Report Title:

Land Failure; Liability; Private Property Mitigation

 

Description:

Requires precautionary actions imposed by the counties for development in potentially hazardous areas; removes the liability of landowners regarding natural conditions on their land that cause damage outside the land; and gives government agencies the authority to mitigate or require mitigation of land failure hazards on private property.

 


HOUSE OF REPRESENTATIVES

H.B. NO.

1140

TWENTY-FIFTH LEGISLATURE, 2009

 

STATE OF HAWAII

 

 

 

 

 

A BILL FOR AN ACT

 

 

relating to LAND FAILURE.

 

 

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF HAWAII:

 


     SECTION 1.  The State's natural beauty is preserved for future generations by efforts to protect and preserve state lands in its original condition, and also in significant part, by the cooperation of private landowners who own and maintain large tracks of pristine lands in its natural state.  For private landowners, many of these lands are conservation lands and not appropriate for development.  Continued exposure to lawsuit or requests to mitigate or compensate for harm or injury caused on unimproved lands may force many landowners to sell or develop these lands to cover liabilities, or sell or turn over lands to the State or other government entities to avoid and shift liability to the general public.

     Due to the vast amount of unimproved lands, and the state policies to maintain these lands in their natural state, dangerous natural conditions occur throughout the State that could expose landowners to liability.  Resources to conduct a thorough assessment of the risk on all lands are not available. Additionally, expansion of urban sprawl and zoning approvals by county agencies have allowed urban and residential development to expand into and adjacent to many areas susceptible to land failure or rockfall hazards.  Many of the valley walls adjacent to established and proposed subdivisions in the State are extremely steep and susceptible to land failure.  As the State's population grows and the pressure for development increases, the lack of open areas will force development into areas with natural hazards that threaten the safety of future homeowners and the general public.

     Unbudgeted expenditures to mitigate these types of hazards can eventually cripple the State's operational budget by diverting critical funds, needed to sustain its core functions, to costly emergency mitigation projects.  This fact is exacerbated by the difficult downturn in the state and national economy that threatens essential services and jobs.  The typical cost for rockfall mitigation projects usually runs in the millions.  By example, the current estimated costs for Komo Mai hillside and the Old Puunui Quarry projects are $2,100,000 and $1,760,000, respectively.  If either case had involved an incident resulting in injury or death, the litigation and judgment costs alone would have far exceeded the mitigation costs and seriously impacted the State's fiscal health.

     Land failure hazards on private lands pose a unique public safety issue for down slope landowners and the general public. An owner of private property that is found to contain a land failure hazard is likely to take no action in hopes that nothing will happen during the owner's tenure of ownership.  It is unclear whether and how such owner can be compelled to address the hazard and ensure the safety of the threatened nearby property owners and the general public under existing laws.  Clarifying the authority of government agencies to intervene in such situations and require action by the owner of the property with the land failure hazard, or both, and providing for sharing of the costs among affected property owners, establishes a reasonable solution that will not bankrupt the State while promoting public safety.

     The legislature believes a more comprehensive and proactive approach to managing risk of harm to the public from land failure hazards is needed to address those concerns.  The legislature finds that those threats to public safety can and should be controlled at the time of development or new construction.  The legislature also finds that it is in the public's interest to promote the retention and preservation of unimproved lands that enhance the natural beauty of the State by limiting liability for harm from land failure hazards that occur on unimproved lands.  The legislature further finds that it is also in the public's interest to allow government agencies to mitigate or require the mitigation of land failure hazards on private lands that are at risk of causing imminent harm or damage to nearby properties or the general public, and to assess the costs for such mitigation to those property owners benefiting directly from such action on a pro rata basis.

     The purposes of this Act are to:

     (1)  Provide a reasonable and affordable means to ensure that future urban expansion and new construction will not add to the ongoing problem of rockfall and landslide hazards in populated areas;

     (2)  Alleviate the need for the landowners, and the department of land and natural resources in particular, to exhaust their funds and resources on the task of mitigating risks associated with naturally occurring hazardous conditions, and to allow the department of land and natural resources to focus them on its primary mission of managing state parks, forests, and public lands effectively; and

     (3)  Provide government agencies the authority to mitigate or remediate, or both, or require mitigation or remediation, or both, of land failure hazards on private property, and establish a procedure for assessing the mitigation or remediation costs on the property owners benefiting form such action, on a pro rata basis.

     SECTION 2.  Chapter 46, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

     "§46-    Development in hazardous areas.  (a) Notwithstanding any law to the contrary, it shall be a condition precedent to approval of any county subdivision, development plan, or building permit, to require a subdivider, developer, or builder of a new residential, commercial, or industrial structure, to:

     (1)  Perform a study to determine the risks of rockfalls or landslides if any portion of the subdivision or development project includes hillsides or cliffs with a slope grade of twenty per cent or greater that poses or may pose a hazard to any to any person or structure on or adjacent to the subdivision or development project site;

     (2)  To perform a risk assessment to determine whether and to what extent conditions on an adjacent property pose a risk of harm to the proposed subdivision, development, future homeowners, or persons in the vicinity thereof, if the adjacent property includes hillsides or cliffs with a slope grade of twenty per cent or greater immediately upslope from the subdivision or development project site;

     (3)  Create hazard buffer zones or implement other appropriate mitigation measures in areas of the subdivision or development site where a rockfall or landslide hazard is determined or is suspected to exist, that are sufficient to protect the health and safety of future homeowners and persons in the vicinity of the property, and provide a written disclosure of those risks to all potential homeowners that will run with the land; and

     (4)  For purposes of this section, any determination of the existence of a hazard or risk of harm from hillsides or cliffs with a slope grade of twenty per cent or greater shall be performed by a licensed geotechnical professional.

     (b)  For the purposes of this section, "subdivision" means any land that is divided or is proposed to be divided for the purpose of disposition into two or more lots, parcels, units, or interests and also includes any land whether contiguous or not, if two or more lots are offered as part of a common promotional plan of advertising and sale.

     (c)  This section shall apply to the plan of any subdivision or development that has not been approved by the respective counties prior to July 1, 2009."

     SECTION 3.  The Hawaii Revised Statutes is amended by adding to title 10 a chapter to be appropriately designated and to read as follows:

"CHAPTER

LAND FAILURE HAZARDS MITIGATION; PRIVATE PROPERTY

     §   -1  Definitions.  For purposes of this chapter:

     "Government entities" means the State and the several counties;

     "Land failure" means any movement of land, including a landslide, debris flow, mudslide, creep, subsidence, rock fall, and any other gradual or rapid movement of land;

     "Owner" or "landowner" means any private entity or person who has any right, title, or interest in or to property;

     "Private property" means real property owned by persons or entities other than the State, the several counties, or the federal government.

     §   -2  Mitigation or remediation action.  Government entities are authorized to undertake action to reduce the potential for land failure from private property that imminently threaten life or property or that otherwise is a public nuisance by providing for the inspection and maintenance of hillsides that present land failure hazards; by requiring private landowners who are not subject to section 663-B to mitigate or remediate land failure hazards on their property; and by mitigating or remediating land failure hazards on private property that constitute an imminent threat to life or that may cause major economic loss or environmental damage; provided that, to the extent any of the foregoing work is a private responsibility, the responsibility may be enforced by the government entity in lieu of the work being done at government expense, and any private entity or person refusing to comply with any order issued by the government entity shall be in violation of this chapter and be liable for a civil penalty not to exceed $     for each day the violation continues.

     §   -3  Cost.  The cost of land failure hazard remediation or mitigation on private property may also be financed by the government entities by the following means:

     (1)  The State through the levying of special assessments against owners of real property affected or potentially affected by the land failure hazard.  Real property is affected or potentially affected where the land failure hazard threatens injury to persons, personal property, homes, or other structures that may be located on that real property or threatens to cause major economic loss or environmental damage to that real property.  The total amount of the special assessments shall be limited to an amount reasonably anticipated for the remediation or mitigation of the land failure hazard.  The owners of each affected or potentially affected real property shall be assessed a pro rata share of the total amount, which pro rata share shall be based on the relative assessed value of each affected or potentially affected real property.

     (2)  The counties through the levying of special taxes pursuant to section 46-80.1.

     §   -4  Entry on private property.  In order to carry out the provisions of this chapter, government officials are authorized to enter upon private property as may be necessary in making, at the owner's expense, any investigation, inspection, maintenance, mitigation, or remediation authorized by this chapter.  Such entry shall not constitute a cause of action in favor of the owner of the land.

     §   -5  No duty to act.  The government entities have no duty to mitigate land failure hazards existing on private property or to act under this chapter.  No action or failure to act under this chapter shall be construed to create any liability in the government entities, or their respective agencies, officers or employees, for the recovery of damages or for any other relief.  The State reserves sovereign immunity for any action or failure to act under this chapter and nothing in this chapter shall be construed to constitute a waiver of any immunity of the State.

     §   -6  Property owner's continuing obligations.  Nothing in this chapter and no order, action, or advice of the government entities or their respective agencies or any representative thereof shall be construed to relieve an owner of property with a land failure hazard of the legal duties, obligations, or liabilities incident to the ownership of the property.  The government entities shall have no ownership obligations, responsibilities, or liability for any action taken by said government entities under this chapter.

     §   -7  Rules.  The department of land and natural resources may adopt rules pursuant to chapter 91 for purposes of implementing this chapter."

     SECTION 4.  Chapter 663, Hawaii Revised Statutes, is amended by adding a new part to be appropriately designated and

to read as follows:

"PART  .  UNIMPROVED LAND LIABILITY

     §663-A  Definitions.  As used in this part:

     "Naturally occurring land failure" means any movement of land, including a landslide, debris flow, mudslide, creep, subsidence, rock fall, and any other gradual or rapid movement of land, that is not caused by alterations to, or improvements constructed upon, the land.

     "Unimproved land" means any land upon which there is no improvement, construction of any structure, building, facility, or alteration of the land by grading, dredging, or mining that would cause a permanent change in the land area on which it occurs and that would change the basic natural condition that exists on the land.

     §663-B  Land failure on unimproved land caused by natural condition; liability.  A landowner shall not be liable for any damage, injury, or harm to persons or property outside the boundaries of the landowner's land caused by any naturally occurring land failure originating on unimproved land.

     §663-C  Natural condition.  For purposes of this part, the natural condition of land exists notwithstanding minor improvements, such as the installation or maintenance of utility poles, fences, and signage; or minor alterations undertaken for the preservation or prudent management of the unimproved land, such as the installation or maintenance of trails or pathways or maintenance activities, such as forest plantings and weed, brush, rock, boulder, or tree removal."

     SECTION 5.  This Act does not affect rights and duties that matured, penalties that were incurred, and proceedings that were begun, before its effective date.

     SECTION 6.  In codifying the new sections added by section 4 of this Act, the revisor of statutes shall substitute appropriate section numbers for the letters used in designating the new sections in this Act.

     SECTION 7.  New statutory material is underscored.

     SECTION 8.  This Act shall take effect on July 1, 2009.

 

INTRODUCED BY:

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By Request