HB1408 HD2.DOC

SECTION 1. The legislature finds that while federal, state, and county agencies maintain jurisdiction over, and are responsible for, the repair and maintenance of the majority of highways, streets, and roads throughout Hawaii, there are numerous roads throughout the State that are privately owned, or whose ownership has been called into question. In many cases, these private roads are remnants of a road, or a small portion of a larger public road, with disputed ownership for various reasons. This has resulted in questions regarding who is responsible for the repair and maintenance of these roads, many of which are regularly used for vehicular traffic.

The legislature further finds that since these private roads are not owned by a governmental entity, or their ownership is being disputed, they often do not receive proper repair and maintenance. Although often these roads are used by and are of benefit to the public, the public does not realize that the road is not owned by a governmental agency. This creates difficulties for members of the public and government agencies when individuals report repair or maintenance issues.

The legislature also finds that while counties have policies and procedures to assist owners with the repair and maintenance of private roads, these policies and procedures are only applicable when the county can determine or locate the actual owner of the road. Additionally, the owners of private roads may seek government assistance because they rarely have the expertise, equipment, or ability to coordinate services necessary to address road ownership and maintenance issues.

The purpose of this Act is to provide a means to resolve the situation by requiring the county to accept roads, even if non-conforming, where there has been no act of ownership within the past five years, and by exempting the county from requirements to maintain or improve surrendered roads and from liability for not maintaining or improving them.

SECTION 2. Section 264-1, Hawaii Revised Statutes, is amended to read as follows:

"§264-1 Public highways and trails. (a) All highways, roads, alleys, streets, ways, lanes, bikeways, bridges, and all other real property highway related interests in the State, opened, laid out, subdivided, consolidated, and acquired and built by the government are declared to be public highways. Public highways are of two types:

(1) State highways, which are those lands, interests, or other real property rights, as defined above, having an alignment or possession of a real property highway related interest as established by law, subdivided and acquired in accordance with policies and procedures of the department of transportation, separate and exempt from any county subdivision ordinances, and all those under the jurisdiction of the department of transportation; and

(2) County highways, which are all other public highways.

(b) All trails, and other nonvehicular rights-of-way in the State declared to be public rights-of-ways by the Highways Act of 1892, or opened, laid out, or built by the government or otherwise created or vested as nonvehicular public rights-of-way at any time thereafter, or in the future, are declared to be public trails. A public trail is under the jurisdiction of the state board of land and natural resources unless it was created by or dedicated to a particular county, in which case it shall be under the jurisdiction of that county.

(c) All highways, roads, alleys, streets, ways, lanes, [~~trails,~~] bikeways, [~~and~~] bridges, and trails in the State, opened, laid out, or built by private parties and dedicated or surrendered to the public use, are declared to be public highways or public trails as follows:

(1) Dedication of public highways, roads, alleys, streets, ways, lanes, bikeways, bridges, or trails shall be by deed of conveyance naming the State as grantee in the case of a state highway, road, alley, street, way, lane, bikeway, bridge, or trail and naming the county as grantee in the case of a county highway, road, alley, street, way, lane, bikeway, bridge, or trail. The deed of conveyance shall be delivered to and accepted by the director of transportation in the case of a state highway, road, alley, street, way, lane, bikeway, bridge, or the board of land and natural resources in the case of a state trail. In the case of a county highway, road, alley, street, way, lane, bikeway, bridge, or county trail, the deed shall be delivered to and accepted by the legislative body of a county.

(2) Surrender of public highways, roads, alleys, streets, ways, lanes, bikeways, bridges, or trails shall be deemed to have taken place if no act of ownership by the owner of the highway, road, alley, street, [~~bikeway,~~] way, lane, [~~trail, or~~] bikeway, bridge, or trail has been exercised for five years [~~and when, in the case of a county highway, in addition thereto, the legislative body of the county has, thereafter, by a resolution, adopted the same as a county highway or trail.~~

In every case where the road, alley, street, bikeway, way, lane, trail, bridge, or highway is constructed and completed as required by any ordinance of the county or any rule, regulation, or resolution thereof having the effect of law, the legislative body of the county shall accept the dedication or surrender of the same without exercise of discretion.]; provided that, driving on the private highway, road, alley, street, way, lane, bikeway, bridge, shall not, on its own, constitute an act of ownership. The county shall accept without exercise of discretion all surrendered highways, roads, alleys, streets, ways, lanes, bikeways, bridges, or trails, except where the State has notified the county within thirty days of the surrender that it will accept the surrendered highway, road, alley, street, way, lane, bikeway, bridge, or trail. Any resident or abutting landowner may notify the county of a highway, road, alley, street, way, lane, bikeway, bridge, or trail that the resident or landowner believes qualifies for surrender under this subsection. Upon receipt of such notice, the county shall accept as surrendered the highway, road, alley, street, way, lane, bikeway, bridge, or trail and record its ownership with the state bureau of conveyances, unless the county establishes other proof of ownership by within six months of the notice.

(d) If a privately owned highway, road, alley, street, way, lane, bikeway, bridge, or trail is deemed to have been surrendered to the State or county pursuant to paragraph (c)(2), the State or county shall be exempt from any state laws or rules adopted pursuant thereto that would require the State or county to perform construction, reconstruction, preservation, resurfacing, restoration, or rehabilitation upon it. The State or county shall be immune from liability for personal injury, death, or property damage in any accident arising out of the use of a surrendered highway, road, alley, street, way, lane, bikeway, bridge, or trail until the State or county performs construction, reconstruction, preservation, resurfacing, restoration, or rehabilitation upon it. The State or county also shall be immune from liability caused by negligent or wrongful acts or omissions that occurred prior to the surrender of the highway, road, alley, street, way, lane, bikeway, bridge, or trail.

[~~(d)~~] (e) All county public highways and trails once established shall continue until vacated, closed, abandoned, or discontinued by a resolution of the legislative body of the county wherein the county highway or trail lies. All state trails once established shall continue until lawfully disposed of pursuant to the requirements of chapter 171."

SECTION 3. Statutory material to be repealed is bracketed and stricken. New statutory material is underscored.

SECTION 4. This Act shall take effect upon its approval.

HOUSE OF REPRESENTATIVES	H.B. NO.	1408
TWENTY-EIGHTH LEGISLATURE, 2015		H.D. 2
STATE OF HAWAII