Thursday, January 31, 2008

Proposed House Bill HB 3415 Aims to Provide a Mechanism to Settle State and County Disagreement over who has Jurisdiction over a “Public Highway”

Under the State Highways Act, a pubic highway is either a state public highway or a county public highway. Hawaii courts have determined that if a public highway is on the State Department of Transportation’s list of State highways, it is a state public highway. If not, it’s a county public highway. Despite the clarity of the law, the counties generally rebuff state determinations that a public highway is a county public highway. Some have invented the term “roads in limbo” to describe public highways that counties refuse to recognize as county public highways under the Act. Unfortunately, this jargon has only served to confuse the issue.

Thankfully, it looks like the legislature has taken notice of the issue. HB 3415, will allow any person to file for a contested case hearing to determine jurisdiction over a public road with the department of commerce and consumer affairs. A hearings officer will be appointed and after hearing evidence, he will “decide whether a public road is a public highway, county highway, public trail or nonpublic right-of-way under section 264-1 and shall order any relief that may be appropriate.”

If passed, this bill will save many landowners who are left in the lurch when squabbles over ownership of public roads between the county and state ensue.

Post Script: Many have confused the straight forward application of the State Highways Act by introducing the issue of private roads and tort liability in to the equation. In short, if a road was originally private, it must be formally accepted by either the state or county before it is categorized as a public highway. Regarding tort liability, the question of who shares liability for injuries caused by a road is a question of who controls the road, not necessarily whether the road is public or private. Therefore, even on roads that are private, if the county improved the road, it may be argued that it controlled the road and is therefore liable for injuries sustained thereon.

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