HawaiiConstructionLaw.com

$250 Million Dollar Seawater Air Cooling System Adds High Rise Customer

Pacific Business News reports that the Seawater Air Cooling System has signed a new customer, One Waterfront Towers, and is scheduled to beging construction this spring.  The $250 million dollar system is scheduled to begin construction this spring and could be operational as soon as 2013.  It already has 40 customers signed up, including First Hawaiian Bank and Hawaiian Electric Company. 

Hawaii Rail News

1.  Kiewit has been awarded a $15 million dollar change order on its contract for the first segment of Honolulu's rail transit project, boosting the total cost of the contract to $502 million dollars.  The Honolulu Authority for Rapid Transporation (HART) says the contract price could increase if the project is further delayed. 

 2. HART representatives have clarified a question being asked by the Federal Transit Administration, which has told HART that the City needs to shore up its financial plan for the rail prior to qualifying for $1.5 billion dollars in federal funding.  HART representatives have told Civil Beat reporters that HART "is not a grantee, it's the City and County of Honolulu," and is therefore able to raise revenue sufficient to satisfy funding concerns.  As Civil Beat observes, while this provides little information about the specifics of future funding, it does offer insight into the relationship between the City and HART. 

 3.  The Honolulu Authority for Rapid Transportation (HART) has awarded a $38.8 million contract with AECOM Technical Services, Inc. to design the rail transit project’s airport section of the elevated rail guideway.  AECOM is responsible for the design of the 5.2-mile portion of the rail guideway from Aloha Stadium to the Middle Street Transit Center in Kalihi.   Following the scheduled completion of AECOM’s design work, a separate construction contract will be put out to bid for the airport section of the elevated guideway.   Future contracts will also be awarded for the design and construction of rail stations along that particular segment of the rail route at Pearl Harbor, Honolulu International Airport, Lagoon Drive and Middle Street.

Pennsylvania Courts Join Hawaii in Allowing Union Trustees to File Mechanics Liens to Recover Unpaid Contributions

In Bricklayers of Western Pennsylvania Combined Funds, Inc. v. Scott's Development Company, 2012 WL 29299 (Pa. Super.), the Superior Court of Pennsylvania found that the trustees of employment funds had standing to file mechanics' lien claims for unpaid contributions owed to union members as a result of collective bargaining agreements between a contractor and the unions.  The Pennsylvania lien statute is more restrictive than Hawaii's, which allows a "person" who provides materials or labor to a construction project to file a mechanics lien to recover sums due and owing.  In Pennsylvania, standing to file liens is limited to "contractors" or "subcontractors."  Nevertheless, the Pennsylvania court found that the statute must be read expansively in order to effectuate the purpose of protecting pre-payment of labor and materials.  In doing so, the court joined the ranks of Hawaii and a number of other states, including Utah, Minnesota, Connecticutt, Nebraska, Illinois, Arizona, Maryland, and Iowa, in concluding that a trustee of an employment benefit fund has standing to assert a mechanics lien claim.  The case can be found here.

Procurement and Construction Bills Being Considered in Hawaii's 2012 Legislative Session

On January 24, 2012, the Committee on Economic Revitalization and Business held a hearing to discuss a number of different bills being considered in the 2012 legislative session.  Attached here is an agenda for the meeting, which identifies proposed legislation that can affect Hawaii's construction industry.  Excerpts from the meeting agenda include the followng:

HB 1671 Status	RELATING TO PROCUREMENT. Imposes time limits on rendering administrative and judicial review decisions; limits protests to those that are a minimum percentage of the contract value; requires posting of a protest bond, to be forfeited if the protesting party does not prevail.	ERB, FIN
HB 1676 Status	RELATING TO PUBLIC WORKS. Establishes a preference for the use of American iron, steel, and manufactured goods in the construction, alteration, or repair of public works.	ERB, CPC, FIN
HB 1768 Status	RELATING TO THE HAWAII PUBLIC PROCUREMENT CODE. Amends section 103D-707, HRS, to permit an additional post-award remedy if the contract is not fully executed.  Allows for rescission of the award and application of remedies provided for in section 103D-706, HRS.

HB 1894 Status

RELATING TO PROCUREMENT. Temporarily authorizes the governor or a county mayor to exempt a construction or design-build procurement from protest concerning the procurement and administrative review of a nonresponsible offeror determination.  Requires, as a condition of the exemption, that all bids and proposals, including amendments or revisions, evaluations, and ratings be released for public inspection.  Requires the posting of the information on the state or county website.

 

HB 1969 Status	RELATING TO CONTRACTS. Shortens the time by which subcontractors are to receive progress and final payments from contractors on government and private construction projects.  Provides interest penalties for late payments.	ERB, CPC/JUD

In an earlier blog post noted the City's public statement that it intended to find ways to exempt itself from the procurement code.  More recently, and as part of its plan to inject capital into the Hawaii construction market, the legislature said it wanted to streamline the procurement process.  These legislative offerings look like an attempt to do that, by exempting certain types of disputes from bid protests (bidder responsibility issues), shortening time for review, putting a threshhold requirement on bid protests, etc.  We'll talk more about these efforts as they work their way through the system.

ICA Addresses Unlicensed Contractor Allegation Raised in Arbitration

In Ori Anuenue Hale v. Kasan Constr. Corp.,  2012 Haw. App. LEXIS 49, January 17, 2012, the ICA was asked to overturn an arbitration award on behalf of a contractor on public policy grounds, due to violations of Hawaii's licensing and lien laws.  Kasan Construction Corp. ("Kasan") prevailed in an arbitration with owner Ori Anuenue Hale ("Ori").  Kasan had contracted for construction services with another company, Building Tech, which in turn had contracted with Ori. 

Building Tech was not a licensed contractor.  Arbitration awards, while afforded great deference on appeal, are nevertheless subject to vacatur on certain limited grounds.  Violation of public policy is one of statutory bases for vacating an arbitration award.  Hawaii's contractor licensing laws and rules are expressly promulgated for the protection of the public.  (See Haw. Rev. Stat. sec. 444-4, empowering the contractors license board to "adopt, amend or repeal such reules as it may deem proper fully to effectuate this chapter and carry out the purpose thereof, which is the protection of the general public.").

Under Hawaii's lien laws, a subcontractor who contracts with an unlicensed general contractor loses his lien rights.  Haw. Rev. Stat. sec. 507-49(b), and pursuant to Hawaii's licensing laws, a contractor who contracts for work without a license, loses all rights to pursue a civil action.  Haw. Rev. Stat. sec. 444-22.

In this case, Kasan was licensed, but the entity with whom it contracted (Building Tech) was not.  At arbitration, Ori argued that, therefore, Kasan had no lien rights and was not entitled to pursue its lien claims with Ori, because it was working for an unlicensed contractor.  Ori argued that any finding to the contrary and any award of damages to Kasan, would violate Hawaii's strong public policy against unlicensed contracting.  The arbitrator rejected this argument, finding that although Building Tech was concededly unlicensed, and although Kasan concededly did contract with Building Tech, Building Tech was an authorized agent of the owner and therefore Kasan actually contracted with the owner.  

The ICA refused to review this finding, and rejected the public policy argument raised on appeal.  Without seeing the contract between Kasan and Building Tech it is impossible to determine whether the arbitrator's finding of "agency" was supported in any way.  If in fact Building Tech had a contract with the owner, was paid for its services and those of Kasan (and especially if it charged the owner a markup on Kasan's services), then it is difficult to conceive of how Building Tech could not have been acting as a general contractor, and therefore how Hawaii's public policy on licensing was not in fact violated not only by the ultimate award, but also by the arbitrator's finding that a subcontractor can contract for work with an unlicensed entity that is in fact acting as a general contractor, without running afoul of Hawaii's licensing laws.  In any event, the ICA refused to review the arbitrator's finding and on that basis, affirmed.   The text of this unpublished case is available at the judiciary website, here.

 

New Economic Loss Doctrine case from Kansas

In David v. Hett, No. 98,419, 2011 Kan. LEXIS 657 (Kan. Dec. 30, 2011), the Supreme Court of Kansas held that the economic loss doctrine does not prohibit homeowners' claims against residential service contractors for poor workmanship. 

 In that case, the homeowners (the Davids) had entered an oral agreement with a contractor (Hett) regarding concrete and foundation work for the Davids' house. When they experienced "unusual settling" in their basement and garage about five years after construction had commenced, the Davids sued for breach of contract, negligence, fraud, fraudulent concealment and violation of the Kansas Consumer Protection Act and alleged, among other things, that Hett “negligently performed the work” and that he failed to complete the work as required by the plans, specifications and drawings (while the homeowners' claimed that that the contractor agreed to install 30-inch deep footings as described in the original plans, specifications and drawings, the contractor argued that he had informed the Davids that he had never used such deep footings and that he intended to pour 12-inch ones as was his custom and practice).  The court examined the pleadings to determine whether the gravamen of the Davids’ claims sounded in contract or tort and, while it was “very tempted” to find that the Davids had not alleged a colorable negligence claim, the court remanded the case for a specific finding regarding whether or not the Davids had sufficiently alleged an independent duty upon which a tort claim could have been based. 

More specifically, in clarifying that residential homeowners can allege both contract and tort claims for construction defects in Kansas, the court explained that, prior to David, Kansas state courts had consistently suggested that a contractor’s obligation to provide services in a workmanlike manner referred to an implied duty in contract as well as a separate and independent tort duty.  In 2004, however, the Kansas Court of Appeals, in Prendiville v.Contemporary Homes, Inc., 32 Kan. App. 2d 435, 83 P.3d 1257 (Kan. 2004), had dismissed a homeowner’s negligence claims in a residential construction case by applying the economic loss doctrine.  In Prendiville, the homeowner did not experience water infiltration through his home’s stucco siding until four years after his one-year warranty period had expired and, even though the homeowner expressly alleged that the contractor had negligently failed to provide building services in a workmanlike manner similar to the Davids, the appellate court had ruled that the rights and liabilities of parties to a residential construction transaction were governed by contract and express warranty.  The appellate court had also noted that it was for Kansas’ state legislature, not the courts, to decide whether any exceptions to the economic loss doctrine could be applied in the context of residential construction.  Because Prendiville had ignored prior Kansas cases allowing homeowners to sue a construction contractor in tort, contract, or both, the court in David overruled Prendiville’s application of the economic loss rule to homeowners’ claims against residential contractors as contrary to Kansas caselaw. 

Thanks to Christi Kudo Chock for contributing this post.

690 Pohukaina RFP to be Issued Friday: Tallest Building in Hawaii

The Hawaii Community Development Association (HCDA) is issuing a final RFP for what is planned to be Hawaii's tallest building - comprised of two towers, the first consisting of 300 affordable housing units, and the second consisting of 500 market priced units. The project is expected to cost in the range of $500 million dollars, with construction expected to start some tim ei 2015. A rendering from the HCDA is below:

30% of Hawaii's Construction Jobs were Lost in the Last 4 years

Pacific Business News reports the American General Contractors' ("AGC's") findings that Hawaii lost 30% of its construction jobs since the peak of November 2007.  Hawaii is in the middle of the pack as far as job losses.  The AGC is seeking to influence Congress to pass new legislation funding badly needed infrastructure investments in bridges, roads, and highway construction. 

Tennessee Court of Appeals Case on Construction Delays, Damages, and Cost Plus Contracts

"Time is of the essence" clauses often appear to be perfunctory additions to construction contracts -- something that is so apparent that it should almost be assumed.  Not so, says the Tennessee Court of Appeals in Sanders v. Breath of Life Christian Church, Inc, 2012 Tenn. App. LEXIS 27.  I'll post the link to the Tennessee case later, but one aspect of the case that is interesting is that the owner (church's) construction delay claim against its contractor was denied by the court because the court did not believe a delayed completion constituted a material breach of contract for two reasons:  first, the contract did not contain a "time is of the essence" clause, and without such a clause, there must be some other evidence that time was a material part of the contract.  Although the contract in question contained a beginning and end date, which implied of course that the contract completion was due within a set period, it also stated that in the event the contract extended beyond the stated completion time, the contractor would be entitled to additional monies.  This, the court said, proved that "[t]he express terms of the contract specifically contemplated that this construction project could take over twelve months to complete."  Thus, completion of the work outside the term of the contract, was not a material breach of the contract.  In short, do not neglect this type of language in construction contracts -- it is there for a purpose.

Hawaii U.S. District Court Again Notes Legislature's Excoriation of the Group Builders Decision

The Group Builders decision continues to generate insurance coverage litigation and legal gymnastics through state courts applying often directly conflicting law on CGL coverage for construction defects.  Another recent example is Axis Surplus Ins. Co. v. McCarthy/Kiewit, 2012 U.S. Dist. LEXIS 3612    (subscription required).  Kaiser hired Kiewit to perform construction at the Kaiser Moanalua Medical Center, then alleged numerous construction defects.   In connection with its work on the Project, IKiewit purchased primary and excess liability insurance from insurance companies Arch, RSUI, and Axis.  Kiewit purchased its primary insurance from Arch, which issued a commercial general liability ("CGL") policy.  The Arch insurance policy contained a limit of liability of one million dollars per occurrence. Kiewit purchased its first and second layers of excess insurance from RSUI Indemnity and Axis Surplus Ins. Co.  (the "Axis Policy"). . The Axis Policy contains a Missouri-specific endorsement which expressly states that the Axis Policy was "procured and developed under the Missouri Surplus Lines Laws."

In the underlying Missouri case, Kaiser asserted a claim against Kiewit for damages resulting from allegedly deficient construction work on the Project. Kiewit tendered the claim to Arch, RSUI and Axis.  Arch accepted the tender and agreed to defend Kiewit under a reservation of rights. RSUI and Axis refused to participate meaningfully in settlement discussions, investigate the underlying claim, or confirm or deny coverage  under their respective policies. 

On October 12, 2010, Defendants entered into a partial settlement agreement with Kaiser, resolving a portion of the claim for a payment of one million dollars. Arch has approved the settlement and agreed to fund the one million dollar payment, thereby exhausting the applicable limits of insurance under the Arch Policy.   

Axis and RSUI filed a complaint for declaratory relief against Defendants and Arch in Hawai'i state court, which Defendants later removed to Hawaii's federal district court.  On September 17, 2010, Defendants filed a complaint against Arch, Axis, and RSUI in the Circuit Court for the County of St. Louis, State of Missouri, for breach of contract, anticipatory breach of contract, breach of the implied covenant of good faith and fair dealing, insurance bad faith, and declaratory judgment ("Missouri Action").  

On October 26, 2010, Plaintiffs filed a First Amended Complaint in Hawaii U.S. District Court, naming the exact same parties as the Missouri Action.

Defendants Kiewit and Arch moved to dismiss or stay the insurer's Hawaii action while the Missouri case was pending.  At issue was what law should be applied to the dispute, where the dispute should be litigated, and whether one should be stayed while the other proceeded.  Both sides accused each other of forum shopping -- the insurers were trying to take advantage of the coverage cases coming out of Hawaii (namely Group Builders) while Defendants obviously viewed Missouri as a more favorable venue for the fight.

Hawaii U.S. district court judge Leslie Kobayashi stayed the case.  She went through all of the grounds for staying vs. proceeding and determined that on balance the factors weighed in favor of staying the Hawaii case -- the Missouri case was pending when the Hawaii case was filed, there was a potential for conflicting decisions, and the construction was over.  Moreover, and this is the very interesting piece from the decision, Judge Kobayashi noted that after Judge Kay's decision in which he recited the legislature actions in response to Group Builders (('[T]he Group Builders decision creates a public policy crisis that only the State is in a position to remedy.'" Nat'l Union, 2011 U.S. Dist. LEXIS 128481, 2011 WL 5374355, at *1 (footnoted omitted)), the state of the law in light of recent legislation in Hawaii on this point appears to be  "unsettled at this point," which was a factor in favor of a stay.  The National Union case is discussed by my fellow blogger Tred Eyerly, here.  This and Judge Kay's decision in National Union, above, is an interesting departure from the Hawaii district court's prior rubber stamping of the 9th Circuit's Burlington decision, which held, like Group Builders, that construction defects do not constitute a covered "occurrence" under CGL policies. 

A copy of the case, which is well done and provides the added benefit of an interesting and useful discussion on declaratory judgments sought in federal court when parallel state actions are also pending, can be found here

 

Senate Majority Unveils 2012 Legislative Priorities: $500 Million in Shovel Ready Construction Projects

Today the Hawaii Senate majority unveiled its priorities for the 2012 legislative caucus:  number on its list was job creation and creating a sustainable economy.  From the senate majority website:  "

Creating jobs and putting people back to work will be critically important.  The Senate Majority has created an aggressive FY13 G.O. Bond-funded $500 million Capital Improvement Program (CIP) package aimed at investing and stimulating our local economy from all corners of the state, from Hilo to Hanalei.   The program will create shovel-ready jobs for all trades in the construction industry – from carpenters to consultants. It’ll put money in workers’ pockets and give companies confidence to begin hiring again."

One line that caught my eye was this:  "[t]he permitting, approval and procurement process in both the private and public sectors to facilitate expedient movement would be streamlined and/or simplified to ensure that government is able to provide services to the public in the most efficient manner."  Does this mean potential changes to the procurement code as part of a legislative funding package?  Without specifics it is too soon to comment on the method by which procurement would be streamlined to allow for a quicker injection of funds. 

Hawaii's construction unions endorse Mufi Hanneman

The Star Advertiser reports that Hawaii's Construction Alliance, comprised of the Operating Engineers, along with the Hawaii Laborers' Union, Local 368, Hawaii Masons' Union, Local 1 and Local 630, and Hawaii Regional Council of Carpenters, formerly the Hawaii Carpenters Union, have endorsed Mufi Hanneman in his campaign for the 2nd Congressional District.  

Judge orders jail time for failure to meet construction deadlines

Bloomberg news reports that Manuel “Matty” Moroun, the billionaire owner of Detroit’s Ambassador Bridge, will appeal a Michigan judge’s ruling ordering him jailed for missing deadlines on a construction project.  Court imposed deadlines for improving freeway connections to the bridge were not met, and according to the judge, Moroun evidenced a refusal to meet the deadlines.  The court found Moroun in contempt of court and had him arrested and taken to jail.  Moroun's son, speaking on behalf of the company and his father, said that the judge had a personal vendetta against his dad and was acting without legal authority. 

The Ambassador bridge is a privately owned suspension bridge connecting Detroit Michigan with Windsor, Ontario, in Canada.  Moroun, billionaire from Gross Pointe Michigan, through his company the Detroit International Bridge Company, owns the bridge.  With ownership  of the bridge, Moroun enjoys a monopoly on all truck trafficking crossing the bridge.  A legal fight has been ongoing for years regarding construction to improve the bridge and/or construct a new bridge to accommodate the extensive traffic. 

Moroun has since been released from jail. 

New ICA Case Refuses Quantum Meruit Recovery for Unlicensed Contractor

The ICA recently reiterated, in Wagner v. World Botanical Gardens, Inc. (No. 28998, Dec. 23, 2011), that Hawaii law bars quantum meruit recovery by unlicensed contractors under Haw. Rev. Stat. § 444-22.  A copy of that decision is attached here: (ICA - Wagner vs Botanical Gardens) (see pp. 18-20). 

$1 Billion Hawaii Telescope Project to be Funded by China, India

China and India have reached an agreement to partially fund construction of the world's largest telescope at the summit of Mauna Kea.  The construction costs of the telescope project are estimate to top $1 billion dollars.  The construction of the Thirty Meter Telescope is projected for completion by 2018. 

Artist rendition provided to CBSnews.com by TMT. 

$34.8 Million Dollar Federal Project Awarded to Hawaii Contractor

BCP Construction of Hawaii, Honolulu, Hawaii, was awarded a $34,835,245 firm-fixed-price contract. The award will provide for the construction services for a combine support maintenance shop. Work will be performed in Kapolei, Hawaii, with an estimated completion date of June 8, 2013. The bid was solicited through the Internet, with four bids received. The National Guard Bureau, Kapolei, Hawaii, is the contracting activity (W912J6-11-C-0003).

Why did 2 of 3 rail car bidders lack a contractors license when they first responded to the City's RFP?

The Star Advertiser reports that 2 of the 3 bidders seeking to work on the rail car manufacturing portion of the rail project, did not have contractors licenses to perform necessary construction under their bids. 

According to DCCA records, the winning bidder, Ansaldo Honolulu JV, did not hold a Hawaii contractors license until October 2010.  The rail RFP for the rail car manufacting portion of the project was issued in June 2009.  However, Ansaldo only finalized its $1.4 billion contract in November 2011, long after it was licensed.

Interestingly, Bombardier, which was a competing bidder against Ansaldo, and which challenged Ansaldo's bid at the administrative level and in court, also failed to obtain a contractors license prior to June 2009.  DCCA records reflect that Bombardier was licensed in March 2010.  Bombardier claims its initial response to the RFP in June 2009 was not an "offer" to perform contracting because it did not include any pricing details, but was instead only a submission of qualifications for the work. 

That leaves only one bidder that was licensed in June 2009, and that is Sumitomo.  Interestingly, review of the DCCA Contractors License Board meeting minutes, reflect that in October 2011, a representative and former RME from Sumitomo appeared in front of the board asking it to "take away" Ansaldo's license and force it to pay a "huge fine" as punishment for bidding without a license.  The board refused, noting that it cannot unilaterally act against a licensee without due process, including a complaint, and if necessary a hearing.  Copies of the minutes of that board meeting are posted online here. 

Shortly after the board meeting, the Star Advertiser reports, Ansaldo Honolulu agreed to pay $150,000 to settle a claim that Ansaldo violated the State Contractor's licensing law by responding to RFP's prior to being licensed.

The Contractors Licensing statutes note that a contractor is acting as a contractor (which requires a license) when they "offer" to perform construction work.  See Haw. Rev. Stat. sec. 444-1, defining "Contractor" as one who "offers to undertake. . . to alter, add to, subtract from, improve, enhance. . . any building, highway, road, railroad, excavation. . ."  In short, responding to an RFP could be construed as "offering" to undertake construction and, therefore, acting as a contractor.  Hawaii's licensing laws prohibit anyone from acting as a general engineering, general building, or specialty contractor, without a contractors' license, Haw. Rev. Stat. sec. 444-9, and violating this rule invites stiff penalties, including, potentially, forty per cent of the total contract price.  Haw. Rev. Stat. sec. 444-23. 

Interestingly, the City's own RFP only apparently required that bidders be licensed as of the date of contracting.  Hawaii contractors working on public projects and construction law practitioners will recognize this language, as it is similar to language found in other state projects that, like the rail project, may be partially funded with federal monies.  For some reason, bid invitations for these  projects (including, most often, DOT projects) also routinely require that bidders be licensed as of the date of contracting as opposed to showing proof of licensing upon the bid.  In other words, the language of these bid appears to invite an apparent violation of Hawaii licensing laws.   

While contractor licensing requirements do not apply to federal projects performed on federal property, there does not appear to be any corresponding exemption for projects that are partially funded with federal monies.

While all of this may be interesting and certainly does raise questions regarding the State's (and in this case the City's) sometime practice of inviting unlicensed contractors to bid on projects, it should have no bearing on Ansaldo's award of the bid.  While apparently controversial, that matter has been addressed in bid protest decisions issued by the DCCA and the Circuit Court.  We discussed these bid protests in an earlier article (Rail Article), noting that the City's decision to allow bids from unlicensed contractors, while perhaps inviting an unwary, unlicensed bidder to commit a licensing violation, would not create independent grounds for protesting the award to the by-then licensed Ansaldo.  Hawaii's procurement code requires that protests regarding the form of specifications or invitations to bid must be made within days of receipt of the invitation.  It would accordingly appear that proper objections to an RFP that invited a bid from an unlicensed contractor, could and should have been made when the RFP was issued, and not when it was lost. 

 

Will Hawaii's Strategic Position Prevent Cuts to Military Construction?

Pacific Business News reports Hawaii's military leaders are unclear about whether construction expenditures will fall under the collective ax hitting other federal agencies. Continued concerns about relations with North Korea and China may shield Hawaii from extreme budget cuts potentially facing other military facilities across the country.  According to the PBN, "construction and other sources of employment and money to local contractors didn’t seem to be feeling the effects of looming cuts — at least not yet.  The Hawaii National Guard still plans to award millions in contracts to house and maintain F-22 stealth fighter jets.  And there will be another $100 million in projects out for bid just from Pacific Air Forces in the next year or two, said Lt. Gen. Paul Selva, vice commander of Pacific Air Forces."

30 Story Building in 15 Days

China constructs a 30 story apartment building in 15 days.  Looks like most of the components were made in advance, but still, this is pretty amazing. 

15 days to construct and, in Hawaii, 10 years of potential construction defect liability. . .

Building Code Update

For many years, different building standards have applied in different counties in Hawaii despite somewhat similar building conditions throughout the State.  According to the Building Code Council (http://hawaii.gov/dags/bcc), the last time the counties were in sync was in 1996 under the 1991 Uniform Building Code.  In large part, discrepancies resulted because the counties were allowed to base their building requirements on different model codes and because each county was permitted to amend the version of the model code it used in any way it saw fit.   Since 2007 when the Council was established, however, Hawaii has been taking steps towards adopting a statewide building code with the intent of increasing consistency, predictability and safety, among other things. 

 

According to 2007’s Act 82 (http://www.capitol.hawaii.gov/session2007/bills/SB795_cd1_.htm), all State construction projects must be in compliance with the statewide building code within 1 year of its adoption.  The counties are given 2 years to adopt the statewide building code except that, if there is any delay or other failure to adopt it within the specified time period, the statewide building code “shall become applicable as an interim county building code until the county adopts the amendments.”

 

The Council’s September 13, 2011 meeting minutes suggest that new rules based on the 2009 International Building Code (IBC) are being finalized at the same time that members are reviewing the 2012 IBC.  Those minutes also included the following adoption status regarding the various counties:

 

1. Hawaii County: NEC and UPC effective November 15, 2011, 2006 IECC effective October 2006; 2006 IBC targeted for January 2012
2. Maui County: 1997 UBC, 1991 UPC, 2008 NEC, 2006 IECC, current codes; 2006 IBC and UPC with corporation counsel.
3. Kauai County: 2003 IBC, 2003 IRC, 2008 NEC, 2009 IECC, current codes; 2006 IBC, 2006 IRC and 2006 UPC expected to be adopted in early 2012.
4. Oahu (Honolulu): 2008 NEC, 1997 UPC, 2003 IBC, 2003 IRC, 2006 IECC, current codes; 2006 UPC and 2006 IBC seeking public comment and expect to transmit to corporation counsel in [October 2011].

 

*NEC: National Electric Code; UPC: Uniform Plumbing Code; IECC: International Energy Conservation Code; IRC: International Residential Code

 

http://hawaii.gov/dags/bcc/meeting-minutes

 

A representative from Maui County’s office claimed that updated code provisions based upon the IBC could go into effect in Maui as soon as April 2012.

 

An overview of the process was provided in an November 2011 article in the Pacific Business News: http://www.bizjournals.com/pacific/print-edition/2011/11/11/statewide-building-code-cant-keep-up.html?s=print