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HomeMy WebLinkAbout2014-7-10 Open Space Commissoin Minutes ApprovedPUBLIC ACCESS, OPEN SPACE AND NATURAL RESOURCES PRESERVATION FUND COMMISSION Regular Minutes of Thursday, July 10, 2014 The regular meeting of the Public Access, Open Space and Natural Resources Preservation Fund Commission of the County of Kauai was held at the Lihu`e Civic Center, Mo'ikeha Building in Meeting Room 2A/2B. The following Commissioners were present: Joseph Figaroa, Chair Patrick Gegen, Vice Chair Linda Dela Cruz Luke Evslin Dorothea Hayashi (entered the meeting at 1:15 p.m.) Maurice Nakahara Karen Ono Excused absence: Theodore Blake Randall Blake The following Staff members were present: Planning Department Nani Sadora and Duke Nakamatsu; and Commission Support Clerk Mercedes Youn. A. CALL TO ORDER Chair Figaroa called the meeting to order at 1:10 p.m. B. APPROVAL OF THE AGENDA. C. On a motion made by Vice Chair Gegen and seconded by Commissioner Dela Cruz to approve the agenda as circulated, the motion carried 6:0 by voice vote. Vice Chair Gegen announced that he will not be attending the July 24, 2014 meeting. Ms. Sadora noted that Deputy County Attorney Ian Jung will not be attending the meeting today. D. APPROVAL OF MINUTES Minutes of May 22, 2014 Page 1 of 11 On a motion made by Vice Chair Gegen and seconded by Commissioner Nakahara to defer Item D. approval of minutes to the next meeting, the motion carried 6:0 by voice vote. E. RECIEPT OF ITEMS FOR THE RECORD There were no items for the record. F. UNFINISHED BUSINESS • Review and discuss past recommendations and prioritizations of the Commission's work plan/timeline of events and activities. Vice Chair Gegen asked whether the Commission wanted to participate in the County Farm Fair this year or wait until next year and do it on a bi- annual basis. Chair Figaroa stated although he felt that the County Farm Fair was a good way to connect with the community he would rather do it next year because it may be too late to reserve a booth for this year's County Farm Fair. Ms. Sadora stated she would look into it but to keep in mind that this year is not a reporting year, and if the Commissions wants to solicit public input this year, it would have to do it again, next year. Chair Figaroa noted that next year would be a better year because the information would be fresh. Vice Chair Gegen stated that he agrees with Chair Figaroa, but would like the Commission to start planning in the middle of next year to ensure a space. • Update on recommendation to County Council for condemnation resolution for a portion of TMK 4) 2- 6- 003: -17 to obtain a pedestrian public beach access easement to Kukui`ula Bay through the former Hoban property and discussion on alternative pedestrian public beach access options to Kukui`ula Bay. Ms. Sadora shared with the Commission that she is aware of a communication between Mr. Jung and the Administration, but does not know anything beyond that. She explained all of the letters the Commission had requested at the last meeting, as far as she knows, are being processed, but that would have to wait until the next meeting when Mr. Jung is present. Ms. Sadora stated at its last meeting, the Commission talked about the possibility of receiving the worksheet that was presented to the Administration and Council on the work that was done to acquire a public access easement through the former Hoban property leading up to condemnation proceedings. Copies of the worksheet dated April 16, 2014 were distributed to the Commission. Page 2of11 Vice Chair Gegen stated he was disappointed that the Commission did not get to see the original letter that was transmitted to Council in which the Commission voted unanimously to move forward with the condemnation resolution. He asked if it was right for him to presume that a copy of the letter would be available at the next meeting to which Ms. Sadora replied yes, noting that Mr. Jung will also be present. Chair Figaroa asked if it was right for him to presume that the letter is in transition to. which Ms. Sadora questioned whether he was referring to the follow -up letter or the initial letter. Vice Chair Gegen noted that the letter the Chair is referring to is the initial letter dated June 23, 2014, to move forward with the condemnation. He stated a follow -up letter to Council was to check on the status of the condemnation resolution. Ms. Sadora replied that she would get the letters from Mr. Jung by the next meeting. Chair Figaroa asked if the Administration is moving forward with a new appraisal. Ms. Sadora stated it was her understanding that at the last meeting the Commission decided to send a follow -up letter to the Administration to see where things stood at Council relative to the recommendation for a condemnation resolution. Vice Chair Gegen stated he is frustrated because the Commission had already voted on June 23 to move forward with the condemnation, but up to now it has not received any updates other than its being assessed at some level in the Planning Department. He noted that at this point, he would like to know what was sent to Council because they are body who the Commission ultimately reports to. Commissioner Nakahara stated at this point, he would like to get some feedback from Council on their position regarding the condemnation resolution; whether they think it's worth it before moving ahead to do another appraisal. Chair Figaroa asked Ms. Sadora if she could send Mr. Jung a text message to see if he could send her a copy of the letter that was sent to Council. Ms. Sadora noted that Mr. Jung is off island, which is why he was not present at the last two meetings. Chair Figaroa asked if Mr. Jung would have access to the letter on his Wad to which Ms. Sadora replied she does not know, but will try. Vice Chair Gegen questioned the date of the memo being April 16, but yet this is the first he has ever seen it. Ms. Sadora explained initially a request came from Managing Director Nadine Nakamura to Planning Director Michael Dahilig to provide the Administration with information relative to acquiring a public pedestrian access easement through the former Hoban property, and what led up to the condemnation proceedings. Vice Chair Gegen questioned why the communication is addressed to the Open Space Commission and not to the Administration, and why the Commission is only receiving it now. Ms. Sadora explained the communication is a pre - existing document that was done off of the original appraisal that was sent to the Administration. Vice Chair Gegen stated he found it interesting that for the past Page 3 of 11 couple of months the Commission has repeatedly asked for updates, and only now is receiving it. Ms. Sadora stated at the last meeting she told the Commission that she would provide them with information on what was sent to the Administration. Vice Chair Gegen asked if the memo was also sent to Council to which Ms. Sadora replied that she does not know whether the memo went beyond the Administration. For clarity, Chair Figaroa asked Ms. Sadora if the memo was a result of a request from Managing Director Nadine Nakamura to Planning Director Michael Dahilig to provide the Administration with an update, but at this point she does not know whether or not the memo was transmitted to Council to which Ms. Sadora replied yes. Ms. Sadora explained the memo is part of the Administration's due diligence to see whether or not it should proceed with the condemnation. Ms. Sadora noted that the memo is a public document and can be released to the County Council. Chair Figaroa asked to forgive him if he's is wrong, but he was under the impression that Council is the determining body whether to proceed with the condemnation and not the Administration. Ms. Sadora stated as previously explained by Mr. Jung the Administration has the right to provide input, and although the Commission reports to the County Council it also has to report to the Administration because they are an integral part of the decision - making process, especially when it comes to condemnation. Chair Figaroa stated given the fact that the Administration is allowed to provide input they do not have any decision - making authority. Ms. Sadora stated when it comes to spending the funds the Commission must go to Council, but as a courtesy she would send the request to the Administration first prior to being transmitted to Council. Vice Chair Gegen noted according to the meeting minutes the correct date should read January 23, 2014, and not 3 -2014 as stated on page three (3) of the memo. He stated by the way things look the request was followed up on relatively quickly when in fact there was a three (3) month lag between the time the Commission voted to move forward with the condemnation on January 23 and the date of the memo. Commissioner Evslin asked if it was possible for the Commission to send the memo to Council because at this point he feels that the issue is sitting in dead water with the Administration, and the Commission has no idea what is going on. He stated by sending it to Council they could put pressure on the Administration being that the Commission is not part of the decision - making process. Chair Figaroa called for a motion to send the memo dated April 16, 2014 to Council. Vice Chair Gegen stated before the Commission votes to send the memo to Council he would like to change the date it was received from April 16, 2014 to July 10, 2014 Page 4of11 just so Council does not think the Commission was just sitting on it; secondly, change the date from 3 -2014 to January 23, 2014, which is the original date the Commission voted to proceed with the recommendation to County Council for condemnation proceeding. On a motion made by Commissioner Evslin and seconded by Vice Chair Gegen to send a memo to the County Council with the corrections noted by Vice Chair Gegen, the motion carried unanimously by voice vote 7:0. Ms. Sadora commented when the department or staff receives a directive in relation to what this Commission does, the Director of Planning has to make a decision whether or not to release the information. She explained that the subject memo was not meant to be kept from the Commission because its purpose was to assist the Commission's initiative to move forward with the condemnation proceedings. She further explained not all matters have to come before this body unless it's a major decision that must be made through a motion. Commissioner Evslin noted that he understands the process, but he would still like the Commission to be copied on all communications relative to the condemnation proceedings so that everyone is on the same page. Vice Chair Gegen stated although he does not expect to see every piece of communication that goes to Council he still expects the Commission to at least receive periodic updates on what has been done. For clarification, Ms. Sadora stated the Commission did have some knowledge on the cost sheet that was sent to the Administration, it just did not know what it looked like, which is the reason why she offered to provide copies of the worksheet to the Commission. • Discussion on a request from Council Chair Furfaro dated February 5, 2014 regarding access to Kilauea Falls located on TMK (4) 5 -2- 012:035, being placed on the Open Space Commission's priority recommendation list. • Discussion on a proposed draft letter to be submitted to Charles Somers and/or his representatives regarding a right-of-entry request to enter property identified as TMK (4) 5 -2- 012:035, to do a limited meeting site visit with the Commission to Kilauea Falls. Commissioner Evslin stated at the last meeting, the Commission talked about not sending the letter until it gets some feedback from the Kilauea Neighborhood Association on how they felt about the Commission's request for a right -of -entry to enter Mr. Somers property. Chair Figaroa noted that he would like to open the floor for public testimony before the Commission continues its discussion on the matter. Page 5 of 11 The Commission received public testimony from Tim Kallai, representative and board member of the Kilauea Neighborhood Association. Mr. Kallai stated at the last KNA meeting the topic was opened and discussed in which KNA President Yoshito L'Hote expressed his feelings that by no means would the Commission's request to gain the right -of -entry to Mr. Somers property harbor or hinder his communication with Mr. Somers. In fact, any support from a County source to gain access to the Kilauea Falls would be beneficial to the Kilauea Neighborhood Association and the community. He shared with the Commission that Mr. L'Hote and his family took a tour of the area so that he could visualize and be akamai in his decisions or recommendations to the Commission in the future. To clarify, Commissioner Evslin asked if what he is saying is the Kilauea Neighborhood Association is in full support of the Commission's continued efforts to gain access to the Kilauea Falls to which Mr. Kallai replied yes. The Commission received public testimony from Hope Kallai. Ms. Kallai stated she wanted to reiterate the Commission's request because in reality no one from the Kilauea Neighborhood Association could have written the letter requesting for a right -of -entry to enter Mr. Somers property. Chair Figaroa asked if the letter was in draft form. Ms. Sadora stated at the last meeting, Commissioner Blake wanted to wait until the Commission gets an opinion from KNA on how they felt about its request for a right -of- entry; he felt it might interfere with KNA's own efforts to gain access to the Kilauea Falls. Ms. Sadora explained that the draft letter was started, but is unsure at this point whether or not Mr. Jung has completed it. She explained because the letter will be a standardized form which basically requests for the right -of -entry to Mr. Somers property it will not be brought back to the Commission for review, and will be sent via certified mail upon completion. Chair Figaroa asked when the letter will be sent, and if possible can the Commission look at the letter before she submits it to Mr. Somers, noting that the Commission wants to keep track of all of its communications. Ms. Sadora stated she would let Mr. Jung know that he needs to complete the letter as soon as possible because the Commission wants it to be sent by Monday or Tuesday of next week. Commissioner Evslin asked if it would be appropriate at this time to make a motion to allow Mr. Jung to draft the letter, and have it sent by the middle of next week without the Commission reviewing the letter. Vice Chair Gegen stated he would second the motion, but he would like to amend Commissioner Evslin's motion to state that the Commission is provided with a copy of the letter at the next meeting. On a motion made by Commissioner Evslin and seconded by Vice Chair Gegen Page 6of11 to allow Deputy County Attorney Jung to draft the letter without the Commission's review for submittal to Mr. Somers and to provide a copy of the letter to the Commission at the next meeting, the motion carried unanimous by voice vote. • Update on pedestrian public access involving Falko Partners subdivision in the Waipake ahupuaa. The Commission received written testimony (On file) from Hope Kallai. Ms. Kallai voiced her concerns that the alaloa is a national historic trail with great cultural and historic significance, and blocking it would break the trail which she feels is wrong. She asked if the Commission could request comments from the Office of Hawaiian Affairs on the kind of impact it would have to cultural practices by blocking and fencing off the alaloa in Waipake. Vice Chair Gegen stated it appears at the Council's meeting yesterday, a discussion took place regarding a communication from Deputy County Attorney Ian Jung requesting Council's approval of a grant of pedestrian parking easement in the Kahu'aina Plantation subdivision. He noted that the issue was referred to full Council asking if there were more details on what had transpired in the meeting, and when will the issue appear before the full Council. Ms. Sadora replied she would ask Mr. Jung to provide the Commission with details of what had transpired at the meeting yesterday. Vice Chair Gegen noted that the outcome would definitely impact any actions the Commission takes at this point to which Ms. Sadora agreed. Chair Figaroa asked if anyone could remember Councilmember Bynum's concerns regarding this particular access. Vice Chair Gegen stated the initial concerns had to do with thel2 foot drop at the end of the proposed easement, which the landowner has agreed to relocate to an area north of the proposed easement. He mentioned that the Commissioners were given the opportunity to visit the area, and that the landowner will be installing up to a dozen parking stalls up to the border where the trail begins. Commissioner Nakahara noted that a representative from Falko Partners was present asking if he would like to comment on the issue. Shawn Smith representative for Falko Partners stated he is not the attorney, and would not be able to address any legal aspects relative to the subject property. He thanked the Commissioners for taking the time to visit the area, and offered to answer any questions the Commissioners may have. Chair Figaroa asked how things went at the Council's meeting last Wednesday. Mr. Smith stated the issue is huge and has a lot of moving parts, and some people might like the access and some people won't. To answer Chair Figaroa's question regarding Councilmember Bynum's concerns, Mr. Smith explained originally Councilmember Bynum wanted the easement to be accessible for people with Page 7of11 disabilities, which created another huge issue, but at the end everyone including KNA agreed collectively that less volume was the main consensus. In regard to what happened at the Council's meeting, Mr. Smith stated the matter was deferred to the September meeting because more land will be gifted to the County making it a legal issue. Commissioner Evslin asked if the ironwood fence located at the border of Falko Properties is a permanent fixture and part of their easement. Mr. Smith stated Falko Properties needs to be careful because the land including the alleged trails are still considered private property until such time it is established what is private property and State property. He stated it is safe for everyone to assume that the trail at the bottom belongs to the State, which the local fisherman use to traverse down to the beach. Mr. Smith stated he has no idea who constructed the ironwood fence and does not want to point fingers; however, the area in general is considered private property and until the public access easement is established it is fair for the private landowners to want to keep people on State land rather than on their property. Commissioner Evslin asked if their easement borders the Waioli Property line to which Mr. Smith replied yes, absolutely, in fact the easement goes south right down the property line leading down to the coast. He added it was brought to his attention that there were concerns about the easement ending at a 12 foot cliff, which he admits was an error on his part. He stated to fix the problem Falko Properties decided to gift a swath of land, which will be incorporated into the natural stairs located at the bottom of the trail. Commissioner Evslin commented he hopes once the land is gifted to the County that the ironwood fence will come down. Mr. Smith stated it would be up to Waioli Properties to decide whether or not they want to tear the ironwood fence down, and that he can only guarantee the Falko Partner side. Chair Figaroa asked if the ironwood fence was there prior to him being involved with the development to which Mr. Smith replied no, explaining that the ironwood fence was constructed only two months ago to keep people from entering the property at the top. Commissioner Evslin asked if the Commission would like to consider Ms. Kallai's request to send a letter to OHA asking for input relative to the ironwood fence, and its impact to cultural practices. Chair Figaroa noted that it would be beneficial for the Commission, and the public, to get an expert opinion from OHA regarding shoreline access. Vice Chair Gegen said when the Planning Department receives an application to subdivide a property one of the requirements is to ensure public access and asked what due diligence is taken as part of the process in reviewing the application to ensure that application does not have a negative impact to cultural practices. Ms. Sadora stated it is a collaboration between what the landowner can produce, and the opinion from the Planner who is reviewing the application. Chair Figaroa asked hypothetically, what if the planner comes from Africa and during the reviewing process of the proposed access with the developer what method does the Planning Department have to prevent the Planner from making foolish decisions, and allow the developer to get caught up in Page 8 of 11 the conundrum of making foolish decisions. Ms. Sadora explained the Planner only reviews the application and checks to see if all of the requirements are met, including checking to see if all of the documents are in place, before the issue goes to the Planning Commission for them to decide whether or not to accept the proposed access. Chair Figaroa asked if there is a cultural attache in the Planning Commission. Ms. Sadora replied the Planning Commission consist of seven members that come from different areas of expertise; whether or not a Commissioner is selected based on their knowledge in cultural practices she does not know. Vice Chair Gegen asked in this particular case is Council just providing input to the Planning Commission to which Ms. Sadora replied Council is part of the decision - making process to approve or deny the proposed public access easement, and in this case would be the Waipake ahupuaa. Vice Chair Gegen stated in his own opinion the proposed parking lot and trail path definitely meet the subdivision requirements. Ms. Sadora added one of the most integral parts of the process involves the public testimony because it could affect the final decision. Chair Figaroa stated it is unfortunate in some instances the community and the developer end up in a tiff just because a particular body made a decision that was uneducated. He asked if the Planning Department has a clause that would allow any updated information to override the previous decision. Ms. Sadora stated the current process gives the Planning Department the authority to scrutinize public access issues relative to the applicant's request to develop a new subdivision; however, if the matter needs to be deferred pending additional information /recommendations from another agency including the Open Space Commission that is also part of the process. The Commission received public testimony from Tim Kallai. Mr. Kallai stated the Planning Commission decision to approve the subdivision was based on a TMK map that was provided to the Planning Commission, which he felt a topo map would have reflected the elevation changes. He stated the Commission did not take the time to do a site visit, which he felt would have clearly shown that the proposed easement (which was added after the approval of the subdivision) lead to a 12 foot drop. He stated the reason there were no questions on the cultural impact was because the trail ended 580 feet short of the beach. The Commission received public testimony from Hope Kallai. Ms. Kallai stated as far as she knows, there have been no requests for comments from OHA about the blockage and fencing of the alleged alaloa in Waipake, and any cultural impact it may have. With no further comments, Chair Figaroa called for a motion. On a motion made by Ms. Ono and seconded by Ms. Hayashi to send a certified letter to the Office of Hawaiian Affairs (OHA) asking for comments regarding the fencing of the alleged alaloa in Waipake and any negative impact it would have to cultural practices, the motion carried by unanimous voice vote. Page 9of11 Vice Chair Gegen noted that he would like the Commission to receive a copy of the letter at the next meeting to which Ms. Sadora replied yes. 5. Update on Commission education topics. • Discussion on acquisition process involving landowners. Commissioner Evshn stated at the last meeting, the Commission voted to place a submission form onto its website for landowners who are willing to sell their property or a portion of it for public access and open space. Ms. Sadora stated she will need to discuss with Mr. Jung the legalities and language before placing it on the Commission's website. The Commission received written testimony from Hope Kallai. (On file) Ms. Kallai asked if the Commission could ask Mr. Pierce to address the ownership of Kahih Quarry Road, when did the State release ownership of the trail to the County and Pali Moana lastly, Can USFWS restrict access to the public beach parking lot. 6. Discussion on acquisition of land for open space preservation to create a buffer at Salt Pond Beach Park. Chair Figaroa stated at the last meeting, he thought the Commission wanted to modify the term to create a buffer at Salt Pond Beach. Ms. Sadora stated from what she understood the Commission elected to leave the language as is until further notice. She explained some members in the community may agree to the language change and others may not, so to prevent an unwanted situation she felt it would be better to leave it alone and address the issue as needed. At 2:25 p.m. Chair Figaroa called for a 5 minute recess. At 2:3 0 p.m. the Commission reconvened. • Proposed draft letter to Senator Ronald Kouchi requesting assistance with an executive order to acquire State of Hawaii land to create a buffer area near Salt Pond Beach pond. Chair Figaroa noted that the Commission elected to defer any discussion on the letter until after the Commission completes the educational workshop. • Proposed draft letter to the Department of Land and Natural Resources to block motorized vehicles from drivingon the beach and near the southern point at Salt Pond Beach Park. Page 10 of 11 Chair Figaroa noted that he would like to defer this item until the next meeting to give Ms. Rhonda Libre the chance to address the Commission with the anticipation of Mr. Jung's return. G. NEXT MEETING DATE AND AGENDA TOPICS FOR DISCUSSION Chair Figaroa stated the next meeting will be on July 24, 2014 and all of the items will remain on the agenda with the exception of the following updates: The Commission's request to the Office of Hawaiian Affairs for comment regarding impact on cultural practices relating to the lateral coastal trail; Council response- regarding the Commission's recommendation for condemnation for the former Hoban property; Letter to Mr. Charles Somer's requesting right -of -entry to enter his property. H. ADJOURNMENT At 2:30 p.m. Chair Figaroa declared the meeting adjourned. Submitted by: Mercede 'oun, Support Staff Approved on August 28, 2014. Page 11 of 11