "S.B. ") No.
795 from the Twenty -Fourth Legislature, in 2007.5 Section 1 of S.B. 795 reads as follows:
Section 1. The legislature finds that the State has traditionally
allowed the individual counties to establish their own building
codes. The counties have adopted various portions of the Uniform
Building Code, but the code differs from county to county. The
status of fragmented building requirements in Hawaii is of serious
concern to those involved in building ownership, design,
construction, and insurance. Over forty states have adopted some
form of a statewide building code.
The adoption of a uniform set of statewide building codes
applicable to one and two family dwellings, all other residential
uses, and commercial and industrial buildings, and state buildings
would make it possible for building owners, designers, contractors,
and code enforcers within the State to apply consistent standards.
The health and safety considerations related to the codes are of
statewide interest, especially relating to emergency disaster
preparedness.
4 The Council has the legislative authority to enact all, some, or none of Councilmember Smart's proposed
amendments to Bill 270, Draft 3. The issue is whether, if these amendments are challenged in a court of law, that
court of law would determine the amendments are preempted by State law and, thus, void.
Also known as "Act 82 ".
Dominic Yagong, Chair
Hawai`i County Council
October 17, 2011
Page 8 of 9
The purpose of this Act is to require the department of
accounting and general services to establish and implement a state
building code.
S.B. 795, 24th Leg., Reg. Sess. (Haw. 2007). The plain language of S.B. 795 is unambiguous
that the State, in the interests of public health and safety, desired to make building requirements
uniform across the state because the State was concerned about the counties' various building
codes, which varied greatly from county to county. Accordingly, the language of S.B. 795
strongly indicates that the State enacted S.B. 795 to set the minimum standard for buildings
statewide.
D. Hawai`i Administrative Rules
As discussed above, where ambiguities may exist in statutory language, extrinsic aids
may be used to assist in the determination of legislative intent. In addition to the legislative
history of the subject statute, as discussed above, HARs governing the administration of the
statute are another such extrinsic aid that may be used.
HAR §§ 3- 108 -1, 3- 108 -2, and 3 -108 -4 are among the rules adopted by the State
Department of Accounting and General Services to provide guidance in the administration of the
State Building Code. HAR § 3 -108 -1 states that, "The purpose of this chapter is to adopt the
state building code as required by section 107 -25, HRS ", while HAR § 3 -108 -2 reads as follows:
This chapter sets forth the minimum requirements for the
construction, alteration, movement, enlargement, replacement,
repair, equipment, use and occupancy, location, maintenance,
removal, and demolition of every building or structure or any
appurtenances connected or attached to buildings or structures.
These HAR provisions are unambiguous that they set forth the minimum requirements allowed
by the State. Pursuant to HAR § 3- 108 -4, these minimum requirements include the
" "International Building Code, 2006 Edition" as copyrighted and published in 2006 by
International Code Council, Incorporated, 500 New Jersey Avenue, 6th Floor, Washington DC
20001, [which was] adopted by reference and made a part of this chapter." Notably, these three
HAR sections are consistent with HRS § 107 -25, discussed above.6 As such, when read
together, the relevant HRS and HAR provisions indicate the conclusion that the State established
the IBC as the minimum standard for buildings statewide.
6 Specifically, that the State Building Code "shall include ... [t]he latest edition of the International Building Code,
as published by the International Code Council ". HAw. REV. STAT. § 107 -25 (2007).
Dominic Yagong, Chair
Hawai`i County Council
October 17, 2011
Page 9 of 9
IV. CONCLUSION
The statutory language of HRS § 107 -28 is plain and unambiguous, and the plain and
obvious meaning of the statute supports the conclusion that, while the Council may amend the
State Building Code, the Council may not enact a building code ordinance that is less stringent
than the State Building Code, vis -a -vis, the IBC. Alternatively, even if the statutory language
was considered ambiguous, placing the language of HRS § 107 -28 in context with other
pertinent provisions of HRS Chapter 107, Part II, the legislative history of HRS Chapter 107,
Part II, and HAR sections relating to the State Building Code, yields the same conclusion. As
noted above, any provisions of Bill 270 that that are less restrictive than the State Building Code
will be preempted by the State Building Code and found to be void if challenged in a court of
law.
As discussed above, the Council will act within its legislative authority if it enacts
Councilmember Smart's proposed amendments to Bill 270, Draft 3. See, n.4. However, it is
important to note that the ultimate answer as to whether these proposed amendments are void lies
with a court of law. Id. This office can only offer its opinion as to how a court of law might
view Councilmember Smart's proposed amendments if they were to be challenged in court, and
is so doing through this letter.
8251.
If you have any questions, please do not hesitate to contact the undersigned at (808) 961-
Respectfully submitted,
Chang, Kyle
J 1 _ Oct 17 2011 9:39 AM
KYLE K. CHANG
Deputy Corporation Counsel
KKC:ec
cc: County Council Members
County Clerk
Lincoln S.T. Ashida, Corporation Counsel
Katherine A. Garson, Assistant Corporation Counsel
Warren H.W. Lee, DPW Director
Brandon A.K. Gonzalez, DPW Deputy Director
Jai Ho Cheng, DPW Acting Building Division Chief
Neil C. Erickson, DPW Building Division Plans Examiner