Loading...
HomeMy WebLinkAbout2012-07-26 Open Space Commission Minutes - approved PUBLIC ACCESS, OPEN SPACE &NATURAL RESOURCES PRESERVATION FUND COMMISSION REGULAR MINUTES July 26, 2012 A regular meeting of the Public Access, Open Space &Natural Resources Preservation Fund Commission of the County of Kauai was held in the Lihue Civic Center, Moikeha Building, in meeting room 2A/2B. The following Commissioners were present: Joseph Figaroa, Chairperson Maurice Nakahara, Vice Chairperson Nathaniel Childs Luke Evslin Patrick Gegen Tessie Kinnaman John Lydgate Absent and excused: Linda Dela Cruz 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 1:04 p.m. He noted that Chair Figaroa is running a little late. ANNOUNCEMENTS Ms. Sadora announced that this year's Hawaii Congress of Planning Officials (HCPO) conference will be held on Oahu on September 12-14. She stated that the budget allows for two commissioners to be sent per year and this year the Department arranged for Chair Figaroa and Commissioner Dela Cruz to attend. She also announced that the Legacy Lands Conservation program is seeking applications for land acquisition funding. Their period began July 16 and will close on April 3. The Department will determine if any of the sites on the immediate list can meet the requirements for applying. Commissioner Lydgate announced that there will be a lecture by Bill Fernandez at the Kauai Museum on August 16 at 5:00 p.m. on sugar, statehood, and sovereignty. He is a 1 V:\2012 Master FilesTommissions\Open Space\Meetings\2012-07-26\Minutes graduate of Kapaa High School, Kamehameha School, and Stanford University and was a judge and a former Mayor in California. Vice Chair Nakahara stated that he had the opportunity and pleasure of attending the HCPO conference last year on Kauai and gained a lot of personal insight regarding the roles of the Commission, the County, the State, and the Nation. The speakers were knowledgeable regarding their areas of expertise and planning. He recommended that anyone who has the opportunity attend. Commissioner Evslin questioned if it would be possible to attend at his own expense. Ms. Sadora stated that she will look into the budget and whether they can cover the registration fees. Commissioner Kinnaman joined the meeting at 1:07 p.m. RECEIPT OF ITEMS FOR THE RECORD There were no items to receive for the record. UNFINISHED BUSINESS Update and discussion of the Commission's work plan/timeline of events and activities through 2012,to include future Commission education topics. Ms. Sadora stated that they are still waiting for confirmation from the Native Hawaiian Legal Corp to either fly to Kauai for a presentation or a presentation via teleconference. Commissioner Kinnaman questioned if the DLNR enforcement division could do a presentation regarding the rules for lateral access. Deputy County Attorney Jung stated that the DLNR would probably have a limited role because access through development is more of a County function. Commissioner Kinnaman stated that the issue would be how the DLNR and County can work together for enforcement of the access rights. Deputy County Attorney Jung stated that DLNR has some trails and the County has easements. The County can enforce easements through the covenants within the easements, but DLNR has trails to the beaches that they can enforce through statutory measures. Commissioner Kinnaman felt it would be helpful to have education from the DLNR. 2 V:\2012 Master FilesTommissions\Open Space\Meetings\2012-07-26\Minutes Deputy County Attorney Jung stated that if they are unsuccessful at having someone from the Native Hawaiian Legal Corp,they can try to have someone from the State Office of Planning that manages the Coastal Zone Management Act to explain how access is an important feature and how we can go after it for subdivisions and SMAs. On the motion by John Lydgate and seconded by Nathaniel Childs that the Commission have an access workshop with the DLNR, Na Ala Hele program,Native Hawaiian Legal Corp., the State CZM, and the County,the motion carried by unanimous voice vote. Vice Chair Nakahara requested that staff follow up on the arrangements. Commissioner Lydgate questioned other potential topics for education. Ms. Sadora stated that once this workshop is set up they can look into other topics that would benefit the Commission. She stated that opportunities may also come out of the HCPO conference. Status on acquisition plan for a portion of TMK(4) 2-6-003:017 to obtain a pedestrian public beach access easement to Kukuiula Bay through the former Hoban property. Ms. Sadora stated that they have two bids for the easement appraisal and they are working on a more extended acquisition plan. Commissioner Evslin questioned if the appraisal is done on the property with the easement included first and then without the easement. Deputy County Attorney Jung stated that they will probably use the tax assessed value of the property itself and the assessed value of the easement area. If it goes to condemnation they would need an independent appraisal and the Court would decide the fair market value. The County's goal is to purchase the easement through a land sale agreement, but in order to start negotiations, they need the appraisal on the area of land that they want to purchase. Ms. Sadora stated that the appraisers were asked to appraise just the value of the easement. Commissioner Evslin questioned if the land owners were aware of the easement issue when the property was purchased. Commissioner Gegen noted that there is already an existing drainage easement. Deputy County Attorney Jung stated that the intent is critical. If the intent was for drainage, then that is the specified purpose. He noted that going after public pedestrian beach 3 V:\2012 Master FilesTommissions\Open Space\Meetings\2012-07-26\Minutes access would be a whole new use with different types of impacts that need to be mitigated. He noted that they can certainly argue that it has been on the radar since the Koloa Community Association identified that easement for acquisition. Commissioner Kinnaman stated that the owners were aware of the drainage easement, but the County doesn't own the dirt over the easement. Deputy County Attorney Jung stated that they can modify the agreement to have the access over the same area so they have overlapping uses. Commissioner Kinnaman noted that in the old days the easement was over the land. She questioned if the same assessment can be used if they have to go through condemnation. Deputy County Attorney Jung stated that if the land owner wants to challenge the independent appraisal they could hire their own appraiser. He noted that there would be tax benefits for a friendly condemnation. Commissioner Evslin questioned the last time a purchase or condemnation of a beach access occurred. Deputy County Attorney Jung stated that the last easement acquisition was at Ka'aka'aniu. There was an actual access lot that the boy scouts and another individual created in the 70s,but it was steep and overgrown. There was a claim that another trail went through the property to the west that was owned by Waioli Corp and they wanted to block it off. They negotiated an additional access through a grant of easement to go down the middle trail to the beach. He stated that it was a dedication that was executed though Council and Land Court last year. Commissioner Lydgate stated that there was some kind of dispute regarding the road. Deputy County Attorney Jung stated that the State may be claiming it as the historic trail. A request was sent to them 6 months to a year ago to clarify their position but they haven't heard back from the State. Commissioner Lydgate stated that there was a claim that it was an old traditional path, one of the owners claimed it was his road, and the Government claimed it was their road. Deputy County Attorney Jung stated that the County tried to find the middle ground, and Waioli offered them a grant of easement to the beach. He noted there are now two accesses to the beach, but some of the public wants what was referred to as the alaloa, the old dairy road, or the old government road. According to historical documents it appears that it may have been bulldozed at one point and created. He stated that he Commission can request this as an agenda item if they want to discuss it further since it is complicated and still in limbo. 4 V:\2012 Master FilesTommissions\Open Space\Meetings\2012-07-26\Minutes Commissioner Evslin stated that his question was to determine if they would be setting precedence or if it has been done before. Commissioner Lydgate stated that it would be good to know how it works. Deputy County Attorney Jung stated that in most cases the County acquires easements through either SMA permits or subdivision. He stated that he will do his best to explain the process during the workshop. He stated that it is rare that they do condemnation for easements. The Department of Water does it for drainage ways from the water tanks, but if this goes to condemnation it would be his first for an easement alone. Chair Figaroa chaired the meeting at 1:29 p.m. Discussion on the Commission's presentation of the County of Kauai, Public Access, Open Space, & Natural Resources Preservation Fund Commission 2011 Report to the Mayor. Deputy County Attorney Jung stated that the presentation to the Mayor is scheduled for August 15 at 9:00 a.m. He stated that two Commissioners can attend but he noted there was a change to the Sunshine Law that he would need to research and follow up. Chair Figaroa questioned if it would be possible to invite former Commissioner Souza. Deputy County Attorney Jung stated that she is no longer a Commissioner so the Commission can invite her as a resource. Ms. Sadora noted that last year the meeting included Department heads as well. She stated that it wasn't a formal slide show presentation, but more of a summary of the report with more details regarding the recommendation list. Chair Figaroa stated that he will be available on August 15 and requested that anther Commissioner attend the meeting with invited guests and the staff. He stated that they will make their official selection at the next meeting. Executive Session. This executive session was held pursuant to Hawaii Revised Statutes Sections 92-4 and 92-5(a)(4), the purpose of this executive session was to consult with the County's legal counsel on questions relating to public access issues regarding Kauapea Beach, also known as Secret Beach, Kilauea, Kauai, Hawaii. This consultation involved consideration of the Commission's powers, duties, privileges,immunities, and/or liabilities with regard to this agenda item. 5 V:\2012 Master FilesTommissions\Open Space\Meetings\2012-07-26\Minutes NEW BUSINESS Executive Session. Pursuant to Hawaii Revised Statutes Sections 92-4, 92-5(a)(4) and (8), the Public Access, Open Space, and Natural Resources Preservation Fund Commission requested an executive session to provide a briefing regarding legal issues related to access issues at Alexander's Dam area in upper Kalaheo. This briefing and consultation involved the consideration of the powers, duties, privileges, immunities, and/or liabilities of the Public Access, Open Space, and Natural Resources Preservation Fund Commission and the County as they relate to this agenda item. On the motion by Nathaniel Childs and seconded by John Lydgate to move into executive session,the motion carried by unanimous voice vote. The Commission moved into executive session. NEXT MEETING DATE AND AGENDA TOPICS FOR DISCUSSION Chair Figaroa requested that an update on the Commission education workshop for the next meeting. ADJOURNMENT Chair Figaroa adjourned the meeting at 2:50 p.m. Respectfully submitted by: Duke Nakamatsu, Support Clerk 6 V:\2012 Master FilesTommissions\Open Space\Meetings\2012-07-26\Minutes