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HomeMy WebLinkAbout2014-02-27 Open Space Commission Minutes Approved PUBLIC ACCESS, OPEN SPACE & NATURAL RESOURCE +' M t i. PRESERVATION FUND COMMISSION REGULAR MINUTES *14 MAR 24 A *25 FEBRUARY 27, 2014 Approved on 34344 s �- L) A regular meeting of the Public Access, Open Space & Natural Resources Preservation Fund Commission of the County of Kauai was held at the Lihue Civic Center, Mo' ikeha Building, Meeting Room 2A/2B . The following Commissioners were present: Joseph Figaroa, Chair Theodore Blake Linda Dela Cruz Dorothea Hayashi Luke Evslin Maurice Nakahara The following Staff members were present: Planning Department Staff Nani Sadora and Duke Nakamatsu; Boards and Commissions Staff Deputy County Attorney Ian Jung (arrived at 1 : 20 P.M.) ; and Commission Support Clerk Mercedes Youn. A. CALLED TO ORDER The meeting was called to order at 1 : 02 p.m. by Chair Figaroa. B. APPROVAL OF AGENDA Chair Figaroa noted that he would take Item G1 . New Business before Item F. 1 Unfinished Business, C. ANNOUNCEMENTS There were no announcements. D. APPROVAL OF MINUTES 1 . Minutes of December 4, 2013 2 . Minutes of January 9, 2014 3 . Minutes of January 23 , 2014 On a motion made by Commissioner Dela Cruz and seconded by Commissioner Hayashi, to approve the meeting minutes as circulated, the motion carried unanimously by voice vote (6 : 0) Page 1 of 17 E. RECEIPT OF ITEMS FOR THE RECORD The following items were received for the record and are on file with the Planning Department, 1 . Written testimony dated February 5 , 2014 from Council Chair Furfaro to Chair Figaroa, regarding Charles M. Somer' s application for modifications to his permits which is now before the Planning Commission (TMK 5-2- 12: 35 and 5-2-4-:47 CRP No . 2, in Kilauea); including a copy of a communication dated February 20, 2014 from DLNR Chairperson William Aila to Council Chair Jay Furfaro, regarding DLNR' s plans to decommission the Kaloko Ditch in Kilauea. 2. Written testimony dated February 8 , 2014 from Hope Kallai to Chair Joseph Figaroa, inquiring on the status of a motion that was made at an OSC meeting on July 11 , 2013 , to send a request to the Planning Department asking for a status on the permit usage including an update to see if the conditions of the permit are being adhered to; send an inquiry to the Building Department relative to its responsibilities to ensure that the conditions of the permit are being adhered to . 3 . Written testimony dated April 30, 2013 from Felicia Cowden to the Open Space Commission, relating to item G. 1 New Business Discussion on modification of Class IV Zoning Permit Z-IV-008-6, Use Permit U-2008-4 and Special Management Are Use Permit SMA (U)-2008-51 to construct a manger' s house and maintenance building on a parcel situated along the mauka side of Kahili Quarry Road in Kilauea gpprox. . I mile east of the Kilauea Road/Quarry Road intersection, further identified as TMK 5-2-0- 12 : 035, and containing a total area of approx. 161 . 88 acres (Charles M. Somers/West Sunset 32 Phase I, LLC . 4. Written testimony dated February 25 , 2014 from Hope Kallai to Chair Figaroa, pertaining the item G. 1 New Business Discussion on modification of Class IV Zoning Permit Z-IV- 008-6, Use Permit U-2008-4 and Special Management Are Use Permit SMA (U)-2008-5 to construct a manger's house and maintenance building on a parcel situated along the mauka side of Kahili Quarry Road in Kilauea, approx. . 1 mile east of the Kilauea Road/Quarry Road intersection, further identified as TMK 5-2-0- 12 : 035, and containing total area of approx. 161 . 88 acres (Charles M. Somers/West Sunset 32 Phase I, LLC. 5 . Written testimony dated February 27, 2014 from Thomas Pickett to the Open Space Commission, regarding public access to the Kilauea Falls . 6 . Written testimony dated February 25 , 2014 from Hope Kallai to Chair Figaroa, relating to M tem F . 5 Unfinished Business Discussion on historical roads issue and pedestrian public beach access options to Kukui `ula BaE. Page 2 of 17 7 . Written testimony dated February 25 , 2014 from Hope Kallai to Chair Figaroa, relating to item G. 3 New Business Update on Kauapea (Secret Beach) pedestrian public beach access. 8 . Written testimony dated February 25, 2014 from Hope Kallai, relating to item GA New Business Update on the pedestrian public beach access involving Falko Partners subdivision in the Waipake ahu aka 9. Written testimony dated January 13 , 2014 from Hope Kallai, pertaining to item GA New Business Update on pedestrian public beach access involving the Falko Partners subdivision in the Waipake ahupuaa. NEW BUSINESS G. 1Discussion on modification of Class IV Zoning Permit Z-IV-008-6, Use Permit U-2008- 4 and Special Management Are Use Permit SMA (U)-2008 -5 , to construct a manger' s house and maintenance building on a parcel situated along the mauka side of Kahili Quarry Road in Kilauea, approx. . 1 mile east of the Kilauea Road/Quarry Road intersection, further identified as TMK 5 -2-0- 12 :035, and containing a total area of approx. 161 . 88 acres Charles M. Somers/West Sunset 32 Phase I, LLC. Council Chair Furfaro provided the Commission with copies of his testimony dated February 5, 2014 including a letter from DLNR Chairperson William Aila regarding plans to decommission Kaloko Ditch in Kilauea and another letter dated December 19, 2013 from Council Chair Furfaro to DLNR Chairperson William Aila. He noted that although the issue to decommission the Kaloko Ditch is not on the agenda, he just wanted to provide it as an information. He explained about the challenges relating to the ownership of the ditch and reminded the Commission that the water does not belong to anyone in particular but the real concern is about the seventeen ( 17) farmers in the Koolau area who are finding themselves being at the mercy of whatever happens to the water source which will eventually determine whether they can continue to farm and keep the area open in the Koolau district. Council Chair Furfaro explained that his purpose is to solicit the assistance of the Open Space Commission in considering placing the Kilauea Falls on its priority list for recommended acquisition. He gave a brief history on how his family is connected to the North Shore in many ways and that the subject application is quite substantial. He noted that Planning Commissioner John Isobe made a good point in suggesting that a conservation easement plan be established first as part of the process as the Planning Commission continues to move forward with the applicant' s additional request for a building permit. He pointed out that by acquiring for an easement or an acquisition of an easement would provide public access to the Kilauea Falls that so many have come to enjoy and would be a benefit for generations to come. Council Chair Furfaro stated that as an individual councilmember, he would like to ask the Commission to consider writing a letter to the Planning Department to move Page 3of17 forward with the conservation easement plan which he felt important is very important to the Kilauea community. Commissioner Blake asked if he is suggesting that the Open Space Commission pursue the conservation easement plan to include the Kilauea Falls. Chair Furfaro replied yes and if the federal government moves with the acquisition it would open an access to the Kilauea Falls . He noted just recently, the Council made a significant increase to the Open Space Commission Fund however, he is not clear as to how much it would cost to do an appraisal which does not include any legal fees should an action be taken; although the monies would be earmarked for that specific purpose. Commissioner Blake asked how big of an area is required for an easement to which Council Chair Furfaro replied that an easement should be defined to the path leading to the Kilauea Falls and whatever can be negotiated as a fair and reasonable access. Commissioner Hayashi asked whether she right is to assume that the water rights belong to the State and how would that come into play. Council Chair Furfaro explained that the Koolau area including other areas on the North Shore are designated as Ag land and without water there would be no Ag; there is an urgency to maintain the water system for Kauai ` s farmers and to keep the area in open Ag activity. Commissioner Evslin referenced his written testimony that states the Planning Commission in its decision wants to establish a large conservation easement on the property, asking if the easement has already been established. Council Chair Furfaro clarified that when the Planning Commission is ready to establish the easement but he wants them to include the Kilauea Falls and from his understanding the issues was deferred to allow the public to send in more testimony. Commissioner Evslin asked if it was more than likely that there would be access to the Kilauea Falls to which Council Chair Furfaro replied that he hopes it would include the waterfall. Commissioner Evslin asked theoretically, if the role of the Open Space Commission is to acquire public access to the Kilauea Falls. Council Chair Furfaro stated that the Open Space Commission should be vocal when it comes to issues concerning public access; whether it' s a County easement, County owned or by a mutual agreement with the landowner. Commissioner Evslin asked if it included using whatever power the Commission has to obtain public access to which Council Chair Furfaro replied that he would prefer that he use the term influence rather than power. Chair Figaroa stated that he would limit public testimony to five minutes. The Commission received written public testimony (On file) from Felicia Cowden. Ms. Cowden stated that she strongly opposes the applicants request to construct a manager' s house and maintenance building on the subject parcel but more importantly to her is that the land owner is held to his original commitment to continue having open access to the Kilauea Falls. Page 4of17 Hope Kallai presented a Power point presentation (On file) reflecting pictures of the Kilauea Falls. The Commission received testimony from President of the Kilauea Neighborhood Association Yoshito Lute. Mr. Lute asked for clarification on whether the matter at hand is to discuss the applicant' s application to construct a manager' s house and maintenance building or access to the Kilauea Falls . Deputy County Attorney Jung stated that there is an access easement that goes along the west bank of the river but not all the way up to the Kilauea Falls; what the KNA is looking at is the possibility to establish access to the Kilauea Falls. Additionally, Deputy County Attorney Jung stated that the Planning Commission deals with entitlements in terms of approving or not approving a request for the additional structures . The Open Space Commission looks at whether or not to utilize the Open Space Fund to either purchase, acquire or condemn property for access or conservation purposes . Mr. Lute thanked the Deputy for the clarification and acknowledged that he understands that the discussion is about being able to access the Kilauea Falls. He stated that at the present time, Mr. Somer' s was given the authority through the Planning process to either refuse or accept access to the Kilauea Falls. At a Planning Commission meeting, Chair Kimura asked what was applicant' s intention in terms of allowing public access to the Kilauea Falls to which Mr. Somer's demonstrated that he would not allow anyone access to the waterfall through his property. Mr. Lute stated that the KNA has made numerous attempts to try to meet with Mr. Somer' s and his attorneys to discuss amicably his concerns as well as the community' s, but to no avail. Today, they have taken the steps to approach the Open Space Commission and asked that they look into establishing access to the stream and upper areas of the river. Mr. Lute read into the record, a letter from the KNA (on file) supporting the establishment of public access to the Kilauea Falls . Commissioner Evslin asked if there is an existing a 3000 feet easement located on the west side of the river from the beach side that leads half way up the river and whether the easement was passable, unmarked or if there was an issue. Mr. Lute stated that no one who made it far up the river has challenged the security. Deputy County Attorney Jung stated that he spoke with their attorneys about that issue and told them that they need to recognize what's happening and deal with their security guards . Commissioner Evslin asked if the KNA wants access regardless of where it' s located. Mr. Lute stated that the KNA would prefer to have a convenient access but it will accept what the Commission feels is appropriate. Commissioner Evslin asked what is the point of having a 3000 foot easement to which Deputy County Attorney Jung replied that the easement was establish as part of an old subdivision in the late 70 ' s which was intended for people to have pedestrian access to the west bank of the river, noting that there are no County owned access to the Kilauea Falls . Commissioner Dela Cruz commented that it would be incumbent of this Commission to try to help KNA by scheduling a field trip to see where the public access for the community could Page 5 of 17 be established. Deputy County Attorney Jung pointed out to the Commission that they will need to stay on County property. He added that the County has a road way that leads down to the beach which will give the Commission a better view looking towards the river however, there would no visual view point once on the beach up to the waterfall. Commissioner Hayashi asked whether the Commission would be allowed to walk on the conservation easement being that the area is so large. Deputy County Attorney Jung provided the Commission with some background history that involved an SMA permit and use permit that ended up in a contested case hearing and as a result of that the hearing there was conclusions of the law that was released and one of the conciliations that was offered by the developer was to put majority of his land holdings into a conservation easement to be held by what was then referred to as the Kauai Island Land Trust which is now operated by the Hawaii Island Land Trust. He explained that the conservation easement is a private third party agreement which the County was not involved in other than materializing the agreement that the developer had with KILT which was to put in a condition. The area itself is in a special resource district (inherited district) to protect the area for conservation purposes. The developer agreed to put in the easement with management responsibilities being with both the KILT as well as the developer. He further explained that the landowner still holds ownership over it but the conservation easement is an ownership overlay which gives the KILT rights to make sure that the developer honors the terms of the easement. Commissioner Hayashi asked whether it could be seen as a different approach to establish the easement without involving the Open Space Commission: Deputy County Attorney Jung stated that the Commission changed its laws to allow for a conservation easements to be purchased. In this case, the easement was not purchased using conservation funds because the developer voluntarily placed a huge portion of the land in conservation which is held by an independent third party. Mr. Lute noted that he might be wrong, but if the land owner were make a request to the HILT to open the easement they could probably work things out without any interference from another party; nor push HILT to do something if the landowner is not willing to talk. Commissioner Evslin noted that Council Chair Furfaro mentioned what he perceives as the reason why the matter was placed on today' s agenda was because when the issue came before the Planning Commission for modification of the zoning permit. The Planning Commission suggested during its discussion that the landowner come up with a conservation plan first rather than after the fact. Deputy County Attorney Jung said not necessarily because what Council Chair Furfaro was talking about is what is presently before the Planning Commission now and that the conservation plan is a consequence of the conservation easement but for access issues, the conservation plan is a different matter. Commissioner Evslin said that it sounds like Council Chair Furfaro is asking the Commission to is to lobby for a conservation plan to include the Kilauea Falls, and pursue a pedestrian access to the Kilauea Falls. Commissioner Evslin noted that he is somewhat confused about what is happening with the conservation easement plan and how can the Open Space Commission be a part of it. Page 6 of 17 Deputy County Attorney Jung explained that the conservation easement plan needs to be worked out between the HILT and Mr. Somer' s and that the Planning Commission is requesting that a conservation easement plan be completed first before the applicant' s application for modification to construct a manager' s house and maintenance building is approved. But how the conservation plan plays out in terms of what the conservation easement plan would entail is between the HILT and the developer. Commissioner Blake stated that it would take the public out of the whole process because the Planning Commission is requesting that a conservation plan be established for the conservation easement. Deputy County Attorney Jung explained because there is a conservation easement, the Planning Commission is requesting that a conservation plan be established as part of the conservation easement. Chair Figaroa stated that what Council Chair Furfaro basically meant is for the Open Space Commission be part of conservation easement plan to ensure that a public access to the Kilauea Falls is established. Deputy County Attorney Jung suggested that the Commission can do one of two things; it can move to try to acquire access or encourage all parties to work with each other (although not binding). He explained that as an advisory body, the Commission can place it on its priority list for a recommended acquisition but at the end of the day based on the initial Planning Commission decision relative to the original permit there was not enough nexus to go after the access for that house. He further explained that what is before the Planning Commission today, is an application for modification to the applicant' s original permit because there was not enough nexus relative to the Commissions discussion on public access entitlement options to go after public access through the entitlement process. At this point, what falls to the Open Space Commission is whether it can use its funds to go after the public easement. Commissioner Blake stated in essence, the Commission can go through the condemnation process and at the same time allow both parties to continue their negotiations and hope that they will come to an mutual agreement, but if not, there is something already in place for the Commission to condemn. Deputy County Attorney Jung noted that the Commission can recommend to condemn but is has to go through the County Council. Commissioner Blake noted that he believes the County Council is in favor of it. Commissioner Evslin stated that based on what he is hearing it seems that the matter is a timely one and suggested that the Commission move on the issue now since everything is on the table for discussion. Commissioner Blake pointed out that the Commission already has all of facts but it' s just delaying the decision to condemn. Deputy County Attorney Jung pointed out that the Commission needs to remember that the issue is not the only thing going on in the County; funds are allocated in a certain way which is something the Commission will need to consider. The Commission received testimony from Ron Paul . Mr. Paul stated that it is very important that the County recognizes that there is a 20 feet P 1 public easement along the river. There is no public access at all and the area is restricted by security guards . Page 7of17 He expressed his concerns that the County' s PI easement that been in place since 1978 has not been acknowledged or identified. He stated that this will be the first step in reclaiming the river and ultimately reclaim the stream leading up to the Kilauea Falls , The Commission received written testimony (On file) from Tim and Hope Kallai. Mr. Kallai asked the Commission if they could contact the Department of Public Works via a written letter and ask if they have a maintenance schedule and if they do to please identify it. He stated that its purpose is to ensure that no one is engaged in any erroneous fishing along the embankment and to clarify to the public on what their rights are relative to the easement along the corridor. He noted that clarity will prevent any type of dispute between the property owner and the developer. Additional, Mr. Kallai asked under whose authority or jurisdiction gives the developer and/or his agent the right to keep the public off of the Kilauea River corridor. Chair Figaroa asked Ms. Kallai if she could submit her additional concerns in writing so that the Commission can determine where things may have faltered in the past. Commissioner Blake left the meeting at 2 : 55 p.m. At 3 : 04 p.m. Chair Figaroa called for a five (5) minutes recess. At 3 : 19 p.m. the meeting reconvened. The Commission received testimony from Vina Castillo . Mr. Castillo stated personally, he felt that the island is meant for everyone and that all of its resources should be shared equally because it' s "Pono" He asked that the Commission assist the KNA in working out some type of agreement with Mr. Somer' s because the issue has been going for quite some time. He noted that if the land owner was not willing to work things out in an amicable way, then maybe a different approach needs to be taken. He asked that the Commission rise up and take immediate action on the issue. The Commission received testimony from Yoshito Lute. Mr. Lute gave an explanation on why it is so important for him that he share some history on why the issue has made its way to Commission. He asked that the Commission take action on the matter because he believes the Commission has the support of the County Council, The Commission received additional testimony from Hope Kallai , Ms . Kallai stated that the Kilauea Falls was listed as a high priority numerous times as far back as the 1980 's. She stated that the issue is not new and has been a high priority for the Kilauea community. She asked that the Commission re-prioritize the Kilauea Falls and placed it back on its list of high priorities . Commissioner Evslin stated that the criteria' s for ranking its recommendations is timeliness, community support, cultural and environmental benefits. Based on those criteria he Page 8of17 felt that the Kilauea Falls needs to become a priority because unlike the alaloa trail, the Commission theoretically has a direct path in identifying the trail with the possibly of appraising it which he felt could include a recommendation to condemn. He noted that he would like to begin the process as soon as possible or least head towards that direction. Chair Figaroa stated that there should be more discussion on placing the falls back on its list of high priorities however, at this time he felt that it would be difficult for him to make any type of decision because he would like to review all of the information from the past to see where the flaws are; fix it and then determine how to precede. Ms. Sadora pointed out that because there is a window of opportunity, the Commission as an action plan should gather the information which will actually place the Kilauea Falls in the dossier and by doing so it will create an open communication with the County Council relative to the Commission' s report of the previous year; although it would take couple of meetings to formulate something the Commission is comfortable with. Chair Figaroa asked if she was suggesting that the Commission make a motion to initiate the dossier process for this particular issue to which Ms . Sadora replied yes. Deputy County Attorney .lung noted that the Commission should remember how it created its identification points on what makes a piece of property interesting to the Commission. He added that the Commission will need to do its due diligence by gathering all of the facts so that it can have understanding of the property. Chair Figaroa stated that he agrees with Attorney Jung because he doesn't want to act on something with only half of the information. Commissioner Hayashi pointed out that at this point, the Commission now knows what it needs to do and relative to Ms . Sadora comments maybe the Commission should take action to show that it is active in the process. Chair Figaroa noted that the Commission does have a timeline to consider. Commissioner Hayashi stated that because the Planning Commission is now asking the Open Space Commission for an opinion she felt it would appropriate to opine because it could be vital to their decision-making. Commissioner Dela Cruz stated that she would like to go ahead and make a motion to initiate the process to which Commissioner Hayashi stated that she would second the motion. Chair Figaroa opened the floor for further discussion. Commissioner Nakahara stated that he would like information on the 20 feet easement P- 1 that was granted in favor of the County for a pedestrian access to Kilauea Falls as shown on the survey map dated September 11 , 1978 and recorded on September 28 , 1978 . Including information on its disappearance that was raised in 2013 but has not since been addressed in terms of this permit review. Commissioner Hayashi inquired about the old government road on whether it belonged to County or the State. Deputy County Attorney Jung stated that because the issue is complex he would like address her question at the next meeting. Page 9of17 Commissioner Nakahara noted because the matter is on-going he would like the Planning Department to provide some feedback and share information on the status of the Kilauea Falls by the next meeting. On a motion made by Commissioner Dela Cruz and seconded by Commissioner Hayashi, to move forward to initiate a dossier pertaining to the Kilauea Falls, the motion carried unanimously by roll vote (7: 0) F. UNFINISHED BUSINESS 1 . Compilation and evaluation of 2013 public input process 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 Mao. Chair Figaroa asked if the report is a final copy that the Commission would present to the County Council and the Mayor to which Ms. Sadora replied yes, and explained that a communication was transmitted to the County Council requesting for agenda time to present the 2013 report. She noted that the Commission would need to select two of its members to present the report to the Council. Additionally, Ms . Sadora stated that she received a request from the Office of the Mayor that the Commission do a presentation on Wednesday, March 5`h at 2: 30 p .m. Deputy County Attorney Jung stated that the Commission should select two of its members to present the report which usually is the Chair and the Vice Chair. Chair Figaroa asked who would like to accompany him to do the presentation. Commissioner Evslin stated that he would be available if the Vice Chair does it is not available. Chair Figaroa stated that it would be nice for him accompany him so that he could give his own perspective to which Commissioner Evslin agreed. Ms. Sadora asked the Commissioners if they would like to select two of its members now or wait until she receives confirmation from the County Council as to the date/time of the presentation to which the Commissioners agreed that it would be better to wait. Ms. Sadora explained that their presentation to Council would include a PowerPoint presentation and an executive summary of the report. She noted that compared to the Commission' s previous presentation, the new report has more clarity and substance. 2 . Review and discussion on past recommendations and prioritizations of the Commission' s work plan/timeline of events and activities. Deputy County Attorney Jung explained that subject topic was placed on the agenda to allow the Commission to make decisions on the type events or activities it would like to participate in for the upcoming year. He advised that the Commission should hold multiple community outreach meetings in preparation for its annual report including to a semi-annual report on yearly updates. Page 10 of 17 Chair Figaroa asked that based on last year' s accomplishments what direction would the Commission like to take this year. Commissioner Evslin noted that based on today' s agenda he asked if was possible to continue the discussion at the next meeting to which Chair Figaroa agreed. 3 . Update on a 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. Deputy County Attorney Jung stated that at the request of the Commission a follow-up letter was sent to the landowners but unfortunately no response has been received to date. He also stated that at its last meeting, the Commission voted to send a condemnation resolution to the County Council which his office has prepared a transmittal letter for the Commission' s review. Commissioner Blake noted that since the last meeting, he has spoken with local fisherman and found that the area is highly utilized. Commissioner Evslin asked since the passing of the condemnation resolution is it now out of the Commissions ' hands . Deputy County Attorney Jung replied yes, he further explained that the Commission serves as an advisory body and only the Council has the authority to initiate a condemnation through a resolution. Commissioner Evslin asked what would happen if the property owner decided to sell the property during the condemnation process, and at what point, would the Commission have to pass the information on to Council for them to deal with it; would the Commission have to drop its recommendation. Deputy County Attorney Jung explained that if Council approves the condemnation resolution and the litigation begins, all options are opened at that time and the County Attorney' s office has the discretion to work on a possible settlement by negotiating a price. Commissioner Blake asked if the condemnation precedes would the money to purchase the land come from the Open Space Commission Fund. Deputy County Attorney Jung explained that Council needs to approve the money bill first before it can take out the money from the Commission' s fund because only the Council has the authority to do that. Chair Figaroa asked if the Commission' s recommendation for a condemnation resolution was sent to the Council to which Deputy County Attorney Jung replied that he would send the recommendation to the Council today. Chair Figaroa asked how long would it take before the Commission receives an answer to which Deputy County Attorney Jung replied that it would be up to the Council Chair to set the agenda for a public hearing on the condemnation resolution. Ms. Sadora noted that she would provide the Commission with periodical updates pertaining to the condemnation resolution Page 11 of 17 4. Discussion on alternative pedestrian public beach access options to Papa` a BaX. Chair Figaroa stated that he would like to defer this item for continued discussion at its next meeting. He noted that the issue has been discussed relative to Item F. 3 . Deputy County Attorney Jung pointed out that because Items F 3 . and F 4. are related he would suggest that the Commission consolidate both items to which Chair Figaroa agreed. 5. Discussion on historical roads issues and pedestrian public beach access issues to Papa' a Bay Ms. Kallai presented with a PowerPoint reflecting contents in her written testimony (On file) dated February 25, 2014 , Ms. Kallai stated that although a conservation easement was established between HILT and the property owner it does define access to the Kilauea Falls. Ms . Kallai noted that she does not understand why the item is on the agenda because it is her understanding that the Council has passed Resolution 2012. She pointed out that if the County is looking into some kind of mauka to makai access beyond county roads, she would like to recommend that the Commission consider a network of coastal trail systems, including those in the Papa` a ahupua. She asked that the Commission not only look at an isolated segment but look at the other trails in the area especially, the historic alaloa trail . Commissioner Blake questioned the comments by Council Chair Furfaro relative to a conservation easement plan. Deputy County Attorney Jung clarified that Council Chair Furfaro was referring to the Somer' s application and that discussion at the moment pertains to access to Papa`a Bay. He provided the Commission with a brief explanation on a dispute that involved County' s access road including the litigation that stalled at the federal district court level which resulted in an appeal being filed. He stated that the outcome of the appeal ruled that the County did not have access to the road located on the Wedeman' s reservation lot because the access ended at the start of the Wedeman' s lot. He noted that the current access is located east of Papa`a Bay through the ` Aliomanu Beach Estates. Deputy County Attorney Jung stated that although Resolution 2012 may have suggested condemnation to gain access through the road it is his understanding that the resolution also wanted the Commission to look at other alternatives for public access . Commissioner Evslin commented that the issue has been brought up so many times and at this point, he feels that the Commission does not have any idea what do about it. He stated that there was discussion about condemning the trail but at a huge cost Page 12 of 17 to the County, which leaves the question is it' s worth the time because up till now, he has not seen any community support of the trail or that the lateral trial is not good enough. Chair Figaroa stated that the Commission should think about what direction it wants to take. Deputy County Attorney Jung pointed out that Resolution 2012 is not asking the Commission to identify the access but to explore other public access alternatives. He explained that the condemnation process includes dealing with severance damage but relative to the Fifth Amendment, the County can ask for access that is strictly for the public use. He pointed out that since the Commission is already in the process of a condemnation resolution he does not want them to over extend by making another recommendation for a condemnation resolution. Commissioner Hayashi pointed out because the issue has been discussed over and over at this point, she felt that it would be better to list it as an activity that way the Commission could go out into the community and gather the information it needs to make an informative decision. Deputy County Attorney Jung stated that it would be fruitful for the Commission to take the route that currently exist through the County easement. Ms. Sadora pointed out because of the amount of time it would take to see the entire area, she suggested that the Commission concentrate on one area and then decide how it wants to move forward from there. Commissioner Evslin noted that because it would be difficult for everyone to make it all the way down to the beach he would like to suggest for any member who lives on that side that they take the initiative using the existing County access to transverse down to the beach prior to the field trip. He pointed out that for someone who does not live on the north shore it would seem that it should be a priority, but at the same time there are more pertinent issues concerning the Kilauea Falls and the alaloa trail. He noted that he wants to push for Papa` a Bay but is unsure if the Commission or community felt the same way. He added that if the Commission wants to pursue the issue it should finalize the route first and then proceed with an appraisal. Chair Figaroa noted that the Commission should revive the issue to see whether Papa` a Bay should be place on its priority list. Deputy County Attorney Jung stated that it is certainly the Commissions ' prerogative to do that however, the last time the Commission submitted its dossier the Council wanted the Commission do an acquisition plan instead of an appraisal. He pointed out before the Commission moves forward with an acquisition plan to look at the area first because they may find that the current access is good enough but then again, others may disagree. Chair Figaroa referenced Ms. Kallai' s testimony, and asked if any of the problems were corrected to which Deputy County Attorney Jung replied that it is his understanding that the signage was removed, as for the pile of dirt and rocks he cannot recall and suggested that matter be forwarded to the Department of Public Works . Chair Figaroa asked if it was appropriate for the Commission to invite a representative from DPW to Page 13 of 17 the next meeting to discuss Ms. Kallai 's concerns to which Deputy County Attorney Jung replied yes. Commissioner Evslin stated that Ms. Kallai is asking the Commission to define the alaloa first before looking at mauka and makai access; although these are two separate issues he believes it can be done consecutively which would whether or not to bisect the property and what to do about the alaloa portion of the trail. Deputy County Attorney Jung noted that the matter should be referred back to the Department of Land and Natural Resources. Ms . Kallai asked if the easement trail has been identified to which Deputy County Attorney Jung replied because the trial is inherit placing any type of objects to mark the trial would make it unnatural. He added that it would only become an issue if there was a dispute between the landowner and the County in terms of the location of the trail . In regard to the easement it is a fact that the trail may migrate due to the amount of foot traffic to which Ms. Kallai agreed. Commissioner Evslin asked if the residents were satisfied with the current access to which Ms. Kallai replied it depends on the people you talk to. The Commission received testimony from Tim Kallai. Mr. Kallai stated that it would be incumbent of the Commission to approach Councilmember Bynum to get clarification because he seemed pretty adamant about obtaining access to Papa` a Bay. He asked that the Commission go out to the area and see for themselves before making any decisions. He noted in his personal opinion there are a number of people who wants to limit the amount of people going to the area but at the same time he would hate to lose an access that is both local and family friendly. Commissioner Blake asked what purpose for inviting DPW (Department of Public Works) to a meeting to which Chair Figaroa replied that it would give the Commission a chance to ask questions on various issues and concerns that have come up before the Commission that only the department can answer. Commissioner Blake suggested sending to a letter to the department in advance with a list of questions and concerns to which Chair Figaroa agreed. G. NEW BUSINESS 2 . Discussion on alleged historical trails in the Kaakaaniu to Waipake ahupuaa. Deputy County Attorney Jung explained that the Chair placed this matter on the agenda to allow the Commission to continue it discussion on the State ' s position regarding the historical trails in the area. Commissioner Evslin stated that he believes the item was also placed on the agenda to inviting Tom Pierce a future meeting. Deputy County Attorney Jung stated if the Commission wants an update on Mr. Pierce, the Chair would have to move the item up unless he wants to continue to take the items in order. Chair Figaroa stated that he would prefer to take things in order. Page 14 of 17 Commissioner Evslin stated that he recalls a previous discussion in which members of the community wanted the Commission to be a part of the discussion on the location of the historical trails in the area specifically, the alaloa trail . 3 . Update on Kauapea (Secret Beach) pedestrian public beach access. Deputy County Attorney Jung reported that after discussing the matter with the new landowner they are opened to the idea of allowing public access however, there are some outline issues they need to deal with as a private matter between the adjacent landowner. At this point, the County is still trying to move towards prove of discussion relative to the pedestrian public beach access but are waiting responses on other issues. He added that other parties have requested documents on this issue and at this point the County is unsure where that would lead. *For reference the standpoint the area is located on the eastern side of Kauapea beach and not the current access which the County already has to the western side of Kauapea beach. Deputy County Attorney Jung explained that there was a subdivision that was occurred in the late 70' s where there was a condition for public beach access on a particular easement that went down to the lighthouse side of Kauapea beach. However, no documents were recorded from what they discovered and that there were talks amongst this body to after it and was in the process of going after it which stems off of the lighthouse road turning off onto Kauapea road that leads to10C which is an old conservation lot which access point was from the western leg to the property; it is noted in the file plan and the recorded deeds to the property that there is a trail easement but its unidentified. The Commission received written testimony (On file) from Tim Kallai. Mr. Kallai stated that it is still and always have been a major priority to have a pedestrian public access at Kauapea Beach in Kilauea also known as Secret Beach for the kids so that they do not have to out onto the dangerous highway to use the western most portion in order to access Kauapea Beach. He believes that it' s in the community best interest to obtain access and are diligently awaiting for that day to happen. 4 . Update on pedestrian beach access involving the Falko Partners subdivision in the Waipake ahupuaa. Deputy County Attorney Jung provided the Commission with an update. He stated that the Commission through discussion with the Department of Land and Natural Resources and with certain members of the community at a Planning Commission meeting, the idea was to put the easement on the eastern side of the property. But recently, there were some people who were not too enthusiastic about placing the easement on the eastern side of property and would rather have the easement located on the western side. However, the subdivision has been approved and the easement identified; at this time the County Attorney' s office is working with the landowner and the DLNR to address one particular area where the trail ends at a steep rocky area in which the County is now looking into doing an apron easement that takes the easement Page 15 of 17 three (3) feet away from the steep rocky area to get down to the shoreline. He added that because the area is located in a conservation district, the landowner has to work with the DLNR because the area is exclusively in their control. Once they get the final approval to lay out the trail through DLNR, the County Attorney' s office will bring the issue back before the County Council for further discussion and possible approval sometime in the month of April. He noted that if the Council approves the access it will be listed on the County beach access list as another easement. He stated that one of the concerns was whether the easement would affect the alleged alaloa however, in a letter the DLNR stated that they have no intentions of locating the alaloa which is in their jurisdiction. The Commission received two (2) written testimonies (On file) from Hope Kallai. 5 . Discussion on Article XII, Section 7 of the Hawaii Constitution on customary and traditional at�ng rights. Deputy County Attorney Jung noted that the item was placed on the agenda as a request from Commissioner Blake but since he had to leave the meeting he suggested that the Commission defer to matter to the March meeting to which the Commissioners agreed. 6. Update on Commission education topics. Deputy County Attorney Jung stated that at the request of the Commission he spoke with Maui Attorney Tom Pierce who has agreed to meet with the Commission to discuss the historical trails relative to the alaloa and make a presentation on what he did on Maui. He asked that each Commissioner prepare their own questions or issues in advance for edification. Chair Figaroa asked when Mr. Pierce would appear before the Commission to which Deputy County Attorney Jung replied it could be at the next meeting or two (2) meetings after. H . NEXT MEETING DATE AND AGENDA TOICS FOR DISCUSSION Chair Figaroa noted that the next meeting date is scheduled for Thursday, March 13th Chair Figaroa requested that a new item under new business is needed to discuss in acting of the dossier process relative to the Kilauea Falls. Deputy County Attorney Jung noted that he would work with Staff on the language to address the dossier process relative to access to the Kilauea Falls. He noted that unfinished business items will include F2, F3 & F4 (combined), F5, G2, G3 , G4, G5 and G6. Commissioner Hayashi requested an update on the Hanapepe Salt Pond. Staff acknowledged her request and will place the item on the March agenda for discussion on acquisition of land for open space preservation to create a buffer zone at the Hanapepe Salt Pond. Page 16 of 17 1. ADJOURNMENT At 4:05 p.m. Chair Figaroa adjourned the meeting. Respectfully submitted by: Mercedes Omo-Youn Commission Support Cl rk Page 17 of 17