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Preventing danger


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POSTED: Saturday, November 07, 2009

QUESTION: I recently read about the topping off of ironwood trees in Waikiki, and it got me wondering about potential liability from falling trees. I recall the unfortunate incident where a tree fell on a child in Manoa, and the city was found to own the tree. I wonder about the condition of another large tree in Manoa, probably one of the largest in Manoa, and worry about it crashing down on a nearby house someday. The owners won't do anything about it. Can the city send someone to check before a disaster happens?

ANSWER: In a major, little-publicized move, the state Legislature passed a bill this year authorizing the state — not the city — to go on private property, in nonemergencies, and take action on dangerous trees, rocks and flood-prone streams.

But implementing the new law, especially as it deals with trees, is “;a work in progress,”; said Edward Texeira, vice director of Hawaii Civil Defense.

At this point, state officials are looking at going back to the Legislature next year, with proposals to define the procedures and protocols for state employees to implement the new authority and responsibility.

“;The law has merit, no doubt about it,”; Texeira said. But “;we have to slow down and evaluate this process so we can come up with very clear guidance as to when we're going to step in or when we're going to recommend the governor take some action.”;

Act 76 took effect July 1, giving the governor the discretion to order state employees — in effect, Civil Defense employees — to enter private property “;to mitigate situations deemed ... to be hazardous to the health and safety of the public,”; even when there is no emergency Civil Defense situation.

The mitigating actions are confined to the following:

» Cutting, trimming or removing dangerous trees or branches that pose a hazard to other properties.

» Stabilizing or removing unstable rock and soil hazards.

» Cleaning streams and waterways to mitigate or prevent flooding or other disasters.

The property owner/occupant has to be given at least 10 days' notice and to be given “;a reasonable opportunity”; to mitigate the problem on their own.

If entry is refused, the governor can obtain a court warrant to gain entry to the property. The governor also is authorized to bill the property owner for all costs involved in removing the hazard.

The bill was introduced by state Rep. Jessica Wooley, based on numerous complaints received from constituents in Kahaluu, many regarding trees on property owned by Japanese billionaire Gensiro Kawamoto, according to a staff member.

Civil Defense officials are aware of many hazardous situations on private property, notably and most typically involving loose rocks or boulders on hillsides above homes, Texeira noted.

Determining hazards in such situations usually is not that difficult. However, dealing with complaints about a neighbor's potentially hazardous tree or trees is stumping officials.

The state already is implementing the law in terms of dealing with concerns about hillside boulders and streams, but “;the trouble is, we're not working as fast enough as the public would like us to with respect to trees,”; Texeira said. “;That's the one that's really been slowing us up.”;

People who have been trying to get a neighbor to cut a tree “;see this law and say, 'Aha, aha, now we have a way to address this particular problem through government channels,'”; Texeira said.

But from government's standpoint, he said, “;It is very tough for us to now go out on every report, take photos and just figure out, is this really a public hazard? It's a hazard to certain people, but maybe not, taken in the overall context of how we look at things at state Civil Defense.”;

Beyond determining the dangerousness of one or two trees, the potential scope of responsibility is daunting.

“;Just drive through Manoa, Makiki, Tantalus,”; Texeira said. Trees are a resource and natural beauty throughout the islands, he said.

But “;you look at the law with respect to what it says about trees and the potential hazard they can have to public safety — it can go on and on and on beyond this agency or anybody else,”; he said.

He pointed out that the new law basically amended Chapter 129 of the Hawaii Revised Statutes, which deals with Civil Defense, but does not give Civil Defense the direct authority to go onto private property in nonemergencies. It says the governor has to authorize the action.

That's another part of the law “;we still have to massage,”; he said, because there are different government agencies already having statutory responsibility for dealing with tree hazards and stream maintenance.

On top of all this, he pointed out there is no funding attached to the new responsibility.

“;Basically, we do the best we can, all we can,”; he said.

Texeira said he wanted to assure people that calls about dangerous trees will be checked out, “;but right now we have to hold (action) for a bit more information. … We have to still work on this and figure this out.”;

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