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HomeMy WebLinkAbout2014-01-23 Open Space Commission Minutes Approved PUBLIC ACCESS, OPEN SPACE & NATURAL RESOURCES PRESERVATION FUND COMMISSION REGULAR MEETING MINUTES January 23, 2014 — Approved on 2-2844 The 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/213. The following Commissioners were present: Patrick Gegen, Vice Chair Theodore Blake Linda Dela Cruz Luke Evslin Dorothea Hayashi Maurice Nakahara Absent and excused: Joseph Figaroa, Chairperson The following Staff members were present: Planning Department Nani Sadora and Duke Nakamatsu; Boards and Commissions Staff. Mercedes Youn, and Deputy County Attorney Ian Jung. Public testimony: Tom Schnell, PBR Hawaii; Bill Prosser, CIRI representative; Members of the public: Arnold Albriegh, Hope and Tim Kallai. A. CALL TO ORDER Vice Chair Gegen called the meeting to order at 1 : 03 p .m. with six (6) Commissioners present to ascertain a quorum. B. APPROVAL OF THE AGENDA The agenda was approved as circulated. C. ANNOUNCEMENTS No announcements. D. APPROVAL OF THE MEETING MINUTES This item was deferred to the next meeting. Page 1 of 15 E. RECIEPT OF ITEMS FOR THE RECORD No items were received for the record. F. UNFINISHED BUSINESS 1 . Compilation and evaluation of 2013 public input pursuant to Ordinance No. 812 and the development of a biennial list of priority projects and 2013 Report to the Kauai County Council and the Mayor. Vice Chair Gegen asked if the biennial list was approved. Deputy County Attorney Jung reported that the list was approved by the Planning Director and will be sent to the printers. Vice Chair Gegen noted that upon receiving the copies, the OSC would then contact the County Council to request a meeting. 2. Review and discussion on past recommendations and prioritization of the Commission's work plan/timeline of events and activities. Vice Chair Gegen stated that based on the items listed on today' s agenda, the Commission would not be discussing the matter at this time. G. NEW BUSINESS 1 . Presentation by SIRI Land Development Company regarding a proposal to consolidate existing lots at MakahuAena Point comprised of 25 lots of record tax map key (TMK Nos .) (4) 2-8-021 : 044 — 068, one bulk lot (TMK No. (4) 2-8-021 : 041, and two unnumbered road lots and re-subdivide the property into 10 single families residential lots approximately 1 acre each, and associated open space and infrastructure. Vice Chair Gegen stated that this process is new because normally the matter would go to the Planning Commission for review and recommendation for public access . He stated that the Commission was asked to review the proposal and provide recommendations to the Planning Commission which he felt would avoid public access issues on a similar parcel. Deputy County Attorney Jung explained that the intent is to look at the proposal as a pre-consult review because ultimately only the Planning Commission has the authority to detennine the location of public accesses . He advised the Commissioners to think of it as an advisory comment to the Planning Commission, which will be in the minutes for transmittal to the Planning Commission when the project appears on their agenda for review. Bill Prosser, consultant for SIRI Land Development, stated that SIRI is one of thirteen corporations that were created in 1971 by the federal government. He stated that the CIRI has a total of seven thousand shareholders all of which are Alaskan natives . He stated that their purpose is to provide dividends and other benefits to its shareholders . Page 2 of 15 He stated that the subject land was acquired through a government auction in the nineties. He shared with the Commission that he served on the Board of Directors for thirty (30) years and was a Chairman for ten ( 10) years . He stated that SIRI has developed properties throughout the country and has always taken the same approach by putting together a team of local professionals. Mr. Prosser stated that he has worked on the proposed development for about three (3) years and has received good advice from team player Planner Tom Schnell , Mr. Prosser stated that Mr. Schnell is responsible for the entire layout and plan of the development. Mr. Tom Schnell thanked the Commission for giving him the opportunity to make his presentation on re-subdividing the subject property into ten (10) single-family residential lots approximately one acre each. Mr. Schnell provided the Commission with an aerial photo including two visual aids showing the layout of the project. He shared with the Commission that in 1930 the property was subdivided into twenty-five (25) (on record) parcels including two road way parcels and another bulk parcel. He stated that by right, SIRI has the ability to develop the twenty-five (25) lots or build twenty-five (25) homes on the thirteen ( 13) acre parcel, but they felt that was not the way to go so they decided to consolidate the existing lots and re-subdivide it into ten ( 10) lots of approximately one acre each. Mr. Schnell described the general shape of the property, which includes the location of the existing roads and buildings surrounding the property. He stated a State Certified Shoreline Report was approved on January 14, 2014 and that thirteen ( 13) acres are developable areas ( 12. 3) that would not include the shoreline area. He explained that they want to create ten ( 10) lots with an un-gated private internal road that would be opened to the public, and at the same time provide access to the lots. He stated that the Commission would be most interested in the maintenance of the shoreline access trail located on the western side of the property down to the shoreline area. He mentioned that the 10,000 square feet of parcel has a light beacon on it that serves as a navigational aide and is owned by the U.S government; that area will be untouched by the development. He stated that the current shoreline access continues laterally along the coastline that connects to the existing shoreline access located on the eastern side of the subject property. Mr. Schnell stated that the State Land Use Commission designated the land Urban; the County designated the area Open Space Zone; the General Plan designated the land Resort; and the property itself is in a special management area. He stated that they are working on preparing a SMA use permit application and a shoreline setback determination for submittal by early next week. He explained that the shoreline setback determination is a requirement from the Planning Department to determine how far the setback has to be on the property or the developable area from the shoreline. He stated that the setback would probably be about 60 to 100 feet depending on the depth of the lot where nothing can be developed; however they did not get a confirmation from the County as to where the setback would eventually be. He stated that although the record shows the shoreline access easement is on the makai side of the property that area will eventually become an open space for the public because no structures will be built in that area. Commissioner Hayashi asked if he really meant that there will be 60 to 100 feet easement. Mr. Schnell explained that technically they are required to provide a ten ( 10) foot rule and once the Planning Department makes a determination, there will be an easement 60 to 100 feet depending Page 3 of 15 on the area of the lot. Commissioner Hayashi asked if the public will have access to the shoreline to which Mr. Schnell replied that entire area to the shoreline will be left open and will not be part of the legal easement. He stated that no structures will be built on the makai side because it would prohibit the public from gaining access to the shoreline to fish. To keep on that point, Vice Chair Gegen asked if the plot lines would lead to the shoreline to which Mr. Schnell replied yes. Vice Chair Gegen then asked whether the homeowners, at a different point in time, could put up a fence from the easement down to the ocean. Mr. Schnell assured Vice Chair Gegen that it will not happen because they will put a restriction in the deeds to prevent it from happening. He stated that what they are proposing along the shoreline/setback is to build a 3 to 4 foot retaining wall which would give a demarcation between the private area and the public area. He added that the retaining wall will help to retain any drainage coming from the lots preventing it from moving forward. Mr. Schnell stated that because the lots are one acre by ordinance, and has a limit of 10 percent coverage, the house footprint cannot be more than 10 percent of the acre, which is about 4,000 square feet in relation to the total lot. He stated that the project is limited to two-stories with a maximum height of thirty (30) feet, which includes the peak of the roof line. He explained that he has been involved with the project for over two (2) years now, and that his working relationship with CIRI has been great especially because they hired Jan TenBruggencate as community outreach person. Mr. TenBruggencate has been out in the community talking to people about the project for about eighteen months or so. In addition, CIRI has held community meetings with the Koloa Community Association and has even met with individual neighbors . He shared with the Commission that on Saturday morning CIRI will be hosting an open house on the property and he invited everyone to attend. Commissioner Blake asked in reference to the open space easement and the parking lot, what is the timeline of completion with the commencement of the development. Mr. Schnell stated that when they submit the subdivision plans, the plan will also include the easements. Commissioner Blake asked if the work will start on the front end or the back end of the property. Mr. Schnell stated that SIRI intends to subdivide the lots and create the easements, and then sell the lots to the individual homeowners who will build their own homes . In other words, the easements would be created on the front end of the property. Commissioner Blake then asked in reference to the open space, which is considered private property, how will SIRI deal with the liability issues, and will the County accept the liability or not. Mr. Schnell stated that he would like to refer his question to the attorneys. Mr. Prosser stated that SIRI has wrestled with the same subject and that their attorneys have yet to come up with an answer. He felt that it was premature to tackle the question at this time because they are amicable to any ideas, and that they have to consider the other party involved, which is the County because they need to know if they have a viable project or not. He stated that if and when it gets to that stage they are going to solve the problem to the satisfaction of the corporation and the County' s . He added that the maintenance of the road is less of an issue for them because they intend to take care of the road anyway, which is why it' s conceived as a private road and parking. In regard to who will take care of the liability and the actual legal form of the parcel that will be made available to the public has not been settled in their minds. Page 4of15 Commissioner Blake asked how SIRI will regulate how close the easement to the homes will be and if the homes will be located further back which would make a lot more sense because of a possible hurricane; the further you go back the view gets better. He stated that another concern whether warranted or not is about view plains . Mr. Schnell stated that his concerns will be addressed in the SMA application information of a visual view plan analysis. They plan to create different scenarios on where to place each home, which to him would make more sense to cluster the homes towards the road. Commissioner Blake asked if it would be included in the CCRs. Mr. Prosser stated they are very aware of their surrounding neighbors and that 30 feet is really not that high as compared to if the twenty-five (25) homes were built. He stated that the CCR will enable them to designate a building pad showing the restricted areas where the homeowner can build their home. For edification, Deputy County Attorney Jung explained that because the subdivision consists of more than four (4) lots the project will trigger an SMA permit, which will go through a full public agency hearing first, then to the Planning Commission in addition to the subdivision. He further explained that in the past the Planning Commission looked at utilizing building envelopes in the SMA permit, but that is something that will be evaluated at that time. Mr. Prosser explained that they chose to do a visual plan analysis as a proposal to the Planning Commission in hopes of getting the approval. Commissioner Nakahara asked how many parking lot spaces they envision relative to the parking lot. Mr. Schnell stated that at this time the conceptual plans show about nine parking lot spaces, but they are open to listening to the public's concerns about it. Commissioner Nakahara stated that the conceptual plans show that not all of the lots will be facing the ocean, only about three. He asked if the private road would lead to a cul-de-sac. Commissioner Hayashi stated that because the Commission does not have any information regarding the liability issues relative to the shoreline, is it possible that someone could put up a fence on both sides of the property, which will prevent the local fisherman from going down to the shoreline. Mr. Schnell assured Commissioner Hayashi that the entire shoreline area will be open to the public. In response to Commissioner Hayashi 's question, Vice Chair Gegen stated that the developer has agreed to build a four (4) foot rock wall near the ten ( 10) foot easement, which will prevent any type of development down to the shoreline. Deputy County. Attorney Jung asked Mr. Schnell to point out on the visual aid where the actual proposed deeded vertical access down to the shoreline would be because it looks like it swoops around and goes to a lateral access. He stated that the important thing to look at in terms of the subdivision code is to make sure that the access goes all the way down to the certified shoreline. Mr. Schnell explained that the area with little more than half an acre will become an open space area and will not be a part of anyone' s ownership . Deputy County Attorney Jung asked if the open space area would be owned by the community association relative to the subdivision and who would retain ownership. Mr. Schnell stated that they would be happy to dedicate the open space area to the County. Page 5 of 15 Commissioner Evslin asked why not keep all the other areas designated as open space to which Mr. Schnell replied that they could, but right now they are meeting the requirements to have a ten ( 10) foot easement. But there is nothing to say that they couldn't designate the whole area as an easement, which could turn into a liability issue. Mr. Prosser stated that because of the ten ( 10) percent rule they launched this way because if they didn 't do that they would run into house size problems, which would put them back to the start of the process . Vice Chair Gegen stated that everything from the easement down is still considered a lot and the fact that it' s an easement, the easement itself would be considered part of a lot. Mr. Schnell agreed because it would be considered part of the lot to assure that the homeowner gets a one acre lot, which will be a factor on the lot coverage area. He stated that the ten ( 10) percent coverage (4,000 square footprint) includes a driveway, walkway and a swimming pool, or whatever a homeowner wants to put on it. It does however include the house area because it would put a restrictive factor on the homeowner. Commissioner Nakahara asked if the project has been drawing interest to which Mr. Schnell replied that there is no attempt to market the project at this point. Vice Chair Gegen asked if the parking lot stalls and the easement will be made ADA accessible all the way down to the shoreline, and will it be paved like the public access trail on the other side. Mr. Schnell stated that they actually had a discussion earlier, but they did not come with a resolution. In some ways, keeping the area natural would be better as opposed to putting in a concrete sidewalk, which would make the area look more urban. He stated that they want to do what is required. Mr. Prosser stated that is an area in which the property owner will not get involved. He mentioned that a lot of time has been spent on doing a survey of all the different stakeholders and interested parties, and at this point the decision is split right down the middle. However, he feels that the problem would probably be resolved during the public process . He noted that they intend to do whatever is necessary, and whatever the community determines it wants, and if it wants a concrete sidewalk they will deal with it; however, it will involve additional permitting and additional things associated with it. He stated that in reality they do not want to take a strong position, and will wait until it goes through the public process in which someone would eventually make the final decision. Vice Chair Gegen stated that he thinks one of the concerns that Commissioner Blake was wondering about is at what point would the parking lot be put in; will it be the last thing after the last lot is sold or will it be done early to make it available to the public right away. Mr. Prosser stated that the parking lot will be placed at the front end of the project and will be built at the same time the electrical lines are put in. He explained that there will be a fair amount of earth to be moved, and he imagines the parking lot will be built the same time when the contractor paves the street. Vice Chair Gegen asked in the area where the light beacon is located will the contractor need to have access to the area. Mr. Schnell stated that there is an access easement already there, and they would like to realign the access easement and make it the same easement for the public. Commissioner Hayashi asked where the easement is. Mr. Schnell referred to the visual aid to show Commissioner Hayashi the location of the easement. Commissioner Evslin Page 6of15 asked whether the area on the left side on the map is a large area of open space. Mr. Schnell stated that the area in question is a bulk lot (roughly 700 acres) that is not designated open space. He asked the Commission to keep in mind that the subdivision was done in 1932 and it is not to the standards of criteria as it is today, but it is legally recognized by the County. Commissioner Evslin asked if there would be a prohibition on what type of vegetation can be planted in the area. Mr. Schnell stated that they are open to hearing input from the community and could put restrictions as needed. Commissioner Evslin stated that it is important to the Commission that they specify its use because one day it could be taken away from the public. Vice Chair Gegen stated that he is unsure about all of the easements, but he knows that there is a conservation easement in the County that allows less development and less criteria. He mentioned that maybe the Commission can look into turning the ten ( 10) foot easement into a conservation easement, but still use the property with the ten ( 10) percent rule. Mr. Prosser stated that the owners would have no problem with that at all. Commissioner Blake stated what the developer is doing is a big help for the County and the community because often times the public would not find out about a development until the first public hearing. He stated that the Koloa Community Association has had numerous meetings with Mr. TenBruggencate who has even addressed most of the concerns the public would think about discussing with a developer but don 't because some of them are not as open. He thanked the gentlemen for taking the step because most of the developments that have happened in the last eight years that were zoned in 1972 would only stick to the conditions set forth in 1972. Commissioner Hayashi stated that her concern was to always keep it open space because too often her generation has been cut off from getting access to the fishing areas. She thanked the gentlemen for being open about the development and that she was grateful to hear that they will be looking into the conservation easement in which they would retain their ten ( 10) percent rule. Mr. Prosser stated that they have spoken to many different people that have shown an interest in the impact of the development, and chatted with groups of local fisherman to find where they consider are the most valuable areas, and try to accommodate their concerns in the planning. Vice Chair Gegen mentioned that during the Commission's community outreach there were a number of people who talked about preserving MakahuNena Point as open space. He stated that he concurs with the plans and for the reassurance in keeping the shoreline open to the public, and asked how Commissioner Blake felt about the proposed access. Commissioner Blake stated that he is happy with the proposed access and if all developers thought the same way there would be no problems. To acquire access is a big thing and by putting everything upfront he doesn't think that there would be any resistance from the Community Association because most of the members are in line with their thinking. He stated that as a standard he would like to see the area maintained from this point on because, unlike the previous developers in Koloa, they have taken a different approach by working with the community before going to public works and planning. Vice Chair Gegen asked the Commissioners if they would like to make a comment on the proposed access. He noted that from the look on faces he believes the Commission is in agreement with the proposed access . Page 7of15 Vice Chair Gegen open the floor for public testimony on the potential development at -Makahu' ena Point. The Commission received testimony from Arnold Albrecht. Mr. Arnold Albrecht stated as a homeowner at the adjacent Makahu' ena Resort he will be testifying on behalf of himself and his wife. He stated that the Homeowners Association is primarily concerned about any changes that will affect the zoning and block their view of the ocean because they purchased those views. He stated that the adjoining property (4.7 acres) next to them used to be a Coast Guard Reserve Station, and is considered a separate parcel from the land that was later acquired by the U.S Government for the loran site. He stated that he conducted a survey from 10 : 00 a.m. to see how much the people use the access and he counted one hundred people. He stated that the Homeowners Association all agree that the access along the shoreline must be maintained, and as a trail person himself and speaking as an individual, he supports the public access even though it goes right past his front door. He stated that the Homeowners Association does not want to see any action taken until the public hearings are completed; they are not opposed to the project as long as their views are protected, and from what he understands, the developer has agreed to do a view plain analysis. He mentioned that one thing they would like the Commission to do is to add the old Coast Guard Reserve Station to the acquisition list because it has the potential to raise money for the natives and reduce the impact of development in the old crater that exists on the four acres. He stated that although he may be biased as a retiree, he bought the place for the ocean view long before the property next to them was acquired. He pointed out that he speaks for the numerous homeowners who did not get a chance to sign the letter, but have expressed interest in retaining the four (4) acres as it is. He stated that they are primarily interested in keeping the open space open with the possibility of converting it from non-native vegetation to endemic plants that would not block the views for the new and existing residents, similar to what the developers in Kukui `ula have done along the road heading into Allerton Gardens, Mr. Albrecht stated that he would like to make a direct request to the Commission that they include the four (4) acres, including the small piece of lot just above it, to the acquisition list and that no action be taken on the zoning until after the public hearing is concluded. He stated that CIRI has been cooperative in hearing their concerns regarding the height of the building. Vice Chair Gegen pointed out to Mr. Albrecht that the Commission does not have any jurisdiction over any County zoning issues. Mr. Albrecht stated that he understood and they are mainly here to support the development of a shoreline access trail, and the possibility of having a broader access area on undeveloped land that could be (even with volunteers) replanted, which he felt would be a great asset for the County to maintain the open views of.the ocean. Vice Chair Gegen encouraged Mr. Albrecht to attend a Planning Commission meeting to express his concerns about people walking pass his unit and wanting to keep the view plains. Mr. Albrecht stated that he is not concerned about people walking past his unit because it' s part of living there, but there are some folks who do not want to see any picnic tables or restroom Page 8 of 15 facilities on the site because it would end up being a party area, which would affect their place and the new development as well. Commissioner Blake asked how many homeowners the development will affect. Mr. Albrecht stated that there are seventy-eight homeowners, and in his building alone there are about twenty who will be directly affected. Commissioner Blake asked when he bought his apartment was there a guarantee that the view plain would be not be affected. Mr. Albrecht stated that at that time the area was a Coast Guard Reserve. Commissioner Blake stated that he would like to make just one point, as a lifelong resident in the Koloa area their access to the beach have been severely restricted by private property particularly in areas of Kukui`ula, Hawaii Kai all the way to Maha`ulepu. He pointed out that everyone who came to build did not want anyone else to build next door, which he felt is unfair because everyone has the right to develop their own property. He stated that it should be encumbered upon him to look at a piece of private property knowing that the piece of land is valuable especially if the land is located next to a shoreline. He stated that there aren't many developers who would go this far and be open about the proposed development, which to him is showing "Aloha" which is something that everyone needs to re- visit annually and learn how to live with their neighbors . Mr. Albrecht stated he understands his point of view because they also have a shoreline access that is open to the public, and they do not keep people from parking in their parking lot nor do they keep people from accessing other ways to get to the shoreline. He stated that his unit is not located next to the shoreline, but when they bought the unit a long time ago the area was completely undeveloped, and the only structure on the land was the Coast Guard Light House Reserve facility. He stated that he is not against the project, but if it is possible to acquire the four (4) acres or at least have a strip as they have previously proposed. Commissioner Blake asked whether the affected homeowners are willing to participate in the purchase of the development to which Mr. Albrecht replied he does not know, but there might be others that may be interested because after all Makahu` ena Point should be considered as a nature conservative or a trust for public lands . Commissioner Blake stated that what he is suggesting are very broad ideas. Vice Chair Gegen stated that the fact the issue is before the Open Space Commission is perfectly applicable, and he feels that Mr. Albrecht is doing the right thing by letting CIRI know what his concerns are. Commissioner Evslin asked Mr. Albrecht to point out on the map the location of the four (4) acres that he was referring to. The Commission received public testimony from Tim Kallai . Mr. Kallai stated the procedural element in which the developer has shown is something that he would like to see more of in the future. Being able to hear everyone out; to hear their concerns and work towards an amicable resolution. The Vice Chair thanked CIRI for providing a lot of information on the development; he also thanked the Planning Department for giving the Commission the opportunity to see it before the fact instead of always having to fight after the fact. Page 9of15 The Commission received public testimony from Hope Kallai. Ms. Kallai thanked the developers for front end loading the facts instead of always having to be contentious. She stated that she liked the concept of obtaining the Loran Station easements, and would like to expand more on how many are actively being used because these structures are located all over the island on federal reserve land acquired for public access for Loran Station maintenance, which she believes could be an option for public access in other locations on the island. Deputy County Attorney Jung explained that this is the first in quite some time that a proposed access is actually coming before the Planning Department. He explained that the idea is to allow the Open Space Commission to provide a pre-consult as to the location of the access easements. He said if the Commission would like to make a motion to accept the proposal, subject to further review by the Planning Department, it certainly could, which would be summarized in the meeting minutes as a transmittal memo to the files . On a motion made by Commissioner Blake and seconded by Commissioner Nakahara to accept the proposal, subject to further review by the Planning Department. Commissioner Evslin asked if he could add a few comments in addition to the motion to accept the proposal. He stated that although the discussion was great he felt that there was a need for clarification in the wording that the lots on the bottom would (inaudible) . Vice Chair Gegen suggested that the motion could read to the effect that the Commission appreciates the proposed access from the road towards makai, and also likes the concept that everything makai from the easement stays natural and undeveloped. Commissioner Evslin noted that he just wants to make sure that the motion is clear. Deputy County Attorney Jung stated that procedurally the Commission should withdraw the second and the motion and then clarify the motion in terms of what specifics the Commission would like. The motion was withdrawn by Commissioner Blake. Vice Chair Gegen asked Commissioner Nakahara if he could withdraw his second. Commissioner Nakahara withdrew his second. Vice Chair Gegen stated that now that the second has been withdrawn he would like to entertain a new motion to clarify relative to Commissioner Evslin' s concerns. Commissioner Evslin asked if the Commission should talk more about what that clarification should be before the Commission makes the new motion. Commissioner Evslin stated that the Commission could make a recommendation to the effect that the developer look into the matter of a conservation easement, or clarify the wording in the property deed to ensure that the shoreline will remain open for public access. Page 10 of 15 Commissioner Blake suggested that the motion should also include planting of native and indigenous plants, and a restricted height limit of two to three feet because the area is windy and dusty. Deputy County Attorney Jung stated that the Commission should bear in mind that this body' s concern is the location of the proposed easements should the subdivision be approved. He stated that the landscaping, including the view point elements, will be done though the Planning Commission through the SMA permitting. Commissioner Blake asked if he was making a recommendation. Deputy County Attorney Jung stated that the Commission is recommending the location of the easements, but to determine what type of landscaping would go around the easements is going to be up to the owner of the property. He stated that the Commission can make the recommendation but it's a separate process in itself, and that he would not recommend including it into the memo. But if the Commission wanted to bring up issues regarding a conservation easement it would ultimately come down as a work between the developer and the County, or even the Hawaiian Islands Land Trust. He stated that what he would advise the Commission to do is if the proposed easement is larger than the ten ( 10) foot standard that the County usually requests, then the matter could come before the Open Space Commission to evaluate the terms of the proposed conservation easement itself. Deputy County Attorney Jung asked if the Commission would like for him to suggest the wording for the motion to which the Commissioners agreed. Deputy County Attorney Jung stated that the motion could say that the proposal is acceptable to the body in that if they are going to look at any conservation easement or limitation in deeds that those proposed limitations in the conservation easement relative to shrubbery and the area would come back to the Open Space Commission for further discussion. Commissioner Evslin asked if he could clarify because if there is a conservation easement the Commission would be okay with it assuming or assuring that there is a conservation easement written into the deed. Deputy County Attorney Jung stated that the deal is three things could happen 1 ) there could be just the subdivision with the ten (10) foot access easements; 2) or the developers could carve out a separate lot and keep a separate lot but obviously that would impair the development in terms of the ten ( 10) percent lot coverage in the open district; 3 ) or the developers .could look into doing a conservation easement and work with either the County or the Hawaiian Islands Land Trust to limit their potential liability in that area. He stated that in any discussion on the issues relative to what type of plants should be planted and the exact location of where the easement is going to be, the Commission only needs to make a determination on whether or not it' s adequate for the public to get to the beach, and for them to be able to transverse laterally along the shoreline. Ile noted that this issue is not just about a subdivision; it involves an SMA permit, and the Commission should not only look at vertical access but lateral access as well. Vice Chair Gegen stated that the motion should read that the Commission accepts the conceptual plans of the easement and the associated access to the shoreline from the easements for fishing, transverse trail walking and to ensure that there is both a lateral access besides a vertical access, subject to the approval of the Planning Commission. Page 11 of 15 Commissioner Evslin stated that he thinks more clarification is needed relative to just having a lateral access because the lateral access is already there. The Commission is really looking for makai of the lateral access all the way down to the shoreline to ensure that everything private will never go away. Deputy County Attorney Jung stated to clean things up the Commission could make a motion to accept the proposed plans, but have the applicant work with the Planning Department to look at how to deal with the lands makai of where the proposed shoreline setback will be; that way it would include all of the lands as to what they refer to as a setback area. On a motion made by Commissioner Evslin and seconded by Commissioner Blake to accept the proposed plans but have the applicant work with the Planning Department to look at how to deal with the lands makai of where the proposed shoreline setback will be including all of the lands referred to as a setback area, the motion carried unanimous by voice vote (6 : 0) Deputy County Attorney Jung stated that in addition the Historic Preservation Review Commission would send a memo to the proposed applicant with a copy to the Open Space Commission to be filed. At 2 : 09 p .m. Vice Chair Gegen called for a five (5) minute recess. The meeting reconvened at 2 : 18 p.m. Vice Chair Gegen noted that Deputy County Attorney Jung had to leave to attend a meeting on shoreline setbacks. 2 . Recommendation to the County Council for condemnation resolution 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 and discussion on alternate access options. Vice Chair Gegen stated that at the last meeting, the Commission talked about the Hoban property and, from what he understands, the Commission looked at two other potential accesses to that beach area - one of which was the Spouting Horn; however, it was discovered that the wall will make it difficult to access . He mentioned that a letter and a follow-up letter were sent out regarding the empty lot however, no responses were received. He stated that at the last meeting, he made a proposal to the Commission that they start to move on the Hoban property by making a recommendation to the County Council for a condemnation resolution, which will allow the Planning Department to pursue negotiations for that access . He asked if it would be the pleasure of the Commission to move forward with a request to the County Council for a condemnation resolution, or continue to put the matter on hold and wait for a response to the letters. He mentioned that the Hoban property was one of the original recommendations since 2005 from former Commissioner Tessie Kinneman. Vice Chair Gegen stated that speaking not as a Chair but as an individual Commissioner he thinks that the Commission should move on something to which Commissioners Hayashi and Dela Cruz indicated that they both agree. Page 12 of 15 Vice Chair Gegen called for a motion to recommend to the County Council that they draft a condemnation resolution for the Hoban property. On a motion made by Commissioner Hayashi and seconded by Commissioner Dela Cruz to recommend that the County Council draft a condemnation resolution to take the Hoban property under eminent domain for public use Commissioner Nakahara noted that he would like the Commission to take into effect the fact that the attorney for the Hoban property will make the Commission realize that by condemning a certain property it could lead to a financial impact to the County in terms of a settlement. Vice Chair Gegen stated that the condemnation process would not automatically take the County' s money because the terms would still need to be negotiated. Commissioner Evslin pointed out that if all of sudden the Commission gets a response from the property owner wanting to sell the property, the Commission could ask the County Council to rescind its recommendation for a condemnation resolution regarding the Hoban property. Commissioner Evslin stated that although he is hesitant as to the usefulness of the property for public access he understands that the Commission needs to systematically go through it and try to provide access for every beach there is. Vice Chair Gegen stated that he tends to agree with Commissioner Evslin because the area is very small, which would probably only affect just a few people who would not use it that often. None the less, he felt that getting the access is important for the community and previous Commissions who worked on it. Commissioner Blake stated that he concurs with the Vice Chair however, he still feels that if the Commission is going to spend that kind of money it would be better spent towards providing access for the surfers at Kawaikiki. With no further discussion, Vice Chair Gegen called for the vote, the motion carried unanimous by voice vote (6 : 0) Vice Chair Gegen stated that he would instruct Deputy County Attorney Jung to draft the condemnation resolution to send to the County Council on behalf of the Open Space Commission. 3. Discussion on alternative access options to Kukui` ula Bay. Vice Chair Gegen stated that the item was covered in terms of the letters that were sent to the property owners, and at this point the Commission is still waiting for a reply. Ile requested that the item be deferred for continued discussion at the next meeting in anticipation of receiving a response from the property owners . Commissioner Blake asked for clarification on whether it was pertaining to the Kukui`ula harbor. Vice Chair Gegen clarified that the area he was talking about is the empty lot about two houses down from the former Hoban property. He stated that he believes that Staff sent out two letters, either in October or November. Page 13 of 15 Ms. Sadora clarified that the original letter was sent out on October 23`d and did not include a return receipt, and that the second request will be sent certified mail. Commissioner Blake asked if the Commission was looking into the possibility of one alternate access or two accesses. Commissioner Evslin stated that he believes the Commission was looking to see whether the property owner was willing to sell the property rather than going into a condemnation proceedings. Vice Chair Gegen noted that the Commission was thinking more along the ways of not continuing to wait, but to move forward with an action. 4. Discussion on historical roads issue and access issues to Papa`a Bay. Vice Chair Gegen stated that the Commission asked the Deputy County Attorney to provide information on the history and litigation proceedings. Ms. Sadora noted that the Deputy County Attorney made a request to defer the item to the Commission' s next meeting. The Commission received written public testimony (on file) from Hope Kallai, which is attached hereto. H. NEXT MEETING DATE AND AGENDA TOPICS FOR DISCUSSION Vice Chair Gegen stated that items G. (3) and (4) under new business would remain on the agenda for continued discussion including an update on Kauapea access ; public access involving the subdivision adjacent to Waipake. Commissioner Hayashi requested that the Commission be provided with an update on an acquisition of land for open space preservation to create a buffer at the Hanapepe Salt Pond Beach Park. Commissioner Evslin made a request to invite Tom Pierce to a future meeting. Commissioner Blake asked to have a discussion on the 1978 Constitutional Amendment regarding the trails from mauka to makai or lateral for religious and cultural practices . I. ADJOURNMENT On a motion made by Commissioner Dela Cruz and seconded by Commissioner Hayashi to adjourn the meeting, the motion carried unanimous by voice vote (6 : 0) At 2 :42 p .m. the meeting adjourned. Page 14 of 15 Respectfully Submitted by: Mercedes Youn Commission Support Clerk Page 15 of 15