Rockslides: An Examination Of Legislation In Different States - Fact Sheet
The Legislature adopted S.C.R. No. 98, H.D. 1 in 2006, the impetus for which was a private landowner's intent to develop land on sloped terrain located above existing homes in the Nuuanu area on Oahu. Existing downhill homeowners believe it would create rockfall, landslide, and flooding hazards. The State also owns land uphill of the proposed development, exposing the State to potential liability should rocks fall from state land.
The Resolution directed the Bureau to contact the National Conference of State Legislatures (NCSL) for laws in other jurisdictions relating to permitting development in areas subject to rockslides. The NCSL conducted a full-text search of the statutes of all fifty states, the District of Columbia, Guam, Puerto Rico, and the Virgin Islands. Of the NCSL shortlist of 24 statutes culled from a larger list of 241, most were not directly relevant. Our examination of these statutes showed that regulation of the permitting process for developments in areas with a potential for rock- or landslides more appropriately resides at the county level.
The Bureau also examined the scope and degree of relevant county regulation in Hawaii. The City and County of Honolulu appears to have the most extensive set of relevant policies, ordinances, and regulations. Overall, the regulatory environment in the City and County of Honolulu appears adequate to address any concerns about rockfalls, particularly when each permit is evaluated on a case-by-case basis. Hawaii County stated that that it did not have any ordinance that specifically addresses regulating proposed developments on or nearby steep terrain. Regarding zoning, the Hawaii County response noted that the existing process would naturally look at such hazards in any rezoning as a matter of common sense. Currently in Hawaii County, it would be the architect's responsibility to address such hazards.
The Resolution discussed the issue of liability but did not request the Bureau to address it. An unspoken concern may exist that the State and the counties, as parties with perceived "deep pockets," may be exposed to liability risk if a rockslide were to occur. Consequently, we examined relevant legal decisions to determine whether appellate courts had established any broad "bright lines" specifically applicable to rockslides. If anything, the relatively small number of cases seems to leave the determination of liability dependent upon the specific facts and circumstances of each case.
Although deep-pocket jurisdictions, understandably, will always be concerned about being targeted, they apparently will not automatically be held liable. The cases we examined showed that, even if a public body negligently contributed to a landslide or rockfall, the evidence must show that such negligence was the proximate cause of damage to a claimant.