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Home My WebLink AboutCOM 0128.134 2010-2012William P. Kenoi Mayor Lincoln S.T. Ashida Corporation Counsel Katherine A. Gerson Assistant Corporation Counsel COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 333 Kilauea Avenue, 2nd Floor • Hilo, Hawaii 96720 • (808) 961 -8251 • Fax (808) 961 -8622 January 19, 2012 Sent via email only; no hard copy will follow Brittany Smart, Councilperson Hawai`i County Council 25 Aupuni Street Hilo, Hawai`i 96720 Dear Councilperson Smart: 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 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. Specifically, you inquired about the effect, if any, that April 15, 2012, has on the County of Hawai`i's ( "County ") building code ordinance. I. QUESTION PRESENTED A. Is April 15, 2012, an absolute deadline for the County to amend its building code ordinance? B. What will be the status of the current Chapter 5, Hawai`i County Code ( "Code "), on April 15, 2012, if Bill 270 does not become law on or before that date? II. BRIEF ANSWER A. April 15, 2012, does not appear to be an absolute deadline for the County to amend its building code ordinance. Hawaii County is an Equal Opportunity Employer and Provider Comm. No. l2-g• /6(74 ef. To: Praise C wn ci j Ref. Date FEB 1 2Qtz Brittany Smart, Councilmember Hawai`i County Council January 19, 2012 Page 2 of 4 B. The current Chapter 5 of the Code remains law until it is repealed. In the event that Bill 270 does not become law by April 15, 2012, at that time, all provisions in Chapter 5 that are inconsistent with the state building code will be preempted by the state building code. III. DISCUSSION A. Hawai`i Revised Statutes § 107 -28 Statutory interpretation begins with the language of the statute itself. Consumer Prod. Safety Comm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2056 (1980); see 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 Haw. 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). Section 107 -28 of the Hawai`i Revised Statutes ( "HRS ") governs the counties' authority to amend the state building code. Specifically, HRS § 107 -28(b) states that "[i]f a county does not amend the statewide model code within the two -year time frame, the state building code shall become applicable as an interim county building code until the county adopts the amendments." Here, there appears to be no ambiguity that, should a county fail to amend its respective building code ordinances within two years of adoption of the state building code, the state building code becomes the law of that county only until said county enacts its amendments thereto. As you know, the State Building Code went into effect on April 16, 2010. Hawai`i Administrative Rule ( "HAR ") § 3- 180 -1. Thus, pursuant to HRS § 107 -28 and HAR § 3- 180 -1, the County has until April 15, 2012, to adopt Bill 270. However, pursuant to HRS § 107- 28(b), the County does not appear to be precluded from enacting Bill 270 after April 15, 2012. Pursuant to HRS § 107- 28(b), in the event that Bill 270 does not become law by April 15, 2012, the state building code will become the law of the County until the County adopts Bill 270. Thus, it does not appear that April 15, 2012, is a firm deadline, and if County adopts Bill 270 after April 15, 2012, Bill 270 should nevertheless become the law of the County. B. The Current Chapter 5 of the Code Generally, fully enacted County ordinances remain the law of the land until they are repealed. The repeal of a law is the "abrogation of an existing law by legislative act." BLACKS LAW DICTIONARY (9th ed. 2009). The repeal of a law can either be express ( "[r]epeal by specific declaration in a new statute or main motion ") or implied ( "[r]epeal by irreconcilable conflict between an old law or main motion and a more recent law or motion "). Id. Brittany Smart, Councilmember Hawai`i County Council January 19, 2012 Page 3 of 4 In this case, Bill 270 is the legislation that will repeal the current Chapter 5 of the Code. Bill 270 represents an express repeal of the current Chapter 5, as the title of Bill 270 is "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 ". Until Bill 270, or other County legislation that is inconsistent with the current Chapter 5, is enacted, the current Chapter 5 remains the law of the land. Having said this, however, as you are know, "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 express or implied intent to be exclusive and uniform throughout the state or (2) it conflicts with state law." Richardson v. City and County of Honolulu, 76 Hawai`i 46, 62, 868 P.2d 1193, 1209 (1994). 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, HRS § 107 -28(b) is unambiguous that the state building code is to become the County's building code in the event that the County does not adopt its new building code before April 15, 2012. HRS. § 107 -28(b) (2007) ( "[i]f a county does not amend the statewide model code within the two -year time frame, the state building code shall become applicable as an interim county building code until the county adopts the amendments ") (emphasis added). As such, any provisions in the current Chapter 5 that are inconsistent with the state building code will be preempted by the state building code. 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 the County may lawfully and timely amend its building code ordinance after April 15, 2012. In general, County laws remain the law of the land until they are repealed by a legislative act, either expressly or impliedly.,, So long as no legislative act repeals the current Chapter 5 of the Code, it remains the law of the land. The statutory language of HRS § 107 -28 is plain and unambiguous, and the plain and obvious meaning of the statute supports the conclusion that, in the event that Bill 270 is not enacted by April 15, 2012, the state building code becomes the law of the County on that date and for such time thereafter until the County adopts Bill 270. Brittany Smart, Councilmember Hawai`i County Council January 19, 2012 Page 4 of 4 If you have any questions, please do not hesitate to contact the undersigned at (808) 961- 8251. KKC:fc Respectfully submitted, Jan 19 2012 11:37 AM titan KYLE K. CHANG Deputy Corporation Counsel c via email only: County Council Members Jamae Kawauchi, 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