Caldwell vetoes Bill 6: sit-lie expansion

Mayor Kirk Caldwell, today, vetoed a Honolulu City Council bill (Bill 6 (2015), CD1, FD1) which he says could expose the city to legal challenge by expanding the areas covered under the current “sit-lie” ordinances to include areas beyond public sidewalks and areas that are not zoned for commercial or business activities.

Mayor Caldwell offered an alternative bill that the city’s Corporation Counsel believes would meet Constitutional muster. The mayor urged the council to pass his bill as soon as possible, and committed to sign it into law, if passed. He also urged the council not to overturn his veto.

According to the mayor’s office, the language of the proposed bill was presented to the council prior to the final passage of Bill 6. In a press release sent out today, the mayor’s office said that language could have been adopted as an amendment to Bill 6, which would have resulted in Mayor Caldwell signing the amended Bill 6 today. “Instead, the council passed the legally flawed language, necessitating the mayor’s veto today.”

The mayor’s veto letter to the council notes: “I continue to wholeheartedly support the intent and purpose of Honolulu’s recently adopted Sit-Lie Laws…”  However, “The fact that the Department of the Corporation Counsel has refused to sign Bill 6 as to form and legality reflects that Bill 6 contains legal deficiencies, thus making it more likely that the bill will be subjected to unnecessary legal challenges and to the payment by the City’s taxpayers of costly attorneys’ fees incurred by plaintiffs.  I am also gravely concerned that the passage of Bill 6 may result in a challenge to the legitimacy of the Sit-Lie Laws, which are clearly intended to maintain pedestrian access over sidewalks in business and commercial areas and which have been extremely effective in the areas in which they have been enforced.”

According to the mayor’s office, the differences between Bill 6 and Mayor Caldwell’s proposed bill are as follows:

Bill 6 includes unpaved areas that extend 10 feet from the edge of the sidewalk farthest from the roadway as an “expanded sidewalk area as an extension of the sidewalk.” This would include areas not used for pedestrian use, such as the landscape buffers abutting sidewalks and, possibly, private property. The mayor’s proposed bill does not include that expanded sidewalk area. Only public sidewalks are covered by Mayor’s proposed bill.

Bill 6 includes the sidewalks on both sides of a street, without exceptions. Sometimes, there are areas that are zoned for apartment or residential use across the street from areas zoned for commercial and business activities. The inclusion of sidewalks on both sides of a street, without exception, results in areas that are zoned for apartment or residential use to be included in Bill 6. The mayor’s proposed bill excludes areas that are zoned for apartment or residential use.

Bill 6 includes areas that are zoned for apartment, residential or preservation use, which are not zoned for commercial or business activities. The mayor’s proposed bill excludes areas that are zoned for apartment, residential or preservation use.

Mayor Cladwell’s letter to Council reads:

May 21, 2015

The Honorable Ernest Y. Martin
Council Chair and Presiding Officer
and Members
Honolulu City Council
530 South King Street, Room 202
Honolulu, Hawaii 96813


SUBJECT:  Veto of Bill 6 (2015), CD1, FD1 – Relating to Public Sidewalks


Dear Council Chair Martin and Councilmembers:

I continue to wholeheartedly support the intent and purpose of Honolulu’s recently adopted Sit-Lie Laws (Ordinances 14-26 and 14-35), which prohibit persons from sitting or lying on public sidewalks in certain areas zoned for commercial and business activities so that the general public can use the sidewalks for pedestrian access. Through those laws, the public sidewalks in those areas continue to be accessible so that pedestrians can safely and effectively move about from place to place, and businesses can provide entertainment, goods and services to the people of the City and County of Honolulu.

I am also acutely aware of the many challenges faced by the people of the City who either are forced or choose to live on the sidewalks, in unsanitary and unsafe conditions. Their living conditions are undesirable from not only their perspective, but also that of the people of the City who walk, drive, own a business, live in a house or attend a school next to them.

It is an untenable situation, and one that we – the City Council, this Administration, and each and every community of this great city - must address, working together.

It is, therefore, only after serious and considerable deliberation, that I return to you with my veto, Bill 6 (2015), CD1, FD1, Relating to Public Sidewalks (“Bill 6”).

Bill 6 proposes amendments to the Revised Ordinances of Honolulu that would unlawfully expand the Sit-Lie Laws.  On its face, Bill 6 clearly goes beyond the intent and purpose of the Sit-Lie Laws because it seeks:

to impermissibly amend the Sit-Lie Laws by enlarging the original purpose to include areas abutting the public sidewalk, such as unpaved, landscaped or unimproved public property, and by calling such abutting areas an “expanded sidewalk area as an extension of the sidewalk;”

to include areas that are zoned apartment or residential use, which are areas in which commercial and business activities are not permitted;

to further expand the public sidewalk to include landscaped areas of the banks of the Kapalama Canal, which are not intended for pedestrian use;

and to further expand the public sidewalk to areas that may be privately owned.

The fact that the Department of the Corporation Counsel has refused to sign Bill 6 as to form and legality reflects that Bill 6 contains legal deficiencies, thus making it more likely that the bill will be subjected to unnecessary legal challenges and to the payment by the City’s taxpayers of costly attorneys’ fees incurred by plaintiffs. I am also gravely concerned that the passage of Bill 6 may result in a challenge to the legitimacy of the Sit-Lie Laws, which are clearly intended to maintain pedestrian access over sidewalks in business and commercial areas and which have been extremely effective in the areas in which they have been enforced.

The Sit-Lie Laws already identify the areas zoned for commercial and business activities in which the general public most urgently requires use of the sidewalks for pedestrian access for those activities. Those laws are working, but rather than attempting to expand those laws through the approval of Bill 6, we should focus our collective energies and attention to working together to find, create and provide affordable housing for all of the people of the City, including those of us who are less fortunate.

I am committed to working with the City Council to improve the Sit-Lie Laws, and I sincerely hope you will join me in doing so. Towards this end, if the Council wishes to expand those laws beyond the existing geographical areas, then I urge you not to override this veto and I enclose with this message for your consideration a proposed bill for an ordinance that will pass legal review and that addresses the concerns that led to the introduction of Bill 6. If the Council passes this proposed bill, I will sign it.

For the reasons stated above, I am returning Bill 6 (2015) CD1, FD1, with my veto, and I urge you to sustain it.

Sincerely,
 
Kirk Caldwell
Mayor