County maintenance of private streets and roads

Subject to the availability of appropriations, the Department of Public Works may maintain by either remedial patching, resurfacing, or paving those portions of private (non-dedicated or non-surrendered) streets and roads which have been determined by the County Engineer to meet the following criteria:The street or road has not been dedicated or surrendered to the County or any other governmental entity, and is not otherwise owned by the County or any other governmental entity;The street or road is not maintained by any governmental entity other than the County pursuant to this Article;The street or road is open to, serves, and benefits the general public;The street or road is not signed, marked, delineated, fenced, barricaded, or otherwise designed, constructed or operated to exclude access by the general public, in whole or in part, which may be through such means as indicating that the street or road is a "private" street or road or any restrictions on parking which are not applicable to all persons except as otherwise provided by law;The street or road directly serves six (6) or more parcels and at least six (6) of the parcels served are owned by separate individuals or entities;The street or road is not part of a cluster housing development, planned community, planned development, or similar type of development;Maintenance of the street or road by the County will be practicable and safe;The street or road is not a private street or road within the meaning of Chapter 9, Kaua'i County Code 1987, or any rules and regulations adopted pursuant thereto;The developer or subdivider of such street or road has not agreed to maintain such street or road in perpetuity;Maintenance of the street or road surface is necessary to protect the safety of motorists and pedestrians or is otherwise in the public interest;The street or road does not suffer such design defects as to make use of the street or road hazardous to the general public; andThe street or road was part of an approved subdivision prior to adoption of Ordinance No. 94 (the Subdivision Ordinance, adopted on May 2, 1956).If a private (non-dedicated or non-surrendered) street or road is proposed to be maintained by the County, the persons collectively owning a sixty percent (60%) or more interest in the fee title or an appropriate roadway easement in the street or road shall initiate and submit a written request to the County Engineer for the maintenance of the street or road no later than July 31st of any fiscal year on a form provided by the County Engineer. If the County Engineer determines that the private (non-dedicated or non-surrendered) street or road satisfies the criteria set forth in this Subsection, the County Engineer may, subject to the availability of appropriations, proceed to maintain the street or road, provided that the persons having the right to control the use of the street or road shall submit their legal, written approval of the maintenance work. The persons having the right to control the use of the street or road shall agree to such terms, conditions, and covenants as may be determined by the County Engineer to be for the convenience and protection of the County and the public, including the granting of necessary easements; provided that one of the conditions the persons having the right to control the use of the street or road shall agree to is the condition that they keep the street or road open to the general public for as long as the County may maintain the street or road surface or for a period of time specified in the agreement, whichever is longer. The requirement for a written request, approval, and agreement shall not apply, however, to a (i) street or road over which the Department of Public Works exercises surface maintenance responsibilities on the day prior to the effective date of this Article, or (ii) a street or road which the County Engineer, with the approval of the Planning Director, determines has been dedicated by implication to public use for roadway purposes; provided that nothing contained herein shall be construed as prohibiting the County Engineer from requiring a written approval or agreement for new maintenance work on streets or roads over which the Department of Public Works exercises surface maintenance responsibilities on the day prior to the effective date of this Article if the County Engineer determines that such an agreement is in the best interest of the County.Paved roads shall be maintained by remedial patching. Remedial patching shall be with materials as determined by the County Engineer. If the County Engineer determines that the pavement is in such poor condition that remedial patching is impractical and not cost effective, resurfacing with materials as determined by the County Engineer may be provided.Unpaved roads shall be maintained by remedial patching. Remedial patching shall be with materials as determined by the County Engineer. If the County Engineer determines that the street or road surface is in such poor condition that remedial patching is not cost effective and does not serve the best interests of motorists and pedestrians, resurfacing with materials as determined by the County Engineer may be provided.Maintenance work to be performed by the County pursuant to this Section shall not include installation or maintenance of curbs, shoulders, gutters, drainage facilities, bridges, or similar infrastructure.The County Engineer shall discontinue maintenance of specific private (non-dedicated or non-surrendered) streets and roads, when the County Engineer determines that such streets and roads no longer meet the criteria set forth in Paragraphs (1) through (11) of Subsection (a), or when requested in writing by the persons having the right to control the use of the street or road. Prior to discontinuing maintenance of any private (non-dedicated or non-surrendered) street or road, the County Engineer shall provide each owner and roadway easement holder of record of the street or road with thirty (30) days' written notice of such proposed action. Where maintenance is discontinued because the street or road is signed, marked, delineated, fenced, barricaded, or otherwise designed, constructed or operated to exclude the general public, in whole or in part, the County Engineer is authorized, to the extent legally and economically feasible, to recover any removable fixtures or materials, if any, installed by the County, and recover from the owners or roadway easement holders of the street or road, as may be appropriate, the value of the fixtures or materials left in place.Nothing contained in this Section and no action undertaken pursuant to this Section shall be construed as adoption, acceptance, or approval of a private (non-dedicated or non-surrendered) street or road as a public highway.