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HomeMy WebLinkAbout2011-11-10 Open Space Commission Minutes COUNTY OF KAUAI PUBLIC ACCESS, OPEN SPACE, & NATURAL RESOURCES PRESERVATION FUND COMMISSION Liliu'e Civic Center, Pi'ikoi Building, Conference Room B MINUTES A regular meeting of the County of Kauai, Public Access, Open Space, & Natural Resources Preservation Fund Commission of the County of Kaua'i was held on November 10, 2011, in the Llhu'e Civic Center, Pi'ikoi Building Conference Room B. The following Commissioners were present: Joseph Figaroa, Chairperson, Maurice Nakahara, Vice-chairperson, Nathaniel Childs, Tessie Kinnaman, and Johanna Ventura. The following Commissioners were absent: Linda Dela Cruz, Jean Souza, and (2) vacancies. The following staff members were present: Nani Sadora, Duke Nakamatsu and Deputy County Attorney Ian Jung. CALL TO ORDER Chair Figaroa called the meeting to order at 1:00 p.m. APPROVAL OF AGENDA MOTION: It was moved by Tessie Kinnaman and seconded by Nathaniel Childs to approve the agenda. All were in favor by unanimous roll call vote — motion passed. APPROVAL OF MEETING MINUTES — Regular meeting minutes of 10/27/11. The 10/27/11 meeting minutes were not available for distribution. I ANNOUNCEMENTS Ms. Sadora announced that, as recommended by the Commission, the staff will be attending the facilitative skills for collaborative leaders workshop on Monday and Tuesday. Deputy County Attorney Jung announced that he will be attending the Important Ag Lands meeting at 1:30 p.m. He requested taking items VI C, D, and I up first. RECEIPT OF ITEMS FOR THE RECORD The Commission received a faxed survey including testimony regarding the Nukumoi Surf Shop to be included in the public input process. UNFINISHED BUSINESS Discussion with the County Attorney pertaining to the legal issues involved with recommending acquisition of real property to the County Council as part of the annual report. Executive Session: Pursuant to Hawai'i Revised Statutes Sections 92-4 and 92- 5(a)(4), the purpose of this executive session is to consult with the County's legal counsel on questions and issues relating to the above item. This consultation involves consideration of the Commission's powers, duties, privileges, immunities, and/or liabilities with regard to this agenda item. Deputy County Attorney Jung stated that he spoke with Deputy County Attorney Trask regarding the issue of whether or not the Open Space funds can be used for infrastructure versus acquisition of land. He stated that he and Deputy County Attorney Trask seem to disagree on the issue. He stated that Section 6-14.1 states that the monies in this fund shall be used for purchasing or otherwise acquiring lands or property entitlements for land conservation purposes in the County of Kaua'i. He noted that there are other types of fund sources such as CIP projects or bond revenue projects to deal with infrastructural requirements for other types of County parks or facilities. He stated that if the Commission would like a formal opinion the County Attorney can make the final determination. Chair Figaroa clarified that it was Deputy County Attorney Jung's perspective that the fund would not be allowed for infrastructure. Deputy County Attorney Jung stated that upgrades to a sewer facility in a park would be listed as a CIP project that moves through a cycle. He stated that if the EPA requires an upgrade to the sewer system, it has to be put on a CIP slip. He recommended that 2 the Commission focus on using the Open Space funds for land acquisition versus infrastructure to preserve an adjacent property. Commissioner Ventura stated that she recalled that a long term lease would probably not be a recommended use of the fund because there is no long term protection associated with a lease. She stated that during the proposed Piwai meeting, a question was asked on whether the fund could be used to enter into a lease as a temporary measure so that the property could be encumbered and there could be arrangements set up to move toward eventual acquisition. She stated that it was a little different than what was discussed previously. She stated that Commissioner Souza recalled that the fund could not be used to acquire a lease. Deputy County Attorney Jung stated that they interpreted entitlements to possibly include leases, but he felt the idea of the fund is to acquire the property for the long term. He stated that it would be up to the policy makers whether or not they want to engage in a lease. He noted that the amount would be low, but the problem would be liability if there were a breech in the lease. He stated that as a policy, they want the property in the County so we can control it with liability issues taken care of. Commissioner Ventura clarified that it is a possibility that the community may want to advocate for that option at the Council, but not necessarily what the Commission would want to put forth as a recommendation. Deputy County Attorney Jung clarified that he was not saying that those are his concerns, but concerns that may be raised. Commissioner Ventura thanked Deputy County Attorney Jung. Review and discussion on draft dossiers for Council's consideration on recommended sites for acquisition. Access to Kukui`ula Bay through the former Hoban property (previously listed as Former Hoban Property) Deputy County Attorney Jung stated that he spoke with Lindsay Crawford of Kukui'ula and the funds are available, but the problem is that the Zoning Amendment specifies that if the funds were not used within a specified time, which has already lapsed, the money would automatically go to the Parks & Recreation Department for Po'ipu Beach Park improvements. He stated that the Director of Parks was initially open to the County utilizing the funds for the Hoban access, but he now has a new idea for those funds with regard to possibly Kaneiolouma. Commissioner Ventura noted that this site was on the list of recommendations several times in the past and the Commission has put forth the recommendation to use the Kukui'ula's fund balance before it lapsed. She stated that it would have required the 3 County to move toward condemnation of the easement but the Council did not act on that recommendation. She questioned if the Commission was seeking clarification for the purposes of finalizing the language on the dossier. Commissioner Nakahara stated that that the Commission also wanted to determine if the money was still available. Ms. Sadora stated that they also wanted to determine if the land owner was willing. Deputy County Attorney Jung stated that the goal would be to have a willing land owner who is going to sell the property. He stated that if the land owner is opposed then there is the ability for condemnation or eminent domain. He stated that if the Commission recommends it and the Council approves, that would be an option. Chair Figaroa clarified that the reason the funds were lost was because Council didn't implement it. Deputy County Attorney Jung clarified that the fund is still going to the County. Commissioner Ventura stated that the fund was actually designated for acquisition or park expansion, and if it wasn't used for acquisition then it would go to improvements to Po'ipu Beach Park. She noted that the funds are now under the Parks Department's discretion. Chair Figaroa questioned who lapsed in the implementation. Commissioner Ventura stated that her understanding was that the Commission put forth the recommendation to the Council and the Council would have to initiate a decision for eminent domain. She stated that they didn't ask the Council to specifically do that one action, but it was included in the list of recommendations. She stated that action was not taken within that time period on any of those recommendations which included the idea for eminent domain. She stated that it wasn't that they necessarily missed the deadline, but they probably weren't ready to take action on the recommendations or not interested in doing so. Deputy County Attorney Jung stated that under Condition 15, pertaining to the Kukui'ula project, a contribution of not more than $500,000 shall be made by the applicant for the following priorities: 1) Dedication of lands for the establishment of an easement along the development of a public beach parking lot consisting of 20 parking stalls in the Boyden's Pond area. The total dollar value for Boyden's Pond improvements which may be credited to the EIA fee shall not exceed $140,000. Commissioner Ventura noted that was accomplished and it withdrew funds. Commissioner Kinnaman questioned if it included the EIA fees. 4 Deputy County Attorney stated that the EIA fees are fees that originate out of the subdivision ordinance that are required to be paid as an environmental impact assessment. He noted that the remainder is $238,000. He stated that the other priorities were: 2) Acquisition by the County of at least one beach access done in consultation with the Koloa Community Association and the Open Space Commission, 3) Po'ipu Beach Park expansion, or 4) Po'ipu Beach Park improvements. He noted that in addition to the parking lot the funds could be used for 2, 3 or 4. He stated that it is qualified that if options 2 or 3 were not accomplished within 3 years from the date of enactment of the Ordinance, the funds shall be used for Po'ipu Beach Park improvements. He stated that the funding, pursuant to the Ordinance, is going to Po'ipu Beach Park improvements. He stated that the theory was if Parks would waive their requirement, they could ask to utilize the funds for access, but he would still have to work with the Parks Director. Chair Figaora questioned the ratio of that happening. Deputy County Attorney Jung stated that it is hard to say. Commissioner Ventura noted that it was a potential second pot of money but it doesn't preclude the Commission from making a recommendation for action using the Open Space fund. Chair Figaroa stated that it is great to make a recommendation, but implementation is what goes off the deep end. Commissioner Ventura stated that the Commission's take away was that the Council was probably more comfortable with the use of County funds for acquisition where there is a willing seller and available funds. She noted that he land owner was very opposed to the acquisition of the easement, even though it is what the Koloa Community Association wanted. She stated that the potential for controversy or a contentious situation may not be something that the policy makers are comfortable advocating for. Chair Figaroa stated that it was educational for him to know the history. He stated that when they go to the Council to recommend, they can also advocate at the same time. Update on proposed amendments to Ordinance 812. Ms. Sadora stated that the amendments were signed and approved by the Administration and transmitted to Council yesterday. She was not sure if Council would have an update by next week's meeting. Deputy County Attorney Jung stated that when bills go before the Council, the committee chair is usually briefed on the issues. He recommended that two Commissioners attend with staff. 5 Commissioner Ventura noted that Councilwoman Nakamura worked on the Ordinance amendments with the Commission doing facilitative planning prior to her election. She felt that her participation in the discussion would be significant because she understands the amendments. Deputy County Attorney Jung stated that it would be up to her whether or not she wants to recuse herself. Status of filling of vacant Commissioner positions. Ms. Sadora stated that as of the next meeting, the Commission will have eight seated members. She stated that the Mayor's office appointed Mr. John Lydgate, but his swearing-in could not be arranged in time for this meeting. Commissioner Ventura stated that the prior decision making process for the ninth member was distributed to the Commission. Update and discussion of the Commission's work plan/timeline of events and activities through 2011, to include future Commission education topics and scope and timing of facilitated review of the Commission's vision, goals, direction, priorities, processes and proposals. Ms. Sadora questioned where the Commission would like to go with this agenda item. She noted that the recent focus has been more on the report. Commissioner Ventura questioned the tentative calendar through the end of the year. She stated that the agenda for the next meeting has already been posted, but suggested that the Commission may want to update this agenda item for the following meeting. She noted that with the submittal of the amendments to Ordinance 812, the scope and timing of facilitated review is done. Motion: It was moved by Johanna Ventura and seconded by Nathaniel Childs to add agenda item VIB to the December 8 meeting and to revise the paragraph to: "Update and discussion of the Commission's work plan/timeline of events and activities through 2012 to include future Commission education topics." All were in favor by unanimous roll call vote — motion passed. Commissioner Ventura noted that it will probably have to be listed as a new agenda item since the language is being changed. 6 Update and discussion of the 2011 public input process pursuant to Ordinance No. 812 for developing an annual list of priority projects to be reported (2011 Report) to the Kaua'i County Council and the Mayor. Commissioner Ventura questioned if staff had prepared a summary report about survey participation and attendance at the meetings. Ms. Sadora stated that the statistics are not broken down, but there were 27 online surveys. She noted that numbers 20-27 were oppositions of particular sites based on feedback from the community meetings. She stated that there were no paper surveys turned in from any of the community meetings. She stated that for the Piwai community meeting, the attendees requested that the sign in sheet be submitted as their petition. Commissioner Ventura stated that everyone in the room when asked if the Piwai Omao site should be put forth as a recommendation raised their hand in support. She stated that she also asked if anyone had any other ideas about recommendations and nobody raised their hands. She stated that it was a very friendly meeting so there was no tension that constrained anyone. She stated that when they debriefed at the last meeting, she noted that Commissioner Souza did not want to share the public sentiment until after the input period, but discussed the meeting structure and dynamics. She stated that it might be interesting to hear about the content of that meeting. Chair Figaroa stated that he was also in attendance at the Salt Pond meeting. He noted that the public was venting their frustration and didn't understand why the park should be expanded when the current problems can't be addressed. He stated that the downfalls from maintenance were being vented on the Commission. He stated that he felt that the public was uneducated about what the Commission was talking about. He agreed that if it were held in a better environment, the responses may have been different from a beach type environment. He stated that the Commission gave it a try. He stated that for Po'ipu the public was mostly in agreement with the three sites except for one person opposing the Nukumoi site. He thought that the Commission wanted to impose eminent domain rather than purchase or come to an agreement with the land owner. Commissioner Kinnaman stated that he was one of the owners of the Nukumoi parcel. Ms. Sadora stated that he was concerned with the Commission making a recommendation that would affect a business. Commissioner Ventura asked for clarification whether he was with the surf shop or if he was a land owner. Commissioner Kinnaman stated that he is a son of one of the heirs to the property. Commissioner Ventura stated that she was under that impression from the last meeting that he was with the store. 7 Ms. Sadora noted that the manager from the store was also at the meeting. Commissioner Ventura stated that her understanding was that there was a positive or optimistic relationship with the land owners. She stated that in light of the conversation regarding understanding the dynamics with the land owner, it might be worth discussing it with the Deputy County Attorney. She questioned if the land owner understood that this was not a suggestion for eminent domain but would theoretically involve a willing transaction or purchase. Ms. Sadora stated that he may not have been involved with ongoing conversations with the hui. She stated that according to Mr. Rupert Rowe, the hui is communicating with the land owners. Commissioner Ventura stated that there was overwhelming and unified support at the Piwai meeting. Ms. Sadora stated that the motor cross groups have recruited more people to become unified as a result of the meeting. Commissioner Ventura stated that most of the attendees also walked in with a lack of understanding about the process and thought that the Commission was the decision makers. She stated that by the end of the meeting a number of attendees understood that if they wanted to see it happen, they needed to be the ones to push it forward. She stated that because there was recording capability in the meeting room, staff was able to record minutes. She requested continuing the conversation at the next meeting after reviewing the minutes. She stated that regardless of the survey results, there were 80 members of the community who are like minded and intending to push strategies forward for this recommendation as well as look for other sources of funding. Chair Figaroa stated that he also liked the idea of a park type plan so that the area could be used for motor cross clubs for now, and a recreational area as it develops. Commissioner Nakahara stated that the group suggested it could be used as a cultural center. Commissioner Ventura stated that it would tie in to Commissioner Souza's suggestion at the last meeting that the Commission could put forth a recommendation that doesn't specify a use. She stated that one of the attendees at the meeting suggested that the area could be used as a park, cultural center, and access to mauka. She stated that she asked the audience if they would all support the area being used as more than motor cross and they were all supportive. She noted that the Commission has feedback from the meetings, hard copies of the sign-in sheet demonstrating support for one recommendation, and they have the survey results. She suggested that it would be useful to discuss where the Commission is in their decision making and how they plan to use the information to get to the final list. She stated that although survey responses 8 were minimal, there have been strong sentiments about last year's recommendation for Salt Pond and strong statements of support for last year's Piwai. Chair Figaroa suggested prioritizing by regions. He stated that the community was opposed to Salt Pond expansion, but he agreed with Commissioner Souza that it is a good opportunity to acquire the land as soon as possible. He suggested minimizing the list to one site per region. He stated that if the Council can't implement from a whole list, then maybe shortening the list can advocate better, then later, they can look back and add to the list for following years. Commissioner Childs stated that Piwai should be on the list since it had the most support of all the community meetings that were held. He stated that the motor cross group was also going to work on acquiring additional funding. He stated that Salt Pond should also be on the list and the top two from the South side. He questioned if the suggestions from last year were the ones that got the most feedback from the survey. Ms. Sadora stated that the suggestions were the Commission's decision, based on past reports as well. Commissioner Ventura stated that one of the sites that received a lot of support last year was Kauapea Road and an access that had been closed by a land owner. She stated that it received a lot of survey responses and they knew that the Kilauea community was focusing attention on it. She noted that it was not included on the list because the Commission's understanding was that there was an ongoing conversation between the County and the land owner. She stated that there was also a lot of support and input regarding Lepeuli, but there were also ongoing conversations there. She stated that it is up to the Commission to determine how to interpret the public input. She agreed that there was strong unified support of Piwai and that the group is positioned to move forward. She noted that Kipu Falls, Alekoko Fishpond, Puolu Point, and Salt Pans, Coco Palms, and Mahaulepu tend to always come up on the surveys. Commissioner Childs noted that Coco Palms has been bought and the owners are going to build on it. Commissioner Ventura stated that the challenge of those suggestions is that they are so huge that they would be more in the realm of $10 million. She stated that in past years, the Commission included a couple of big items as secondary recommendations and acknowledged that there were insufficient funds in the Open Space Fund. Last year, the Commission switched to support suggestions that were more immediately realistic. She stated that they don't necessarily have to follow the decision making from prior years. Commissioner Childs agreed that they should pursue realistic properties. 9 Chair Figaroa suggested listing the sites, including the public's yeses and nos, discussing the public comments, then internally discussing what is actually good for the future of the community and vote on it. Ms. Sadora stated that when the Commission presented last year's report to Council, they were asked about the priority of each of the sites. She stated that the Commission's response was that the last report was not based on a priority listing. She noted that the Council seemed to prefer prioritizing because it makes it easier for them, and they also mentioned that the decision shouldn't be based on only what the Commission thinks the fund can acquire. She stated that if there is enough support, perhaps there might be funding that could come from another source. She noted that the decisions may be made according to the funds, but that doesn't necessarily have to be how the recommendations are made. Commissioner Ventura stated that was valuable feedback. She stated that they tried to communicate the idea that the sites that are poised to move first should be taken up first, but it perhaps wasn't understood. She stated that was not understood very well by the attendees at the Piwai meeting either because one person commented that Nukumoi should be number one, but the Commission should move Piwai up to number 2. She stated that she informed them that the recommendations were geographic, but they still seemed to feel that being higher on the list was more of a priority. Commissioner Nakahara stated that there should be an understanding that since the Commission was established, there was only one successful acquisition. Commissioner Kinnaman stated that she liked the idea of four priorities. Commissioner Nakahara stated that he would be interested in access to Secret Beach. Chair Figaroa stated that he agreed with minimizing the list and it would be easier to advocate. Commissioner Childs noted that the Kauapea access wouldn't cost anything so they can give them two options. Commissioner Kinnaman stated that Kauapea is more jurisdictional. She noted that the Commission is not responsible for enforcement. Commissioner Ventura stated that they will be discussing that item in executive session. Chair Figaroa questioned if anyone had a copy of the County's general plan. Commissioner Ventura noted that the general plan is available online. Chair Figaroa stated that Council Chair Furfaro gave him a copy and noted that some of the public accesses were initially done as fisherman accesses, but there may be other 10 accesses that aren't on the maps that are more historical. He stated that the general plans list some of the different accesses. He suggested prioritizing the sites by region, then overall, then prioritizing the top four and discussing it at the December 8 meeting. Commissioner Ventura suggested that Commissioners read through the survey results, make a list of the properties and prioritize as homework. Chair Figaroa stated that the Commissioners can present all their priorities at the December 8 meeting and each Commissioner can discuss why they feel it is a priority. Commissioner Ventura requested that Commissioners Dela Cruz and Souza be emailed the survey results so they can participate with the homework. Review and discussion on the Rules of Practice and Procedure of the County of Kaua'i, Public Access, Open Space & Natural Resources Preservation Fund Commission and policy on communications. MOTION: It was moved by Tessie Kinnaman and seconded by Nathaniel Childs to defer this agenda item to the November 17, 2011 meeting. All were in favor by unanimous roll call vote — motion passed. NEW BUSINESS Report from the attendees of the Hawai'i Congress of Planning Officials (HCPO) 2011 annual conference in September. Ms. Sadora stated that the mixture of speakers, the layout of workshops, the exhibits and access to everything was well orchestrated. She commended the core staff who organized the workshops. She stated that the feedback from those who attended the mobile workshops, including Mitchell Silver, the President of the American Planners Association, was overwhelming. She stated that everything was well tied to the sustainability theme. She stated that there were over 200 attendees. Commissioner Kinnaman stated that she enjoyed the conference and she attended the cultural and historical workshops and watershed. She also attended the South shore mobile workshop and she stated that the responses were good from the attendees. She noted that the food was fabulous. She stated that the Planning Director did a good job. She recommended that other commissioners attend future HCPO conferences if they have a chance. Ms. Sadora noted that it is normally budgeted for two commissioners to attend off island conferences each year. 11 Commissioner Nakahara stated that he did not know much about planning and planners in general, but now he has a better understanding of the bigger picture. He stated that his only concern would be that there were too many workshops on the last day. Ms. Sadora stated that one of the criticisms was that there wasn't the opportunity to go into other workshops that were occurring concurrently. She stated that people had to decide which one to go to. Commissioner Nakahara stated that the Hyatt was a good setting. Commissioner Ventura stated that the conference was amazing, the Planning Department did an excellent job in representing Kaua'i, and there were great breakout sessions. She stated that she was involved with the planning of the North shore mobile workshop so she regrets not being able to experience it as a participant. She stated that she was disappointed that the Hyatt was not serving Kauai coffee and were instead promoting a national brand. She stated that there was only one dish that was labeled as local greens. She stated that the workshop was promoting healthy communities and to have a healthy community, you have to be buying from the community. She stated that she noticed that at other sustainability conferences too. She suggested that if the County is going to be hosting events in the future, they might want to be thinking about promoting local brands or requesting that the venue use local brands so that they build that awareness. Update from the investigative committee regarding the nomination and selection process for the Commission-appointed, at-large member of the Public Access, Open Space, and Natural Resources Preservation Fund Commission. Commissioner Ventura noted that the investigative committee has not yet met, so there was no update. Commissioner Childs questioned who was on the committee. Chair Figaroa stated that he and Commissioners Ventura and Kinnaman are on the committee. Commissioner Ventura stated that the investigative committee is going to work with staff to implement the same process that was used in 2008. She stated that it involves a press release from the County's information office and public notice in the classifieds. She noted that staff accepts the applications, the investigative team vets the applicants and determines if interviews are needed, then report back to the Commission with a recommendation of one or two names for the Commission to take action. She noted that Sunshine law requires that recommendations can only be taken on the recommendations at a following meeting. Chair Figaroa questioned if a public notice has been issued. 12 Commissioner Ventura stated that they have the drafts from the last process and they need to decide if they want to change the wording. She stated that they are unable to take action until the 8th member is appointed. Commissioner Kinnaman stated that she thought that by approving the process, they were going to utilize the same forms and notices. Commissioner Ventura noted that the team would still have to update the press release. Ms. Sadora questioned if they would have the updates by the next meeting. Commissioner Ventura stated that they hope to make some progress by the next meeting Commissioner Kinnaman stated that they should just fill in the new dates and when the 8th commissioner is sworn in, issue the press release. Commissioner Ventura stated that they should talk about the timeline for applications to be submitted. Chair Figaroa stated that because of the holiday months there may not be as many responses. He stated that they only need to change the dates on the press releases. Commissioner Ventura stated that they need to agree on a timeline. She stated that they should try to meet before the next meeting. Chair Figaroa suggested a conference call. UNFINISHED BUSINESS (CONTINUED) Update and discussion on the status of public accesses. • Kauapea (Secret Beach) Executive Session: Pursuant to Hawai'i Revised Statutes Sections 92-4 and 92-5 (a)(4), the purpose of this executive session is to consult with the County's legal counsel on questions and issue relating to access through an undefined trail easement on Lot 10 of the Kilauea Gardens Subdivision. This consultation involves consideration of the Commission's powers, duties, privileges, immunities, and/or liabilities with regard to this agenda item. Deputy County Attorney Jung stated that back in 1977 there was a proposed subdivision that triggered a Special Management Area. He stated that the original developer was willing to allow County access to the beach, however, there was no 13 follow up and there was no grant of easement. He stated that there is a file map plan which states that there is an undefined trail easement. He stated that the intention was there from the record and the design of the lot. He stated that there are a couple of theories on challenging whether or not that should be a perpetual easement for public access use. He stated that if there is a land use entitlement, just as the entitlement runs with the land, so do the conditions that are attached to the entitlement. He stated that they required a condition to provide access and it was never followed up on and now members of the public want the access back. MOTION: It was moved by Maurice Nakahara and seconded by Tessie Kinnaman to move into executive session. All were in favor by unanimous roll call vote — motion passed. NEXT MEETING DATE AND AGENDA TOPICS FOR DISCUSSION Commissioner Ventura noted that the next meeting's agenda has already been posted due to the holiday. Deputy County Attorney Jung stated that if the Commission wanted to amend the agenda they could at the next meeting as long as it is nothing substantive in terms of decision making and they have a 2/3 vote. ADJOURNMENT MOTION: It was moved by Johanna Ventura and seconded by Nathaniel Childs to adjourn the meeting. All were in favor by unanimous roll call vote — motion passed. The meeting adjourned at 3:55 p.m. Respectfully submitted by: Duke Nakamatsu, Support Clerk 14