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HomeMy WebLinkAbout2008-02-12_Opinion_re_Mud_Lane Harry Kim O�fiY>�`".?kq Lincoln S.T.Ashida Mayor Corporation Counsel Gerald Takase Assistant Corporation 'TE OVA$'''' Counsel COUNTY OF HAWAII OFFICE OF THE CORPORATION COUNSEL 101 Aupuni Street,Suite 325 • Hilo,Hawaii 96720-4262 • (808)961-8251 • Fax(808)961-8622 February 12, 2008 Honorable Dominic Yagong Council Member County Council of Hawaii 333 Kilauea Avenue, 2nd Floor Hilo, Hawaii 96720 Re: Gravel Road Work on Mud Lane Dear Mr. Yagong: This is in response to your request for a legal position paper, not privileged and releasable to your constituents, on whether an environmental assessment ("EA") is required under HRS Chapter 343 for the proposed gravel road work on Mud Lane, for access by Waimea 660 LLC. This letter expresses the current legal position of the County administration and is not intended to be relied upon as legal advice by any other persons or entities, who should consult their own legal counsel. I. SUMMARY OF POSITION Based on the information available, the County administration's position is that this road work would be within a recognized old government right-of-way, which was historically used as a vehicular road, but has been in disuse. The proposed work would be clearing and restoring a secondary gravel road surface within the public right-of-way, possibly with some pullouts and realignment, but no more than 12 feet wide. Such work may be considered as within categorical exemptions from EA requirements, approved by the State Environmental Council. II. DISCUSSION A. Background Facts The subject project is an approximately 0.5 mile portion of Mud Lane just above the old sugar lands. Waimea 660 LLC ("Waimea 660") bought property from the County and obtained approval to subdivide. One condition of subdivision is to grade and gravel surface the project area for access. The project area is within an old government right-of-way as laid out through the Waikoekoe Lots subdivision, TMK plat (3) 4-7-07. The area has in the past been used as a jeep Hawaii County is an Equal Opportunity Provider and Employer Honorable Dominic Yagong February 12, 2008 Page 2 road between Kukuihaele and Waimea. Archaeological reports indicate that there are segments of a road paved with stones, about 4 meters (13 feet)wide within the project area, probably built in the early 1900s. This road has been a"road in limbo,"but now the County acknowledges jurisdiction over this road right-of-way. The State of Hawaii Department of Land and Natural Resources, State Historic Preservation Division ("SHPD")has reviewed an archaeological inventory survey of the project area. In a letter dated December 10, 2007, to Paul Cleghorn, SHPD noted that"the site has been recorded and the present survey and its associated excavations have served to collect and document information about the appearance and construction of the road bed. . . . We concur that no further archaeological work is necessary within the project corridor." The Mud Lane right-of-way is 50 feet wide. The current plan is to remove trees as necessary and create about 2,180 linear feet of a 12-foot wide gravel road without shoulders and swales. The road would also include 4 pullouts, about every 500 feet, exact locations to be determined so as to minimize removal of trees. A 6-foot wide meandering pedestrian trail, again placed for minimal impact on trees, is also possible. B. HRS Chapter 343 Environmental Assessment Triggers and Exemptions HRS Chapter 343 governs environmental impact statements. This law requires that before certain types of actions (or"triggers") are done, there must be an environmental assessment ("EA"), a"written evaluation to determine whether the action may have a significant impact"on the environment, as well as effects on economic/social welfare and cultural practices of the community and state. If the action may have a significant impact, then an environmental impact statement ("EIS") must be prepared which discloses the foregoing effects, as well as effects of economic activities arising from the proposed action, measures proposed to minimize adverse effects, and alternatives to the action and their environmental effects. HRS Section 343-2. EIS's are "informational documents"but do not in themselves prevent projects. Generally, an EA is required for actions that"propose the use of state or county lands . . ." HRS Section 343-5. In the absence of an exemption, use of county lands, such as a road right-of- way, would trigger the EA requirement. However, the law does not require an EA for every conceivable use of county lands. HRS Section 343-6(a)(7) authorizes the Environmental Council to adopt rules to "establish procedures whereby specific types of actions,because they will probably have minimal or no significant effects on the environment, are declared exempt from the preparation of an assessment." These exemptions are established via Hawaii Administrative Rules ("HAR") Section 11- 200-8. This rule lists several exempt classes of action, including: (1) Operations, repairs, or maintenance of existing structures, facilities, equipment, or topographical features, involving negligible or no expansion Honorable Dominic Yagong February 12, 2008 Page 3 or change of use beyond that previously existing . . . (2) Replacement or reconstruction of existing structures and facilities where the new structure will be located generally on the same site and will have substantially the same purpose, capacity, density, height and dimensions as the structure replaced; . . .(4) Minor alterations in the conditions of land, water or vegetation; . . . These categories do not apply when"the cumulative impact of planned successive actions in the same place, over time, is significant, or when an action that is normally insignificant in its impact on the environment may be significant in a particularly sensitive environment." HAR 1I- 200-8(b). The rules also allow county agencies to get Environmental Council approval for specific agency exemptions. "Each agency, through time and experience, shall develop its own list of specific types of actions which fall within the exempt classes, as long as these lists are consistent with both the letter and the intent expressed in these exempt classes and chapter 343,HRS. These lists and any amendments to the lists shall be submitted to the council for review and concurrence. The lists shall be reviewed periodically by the council." HAR 11-200-8(d). C. HRS Chapter 343 Exemptions Applicable to Mud Lane In this case, the right-of-way has been in various vehicular and pedestrian use at least since the early 1900s. This is not virgin land, but has hosted jeep roads and stone paving. In recent years the subject area has been in vehicular disuse, and non-native trees and other vegetation have invaded. The proposed project would clear and resurface a 12-foot wide gravel road with 4 turnouts, and possibly a pedestrian path and other landscaping. Under these facts, several Environmental Council approved exemptions from EA requirements may apply. From the"Comprehensive Exemption List for the Department of Public Works County of Hawaii Reviewed and Concurred in by the Environmental Council on June 21, 1995,"the following are found: First, EXEMPTION CLASS 1: Operations, repairs or maintenance of existing structures, facilities, equipment or topographical features, involving negligible or no expansion or change of use beyond that previously existing. 9. Operate, repair and maintain all County owned areas including, but not limited to, parking lots, road rights-of-way, drainageways and easements. This maintenance shall include removal and trimming of all vegetation, as needed, in order to minimize any encroachments or obstructions within the road right-of-way. This project will repair and maintain the road surface within the historically used right- of-way, including removal of vegetation as necessary. Honorable Dominic Yagong February 12, 2008 Page 4 Second, EXEMPTION CLASS 2: Replacement or reconstruction of existing structures and facilities where the new structure will be located generally on the same site and will have substantially the same purpose, capacity, density, height and dimensions as the structure replaced. 1. Replacement or reconstruction of existing . . . paved roads or of existing gravel roads by resurfacing with asphaltic concrete pavement. The completed road will be located within the existing right-of-way and will have substantially the same purpose, capacity and dimensions as the road prior to construction. 2. Modernization of an existing highway for safety purposes by resurfacing, widening less than a single lane width, adding shoulders, adding auxiliary lanes for localized purposes (weaving, climbing, speed changes, etc.) and correcting substandard curves and intersections. This project will replace or reconstruct the gravel roadway, within the existing right-of- way, and will have substantially the same purpose and capacity as the historical jeep or stone paved road use. It should have reduced width(12 feet wide rather than the 13-foot wide stone paved or dirt surface) and may have auxiliary turnouts for safety. Third, EXEMPTION CLASS 4: Minor alteration in the condition of land, water, or vegetation. 2. Maintenance and removal of all vegetation from within the County road rights-of-way that pose a hazard to the health and welfare of the public. This project will maintain and remove some vegetation from the right-of-way, enough to allow safe vehicular and pedestrian traffic. Thus, it appears that the project facially falls within the exemptions stated above, and no EA is required. The recent case of Sierra Club v. Dept. of Transportation, 115 Hawaii 299 (2007) (the "Superferry Case")reminds us that the "secondary effects" of an action must be considered in determining whether an exemption can apply. Exemptions only apply if their primary and secondary effects together will "probably have minimal or no significant impacts" on the environment. In the Superferry Case, the State was faulted for failing to consider the substantial foreseeable new impacts that the Superferry CEO even wrote to the Senate about. Honorable Dominic Yagong February 12, 2008 Page 5 Here,however, the proposed project does no more than restore and resurface a long- established rural secondary public road. It is not, for instance, creating a substantially larger, faster,multilane paved road. As Exemption Class 2, item No. 1 finds, even paving of an existing gravel road is generally approved as an exemption. This project does not even go that far. There are no exotic secondary effects foreseen. Some members of the public have,without official sanction, been using the right-of-way for recreational walking. However, this is not an area dedicated for park or recreational uses. It remains a road right-of-way, which has never been abandoned by the County Council. As such, the County retains the authority to clear the area for road use. Permissive recreational use, without right to continue such use, does not provide standing to sue for an EA. See, Conservation Council of North Carolina v. Constanzo, 505 F.2d 498, 502 (4tI' Cir. 1974). III. CONCLUSION Based on the foregoing,the County administration's position is that the proposed project does not require an EA under HRS Chapter 343, because State Environmental Council approved exemptions apply. Please let us know if there are substantial additional facts that should be taken into account. Thank you. Sincerely, I WO Ivan M. Torigoe Deputy Corporation Counsel IMT:mc sAwork 2008\feb\wrk 08-0245 position Itr to yagong re mud lane IMTmc