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HomeMy WebLinkAboutCOM 0489.619 2018-2020 Murashige, Laura From: David Arakawa <darakawa@lurf.org> Sent: Tuesday, November 19, 2019 4:42 PM To: Council Testimony Cc: Wynde Yamamoto Subject: HAWAII COUNTY- BILL 101 Herbicide Use -Testimony in Opposition from Land Use Research Foundation of Hawaii Attachments: 191119 Bill 101 Herbicide Use_LURF Testimony (11.20.19 Hawaii Council Hrg)(wmy).pdf Aloha Hawaii County Clerk, Attached is a copy of the testimony of the Land Use Research Foundation of Hawaii (LURF) with comments in opposition to Proposed Bill 101, Draft 2, Herbicide Use, which is scheduled for Second or Final Reading before the Hawaii County Council on November 20, 2019. Please feel free to contact me if you have any questions. Mahalo, Dave r-, ce David Z. Arakawa e . Executive Director r Land Use Research Foundation cpa-< of Hawaii 1100 Alakea Street, Suite 408 = -T.: , Honolulu, Hawaii 96813 W = -2.7J Telephone: (808) 521-4717 Direct Line: (808) 521-4718 c`' Cellular: (808) 783-9407 Fax: (808) 536-0132 E-mail: darakawa a@lurf.org Website: www.lurf.orq Comm. No. 'Cv_► ' ON Ref. To: 1 Ref. Date NOV 2 0 2019 ':1► 1164a.� LAND USE RESEARCH FOUNDATION OF HAWAII 1100 Alakea Street,Suite 408 1M!!UINENV Honolulu,Hawaii 96813 Mir (808)521-4717 —qv w-ww.]urf.org Via E-Mail counciltestimonvOhawaiicounty.gov November 19, 2019 Honorable Aaron Chung, Chair Honorable Karen Eoff,Vice-Chair, and Members of the Hawaii County Council County of Hawaii Hawaii County Building 25 Aupuni Street Hilo, Hawaii 96720 Comments Regarding Proposed Bill ioi, Draft 2, Entitled"An Ordinance Amending Chapter 14, Hawaii County Code 1983 (2016 Edition,As Amended), by Adding a Adding a New Article 24, Relating to Herbicide Use (Comm. 489.338). Wednesday, November 20, 2019, at 9:oo a.m. at the West Hawaii Civic Center, 74-5044 Ane Keohokalole Highway, Building A, Kailua- Kona, Hawaii The Land Use Research Foundation of Hawaii(LURF) is a private, non-profit research and trade association whose members include major Hawaii landowners, developers and utility companies. LURF's mission is to advocate for reasonable, rational and equitable land use planning,legislation and regulations that encourage well-planned economic growth and development,while safeguarding Hawaii's significant natural and cultural resources, and public health and safety. For consideration before this Council,is a proposed bill,the purpose of which is to amend Chapter 14, Hawaii County Code 1983 (2016 Edition, as amended),by adding a new Article 24 to prohibit the use of certain herbicides on County- owned or maintained parks and alongside County roads,bikeways, sidewalks, trails,drainageways,and waterways; and to create a transition committee to research and develop alternative methods of vegetation management. The proposed ban would take effect on January 1, 2024. Honorable Aaron Chung,Chair Honorable Karen Eoff,Vice-Chair and Members of the Hawaii County Council November 19,2018 Page 2 LURF's Position. In its opposition to this proposed bill, LURF must emphasize that it clearly is not opposed to measures intended to protect the health and safety of persons,workers, animals or wildlife in Hawaii County, or to efforts made to protect the community from exposure to chemicals properly and lawfully determined by science and research to be harmful. LURF must, however, state its strong concern regarding, and caution against efforts made(often to further special interests),which may intend to protect the public,but instead, potentially have negative impacts, ultimately resulting in harmful consequences to people, vegetation, and the environment. With respect to the subject bill proposing to prohibit the use of certain herbicides on County-owned or maintained property, LURF has concerns with the measure, and respectfully requests this Council's serious consideration of the following issues: A. Public Safety Concerns County's Ability to Fulfill Responsibility to Adequately Manage Vegetation in Public Ways Absent Use of Presently Relied-Upon Herbicides. LURF questions the ability of the County to effectively and adequately manage vegetation in a number of public areas without the use of"prohibited herbicides" and reliance only upon"eco-friendly products and methods" and "minimum risk products." Presently utilized herbicides enable vegetation control on property owned and maintained by the County, including roads, roadsides, drainages, channels and water courses,thereby assisting with fire prevention and protection of adjacent private lands, and deterring establishment of unwanted habitat for burrowing animals, as well as invasive species of plants, insects and other vermin. It is imperative in wet and flood-prone areas such as Hawaii Island, that the County's channels and waterways and natural water courses be kept free of weeds and excess vegetation in order to combat flooding and restore habitat for native plant species. LURF also understands that when not effectively controlled,weeds and other vegetation create cracks in roadways, structures, sidewalks, and other site amenities (such as trails and ball courts), which reduce the life of such infrastructure and create significant maintenance and replacement costs and expenses. More importantly, public safety issues arise from surface cracks and uneven surfaces due to uncontrolled vegetation, resulting in dangerous tripping hazards and injuries. Uncontrolled brush Honorable Aaron Chung,Chair Honorable Karen Eoff,Vice-Chair and Members of the Hawaii County Council November 19,2018 Page 3 along roadsides can also create serious traffic hazards and liability for the County by obscuring signs,intersections, and impairing drivers'lines of sight along roadways. Significant Cost to Implement this Measure. While this proposed Bill proposes to replace "prohibited herbicides"with"eco- friendly products and methods,"such alternatives do not come without a significant cost to the County. Labor required for manual mowing and hand removal of weeds,for example,will drastically increase maintenance costs, as well as increase the potential for worker injury from equipment and performance of work in hazardous areas. County departments have already confirmed the need for additional manpower and funding in order to implement and comply with the proposed measure, at a cost to the County in an amount LURF understands to be estimated at $14,800,000. B. Impact on Private Lands In addition to the public safety concerns presented above, LURF must respectfully call the Council's attention to the significant legal concern regarding this Bill,which may potentially constitute a taking of private property and violation of private landowners'constitutional rights. Inability of the County to successfully implement and maintain vegetation management on County lands without prohibited herbicides as proposed will likely create and increase significant risks of harmful and threatening consequences such as fire and noxious weed infiltration on adjacent private lands,which may affect,impede, or preclude use of private property, or otherwise deprive private landowners of beneficial economic use thereof. LURF believes the situation is especially concerning with respect to private lands (including agricultural lands) encumbered by County easements and/or bordered by County property,where the failure of the County to effectively manage vegetation in areas located on or surrounding private lands may result in dangerous or hazardous conditions, and create noxious habitat for invasive species of plants, insects and animals,thereby constituting a"taking"of private property. The"Takings" Issue. When it comes to measures impacting the rights of private landowners, the law and the courts have established strict rules,which are based upon and embody the general principle that any enactment affecting private property rights must bear a substantial relation to the public health, safety, or general welfare. Honorable Aaron Chung,Chair Honorable Karen Eoff,Vice-Chair and Members of the Hawaii County Council November 19,2018 Page 4 Despite the intent of Bill 101 purportedly being for the protection of public health, safety and welfare,this Council should be aware that in the event a land use regulation operates to deprive the owner of beneficial economic use of the property,there exists an issue as to whether that owner may be entitled to monetary compensation under the Fifth and Fourteenth Amendments to the U.S. Constitution. And most significantly, as applied to the subject Bill, U.S. courts have recently even considered temporary land use controls such as bans, moratoria and prohibitions to amount to a deprivation of beneficial use in the property(i.e., a"taking"), potentially entitling landowners to compensation.' Importantly,what is at stake here is the constitutional and vested rights of private property owners,large and small,which should not be improperly or negligently affected unless the County can prove a proportionality between the effects of the herbicides sought to be prohibited and the County's proposed uncompensated taking.2 In the absence of such proof, the County may be subject to legal challenge and liability for"just compensation." Such litigation is foreseeable and could likely cost the County substantial sums to defend. Conclusion Based on the concerns articulated above, LURF believes it would be unreasonable, if not irresponsible for this Committee to support this proposed prohibition to preclude use of certain herbicides on County property without thorough review and analysis of the currently available facts, information and scientific evidence relating to the identified herbicides and the legality and appropriateness of such a prohibition;3 legitimacy of the present need for such a prohibition; clearer articulation of the use of the prohibited herbicides, activities affected and contemplated continued regulation thereof; and further consideration of the potential consequences of such a prohibition affecting public safety, and must therefore recommend deferral of this proposed measure. Thank you for the opportunity to provide comments regarding this matter. ' See,e.g.,Agins v. Tiburon,24 CaI.3d 266(Sup.Ct.of Calif., 1979),aff d on oth.grds.,447 U.S.255 (1980). 2 At issue specifically,is the constitutionally protected private property rights of landowners as well as the vested rights of property owners and others who have heretofore lawfully complied with necessary statutory and regulatory requirements relating to resource extraction,zoning,and land use. 3 While LURF understands that the alleged purpose of the proposed prohibition is to protect the public health,safety and general welfare,sufficient facts,information and conclusive evidence,as well as valid need for the measure must nevertheless presently exist to legally support the imposition of such a ban or prohibition,particularly in this type of situation where the potential deprivation of constitutional and vested rights is at stake.