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HomeMy WebLinkAbout2011-2-24 Open Space Commission Minutes Approved COUNTY OF KAUAI PUBLIC ACCESS, OPEN SPACE, & NATURAL RESOURCES PRESERVATION FUND COMMISSION Liliu'e Civic Center, Moikeha Building, Meeting Room 2A/213 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 February 24, 2011, in the Lihu'e Civic Center, Moikeha Building Meeting Room 2A/2B. The following Commissioners were present: Tessie Kinnaman, Chairperson, Johanna Ventura, Vice Chairperson, Maurice Nakahara, Linda Dela Cruz, and Jean Souza. The following Commissioners were absent: Eugene Punzal, and three (3) vacancies. The following staff members were present: Nani Sadora, Duke Nakamatsu, and Deputy County Attorney Ian Jung. CALL TO ORDER Chair Kinnaman called the meeting to order at 1:15 p.m. APPROVAL OF AGENDA MOTION: It was moved by Jean Souza and seconded by Maurice Nakahara to approve the agenda. All were in favor by unanimous voice vote — motion passed. APPROVAL OF MEETING MINUTES — Regular meeting minutes of 2/10/11. Regular meeting minutes of 2/10/11 —Approved. Commissioner Souza made a clarification to the 4th paragraph on page 4 from "notes accompanying the presentation" to "notes accompanying the presentation slides". Commissioner Ventura noted a correction to the 4th paragraph from the bottom on page 5 from "Commissioner Ventura started" to "Commissioner Ventura stated". I MOTION: It was moved by Jean Souza and seconded by Linda Dela Cruz to approve the minutes of the 2/10/11 meeting as corrected. All were in favor by unanimous voice vote — motion passed. ANNOUNCEMENTS Ms. Sadora announced that she and Deputy County Attorney Jung attended the conservation easement workshop last Thursday. She stated that she had handouts available for Commissioners who were interested. UNFINISHED BUSINESS Status of filling of vacant Commissioner positions. Ms. Sadora stated that there were no updates from the Administration or the Council. Chair Kinnaman stated that she saw that the Council passed a resolution appointing a new commissioner at their last meeting. Ms. Sadora stated that staff had not been notified but she would verify with Council Services. Commissioner Ventura questioned if resolutions follow the interviews. Deputy County Attorney Jung stated that interviews are conducted first, and then action is taken action by resolution. Review and discussion on the commission's presentation of the County of Kaua'i Public Access, Open Space, & Natural Resources Preservation Fund Commission 2010 report to the Kaua'i County Council and the Mayor. Ms. Sadora stated that communication is still ongoing with County Clerk Peter Nakamura. She said that he was on vacation until yesterday but he is aware of the Commission's target date of March 23. She stated that the report is ready to go to print pending the planning director's final edits, and then they would be ready to forward to Council by next week. Commissioner Ventura questioned the availability of Commissioner Punzal for the March 10 Commission meeting. Ms. Sadora stated that he would be submitting his request for days off for both March 10 and March 24. 2 Commissioner Ventura noted that if the Commission does not have a quorum on March 10, they may not be ready for a Council presentation on March 23. Ms. Sadora reported that she called Council Services and a new commissioner was appointed but would need to be sworn in based on her availability. She stated that she would make contact with her once her information is received. Chair Kinnaman questioned the status of the Power Point presentation. Commissioner Souza stated that she experienced computer difficulties and some of the files were lost. She stated that she prepared a Power Point for the 2009 report and it may be on a flash drive. She recommended that the chair appoint commissioners to prepare the content for the presentation. Commissioner Ventura stated that she would be happy to assist with word smithing and printing of the presentation, but she expressed concern that they may not be ready to present to Council if there is no quorum for the March 10 meeting. Commissioner Souza stated that they could do a verbal presentation based on what they have. The Commission assigned chapters from the report for the presentation. Commissioner Ventura noted that she would not be on island if the presentation was scheduled for March 23, but could be an alternate if the presentation was scheduled for April 6. The Commission agreed that Chair Kinnaman should be the first to present, including the introduction, the program background, and accomplishments. The Commission agreed that Commissioner Dela Cruz would summarize the public input process. The Commission agreed that Commissioner Nakahara would summarize the Commission's recommendations. The Commission agreed that Commissioner Souza would summarize the quorum challenges and room for improvements, and heads up regarding the dossiers and Ordinance 812 amendments. Commissioner Ventura stated that if the presentation is on April 6, then she would stand by to fill in for anyone who can't make the meeting. 3 NEW BUSINESS Review and discussion on proposed amendments to Ordinance 812. Deputy County Attorney Jung stated that he reviewed a copy of the Commission's proposed amendments and the issue he looked at was whether they were in conformance with the Charter revision that allows the fund to be established and the administration of the fund through Ordinance 812. He noted that the Charter Amendment does not state who has to hold the land or who has to own the land that is being conserved, only that it needs to be attained for conservation purposes. He stated that there are some problems with the County accepting conservation easements due to liability concerns. He clarified that conservation easements are an agreement with a holder and the owner of a property to obtain a use of that portion of the property and is limited to what is identified in the document or agreement. He stated that land owners who are not willing to give up the property for public access may be willing to give up their property for preservation purposes and open space values. He felt that the bill is beneficial to the County because they could purchase conservation easements and have another unincorporated association or non-profit organization hold it in perpetuity for conservation or protection type activities only. The Commission reviewed the suggested amendments proposed by Deputy County Attorney Jung. Deputy County Attorney Jung stated that his first amendment was to the findings and purpose section clarifying that the Council "should" instead of "needs to" expand the scope of the purpose. He stated that the purpose section is only for legislative intent. Commissioner Ventura questioned if section 1 was in the original ordinance. Deputy County Attorney Jung stated that section 1 of the original ordinance had its own findings and purpose. He said that any legislative drafting limits the intent to the current amendment. In subsection 9 on page 2, Deputy County Attorney Jung suggested amending "for open space and scenic values" to "to maintain open space and scenic values". Commissioner Ventura noted that the sections on the bottom of page 4 pertain to subsection 5 rather than subsection 6. Deputy County Attorney Jung stated that once the amendments are ready to go it will be finalized again for content and formality. In subsection 6 on page 4, Deputy County Attorney Jung felt that 6A and 6B were redundant because the Commission has latitude in how they approach board business to include workshops and forums. He noted that the Commission technically doesn't 4 have authority to propose legislation. He suggested that 6A includes "and natural resource" planning because at the conservation workshops there were other federal and state agencies that do conservation easements for forestry management, grasslands, or wetlands. Commissioner Souza stated that it could also include coastal hazards. She clarified that Deputy County Attorney Jung's proposed 6A would encompass the old 6A. She stated that she liked the change. She noted that the rationale for 6B was that the Commission felt they could be advocates to increase liability protection for the County to have more access. Deputy County Attorney stated that it could fall under the new 6A. He noted that the current recreational use statute provides limited liability to private land owners for public access as long as there is no gross negligence, but it does not apply to the counties. He noted that the Big Island corp. counsel advocated the legislature in 2008 to try to change it. He stated that the State mandates the County to provide access through subdivision processes or rezoning, but the liability falls on the County. He stated that the more accesses that are provided, the more liability the County holds. Commissioner Souza stated that the Commission would like to be an advocate and felt it would be interesting if all of the counties could get together. Deputy County Attorney Jung stated that he would follow up with the corp. counsel. He noted that Na Ala Hele has protection, but not the County. He stated that it may take the Open Space Commissions from all islands advocating for public access. Commissioner Ventura stated that she was okay with the replacements of 6A and 6B. She questioned if the words "Planning Department" in 6B and 6D were unnecessarily restrictive. She questioned if it would be appropriate to replace "Planning Department" with "County of Kauai" for implementation and resolution of issues. Deputy County Attorney Jung stated that the Commission falls under the jurisdiction of the Planning Department. He noted that if the Commission wanted to work with other agencies they would have to utilize the Planning Department staff for assistance, but he didn't feel that it would restrict the Commission's ability to have discussions with other agencies. Commissioner Souza stated that they originally intended to resolve internal conflicts between the Department and the Commission, but she stated that it would be helpful to keep it open so that they can work to implement recommendations with other partnerships that are out there such as the land trust. She stated that the Commission is constrained by the responsibilities they are given. Deputy County Attorney Jung stated that ultimately how the Commission implements recommendations is through the Council. He stated that it all goes back to advocating. 5 Commissioner Souza stated that the previous Deputy County Attorney suggested that the Commission could request that the Planning Department develop a dossier on a particular recommendation to help it through the process. She stated that the Planning Department, through dossiers, could be the champion similar to the land trust. Deputy County Attorney Jung noted that the Commission could also, through non- binding action, pass a resolution. Commissioner Souza stated that the Administration and the Planning Department have changed and there are more active partners involved. Deputy County Attorney Jung stated that on page 5, under the appropriation of funds, he made amendments to subsections c, d, and e. In subsection c, he clarified the amendment to state "Funds may be appropriated to another government entity, private land owner or organization and used to acquire an interest in property with the requirement that lands or entitlements benefit the public and are protected in perpetuity." He noted that "an interest in property" clarifies that there are all kinds of entitlements from easements, to rights of way, to fee interest. He also replaced "on the condition" with "with the requirement". He stated that in subsection d, he added "held" to facilitate conservation easements. He said it can be held by the County, another agency, or a non-profit organization. Chair Kinnaman noted an error in subsections d, and e following "non profit organization". The word "property" should be omitted. Deputy County Attorney Jung noted that it was a cut and paste error. He noted that the next sections 3, 4, and 5 are not included in the code and are catch all phrases. He said that section 3 is the same as the severability provision and if one part of the Ordinance is invalid, the rest would stay in place. He stated that section 5 states that the Ordinance shall take effect upon approval. Commissioner Ventura questioned the findings and purpose section. She stated that the reason the Commission looked at amendments was because there was a lack of alignment between the founding Ordinance and the expectations of the public and members of the County government including the Council. She said the key word for her was "expectations". She didn't see the primary motivation as expanding the powers. Deputy County Attorney Jung stated that section 1 is where the intent would be stated. Commissioner Souza stated that the Commission wants to make it easier to operate. She noted that there are quorum problems and not just enhancement and expansion of scope, but operational efficiency as well. The Commission agreed to amend page 2, item 9 to underline the number 9 and accept the language change "conserving land to maintain open space and scenic values". 6 The Commission agreed with the amendments in item 3 on page 3. Regarding page 4, the Commission agreed to strike the old 6A and 6B and replace with the new 6A and 6B. The Commission agreed to amend 6A to "Advocate and be a resource for public access, open space, and natural resources preservation planning for the County of Kaua'i." The Commission agreed to amend 6B to "Assist with the implementation of priority recommendations." The Commission agreed to amend 6D to "Assist with the resolution of issues relating to the nine land conservation purposes outlined in Section 6-14-1 (a) (1) through (9); and" Regarding 6E, Commissioner Ventura questioned the word "assess" in "assess and report the balance and the sufficiency of the Public Access, Open Space and Natural Resources Preservation Fund." She felt that "assess" seemed to imply some kind of investigative work by the Commission. Commissioner Souza stated that it was related to the '/2 of 1 percent and the feeling that it was inadequate. She suggested "Annually report the balance and review the sufficiency of the Public Access, Open Space and Natural Resources Preservation Fund to the Council and the Administration." The Commission agreed on Commissioner Souza's suggestion. The Commission agreed on the amendments to subsection c on page 5. The Commission agreed on the amendments to subsections d and e and to strike out the erroneous word "property" from both subsections. Commissioner Ventura questioned where in the Ordinance the Commission is introduced. She noted that in Section 1 refers to this "Commission" but it is not defined. Commissioner Souza questioned if the amendments were going to be the complete Ordinance or just the parts that the changes are being proposed. Deputy County Attorney Jung stated that they can either repeal or reintroduce, or submit amendments. Commissioner Ventura stated that she would like to include "aligning the duties of the Commission with the expectations of the public and county government." She noted that the current wording includes "should expand the scope of duties of this Commission". 7 Deputy County Attorney Jung recommended striking Section 11. He noted that the Commission is submitting amended language to the existing Ordinance 812. He said that Ordinance 812 was last codified in October of 2004 and hoped that within two years it would be codified again to include the changes. He noted that the Charter also has not been codified in 3 or 4 years. He stated that he would reword Section I to refer to the Public Access, Open Space, and Natural Resources Preservation Fund Commission and the Commission can also add any other policy statements to reflect why they are doing the amendments. The Commission agreed to include the following into Section I: "The Council of the County of Kaua'i finds that it is desirable to expand the scope of duties of the Public Access, Open Space, and Natural Resources Preservation Fund Commission in order to improve the Commission's operational efficiency and bring its scope of duties into alignment with the expectations and needs of the public and County government." MOTION: It was moved by Jean Souza and seconded by to Maurice Nakahara to adopt all of the changes that were discussed. All were in favor by unanimous voice vote — motion passed. MOTION: It was moved by Johanna Ventura and seconded by to Maurice Nakahara to allow the Planning Department to finalize the document and submit it to the Administration on the Commission's behalf. All were in favor by unanimous voice vote — motion passed. UNFINISHED BUSINESS 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. Commissioner Ventura noted that potential Commission education sessions were noted within the field trip report. Commissioner Souza stated that there was an article asking the public for input on parks planning. She suggested an education session regarding the plan. Commissioner Ventura noted that the last meeting was to build awareness and solicit initial input. She felt that the Parks & Recreation Department may not be ready for an education session yet. She recalled that the Commission wanted an education session on the State statutes regarding reasonable and regular access and how it is implemented through the County's building process. 8 NEW BUSINESS (CONTINUED) Review and discussion on draft dossiers fro Council's consideration on recommended sites for acquisition. Commissioner Souza stated that the chair and vice chair should review any dossiers before they are transmitted to the Council. She stated that her understanding was that the Planning Department was going to be the champion of the dossiers, but noted that the draft dossiers indicated that they were from the Commission. Ms. Sadora stated that the dossiers would be from the Planning Director on behalf of the Commission. She noted that the headings were based on last year's report. Commissioner Souza questioned how staff envisioned the timing of the submittal of the dossiers with the submittal of the annual report. Ms. Sadora stated that if the Commission approves the dossiers, it could be sent to Council prior to the report. Commissioner Souza felt the dossiers needed an introduction. She stated that the drafts contain the same information as in the report, but they don't state why the Commission is submitting them and what the Council is supposed to do. She stated that there should be an opening paragraph stating the intent on how the Commission wants the dossiers to be used. She stated that each site should be a separate package so they can be considered individually. She suggested either having an introductory paragraph for each of the sites, or if they are submitted together, there should be a cover letter that contains the information on the purpose and how it differs from the annual report. She stated that the intention is to provide detailed information for action to be taken. Commissioner Ventura stated that she would be okay with one transmittal for the 3 sites. She stated that the purpose would be that the opportunities are fairly complex and she felt that the complexities driving the dossiers should be emphasized. She stated that with Nukumoi there is an opportunity for potentially acquiring the lease until acquisition can be made. She suggested that the second page should clarify the steps that would need to be taken by the County to take advantage of the specific opportunity. She suggested that bulleting the steps might make them visually more apparent. Commissioner Souza stated that she thought the dossiers would be more in-depth packages. She noted that the draft doesn't provide any more information than the report. 9 Ms. Sadora noted that detail gathering or action involves other agencies. She noted that although the lessee may be known, they would need to determine the process of how the details of the lease can be obtained. Commissioner Ventura stated that there needs to be authorization for the County Attorney's office to make contact with the owner of the property in order to inquire about the availability or openness to acquire a lease. She questioned who generates the authorization. She didn't think that the Council could direct the County Attorney's office to do the work. Ms. Sadora stated that the authorization may need to come from that level for that direction to be taken. Her understanding was that the communication would need to go to Council to notify them of what would need to be done to determine if it is achievable. She noted that for Salt Pond, the DLNR would not take any action unless the order came from the Administration. Chair Kinnaman noted that the County Attorney represents the Administration and the Council. Commissioner Ventura stated that they should question the County Attorney's office on who would need to give the instruction to investigate. She felt that they should list more steps identifying the responsible entity for implementation and authorization. Commissioner Souza stated that she did not feel the dossiers were ready to submit. She stated that the dossiers should be something that they submit to Council to get them to approve and release the funds for the project. Commissioner Ventura stated that the Commission is not dictating the process, but requesting that the process be identified and spelled out so the policy makers know what needs to be done in order to implement. She said that although the background information is helpful, she would like to see opportunities identified first such as the lease or land interest. Commissioner Nakahara questioned why the Piwai property and the Numila property were not included in the dossiers. Commissioner Ventura stated that the Piwai property would be a straight purchase. Commissioner Souza stated that the Commission asked that the dossiers be prepared more than 6 months ago, so it was before action was taken on Piwai and the other recommendations. Commissioner Nakahara questioned if the dossiers could be submitted after the report to provide more information on the recommendations for the Council. 10 Commissioner Souza stated that one of the frustrations was that every year the report is submitted but the only recommendation that has been fulfilled was the Hodge property. She stated that the lesson learned was that it takes an organization like the Kauai Public Land Trust to speak to the different parties and assemble the package for the Council to take action. She stated that when the Commission looked at other opportunities, they felt that the Planning Department could be the champion. She said they were specific projects on the list and wanted to provide Council with the information they need to go to the next step. Ms. Sadora stated that Deputy County Attorney Jung requested that the Commission receive the draft dossiers today as communication. She stated that he wanted to address the Commission on how detailed things could be. Commissioner Souza stated that the Commission had certain expectations of the dossiers. She suggested that the Commission provide an outline of the sections they would like to see included in the dossiers. She said there should first be some kind of opening statement about the purpose of the document, how to use it, the expectations, and actions the Commission would like the Council to take. The second would be the opportunity surrounding the acquisition or interest of the property. Third would be background information including leases, encumbrances, ownership, and processes. Commissioner Ventura suggested a scope of implementation including a step by step work plan on moving the implementation forward. She noted that the Planning Department could consult with other departments to identify those steps. Commissioner Souza stated that it should include what needs to be done, who would do it, when, and the costs. Commissioner Ventura stated that the dossiers would identify all of the steps so whoever is in charge of approving those steps could see the process laid out and issue approval. Chair Kinnaman stated that there was an addendum to the 2005 report that included a list of the different agencies that would need to be involved. Commissioner Souza stated that the 2005 process was what the Commission thought was going to be the process for implementation. She stated that it may or may not be relevant. She stated that the Commission should list what they feel the dossier should include and have discussion with the Deputy County Attorney. Commissioner Nakahara stated that the Commission realized what they expected in a dossier and it may have been different from what the Department had visualized. Commissioner Souza stated that the draft dossiers are only a part of what she expected but they need to include more. 11 Commissioner Nakahara stated that the Commission should come to a consensus on what they would like in the dossiers. Commissioner Ventura suggested that staff reformat the drafts to include the outline from the Commission to make the next discussion easier specifically with regard to who makes contact to the land owner regarding the status of leases and who would authorize it. Chair Kinnaman requested that the headings of the dossiers be updated to be in alignment with the 2010 report. Commissioner Souza stated agreed that the dossiers should be submitted after the report. She stated that the subject heading should include what the Commission is requesting from the Council. She stated that the subject should be left to the Deputy County Attorney, but she felt it should be more specific. Chair Kinnaman stated that they will continue discussion at the next meeting. NEXT MEETING DATE AND AGENDA TOPICS FOR DISCUSSION Chair Kinnaman stated that the next agenda will include items VA, VB, VC, VD including the PowerPoint presentation. She stated that a meeting on March 10 would depend on whether they have quorum. She stated that new business should include the unresolved issues and the review of the Planning Department's report. Commissioner Ventura noted that she will be gone from March 18-30, so she would not be available for the March 23 Council meeting and the March 24 Commission meeting. Commissioner Nakahara noted that he will be gone from March 10 to March 20. He stated that he would be back for the March 23 Council meeting. Chair Kinnaman stated that the draft dossiers will continue on the next agenda as unfinished business VE, along with the proposed amendments to Ordinance 812. 12 ADJOURNMENT MOTION: It was moved by Johanna Ventura and seconded by to Maurice Nakamura to adjourn the meeting. All were in favor by unanimous voice vote — motion passed. Meeting adjourned at 4:30 p.m. Respectfully submitted by: Duke Nakamatsu, Support Clerk 13