Report Title:

Dept. of Transportation; Highway Design; Alternative Standards

 

Description:

Requires the department of transportation to use federal alternative standards that take into account environmental, scenic, aesthetic, historic, and other impacts when repairing or reconstructing a scenic highway in the state highway system. Limits state liability in any accidents on scenic highways.

 

HOUSE OF REPRESENTATIVES

H.B. NO.

202

TWENTY-SECOND LEGISLATURE, 2003

 

STATE OF HAWAII

 


 

A BILL FOR AN ACT

 

relating to highways.

 

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

SECTION 1. The legislature finds that there is a need to allow for the repair and reconstruction of state highways while taking into account such factors as the constructed and natural environment of the area; scenic, aesthetic, historic, cultural, and other impacts of the activity; and access for other modes of transportation, in addition to safety, durability, and economy of maintenance.

On May 2, 2000, the legislature passed a bill that accomplished this purpose, namely, S.B. No. 3201, S.D. 1, H.D. 2 (2000), relating to a scenic highways system. In particular, that bill would have required the director of transportation to establish new design guidelines by June 30, 2003, to govern new construction, reconstruction, resurfacing, restoration, or rehabilitation of bridges, principal and minor arterial roads, collector and local roads, and streets, taking into account environmental, scenic, aesthetic, historic, community, and other impacts of the activity.

However, the governor vetoed this measure on June 19, 2000, finding that although these design guidelines were desirable, "the Director of Transportation already has the statutory authority to develop such design guidelines and does not need the enactment of this bill to establish the guidelines. Consequently, the subject matter could have been addressed in a more expeditious and less costly manner, such as by a concurrent resolution of the Legislature, and enactment of this bill is unnecessary."

The purpose of this Act is to address the governor's concerns by providing for the designation of those highways that are to be deemed "scenic", requiring the department of transportation to use alternative federal guidelines in the repair and reconstruction of scenic highways, and limiting the State's liability in cases involving those highways.

The legislature reiterates the findings it made in S.B. No. 3201, that Hawaii's rural communities are the heart and soul of the islands, where the Aloha Spirit and natural resources are truly the essence of our State. As urbanization spreads throughout Hawaii, these communities are at risk of losing their unique identities, especially when planning for roadway construction that must meet certain highway standards.

The standards that most highway designers reference are based on "A Policy on the Geometric Designs of Highways and Streets" (commonly called the "Green Book") published by the American Association of State Highway and Transportation Officials. These standards are not inflexible. As a companion to the Green Book, the Federal Highway Administration has published "Flexibility in Highway Design," which encourages highway designers to expand their consideration in applying the Green Book criteria. It further states, "This guide should be viewed as a useful tool to help highway designers, environmentalists, and the public move further along the path to sensitively designed highways and streets by identifying some possible approaches that fully consider aesthetic, historic, and scenic values, along with safety and mobility."

When Congress passed the Intermodal Surface Transportation Efficiency Act in 1991, it recognized the importance of good design that is sensitive to its surrounding environment, especially in historic and scenic areas. Aesthetic, scenic, historic, cultural, and natural resources of an area are important factors that create a sense of place and provide communities with an identity. Section 1016(a) of that Act states: "If a proposed project involves a historic facility or is located in an area of historic or scenic value, the Secretary may approve the project if the project is designed to allow for the preservation of such historic or scenic value and such project is designed with mitigation measures to allow preservation of such value and ensure safe use of the facility."

In 1995, Congress strengthened this position in the National Highway System Act in section 304 that states: "A design for new construction, reconstruction, resurfacing (except for maintenance surfacing), restoration, or rehabilitation of a highway on the National Highway System (other than a highway also on the interstate system) may take into account, in addition to safety, durability, and economy of maintenance:

(1) The constructed and natural environment of the area;

(2) The environmental, scenic, aesthetic, historic, community, and preservation impacts of the activity; and

(3) Access for the other modes of transportation."

By passage of the federal act, Congress gave the states the flexibility to develop and apply criteria they deem appropriate for federal-aid projects not on the national highway system. The legislature finds that there is a federal policy framework that encourages creativity and sensitivity, while achieving safety and efficiency. This policy framework recommends early identification of critical project issues and encourages thorough consideration of community concerns and input prior to major decisions that can severely limit all other options.

The legislature finds that organizations such as the Alliance for the Heritage of East Maui, the Hanalei Road Committee on Kauai, and the Hamakua-Honokaa Heritage Corridor on the Big Island, are exploring and supporting concepts such as scenic byway or heritage corridor programs. Work is also in progress to recognize the upper Kona road on the Big Island and Ka Iwi coastal highway stretch on Oahu as important scenic and historic corridors. These organizations, which represent their communities' desires, need alternative design guidelines to be adopted by the department of transportation to provide and meet community concerns with regard to natural, cultural, historic, and scenic resources.

It is the intent of the legislature to encourage the highest quality design to ensure that road and bridge projects adequately meet the State's transportation needs, exist in harmony with their surroundings, and add value to the communities they serve.

The legislature further finds, however, that the state department of transportation may be reluctant to use alternative standards in the repair or reconstruction of scenic highways because of the potential risk of liability. In particular, the case of Taylor-Rice v. State, 91 Haw. 60 (1999), has heightened concerns that failure to correct a known defect in highway construction using only contemporary engineering standards may increase the State's liability.

In that case, a car that was driven by an intoxicated motorist and exceeding the speed limit vaulted over a guardrail, the end of which was buried in the ground in what is known as a "ramped terminal" or "buried end treatment", and struck a utility pole, killing two passengers and seriously injuring a third. The court found that the state had a duty to design, construct, and maintain its highways in a reasonably safe manner, even though the driver was speeding and intoxicated. The court found that the State had breached its duty to correct the defective design of the guardrail, that the State had reasonable prior notice from a previous accident under similar circumstances, and that the State's failure to upgrade the guardrail was a substantial factor in causing the accident.

Finally, the court in Taylor-Rice v. State found that the State's breach was the legal cause of the injuries, and that the State was twenty per cent at fault. The Hawaii supreme court upheld the trial court's finding of fault, and that the State was properly held jointly and severally liable, based on its prior notice of the danger.

To reduce the department of transportation's concerns about increased potential liability, this Act limits the State's liability in these types of cases involving accidents on scenic highways, which have been repaired using alternative federal standards, unless the injury resulted from gross negligence or wilful misconduct on the part of the State, or a court has found the State to have been more than twenty-five per cent at fault in that accident.

SECTION 2. Chapter 264, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

"§264- Scenic highways; use of alternative federal standards; liability of State. (a) As used in this section, "scenic highway" means a highway in the state highway system that has been formally identified and designated as such by the legislature through the adoption of a concurrent resolution, and includes a highway that may have scenic, aesthetic, historic, cultural, or related impacts of a state highway.

(b) Whenever a scenic highway in the state highway system, including any bridge, principal and minor arterial road, collector and local road, or street, requires new construction, reconstruction, resurfacing (except for maintenance surfacing), restoration, or rehabilitation, the department of transportation shall use federal alternative standards whenever feasible that take into account:

(1) Safety, durability, and economy of maintenance;

(2) The constructed and natural environment of the area;

(3) The potential effects on the local and state economies;

(4) The community development plans as reflected in relevant county ordinances;

(5) The environmental, scenic, aesthetic, historic, community, and preservation impacts of the activity;

(6) Access for other modes of transportation; and

(7) Access to and integration of sites deemed culturally and historically significant to the communities affected.

(c) The State shall not be liable for the injury or death of any person, or damage to any property, in any accident arising out of the operation, maintenance, use, loading, or unloading of any motor vehicle, motorcycle, or motor scooter on any scenic highway that has been constructed, reconstructed, resurfaced (except for maintenance surfacing), restored, or rehabilitated using alternative federal standards, unless:

(1) The injury results from gross negligence or wilful misconduct on the part of the State; or

(2) A court of competent jurisdiction finds the State to have been more than twenty-five per cent at fault in that accident."

SECTION 3. Scenic highways advisory commission; established; membership; report; acceptance by legislature. (a) There is established within the office of the governor for administrative purposes a scenic highways advisory commission, which shall have the following duties:

(1) Determine which highways in the State shall receive a "scenic" designation, which shall include not only scenic impacts, but aesthetic, historic, cultural, and other appropriate impacts as well;

(2) Hold public hearings and solicit input from:

(A) Persons with expertise in environmental protection, historic preservation, scenic conservation, bicycle and pedestrian transportation, and regional councils of government;

(B) Rural development councils;

(C) The state foundation on culture and the arts;

(D) The Federal Highway Administration; and

(E) Other individuals and groups in affected communities around the State that are interested in assisting the advisory commission in its functions, including such groups as the Alliance for the Heritage of East Maui, the Hanalei Road Committee on Kauai, the Hamakua-Honokaa Heritage Corridor on the Big Island, and others who are exploring and supporting concepts such as scenic byway or heritage corridor programs; and

(3) Report its findings and recommendations to the legislature no later than twenty days before the convening of the regular session of 2004.

(c) The advisory commission shall be appointed by the governor and shall consist of representatives of state and local government and the private sector having expertise in such areas as highway design and construction, environmental protection, historic preservation, scenic conservation, bicycle and pedestrian transportation, and related areas.

(d) In carrying out its duties under this section, the advisory commission may request staff assistance from the department of transportation and other appropriate state agencies.

(e) The members of the advisory commission shall serve without compensation, but shall be reimbursed for expenses, including travel expenses, necessary for the performance of their duties.

(f) Upon receiving the report of the scenic highways advisory commission, if the legislature chooses to formally accept the recommendations of the advisory commission, it shall adopt a concurrent resolution stating its acceptance and identifying those highways in the state highway system that shall be referred to as "scenic highways".

(g) The advisory commission shall cease to exist upon the adjournment sine die of the legislature at its 2004 regular session.

SECTION 4. New statutory material is underscored.

SECTION 5. This Act shall take effect upon its approval.

INTRODUCED BY:

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