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HomeMy WebLinkAbout2012-01-12 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 January 12, 2012, in the Lihu'e Civic Center, Moikeha Building Meeting Room 2A/2B. The following Commissioners were present: Joseph Figaroa, Chairperson, Maurice Nakahara, Vice Chairperson, Nathaniel Childs, Linda Dela Cruz, Tessie Kinnaman, and Jean Souza. The following Commissioners were absent: John Lydgate, Johanna Ventura, and (1) vacancy. The following staff members were present: Duke Nakamatsu and Deputy County Attorney Ian Jung. The following staff members were absent: Nani Sadora. CALL TO ORDER Chair Figaroa called the meeting to order at 1:05 p.m. APPROVAL OF AGENDA MOTION: It was moved by Maurice Nakahara 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 12/19/11. Regular meeting minutes of 12/19/11 — Deferred. MOTION: It was moved by Jean Souza and seconded by Maurice Nakahara to defer approval of the 12/19/11 meeting minutes. All were in favor by unanimous roll call vote - motion passed 1 ANNOUNCEMENTS Staff announced that Commissioner Lydgate is off-island and will return in February. Planning Director Michael Dahilig announced that there is a public process for the CZO update and a website kauai.gov/planning/czoupdate to see the first phase of the changes that involve formatting and recodification including easy reference tables. He stated that people are able to give feedback through next week Friday and it can be emailed to czoupdate@kauai.gov. He noted that the current CZO is online. He stated that substantive changes to the CZO will be in phase 2 once it is approved by the County Council. Commissioner Souza questioned which version of the CZO is online. Planning Director Dahilig stated that the existing CZO with the additional Ordinances that have happened is online, as well as the proposed version that is up for comment on a separate page that has been codified and reformatted. Commissioner Souza stated that the significance of the CZO to the Commission is that if someone comes in for proposed changes, the conditions or standards are defined in the CZO. She stated that some of the Commission's concerns would need to be reflected there. Planning Director Dahilig stated that if the Commission is looking to have the Department compel exactions or those types of things, it would happen more in phase 2 of the update project. He stated that the first phase concerns renumbering, reformatting, the new charts, and the inclusion of all the Ordinances that have been passed since the last codification in the 90s. RECEIPT OF ITEMS FOR THE RECORD There were no items to receive for the record. 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 2 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 did not have anything to discuss on this agenda item. Update on proposed amendments to Ordinance 812. Deputy County Attorney Jung announced that the public hearing for the Bill to amend Ordinance 812 has been scheduled for Wednesday, January 24, 2012 at 1:30 p.m. He stated that Ms. Sadora might do a presentation and he would be there to answer questions. Commissioner Souza noted that two Commissioners were appointed to attend. Deputy County Attorney Jung stated that the public hearing would be to receive public testimony. He stated that any edits to the language would be done at the committee meeting. He stated that the committee meeting would be more important for the Commissioners to attend. Chair Figaroa questioned the date of the committee meeting. Deputy County Attorney Jung stated that the committee meeting has not yet been scheduled because the item can be deferred or they could schedule another public hearing. He stated that staff will notify the Commission when they have the committee assignment. Commissioner Souza questioned what happens at public hearings. Deputy County Attorney Jung stated that the Chair usually limits the hearing to public testimony, but stated that it is sometimes good for the public to receive background information before they testify. Chair Figaroa clarified that the floor would be open to advocate or give a supportive speech. Commissioner Souza questioned if the Commission would be testifying at the hearing. Deputy County Attorney Jung stated that it would be up to the Commission. He stated that the Commissioners are officers of the County so they would be testifying to their role in the County. Chair Figaroa stated that his thoughts were that they could advocate for it so that it is kept a priority and not deferred. 3 Deputy County Attorney Jung noted that most of the questions would be asked in the committee meeting. Commissioner Kinnaman clarified that if it is deferred or received without being referred to committee, then it would sit on the shelf. Commissioner Souza questioned who submitted the draft bill. Deputy County Attorney Jung stated that the Mayor introduced it on behalf of the Commission through the Planning Department. He noted that amendments can be proposed at first reading, but there have been no proposed amendments to the submitted package so far. 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. Commissioner Souza stated that she was not prepared for discussion today, but felt that the Commission should review the rules because they were adopted within the first year of the Commission's operation. She stated that they have learned a lot about how things work or don't work since then. She stated that she felt that the current priority should be the annual report. MOTION: It was moved by Nathaniel Childs and seconded by Maurice Nakahara to defer this agenda item. All were in favor by unanimous roll call vote — motion passed. Update and discussion of the Commission's work plan/timeline of events and activities through 2012, to include future Commission education topics. Commissioner Souza suggested that if the Commissioner's have items to discuss with people that they want to invite, they should probably defer it until February or March. Commissioner Childs questioned if the next couple of agendas should be only regarding the annual report. Commissioner Souza noted that the public hearing regarding Ordinance 812 will have passed before the next meeting so they should probably have a debrief. She stated that the Commission usually looks at the calendar for the year and decides what should happen month by month rather than meeting by meeting. Chair Figaroa stated that he could look at the schedule and set the future agendas. 4 Commissioner Childs suggested that Commissioner Souza assist Chair Figaroa with the work plan/timeline for the year. Commissioner Souza noted that her term will expire on May 1 and she stated that she would not be interested in a 3 month holdover due to her current workload. She stated that she would be available if they are unable to fill the position. She noted that Commissioner Kinnaman's term also expires on May 1. Commissioner Childs suggested focusing on the annual report for the next meeting. Commissioner Souza stated that item VI A is a place holder, Ordinance 812 should have some kind of update, VI D could be quick, and VI C could be taken out. Chair Figaroa stated that they could timeline the agenda for 2 months, then determine where they are from there. He agreed that the annual report should have been out in December. Commissioner Kinnaman stated that she would prefer to see all of the items on the agenda and they could defer individual items. She stated that they might forget to put the items back on the agenda in 3 months. She stated that it would be easier to defer the items. Commissioner Souza stated that if all items remain on the agenda, the public would see that there is no change. She stated that she received comments that the Commission is not getting anything done since the agenda is always the same. She stated that she explained that items are kept on the agenda as a place holder, so they understood. Commissioner Kinnaman stated that it can still be explained if people ask. Chair Figaroa clarified that Commissioner Kinnaman would feel safer if the items were kept on the agenda so they don't forget about them. He asked staff if they would be able to remind the Chair of what items need to be put back on the agenda. Commissioner Kinnaman noted that if items are taken off the agenda, they would be considered new business when they are placed back on the agenda. Commissioner Childs agreed that they should leave all the items on the agenda and they can defer. Deputy County Attorney Jung stated that if it is an item that they were discussing, even though it is perceivably new business, it could still be unfinished business. He stated that if they want to keep the agenda consistent they could always defer items, but if they want to limit the agenda then the public can testimony on that one item. He stated that keeping track would be fairly reasonable because they can always look back to prior agendas. 5 Commissioner Kinnaman stated that they could always take public testimony before deferring any item. NEW BUSINESS Review and approval of the Commission's 2011 Report to the Kaua'i County Council and the Mayor. Commissioner Souza stated that at the last meeting, the Commission decided to prioritize their recommendations and to include a section to discuss other sites. She stated that the Commission decided on Salt Pond, Piwai, and Kaneiolouma for priority acquisitions and to list Hoban, Lawa`i Kai to Port Allen, and Kauapea Beach in another section. She stated that she adopted the outline from the 2010 report and updated the program background section with blanks for current information. She stated that other chapters included more changes. She stated that the outline for the report was as follows: 1. Program background. 2. Recommendations for acquisition. 3. Public input process. 4. 2011 Year in review. 5. Conclusions. Chair Figaroa stated that he will need to leave at 3:30 p.m. and requested that they set the next meeting's agenda first, then continue discussing the report. He stated that he would also like to read the draft report on his own time and present it back with his suggestions. NEXT MEETING DATE AND AGENDA TOPICS FOR DISCUSSION Chair Figaroa stated that the agenda for the January 26 meeting will be the same. Commissioner Childs suggested that Commissioner Souza sit with Chair Figaroa to note any suggestions for the Commission's work plan/timeline of events through 2012, and then the Commission can spend the remaining time discussing the report to Council. 6 Update and discussion of the Commission's work plan/timeline of events and activities through 2012, to include future Commission education topics. (Continued) Chair Figaroa stated that the Commission should discuss the draft report that was prepared by Commissioner Souza. He also requested that Commissioners have time to read the report on their own, edit it, and send their suggestions and editing to staff by 9:00 a.m. on Monday, January 17, then staff will forward them to him to assemble, and he would forward them to Commissioner Souza to prepare a final draft by January 23 for approval on January 26. Commissioner Souza stated that the Commissioners will receive the document earlier in the week so they will have a chance to look at it before the meeting and hopefully take action on it at the meeting so staff can get it to the printers. She noted that the report will take at least a couple of weeks to print. She stated that in the past, they have done the report in May or June, but they wanted to be involved in the budget discussions that occur in early Spring, so that was the urgency in finalizing the report as soon as possible. Chair Figaroa clarified that it would take staff about 2 weeks to get the report to Council because they would need to procure bids from the printers. Commissioner Souza noted that she would be off island from January 16 to January 19 without computer access, so the staff will send the edits to Chair Figaroa to assemble and then he will send them to her to finalize on January 20. Commissioner Kinnaman questioned if the appendices will be included in the final draft. Commissioner Souza stated that the Commission is handling the text and staff would assemble the appendices. She stated that the Council should have the report in hand by February. She stated that the committee to select the 9th member will need to get in gear because there is a window of opportunity with 8 seated members to select the 9th member. Chair Figaroa stated that January's priority will be the report. He stated that the process for recruiting the 9th member will have started by February and the committee would hopefully be able to make a recommendation. Commissioner Souza stated that if the Commission needs to produce a report this year, the goal would be to have it done in December, and public input should be targeted for summer. She stated that if the Ordinance 812 is adopted as proposed, the Commission would produce a report every other year and could spend time this year helping with implementation. 7 Commissioner Nakahara clarified that if the Ordinance passes, then the Commission would be producing a report biennially and they would be able to spend the rest of the year working on the remaining agenda items. Deputy County Attorney Jung noted that the public hearing is on January 25. He stated that if everything goes smoothly, the committee meeting would be the following Wednesday. He stated that if they can get their report done in that meeting, then the next Council meeting would be where action is taken. He noted that it would probably be another month or two. Review and approval of the Commission's 2011 Report to the Kaua'i County Council and the Mayor. (Continued) Commissioner Souza stated that page 1 of the draft contains standard wording. She requested that staff fill in the current balance of the fund. She stated that chapter 2 is divided into two sections, the first for recommendations for priority acquisition. Commissioner Childs stated that the 3rd line of the first paragraph should state "the properties listed in priority order are" and delete "geographic order". Chair Figaroa requested a change to the 3rd paragraph under the Salt Pond Park Expansion from "provides an opportunity" to "provides the opportunity". Commissioner Kinnaman requested that in the same paragraph, "revocable permit" be changed to "annual revocable permit". Commissioner Souza requested that staff check with Tommy Oi with the DLNR to determine if the property is still on an annual revocable permit. Commissioner Childs stated that because the Kaneiolouma Heiau complex expansion is a sensitive topic he felt that it should be further explained. Deputy County Attorney Jung stated that he could try to get a copy of the stewardship agreement with the County which might aid in the wording. Commissioner Souza noted that they are not talking about the heiau area, but the Nukumoi Surf Shop area which would serve as the entrance to the area. Chair Figaroa stated that if there were more explanation as to the cultural significance of it being the original entrance to the heiau, it would better explain the reason that it is on the list. He stated that it wouldn't hurt to include what the complex was used for. Commissioner Souza questioned if the stewardship agreement mentions the cultural significance of the area. 8 Deputy County Attorney Jung stated that Deputy County Attorney Trask would have the agreement. Commissioner Souza requested that he send a copy of the agreement to Chair Figaroa. Chair Figaroa stated that he will take a stab at the wording for Kaneiolouma. Commissioner Nakahara questioned if there was a way that the surf shop could still be maintained even though it is the traditional entrance to the heiau. Commissioner Souza stated that she was not aware if the information has changed, but her understanding was that if the surf shop were acquired, it would serve as an interpretive center and entrance to the heiau. Deputy County Attorney Jung stated that it would probably be difficult to maintain both operations. He stated that the Nukumoi Surf shop leases the property form the Sinclair family so if there were some kind of a transaction it would likely be without a lease. Chair Figaroa stated that he will add more detail on historical background into that section. Commissioner Souza stated that there were three items under other recommendations. She stated that access to Kukui`ula Bay through the former Hoban property has information from the dossier and the 2010 report. Commissioner Childs stated that there should be an introductory paragraph for the other recommendations. He stated that they should note that the following recommendations have extenuating circumstances such as reports needed, or legal issues. Commissioner Kinnaman noted a correction to the second sentence under the access to Kukui`ula Bay from "exciting" to "existing" County of Kaua'i drainage easement. Commissioner Childs stated that they should mention that the funds were made available but due to lapse it is now in Parks & Recreation. Deputy County Attorney Jung stated that he can work with staff regarding the Zoning Amendment language. Commissioner Childs stated that the Lawa`i Kai to Port Allen recommendation will take a lot of work. He stated that the land is not on the market and they don't even know where the accesses would be. He stated that it is not a proposal, but a statement that the Commission would like to look into it. Commissioner Souza stated that it would be good if Commissioner Childs could work on the wording. 9 Commissioner Nakahara noted that the description states that the Commission has determined that more work is needed. Commissioner Kinnaman questioned if the Commission or various departments would have to follow up. Deputy County Attorney Jung noted that the land is agricultural so they can't impose any easements through subdivision action or SMA permit. He stated that it would be difficult to force right of way on accesses unless they do a condemnation action. Commissioner Souza stated that one of the reasons for exploring it more was because the public asked if the Commission could facilitate discussion with the land owner. She stated that the proposal would benefit from more people working on it before it is taken to the Council because there are too many unanswered questions. Deputy County Attorney Jung stated that he raised the issue to the manager of the property and he was willing to prepare a letter explaining the liability issues and the reasons why they have to be closed during harvesting season. Chair Figaroa asked if it was a big issue to locals that it is closed part of the time. Commissioner Childs stated that people don't like when anything is closed. Commissioner Souza noted that it's not only closed for one month, but 4 months. Deputy County Attorney Jung stated that there is a certain type of fish that runs through that area. Commissioner Nakahara stated that halalu or baby akule are in that area. Commissioner Childs stated that it affects people's livelihood. Commissioner Dela Cruz stated that the fish are seasonal. Commissioner Souza noted that even if people obtain a permit, they are only allowed during certain hours of the day. Chair Figaroa questioned if there is a waiver that people can sign if they want to access the area. Commissioner Souza stated that there is already something like that in place, but more work needs to be done and more discussion is needed. She stated that the Commission is interested in it because the public is still interested in it. 10 Commissioner Childs stated that their intent is to bring awareness to the Council as to what future action can be taken whether financial or the County stating that they can't limit access. Commissioner Kinnaman questioned if there were existing applications or rezoning for a subdivision and photovoltaic system on that portion of land. Deputy County Attorney Jung stated that it was for a different parcel on the industrial side. He stated that they were considering a conservation subzone in Lawa'i Kai and having access come down from the West side of Lawa'i Kai Bay, but they were looking at having a restriction on access to preserve the marine resources, so it still wouldn't be open during the harvesting season. Commissioner Souza stated that is the National Tropical Botanical Gardens which is linked. She stated that without working out the details, it puts the public in a difficult situation in which NTBG is telling people to go the other way, and the coffee company saying they can't go this way. Commissioner Kinnaman questioned if there was a subdivision proposed by A&B on the makai side. She stated that there would automatically be access through Ordinance 777. Deputy County Attorney Jung stated that it wasn't part of the parcel that is agricultural. He stated that Ordinance 777 would only apply to that specific lot, not adjacent lots. Commissioner Souza stated that what NTBG is doing doesn't meet the needs of the people that came to the public meeting. She stated that they were interested in the shoreline towards Port Allen. Commissioner Childs stated that it still makes sense to open discussion. He stated that whether it is NTBG or Kaua'i Coffee, the Commission would like to find out what can be done to maintain access. Regarding Kauapea, Commissioner Childs stated that they should mention that the safety of the public during winter months, coming down the other access, can be dangerous and sometimes impossible. Commissioner Souza stated that she mentioned that it has been a long standing issue and the Planning Department had committed to the Council that a report would be submitted at the end of calendar year 2010. She noted that one was not submitted. Deputy County Attorney Jung stated that it looks like it will be coming to a head shortly, but he did not have a specific time frame. Commissioner Souza stated that they are taking the opportunity to bring it up again. She stated that it doesn't relate to acquisition directly because it happened a while back 11 with lack of filing. She stated that unless the Commission knows that it is not owed to the County, they can't say that it should be acquired with funds. Deputy County Attorney Jung stated he had no problem with it being included on the list because there is always the option of condemnation. Commissioner Childs stated that for their explanation for other recommendations they can state why they are being recommended specifically at the beginning of each recommendation. He stated that even though they don't fit under the header of acquisition they are still being brought to the Commission's attention by the public. Commissioner Souza requested help with the section on the public input process. She stated that last year's report can be used as a template. Commissioner Nakahara agreed to write the summary of the survey results. Commissioner Childs stated that on page 8, under the year in review, he requested replacing the word "important" with "imperative" in the last sentence. Commissioner Souza suggested adding "because the Commission is an advisory body" to the end of the last sentence. Chair Figaroa turned the meeting over to Vice Chair Nakahara at 3:30 p.m. Commissioner Souza stated that additional edits should be emailed to staff by 9:00 a.m. on Monday. She questioned if staff prepared a report on the public meetings that were held. Deputy County Attorney Jung suggested that Ms. Sadora will need some time to incorporate the photos and maps. Commissioner Souza stated that the sites in the priority recommendations were all from last year and will only need to be renumbered. She stated that the Commission will be working on the text. She stated that the 2011 year in review mentions the work on Ordinance 812 and the vacancies. She noted that 2011 was the year with the fewest commissioners. She requested that staff determine the number of meetings that were missed due to lack of quorum. She mentioned that the Commission is now poised to work on appointment of the ninth Commissioner. Commissioner Childs stated that they broke into community action groups and submitted the Ordinance amendments. Commissioner Souza stated that they can include the dossier process. She stated that the Commission spent a lot of time discussing how they could help the Council to implement recommendations. She stated that she will work on the cover page and the executive summary. She said that the appendices would include the Charter, 12 Ordinance 812, and the abstracts of each acquisition recommendation. She stated that if Commissioners have changes to the texts that go with the maps they should include them in the comments to staff. She stated that they can still include maps for the other recommendations that would go in the same order as the text. Commissioner Souza stated that the priority acquisitions and other recommendations should be labeled on the island map by different dots. She stated that prior year recommendations need to be updated to include last year's recommendations. Commissioner Childs stated that they should explain why the Commission decided to list the recommendations in priority order. He stated that anything they could do to pressure the Council would be good. He stated that they are simplifying the list for the community's benefit to encourage action. He stated that if no action is taken, then the Commission wasted a lot of man hours as volunteers. Commissioner Souza questioned the survey results. Commissioner Nakahara stated that he would summarize the survey results in the appendix. He stated that in the 2010 report includes unresolved issues. He questioned if Kauapea can be included in this year's report as an unresolved access issue. Commissioner Souza stated that she incorporated the wording from the past report for the information under the Kauapea Beach Access. She stated that she was okay with changing the title to "Kauapea Beach Access and other unresolved public access issues." She stated that the Commissioners' deadlines would be Tuesday at 9:00 a.m. to submit comments to staff. She requested that staff distribute the document with all of the attachments on the 23rd so that when the Commission meets on the 26t", they can take action on the final document. ADJOURNMENT MOTION: It was moved by Jean Souza and seconded Linda Dela Cruz by to adjourn the meeting. All were in favor by unanimous voice vote — motion passed. The meeting adjourned at 3:50 p.m. R@spectfully submitted by: Duke Nakamatsu, Support Clerk 13