HomeMy WebLinkAbout2007-07-26_County_ownership_of_Homestead_Road_North_Kona Haff9 Kim Lincoln S.T.Ashida
Mayor y Corporation Counsel
Gerald Takase
COUNTY OF HAWA Assistant Cmporadon Courud
II
OFFICE OF THE CORPORATION COUNSEL
101 Aupuni Street Suite 325 - Hilo,Hawail 96720-4262 -(808)961-6251 - Fax(808)961.8622
July 26,2007
Naomi U. Kuwaye, Esq.
Jesse K. Souki, Esq.
Imanaka Kudo&Fujimoto
TOPA Financial Center
745 Fort Street, 17" Floor
Honolulu, HI 96813
Re: County Ownership of Homestead Road,North Kona,Hawai`i
TMK Nos- (3) 7-3-007.038, 039 and(3) 7-3-009.007
Dear Ms. Kuwaye and Mr. Souki:
This is in response to your letter dated May 10,2007 to Corporation Counsel Lincoln
S.T.Ashida. In that letter,you asked, on behalf of your client The Shopoff Group,L.P.,
(hereinafter, "Shopoff'),for confirmation of County ownership of a"homestead road"which is
represented on homestead maps of the subject property owned by Shopoff. We understand you
are seeking this information as requested by the State of Hawaii Land Use Commission
(hereinafter,"LUC"), in context of a petition before the LUC to redistrict 127.94 acres of land
from the State Land Use Agricultural district to the Urban district,for a residential development.
We also understand that your client may in the future seek rights to use the homestead road area
in conjunction with the proposed development.
Your letter posits a belief that the County is the fee owner of the homestead road. This is
based upon the evidence in early maps and land grants that the homestead road was"laid out"on
paper by the Hawaiian"government"(not the County) in creating the homestead subdivision.
Our County surveyors generally agree with this historical background.
However,we understand that there is no actual homestead road constructed, but only a
rough trail that traverses the general area. Hence,we must regard this not as an actual road for
highway use, but no more than a"paper"road,not in actual existence.
We understand the legal analysis explained in your letter, by which you suggest that this
paper road might be opined to be County property. However, Hawaii Revised Statutes
(hereinafter, "HRS"), § 264-1 states that"All roads"(not"proposed"roads or road reserves) laid
out by the government are public highways.
None of the cases cited governs here,where there is no actual useable highway in
existence, only a"paper"road. Neither does the cited attorney general's opinion deal with this
scenario. The cited cases deal with private roads which are sometimes held impliedly dedicated
to public use via platting and lot sales. Even in those cases, the dedication is not held to be a fee,
Hawaii County is an Equal Opportunity Provider and Employer
Naomi U. Kuwaye, Esq.
Jesse K. Souki, Esq.
July 26, 2007
Page 2 of 2
but an easement,subject to the County's judgment as to when it will be opened as a public road.
See, Territory of Hawaii v.Ala Moana Gardens, 39 Haw. 514(1952). There, the Court held that
recording of maps showing streets, and sale of lots,"constitute a dedication"of a road easement
for public use,"nor need the streets dedicated by such plat for sale be opened immediately but
may be opened by the proper local authorities at such time as the public interest may require,and
of this the local authorities are the judges." On rehearing,the court clarified: "The holding is not
that there was a statutory dedication and acceptance. . . so as to give title to the Territory and
obligation by the supervisors to maintain a public street"but that"maps and plans duly recorded
and the sale of lots by the former owners based upon these plans constitute a dedication."
39 Haw.at 655.
The Hawaii Appellate Courts thus exercise restraint in declaring that impliedly dedicated
roads transfer the fee to the County. The judiciary seems to respect the County executive and
legislative authorities' discretion in accepting and opening County roads,even when they are
actually in existence and in use as highways.
Here, it seems fair to say that the Hawaiian government's actions in laying out these
homestead roads on paper at least created a reservation of a road right-of-way for a public
highway, in the nature of an easement. It remains unclear whether the County or the State owns
the rights to such a right-of-way in an inchoate road. It may be that both the State,as the creator
of the subdivision on what would now be state land,and the County,as the entity responsible for
county roads, may have a concurrent interest. It is impossible to predict whether the State might
have an interest in taking control of a given road,once built. Due diligence would probably
dictate that whoever wishes to make use of the road area obtain entitlements or releases from both
the State and the County.
Please contact the undersigned should you have further questions. Thank you.
Very truly yours,
IVAN M. TORT OE
Deputy Corporation Counsel
IMT:stw
cc: Lincoln S.T. Ashida, Esq.,Corporation Counsel
Gerald Takase, Esq.,Assistant Corporation Counsel
Bruce McClure, Director of Department of Public Works
Norman Hayashi, Hawaii County Planning Department
S:dept\DPW\Roads in Limbo\Ltr to kuwaye&souki re ShopoffGroup\7-26-07\IMTstw