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HomeMy WebLinkAbout2012-02-23 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 23, 2012, in the Lihu'e Civic Center, Moikeha Building Meeting Room 2A/2B. The following Commissioners were present: Maurice Nakahara, Vice Chairperson, Nathaniel Childs, Linda Dela Cruz, Tessie Kinnaman, and John Lydgate. The following Commissioners were absent: Joseph Figaroa, Chairperson, Jean Souza, Johanna Ventura, and (1) vacancy. The following staff members were present: Nani Sadora, Duke Nakamatsu, and Deputy County Attorney Ian Jung. CALL TO ORDER Vice Chair Nakahara called the meeting to order at 1:21 p.m. APPROVAL OF AGENDA MOTION: It was moved by John Lydgate and seconded by Tessie Kinnaman to approve the agenda. All were in favor by unanimous voice vote — motion passed. APPROVAL OF MEETING MINUTES — Regular meeting minutes of 1/12/12 and 1/26/12. Regular meeting minutes of 1/12/12 —Approved. MOTION: It was moved by Tessie Kinnaman and seconded by Linda Dela Cruz to approve the 1/12/12 meeting minutes. All were in favor by unanimous voice vote - motion passed I Regular meeting minutes of 1/26/12 —Approved. MOTION: It was moved by John Lydgate and seconded by Nathaniel Childs to approve the 1/26/12 meeting minutes. All were in favor by unanimous voice vote - motion passed ANNOUNCEMENTS Public member Jack Smith, a North shore resident, stated that he was researching issues regarding public access to coastal and inland recreational, hunting, fishing and gathering areas and was there to observe the meeting. Commissioner Childs announced that he is seeking employment on Maui and may be moving soon. Vice Chair Nakahara noted that because of Commissioner Childs' employment situation, the Mayor may need to fill another vacancy on the Commission soon. Commissioner Lydgate noted that two other Commissioners' terms will be expiring in April and if Commissioner Childs moves to Maui, they may not be able to meet quorum. Deputy County Attorney Jung stated that they hope to recruit the ninth member soon. He stated that until Commissioner Childs officially resigns they will be on standby. Vice Chair Nakahara noted that quorum has always been a problem since he has been in the Commission. Commissioner Lydgate stated that he is a former member of the Kauai Historic Preservation Review Commission and suggested that the two commissions team up or double up. Deputy County Attorney Jung stated that he would need to verify if someone is allowed to serve on two County Boards and Commissions at the same time. He believed that there was a prohibition. Ms. Sadora noted that the Administration and the Council have been notified of the upcoming vacancies. Commissioner Childs stated that he likes serving on the Commission and wished that there were some way he could continue. Commissioner Lydgate announced that the Historical Society is having a wine and cheese vintage book offering on Friday night at the Historic County Building from 4:30- 6pm. He stated that there will be duplicate copies of many of the old books of Hawai'i. 2 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 nothing to report. Vice Chair Nakahara requested keeping this item on the agenda in the event that something comes up. Update on proposed amendments to Ordinance 812. Deputy County Attorney Jung stated that at the last Council Committee meeting, the proposed amendments was deferred because the Council had questions for the Planning Department and the County Attorney's Office for on language clarification. He stated that the Attorney's Office received their questions yesterday and will begin working on them. He stated that the agenda item will probably be on the March 7 agenda. He stated that the Committee will work to modify and amend the Bill, and then their report will be forwarded for second reading for approval. Vice Chair Nakahara stated that he hopes that the Ordinance will pass before Commissioners Kinnaman's and Souza's terms expire. 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 Lydgate questioned what was meant by policy on communications. 3 Commissioner Childs stated that Commissioner Souza requested that commissioners review the rules and make suggestions for revisions since the rules were made 5 or 6 years ago. He stated that he didn't see anything that needed to be changed. Vice Chair Nakahara stated that the agenda item related to communications received by Commissioners and whether it should be allowed to be disseminated to the rest of the Commissioners or only given to the Chairperson to decide if it should be disseminated. He recommended waiting for Commissioner Souza before discussing this area of communication. Deputy County Attorney Jung stated that the issue was when one Commissioner wants to put something on the agenda they should be allowed to do that, whereas Robert's Rules allows for the Chair to make the determination. Commissioner Lydgate stated that it is a very important clarification. Deputy County Attorney Jung stated that it is up to the Commission to establish a formal policy. Vice Chair Nakahara requested listing this agenda item for the next meeting and when Commissioner Souza is present, they can decide to leave it on the agenda or not. MOTION: It was moved by Nathaniel Childs and seconded by Linda Dela Cruz to defer this agenda item to the next meeting. All were in favor by unanimous voice 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. Deputy County Attorney Jung stated that now that the report is finalized, the Commission can start preparing for the presentation to Council and identifying topics for the next year's report. He noted that if Bill 2423 is passed, then the report will be either a two or three year report. Commissioner Kinnaman stated that they should prepare for the presentation of the report that was just finalized. Ms. Sadora noted that the report is with the Planning Director and then it will go to print. Commissioner Kinnaman questioned how long it will take before it is forwarded to Council. Ms. Sadora stated that if they allow the Planning Director at least 3 days to review the report, the printing could probably be done in about 2 weeks. 4 Commissioner Kinnaman noted that Council would be into the budget sessions soon. Ms. Sadora stated that they can contact Council for a possible presentation date once the report is forwarded. She questioned if the Commission had any preferences for education topics. She noted that the last field trip was to the North Shore two years ago. Commissioner Kinnaman questioned whether a field trip to the West side and South shore could be done in one day. Commissioner Childs stated that the Commission should definitely visit Salt Pond. Ms. Sadora suggested that the Commission may want to cover the areas that were suggested in the report and work on a plan of how they are going to introduce it into the next report. Vice Chair Nakahara stated that he would like to propose a field trip based on the 2011 report to include Piiwai, Salt Pond, Kaneiolouma and the former Hoban property. Deputy County Attorney Jung stated that they would need to obtain a right-of-entry for the Hoban property. Commissioner Kinnaman noted that trying to access the Hoban easement from the coast would be pretty challenging. Deputy County Attorney stated that they could probably discuss a right of entry with A&B for Piwai and Lawa`i Kai. Ms. Sadora noted that the next meeting dates are March 8 and March 22. She stated that since Commissioner Childs might be leaving they may want to schedule the field trip as soon as possible. She stated that they would need at least a two week window to work out the right-of-entries and transportation arrangements. She stated that it would not have to be on a regularly scheduled Commission meeting date, but most Commissioners already have those dates reserved. Deputy County Attorney Jung stated that they would just need adequate time for posting site visits. Commissioner Kinnaman noted that if they use a regularly scheduled meeting date it would be from the morning instead of afternoon. Vice Chair Nakahara requested listing it as an agenda item for the next meeting when Commissioners Ventura and Souza and Chair Figaroa return. He stated that the next meeting would be March 8 and they can either target March 22 or April 12 for the field trip. 5 Ms. Sadora stated that they will list it as an agenda item for the next meeting. Vice Chair Nakahara suggested that Council members could be invited to attend the field trip. Deputy County Attorney Jung stated that they would need to coordinate the agenda. He stated that if more than two Council members attend, they would need to comply with Sunshine Law. Ms. Sadora stated that they would work on contacting the land owners with possible projected dates and check with the Kaua'i Bus. She questioned possible Commission Education topics. She noted that the Commission was interested in Na Ala Hele, and that they also wanted clarification on the HRS regarding shoreline accesses. Commissioner Kinnaman stated that she believed that Dr. Kawane was more concerned about enforcing the HRS. She stated that the former Deputy County Attorney was going to check with the Law Department at UH. Deputy County Attorney Jung stated that some of the young associates with Native Hawaiian Legal Corp like to do presentations on traditional and native gathering rights. He stated that if the Commission is interested they might be able to do a seminar. Commissioner Kinnaman stated that they would be more interested in the political subdivisions and enforcement of the HRS. Deputy County Attorney Jung stated that he would speak with the Planning Director to see what he had in mind. Ms. Sadora suggested forecasting when the Commission would be doing the public input process and if they wanted to have a discussion on the last process. Commissioner Childs suggested listing the public input process as an agenda item for the next meeting and they can discuss suggestions for improvements. He stated that the more they hear from the public, the better off they will be. Ms. Sadora stated that they spent a good amount on Garden Island Ads. She stated that they did a full page color ad that ran Sunday and Wednesday. She stated that there were four surveys that were sent in from the newspaper, but noted that they were not able to determine if any of the online surveys were generated from the newspaper ad. The Commission agreed on the following items for their work plan/timeline of events for 2012: 1. Field Trip to 2011 recommended sites 6 2. Commission Education A. Organizing speakers (HRS shoreline access/enforcement) B. Nukumoi (land owners) French 'Ohana (speakers) 3. Public Input Process: 2012 Public Survey Vice Chair Nakahara stated that Deputy County Attorney Jung mentioned the possibly bringing in law students to discuss the HRS shoreline access and gathering rights. He stated that Commissioner Kinnaman suggested also inviting Kaua'i Coffee and Dr. Kawane. Commissioner Childs stated that the French Family runs the Nukumoi Surf Shop and would be directly affected by acquisition of the property. He suggested inviting them for their perspective. Vice Chair Nakahara questioned how the Commission would like to conduct the public input process this year. Commissioner Childs suggested adding the public input process as an agenda item for discussion when more Commissioners are present. He stated that inviting the law students as well as Kaua'i Coffee and Dr. Kawane could be educational for everybody. Vice Chair Nakahara stated that it could be part of the public input process. Commissioner Lydgate stated that it would be good to lobby for public support and opinion. He questioned how you reconcile private interest with public access. He stated that sometimes they are together and sometimes they are not. He stated that some people are secretive about hunting and gathering rights and don't want it open. He questioned how to respect the defacto, dejure, the legal, and the public opinion. MOTION: It was moved by Nathaniel Childs and seconded by John Lydgate to add the public input process to the next agenda for March 8, 2012. All were in favor by unanimous voice vote - motion passed NEW BUSINESS Review and discussion on draft dossier for Council's consideration on recommended sites for acquisition. • Access to Kukui`ula Bay through former Hoban property (previously listed as Former Hoban Property) Vice Chair Nakahara asked Commissioner Kinnaman to provide a history and background for Commissioner Lydgate on the access to Kukui'ula Bay through the former Hoban property. 7 Commissioner Kinnaman requested that Deputy County Attorney Jung review the legal aspects. Deputy County Attorney Jung stated that the Council was receptive to the idea of pursing this access. He stated that the history is that the Kukui`ula Zoning Ordinance in 2005 set aside some monies specifically identified to be used for one access to the beach. The Ordinance also required that the Open Space Commission work with the Koloa Community Association to identify where that access should be and they came up with the designation of the Hoban access, but the land owner at the time was not willing to grant or sell the access, so the necessary step was to do a condemnation resolution. He stated that it is not known why the Council did not act on it in 2007. He stated that the Commission developed a dossier in addition to what was suggested on the list of recommendations. He stated that it was a process to determine if the Council was even interested before the Commission got the leg work going on appraisals and expending money. He stated that it was a novel idea and the Council is willing to move forward. He stated that they can start preparing and utilizing money for the appraisal and renegotiating with the landowner for a sale price, and if the landowner is not willing to sell, prepare a condemnation resolution again. He stated that the Council Chair noted that the Commission already has the authority to get an appraisal and spend the money necessary for Council to take action. He recommended that the Commission include on the next agenda a motion authorizing the Planning Department to prepare an appraisal for access. He stated that once that appraisal is done then they can start negotiations with the land owner. Vice Chair Nakahara questioned if the money is still in the Parks & Recreation Department. Deputy County Attorney Jung stated that the Ordinance states that the access shall be accomplished within three years. He stated that it would be a stretch to interpret the word accomplished to include the fact that the Open Space Commission and the Koloa Community Association agreed on a site. He stated that one option would be to amend the Kukui`ula Zoning Ordinance, but he didn't think that Kukui`ula would be open to that idea. He stated that the other option would be to utilize the Open Space fund. He stated that the appraised value was $99,000 in 2006 and it could be up to $150,000 now. He stated that amending the Zoning Ordinance would need to be introduced to the Planning Commission, then it would need to be referred to Council Committee, but if Open Space funds are used, it would be accomplished by Council Ordinance like with Black Pot. He noted that the current drainage easement would need to stay where it is and a surveyor would need to determine where the 10' pedestrian access would be. Ms. Sadora noted that that land owner has changed since 2007. Commissioner Lydgate questioned how the Parks & Recreation Department is involved. 8 Deputy County Attorney Jung stated that the zoning amendment that re-designated the 2000 acres at Kukui'ula required that the Open Space Commission and the Koloa Community Association acquire an easement within a specified amount of time and if they didn't, the money would be put into a fund for Po'ipo Beach Park improvements. He noted that there was talk about including Kaneiolouma into the Po'ipo Beach Park so some of the money might be used for that. Commissioner Kinnaman questioned if the money from the Ordinance was ever transferred to the County. Deputy County Attorney Jung stated that Kukui'ula set aside $500,000 for County improvements. He stated that $140,000 was used for a parking lot at Boyden's Pond and they also spent money on EIA fees for subdivisions within the project. He stated that the County should start utilizing some of the funds for Po'ipo Beach Park improvements because any subdivisions at Kukui'ula will utilize money out of that fund for EIA fees. Commissioner Kinnaman noted that it is a high priority on the Council's agenda. She stated that as soon as they can get the legal evaluations and the due diligence, the Council will be ready to move on it. She stated that the Commission needs to give the Planning Department authorization to follow through. Deputy County Attorney Jung stated that they will include it on the next agenda for the Commission to take official action. He stated that they would prefer to have an independent appraisal. He stated that they will contact the land owner and explain the intent and see if they can agree on an appraiser. Commissioner Kinnaman stated that over 55 years ago there were three camps across the harbor and Kukui'ula Store was about 100 feet from the Bay. She stated that she and her cousins used to go there every weekend to use the access for swimming when they were little and to pick opihi and limu when they were older. She stated that others used the access for shoreline fishing, to throw net, or to go diving. She stated that after the hurricane the new owner built a wall that blocked the access. She stated that members of the public asked the Koloa Community Association how they could reopen the access. She stated that the Planning Department did some work but determined that they couldn't reopen it because although the County owns the drainage easement, they don't own the dirt over the easement. Deputy County Attorney Jung clarified that easements have a specific and intended use and the use of that easement would only be for drainage purposes. He stated that this easement was more for utility use rather than public access. Commissioner Kinnaman stated that they tried to speak to Hoban in 2007 and he later sold that land to the Leight Family Trust. 9 Vice Chair Nakahara stated that they will have it on the next agenda. He questioned the Kauapea access. Deputy County Attorney Jung stated that he located the original minutes of the subdivision action back in 1977 or 1978 and the original intent by the developer was to make it a public access. He stated that there is a long history to that access and he is still researching but they are targeting late March or early April. NEXT MEETING DATE AND AGEND TOPICS FOR DISCUSSION Vice Chair Nakahara stated that they have their agenda items for the next meeting which will be on March 8. Commissioner Childs thanked everyone on the Commission in the event that he will not be attending any further meetings. Vice Chair Nakahara commended Commissioner Childs for his efforts in the short time he has been on the Commission. Commissioner Childs stated that he had a good time and hopefully will be able to attend one more meeting. Commissioner Lydgate thanked Commissioner Childs for creating the sense of urgency that is needed. ADJOURNMENT MOTION: It was moved by Nathaniel Childs and seconded by Tessie Kinnaman to adjourn the meeting. All were in favor by unanimous voice vote - motion passed Vice Chair Nakahara adjourned the meeting at 2:45 p.m. (Respectfully submitted by: f f . Duke Nakamatsu, Support Clerk 10