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HomeMy WebLinkAbout2011-7-28 Open Space Commission Minutes 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 July 28, 2011, in the Lru'e Civic Center, Moikeha Building Meeting Room 2A/2B. The following Commissioners were present: Tessie Kinnaman, Chairperson, Nathaniel Childs, Linda Dela Cruz, Maurice Nakahara, and Jean Souza. The following Commissioners were absent: Johanna Ventura, Vice Chairperson, and Three (3) vacancies. The following staff members were present: Nani Sadora, Duke Nakamatsu, and Deputy County Attorney Ian Jung. CALL TO ORDER The meeting was called to order by Chair Kinnaman. APPROVAL OF AGENDA Chair Kinnaman requested taking the discussion on the status of public accesses and receipt of items for the record out of order to accommodate public testimony. MOTION: It was moved by Jean Souza and seconded by Linda Dela Cruz to approve the agenda as amended. All were in favor by unanimous voice vote — motion passed. UNFINISHED BUSINESS Update and discussion on the status of public accesses. Kaakaaniu (Larsen's Beach) The Commission received testimony from Richard Spacer. I Mr. Spacer requested that the Commission consider sending a letter to William Aila, the Chairperson of DLNR asking if the Open Space Commission could be informed as to the intent of the memo dated June 27, 2011 addressed to the Planning Director. The Commission received testimony from Hope Kallai. Ms. Kallai stated that in Chairperson Aila's meeting this morning addressing the Llhu'e Civic Association, he stated that there would be an archaeological impact assessment on the alaloa specifically in the ahupuaas of Kaakaaniu and Lepeuli in August. She stated that she has been calling the Public Works Department every week regarding maintenance of the County right of way but nothing has been done. She stated that the Kaua'i Advisory Council has received notice on who has been selected for the Na Ala Hele program, but there hasn't been a press release yet. She requested information on how they can do something about lot 4. Deputy County Attorney Jung stated that the County is currently evaluating maintenance responsibilities and how to address them without overreaching the threshold of a de facto beach park. Ms. Kallai stated that the County surveyors had the trail flagged when the Open Space Commission went on their field trip last year, but it has been lost. She stated that they are unable to tell the steep easement from the County right of way. She stated that the historic trail was just closed off and it has impact on the community. Deputy County Attorney Jung stated that it is Land Court property and the issue of whether or not the title can be identified as free and cleared. He stated that there is a Supreme Court case that will identify how strong the Land Court Torrens system is and whether or not title can be defeated without having a specific easement. He said the State has indicated that they have reversed their position on what their stated claim could be on a public trail as it relates to a Land Court property, but they can only get a ruling once there is a quiet title action by the State. Ms. Kallai questioned if is a correct understanding of the State Attorney General's brief in that if mineral rights and water rights weren't registered when the land was awarded, the encumbrance still exists. Deputy County Attorney Jung stated that it would be for the courts to decide. The Commission received testimony from Rayne Regush on behalf of the executive committee of the Kauai group of the Sierra Club. Ms. Regush stated that they put in a request to the Land Use Commission regarding the conservation district boundary in lepeuli and they received the approximate boundary that follows a 300 foot setback from an old certified shoreline. She stated that it clearly shows that it's at least 75 feet mauka of where the existing fence is. She stated that 2 they will revisit the SMA minor permit with the Planning Department and requested the Commission's support in securing the alaloa and removing the fence. Commissioner Souza requested a copy of the map. Ms. Regush stated that the County should have copies of the map and a copy of the letter from the Land Use Commission. Kauapea (Secret Beach) The Commission received testimony from Hope Kallai. Ms. Kallai stated that there was an EA issued and a FONSI on the after the fact permitting of two miles of private trails and the response date for the conservation use permit is another week. She stated that it was mentioned to Chair Aila of the DLNR that after the fact permits are a problem because the trails are being advertised on luxury vacation rental advertising and the community has lost beach access. She stated that their request was that cumulative beach access be considered before permits are issued. She questioned how private trails can be authorized when public trails have been lost. She noted that the CDUP response date is August 4. Deputy County Attorney Jung stated that it is a Conservation District Use Permit because the area is within a Conservation district. He said the Board of Land and Natural Resources is the authority that deals with permitting in that district through the office of conservation and coastal lands. Ms. Kallai stated that she is not speaking for the Kilauea Community Association but noted that one of their major concerns was that in the application it was listed as a private residence and not a luxury vacation rental. The Commission received testimony from Peter Waldau. Mr. Waldau stated that there was a petition presented to the Planning Commission to revisit the SMA. He noted that condition 6 in the permit originally stated that the location of the fence shall be approved by the DLNR so that the lateral coastal trail would be left open. He stated that the Planning Director recommended that the Commission deny the petition based on a memo dated September 9, 2009 due to the issue of Land Court. He stated that the report was based on the memo of one abstractor who stated that Land Court means that the trail doesn't exist anymore. He noted that Na Ala Hele and DLNR had consistently notified Waioli Corporation that there was a State ownership of the trail through the lepeuli property. He suggested reviewing the documents and testimonies that have been presented. He stated that it is not like the Courts were mute on trails even though it is Land Courted. He stated that he is confused as to why it is still a question if the Land Court judge says they own it. 3 Deputy County Attorney Jung stated that whether or not the Attorney General felt that it was significant enough to overturn the abstractor's decision is for them to decide to assert their claim based on their reservation. He said it would come down to their interpretation of what that is. He stated that the public trails system was reserved under 264-1 for the State and not the County so it would be under State jurisdiction. RECEIPT OF ITEMS FOR THE RECORD MOTION: It was moved by Jean Souza and seconded by Nathan Childs to receive all of the items distributed for the record. All were in favor by unanimous voice vote — motion passed. APPROVAL OF MEETING MINUTES — Regular meeting minutes of 5/26/11 and 6/09/11. Regular meeting minutes of 5/26/11 —Approved. MOTION: It was moved by Jean Souza and seconded by Linda Dela Cruz to approve the 5/26/11 meeting minutes. All were in favor by unanimous voice vote — motion passed. Commissioner Souza noted that on page 14, she requested an agenda item regarding the Commission's Administrative rules and communications policy. She questioned why this item was not listed on the agenda and requested that staff follow up with Commission actions in subsequent meetings. Ms. Sadora stated that it was not intentionally left off the agenda and they will have it on for the next meeting. Chair Kinnaman stated that her understanding was that the standing agenda item "Receipt of Items for the Record" was a catch-all for documents being submitted. Commissioner Souza stated that the reason for this request was that she thought a communication had been distributed to all of the Commissioners but was told that the decision had to be made by the Chair. Deputy County Attorney clarified that agenda items are determined by the Chair, not necessarily communications. Commissioner Souza stated that according to the minutes, she was surprised that a communication had not been distributed to all Commissioners. She stated that if it can 4 be put on the agenda, then the Commission can discuss how they would like to handle communications. Chair Kinnaman questioned communications that are addressed to the Planning Director regarding Open Space Commission and if they are forwarded to the Commission. Ms. Sadora stated that if communications regarding the Commission are forwarded to staff, then forwarded to the Commission. Commissioner Souza stated that she had received some information from the public regarding Kauapea with the assumption that the information would be forwarded to all of the Commissioners, but it was not. She was told that the Chair decides what is sent to the Commissioners so she requested that item be placed on the agenda. Ms. Sadora stated that it will be added to the agenda for discussion. Commissioner Souza stated that she will not be available for the meeting for the August 11th meeting and requested that it be placed on the August 25th agenda. Regular meeting minutes of 6/09/11 —Approved. MOTION: It was moved by Jean Souza and seconded by Linda Dela Cruz to approve the 6/09/11 meeting minutes. All were in favor by unanimous voice vote — motion passed. ANNOUNCEMENTS There were no announcements from staff. UNFINISHED BUSINESS Review and discussion on proposed amendments to Ordinance 812 Deputy County Attorney Jung announced that he spoke with the Mayor regarding the draft Ordinance Amendments and he is ready to go. He stated that the next step would be for the Commission to review the final draft which is in Bill format. He noted that there is a formal process between the Administrative and Legislative branches and the Planning Director would need to transmit a memo to the Mayor, then he would do a formal memorandum requesting the introduction of the Bill. Then it would be referred to the Planning Committee for discussion and then action taken on the second reading. 5 Commissioner Souza questioned the format changes. Deputy County Attorney Jung stated that for Section 2, he clarified that Section 6, Article 14 in the Kaua'i County Code 1987 is being amended and he incorporated all of the Commission's changes. He stated that the underlined provisions were new and the bracketed provisions are to be removed. He noted that the effective date would be upon enactment. He stated that the Administration was okay with holding conservation easements versus freehold interest in land. He noted that an interest could be fee interest, leasehold interest, or in the form of easements, so he clarified that several types of properties could be acquired, rather than just fee interest. Commissioner Nakahara asked for clarification on his appointment. Deputy County Attorney Jung stated that Commissioner Nakahara is a Council at-large appointee in a hold over status. Commissioner Nakahara stated that according to the Ordinance, all at-large appointees shall serve an initial term of one year. Commissioner Souza stated that the Ordinance is referring to the initial terms of appointment. Deputy County Attorney Jung stated that Commissioner Nakahara is filling a seat previously vacated by former Commissioner Caren Diamond. He stated that he would ask for clarification with Boards & Commissions. He stated that if there needs to be a floor amendment then they could do that at the Council level. He stated that the terms are capped by the Charter. Chair Kinnaman noted that the cap is two consecutive three year terms. Deputy County Attorney Jung stated that they can request that Mr. Isobe from Boards & Commissions explain the process to the Commission. Commissioner Souza stated that the one year initial term would not apply to Commissioner Nakahara because he is filling the remainder of former Commissioner Caren Diamond's term. She questioned why Commissioner Nakahara was on hold over status. Miss Sadora stated t because he is a Council appointee, he would need to be re- appointed and would need to be listed on Council's agenda. She stated that once he is re-appointed, he would need to be sworn in. She stated that she will confirm with the County Clerk, Peter Nakamura. Commissioner Souza stated that it should have been done ahead of time so that Commissioner Nakahara would not be at the end of his hold over period. 6 Chair Kinnaman questioned the status of the Anahola-Ha'ena position. Ms. Sadora stated that a name was submitted to Council for that area. MOTION: It was moved by Maurice Nakahara and seconded by Nathaniel Childs to have the Planning Director request that the Mayor introduce the Bill to the Council. All were in favor by unanimous voice vote — motion passed. Chair Kinnaman questioned the time frame. Deputy County Attorney Jung stated that he can work with staff to process a transmittal to the Mayor to request that the Council introduce the Bill, but that Council Chair would set the agenda. He said that the first reading is more procedural and all the work is done in committee. Commissioner Souza requested that the Bill be tracked from the Planning Director's office to ensure that it does not get hung up because it is long overdue. Status of filling of vacant Commissioner positions. Ms. Sadora stated that the only update was from Council. She said that a name was recommended to Council for the Anahola-Ha'ena seat. She stated that they would notify staff as to the progress. She stated that there was no update for the Mayoral- appointed vacancy. Review and discussion on draft dossiers for Council's consideration on recommended sites for acquisition. Chair Kinnaman questioned if any kind of analysis or appraisal had been done under scope of work. Ms. Sadora stated that the scope of work is indicating what needs to be done, not what is already ongoing. She stated that the dossier is an outline of what the Commission feels needs to happen for the project to move forward and would need to be forwarded to Council for action. Chair Kinnaman questioned the time frame and if it would need to be referred to committee. Ms. Sadora questioned if the dossiers would need to go through the Mayor's office before being forwarded to Council. 7 Deputy County Attorney Jung stated that there are specific protocols regarding any communications that are sent to Council through the Mayor's office. Chair Kinnaman stated that she would think that some of the work would need to be done by the Administration. Ms. Sadora stated that action can't happen unless it comes from someone that has the authority. Chair Kinnaman stated that there should be more information provided in the dossiers. Ms. Sadora stated that the dossiers are providing a mapping of how it could work and perhaps they could propose back to the Commission. She stated that she could ask the Planning Director what they could do as a Department to give an outline of the scope of work. Chair Kinnaman stated that when they met with the Mayor, it seemed that the Mayor directed the Finance Director and the County Attorney to follow up on some of them. Access to Kukui'ula Bay through the former Hoban property (previously listed as Former Hoban Property) Deputy County Attorney Jung stated that following the meeting with the Mayor he followed up on Hoban and he needs to determine from Lindsey Crawford what funding is left. Ms. Sadora stated that out of the initial $500,000, $140,000 was spent for parking lot improvements for Baby Beach and $121,200 was used for EIA fees. She stated that the balance is $238,000 and Kukui'ula is still open as long as the Commission and the Koloa Community Association support it. Deputy County Attorney Jung stated that the Ordinance states that if options 2 or 3 are not accomplished, then three years from the date of the enactment, the funds shall be used for Po'ipu Beach Park improvements. Ms. Sadora stated the according to Kukui'ula, they would be willing to utilize the funds for Hoban easement acquisition as initially intended. She stated that it may not require a dossier being sent to Council since it has the Mayor's support and the opportunity exists. Deputy County Attorney Jung suggested deferring the Hoban dossier until they can determine if they can work with that Condition and allow Kukui'ula some kind of waiver of the provision. Then, negotiations with the land owner and assessments would need to be conducted. 8 Salt Pond Beach Park Expansion (Mauka and West) and Buffer Area for Protection of Hanapepe Salt Pans (previously listed as Salt Pond Park Expansion) Ms. Sadora stated that the only change was the addition of paragraph 2 under opportunity. She stated that she could forward the dossier to the Planning Director to determine if there is internal processing with the Mayor that needs to be done before forwarding to Council. Commissioner Souza stated that the last draft was done in May and the draft states that communications have been ongoing with Tommy Oi. She stated that if communications have not been ongoing since May then it should be updated. Ms. Sadora stated that the information is the same as the initial communication, but there hasn't been any further research since the original opinion. She said that she could edit the dossier. Commissioner Souza questioned the Parks & Recreation Director's response of no plans to expand the Salt Pond Beach Park. Ms. Sadora stated that he was not aware of any plans to expand the park. Commissioner Souza questioned if he would be supportive in concept even if there may be no funds available now, or a good action to take now for future expansion. She recommended the following notation: "Based on communications with Tommy Oi of the Land Division of DLNR, there's an opportunity for the lease to be acquired." She stated that the lands are currently on a month to month revocable permit for agriculture. She suggested that staff obtain the information from Tommy Oi, if he is still at DLNR, and update the information. Ms. Sadora stated that she would confirm the information and revise the data based on how Commissioner Souza suggests. Commissioner Souza questioned the open circle in the 2nd to the last paragraph on page 2 that states County Attorney's office to determine if Open Space Commission funds can be utilized for this purpose if needed. Deputy County Attorney Jung stated that normally when executive orders are issued from the State, it's a straight order with no transfer of funding. He stated that Open Space funds could be utilized, but the question is whether or not they would be charged. Commissioner Souza stated that her recollection was that there might need to be a subdivision of the land so there would be a cost. Deputy County Attorney Jung noted that the process of going through the subdivision would require a little bit of funding, but exactions wouldn't be imposed on the County 9 since it's for a public purpose. He said the Public Works cost to install facilities would be more from the bond for parks projects versus the Open Space fund. He suggested leaving the open circle paragraph in case the State does not want to do an executive order and there needs to be a limited purchase. He stated there is value in the land for ag purposes. Commissioner Souza noted that it should state Open Space fund instead of Open Space Commission's fund. She also noted that whenever referencing the DLNR it should state "Department of Land and Natural Resources (DLNR)" when first mentioned. She suggested spelling out acronyms. MOTION: It was moved by Jean Souza seconded by Nathaniel Childs that the dossier be transmitted to the County Council subject to confirmation by Tommy Oi and Lenny Rapozo for the details of paragraph 4 with the Commission authorizing Commissioner Souza to be the final approving authority on that 4th paragraph, and the subject matter should be expanded to Salt Pond Beach Park expansion and protection of Hanapepe Salt Pans, Waimea District. All were in favor by unanimous voice vote — motion passed. MOTION: It was moved by Jean Souza seconded by Linda Dela Cruz to defer the dossier for the former Hoban property based on the recommendation of the Deputy County Attorney until the August 25, 2011 meeting. All were in favor by unanimous voice vote — motion passed. Deputy County Attorney Jung stated that he will work with the Finance Director and Lindsey Crawford to gather more information. He said if the funding is available they will need to do an updated appraisal. He noted that they wouldn't necessarily require Council authority for funding, but ultimately Council would need to sign off on the easement. He stated that he would also need to confirm with Parks & Recreation on whether or not they would want to enforce that Condition because they could also use the money for park improvements. Update and discussion on the Commission's participation at the upcoming Hawai'i Congress of Planning Officials (HCPO) 2011 conference in September on Kaua'i and creation and appointment of task group. There were no updates from staff. 10 NEW BUSINESS Scoping of project and appointment of members to the Commission's investigative committees regarding 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. Chair Kinnaman stated that at the last meeting the Commission agreed to concentrate on the six recommendations from the 2010 report. She stated that Commissioner Ventura sent her input on the formation of the investigative committees. Commissioner Souza stated that in the past they have conducted surveys and held community meetings and asked the public which sites they felt met the criteria that the funds could be used for. She stated that the number of responses have been about 100 to 150. She stated that the Commission decided they might want to concentrate this year's public input process on getting more input and support for the 6 proposals from the 2010 report. She stated that Commissioner Ventura noted that although the dossiers were being done for a couple of sites, other sites might have their own constituency and the public input process could be used with workshops focused on those specific sites. She stated that more information could be gathered and there could be more cohesion within the community for them to take the lead in putting forth packages leading to acquisition of those properties. Then if others have information they want to put forth they can also do that. She stated that Commissioner Ventura felt there should be 3 teams. Deputy County Attorney Jung stated that the investigative committees can have 2 or more members, but less than quorum. The scope of each committee needs to be defined at a publically noticed meeting and the meetings need to be limited to the scope. He stated that they can gather all the information then discuss and deliberate as a whole Commission. Commissioner Souza questioned if the size of the committees would be influenced by the number of seated commissioners. Deputy County Attorney Jung stated that committees need to consist of 2 or more members, less than quorum. He stated that committees are usually set at an odd number to break up voting, but since they wouldn't be voting, then 4 members would be fine. The Commission agreed on the following 3 committees and members: • Salt Pond/Lawa`i Kai to Port Allen: Commissioners Childs, Dela Cruz, Nakahara, Souza • Hoone Road/Hoban/Nukumoi Surf Shop: Commissioners Kinnaman, Nakahara, Souza • Piwai: Commissioners Childs, Ventura II Chair Kinnaman stated that the committee members are interchangeable as long as there are not more than four. Deputy County Attorney Jung stated that the committees can always be amended. He stated that members are interchangeable as long as they are redirected in an open meeting. He stated that all committees of the Commission shall be appointed by the Chairperson subject to confirmation by a majority vote. Chair Kinnaman stated that the investigative committee for Piwai would consist of Commissioners Childs and Ventura, the investigative committee for Hoone Road, Nukumoi, and Hoban would consist of Commissioners Nakahara, Kinnaman, and Souza, and the investigative committee for Salt Pond Beach Park expansion and preservation of salt pans, and Lawa'i to Port Allen shoreline would consist of Commissioners Childs, Dela Cruz, Souza and Nakahara. MOTION: It was moved by Jean Souza seconded by Nathaniel Childs to affirm the three committees and appointments of the members to the three committees. All were in favor by unanimous voice vote — motion passed. Chair Kinnaman questioned if there should be a standard questionnaire for additional public comments. Commissioner Souza suggested developing questions that the committees could use and agenda for the meetings. She also suggested a separate questionnaire that might be used in the newspapers. She questioned the timing of the workshops. The Commission agreed to target October for the public input workshops. Commissioner Souza stated that she would be willing to work with Commissioner Ventura to develop an agenda for the workshops and draft questions for others who might want to provide input without attending the workshops. She suggested taking advantage of community association networking to announce the workshops rather than attending the association meetings. The Commission agreed to hold the south shore workshop at Po'ipu Beach Pavilion, the West Side workshop at Salt Pond Pavilion, and the Piwai workshop at Kalaheo Neighborhood Center. Commissioner Souza suggested the whole month of October for the public input sessions, and holding the public meetings early in the month to allow people to provide additional comments later. Commissioner Nakahara stated that use of the pavilions may be challenging on weekends. He stated that they may want to consider neighborhood centers. 12 The Commission agreed on the Hanapepe Library could be an alternative if the pavilion is not available. Deputy County Attorney Jung questioned the time frame for the workshops. The Commission agreed on weekday evening meetings at 6:00 p.m. Commissioner Nakahara noted that he would not be available from October 7 to October 14. The Commission agreed to target 6:00 p.m. on October 5, for the Salt Pond/Lawa'i Kai workshop. Deputy County Attorney Jung suggested having the Piwai workshop following the Commission meeting on October 13 because the Piwai group may want to show their video slides again. The Commission agreed that the Piwai workshop would be on Thursday, October 13, and the Po'ipu workshop would be on Thursday October 6. MOTION: It was moved by Jean Souza and seconded by Linda Dela Cruz that the scope of each team shall be to investigate community based input, resources, and other issues relevant to at least one recommendation from the Open Space Commission's 2010 report as noted below. Each team is authorized to meet with the public, various experts, and other organizations to conduct their investigation. Each team shall create a report summarizing their findings as well as any recommendations the team wishes to put forth for consideration by the full Commission. Each team shall conduct their business during the time period of August 1, 2011 through October 31, 2011. Each team shall present their findings/recommendations at a duly noticed meeting of the Commission. All were in favor by unanimous voice vote — motion passed. Chair Kinnaman questioned if an agenda needs to be set for each meeting. Deputy County Attorney Jung stated that the investigative teams are not required by law to have and agenda and post it, but he stated that it would be helpful to have an order of how they are going to solicit the input. He stated that how they want to style either a small presentation or how they are going to garner testimony and input from the public can be decided at the next meeting. Commissioner Souza stated that she will work with Commissioner Ventura and requested that any commissioner who would like to provide additional input send it to staff. She requested that the locations be reserved by the next meeting. She 13 suggested reserving the main pavilions at the beach parks rather than the small pavilions. NEXT MEETING DATE AND AGENDA TOPICS FOR DISCUSSION Chair Kinnaman stated that the Commissioners should send staff information to forward to Commissioner Souza regarding questions that would be good for each committee. She stated that the next meeting will be on August 11. Deputy County Attorney Jung stated that he is still doing legal research on the status of Kauapea subdivision. He stated that he would have an update by the next meeting but would try to have an update on Kauapea and Hoban by August 25. Chair Kinnaman questioned project updates on priority recommendations. Deputy County Attorney Jung stated that they don't need to continue that agenda item but noted that there should be an item on the August 25 agenda regarding Commission's policy on receipt of communications. He said the next meeting should include how the Commission would like to approach the investigative committees in terms of organizing presentations and public input. Commissioner Souza stated that commissioners should forward their ideas for the agenda of the investigative team meetings to staff by next week Thursday so she can get them out ahead of time. She requested that meeting packets be sent to the Commissioners prior to the meetings. She requested that hard copies of the packets and information be sent to her office. ADJOURNMENT MOTION: It was moved by Jean Souza seconded by Linda Dela Cruz to adjourn the meeting. All were in favor by unanimous voice vote — motion passed. Meeting adjourned at 4:30 p.m. Respectfully submitted by: f Duke Nakamatsu, Support Clerk 14