OFFICE OF THE GOVERNOR STATE OF HAWAIi SEVENTH

OFFICE

OF

THE

GOVERNOR

STATE OF

HAWAIi

SEVENTH PROCLAMATION

RELATING

TO

UNCLE

BILLY’S

HILO

BAY

HOTEL

By

the

authority

vested

in

me

by

the

Constitution

and

laws

of

the

State

of

Hawaii,

to

provide

relief

for

disaster

damages,

losses,

and

suffering,

and

to

protect

the

health,

safety,

and

welfare

of

the

people,

I,

JOSH

GREEN,

M.D.,

Governor

of

the

State

of

Hawai’i,

hereby

determine,

designate

and

proclaim

as

follows:

WHEREAS,

under

chapter

127A,

Hawaii

Revised

Statutes

(HRS),

emergency

powers

are

conferred

on

the

Governor

of

the

State

of

Hawai’i

to

respond

to

disasters

or

emergencies,

to

maintain

the strength,

resources,

and economic

life

of

the

community,

and

to

protect

the

public

health,

safety,

and

welfare;

WHEREAS,

the

State

owns

multiple

properties

along

Banyan

Drive

in

Hilo,

of

which

many

are leased

for

hotel

and

resort

purposes.

These

include

the

property

at

issue

in

this

Proclamation,

which

is

identified

as

tax map

key

numbers

(3)

2-1-005:033,

034,

035,

and

045

(“property”).

The

State

previously

leased

the

property

to

hotel

operators

under

long-term

ground

leases

which

expired

on

March

14,

2016,

after

which

tenancy

continued

on

a

month-to-month

basis;

WHEREAS,

a

146-room

hotel

was

built

on

the

property

between

1966

and

1970.

The

hotel

was

commonly

known

as

Uncle

Billy’s

Hilo

Bay

Hotel

(“hotel”);

WHEREAS,

the

hotel

is

located

in

close

proximity

to

the

ocean;

WHEREAS,

after

the

ground

leases

expired,

the

State

became

the

owner

of

the

hotel

and

all

improvements

that

had

been

built

on

the

property;

WHEREAS,

the

hotel

ceased

operating

on

June

19,

2017,

and

the

last

month-to-

month

tenant

vacated

in

August

2020.

Prior

to

the

cessation

of

operations,

the

condition

of

the

hotel

had

deteriorated

as

the

result

of

deferred

and

ignored

maintenance

needs.

No

significant

repairs

or

maintenance

have

been

performed

on

the

hotel

since

June

2017;

WHEREAS,

the

property

is

now

abandoned

because

the

hotel

cannot

safely

be

repaired

and

the

property

is

dangerous.

WHEREAS,

the

condition

of

the

property

and

hotel

has

attracted

trespassers,

enabled

drug

use,

fighting,

and

other

illegal

activities,

and

experienced numerous

fires.

The

Hawaii

Police

Department

has

responded

to

6,479

calls

for

service/incidents

in

the

area

from

September

2018

to

April

2023,

with

an

estimated

cost

for

responding

to

these

calls

ranges

from

$319,000

to

$459,000.

The

Hawaii

Fire

Department

has

responded

to

946

calls

for

service/incidents

in

the

Banyan

Drive

Peninsula

from

May

2018

to

May

2023,

for

a

cost

estimate

of

$122,000.

The

State

Division

of

Conservation

and

Resources

Enforcement

has

also

conducted

numerous

sweeps

and

enforcement

actions

at the

property

from

2018

to

2023.

The

condition

of

the

property

presents

dangers

to

trespassers

and

law

enforcement

officials

alike;

WHEREAS,

despite

regular security

presence,

the

lack

of

repairs,

maintenance,

and

operations

has

contributed

to

unsafe,

unhealthy,

and

hazardous

conditions

at the

property

and

abandoned

hotel.

These

include

overall

structural

decay,

unabated

hazardous

materials,

fire

damage,

water

intrusion,

falling

ceilings,

exposed

rebar,

overflowing

sewage,

mold,

and

mildew.

These

unsafe

and

unhealthy

conditions

endanger

the

lives

of

members

of

the

public,

adjoining

hotel

patrons,

and

trespassers,

as

well

as

law

enforcement

officers

and

other

first

responders

who

have

responded

frequently

to

service/incident

calls

to

the

property;

WHEREAS,

the

property’s

proximity

to

the

ocean

presents

ocean

and

ground

water

pollution

risks

should

the

condition

remain

unabated;

WHEREAS,

to

address

the

continued

trespass,

other

illegal

activities,

and

unsafe

and

unhealthy

conditions

at

the

property,

the

State

must

urgently:

(1)

build

a

perimeter

fence

to

physically

secure

the

property;

(2)

demolish

and remove

the

hotel

structures

and

hazardous

materials,

as

repair

was

determined

to

be

infeasible

in

an

architectural

assessment

completed

for

the

property,

and

in

any

event

cannot

be

completed

in

time

to

reduce

the

public

health

and

safety

risks;

and

(3)

restoration

of

the

site,

including

hazard

abatement

all

to

the

extent

permitted

by

the

available

funds;

WHEREAS,

I

issued

my

Proclamation

Relating

to

Uncle

Billy’s Hilo

Bay

Hotel

on

July

18,

2023;

my

Second

Proclamation

on

September

15,

2023;

my

Third

Proclamation

on

November

9,

2023;

my

Fourth

Proclamation

on

January

8,

2024;

my

Fifth

Proclamation

on

March

8,

2024;

and

my Sixth

Proclamation

on

May

3,

2024;

WHEREAS,

the

conditions

at the

property

and

hotel

continue

and

will

likely

result

in

substantial

injury

or

harm

to

the

population,

substantial

damage

to

or

loss

of

property,

or

substantial

damage

to

or

loss

of

the

environment,

and therefore

constitute

an

emergency

under

section

127A-2, HRS;

WHEREAS,

it

is

necessary

to

supplement

my

proclamation

to

ensure

a

continued

and

effective

response

with

respect

to

the

conditions

at the

property

and

hotel;

and

NOW,

THEREFORE,

I,

JOSH

GREEN,

M.D.,

Governor

of

the

State

of

Hawai’i,

hereby

determine

and

proclaim

that

an

emergency

or

disaster

contemplated

by

section

127A-14,

HRS,

has

occurred

in

the

County

of

Hawaii,

State

of

Hawai’i.

I

hereby

authorize

and

invoke

the

following

emergency

provisions,

if

not

already

effective

by

virtue

of

this

Proclamation:

2

I.

State

Cooperation

Under

subsection

127A-12(b),

HRS,

I

hereby

direct

all

state

agencies

and

officers

to

cooperate

with

and extend

services,

materials,

and

facilities

as

may

be

required

to

assist

in

all

efforts

to

address

the

objectives

of

this

Proclamation.

II.

Suspension

of

Laws

I

hereby

exercise

my

authority

under

paragraphs

127A-12(b)(8)

and

127A-

13(a)(3),

HRS,

and

suspend

the

following

state

laws,

as

allowed

by

federal

law,

only

to

the

extent

necessary

to

quickly

build

a

perimeter

fence

or

wall

to

secure

the

property

against

further

trespass,

and

to

demolish

the

hotel

and

bring

the

property

to

a

safe

and

healthy

condition:

Chapter

6E, HRS,

historic

preservation,

to

the

extent

compliance

might

delay

the

State

in

quickly

responding

to

the

emergency.

Section

37-41

,

HRS,

appropriations

to

revert

to

state

treasury;

exceptions,

to

the

extent

that appropriations

lapse

at

the

end

of

the

fiscal

year

prior

to

completion

of

the

emergency

actions.

Subsection

37-74(d),

HRS,

program

execution,

except

for

paragraphs

37-

74(d)(2)

and

37-74(d)(3),

HRS,

and any

such

transfers

or

changes

considered

to

be

authorized

transfers

or

changes

for

purposes

of

paragraph

37-74(d)(1

)

for

legislative

reporting

requirements.

Section

40-66,

HRS,

lapsing

of

appropriations,

to

the

extent

that

the

timing

of

the

procurement

of

the

construction

of

the

emergency

permanent

repairs

may

occur

the

fiscal

year

following

the

original

emergency

proclamation.

Chapter

46,

HRS,

county

organization

and

administration,

and

all

Hawaii

County

Code

provisions,

only

to

the

limited

extent

necessary

to

carry

out

emergency

functions

pursuant

to

this

Proclamation

that

may

be

hindered,

delayed,

or

otherwise

impeded

by

county

permitting,

licensing, zoning,

variances,

or

fees

relating

to

these

requirements.

Chapter

53,

HRS,

urban

renewal,

only

to

the

limited

extent

necessary

to

carry

out

emergency

functions

pursuant

to

this

Proclamation

that

may

be

hindered,

delayed,

or

otherwise

impeded

by

these

requirements.

Chapter

89,

HRS,

collective

bargaining

in

public

employment,

to

the

extent

State

personnel

are

prevented

from

being

assigned

or

deployed

in

a

timely

manner

required

to

respond

to

the emergency.

Section

103-53,

HRS,

contracts

with

the

State

or

counties;

tax

clearances,

assignments.

3

Section

103-55,

HRS,

wages,

hours,

and

working

conditions

of

employees

of

contractors

performing

services,

to

the

extent

that compliance

requires

additional

time

detrimental

to

the

expeditious and

efficient

execution

of

emergency

actions.

Chapter

103D,

HRS,

Hawaii

public

procurement

code,

to

the

extent that

compliance

might

delay

the

State

in

quickly

obtaining

the

goods

and

services

needed

to

address

the

emergency.

Chapter

104,

HRS,

wages

and

hours

of

employees

on

public works,

to

the

extent

that

compliance

with

this

chapter

requires

additional

time

detrimental

to

the

expeditious

and

efficient

execution

of

emergency

actions.

Section

1

27A-30,

HRS,

rental

or

sale

of

essential

commodities

during

a

state

of

emergency;

prohibition

against

price

increases,

to

prevent

the

automatic

96-hour

operation

of

this

section

in

the

County

of

Hawai’i,

which

is

unnecessary

for

this

emergency.

The

invocations

and

suspensions

of

section

127A-30,

HRS,

contained

in

my

May

3,

2024

Eleventh

Proclamation

Relating

to Wildfires,

and

in

any

later

proclamation

relating

to

the

wildfires,

are

not

affected

by

this

Proclamation.

Chapter

183C,

HRS,

conservation

district,

to

the extent

compliance

might

delay

or

prevent the

State

from

quickly

responding

to

the

emergency.

Chapter

205A, HRS,

coastal

zone management,

to

the extent

compliance

might

delay

or

prevent the

State

from

quickly

responding

to

the

emergency.

Chapter

342B,

HRS,

air

pollution

control,

and

all

applicable

provisions

of

HAR

chapter

11-60.1,

air pollution

control,

in

particular

section

11-60.1-33,

fugitive

dust,

made

under

chapter

342B,

HRS;

to

the extent

compliance

might

delay

or

prevent

the

State

from

quickly

responding

to

the

emergency.

Chapter

342D,

HRS,

water

pollution,

to

the extent

necessary

to

respond

to

the

emergency,

and

implementing

rules

including

but

not

limited

to

HAR

chapters

1 1

-53,

11-54,

11-55,

11-56,

and

11-62

(certain

chapters

relating

to

water

quality

and

water

pollution)

to

support

emergency

management

functions.

Chapter

342E,

HRS,

nonpoint

source

pollution

management

and

control,

to

the

extent

necessary

to

support

emergency

management

functions.

Chapter

342F,

HRS,

noise

pollution,

to

the

extent

compliance

might

delay

or

prevent

the

State

from

quickly

responding

to

the

emergency.

Chapter

342G,

HRS,

integrated

solid

waste

management,

to

the

extent

necessary

to

perform

emergency

response

during

the

emergency

period.

Chapter

342

H,

HRS,

solid

waste

pollution,

to

the

extent

necessary

to

respond

to

the

emergency,

and

implementing

rules

including

HAR

section

11-58.1,

solid

waste

management

control,

to

allow

expedited

waste

management

including

but

not

limited

to

collection,

removal,

transport,

recycling,

and

disposal

activities.

4

Chapter

342J,

HRS,

hazardous

waste,

to

the extent

necessary

to

respond

to

the

emergency,

and

implementing

rules

including

HAR

chapters

11-260.1

to

11-279.1

(certain

chapters

relating

to

hazardous

waste)

to

allow

expedited

waste

management

including

but

not

limited

to

collection,

removal,

transport,

recycling,

and

disposal

activities.

Chapter

342L,

HRS,

underground

storage

tanks;

and

all

applicable

provisions

of

HAR

chapter

1 1

-280.

1

,

underground

storage

tanks,

in

particular

HAR

chapter

1 1

-

280.1

,

subchapter

7,

out-of-service

UST

systems

and

closure,

made under

chapter

342L, HRS;

to

the

extent

compliance

might

delay

or

prevent the

State

from

quickly

responding

to

the emergency.

Chapter

342P,

HRS,

asbestos

and

lead,

to

the extent

necessary

to

respond

to

the

emergency,

and

implementing

rules

including

but

not

limited

to

HAR

chapters

1 1

-

501

,

11-503,

and

11-504

(certain

chapters

relating

to

asbestos)

to

the

extent

necessary

for

asbestos

abatement

purposes.

Chapter

343,

HRS,

environmental

impact

statements,

to

the extent

compliance

might

delay

or

prevent the

State

from

quickly

responding

to

the emergency.

Section

464-4,

HRS,

public

works,

to

the

extent

that compliance

results

in

any

additional

delays

involved

with

completing

construction drawings

through

the

stamping

and

signing

by

a

professional

engineer.

Ill.

Severability

If

any

provision

of

this

Proclamation

is

rendered

or

declared

illegal

for

any

reason,

or

shall

be

invalid

or

unenforceable,

such

provision

shall

be

modified

or

deleted,

and

the

remainder

of

this

Proclamation

and

the

application

of

such

provision

to

other

persons

or

circumstances

shall

not

be

affected

thereby

but

shall

be

enforced

to

the

greatest

extent

permitted

by

applicable

law.

IV.

Enforcement

No

provision

of

this

Proclamation,

or

any

rule

or

regulation

hereunder,

shall

be

construed

as

authorizing

any

private

right

of

action

to

enforce

any

requirement

of

this

Proclamation,

or

of

any

rule

or

regulation.

Unless

the

Governor,

Director

of

Emergency

Management,

or their

designee issues

an

express

order

to

a

non-judicial public

officer,

no

provision

of

this

Proclamation,

or

any

rule

or

regulation

hereunder,

shall

be

construed

as

imposing

any

ministerial

duty

upon

any

non-judicial

public

officer

and

shall

not

bind

the

officer

to

any

specific

course

of

action or

planning

in

response

to

the

emergency

or

interfere

with

the

officer’s

authority

to

utilize

his

or

her

discretion.

I

FURTHER

DECLARE

that

this

Proclamation

is

not

intended

to

create,

and

does

not

create,

any

rights

or

benefits,

whether

substantive

or

procedural,

or

enforceable

at

law

or

in

equity,

against

the

State

of

Hawaii,

the

counties

of

this

State,

or

any

State

or

County

agencies,

departments,

entities,

officers,

employees,

or

any

other

person.

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