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HomeMy WebLinkAbout2013-9-26 Open Space Commission Minutes Approved PUBLIC ACCESS, OPEN SPACE & NATURAL RESOURCES PRESERVATION FUND COMMISSION REGULAR MINUTES September 26, 2013 Regular meeting of the Public Access , Open Space&Natural Resources Preservation Fund Commission of the County of Kaua`i was held at the Lihu`e Civic Center, Mo'ikeha Building, meeting room 2A/2B. The following Commissioners were present: Patrick Gegen, Chairperson Linda Dela Cruz Luke Evslin Dorothea Hayashi John Lydgate Maurice Nakahara Absent and excused: Joseph Figaroa, Vice Chairperson Theodore Blake The following Staff members were present: Planning Department,Nani Sadora and Duke Nakamatsu; Boards and Commissions Staff: Mercedes Youn; Paula Morikami; Deputy County Attorney Jodi Higuchi-Sayegusa. Members of the public: Tim and Hope Kallai; Avery Youn, Authorized agent for CVS Longs Drug Store and Richard Spacer. A. CALL TO ORDER Chair Gegen called the meeting to order at 1:07 p.m. B. APPROVAL OF AGENDA Chair Gegen announced that he would take New Business item G3. before Unfinished Business item F1. On a motion made by Commissioner Lydgate and seconded by Commissioner Dela Cruz to approve the agenda as circulated, the motion carried unanimously by voice vote (6:0) C. ANNOUNCEMENTS Ms. Sadora announced that she attended the 2013 Hawai`i Congress of Planning Conference in Kona this past week. She explained that when the information was first circulated then Chair Nathaniel Childs was scheduled to attend,but due to the timing of his resignation it did not allow enough time to make other arrangements for another member of the OSC to take Open Space/Minutes/2013-9-26 Page 1 of 18 his place. She stated that all of the information that was presented during the conference was very valuable. She stated they were able to do an archeological tour of the various heiau's along the Kailua coastline. She mentioned how surprised she was by the amount of support the community receives from the landowners, which made possible for the community to restore the heiau's. She stated the restoration efforts are similar to what is being done here at Kaneiolomua. She noted that although some of the information was not specifically within the purview of the OSC, she felt that it was important to share with the OSC because it was something that the Planning Department wants to encourage the OSC to continue to keep on top of happenings throughout the State. Ms. Sadora stated that the conference next year will be held on the island of Maui, and that she would bring it to the attention of the OSC once she receives more information. Chair Gegen noted that he would have to leave the meeting at 2:45 p.m. D. APPROVAL OF MINUTES Chair Gegen called for a motion to approve the regular minutes of July 25, 2013 and August 8, 2013 as circulated. On a motion made by Commissioner Dela Cruz and seconded by Commissioner Nakahara to approve both meeting minutes as circulated, the motion carried unanimously by voice (6:0) E. RECIEPT OF RECORDS Ms. Sadora noted that there were no items to be received for the record. G. NEW BUSINESS 3. Presentation by Avery Youn authorized agent involving a retail store facility on property along the makai side of Kuhio Highway in Waipouli, tax map key 4-3-007:029 and 030 for consideration on the site of an existing coconut grove. Before the presentation began, Ms. Sadora provided the Commission with a brief overview on the issues surrounding the presentation. She explained that the Planning Director received a communication from the Planning Commission, requesting that the OSC (Open Space Commission) provide input prior to the completion of the Planning Department supplemental report to the Planning Commission. She further explained that the Planning Director is asking that the OSC consider, as part of its supplemental report, any competing or existing priorities that may exist for its recommendation list. Mr. Youn began by presenting information relating to the new proposed CVS Longs Drug Store within the Coconut Plantation Resort in Waipouli. The information that was presented included a conceptual landscape plan, an artist rendition of the proposed Longs building, and an aerial view of the subject property including the surrounding properties within the area. Open Space/Minutes/2013-9-26 Page 2 of 18 He shared with the Commission that the land is owned by the Niu Pia Land Company, and the applicant is CVS Longs Drug Store through its construction arm KZ Development Corporation or limited partnership. He stated the matter is scheduled to go before the Planning Commission on October 8th• He voiced his concerns on why he was placed on the OSC agenda, and it was noted that the procedure was normal when processing a normal zoning Class IV or project development use permit. He stated that it is his understanding that the role of the OSC is to make recommendations to the County Council on properties that could be used for public benefit or purchase. He stated that his initial impression that he got was that the OSC was considering purchasing the subject property for public purpose. Chair Gegen stated that at this point,it was probably recommended that he appear before the OSC because they had gone out to solicit information from the public on pieces of property that the public would either like to see preserved or place into a reservation type status. At one point the property in question was on the OSC's input list, but no action was taken to make it a valid recommendation. Mr. Youn voiced his concerns that the procedural pattern in which this issue is being handled is not normal, and that most governmental agencies and commissions have deadlines which includes the Planning Commission. He noted that after hearing Ms. Sadora's overview he questioned or concluded that the OSC has a deadline in which it has to submit a report to the Planning Department or Planning Commission in the form of a recommendation on whether the site was going to be preserved or purchased. Chair Gegen stated that he was right in his conclusion and that the Planning Staff is here to take notes and or comments as needed. Mr. Youn asked whether it is by ordinance or by an administrative rule that the OSC must meet its deadline to send a recommendation to the Planning Commission. Chair Gegen stated no, and that it's more of a gesture of courtesy to allow the Planning Department to continue with the process. Ms. Sadora clarified that the ordinance only requires that the OSC complete a bi-annual report of recommendations to the County Council. Mr. Youn thanked Ms. Sadora for her clarification and pointed out to the Commission that because the County Council does not have a deadline it could take a long time for the issue to be resolved. He brought to the attention of the OSC that the Planning Commission has an October 8th deadline in which it has to take action within 60 days,but if the OSC's recommendation is forwarded to the Planning Commission he is unsure procedurally whether the issue would be stalled at the Planning Commission until the Council takes action or whether it will get a courtesy recommendation from the OSC, which does not hold any deadline or need Council's approval. Ms. Sadora stated that in the past the OSC's recommendation list is just what it is, and it has no authority other than just to produce a recommendation. There is no technical hold-up in any of the OSC's recommendations as far as it affecting any other department in its departmental procedures. She stated that the results would be based on the OSC's input on what it decides, and that it may not even consider placing the site on its recommendation list once the Commission goes through its review process to see which properties meet the criteria. She noted that in the past any action that was taken took a Open Space/Minutes/2013-9-26 Page 3 of 18 significant amount of time with minimal action other than the purchase that was made through community support. Mr. Youn stated that he felt Ms. Sadora's explanation just confirmed what he always thought may happen. For instance if the recommendation is for the benefit of the public that the property should be purchased, that meant the Planning Commission would not take action despite the October 8th deadline. Mr. Youn stated that his presentation would be geared towards showing the OSC that there are other sites besides the subject property that is worthy of protection, and that he would try to convince the OSC that the subject property is not one that should be recommended or purchased. Commissioner Lydgate recalled that an issue came before the Historic Preservation Commission years ago about protecting the trees. He asked how long it has been since the proposed Longs Store came up for consideration, and whether it is the same project that was proposed years ago. He noted that the Historic Preservation Commission wanted to preserve as many trees as possible. Chair Gegen asked Mr. Youn to provide a brief account of what has happened thus far, and that he explain whether the recommendation from the Historic Preservation Commission to preserve as many of the trees as possible was incorporated into the plan. Mr. Youn stated that he was unsure of the Historic Preservation Commission's actions because he did not appear before them. Commissioner Lydgate stated that he has it on record. Deputy County Attorney Sayegusa clarified that the issue came before the Arborist Committee but was unsure whether or not the issue appeared before the Historic Preservation Commission. Commissioner Lydgate stated that he disagrees because it should have. Mr. Youn noted that as far as he can remember the CVS Longs Drug Store did not appear before the HPC because they were not required to, and that any project prior to CVS Longs Drug Store he was not aware of. He noted that the project started in February 2013. Mr. Youn referred to an artist rendition of the proposed CVS Longs Drug Store building that he provided as a visual aide during his presentation. He explained that the proposed building would be situated on the subject property along the makai side of Knhio Highway on tax map key 4-3-007:029 and 030, which is protected by the Exceptional Tree ordinance. He noted that the applicant is aware that the trees are under protection and is not trying to remove or de-designate the coconut grove from the Exceptional Tree status,but instead wants to preserve the grove-like atmosphere by integrating the project into the site by maintaining, re-planting and relocating some of the trees in order to keep the same number of trees that exist today. He stated that the open space area on the site will be maintained in order to preserve the grove-like appearance and address drainage issues. He noted that ironically, the area is not in a flood zone but in an area referred to as zone-x. He shared with the OSC that in the past the Arborist Advisory Committee approved a motion to replace the old and dying trees with younger trees to help prolong the life and longevity of the coconut grove. He noted that the coconut grove was planted in 1911, which makes the coconut grove at least 102 years old. He stated that currently there are 103 trees remaining on the site where initially there were 161 of which 79 were lost due to old age, and that the other trees had to be relocated on the site to provide additional parking for the luau facility. He stated that of the remaining 103 trees 23 has died and had to be replaced Open Space/Minutes/2013-9-26 Page 4 of 18 with seedlings or younger trees, and that the life span of a coconut tree is about 100 years; the frees in the coconut grove have exceeded that number, which now becomes a liability relative to maintenance of the coconut trees. He mentioned that the proposed parking lot calls for the removal of 54 coconut frees which will be re-located on site or replaced with younger 25 to 30 foot frees. He noted that CVS Longs Drug Store is proposing to plant seedlings next to the existing mature coconut frees similar to that of the coconut grove located across the street and behind of the Coco Palms Hotel. Mr. Youn stated that the ordinance states that the removal of the frees can be approved by the Planning Department, and it does not have to be approved by Council. He reiterated that the CVS Longs Drug Store does not want to remove the trees, but wants to re-locate and re-plant the trees to increase the number. He stated that the size of the building is 23,000 square feet, which includes a 3,000 square foot mezzanine storage level. The height of the building is approximately 20 feet with design features showing the gables on the right side elevation, which about 28 to 29 feet in height. He stated that the total square footage of the foyer within the building is about 25,000 square feet over two floors. The total parking and driveways will cover about 66,000 square feet relative to the lot coverage, which is about 54%. He added there would be a total of 94 parking stalls, and that they would seek the Planning Commission approval to allow parking in the grassy areas or the detention ponds. He noted that because of the flooding issue three detention ponds had to be built to minimize the paved surfaces in order to get ground water seepage and to allow percolation to take place. Mr. Youn shared with the Commission that in the past the Planning Commission approved two developments, one in 1982 for a restaurant and another in 1992. He noted that the first project did not call for the removal of the trees, and that the second project had no conditions relative to the preservation of the trees. He mentioned that there is an approval for another development across the street on the property adjacent to the Kauai Marriott Courtyard, which has no strict conditions relative to protection of the trees, and that the developer was only asked to provide a conceptual landscape plan for the project. He stated that when the luau pavilion at the former Sheraton Hotel was approved a condition was placed to preserve or relocate the trees of which only two trees needed to be re-located. He stated that when the Holiday Inn was approved in the late 1980's the Exceptional Trees ordinance was still in draft form and not yet adopted, and conditions were to preserve as many of the coconut trees as possible. Mr. Youn pointed out that compared to the previous two developments that were approved and the proposed CVS Longs Drug Store, the development across the street adjacent to the Kaua`i Marriott Courtyard called for the removal of a whole bunch of trees, and that the developer's only requirement was to submit a landscape plan. Mr. Youn pointed out to the OSC that there are other sites that they may want to consider because for 41 years the site was zoned RR20 for commercial use, which is permitted within the resort/residential zone. He stated that the property located across the street is larger and zoned Ag, and the frees are protected by the Exceptional Tree ordinance, which would be ideal for the OSC to purchase. He also suggested that the OSC consider the grove at the Coco Palms Hotel because it is owned by the State. Open Space/Minutes/2013-9-26 Page 5 of 18 Mr. Youn shared with the Commission additional conditions that were required in order for the project to be considered. He explained that originally a meeting was set for August 10th but was cancelled. He stated that between that cancellation period and the next hearing date ,which is scheduled for October 8th,he went back to reevaluate the project and with the consensus of CVS Longs Drug Store, additional conditions were added in order to make the project work. He explained that the entire design concept had to be modified by adding more coconut trees and the embellishment on the building was changed to a tropical type of motive. He stated that the conditions that were added included the following: 1) the parking entry would be closed after hours of operation of the retail store to prevent people from congregating after hours; 2) The security systems will include an electronic surveillance and an intermittent roving patrol after hours of operation; 3) to address flooding concerns that were raised the finished floor elevation had to be set at a lower or equal to the finished floor of the adjacent Plantation Hale building; 4) the drainage system and ponding basin shall be designed to have no additional impact on the neighboring properties; 5)the loading dock will be screened with a 8 foot high wall and landscape to shield it from public view; 6) the south property line between Plantation Hale and the proposed facility will have a new 6 foot high fence installed from the east property line to the opened zoning line; 7) there will be no smoking allowed in the back part of the building; 8)no deliveries shall be made prior to 8 a.m. or on Sundays and all delivery trucks must enter and exit through Aleka Loop KuhiO Highway intersection; 9) lighting on the south wall facing Plantation Hale shall be lowered and shielded to prevent lumination of neighboring properties at night; 10) the proposed project has to coordinate with the Coconut Plantation Resort; the ground sign cannot be independent; it has to be intergraded with the rest of the Market Place. Commissioner Evslin asked whether CVS Longs Drug Store's intent is to purchase the property. Mr. Youn stated that at this point it is in due diligence and that the goal is to eventually purchase the property upon the approval of the project. Commissioner Evslin asked if he knew the purchase price to which Mr. Youn replied he did not know. Commissioner Lydgate voiced his concern whether the project would end up looking like a Big Box store. Mr. Youn stated that the Big Box ordinance requires a square footage of 75,000 square feet compared to the proposed CVS Longs Drug Store which is only 23,000 square feet. Commissioner Hayashi noted that the property is on the public input list. She asked for clarification on what would happen if the OSC decided to make it a recommendation; how it will affect the project. Ms. Sadora stated that the OSC is a recommending body, which makes its request to the County Council. She noted that based on the time she has spent with the OSC the recommendations that were made in the past did not affect any other projects that came before a County body. She noted that if the property in question becomes a recommendation she does not see it being held up if it goes to Council. Commissioner Hayashi questioned why the Planning Commission asked Mr. Youn to appear before the OSC. Ms. Sadora stated that the Planning Commission is looking at the issue from the standpoint of the coconut grove area on whether it existed or became part of the OSC during the public input process. Commissioner Hayashi Open Space/Minutes/2013-9-26 Page 6 of 18 asked Mr. Youn if he agreed with Ms. Sadora's comments. Mr. Youn pointed out that he had heard that the property was already on the list,but was not aware of it. Ms Sadora stated that the property is on the public input list and not a recommendation. Mr. Youn asked whether the public input list was just recently completed to which Ms. Sadora replied yes. Mr. Youn asked if he could address Commissioner Hayashi's concerns relative to the consequences should the property become a recommendation. Chair Gegen asked Mr. Youn if he could hold off with his response until after the Commission has completed asking its questions and after hearing public testimony. Commissioner Evslin questioned what the situation is with the CVS Longs Drug Store at its current location and the square footage of the new proposed CVS Longs Drug Store. Mr. Youn explained that the existing Longs Store is 2,000 square feet, which is significantly smaller in size than the new proposed CVS Longs Drug Store. He stated that the current lease will end on November of next year, and that CVS Longs Drug Store wanted to transfer from its current location to the new location by then. Commissioner Nakahara stated that other than the lease running out was there another reason why Longs wanted to establish another location, and whether it chose the new site because of its visibility from the highway. Mr. Youn stated that the same question was asked of CVS Longs Drug Store when it was first considering purchasing the property from Niu Pia Land Company. He added that CVS Longs Drug Store is a standalone company whose policy is to create its own individual store. Mr. Youn stated that he wanted to address Commissioner Hayashi's concerns relative to the outcome of having the issue go through the County Council: He stated that the County Council does not have any deadlines, whereas on October 8th the clock starts for the Planning Commission to meet its 60 day deadline upon the closing of the public hearing. He pointed out that he sees it as an automatic conflict because the Planning Commission would be forced to take action although the recommendation from the OSC has not gone through Council. He stated that if they approve it, it would be hard for the County Council to agree to purchase the property. However, if it is denied the Planning Commission would have a problem on its hands because the area has been zoned for commercial use for 41 years, which allows the property to be used commercially. hi essence, the applicant has a legal right to develop the property, and although CVS Longs Drug Store may not be the best thing at least it's trying to preserve the trees, unless the OSC decides to purchase the property. But as he stated before he would recommend that the OSC look into purchasing the other properties within the area because it would cost the County less; not to mention how much it would cost the County just to maintain the entire coconut grove. Deputy County Attorney Sayegusa noted that she wanted to address Mr. Youn's concerns about the timing. She stated that she is unsure anything would be held up at the Planning Commission if purchase of the property becomes a recommendation to the Council. However, the question would be more regarding the value of the property. Not sure exactly what will happen with the pending permits at the Planning Commission, but if approved, then the issue would be the property's value if the OSC was actually looking into purchasing it. She explained Open Space/Minutes/2013-9-26 Page 7 of 18 that there are existing entitlements/permits in place, which are still valid and the site is already zoned residential/resort. Also, if the permits are approved at the Planning Commission that would also affect the property value. If OSC decides to purchase the property, it would have to do so at market value. The Commission received verbal testimony from Ms. Rayne Regush, speaking on behalf of the Wailua/Kapa`a Neighborhood Association. Ms. Regush stated that the project in question is designated in the special management area. The association feels that the proposed Longs project is not compatible to the character of the surrounding coastal resort neighborhood. There is no compelling public interest to site a large retail store within the resort district and in the historic coconut grove. It will be detrimental to the resort environment and to the residents, and it would diminish a prominent scenic and historical landmark. She stated that the project is wrong for the location, and that it is too bad that Longs did not decide to renew its current lease at the Kaua`i Village Shopping Center. She stated that the Coconut Grove is an eastside landmark and cultural asset, and the Kawaihau district heritage resource map recognizes the grove as a natural and historic cultural and scenic feature. She noted that because the Longs application failed to describe the historic importance of the site she encouraged the OSC to make a recommendation to the Kaua`i Historic Preservation Review Commission that they weigh in on the permit application, including a recommendation to the Planning Commission that the project is not an appropriate development for the location. She stated that although the plans allow for replacement trees to be fitted in the existing row of trees along the highway and be inter-dispersed in the 96 stall parking lot it really does not retain the integrity of the grove. She added that the plans do not evoke a sense of stewardship that might have been afforded by the intent of the exceptional tree ordinance. She stated that the Commission should not be in a situation where it is being told either approve the project or hundred year old trees will die. As a scenic and open space resource, the Kaua`i district heritage map also shows that the grove is located in a scenic roadway corridor, which is a nexus to the OSC. She noted that the permit application unfortunately minimizes the unique and special value of the open space and the view plains, including the scenic corridor of the location. Ms. Regush ended by stating that Longs is not compatible with the visible environment because the grove itself gives the eastside its sense of place, and by altering it so dramatically by placing a large retail store in the area would really be a loss for the community. The Commission received verbal testimony from Ms. Lauren Sharkey, counsel for the Niu Pia Land Company. Ms. Sharkey stated that her client is under contract with CVS Longs Drug Store and that she attended today's meeting because she saw it on the Commission's agenda. She stated that it is her understanding that the OSC's focus is on the coconut grove and whether or not the project really complies with what it is supposed to be. She indicated that the Longs plans contemplate the relocation or the re-planting of the coconut grove, and that the Exceptional Tree ordinance really focuses on preservation and the plan does contemplate that. She stated that the property from the 1960's,prior to even the enactment of the Exceptional Tree ordinance, was slotted for development and it has always been that way. She stated that the property has been taxed resort, and is located in the middle of a resort development, so to say that there should not be Open Space/Minutes/2013-9-26 Page 8 of 18 development on the site really impairs the owner's ability to use its property. She noted that just because the owners were not the first one to build should not prohibit the owners from being able to use their property as they choose. She pointed out that the owners have complied with the zoning and the permitting requirements, and that she does not want it to come across as an open space issue because the property has always been intended for development. She stated that the even when the Exceptional Tree ordinance was put in place,it was conveyed to the County by the owner. Ms. Sharkey noted that she wanted to address the question about the value of the property. She stated that the property was previously listed for over 3 million dollars,but is unsure how it would factor into the priorities for this Commission. Commissioner Evslin asked what would happen if the Planning Commission does not approve the project and are there other properties in Kapa`a that are being looked at. Ms. Sharkey stated the Niu Pia Land Company has owned the property for over 100 years in which they have negotiated for the development of the property in which Longs plan contemplates the enhancement of the coconut grove as it currently stands. She noted that it doesn't mean that if the proposed development does not get approved that there would be no development because the intention is that the property be either sold for development or developed. Commissioner Evslin asked if the Planning Commission does not approve the permit as it is, what would happen and would there no longer be a Longs. Ms. Sharkey stated that it would all depend on conditions of the Planning Commission. Chair Gegen added that it would be the decision of Longs, and not the property owner, relative to what they want to do with the property, or whether Longs would renew its contract at its current location or choose to go somewhere else. Chair Gegen questioned whether the Niu Pia Land Company owns all three properties in the grove that has been identified in Mr. Youn's presentation. Ms. Sharkey stated that her client only owns parcels 20 and 30, which is being contemplated for development and not the property across the highway where the goats are kept or the property located on the makai side of the highway on the north end adjacent to the Kaua`i Marriott Courtyard. Commissioner Nakahara questioned whether the special management designation would affect the price of the property. Ms. Sharkey stated that she was not involved with the price negotiations,but it is her understanding that the property was considered at market price. Chair Gegen asked what the pleasure of the Commission is relative to the issue. He shared with the Commission a communication from Commissioner Blake(on file), which he will read for inclusion into the minutes: To the Public Access, Open Space and Natural Preservation Fund Commission in regards to new business item G.3. Dear Chair Gegen, Item number 3 under new business has peaked my curiosity as to why this is an agenda item in today's meeting. Item number 3 appears to be in the purview of the Planning Commission and it has nothing to do with the Public Access, Open Space and Natural Resources Preservation Fund Commission. There is nothing for us to comment on officially. I hope that this does not set up precedence by having this item of items clutter our agenda and take more time away on issues before us that we can make decisions and suggestions on. Sincerely, Commissioner Blake Chair Gegen asked the Commission what action it would like to take. Commissioner Evslin stated that he appreciated all three individuals for their testimony, and acknowledged the fact that Open Space/Minutes/2013-9-26 Page 9 of 18 the OSC does not have any authority over the matter. He noted that by the time the OSC makes a recommendation to the County Council certain actions would already be moving in the other direction.. He stated that the OSC could make a statement for or against the project by sending a communication to the Planning Commission. He stated that he cannot see altering the coconut grove by placing a retail store and a parking lot even though the coconut trees will be preserved. He also acknowledged the fact that the development is one of the best ideas that have come forth, but it still does not mean it should happen. He stated that just because it legally can happen does not mean it should happen; he felt that the project goes against what the OSC stands for, which is to preserve valuable open spaces. He noted that it is obvious that the OSC is not in the position to purchase the property and suggested that the Commission entertain further discussion on not to support the project or any type of development on the property, and send a letter to the Planning Commission. Chair Gegen questioned whether it is within the OSC purview to do that. Deputy County Attorney Sayegusa stated that pursuant to the Kaua`i County Charter the OSC's purpose is to develop a list of recommendations for Council to purchase a property or keep a property as an open space or protect other property entitlements. She noted that she is unsure if any motion made by the Commission to send communications to other commissions is in the purview of the OSC. Commissioner Lydgate stated that he agrees with Commissioner Evslin that the project is not good because the area is zoned residential/resort and should not be developed. He noted that he would be dead set against Longs building a retail store on the property, and that he felt the OSC is legally bound to make some type of statement on its position. Chair Gegen voiced his concerns that having an issue like this come from the Planning Commission to the OSC is the right methodology. He pointed out that if the property was on a list from years gone by and considered a priority then he could see the reason behind why the OSC would have tried to actively purchase the property. But at this point, the OSC is inclined to only state its opinion relative to the proposed development. Chair Gegen also mentioned that the issue reminds him of the Ma'alo Landfill in which the developer and the landowner had addressed many of the public concerns and approached the appropriate committees for input. He noted that relative to this project he felt that the OSC would be stepping out of bounds if it decides to make any type of recommendation at this point. Chair Gegen asked his fellow Commissioners if they had any additional comments and if not, he felt that the OSC should not take any action and continue with its review process relative to the community input list. Chair Gegen noted that according to the public input list the property is listed but it does not specify a particular parcel. 1. Review and discussion on past recommendations and prioritizations of the Commission's work plan/timeline of events and activities through 2013. a. Status of acquisition plan for a portion of the TMK(4) 2-6-003:017 to obtain a pedestrian public beach access easement to Kukui`ula Bay through the former Hoban property or alternate access options. Open Space/Minutes/2013-9-26 Page 10 of 18 Chair Gegen pointed out that the issue is still being pursued by Deputy County Attorney Jung who is on paternity leave. Deputy County Attorney Sayegusa stated that she apologizes for not having any updated information and that Deputy County Attorney Jung is back to work but had to fly to O`ahu to do a mediation for a litigation case and asked that the Commission defer the item to its next meeting. b. Status of current state of access at Kaakaaniu(aka Larsen's Beach) Chair Gegen questioned whether there are any new developments on the current status of access at Ka'aka`aniu. There were none. c. Criteria spreadsheet for recommendations list (2013 Report) 2. Discussion on island-wide list of accesses and cataloging access conditions. 3. Compilation and evaluation of the 2013 public input process pursuant to Ordinance No. 812 and the development of a biennial list of priority projects and 2013 Report to the Kaua`i County Council and the Mayor. Chair Gegen pointed out that Ms. Sadora did a great job consolidating the list because the similar locations are longer listed multiple times. He indicated that as the Commission continues to move forward with its review process and to save time he suggested that the Commission take the list home and bring their comments and suggestions for continued discussion on prioritizing at the next meeting on October 10u'. Commissioner Dela Cruz questioned how the numbers would be integrated into its decision-making. Chair Gegen stated that because that question is similar to agenda Item 3, he suggested that the Commission combine agenda items 2 and 3 for discussion. Chair Gegen mentioned that this year the OSC is required to submit a bi-annual report to the Council and the Mayor by early next year. He voiced his concern that it is important that the Commission review its past recommendations, as well as its new recommendations, to identify which properties are a repeat and make it a priority. Chair Gegen mentioned that in the past, the Commission has submitted to Council a list of its top 6 priorities, but at this point the Commission is now working under a new set of rules where it has to include an acquisition plan identifying each property and an analysis on what the recommendation was based on. Chair Gegen noted that it's coming close to the end of September and that he would like the Commission to at least have a list of priority properties so that it could spend the time drafting the report in December. G. NEW BUSINESS 1. Presentation from Hope Kallai regarding proposed beach access easement in Waipake and the connection with the lateral Ala loa Trail. Ms. Kallai presented a PowerPoint on the proposed beach access easement in Waipake and its connection with the lateral Ala Loa Trail. She indicated that on October 2nd the proposal is before Council to recommend approval of a Grant of Pedestrian and Parking Easements Open Space/Minutes/2013-9-26 Page 11 of 18 relative to a 357 acre subdivision in Waipake. She stated that the proposed mile long easement goes right through the subdivision towards a rocky area called Pakala point. She stated that the Kilauea Neighborhood Association had tried numerous times to get Shawn Smith to attend its meeting to discuss the proposed easement and request a site visit before the easement is approved by Council,but was unsuccessful. She voiced her concerns about a criteria that recently surfaced that would allow the developer to build 100 feet from the beach,but it does not state the length of the house nor does it specify the amount of luxury homes that it would build that are palatable to be viewed from the beach. She also pointed out that the proposed easement leads to a 12 foot drop, which is dangerous because a person would have to climb down or use a rope to get to the beach. Ms. Kallai stated the Historic Ala Loa Trail connects to the proposed easement and a person would have to walk 150 either way to get to the beach. Commissioner Nakahara questioned whether other easements are planned on the development site for the new homeowners and where would it be located. Ms. Kallai indicated that the homeowners would have a few accesses because each of the cul-de-sacs will give them direct access down to the beach area,but one would have to walk 500 to 600 feet. She indicated that supposedly additional multiple private accesses were added into the subdivision's plan, and that at one time there were plans to put the public parking 500 to 600 yards from the beach. Commissioner Lydgate asked whether there are other proposed public accesses in the area. Ms. Kallai stated that the proposed public beach access is in an area that leads to a 12 foot cliff Ms. Kallai stated that the Kaua`i Code 777 requires beach access if there is more than 6 units every 300 to 1500 feet. She stated that the beach is more than half a mile long. Commissioner Lydgate asked whether Ordinance 777 is a State or the County ordinance to which Ms. Kallai replied that it is a County ordinance. Ms. Kallai referred to an artist rendition of the proposed multi-development estate plan that will be highly visible from the beach compared to now where there are no houses for miles. She explained that the proposed easement will come down a fence line and lead to a cliff, and depending upon the coastal Ala Loa Trail which she felt is a safer path to the beach. She stated that there is an existing trail that has been made and has been in use probably for 1000 years that the State owns fee simple, but the problem is that the State refuses to locate it. She stated that the proposed easement runs right through Lepeuli and Waipake in which the Ma Loa Trail would take you safely to the beach. She voiced her concerns that the State really needs to step in and identify the location of the Ala Loa Trail to prevent the public from trespassing onto private property. She reiterated that more discussion is needed before the approval is made, and that the State really needs to step in now and locate the Historic Ala Loa Trail. Ms. Kallai requested that the Commission write a letter to the County Council to urge the State to locate the Historic Ala Loa Trail because this public easement is dependent on it. Commissioner Lydgate questioned Shawn Smith's role in the matter. Ms. Kallai explained that Mr. Smith is the Project Manager,but in some newspaper articles he is listed as a part owner of the project. Chair Gegen stated that he has couple of questions relative to what the Planning Department has done in the past up to the present. Ms. Kallai stated that when the developer first filed its Open Space/Minutes/2013-9-26 Page 12 of 18 original file plan the beach access was located 580 feet from the beach, but then later revised the plan and is unsure whether the plan was recorded or accepted. She explained that once Council approves the proposed easement it becomes a public access and will be recorded in the OSC files, which is the reason she has approached the OSC. She voiced her concern that no one has ground truth about the safety and the reality of the proposed easement. Commissioner Nakahara questioned whether the Planning Commission has reviewed and approved the development along with the proposed easement that was shown to the Commission today. Ms. Kallai stated that the Planning Commission approved the original easement that ended 580 feet from the beach without really knowing it, and the decisions were being made by the sub-division/sub-committee which goes to the Planning Commission as a whole for final approval. She mentioned that there was only one time in 2006 in which the public was allowed to testify, and at that point in time all they were doing was relocating the kuleana from the conservation district. Chair Gegen inquired about the County's law relative to the 300 to 1500 feet beach access. Deputy County Attorney Sayegusa stated that she is 100 percent unsure on how to reply to the question and suggested that the Commission refer the question to Deputy County Attorney Jung upon his return. Chair Gegen noted that the proposed easement seemed more than 1500 feet as indicated on the map. Commissioner Lydgate suggested that the Commission schedule a site visit and asked when the next scheduled visit is. Chair Gegen noted that it is the pleasure of the Commission to decide when it wants to schedule a visit and for Staff to make the arrangements. Chair Gegen asked Ms. Kallai if she approached the County Council with her presentation to which Ms. Kallai replied yes. Commissioner Evslin asked if she intends to ask Council for their support by sending a letter to the State to urge them to identify the Historic Ala Loa Trail to which Ms. Kallai replied yes. Chair Gegen asked the Commission how it would like to proceed relative to taking action on the matter. Commissioner Hayashi stated that she felt the OSC should do a site visit to get a better understanding based on its observations. Commissioner Nakahara voiced his concerns that it should be the Planning Commission, and not OSC doing the site visit,because they approved it and if what Ms. Kallai says is true that the Planning Commission approved an easement that leads to a 12 foot cliff, which in his opinion is unreasonable and unacceptable. Chair Gegen stated that with the passing of Ordinance No. 812 the OSC will be looking closely at each beach access to ensure its accessibility. He noted that he had a few questions to ask, but was unsure which agency he should direct his questions to - either the Planning Commission or the Planning Department - to inquire whether the proposed easement is accessible to the beach. Commissioner Nakahara added that the same question should be directed to the County Council Planning Sub-Committee. Chair Gegen stated that he would also like to ask the Planning Department or the agency that approved the permit if it met the requirements in Ordinance No. 777 Section. 9-2.9, which states that the public beach accesses must be located 1500 feet from the beach. Ms. Kallai stated the plans called for a 10 foot wide easement and a parking area,but the parking area was never presented. Chair Gegen asked if the previous easement was going to leave the public 528 feet short of the beach or 528 foot walk to the beach to which Ms. Kallai replied yes. Ms. Kallai stated she felt approaching the Historic Open Space/Minutes/2013-9-26 Page 13 of 18 Preservation Commission and getting a recommendation would be a really good idea. She stated that there was dialogue entered in the past five to six years about creating a conservation easement on the makai portion of the property that would contain the Ala Loa Trail, which she felt would be mutually beneficial to the public since it cannot be developed and the liability would be absorbed by the property owner and the conservation easement would provide access. Commissioner Evslin stated the conservation easement on the makai side would contain the Ala Loa which is still undefined,but theoretically the Ala Loa that exists would be included. Commissioner Evslin asked if the Commission could immediately draft a letter to the State to define the Ala Loa. Commissioner Lydgate stated that the conservation easement is a great idea. Chair Gegen stated that based on the discussion it is his understanding that the Commission has decided to send a letter to the Planning Department(copy to the County Council) to address the following concerns: 1) whether the requirements were met relative to Ordinance 777 section 9-2.9. which states that public beach accesses must be located 1500 from the beach; 2) is the mile access appropriate; 3)whether they had knowledge that the proposed easement leads toward a 12 foot cliff; and 4) schedule a joint site visit with representatives from the Planning Department and Planning Commission and or other appropriate agencies. Commissioner Evslin stated that the Commission should also send a follow-up letter to William Aila, Chairperson Depaitnient of Land and Natural Resources, requesting for immediate clarification on the location of the Historic Ala Loa Trail due to the imminent development of the property. Commissioner Lydgate asked for clarification on whether the conservation easement is a State or County regulation. Ms. Kallai stated that the conservation easement regulated by the State protects the land in the conservation zone, which includes beach accesses. The Ala Loa in particular can include a safe lateral transient corridor. On a motion made by Commissioner Lydgate and seconded by Commissioner Dela Cruz to approve two communications. 1) Requesting that the Planning Department conduct a review on whether the requirements were met relative to the proposed easement in Waipake; 2) Request to Chairperson William Aila of DLNR to clarify the location of the historic Ala Loa Trail, motion carried unanimously by voice vote (6:0) 4. Status on access plan for Papa'a Bay Chair Gegen stated that he would like to recommend that the Commission move this item under Unfinished Business for discussion at the next meeting in anticipation of Deputy County Attorney Jung's return. He explained that part of the reason he put the item back on the agenda was because of a request from the County Council in which they passed a resolution asking that the OSC follow through with looking into a possible recommendation relative to Papa'a Bay. Chair Gegen noted that at this point he would have to leave the meeting and would like to designate Commissioner Lydgate pro tem to run the meeting in his absence. Open Space/Minutes/2013-9-26 Page 14 of 18 2. Communication (9/5/13) from County Council on a request by Richard Spacer recommending the Commission consider outside counsel for the purpose of obtaining the historic, lateral, costal ala loa trail in Waipake, Lepeuli and Kaakaaniu for public access purposes. The Commission received public testimony from Richard Spacer Mr. Spacer stated that he would like to request that the Commission consider the possibility of outside counsel for the purpose of obtaining public accesses relative to the locations mentioned on the communication dated 9/5/13 from Council. He stated that there were discussions on solving the issues at Ka'aka'aniu(aka Larsen's Beach) and now Waipake on the other side of Lepeuli. He stated that there are three ahupua'a's of which the State has put a claim on the Historic Ala Loa Trail, but has yet needed to identify the trail. He stated that the OSC has had previous discussions regarding this issue at its other meetings, and that he remembers Commissioner Blake mentioned a timeframe after the last letter that was sent out asking what the intentions of the State was regarding the Historic Ala Loa Trail in Lepeuli. He stated that in 2012 and again in 2013 the State came back with a letter indicating that they intend to do nothing about the illegal fence, which is a violation of the SMA permit at Lepeuli that blocks the Historic Ala Loa trail. He stated that as a follow-up Planning Director Michael Dahilig wrote a letter on behalf of the OSC in which the reply from Mr. Aila was the same that the State would not take any action on the matter. Mr. Spacer stated that it is well founded that the citizens of this State do not have to sit back and wait for the State to take action that is in public trust because the State can initiate proceedings themselves. He stated that today he is here to ask the OSC to take action,which is a well founded practice of the County to rely on outside counsel from time to time for different reasons. He stated one of those reasons is a lack of expertise or simply a desire to bring in the big players that know how to solve these types of problems expeditiously. He stated that the communication from the County Council mentions a dollar amount, but the amount does not have to be set in stone because he felt that no attorney would take the issue seriously for less than $20,000. He pointed out that there was an attorney mentioned in the communication who has expressed his interest in the case, which in principal the OSC could approve today. Or if the OCS wanted to defer the issue to another meeting within a reasonable time to accept that if the OSC does retain an attorney it shows the OCS's intention of being serious and the community intentions of being serious in resolving this problem. He added that it would be nice to ask the State to enforce actions that the OSC has already done. Mr. Spacer stated that the records show that State Department of Land and Natural Resources and the Office of the Attorney General have both implied that they are not going to take action on the matter. He felt that it is about time that the people did something about it and hiring outside counsel is something the people can do. He stated in his past experience with Lepeuli he does know that aggressive postures have been taken,but has tapered down at one point involving a contested case in which days before the contested case hearing the landowner's lessee surrendered the conservation district use permit rather than endure a very public contested case hearing. He stated that based on all of the information surrounding this issue he felt that the OSC can make a conscience decision and do something about the issue; the amount of money is a small price to pay to keep the legacy in the people's hands. Open Space/Minutes/2013-9-26 Page 15 of 18 Chair pro tem Lydgate asked Ms. Sadora to comment relative to Mr. Spacer's request. Ms. Sadora stated that it is within the OSC's purview to make a recommendation to Council if it chooses to. Commissioner Hayashi asked where funds to retain special counsel would come from because from what she understands the funds can only be used to purchase land and nothing else. Ms. Sadora stated that the OSC can make the recommendation to Council and that it would be left to the Council to decide whether or not to approve the request. She stated the OSC Fund is not specific to purchases,but could be used for surveying or other needs that may help in the preservation and or taking care of a kuleana that has already been established. Ms. Sadora stated that Mr. Spacer is requesting that the OSC make a request to Council for funds up to $20,000 to retain special counsel. Commissioner Evslin inquired what the normal procedure is when hiring outside special counsel. Ms. Sadora stated the OSC would need to vote on a motion to send a written request to Council requesting funds in amount of$20,000 to retain outside special counsel. Mr. Spacer asked if it is the County Council who actually appropriates the funds to which Ms. Sadora replied yes; she noted that all matters relating to the OSC fund must go through County Council for approval. Commissioner Nakahara asked whether it was appropriate to ask Deputies Jung or Sayegusa to represent the OSC relative to Mr. Spacer's request. Deputy County Attorney Sayegusa noted that she cannot speak for her office in general on what action it would take. Ms. Sadora stated that at this point she could say that Deputy County Attorney Jung has been on top of the Ka`aka'aniu issue, and suggested that the Commission defer the matter for continued discussion at its next meeting in anticipation of his return. She stated that if this is something that the OSC wants to do she could ask Deputy County Attorney Jung to be a part of the communication that the OSC sends to Council, but if it is a matter in which he feels could be handled internally then it would be something that she could bring back to the OSC before any action is taken. She noted that the question she would pose to the Commission is whether it felt that it was absolutely necessary to move forward with outside counsel. Chair pro tem Lydgate asked what is the pleasure of the Commission. Commissioner Hayashi asked whether it would be best to defer the matter because of its importance, and she would feel more comfortable having the whole Commission present during the discussion and decision- making. Commissioner Evslin stated that he agrees with Commissioner Hayashi to defer the matter, and asked Mr. Spacer his take on what he envisions the legal team would be doing. Mr. Spacer stated that the trail has been claimed by the State including all three properties, and the State is not doing anything which he felt was its job to do. He stated that he has knowledge of at least two attorneys who would take the case, but will not invest in any research until it receives official approval from the OSC that the funds have been approved by Council. Deputy County Attorney Sayegusa pointed out that the Office of the County Attorney would first need to identify the needs, once it is established her Office would go out to solicit resumes and once it receives it, then the procurement process begins. Commissioner Evslin asked what the attorney's job description would entail; would it be a more legal type of action or letter writing. Deputy County Attorney Sayegusa stated on exactly what type of action would be taken would be Open Space/Minutes/2013-9-26 Page 16 of 18 part of the analysis, and obviously condemnation is not an option because the land is owned by the State which makes it a public purpose. The Commission received written testimony from Ms. Rayne Regush, which is attached hereto. She stated that on behalf of the Sierra Club Kaua`i Group of Hawai`i Chapter, they encourage the Commission to submit a request to Council to approve an expenditure of$20,000 to retain special outside counsel for the purpose of securing public access along the coastal Ala Loa through the ahupua'a of Waipake, Lepeuli, and Ka'aka'aniu. The Commission received written testimony from Robert Zelkovsky, which is attached hereto, in support for approval of$20,000 of the OSC funding to hire outside special counsel Tom Pierce. Chair pro tern Lydgate noted that he would like to defer this item for continued discussion at its next meeting on October 10th. He stated that he would be inclined to say that he does not want to rush the process. and although he understands its urgency he would like to wait until the return of Deputy County Attorney Jung to continue any discussion on the matter. Commissioner Evslin stated that he agrees and that he would like to inquire more on what the issue will entail. Chair pro tem Lydgate stated that he thought it was interesting that the Sierra Club and the Surf Rider Foundation wrote in support of the recommendation to retain outside special counsel. He noted that normally these types of organizations have their own attorneys to represent them, and to have both organizations approach the OSC to retain counsel is unusual. Ms. Regush stated that the issue has been a long standing opala issue; it crosses the jurisdiction between State and County. She stated that back in the territory days when there were easements, footpaths and trails, and what some call limbo roads, no matter how small it ends up getting lost in the shuffle. She stated the Sierra Club is just trying to facilitate the conversation between jurisdictions of the County and State. The Commission received public testimony from Hope Kallai. Ms. Kallai stated that although she supported the concept she agrees that the timing may not be the best right now especially if the OSC is writing.a letter requesting action relative to Waipake. To talk about a law suit in the same breath is untimely; however it may be more humble and respectful to ask for outside counsel for a conservation easement preparation because with the conservation easement through Waipake you would have to delineate the Ala Loa. Commissioner Evslin asked if any Commissions, especially OSC, paid for outside counsel to which Ms. Sadora replied that she was never part of the process. Chair pro tem Lydgate called for a motion to defer agenda item G.2 to the next meeting. On a motion made by Commissioner Hayashi and seconded by Commissioner Evslin to defer agenda item G.2 to the next meeting in October, the motion carried unanimously (5:0) H. COMMISSION EDUCATION Open Space/Minutes/2013-9-26 Page 17 of 18 1. Public access workshop a. Presentation by Planning Department regarding conditions, dedications, entitlements through Subdivision and Special Management Area process. Ms. Regush questioned when this item would take place. Ms. Sadora stated that the reason for its delay up until this point is mainly because either Mr. Jung had to be off island due to County business, or there was not a full Commission body for the presentation to happen. Ms. Regush asked if it keeps showing up on the agenda how the public would know if it will really happen. Ms Sadora stated that the Commission has agreed to keep it as a standing item because even up to the meeting day there is no way of knowing if all members would be present. I. NEXT MEETING DATE AND AGENDA TOPICS FOR DISCUSSION Chair pro tem Lydgate stated that the next OSC meeting will be on October 10, 2013. J. ADJOURNMENT Chair pro tem Lydgate called for a motion to adjourn the meeting. On a motion made by Commissioner Evslin and seconded by Commissioner Dela Cruz to adjourn the meeting, the motion carried unanimously by voice vote (6:0) At 3:43 p.m. the meeting adjourned. Respectfully submitted by: Qe i T k,, Mercedes Omo-Youn, Support Clerg , , ( ) Approved as circulated on: ( ) Approved as amended on: see minutes of: Open Space/Minutes/2013-9-26 Page 18 of 18