HomeMy WebLinkAbout02/08/2012 PLANNING Committee Meeting MINUTES
PLANNING COMMITTEE
February 8, 2012
A meeting of the Planning Committee of the Council of the County of
Kaua`i, State of Hawaii, was called to order by Nadine K. Nakamura, Chair, at the
Council Chambers, 4396 Rice Street, Suite 201, Lihu`e, Kaua`i, on Wednesday,
February 8, 2012, at 8:49 a.m., after which the following members answered the call
of the roll:
Honorable Tim Bynum
Honorable Dickie Chang
Honorable Nadine K. Nakamura
Honorable Mel Rapozo
Honorable JoAnn A. Yukimura
Honorable KipuKai Kuali`i, Ex-Officio Member
Honorable Jay Furfaro, Ex-Officio Member
There being no objections, the Committee Chair recessed the meeting at 8:49 a.m.
The meeting was called back to order at 4:33 p.m., and the Committee proceeded on
its agenda item as follows:
Ms. Nakamura: Thank you. I'd like to ask the clerk to read
the topic, the item.
Bill No. 2423 A BILL FOR AN ORDINANCE TO AMEND CHAPTER 6,
ARTICLE 14, KAUAI COUNTY CODE 1987, AS AMENDED,
RELATING TO THE PUBLIC ACCESS, OPEN SPACE AND
NATURAL RESOURCES PRESERVATION FUND.
[This item was deferred.]
Ms. Nakamura: I believe we have a representative of the
Open Space Commission here, Jean Souza. Can you introduce yourself?
There being no objections, the rules were suspended.
JEAN SOUZA, COMMISSIONER, OPEN SPACE COMMISSION: Aloha
Councilmembers. I'm Commissioner Jean Souza and I'm joined by Commissioner
Tessie Kinnaman, County Planning Director Michael Dahilig, and County Planning
Department Open Space staff Nani Sadora. Commission Chair Joseph Figaroa was
here earlier but had to leave for a prior commitment. He asked me to read his brief
statement, if I might do that now?
"My name is Joseph Figaroa, Chairman of the County of Kauai Public Access
Open Space & Natural Resources Preservation Fund Commission. I am here
in support of the proposed Bill No. 2324 that you have before you. The
Commission appreciates that the Administration has submitted this draft bill
on our behalf. This bill will expand the range of duties for the Commission
and allow the Commission to accomplish the goals set forth by the community
of Kaua`i."
Planning Committee 2 February 8,2012
I am here to answer questions or to walk you through the major changes
proposed in the bill.
Ms. Nakamura: I'd like to ask you, Jean, to walk us through
the major changes in the bill, but before you do I would like to just go on record that
I in the past have consulted with the Open Space Commission and I asked the
County Attorneys for an opinion whether there's a conflict. Currently, since I don't
have any contract with the County at this time, there is no conflict, so I'm going to
proceed. So Jean, if you could walk us through that, I think it would be helpful.
Ms. Souza: Just a bit of background: the Commission
which we know of casually as the Open Space Commission has been in existence
now for six (6) plus years. Over the years we have tried our best to contain all of our
activities within the scope of the Kaua`i County Code that addresses what the
functions and how the operations will be for the Commission. But we have had some
difficulties and so the changes that we have proposed here address those difficulties
and we hope to have a dialog with you on that.
So the first change is on page 2 and this is Section 6-14.1 under the "Purpose
(a)," Sec. 6-14.1 (a). You'll see that there are eight (8) purposes for which the Open
Space Fund can be used. We feel that there is a need to add a ninth (9) purpose:
conserving land to maintain open space and scenic values, because these two (2)
things - open space and scenic resources - are not addressed in any of the prior eight
(8) items. On item seven (7) and eight (8) you'll notice that we have done some
housekeeping and have proposed deleting two (2) words because we feel that they
are no longer necessary and the needs can be addressed through the general
statement. Should I go through or would you like to ask me questions on that?
Ms. Nakamura: Why don't you walk us through the changes
and then we'll open it up for questions.
Ms. Souza: Okay. Then the middle of the second page on
Section 16(sic)-14.2 related to Administration, the big change here is that currently
we're required to do an annual report to the County Council and the
Administration. This proposal is for us to do a biennial report, which means every
other year, thanks to a suggestion made in 2010 by Councilmember Yukimura. So
we have taken that to heart. We think that that will allow us to get involved in
some other activities which will be addressed in the next couple of pages.
Further down the page, related to the appointment of one (1) islandwide
at-large appointee, this is commonly referred to as the ninth member. Currently,
the ninth member will be appointed by the other eight (8) members of the
Commission. The change is that that ninth member actually be selected by the
seated members at that time. So there might not necessarily be eight (8) seated
members, but whoever is seated would be involved in that selection. There's a
change in how many days that selection could happen by the Commission and as a
default that the Commission doesn't select within the seventy-five (75) days, then
the power to fill the vacancy would fall with...I think it's the Mayor, and confirmed
by the Council.
Council Chair Furfaro: Excuse me. May I ask a question at that
point? Do you mind if I ask a question?
Planning Committee 3 February 8,2012
Ms. Nakamura: Okay fine.
Council Chair Furfaro: What you mean to be saying to us as four (4)
is from the Council, four (4) is from the Mayor, each of us have three (3) districts
within that make-up of four (4) and one (1) at-large.
Ms. Souza: That stays the same.
Council Chair Furfaro: Yes I understand that. But your comment
here is, but if you're going to appoint the ninth member, there would be at least a
minimum of five (5)? I mean I'm trying to find your...
Ms. Souza: Well we would need a minimum of five (5) in
order to take action, official action as a Commission, that is correct.
Council Chair Furfaro: Yes. Thank you. I did hear that in your
explanation.
Ms. Souza: Yes. That is correct.
Council Chair Furfaro: So it would be a minimum of five (5). Thank
you. Thank you Chairwoman.
Ms. Souza: Just as a clarification, it's been since 2009
that we have had a fully seated Commission. We have had as few as five (5). And
thanks to your efforts and the Administration, we now have eight (8) seated. The
Commission is currently in the process of going through a public process to select
the ninth member. But it has taken us, what, two and a half years to get to that
point; to be compliant with this law. So what we're saying is, whoever is seated,
they will decide that at-large seat and not wait for full eight (8) to be seated before
that selection happens.
Council Chair Furfaro: Just a simple majority.
Ms. Souza: Yes. Then there are a number of suggestions
on the role of the Commission. Currently there are two (2) that we have to do: one is
an annual report of recommended sites for acquisition using the Fund to come to
you and the Administration for that, and the second thing was to involve the public,
solicit public input in the development of that list. But, we believe that if we're no
longer required to do an annual report, that would free the Commission up to do
many things. There have been lots of discussion on more things that we could do to
help meet the needs of the people of Kaua`i. And so, we have proposed here that the
role of the Commission be expanded to: advocate and be a resource for public access,
open space, natural resources preservation planning for the County of Kauai; that
we assist with the implementation of priority recommendations; that we serve as a
forum to receive public input on issues relating to nine (9) land conservation
purposes outlined in the prior section; that we assist with the resolution of issues
related to the nine (9) land conservation purposes outlined in the prior section; and
that biennial report, the balance and review of the sufficiency of the Open Space
Fund to the Council and to the Administration.
Now, moving to Section 6-14.3, regarding the appropriation of funds, we have
several new provisions. Just for some background, as you well know, the cost of land
here on Kaua`i as elsewhere in Hawaii, is very high compared to the amount of
Planning Committee 4 February 8,2012
money that we have in the Fund. So many times in order for these lands to be
acquired, as evidenced by the Hodge property acquisition, money has to come from
different sources. So there was a question about, if the Fund is used with other
sources of money, does the land have to be...to come back to the County? Does the
land have to be managed by the County? There are many questions, and so rather
than guess at it, we felt it was better to address it specifically in this bill. So there
are three (3) new provisions that: funds may be appropriated to any other
government entity, private landowner, or non-profit organization and be used to
acquire an interest in property with a requirement that lands or entitlements
benefit the public and are protected in perpetuity. Another one is that lands and
other property entitlements to be acquired may be owned or held by the County of
Kaua`i, other government entity, or non-profit organization with the requirement
that lands or entitlements benefit the public and are protected in perpetuity. And
the last, lands or other property entitlements to be acquired may be managed by the
County of Kaua`i, other government entity, private owner, or non-profit
organization with the requirement that lands or entitlements benefit the public and
are protected in perpetuity. And that's basically it.
Ms. Nakamura: Questions from the Council for Jean Souza?
Councilmember Yukimura.
Ms. Yukimura: Yes. I want to start by thanking you and the
Commission for doing the work on this. I know that, I think I just had gotten back
into office when we were working on the ordinance to implement the Charter
Amendment. I think we recognized certain limitations and your experience now and
recommendations are very valuable. My one question is in the section that you just
covered on page 4 regarding the appropriation of funds. What situation do you folks
envision that would involve a private owner that is not a non-profit owner or
recipient of County money under this law...proposed bill?
Ms. Souza: I can't at this time think of an example. Let
me look at Mike.
Council Chair Furfaro: Actually, I would encourage you to have one
of the lawyers come up and answer. That's what I would encourage. Is there a
County Attorney present?
Ms. Yukimura: Mr. Dahilig is an attorney.
Council Chair Furfaro: Understood. But is there a County Attorney
available?
Ms. Yukimura: Actually this is not a legal question though,
I'm asking a policy question.
Council Chair Furfaro: Well I disagree with the Vice Chair's
interpretation, so it's your Committee, go forward.
Ms. Souza: Just letting you know, he was here. Deputy
County Attorney Ian Jung was here but had a prior commitment. But Mike was the
deputy county attorney at the time that was servicing the Commission, and many of
the items that are in here were discussed when Mike was in his prior position.
Ms. Nakamura: Good. Mike wears two (2) hats.
Planning Committee 5 February 8,2012
Ms. Souza: Yes.
Ms. Nakamura: Thank you. Would you like to...
Council Chair Furfaro: Just so we're clear on the record, the County
Attorney should be in the building during all times of this Council meeting. He is
not, and are we sure of that? Okay, no that's fine, we'll leave it at that.
MIKE DAHILIG, PLANNING DIRECTOR: Good afternoon
Councilmembers, Mike Dahilig, Planning Director. Just to answer the question
regarding a situation where there may be appropriations given to a private
landowner to then pool resources and then purchase or put some type of easement
or fee simple title into perpetuity it really is trying to create a broad brush on a set
of tools for the Commission to negotiate and pool resources with other entities that
are willing to give and put things on the table. For instance, it may be something
where a private landowner may be paid, maybe not the full amount but a partial
amount of money to keep a portion of his land still in fee title to him but he grants
some type of conservation easement over to...for the public purpose, yet still retains
the fee simple title to the property after that easement has been granted. So there is
a myriad of tools that are trying to be proposed with respect to Section c,d, and e,
but I think if you're looking at it from a set perspective of a private landowner it
would be that situation where the landowner would still retain fee title but then be
granting some type of perpetual conservation easement over the property for
preservation purposes.
Ms. Yukimura: In my experience it would be mainly a
non-profit group that would broker the sales so that the owner can get a tax
deduction and there has to be a holder of the conservation easement that should be
a non-profit. I'm concerned that if there isn't the protection of a non-profit owner
with a non-profit mission...
Mr. Dahilig: There may be certain situations where
there's an eleemosynary trust that may be wanting to give this perpetual easement
for lands that it may hold. I understand that what you're suggesting is...has to be
traditionally what we see with respect to partnering like with the Kaua`i Public
Land Trust and even with a lot of foundations. But in some certain scenarios it may
be a private property trust and may be wanting to give. They may not necessarily be
a 501C3 type of corporation to give that type of perpetual easement. So it really is
meant to give a broad range of tools for the Commission to go out and seek some
way of protecting and fulfilling its mission.
Ms. Yukimura: I'm just a little concerned that there could be
more abuse with that than with a non-profit. So, even non-profits have to have
oversight, I'm not saying that they don't. That's why I am just trying to understand
a scenario that's happened before or...
Mr. Dahilig: I'm sorry, as with anything, also the funds
still have to go through the normal legislative process and those checks and
balances to actually be expended. So it still is, it's just framing the discussion for
the Commission to be a facilitator to present a proposal, but ultimately the final call
on whether the funds should be released and appropriated for some type of right
purchase, it would still rest with this body as well as the Mayor if something quick
were to pass.
Planning Committee 6 February 8,2012
Ms. Yukimura: That isn't always a protection.
Mr. Dahilig: I...
Ms. Yukimura: Okay. Thank you.
Ms. Nakamura: Chair Furfaro and then Councilmember...
Council Chair Furfaro: I'm just delighted, thank you Al for coming
over. But again, in the public process of the previous partnerships, I might say the
County ended up holding the deed. But this is rather new where we're going to let,
maybe, someone hopefully a non-profit but it's not real specific and I think I share
Vice Chair's concerns here that...it has to be very clear to the Commission about, we
need to hold the easement record and so forth. I don't want to develop partnerships
with people that we later get into conflicts with that don't hold non-profit status. I
just needed the County Attorney to hear my question along that line. He's heard it,
and I appreciate your comments, I appreciate your work. I'm just putting up
another concern.
Ms. Nakamura: Okay. Thank you. Councilmember Rapozo.
Mr. Rapozo: Couple of questions. The first one, why the
biennial versus annual?
Ms. Souza: Right now if I were to estimate, we spend
about half our time going through the process of then coming up with our report
which we send to you. The time is spent on determining the public input process,
figuring out when we are going to implement that public input process which
sometimes includes an online survey, a paper survey, public meetings, other things.
Then we analyze the input and then we write and review the draft document. So
that consumes a tremendous amount of time. We've been doing it. We're actually,
currently in the final stages of submitting...well approving our 2011 report. But by
doing it every other year we can then spend more time really helping the
Administration and you in perhaps implementing some of these. We, the
Commission, have submitted over the years since 2005 until the 2010 report and
including the recommendations in the draft 2011 report, we have submitted to you
sixty (60) property locations for you to consider. Most of them involve using the
fund, but some of them also involve some other partnership or other ways to obtain
the property. Those suggestions are for actually thirty (30), about thirty (30)
different sites. Of that, the Council has only approved one (1) project for acquisition
and that's the Hodge property on Hanalei Bay. So, some of us, Tessie and myself,
we're the last of the original Open Space Commissioners left on the Commission. All
of the other commissioners are newer and they have seen that over the...what, six
(6) plus years that we have worked, there has only been one (1) accomplishment.
And so, there is a high degree of frustration about — what is the purpose of all of
these meetings and the time spent and how do we see results? Is there a way for us
to help you better in selecting these? Maybe proposals need to be crafted with more
detail so they can come to you just as the non-profit did for the Hodge property
where they packaged it for you and it was easy for you to deal with. Maybe there's a
need for something like that. Maybe there's a need for us to work better with the
Planning Department to come up with some implementation of some of these
recommendations so that you can look at it and say — hey, that's something that we
want to do, or maybe it's not. But right now we come to you with an annual report
Planning Committee 7 February 8,2012
and have had only one (1) done. So that's where the frustration is and so we
appreciate the suggestion made a couple of years ago for that.
Mr. Rapozo: I just want to find out if in fact it's the
Council's lag that is going to require you to do a two (2) year plan, or is it...how
successful have you been with quorums and as far as meetings and getting your
meetings when you're supposed to have your meetings. I mean I think that was an
issue going back several years right?
Ms. Souza: We actually have been very successful in
getting quorum even when we were down a few. But, when we were...this past year
we were down to five (5) people.
Mr. Rapozo: Right.
Ms. Souza: And so there have been times when we
missed this year six (6) meetings. We meet twice a month. So that would be twenty-
four (24) meetings. So we missed six (6) meetings because of quorum issues.
Mr. Rapozo: And I...is it an assistance issue? I mean,
clerical assistance? I guess I don't...I feel real uncomfortable giving up the annual
report.
Ms. Souza: Okay.
Mr. Rapozo: Because I think it's important for us. Now, I
think there's a lot of reasons why, I mean obviously if we get sixty (60) suggestions
it's difficult and with the limited finances as well. Maybe we got to, as a Council, got
to prioritize...further prioritize what's the "low hanging fruit" - what can we go out
right now and get. It doesn't have to be a park, it can be an access way that was lost
to a developer, a builder out in Kauapea Beach. Why are we not going after those
little ones? Like I call the "low hanging fruit" versus the big million multi-million
dollar project.
Ms. Souza: And we...in order to find what...to give you
as many options as possible over the years, we have identified some of the "low
hanging fruit," we have identified some of the more visionary properties, quite
expansive properties, but of all of that we have had only one (1) success so far. That
was primarily due to the packaging of the project and the funds by the Land Trust.
Mr. Rapozo: Right.
Ms. Souza: So...
Mr. Rapozo: We have to make a better effort here to pick
some of them "low hanging fruit" and I definitely will work on that.
Ms. Souza: Well keep in mind too that we have only two
(2) functions: we're advisory to you to come up with a list of recommendations for
acquisition using the fund; second thing is to engage in a public process to come up
with that list. It's not part of our stated functions that we help develop these ideas
more, that we help with some acquisition, and granted the County Attorney has
been quite generous in his interpretation of what we can do, but we have as you
remember a couple of years ago, we have also been assisted by a County Attorney
Planning Committee 8 February 8,2012
who very narrowly defined what we can do or cannot do. And so, we felt because of
that experience that we would prefer an ordinance that is more explicit about what
P p P
we can do so we don't get into trouble. And to keep in mind, we are all volunteers in
this.
Mr. Rapozo: Oh yes. We appreciate what you do. I just got
a couple more real quick.
Ms. Nakamura: Okay. Go ahead.
Mr. Rapozo: The other question I have is the additional
duties — advocate and be a resource for public access. I guess my question would be
for "who"? Who would you be an advocate for? Would that be for the Planning
Department? Would that be for the County Council? Who would you be advocating
Y Y g
for?
Ms. Souza: Well we would be...
Mr. Rapozo: It says here — working with the Planning
Department, you do your things. You're also authorized to advocate and be a
resource for public access. I guess I'm trying to figure out — what does that mean?
And again, I understand the County Attorney was generous in expanding your
scope, but I am kind of like a "black and white" guy and I want to make sure — what
is that, what are we authorizing the Commission to do? Is it in fact the original
intent of what this Commission was empowered? And that's all I'm asking. I don't
know who drafted it but I'm sure somebody has a rational justification for what that
means. I don't know what that means. I don't know what that means, honestly.
Ms. Souza: One of the examples that we used in
discussing the wording of this was, perhaps there needs to be an advocate at the
State Legislature regarding public access. And, we get so much input about public
access and open space in areas that should be preserved that in some respects,
people look to us as a sounding board and as possibly someone that can help them.
And so, it's not so much that we're an advocate for the County or the
Administration, I think we're an advocate for improving public access, open space,
and natural,and cultural resources preservation for Kauai. I think that's what we
are the advocates for, not necessarily the County entity.
Mr. Rapozo: Well I'm just reading the...
Ms. Souza: Yes.
Mr. Rapozo: It says — be an advocate for the County of
Kaua`i. So I guess for me, what would be an example of that? Now you're saying,
going over to the Legislature and being an advocate there.
Ms. Souza: Perhaps.
Mr. Rapozo: You know, I can understand that. I don't
know if that's the Commission's role, but I'm just trying to understand what the
additional language is meaning. Feel free to jump in at any time, Mike.
Mr. Dahilig: I think part of the...we can look at the
three (3) sets of amendments in each of the sections as separate buckets or we can
Planning Committee 9 February 8,2012
look at them as being tied with each other. I think a lot of where the proposal in
Section 6(a) comes from is this notion of saying — okay, this Commission puts the
needs and the priority of open space preservation first, and that's their one
mission - to look at ways to encourage developers to open up areas for access,
keeping tabs on other points of legislation that may be coming through the
Legislature and saying the Open Space Commission is in support of this measure
because it helps with this access. Again it's going to be a broader brush for the
Commission to work with as a tool specifically with respect to this notion that open
space is a value that we want to prioritize and this Commission is authorized to
speak on that behalf.
Mr. Rapozo: Okay. And then the last concern is the same
concern I guess Councilmember Yukimura and I believe the Chair as far as
providing tax money, taxpayer money to private landowners may be for profit,
doesn't have to be non-profit. Was your intention, you're not going to pass this today
right? We're going to defer this?
Ms. Nakamura: It depends if we are able to hash it out and
come up with some recommendations, I would like to push it up.
Mr. Rapozo: Okay.
Ms. Nakamura: And if not then we need to take some time.
Mr. Rapozo: I apologize I didn't get a chance to read the
bill before today, but I definitely want to explore that. I'm not comfortable with it
right now, the fact that we would be...
Ms. Nakamura: I think I've heard several concerns about
Sections 6-14.3(c) and subsection (e) where there's reference to a private owner, that
there are some concerns that that language should be deleted.
Mr. Rapozo: Yes. And if I may, just one last question?
Ms. Nakamura: That's fine.
Mr. Rapozo: Are we working on a project currently that
would require this bill to be passed in order to complete? Did we draft this to make
something work is the question. Is there a project out there, something that we're
looking at but we need this change in the bill?
Ms. Souza: I don't think so.
Mr. Dahilig: There's nothing I would say immediate from
what I understand.
Mr. Rapozo: Well that wasn't the question. Is there a
project that we're looking at, whether it's immediate or not, is there something out
there, some "fruit hanging" that would require this change? It's a yes or no, I mean
it's...and I'm not asking you, I'm asking Mike.
Mr. Dahilig: In terms of what the Commission has been
looking at, not off the top of my head in terms of anything.
Planning Committee 10 February 8,2012
Mr. Rapozo: And what about what the Planning
Department is looking at?
Mr. Dahilig: Well, we review the list in terms of what
comes over from the Commission, so based on what that is and given everything
else that we're looking at just from a permit standpoint or anything else that we're
working on, there's nothing of the nature of a conservation easement or those types
of other land tenure or documents that would need to have this change here for
funds that'd be spent out of the fund.
Mr. Rapozo: Okay, then I definitely would support a
deferral at this point.
Ms. Nakamura: Okay. Councilmember Bynum.
Mr. Bynum: Thank you Jean for being here and for being
here from the beginning. I want to start by, I hope I have this right, in
acknowledging Gary Hooser who I believe this was his bill that established...
Ms. Yukimura: It was a Charter Amendment that he...
Mr. Bynum: Yes, that he put on the ballot and that people
voted for. This goes back a ways obviously if the former Councilmember, former
Senator Hooser, that was a long time ago. So I appreciate very much your work and
I do have a number of questions and clarifications. First of all, I support this bill
almost in its entirety, I just want some clarifications because I remember this
history, and I want you to correct me if I get this first part wrong, okay Jean? My
memory is, when this started and the first year the Commission went out to the
community and said — where should we do open space, public access? An
overwhelming response from the community is — we're concerned about access we
used to have that's been denied, and listed a whole number of unfortunately
still...access that once was there and now has been denied. Do I have that right?
Ms. Souza: Well that and some understandings by some
of the members of the community that they thought that the County had secured
some accesses through some zoning changes and what happened to that. So we call
that "unresolved access issues."
Mr. Bynum: Right.
Ms. Souza: We have...
Mr. Bynum: But that was the...initially that was more of
the responses. The community kind of said — well let's not talk about acquiring new
ones when we're losing existing ones. And so, I believe the narrow interpretation
from the past Administration had to do with saying to the Commission — well that's
not your business, you just tell us where we should spend this money, I mean in
shorthand, is that correct?
Ms. Souza: Something like that.
Mr. Bynum: Okay. So, I applaud clarity to the role and I
actually thought it might go even further than this. I am concerned about the
language in (a), Section 6(a), and Mike you just clarified some of my concerns...
Planning Committee 11 February 8,2012
Ms. Yukimura: It's on page 3 right?
Mr. Bynum: On page 3. Because "advocate and be a
resource for public access open space and natural resource preservation" period; it
just has period. Because I can see the Commission saying — if I had a six (6) to two
(2) vote, we said this is the highest priority, or by a unanimous vote we support this
legislation at the Legislature, I would hope the Commission would be monitoring
that. I've seen the work that you've done and Tessie and Beryl and a whole bunch of
other great people over the years who really had the time and energy and the
knowledge and expertise to kind of monitor that, the desire to do it, and we're kind
of kept from doing that. So question, Mike, would be, does this provision as written
allow clearly the Commission to do that kind of advocacy for a bill, advocacy for a
priority for access lost resource, or the term you used, Jean. Because what it says is
preservation planning, and they're not just advocating for planning right? And I
almost wish there was an "and" in there, and maybe there should be to be clear for
future...and you don't have to look back to this meeting and determine legislative
intent. I certainly wanted the Commission to have that freedom and I believe
they've desired it in the past. I think maybe putting an "and" in here would make it
more clear. So, that was a question. So the Commission can advocate for a bill at the
Legislature under this provision, I'd start with that.
Mr. Dahilig: I think that if the Commission were to adopt
some type of, with five (5) members saying — okay we want to support this, then
that's what...then that should be conveyed essentially and I think that sentiment
should be conveyed. So, I guess that would be a yes.
Mr. Bynum: I'm just concerned that some future County
Attorney would say — No, it says that you can advocate for a resource preservation
planning, it doesn't say you can advocate for this bill, it doesn't say you can
advocate for a priority for access denied. I think that if that's the intent, this
language might be able to be made more clear as simply as putting an "and" in
there. That yes you can advocate for resource planning and you can advocate,
period. And then you develop norms for that. Maybe that there's unanimous consent
on the Commission, but if there's a majority, if you did any advocacy you'd state
that majority or that...right?
Mr. Dahilig: And I think where the other benefit to my
Department, specifically aside from the Commission, is when you use the word
resource, a lot of times when we look at creating exactions in our permit conditions
for certain public needs, there really is, other than my in-house staffer, there really
isn't a deliberative body that we can point to that says — okay, maybe we need some
exactions for open space or for public access. And I think, especially in cases when
you're looking at subdivisions or Class IV permits along the shoreline or up mauka,
there really isn't a clearinghouse for us to, as a Department, to look at to say— okay,
here's the applicant that's coming in, what could be needed here to open up this
area for open space and those types of things. So I think in terms of that phrase
"resource," we're also looking at this body of minds to provide us with some
guidance as we develop exactions to say — okay, maybe we need a trail here, or we
need an easement for a bike path here, and those types of things. And so that's, I
think at least from my departmental side, where we say the word "resource," that's
what the Commission could provide us in developing those conditions.
Planning Committee 12 February 8,2012
g rY
Mr. Bynum: Right. And just speaking frankly here, I'm
really pleased to hear that from you as the current Planning Director. But I know
there was a time in the past where the Planning Department was constraining the
things that the Commission would like to have done, right? And so if that's the
intention, and I think it's a good one to say...you know, because I thought there
might be language in this, because this is a bill we've talked about for four (4) or
five (5) years, and then I knew that the Department had brought a consultant on
board that was really talented to help the Commission come up with those things.
And so I've been patient for this bill, but I'm very invested in it, and I want to make
sure if those are those intentions that they're stated clearly. That — yes, you can
future commissioners, you can advocate for a bill, you can advocate for a specific
thing. Or the Department can use you, because that was also under discussion that
certain coastal properties or certain properties that maybe it should be part of the
planning process that a developer appear before this Commission, even if what they
come out with is an advisory opinion because in the long run it will be up to the
Planning staff and the Planning Commission to make those conditions right?
Mr. Dahilig: It would be similar to, in terms of how we
engage the Kaua`i Historic Preservation Commission that it would provide us with
an advisory. But because of the make-up of that Commission, there are people that
are versed in historic architecture, archaeology, etc., etc. Usually what that type of
guidance provides when you bounce a permit that involves areas of cultural
significance or historic resource, I guess significance as well, that having that
sounding board to provide the Department a guide to help craft conditions for these
types of permits really aid in a resource for us. I think when you look at open space,
public access, and preservation, these are values that are clearly adopted by the
County and that we should look at how to integrate these types of measures into
how we develop our permit conditions.
Mr. Bynum: And I appreciate those answers. I'm still not
clear from my reading whether that is clear enough in this current language.
Mr. Dahilig: Okay.
Mr. Bynum: You know assist with implementation of
priority recommendations, I assume that's what you're talking about there. But,
this advocacy part I know from talking to former commissioners, they were really
frustrated, that's why they kind of got there in the first place - listen to the public
about what are their concerns and to become those advocates.
Ms. Nakamura: Any other questions?
Mr. Bynum: Yes.
Ms. Nakamura: Okay.
Mr. Bynum: This isn't a change, but when it says — the
monies in the fund shall...
Ms. Yukimura: Where are Y ou?
Mr. Bynum: On page 1, Section 16-14.1(a), second
sentence I think. The money in the fund shall be utilized for purchasing or
otherwise acquiring lands. I want to make sure that current interpretation of that
Planning Committee 13 February 8,2012
is, if this was access denied and there was some kind of legal proceeding that was
required to try to reclaim that, if necessary, those funds could be used for that kind
of thing as well.
Mr. Dahilig: Maybe it might be an appropriate question
for the County Attorney to answer in respect to that.
Chair Furfaro: I'll give you some history on that later.
Mr. Bynum: Yes, I just want us to get this right because
we waited a long time for it and here it looks good to me. I'm not as concerned about
the private thing, and I think you mentioned it's kind of maybe not common in
Hawai`i, but there are big private landowners on the mainland in particular that
have been very much a preservation kind of situation and it would be in our best
interest to work with those. And I think you said, Mike, that there are other checks
and balances inherent in our system, that if we ever went in that direction that that
would be in place. But I think there are good examples in the Country where that
collaboration between private landowners and government has done a lot for
preservation. I guess my main concern is with...to be as clear for the future that the
Commission is empowered to do the things we just talked about: advocate for bills,
advocate for priorities on access. I also want to ask a County Attorney if we don't
know that this wording, otherwise acquiring lands, it's not just using these funds to
purchase because in the past I've had a dozen meetings with County Attorneys
about the strategy to legally address "access denied." Or for instance if we wanted to
acquire an easement, whether those funds could be used for that.
Ms. Nakamura: Councilmember Bynum can you please
repeat your question to the County Attorney.
Mr. Bynum: Sure. One at a time. The money in this fund
shall be utilized for purchasing or otherwise acquiring lands or property
entitlements for land conservation purposes. That "otherwise acquiring lands" I've
always, and we've had this discussion years ago, meant that if we have a legal claim
to this access that we could use the funds to address that legal claim, not just to
purchase property.
AL CASTILLO, JR., COUNTY ATTORNEY: Al Castillo, County Attorney. I
want to answer that question by saying — yes, but I want to qualify it okay. When
we first sat down with the Open Space Commission with Ms. Souza, with Ian Jung,
and Mike Dahilig, the whole endeavor was precisely
what Councilmember Rapozo
said. If there's "low hanging fruit" out there and we felt the frustration of the Open
Space Commission whereby there are projects out there that they prioritized,
another question is — is the County Attorney's Office going to be restrictive or is the
County Attorney's Office going to try to share and feel in the frustration of being
denied access to areas where we once had access? So the whole endeavor was to say
— okay, let's try to give the Open Space Commission the tools necessary for them to
pursue what they wanted to pursue. Let's give the Open Space Commission not only
the tools but the legal resources, and can we back them up. So basically, that's a
long answer to your question and the answer was "yes," but when Councilmember
Rapozo said "low hanging fruit," I'm not the tallest guy, but I know that even if
there's "low hanging fruit" sometimes you can pull and the fruit comes out or falls
down, but sometimes the "low hanging fruit" even if you try to saw it, it's still stuck
to the tree.
Planning Committee 14 February 8,2012
Mr. Bynum: Yes.
Mr. Castillo: But, in terms of, I don't want make light of
it, but we understand the situation, we share in the frustration and we just want to
help in this endeavor.
Mr. Bynum: Okay, then if I could move...
Ms. Nakamura: Can I clarify your answer then to the
question?
Mr. Castillo: Yes.
Ms. Nakamura: Are you asking, Tim, whether you could use
the funds for legal fees, surveyors, title reports, anything to help solve these issues,
roadblocks, and your response Al is?
Mr. Castillo: My response is that funds are available to
pursue the endeavor of the Open Space Commission in what they're saying here —
yes.
Ms. Nakamura: It can be?
Mr. Castillo: Yes.
Ms. Nakamura: Would it help to make it clearer?
Mr. Castillo: I do suggest, what I do suggest is because I'm
not the attorney that's actually working with the Commission on this, and I'm sorry
that he had to leave, I suggest that...my understanding is that it's going to be
deferred.
Ms. Nakamura: Yes.
Mr. Castillo: And I understand that there...this bill has
some more work to be done, and I do suggest that you have all of the questions so
that we can answer them orderly, so we can come back and get this bill passed.
Ms. Nakamura: Okay. Councilmember Bynum do you have
any other questions?
II' Mr. Bynum: I do. But given what he just said...you heard
my comments about Section (a) and my concern that some future County Attorney
might interpret it more restricted and say — no, you can do reservation...you can
advocate for preservation planning, but you can't advocate for that bill, you can't
advocate for that particular project.
Ms. Nakamura: Councilmember Bynum, I think
Councilmember...Chair Furfaro has some insight on this, and maybe it might be
Ilj able to help clear up some of the questions.
Mr. Bynum: Great, but can I get an answer from the
County Attorney?
Planning Committee 15 February 8,2012
Ms. Nakamura: So why don't you, if you could maybe, we can
come back to you. Why don't you go ahead and finish up your question and then we
can go to Chair Furfaro.
Mr. Bynum: I'm finished with the question, I just want to
hear the answer.
Mr. Dahilig: Before we, just for more information to bring
to the table, the...my department is appropriated money separate from our actual
departmental budget that aid in development of these reports. And so there is a
planner in my department that is not paid out of my specific Planning Department
Budget, they also have funds available for things like surveying, producing the
reports, duplicating, research, and those types of things. So, the money in the fund
usually is just meant just for the actual attainment of land. Money to facilitate the
process are separate and are budgeted for as part of the operating budget.
Mr. Bynum: And I'm aware of that. Councilmember
Furfaro has made really appropriate efforts in the past to share on the Council side,
to make sure that we were supporting this effort in a way that didn't deplete those
funds. If I can, because I had other questions, but I'll wait.
Ms. Nakamura: So just so everybody has a chance to...
Mr. Bynum: Yes. Absolutely.
Ms. Nakamura: Okay. Chair Furfaro.
Council Chair Furfaro: Gentlemen, thank you very much for being
here to answer our questions. I just want to go back on some of the history here.
Mr. Rapozo, Vice Chair Yukimura, and myself were all on the original Council that
implemented this piece. The first piece that I wanted to share with you was an
overwhelming concern that the Planning Department didn't have somebody
dedicated to Open Space Commission. Vice Chair Yukimura and myself introduced
a bill that got you the person that you have now. Subsequently, for the "low hanging
fruit" items that were a very very important topic with previous Chair Asing and
Mr. Rapozo, we basically said in another bill I believe, introduced by Councilwoman
Yukimura and myself, that up to five percent (5%) of the fund could be used for
legal evaluations, for appraisals on the "low hanging fruit," and so forth. And so let
me ask you now, how many appraisals have we done on items that are on the list?
Mr. Dahilig: We've done one (1) so far.
Chair Furfaro: You've done one (1), okay. There
is $81,871.00 available to them to identify "low hanging fruits" to pursue, legal
assistance for the Commission, and/or for an appraisal. Now, the idea of being, if
Planning Committee 16 February 8,2012
this "low hanging fruit" was very high on the radar screen of the Open Space
Commission, that we could then lobby the Administration to try and get some more
money in a bond when we floated a bond, because it was there. All of that is in at
least three (3) visits that I had early on with the Open Space Commission, and
Councilwoman Yukimura and I at the time really fought to make sure we could get
funding for that position, give some leeway to the Commission. But, I think as
Mr. Bynum said, there was some perception by others in the Planning Department
that they needed to focus on just the acquisition portion. That was not the mission
that this Council wanted to see happen. And so, there's obviously documentation to
that effect with two (2) bills introduced by Council Vice Chair Yukimura and myself.
So, it sounds like we're going to defer this thing, but I want to make sure we get all
of our tilapia in line before we go star hook in a river here okay? Those pieces exist
by the work of at least three (3) of us on this current Council. I would strongly
suggest that we go to research that since this item is going to be deferred. And at
the same time I just want to thank Tessie and Jean, thank you for your service. You
were original appointees but let's go back in the Planning Department because
there's a lot of new players on some of those things we did that opened up some of
the parameters and got them somebody to work in the Committee, allowed them to
use some money for legal and appraisals, very important.
Ms. Nakamura: Thank you Chair Furfaro. Councilmember
Kuali`i and then Yukimura.
Mr. Kuali`i: So I have several questions, I'm not a
committee member, I will submit them to you, Chair. The one, and what the Chair
just said kind of clarified some stuff for me, but I'm curious as to, of that five
percent (5%) administrative expenses, which he says is $81,871.00, over time there's
been one (1) appraisal, what did that appraisal cost approximately?
Ms. Souza: It was...
Mr. Kuali`i: Five thousand? One-hundred thousand? You
can be real...
Ms. Nakamura: Maybe they can...
Mr. Dahilig: $800.00.
Ms. Yukimura: No.
Ms. Nakamura: If she cannot remember, we can come back to
answer that.
Mr. Dahilig: We can...
Planning Committee 17 February 8,2012
Ms. Yukimura: It was the Yellow Book appraisal for Hodge,
right?
Mr. Kuali`i: Thank you for your work, Jean.
Ms. Nakamura: Councilmember Yukimura.
Ms. Yukimura: Thank you. I just want to follow-up on Chair
Furfaro's history which was very useful especially because Mike you're in a
leadership position. I know you've been doing a lot of clean-up and scoping and
really helping to reorganize the Planning Department. But with respect to the
frustration and the slowness of acquisition, and resolving of many of these
unresolved public access and acquisition goals, and regarding Councilmember
Rapozo's concerns, and with regard to this clarification of purpose that you
might...that the Commission might now assist the Planning Department, what is
really needed in the Administration, and Planning could take a leadership role in
this, is setting up both the role of the Open Space Planner working with the
attorney to actually craft deals. That is, talk to, select your two (2) top priorities
based on the Commission and the Council's actions, and go research them, talk to
the landowners, find out what the obstacles are. I mean, it is the role that the Land
Trust has done, and you might also say — hey Land Trust, can you work with us on
these and we're going to work on some internally. And you'll find that it will begin
to move because that's the missing link - having somebody actually focus in on the
problem area and figure out what the obstacles are, what the needs are, and go and
get those resources whether it's funding or legal clarification or legal assertion of
rights or whatever.
Mr. Dahilig: And I would agree in the sense that when
you look at what the Commission is proposing in the appropriation, ultimately the
Commission is only going to recommend those acquisitions that fall within the
parameters of what the fund can be spent for. I think one (1) of the difficulties that
they found is that the fund's size may not necessarily be able to rapidly acquire the
types of open space access or preservation that they would like to see and at that
advanced pace. And so, the Commission has had people come and speak to them
about conservation easements, other types of land tenure as a means of maybe
accomplishing the goal, but not necessarily as a full acquisition.
Ms. Yukimura: And th
o er sources of fundin g so you can mix
and match like we did in the hodge property. And so the County would be making
applications for land and water conservation funds or the legacy lands fund, etc.
Planning Committee 18 February 8,2012
Mr. Dahilig: And certainly the pooling of resources in
preservation has become a team effort now. 501C3's and GO's, as well as County,
really need to come together and say okay, I'll throw in the pot for this.
Ms. Yukimura: Exactly.Right.
Mr. Dahilig: I think part of the concern was that the
funds maybe could not be spent in that manner, and so that's what part of the
clarification was in saying the Commission can be, as part of the revised duties, it
can be a clearinghouse and a catalyst for maybe trying to tie people together and
say — okay, here we can try to recommend offering half a million into the pot, can
you put a half million in, and can you give some gratis. That, I think, really is where
you've seen this fledging Commission want to see its role refined and more tools
given so that they can facilitate some of these deals, especially given light of the fact
that we do have a full-time planner. Nani's been doing a very excellent job for us
and trying to push forward and serve the Commission, and so she definitely could
see her role expanded in working with the attorney's office on trying to create those
types of deals.
Ms. Yukimura: Yes. I hear you really understand it and the
thing is the converging of resources and focus project based. You just take one (1)
project at a time and really work on it between your Open Space Planner, your
attorney, the Council, the Mayor, whatever resources you need, applications for
funding, etc. So my question is, and I do support a deferral, and I appreciate all of
the different thoughts that have come up today...coming back to page 4 on the
private owner issue. One of the offsets, I think it was even part of the thinking here,
in paragraph (d), it shows that the acquisition or the owning and holding of the
property is limited to government entity or non-profit, it doesn't include private
owner. So I see this as a kind of offset or protection against the other two
paragraphs. But I am concerned that it says "may" rather than "shall."
Mr. Rapozo: It doesn't matter.
Ms. Yukimura: I knew Councilmember Rapozo was going to
bring that up, but in fact, we know the way to make "shall" legally binding, we do
know that based on how we word it and the context of it. So that's another
suggestion, I want us to look at that in terms of how we can really make everything
integrated and work together, these three (3) different paragraphs, however we
choose that.
Ms. Souza: And we certainly defer to you because some
of us haven't followed that closely.
Planning Committee 19 February 8,2012
Ms. Yukimura: Yes. Yes.
Ms. Souza: So we defer to you on that.
Ms. Yukimura: Oh don't worry our...between the Council
and attorneys we're experts at it now. And then, I just wanted to ask with respect to
Councilmember Rapozo's concerns about biennial, in fact, the changes between one
(1) year to another year have not been very great right? I mean in terms of your
priorities?
Ms. Souza: Because we...yes, that's right. The reason is
because we're pretty steady. We're not kind of all over the place. We are looking for
consistency and when we recommend something we're usually really serious about
it. So we're not changing the five (5) this year, it's totally different from five (5) last
year, that's not the case.
Ms. Yukimura: So in a sense this annual work is repetitive. I
mean, it's not bringing you to very different conclusions. And that's why having it
every other year would work because there's not a whole lot of work to...new work
to do in reordering priorities. It's actually what you've identified as making those
priorities reality.
Ms. Souza: Well you know, the actions of the
Commission could change. But, from when we've been on it, Tessie and myself, I can
just speak to that because it may change.
Ms. Yukimura: Well yes, but also, until you resolve some of
these it won't change. They'll keep coming back. You want to be able to check them
off the list and then you'll have new priorities to work on. But the community is not
going to say — a year has passed and forget that, or forget that one, we'll go to this
one, unless...
Ms. Nakamura: Do you have any other questions?
Ms. Yukimura: Unless of course it's something has happened
that makes one (1) lower priority more possible, a new owner or something, then the
"low hanging fruit" kind of changes. Okay, thank you very much.
Ms. Nakamura: I have a few questions. Since we're cleaning
up this bill, on page 3 where we talk about the initial terms of appointments, would
you have any problems deleting that section?
Mr. Dahilig: I'm sorry Councilmember. Subsection 4(d)?
ALIVIIIIIIIMIW
Planning Committee 20 February 8,2012
Ms. Nakamura: Four (a) through (e).
Mr. Dahilig: Four (a) through (e). I guess because the
Commission is running already and this is for a housekeeping measure, I wouldn't
see any objection on our end.
Ms. Nakamura: Okay. Thank you. Have any unresolved
access issues, they were called "`opala issues" earlier, have any of them been
addressed over the past six (6) years?
Ms. Souza: Give me permission to be frank. The
unresolved access issues were mentioned by the Commission in its first report
in 2005 and has been a source of significant frustration for all of the Commissions
over the years. The Commission was told at one (1) point that that was not what our
function was, that we were not to really address those things, but of course we felt
that you need to know about those before you plunk in new money to acquire other
accesses. The Planning Department did commit to you to submit a report, I believe,
was it last year? It was due last year to you about the unresolved issues; as far as I
know, that has not been submitted, so it's in the Planning Department's court right
now. We continue to be concerned about it, and one of the sites mentioned in the
draft report soon to be submitted to you, does refer to one (1) of those unresolved
properties on the north shore. So, I think we all want to see movement on that, and
from what I heard from Mike, I think he's committed to try to address some of that.
Ms. Nakamura: You want to say anythin g Mike?
Mr. Dahilig: Well there are definitely areas that we can
do better on. The role of the fledgling Commission with respect to its interface with
our Department, I've seen it from an attorney's side when I was serving as the
Commission's attorney, but understanding operationally how this fits in has been
an evolving process. And so, I think a lot of the issues that they brought forward
with respect to specific enforcement areas or these types of things that our
Department from a standpoint, and I probably know exactly which one (1) she is
referring to, and it's something that we are working on with the attorney's office on
doing the proper, going through the proper avenues to go through that acquisition.
We can always do a better job in trying to clean-up those issues.
Ms. Nakamura: Another question has to do with this, on
page 4, the very top of Sub Section (d), "the five percent (5%) of this fund shall be
used for administrative expenses." How have you defined, as a Department,
"administrative expenses" and what has the five percent (5%) been used for?
Mr. Dahilig: Off the top of my head, I probably...
Planning Committee 21 February 8,2012
Chair Furfaro: I would like to encourage you to get a copy of
the bill since JoAnn and I introduced it. I just would suggest that.
Mr. Dahilig: Councilmember, off the top of my head I
could only speak in generalities, but maybe because the bill is being deferred what
would be appropriate is that we take our budget line items that we usually do every
year and present them to the Council.
Ms. Nakamura: Okay. Thank you. And just to follow-up on
Councilmember Yukimura's point, resolving these public access issues is very multi-
disciplinary. It, as you know, requires a lot of different divisions within the County
to be talking and working together to move and address these issues. I guess I'm not
clear whether, does it make sense to be doing it in-house, or to be outsourcing some
of this work, and what's the most effective use of the funds?
Mr. Dahilig: I would say that definitely having one (1)
staff planner dedicated to this work is critical for the mission. Beyond that, how the
rest of the funds are used with respect to hiring consultants or appraisals or these
types of things, to be quite honest, we haven't taken a step back and really explored
other roles for those funds.
Ms. Nakamura: And I really think as the point agent
Department that you really need a project manager type person who is either
working with the in-house personnel or specialized outside source consultants, but
it's a real project management focus to address some of these outstanding issues.
Anyway, it just seems implementation is kind of critical at this stage. I think that's
about it for now, we've got a lot of...I'm going to turn it back to Councilmember
Bynum.
Ms. Souza: I have...
Ms. Nakamura: Did you want to respond to my comments?
Ms. Souza: I have some reaction to some of these
statements that were made or suggestions made, would you like those now? Okay,
so starting on page 1, Section 6 - 14.1 Purpose, (a) refers to the size of the fund. The
fund is created by a minimum of one-half (1/2) of one percent (1%) of the certified
real property tax revenues. We specifically did not take action to request that this
be upped, we feel that the County Council has the expertise to know what the
bigger budget situation is, but we did want to express frustration at the size of the
fund compared to what it takes to acquire property here on Kaua`i. So, just putting
that out there. At one (1) point we talked about two (2) but couldn't get enough
votes for that, and I was actually the dissenting vote because we were going through
the whole County furlough system. I mean the furloughs. I felt that you County
Planning Committee 22 February 8,2012
Council knew better than the Commission did about how much it should be, but
many of the other Commissioners, short of a quorum...the votes needed, were
actually looking at a two percent (2%). Okay, yes. On page 3, Section 6(a) which is
what Councilmember Bynum was addressing, this is just a personal opinion
because the Commission hasn't taken action on this; but perhaps the period could
come after the word preservation...or just preservation, period, perhaps? Related to
Councilmember Rapozo's sensitivities about including private landowners, I'm
confirming that there are no active projects that we're working on in which this
wording is dependent on. But having lived on Oahu, I have seen conservation
easements that have been owned by private entities not non-profits. From our
experience here on Kaua`i, there is so much that needs to be done that we need to
look at a number of different ways that we can effectuate these acquisitions. And so,
we were just trying to be comprehensive and that we felt that there were sufficient
safeguards along the way. But, it takes a lot of people with a lot of different tools
and a lot of different ways to get things done that we wanted to bring to bear to
make it better for the people of Kaua`i. So, it was out of that desperation to try to
get more things done that we wanted to be inclusive. Thank you.
Ms. Nakamura: Councilmember Bynum.
Mr. Bynum: I really appreciate this discussion and again
I appreciate the responses from our current County Attorney and our current
Planning Director that I think are really right on track. I know I'm being redundant
but that hasn't always been the history and without mentioning specific projects
because it will open a whole new can of worms. This access denied issue I've been
frustrated on the Council side where we've had extensive executive sessions and I
wanted to bring this before the public, I wanted to do a specific action plan and
what I basically was told was — well, no you can't discuss that because we discussed
it in executive session and you got to wait to change this bill to bring about this
kind of collaboration that we've been talking about. So I've been really patient along
with the Commission and everybody else and that's why I think it's really important
that this bill, there is the efforts by individual Councilmembers, by the Commission,
that have just been thwarted and those things we considered...I loved actually
Mr. Castillo's analogy, it's like — this should be easy, and it's like — well no, because
of this and we made this mistake fifteen (15) years ago. And we've actually had
lawsuits that we didn't prevail and then had big sessions about okay what's "plan b"
and "plan b" didn't happen for five (5) years. And so, I just want to make sure we get
it right and I see you nodding Jean so this is a question, is your perception the same
as mine on this stuff?
Ms. Souza: It's been frustrating I guess is the best way I
can say it.
Planning Committee 23 February 8,2012
Mr. Bynum: No, so now that this bill is here we all...and
we got really talented people. I believe the current planner you have is well
regarded by the Commission and that wasn't always the case either right?
Ms. Nakamura: Do you have any question?
Mr. Bynum: Yes, that was a question and she answered
it.
Ms. Nakamura: Okay. Alright. Okay, Councilmember Rapozo
and then Councilmember Yukimura.
Mr. Rapozo: When we put together packets to the
Legislature to support a bill, we always attach a justification sheet. Is there
something that can help me understand the reasons? I know we went through a lot
of discussion today, but I'm still unclear. Maybe if you can just, Mike, if you can just
put together something of why you believe we need those sections included.
Mr. Dahilig: Sure thing, we can craft a White Paper for
you too.
Mr. Rapozo: Nothing really really formal, don't need to be
a white paper level, but just something where I can, for the non-planning type, that
I can more easily understand the real need for adding that type. It seems like we
could probably do those conservation easements without that in the section, I don't
think we're prohibited from doing that when we purchase a property. I mean I think
we'd still do that. But anyway that's not for discussion here, I just basically, just let
me know why it's important to have the language in there. Jean, thank you for your
service, I've seen her in action at the Salt Pond, she's the one you need out there.
Thanks Jean.
Ms. Nakamura: Councilmember Yukimura.
Ms. Yukimura: Yes. My question is for the County Attorney.
The question is, if we were to increase the amount set aside in paragraph (a) on
page 1 from one-half (1/2) of one percent (1%) to two percent (2%) or three percent
(3%) or whatever, can we do it in this bill? Because the purpose doesn't say that,
and although the title is very broad, or do we need to go back to public hearing and
we can keep this bill, or do we have to introduce a new bill?
Mr. Castillo: Well, I don't know that answer, but I think
Mike Dahilig does.
Planning Committee 24 February 8,2012
Ms. Yukimura: You don't know the answer to that...I'm
sorry...
Mr. Dahilig: I think probably what would be appropriate
is, and I don't have a copy of the Charter in front of me, and this is an
implementation of that Charter provision.
Ms. Yukimura: Well, the Charter says half percent (0.50%)
minimum, it sets no maximum. My question is not about what's allowed in the
Charter, it's about process if we were to amend this. Can we amend this bill?
Mr. Castillo: Then I think Councilmember Yukimura, I
think that's one of questions during the deferral that we can answer on whether or
not it's constitutionally permissible under our Charter.
Ms. Yukimura: Actually, it may be a Sunshine issue or a
drafting, bill drafting issue.
Mr. Castillo: Yes, yes.
Ms. Yukimura: Okay.
Mr. Castillo: I mean if there's, because the form of the
question is going to be, if the Council contemplated changing the percentage
amount, can we do it, how can we do it, and we will be able to answer that question.
Ms. Yukimura: Very good. Thank you.
Ms. Nakamura: Which brings me to a suggestion that I asked
the committee members, anyone with a question, can you document the question
and send it to me by Friday so that we can get the questions over to the County
Attorneys or Planning Department in one (1) correspondence. So Friday?
Mr. Rapozo: The only thing is if in fact it requires a
different bill, and I believe it does because it is a substantial change, and I think we
didn't sunshine it. It's from authorizing the Commission to do one (1) thing, but now
we're saying we're going to move real property tax money. I believe it's a substantial
change that would require a new bill. So if that is the case, then I suggest let's seek
that first, because if that is the case and you need to introduce a new bill, we can
just receive this bill at the next...rather than going through this whole thing again.
Ms. Nakamura: Councilmember Yukimura.
Planning Committee 25 February 8,2012
Ms. Yukimura: Yes. No, we would want to pass this. I mean,
if we can work out all the other language we would pass this and then introduce a
new bill so that we won't delay the changes here, but we could add on, with a new
bill, the increase in percentage.
Mr. Rapozo: I think we heard them, there was no
immediate need to move. You might as well put it all in one (1) new bill. That's just
my opinion, but you're the Chair.
Ms. Nakamura: Okay.
Ms. Yukimura: Thank you.
Ms. Nakamura: We'll think about that. I think another useful
exercise might be to look at, we have five (5) or six (6) commission reports, we have
recommendations each year of what the priorities are, and to take a look at the
difference in those priorities over the past six (6) years. I personally believe that
one (1), in two (2) years it's not going to make that much of a difference. I would
rather see the Commission spend their time and effort problem solving these issues.
I would be comfortable with the longer term, but with the option of adding priorities
should opportunities arise. So I would like to open that up for discussion also.
Ms. Yukimura: I think that's a good idea, Chair, and
perhaps the Open Space Planner can send us electronically all the past year reports
so that we can...
Ms. Nakamura: Just priority recommendations would be
helpful.
Ms. Yukimura: Okay. And also, if you're suggesting that
instead of every two (2) years maybe we do it every three (3) years to have priorities
set, we could still have annual reports about the work of the Commission over that
year and additional priorities if that's a thing that comes up unexpectedly, but at a
three (3) year priority setting or even a five (5) year priority setting. But that's
something that we would defer to the Commission in terms of what the span of time
would be. I think we are all focused on getting things done to accomplish the
purposes of the Open Space law and fund. Thank you.
Ms. Nakamura: Any further comments?
Mr. Dahilig: What we'll do, Councilmember, is we'll
actually take a look at skimming the reports, we'll be providing a matrix rather
than the full reports if that would be better for the Council to review.
Planning Committee 26 February 8,2012
Ms. Nakamura: That'd be great.
Ms. Souza: If you wanted a quick look at that, it's
already in the Appendix of the last report, the 2010 report, there is a list of
recommendations from all of the past reports.
Ms. Nakamura: Thank you. Chair Furfaro.
Council Chair Furfaro: Yes, we know where to look. I also want to
say to your Open Space Commission Planner, next week on the Council agenda is
the most recent treasury report, have your people scan it over there so that they can
see there is $1,591,814.45 in that account with about $79,000.00 that can be used
for legal appraisals, etc., etc., and on July 1 we will anticipate, with about $104
million intake for property taxes, by July 1 that fund will add another $555,000.00.
So, I would like someone to make sure that your planner has an opportunity to scan
the quarterly treasury reports because now in our plan that became a consent item
where we just look on and anybody in the public want to testify and we accept it;
that is on the February 15 Council agenda as it is as a treasury report. And I'll ask
Dickie to pass this number down to you if you didn't write it down fast enough.
Mr. Bynum: I was hoping we could call the meeting back
to order and have some discussion.
Ms. Nakamura: Oh, okay, that's fine. Okay why don't we call
the meeting back to order. Thank you Jean.
Ms. Yukimura: Is it okay if we take public testimony?
Ms. Nakamura: That's a good point too. Is there anyone from
the public who would like to testify on this matter? Seeing no one we'll call the
meeting back to order.
There being no objections, the meeting was called back to order.
Ms. Nakamura: Councilmembers, discussion?
Councilmember Bynum.
Mr. Bynum: I'm just very happy that this bill is here and
I think we had a good discussion today. I think we all talked about the frustration
that the Commission has had, that Councilmembers have had. I know in the past it
was almost, and I'm just going to say this because there's almost a hostility towards
the Commission — oh those guys they want to do all of this stuff, and I didn't
understand it because it's like, but that's all good stuff and you guys were taking
Planning Committee 27 February 8,2012
the lead initially from the community. I also recall when the Administration said oh
we're going to buy computers with these funds, and I think Councilmember Furfaro
said no you're not, we're going to preserve these funds for actually acquisition and
the Council saw that that didn't happen. So there's a lot of support and energy. I
didn't know if the issue would come up about the one-half(1/2) of one percent (1%),
thanks Jean for bringing it up. I had written a note down here that I was...well
what about this? So we're going to ask those question, that's really good. It might be
a separate bill. I think some of this clarification of this language and making it clear
that the Commission has a greater role. My only concern is that we communicate
that in the legislation. But right now we have a Planning Department and a County
Attorney who are on board, but that hasn't always been the case, and it may not
always be the case in the future. And so, if we're going to expand the role of the
Commission, which is a great thing, let's try to get it right this time and make this
language clean. Even Councilmember Nakamura said there's a whole section here
that doesn't have to be clogging up laws. Thank you.
Ms. Nakamura: Alright. Chair Furfaro.
Council Chair Furfaro: Yes. Thank you for letting me revisit some of
the items that I know are in place. And I certainly want to remind the
commissioners, you're a servant of the people about public space. You're not a
servant to the Planning Department, you're not a servant to the Administration,
and you're certainly not a servant to this Council on what you want to do. That is
why the legislation that I referred- to that was introduced by Councilwoman
Yukimura and myself is in place. I'd strongly encourage you to review that. I also
want to restate what I stated in testimony there — if you appraise a piece of
property that is worth us pursuing, don't forget, we can also attempt...attempt to
put it in our bond float because land has value forever. And that becomes a very
important asset for the people of Kaua`i and we can certainly look at borrowing to
acquire some of these...thank you very much for your new ideas. I voiced my
opinion on some of them but thank you very much for your service, you and Tessie.
Thank you chairwoman.
Ms. Nakamura: Anyone else?
Ms. Yukimura: Just two (2) sentences to say thank you to
the Charter Commission members, the ones who started out, and also to all the
members for really excellent work and continuing recommendations to send us in
the right direction.
Ms. Nakamura: Any other comments? Okay, I'll entertain a
motion defer.
Planning Committee 28 February 8,2012
Upon motion duly made by Councilmember Yukimura, seconded by
Councilmember Bynum, and unanimously carried, Bill No. 2423 was
deferred.
There being no further business, the meeting was adjourned at 6:02 p.m.
Respectfully submitted,
Ihilani C.J. Laureta
Secretary
APPROVED at the Committee Meeting held on April 4, 2012:
NADINE K. NAKAMURA
CHAIR, PLANNING COMMITTEE