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HomeMy WebLinkAbout2012-02-09 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/2B MINUTES A regular meeting of the County of Kaua'i, Public Access, Open Space, & Natural Resources Preservation Fund Commission of the County of Kaua'i was held on February 9, 2012, in the Llhu'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, John Lydgate, and Jean Souza. The following Commissioners were absent: Johanna Ventura, and (1) vacancy. 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 1:22 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 voice vote — motion passed. APPROVAL OF MEETING MINUTES — Regular meeting minutes of 12/19/11 and 1/12/12. Regular meeting minutes of 12/19/11 — Approved. MOTION: It was moved by Maurice Nakahara and seconded by Nathaniel Childs to approve the 12/19/11 meeting minutes. All were in favor by unanimous voice vote - motion passed 1 Regular meeting minutes of 1/12/12 — Deferred. MOTION: It was moved by John Lydgate and seconded by Tessie Kinnaman to defer approval of the 1/12/12 meeting minutes. All were in favor by unanimous voice vote - motion passed Regular meeting minutes of 1/26/12 — Deferred. The minutes of the 1/26/12 meeting were not available for distribution by staff. MOTION: It was moved by Nathaniel Childs and seconded by Maurice Nakahara to defer approval of the 1/26/12 meeting minutes. All were in favor by unanimous voice vote - motion passed ANNOUNCEMENTS There were no announcements. 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 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 had no items to discuss. 2 Update on proposed amendments to Ordinance 812. Deputy County Attorney Jung stated that his understanding was that the Council questioned the ability to raise the amount allocated from the real property taxes from .5% to a higher amount. He stated that Council members also expressed reservations with the intent on looking at conservation easements. Commissioner Souza stated that Deputy County Attorney Jung was not at the meeting and she disagreed that the Council had a problem with conservation easements. Deputy County Attorney Jung stated that he reviewed the minutes and spoke with Council Services. He stated that Council had reservations with conservation easements because they saw it as an opportunity for large land owners to get money out of the County. He stated that another question was in looking at the scoping of responsibility and if the authority shifted from Council allocating funds back to the Commission and the Department, but he noted that it is clear in the Ordinance and the draft Ordinance that the Council sets the allocation of funds and only the Council can act via Ordinance. He stated that they will have to clarify on open floor at the next meeting. Commissioner Childs questioned if the Council was not in favor of raising the amount allocated into the funds from .5%. Deputy County Attorney Jung stated that the Council was interested, but they had to look at the legalities. He stated that the Charter states a minimum, so an increase may have to be via Ordinance. Commissioner Kinnaman questioned the concern regarding authority. Deputy County Attorney Jung stated that there was a concern that the authority was shifting from the Council to the Planning Department and the Open Space Commission to allocate funds. However, he noted that the Ordinance is clear that the allocation of funds goes through Ordinance and only the Council can issue Ordinances. He stated that the Council will be the final authority taking action on recommendations from the Commission. Commissioner Kinnaman stated that she didn't see any confusion at the meeting. Deputy County Attorney Jung stated that is what he was told. Commissioner Souza stated that she and Commissioner Kinnaman were at the Council meeting with Ms. Sadora and the Planning Director. She stated that they were at the meeting from 1:30 p.m. but the agenda item was not taken up until around 5:00 p.m. She stated the Chair Figaroa was there in the beginning and she read his testimony into the record stating that the Commission was in support of the Bill. She stated that she explained to the Council the rationale behind the changes. She noted that the point about the .5% was in later discussions because it wasn't a change that had been 3 proposed. She stated she reviewed some of the areas that the Commission discussed in the past and that a prior composition of the Commission discussed a possible recommendation that the percentage be raised to 2%. She stated that it didn't pass the Commission because there was concern that the Council should be the ones to make the determination and it was during the time when County employees were on furloughs. She stated that 2% may be consistent with the Big Island's allotment. She stated that she did not think there were any questions regarding the three changes to the purpose of the fund. She stated that the suggestion that the report be submitted from annual to biennial generated some discussion and some of the Council members discussed the idea of a three year report or a five year report and maybe an annual report on the Commission's progress on meeting those plans. She stated that there was a question about how much time is actually spent on doing the annual report and she estimated that it was about 6 months. She stated that by cutting back on the number of annual reports that need to be done, there could be more time devoted to substantive things that are going on related to public access and open space. She stated that the Commission may want to have discussions and communicate to the committee chair to provide feedback on their preference. She stated that a couple of years ago, when the topic came up, Councilwoman Yukimura suggested a biennial report which encouraged the Commission to submit the proposal, but now some of the Council members were thinking that every other year might still be too frequent. Commissioner Childs noted that Commissioners are going to change. He stated that the idea of new people working on the same report doesn't make sense to him. He stated that two years is okay, but the point would be to take action on open space. He stated that if they are presenting every three years, they are not doing their job for the community. Commissioner Souza stated that the Commission would still present annual updates. She stated that she felt there needed to be a discussion on how things get implemented and how the Commission gets involved. She stated that she thought the Council was okay about the proposed changes to the recruitment of the ninth Commissioner. She stated that the Commission did not propose a change to the initial terms of appointments, but one of the Council members suggested that it be deleted from the Ordinance because the initial appointments were made 6 years ago. She stated that the most discussion was on the section related to the roles of the Commission. She stated that she didn't realize until Deputy County Attorney Jung said that the Council had a question about whether the Commission would still be advisory to the Council. She stated that she didn't get that when the conversation was occurring. She felt that the Commission agrees that they are advisory to the Council. She stated that she didn't believe that she was implying anything different. Deputy County Attorney Jung stated that he was told that some of the Council members wanted more time because they had not yet read the amendments. He stated that it is explicit that appropriations from the fund shall be made by Ordinance and only the Council can issue Ordinances. He stated that his take from the comments that he'll have to respond to is whether or not the Council still retains the authority to expend 4 money. He stated that maybe some of the members were unclear about the distinction between appropriation of administrative expensive and appropriation of funds to actually purchase property. He stated that he will explain it to the Council. Commissioner Souza stated that the 5% administrative fees would be for the Deputy County Attorney or the Planning Director to address. She stated that if the Council had a problem with the word "advocate", she clarified that the Commission is an advocate for more public access, open space, and natural resources preservation on behalf of that general goal and not necessarily only for the County of Kaua'i. She stated that it seemed as though the Council was going to work on the wording. Commissioner Kinnaman stated that regarding the administration of funds, Council Chair Furfaro explained to the Commission several years ago that the 5% administrative fee could be used for legal work on acquisitions, surveying, consultants, and/or project manager for acquisition that was separate from the staff funding. Deputy County Attorney Jung stated that his understanding was that it is held in a separate account and could be utilized for appraisals. Commissioner Kinnaman stated that the Council questioned if any of those funds were used for the unresolved issues. Commissioner Souza stated that the issue related to Kauapea East and it being one of many unresolved issues over the years. She said that the Council members were very concerned that the unresolved issues have not been addressed or resolved. She stated that the Council Chair felt that there was a way in which appraisals and other things can be funded through the administrative fees. Deputy County Attorney Jung stated that for the Hodge property, the land owner paid for all the appraisals. He stated that for Hoban, the appraisal was done and resolution for condemnation was forwarded to Council, but they never took action. Commissioner Souza stated that regarding the appropriation of funds, there was a questioned on whether private owners should, along with non-profits and government agencies, be used to acquire an interest in property with the requirement that lands or entitlements benefit the public and are protected in perpetuity. She stated that Council members didn't have a problem with non-profits holding the interest but had a problem with private owners holding interest. She stated that they asked if there was any project that is dependent on the Ordinance being approved in order for it to go forward and she wasn't aware of any. She stated that some of the Council members may want to take the word "private owner" out. She noted that she has seen conservation easements on O'ahu that are held by private owners that have been effective. She stated that she and the Planning Director mentioned that there might be options available. She stated that she wouldn't want to see private owners taken out. She said that as long as they are doing what they are supposed to be doing, she didn't have a problem with that. 5 Deputy County Attorney Jung stated that many times private owners will impose deed restrictions upon themselves. He stated that if the Commission works with a private owner to do it, there would be no transfer of funds. He stated that it would be critical to keep it in the Ordinance for that option where a private land owner wants to dedicate land for preservation purposes and eliminate density. He stated that he would try to explain it to the Council. Commissioner Souza stated that the Council wanted an explanation, background, or rationale so the Planning Department was going to prepare something. She stated that it was a televised meeting. Deputy County Attorney Jung stated that you can view it as a live stream on the County website. Commissioner Souza stated that there was a question about how many meetings were missed due to lack of quorum. She stated that the Commission missed 6 out of 24 meetings due to lack of quorum in 2011 and noted that it was more than in the past. Chair Figaroa tabled items C & D and took item E out of order. Review and approval of the Commission's 2011 Report to the Kaua'i County Council and the Mayor. Chair Figaroa noted that the only change that the Commission was anticipating since the last meeting was the call for action section. Commissioner Souza stated that Commissioner Childs sent her a draft call for action that she edited. Chair Figaroa stated that he read the draft and has no problems. Commissioner Childs stated that it sounded good to him. Commissioner Souza stated that the rationale is that there is frustration on the lack of implementation of the Commission's recommendations. She stated that for all of the recommendations over the years, the Council has only acquired one property partially with use of the Open Space funds but also with other money. She stated that with Commissioner Kinnaman's and her terms expiring in May and since they are the last of the original Commissioners, there is a sense of frustration that they have to wait so long to see movement. She stated that the call for action section is the Commission's cry for help. She stated that if the Ordinance passes, it will be helpful, but if the Commission can agree to a process to get some of the projects approved it would also be helpful. Commissioner Lydgate questioned how they would create the sense of urgency. 6 Chair Figaroa stated that the Commission is adding the call for action section to help the Council to realize that all of the recommendations are pending the call for action. Commissioner Lydgate questioned the objectives and how they would accomplish the call for action. Commissioner Souza stated that they will have the chance to testify when the report is presented to the Council. She stated that the Commission could mention the need for a process to the Council Committee Chair since they are working on the Ordinance. She noted that the now Council Planning Committee Chair helped the Commission to come up with a mission statement and goals years ago as a consultant. She stated that a draft process was drawn up but it was never adopted. She stated that they don't know if the dossier process will agree with the Council. Commissioner Lydgate questioned what the most effective method would be. He questioned if it should be publicized. Commissioner Souza stated that they have a good relationship and reputation with the Council but progress is measured by what the Council approves since the Commission is purely advisory to the Council. She stated that when the Council wrote Ordinance 812, they had certain goals in mind for the Commission to achieve. She stated that she informed them that the unresolved issues are in the Planning Department's Court. Commissioner Lydgate noted that there is a three month window before Commissioners Souza's and Kinnaman's terms expire so he felt a sense of urgency. Chair Figaroa stated that when the Commission presents their report, they can vocalize the urgency. He stated that yesterday's Committee meeting was the Commission's chance to advocate for the Ordinance but also express the urgency. Commissioner Lydgate questioned what happens if the Council does not agree with the recommendations. Commissioner Childs stated that it's not so much they will disagree, but it may not be acted upon. Commissioner Lydgate stated that it is urgent and crucial. Commissioner Souza stated that the urgency is not that their terms are expiring but the appeal of people who may want to serve on the Commission. She stated that people want to be on a Commission that accomplishes things so they feel that their time is worth it. She stated that the newer Commissioners are looking at those who have served for 6 years with only one acquisition. He stated that it makes a difference for the newer Commissioners. She questioned at what point the Commission would start working on projects if the Ordinance is approved and if they would only work on projects that the Council approves. She stated that it seemed like Council Chair Furfaro wished 7 that the Commission or the Planning Department had tapped into the $79,000 administrative fees to acquire information on projects that haven't even been approved yet. Deputy County Attorney Jung stated that the Commission's battle is that if they do the ground work and they spend money to get appraisals and petition, the Council may not want to pursue it. He stated that the Commission's perspective is that they want to get a feel of what the Council would want and then work with the Department to do the appraisals. Commissioner Kinnaman stated that the difficulty is when it leaves the Commission it doesn't go straight to the Council. Deputy County Attorney Jung stated that it is sent to through the Mayor but the Council makes the decision. Commissioner Souza noted that the dossier for the former Hoban property was approved by the Commission three months ago and they don't know where it is. She stated that they last heard it was with the Administration and is still not at the Council. Commissioner Childs stated that the first paragraph belongs somewhere else in the report. He stated that the first sentence should be that the Commission unanimously agrees that some action should be taken on one or more of these properties. He stated that they want to make a bold statement. Commissioner Lydgate questioned the $79,000. Commissioner Souza stated that '/2 of 1% of the real property taxes go to the Open Space Fund. Chair Figaroa stated that currently the Open Space Fund balance is $1,558,436. Commissioner Souza stated that 5% of that total can be expended by the Planning Department for administrative purposes. She noted that mileage reimbursements and HCPO fees are allocated from that administrative fund. She stated that the Council Chair stated that subdivision and appraisal fees can also come from that fund. She stated that the Commission is looking at the $1 .5 million and voted on the Salt Pond expansion mauka and west, Piwai recreation area, and a parcel the Nukumoi Surf Shop parcel as the priority recommendations. Chair Figaroa stated that he agrees with Commissioner Child's suggested opening statement. Commissioner Childs stated that he felt the third sentence in the last paragraph should be broken up. He suggested that the sentence begin with "More importantly" instead of "And". 8 Commissioner Souza stated that it is a powerful statement. She stated that she intended it to read: More importantly, the public's trust to meet its needs for public access, open space, and natural and cultural preservation through the Fund, will continue to be unfulfilled, and our potential to help provide a lasting legacy for future generations of residents and visitors will largely be unmet. She stated that if there is a way to make it more impactful it would be good. Commissioner Childs stated that there should be a period after "unfulfilled" and it would still be powerful but flow better. Commissioner Kinnaman stated that she would like to keep it the same because it is just as powerful. Commissioner Lydgate stated that he agreed with Commissioner Childs on a two step approach. Chair Figaroa called for a show of hands on who agreed to keep the paragraph as is and who agreed to modify it. Four Commissioners agreed to modify the sentence, Commissioners Nakahara and Kinnaman agreed to keep it the way it is, and Commissioner Souza chose to abstain. Deputy County Attorney Jung noted that an abstaining vote goes with the majority. Commissioner Souza stated that she wrote it the way she best felt it should be worded, but noted that communication is two way and if four commissioners felt that it was too long and the point was not received as intended then it is not effective. Commissioner Childs stated that Commissioner Souza did a great job, but it can be just as powerful as two sentences and they are trying to make two different points in one sentence. Commissioner Souza stated that she will change it. Commissioner Childs stated that it is more grammatical than criticism. Deputy County Attorney Jung stated that the new style of writing is to make it as simple as possible and breaking it up conveys the method rather than the reader possibly getting lost. He stated that it's the modern English grammar theory. He stated that ultimately it would be the Commission's call because it is a style. 9 Commissioner Souza stated that there are some edits that would be required on portions that staff is working on. She stated that there could be an executive summary and a conclusions section. She questioned if an executive summary is needed. Deputy County Attorney Jung stated that it would be helpful because may people just read the executive session. Chair Figaroa stated that it is good to read entire reports but if people only have 5 or 10 minutes they would base their judgment from the executive summary. Commissioner Souza stated that she can draft an executive summary for the Commission to approve. Ms. Sadora stated that the only changes to the abstracts in the appendices would be to the titles. She questioned if there were going to be changes to the language that are part of the abstracts. She noted that the only current changes that were made were to the assessment values. Commissioner Souza noted that the Commission made edits to the wording of the recommendation sections on pages 3 and 4. Ms. Sadora questioned if the Commission would like their bullets to be adopted into the abstracts. Commissioner Souza stated that the commissioners should review the abstracts and determine if there need to be changes to the bullets while she drafts the executive summary. Ms. Sadora stated that the Commission may want to consider adding more language to the Piwai abstract. The Commission discussed the Council's suggestion of possibly submitting their report every 3 or 5 years. MOTION: It was moved by Nathaniel Childs and seconded by Linda Dela Cruz to reaffirm the Commission's proposal in the draft Ordinance to submit their annual report to the County Council biennially. All were in favor by unanimous voice vote - motion passed Commissioner Souza suggested that the Planning Department purchase an Elmo overhead projector. She stated that staff would not have to leave the meeting to make copies and could display documents from the Elmo. She stated that as the Commission revises documents they can all see it at one time rather than just hear it. Commissioner Childs stated that a top of the line model would be approximately $800. 10 Commissioner Souza stated that a standard model would probably run around $300- $500. MOTION: It was moved by Jean Souza and seconded by Nathaniel Childs to recommend that the Planning Department purchase and Elmo or equivalent device that can project printed material to be used during Commission meetings. All were in favor by unanimous voice vote - motion passed Commissioner Souza read her draft for the executive summary. She stated that she edited the executive summary from the 2010 report and incorporated what the Commission agreed in concept for the body of the 2011 Report. She stated that the program background would be the same. She stated that status of the fund would be $1,558,436 for the fiscal year 2011-2012. Commission Recommendations The Open Space Commission recommends that acquisition of the fee interest or other property rights for the following properties utilizing the fund. The properties are listed in priority order. 1. Salt Pond Beach Park Expansion (Mauka and West) and Buffer Area for Protection of Hanapepe Salt Pans (Waimea District). 2. Proposed Piwai (Omao) Recreation Area (Koloa District) 3. Kaneiolouma Heiau Complex preservation Area Expansion (South) (Koloa District) Other Recommendations • Access to Kukui'ula Bay through the Former Hoban Property (Koloa District) • Restoration and Expansion of Shoreline Access, Lawa'i Kai to Port Allen (Koloa District) • Kauapea Beach Access and Other Unresolved Public Issues 2011 Public Input Process The Commission provided opportunities for public input in 2011 through: • Regular Commission meetings • 2011 public meetings in October at Hanapepe, Po'ipu and Llhu'e. • Public survey from October 5-31, 2011 One hundred twenty people attended the public meetings, twenty-six online surveys were submitted, and about fifteen people attended regular Commission meetings. 11 2011 Year in Review The Commission approved the submittal to the County Council of a prop0osed draft bill to amend Chapter 6, Article 14, Kaua'i County Code, 1987. The Commission is working to fill the vacancy of the ninth Commission member. In 2011 the Commission vacancies ranged from four to one. Six meetings of the twenty-four were cancelled due to lack of quorum. Since 20015 and through 2011, the Fund has been used to acquire only one site. The commission established a new process to assist in the implementation of Commission recommendations. Other measures focused on improving the effectiveness of the commission are a priority. Commissioner Childs stated that he liked the executive summary. Commissioner Souza stated that she tried to be brief. She stated that the only thing missing from the current report is a conclusions section, but she noted that the report is so short that she wasn't sure it was needed. She stated that the call for action was strong. MOTION: It was moved by Nathaniel Childs and seconded by Jean Souza to approve the 2011 Report for submittal to the County Council and the Mayor. All were in favor by unanimous voice vote - motion passed Commissioner Souza stated that she will forward the edits to staff in a word document. NEXT MEETING DATE AND AGEND TOPICS FOR DISCUSSION Chair Figaroa stated that the next meeting will be on February 23. He stated that he will create the agenda and submit it. Commissioner Souza questioned when the draft Bill would be taken up at the Council. Ms. Sadora stated that they have pending questions that the attorneys will need to respond to before it is put back on the agenda. She stated that she would have Deputy County Attorney Jung check with Council. She noted that Council requested assessed values of the past recommendations and that the Planning Director was going to produce a matrix and background from the Department regarding the proposed changes. 12 Commissioner Souza stated that the matrix should include year 2010 and 2011. Commissioner Childs requested that work plan/timeline be kept on the agenda. He requested that the Commission work on implementing an action plan. Commissioner Kinnaman requested an update on the dossier on the next agenda. ADJOURNMENT Chair Figaroa adjourned the meeting at 3:45 p.m. ,Rgskectfully submitted by: Duke Nakamatsu, Support Clerk 13