Report Title:

Hazard Mitigation; Private Property

 

Description:

Allows Civil Defense, when no emergency exists, to enter on private property to mitigate hazardous situations after giving the landowner notice.  May seek recovery and reimbursement of costs and expenses.  (HB1713 HD2)

 


HOUSE OF REPRESENTATIVES

H.B. NO.

1713

TWENTY-FIFTH LEGISLATURE, 2009

H.D. 2

STATE OF HAWAII

 

 

 

 

 

 

A BILL FOR AN ACT


 

 

RELATING TO HAZARDS.

 

 

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

 


     SECTION 1.  The legislature finds that conditions exist on public and private property that pose a significant risk of harm to the public.  In the case of private property, a dangerous condition may exist that poses a significant risk of harm to an adjoining landowner.  While the affected landowners may have rights to personally address some conditions, there are situations in which doing so may place the affected landowner in a position of financial hardship or at risk of personal harm.  Where a dangerous condition exists and injury is caused as a result, private property owners may seek remedies by way of civil actions.  However, the courts are not readily accessible to all persons, especially those who do not have the economic means to hire legal counsel.

     The purpose of this Act is to allow civil defense personnel, at the discretion of the governor, to enter on private property, after giving the landowner notice, to mitigate hazardous situations such as dangerous trees that pose a falling hazard, unstable rock and soil conditions, or clogged streams.

     SECTION 2.  Chapter 128, Hawaii Revised Statutes, is amended by adding a new section to be appropriately designated and to read as follows:

     "§128-     Civil defense powers; mitigation of hazardous situations.  (a)  Even in the absence of a civil defense activity or other emergency, the governor may enter onto private property at reasonable times to mitigate situations deemed by the governor to be hazardous to the health and safety of the public, including:

(1)  Stabilizing or removing unstable rock and soil hazards; or

(2)  Cleaning streams and waterways to mitigate or prevent flooding or other disasters;

provided that at least five days notice is provided to the landowner and the occupier of the private property of the governor's intention to enter the property to mitigate the hazardous condition.

     (b)  Written notice sent to the landowner's last known address by certified mail, postage prepaid, return receipt requested, shall be deemed sufficient notice.  In the event that land ownership cannot be determined, notice shall be given once in a daily or weekly publication of general circulation in the county where any action or proposed action will be taken.

    (c)  If entry is refused, the governor may apply to the district court in the circuit in which the property is located for a warrant to enter the premises.  The district court may issue a warrant directing the chief of the appropriate county police to assist the governor in gaining entry onto the premises during regular working hours or at other reasonable times.

     (d)  The governor may seek recovery and reimbursement, by appropriate proceedings, of all costs and expenses incurred in the mitigation of a hazardous situation under this section, and any costs and expenses imposed against any landowner shall be a lien upon the landowner's property."

     SECTION 3.  Section 127-10, Hawaii Revised Statutes, is amended to read as follows:

     "§127-10  Disaster relief during suspension of preceding sections.  During any period in which sections 127-1 to 127-9 are not in effect, the governor and political subdivisions may exercise any and all of their powers under chapter 128 or that relate to disasters resulting from enemy attacks, [in order] to provide other disaster relief.  All provisions of law that relate to disasters resulting from enemy attacks during [such] the period and all provisions of chapter 128 are made applicable to other disaster relief, including without limitation, provisions making or authorizing appropriations or expenditures.

     As used in this section, "other disaster relief" means the preparation for and the carrying out of all functions, other than functions for which military forces are primarily responsible, to minimize and repair injury and damage resulting from disasters caused by fire, flood, tidal wave, volcanic eruption, earthquake, or other natural causes and major disasters caused by acts of man[,] including [but not limited to,] massive oil spills, nuclear accidents, airplane crashes, and civil disturbances."

     SECTION 4.  Statutory material to be repealed is bracketed and stricken.  New statutory material is underscored.

     SECTION 5.  This Act shall take effect on January 1, 2046.