HI Superferry: HRS § 46-17‏, County Councils and Home Rule

From: (PNN) Council can stop Superferry with “political will” and public nuisance law‏
By: Andy Parx
Sent: Fri 11/09/07 2:56 PM

Council can stop Superferry with “political will” and public nuisance law

by Andy Parx

(PNN) -- Lihu`e -- No matter what happens in court regarding the Hawai`i Superferry (HSF), county councils across the state can stop it under a state law that preempts any other according to “1000 Friends” Attorney Daniel Hempey.

HRS § 46-17 says the Kaua`i County Council can pass an ordinance “regulating or prohibiting noise, smoke, dust, vibration, or odors which constitute a public nuisance.”

“The statute says County nuisance law trumps State law if the County law offers greater protection to the public” Hempey said. “Dumping several hundred cars, trucks and busses onto Kauai every day would tend to produce a lot of new noise, dust, smoke, vibration and odor."

According to HSF a maximum of 560 cars will congregate in Nawiliwili, near Lihu`e each day at evening rush hour.

“If that doesn’t constitute a public nuisance, what does” said HSF opponent, Fred Dente "What’s the council waiting for."

In the case of the Kaua`i county council that remains a mystery. After three days all councilmembers have failed to responded to request for comment.

Kaua`i State Senator Gary Hooser, who has fought to prevent the HSF from operating until an “EIS” is done, says, "there’s lots of ways the council could engage the issue if there’s a political will to do so. The public nuisance law is just one of them.”

Hempey agrees saying “This may be an area where new County legislation on the issue could effectively block the Superferry's exemption from environmental law - by limiting the number of registered vehicles transported to Kauai on any given day.”

HRS § 46-17 “Regulation of certain public nuisances” says "(n)o such ordinance shall be held invalid on the ground that it covers any subject or matter embraced within any statute or rule of the State; provided that in any case of conflict between a statute or rule and an ordinance, the law affording the most protection to the public shall apply."

Whether the council has a member with the political will to establish home rule remains to be seen. Many see the pressure being on Councilperson and former mayor JoAnn Yukimura who has testified numerous time against the HSF running without an EIS, even traveling to Honolulu to personally testify at the recent Act 2 hearings.

The other possibility may be rookie Councilperson Tim Bynum who has been somewhat outspoken on the issue and is thought by many political insiders to have his eye on the Mayor’s office in three years.

Hempey indicated that it may not be that hard to find at least four if not seven votes.

“This type of ordinance would be consistent with the prior vote of the Council, that asked for an EA before the Superferry operates. It would also send a message to those on Oahu who simply ignored the Kauai Council's earlier unanimous vote” in a 2005 Resolution supporting an EIS before the HSF pulls into the port of Kauai.

The council’s next full meeting isn’t scheduled until Nov 21 and it normally takes about a month minimum to pass an ordinance. But the council does have emergency powers that provide for a much shorter term- a matter of days- to pass an ordinance making it effective while the bill goes through it’s normal process.

In a separate case from the injunction forbidding HSF operations currently before Maui Judge Joseph Cardoza and the precipitating Supreme Court ruling, another Maui Circuit Judge, Joel August, ruled on Aug. 23 that the HSF must move cars out at a rate of only two per minute at Kahului Harbor and put in place many other site specific traffic restrictions that remain in place today. Although Act 2 requires a traffic study for Nawiliwili, that will not be required to be completed or even initiated any time soon .

How an increase in the time cars sit idling awaiting egress might increase any nuisance is another issue the county councils may consider.

The Kaua`i County Council can be reached by emailing them at cokcouncil@kauai.gov, or calling 241-6371


On the Web:

HRS § 46-17:
http://www.capitol.hawaii.gov/hrscurrent/Vol02_Ch0046-0115/HRS0046/HRS_0046-0017.htm

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c 2007 Parx News Net (PNN), Andy Parx.


HRS § 46-17‏
From: Andy Parx
Sent: Tue 11/06/07 8:09 PM
To: Kaua`i County Council (cokcouncil@kauai.gov)
Cc: County Clerk (pnakamura@kauai.gov)

Dear Council members,

I am working on an article for release tomorrow night on the applicability of the below cited HRS provision as regards the Superferry and the potential for discharge and receipt of 560 cars all at once in Nawiliwili causing noise, smoke, dust, vibration, or odors which constitute a public nuisance.

I am requesting comment regarding your intent as regards this law. I would like to know whether you are considering putting such an ordinance on the agenda this Thursday for the Nov 14 Council Meeting or at a near future date.

You can email me at this address or call me at [...].

Thank you,

Andy Parx, PNN News

HRS § 46-17

HAWAII REVISED STATUTES ANNOTATED
DIVISION 1. GOVERNMENT.
TITLE 6. COUNTY ORGANIZATION AND ADMINISTRATION.
SUBTITLE 1. PROVISIONS COMMON TO ALL COUNTIES.
CHAPTER 46. GENERAL PROVISIONS.
PART I. GENERAL JURISDICTION AND POWERS.
§ 46-17 Regulation of certain public nuisances.

Any provision of law to the contrary notwithstanding, the council of any county may adopt and provide for the enforcement of ordinances regulating or prohibiting noise, smoke, dust, vibration, or odors which constitute a public nuisance. No such ordinance shall be held invalid on the ground that it covers any subject or matter embraced within any statute or rule of the State; provided that in any case of conflict between a statute or rule and an ordinance, the law affording the most protection to the public shall apply, with the exception that:

(1) An ordinance shall not be effective to the extent that it is inconsistent with any permit for agricultural burning granted by the department of health under authority of chapter 342B, or to the extent that it prohibits, subjects to fine or injunction, or declares to be a public nuisance any agricultural burning conducted in accordance with such a permit; and

(2) An ordinance shall not be effective to the extent that it is inconsistent with any noise rule adopted by the department of health under authority of chapter 342F.


Aloha, Brad