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HomeMy WebLinkAbout2014-01-09 Open Space Commission Minutes Approved PUBLIC ACCESS, OPEN SPACE & NATURAL RESOURCES PRESERVATION FUND COMMISSION REGUALR MINUTES January 9, 2014 — Approved on 2-2844 A regular meeting of the Public Access, Open Space & Natural Resources Preservation Fund Commission was held at the Lihu` e Civic Center, Mo ' ikeha Building, in meeting room 2A/2B . The following Commissioners were present: Joseph Figaroa, Chair, elect Patrick Gegen, Vice Chair, elect Luke Evslin Dorothea Hayashi Maurice Nakahara Absent and excused Theodore Blake Linda Dela Cruz The following staff members were present: Planning Department Nani Sadora and Duke Nakamatsu; Boards and Commissions Staff Deputy County Attorney Ian Jung. A. CALL TO ORDER The meeting was called to order by Chair Gegen at 1 : 13 p .m. B. APPOINTMENT OF NEW CHAIR AND VICE CHAIR Chair Gegen opened the floor for nominations. Commissioner Hayashi move to nominate Vice Chair Figaroa to the position of Chair for 2014. Chair Gegen called for a motion to close the nominations On a motion made by Commissioner Hayashi and seconded by Commissioner Nakahara to close the nominations for the position of Chair for 2014, the motion carried unanimous by voice vote (5: 0) Chair-elect Figaroa opened the floor for nominations for the position of Vice Chair. Commissioner Hayashi moved to nominate Chair Gegen to the position of Vice Chair. Chair-elect Figaroa called for a motion to close nominations. Page 1 of 8 On a motion made by Commissioner Nakahara and seconded by Commissioner Evslin to close nominations for the position of Vice Chair for 2014, the motion carried unanimously by voice vote (5 : 0) C . APPROVAL OF AGENDA The agenda was approved as circulated. D. ANNOUNCEMENTS There were no announcements. E. APPROVAL OF MINUTES 1 . Minutes for December 4, 2013 deferred to the next meeting. F. RECEIPT OF ITEMS FOR THE RECORD No items received for the record. G. UNFINISHED BUSINESS 1 . Compilation and evaluation of 2013 public input processes pursuant to Ordinance No . 812 and the development of a biennial list of priority_projects and 2013 Report to the County Council and the Mayor. Ms. Sadora stated that the report was sent to the Planning Director for review and at this point, the Commission will have to wait to see if the report comes back asking for any modifications or if it was approved. She asked the Commissioners if they would like to review the report before it goes to the printers. Chair Figaroa pointed out that at its December meeting, the Commission reviewed the report in its entirety and made the appropriate changes and at this point, he would just say go for it. Vice Chair Gegen stated that any modifications made to the report should be fine, asking when should the Commission schedule a meeting to appear before the County Council. Ms . Sadora noted that she was unsure to which Chair Figaroa stated that the meeting would probably be scheduled sometime in February. Vice Chair Gegen stated that his only request is that the Planning Director reviews the report in timely manner preferably before the next meeting so that the Commission can move forward with what it needs to do. At 1 :20 p.m. the Commission took a break. At 1 :21 p .m. the meeting reconvened. Chair Figaroa noted last year, former Councilwoman Nadine Nakamura indicated that she would try to have the meeting scheduled as early as February 2014 . Ms. Sadora noted since she is no longer on the County Council the meeting could be re-scheduled at a later time. Page 2 of 8 Deputy County Attorney Jung explained that there are guidelines for transmitting agenda items for Council meetings. It is important that the Council Staff receive agenda items two (2) Fridays prior to the meeting date. Ms. Sadora commented at this point in time the report is being reviewed by the Planning Director and that she will try to get an update by tomorrow. H. NEW BUSINESS 1 . Review and discussion on past recommendations and prioritization of the Commission' s work plan/timeline of events and activities through 2013 including_ a. Status on acquisition plan for a portion of 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 . Deputy County Attorney Jung reported that they have not received any response from the both landowner' s relative. He stated that at this point, the Commission needs to decide how it would like to move forward on the matter. Chair Figaroa asked for the exact date the letters were sent out. Deputy County Attorney Jung replied that the letters were sent out in early December but does not know the exact date. In light of waiting for a response, the Commission could consider the other three options on of which is the vacant lot; the second is an option to pursue a condemnation path which he felt would be adverse and likely lead to litigation; third reopen the path adjacent to the parking lot at the Spouting Horn to gain direct access. Commissioner Evslin asked if the Commission wanted to pursue the condemnation of the former Hoban property and if so , would the Commission have to go through the County Council. Deputy County Attorney Jung stated that because the Commission has already done the dossier in terms of getting an appraisal the next step is to submit a request to the County Council to initiate a condemnation resolution because only the County Council has the authority to do that. He added that the only project that the Commission completed was when it negotiated for a land sale agreement for the Hodge property in which the Commission met with the County Council to sign off on the land agreement. In this case, this would be the first time the Open Space Commission is going after a resolution to condemn a property for the purpose of obtaining public access easement. He added that if the County Council passes the resolution it will give the Office of the County Attorney the authority to file for a condemnation proceeding. Commissioner Hayashi asked how long the process will take until the time the Commission gets the properties. Deputy County Attorney Jung stated that as far he knows the quickest was eighteen months and the longest (which is still pending) lasted for ten ( 10) years. He stated it all depends on the court' s calendar because ultimately it would go to a trial for evaluation as to what the County' s expert propose what the value should be and what the landowner is proposing. Commissioner Evslin asked if it does go to trial and the trial lasts for two years, would the money to pay for the trial come from the Open Space Commission Fund or would the Commission just have to pay the purchase price. Page 3 of 8 Deputy County Attorney Jung explained that it can done if the Commission decided that it wants to go through with the condemnation resolution and if approved by the County Council; the Office of the County Attorney would then file for a condemnation proceedings. If and when that happens there is a provision in the State law relating the condemnation proceedings that will allow the County to deposit the monies in the amount of the evaluation the County feels is appropriate to start acquiring the land. Vice Chair Gegen made a commented that the Commission could stand to lose the $ 80,000 to which Deputy County Attorney replied yes, explaining that the County would put what it perceives the value of the land is worth in a court escrow account which will remain there until it' s litigated. Commissioner Evslin asked if the court comes back and says that value of the land is worth $600,000, will the County have to pay in addition to that to which Deputy County Attorney replied yes. Commissioner Evslin asked if at that point is the Commission committed to pay the amount or could the Commission decide one more time if the value of the land is really is worth $600,000 and if not, can the Commission get the $ 80,000 back. Deputy County Attorney Jung stated that the Commission could always drop the lawsuit because court could rule in favor of the landowner' s appraisal. Commissioner Evslin asked whether the Commission would have to pay for anything over the purchase price such as legal costs and would come from the Open Space Commission Fund to which Deputy County Attorney replied no . Commissioner Evslin then asked about the process and how it works to obtain funds for legal costs . Deputy County Attorney Jung clarified that the Office of the County Attorney has a budget specifically to cover all legal cost that includes depositions. In regard to legal fees to obtain special counsel, the County Council has to approve the amount that is being requested. Vice Chair Gegen noted the Commission would not be asking for special counsel for this type matter but would just like to say in difference to the previous Commissioners that has worked on this for a number of years, he felt that it would be prudent for this Commission to move forward whether or not the Commission sees value in it or not because the previous Commission obviously did and at this point, he would like to make a motion to make request to the County Council to begin the process to purchase the property. Chair Figaroa stated that before the Commission make the motion he like to ask if it was possible to send a follow-up letter to the owners of the former Hoban property and give it another thirty (30) days just to show that there were several attempts made. Commissioner Evslin noted he thought the Commission already sent the letters. Ms . Sadora clarified that the previous two letters were sent to two separate groups, one of which was to landowners of the former Hoban property to inquire about the obtaining a pedestrian public beach access easement to Kukui `ula Bay and the other to the owner of the vacant lot. Chair Figaroa clarified that the purpose of his request was to show that the Commission did make several attempts ; before proceeding any further. Commissioner Evslin asked if anybody knew the original reason why the Commission decided to go with the former Hoban property instead of the vacant lot, and why the vacant lot was overlooked. Page 4of8 Ms . Sadora stated that the former Hoban property has been on the Commission's radar for a number of years and the recommendation originated with the original Open Space Commission, Vice Chair Gegen pointed out that the motion on the floor is to move forward with a recommendation to the County Council to purchase the property which was seconded by Commissioner Evslin. Commissioner Evslin noted theoretically it would be a plus because the vacant lot could be worth less and it would not have a great impact on the public however, the access does have a clear way up to the beach. Chair Figaroa stated that he agrees, because the public would have to traverse over the coastal area. Vice Chair Gegen stated that in looking at the past history the property has been on the Commission' s radar for eight years which makes him wonder how many more thirty (30) days will the Commission allow. He pointed out that even the previous Commission felt that the open lot was the right direction to go and as former Commissioner Kinneman testified to a month ago, that she would not support the proposed access to the beach from the Spouting Horn side because of a wall that extends out to the black lava making it unsafe for public access . Deputy County Attorney Jung stated that at this point he has to interject with the motion because the agenda item calls for a discussion on the status of acquisition plan and not for condemnation resolution. He advised that the Commission wait until its next meeting to discuss the possibility of a recommendation for condemnation resolution for the purpose obtaining a pedestrian public beach access easement. Chair Figaroa asked if there were any communications prior to him being on the Commission. Deputy County Attorney Jung stated that prior to him being on the Commission it is his understanding that there have been back and forth discussions in which some of the Commissioners viewed it as a priority and others did not, in other words, there was an ebbed flow to the idea of moving forward. But as of right now, it has come to the point where the .Commission did a dossier including a work-up in terms of what the County perceives is the valuation price and that the property owners did their own appraisal. With that being said, if the Commission continues to wait the appraisal will have to be re-done. Chair Figaroa asked if prior communications were sent directly to the owners of the property. Vice Chair Gegen stated that in the past communications were sent to the owners of the former Hoban property but not to the owners of the vacant lot. He added that the owner' s of the former Hoban property is aware of the situation because their attorney has been at every Open Space Commission meeting so far. Deputy County Attorney Jung noted the only thing that he can think of that was not followed up on was whether or not to contact all of the other property owners in the area. Commissioner Evslin stated that he likes the idea if there was a willing seller, but he is also concern as to what Vice Chair Gegen pointed out earlier about spending the next year talking about the same thing. Page 5of8 Vice Chair Gegen asked if there was a reason the Commission cannot pursue both properties; move forward with the condemnation and still send the letters. Deputy County Attorney Jung replied that the Commission could take that approach. Vice Chair Gegen stated for the sake of moving forward because the Commission is facing a two to ten year process based on the two examples that were given he would like the Commission to take the appropriate action. Commissioner Evslin asked whether it would be appropriate to place the item on the next agenda to allow the Commission to discuss the matter and vote on it. In addition, the Commission could also invite Tessie Kinneman who he believes is now a member of the Koloa Community Association to next meeting and send letters to the other property owner' s as well. Deputy County Attorney Jung reiterated that if the Commission wants to take action on the item it should put it on the next agenda for discussion on a possible recommendation to the County Council for condemnation resolution. Chair Figaroa stated that he agrees with counsel to place the item on the next agenda that way the Commission can have a dedicated discussion and a vote. Vice Chair Gegen stated if that' s the will of the Commission he would withdraw his motion at this time. Commissioner Evslin withdrew his second. Commissioner Evslin noted the letter should clarify that the Commission intending to move forward on the matter unless a seller steps up . Vice Chair Gegen stated that he would not recommend putting that type of language in the letter because if he was an owner of a property and knew that the County is looking into a condemnation he would let someone else deal it. Commissioner Evslin clarified that he meant only property the Commission wants to condemn which is the former Hoban property, but if there was a seller who is willing to sell their property for $ 100,000 without going to court, he would think that would the direction the Commission would like to go . Commissioner Evslin asked if there was interest in sending out the letters right away in hopes of getting a response before the next meeting. Deputy County Attorney Jung proposed that he and Ms. Sadora will generate two letters one to the owner of the vacant lot and one to Doctor Ashmith as a follow-up to what was discussed at the last meeting. Deputy County Attorney Jung stated that the way they contemplated dealing with the privacy issue was to factor in the price of putting up a fence wall or a vegetative screening to create a barrier. b. Status on access plan for Papa` a Bay. Deputy County Attorney Jung stated that the Commission wanted information pertaining to old reports and litigation files however, after looking into his own files he realized that he would need additional time to do more the research. In light of that, he shared with the Commission that he took the opportunity to go down to Papa`a Bay just to see if there were delineation of old trail marks. He stated after hiking through the trails it became unclear to him whether the Page 6 of 8 County's easement started on the rocks or on the property so he decided in addition to providing the Commission with an update as to the details of the litigation involving the other side of Papa` a where the road issue is, he wanted to see if he could somehow work with the landowner to clarify the location of the easement through documentation and maybe the County could improve the area. Deputy County Attorney Jung stated that the purpose of Councilmember Bynum' s resolution was to create a pedestrian access down to the beach (inaudible due to ringing of cell phone). He stated that this could be an option for the Commission if it chose to move into the direction of a condemnation resolution but it will include a fight in terms severance damage. The other option is figure out a way to make the current easement more accessible because an access does exist at Pdpa` a Bay. Commissioner Evslin asked looking from an easement perspective, did he think there was enough room to make a path along the hillside instead of the rocks. Deputy County Attorney Jung stated that it is really hard to try to do anything using the map and to really nail this down he needs to get the County surveyor to go out there and try to identify the TMK by manually staking out the property lines. Commissioner Evslin asked if the property line hits the certified shoreline. Deputy County Attorney Jung stated that the property line does not hit the certified shoreline and that they do not know where certified shoreline is because the map morphs. He suggested that the Commission might want to continue its discussion relative to the other side of Papa` a Bay which most times will lead into litigation. Chair Figaroa asked if he was going to contact the owner' s representative. Deputy County Attorney Jung replied that the same attorney that represents the former Hoban property represents the former Mandalay properties . He stated that he knows for a fact that the owner will oppose the County efforts to place an access off of the road being litigated. Vice Chair Gegen stated that personally he thinks it does make sense, if nothing else, to run the access parallel to the existing County easement to make it more accessible instead of creating a dangerous easement where people would have to hop on the rocks. He asked that any investigation into the matter would be appreciated. Deputy County Attorney Jung stated that he would try to get the surveyor to go out there with him before the next meeting. The Commission recessed at 1 : 53 p .m. The Commission reconvened at 2 : 13 p.m, I. COMMISSION EDUCATION 1 . Public access work shot� a. Presentation by Planning Department on the conditions, dedications, and entitlements through Subdivision and Special Management Area processes. Page 7 of 8 Deputy County Attorney Jung made a Powerpoint presentation (on file) on Public Access Issues : A Simplified Primer. A handout of the entire presentation was provided to the Commissioners pertaining to Legal issues, Property rights advocates, Rights associated to resources, How to balance discussion from a legal point of view; Fifth Amendment legal principles; Condemnation and Acquisition, Exceptions to right to exclude; Prescriptive Easement, Native Hawaiian PASH Rights; and Land use entitlements to include Subdivision and SMA use permit. J. NEXT MEETING DATE AND AGENDA TOPICS FOR DISCUSSION Chair Figaroa noted the next meeting will be on Thursday, January 23 , 2014 at 1 :00 p.m. in the Mo' ikeha Building, Meeting Room 2A/2B. Chair Figaroa noted the Commission will have a new item on the agenda to discuss a recommendation to the County Council for Condemnation Resolution. Vice Chair Gegen stated under new business a presentation will be made by SIRI Land Development regarding a proposal to consolidate existing lots at Makahuene Point, associated to open space and infrastructure. Commissioner Evslin suggested inviting Tom Pierce to talk to the Commission about historical trails relative to Larsen' s Beach, Alaloa and Waipake. He asked for an update on the status of having new Commissioners on board. Ms. Sadora stated that the Office of Boards and Commission is aware of the two vacancies and is currently working on securing people to fill the vacancies. K. ADJOURNMENT At 3 : 01 p.m. Chair Figaroa adjourned the meeting. Respectfully submitted by: Mercedes Yo Commissions §upport Staff Page 8 of 8