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HomeMy WebLinkAbout2014-4-24 Open Space Commission Minutes Approved I PUBLIC ACCESS, OPEN SPACE & NATURAL RESOURCES PRESERVATION FUND COMMISSION REGULAR MEETING MINUTES APRIL 24, 2014 The regular meeting of the Public Access, Open Space & Natural Resources Preservation Fund Commission of the County of Kaua` i was held at the L-1hu` e Civic Center, Mo' ikeha Building, Meeting Room 2A/2B . The following Commissioners were present: Maurice Nakahara, Acting Pro tern Chair Theodore Blake (Entered the meeting at 1 :40 p.m.) Randall Blake Linda Dela Cruz Luke Evslin Dorothea Hayashi The following Staff members were present: Planning Department Staff Nani Sadora and Duke Nakamatsu; Deputy County Attorney Ian Jung; and Boards and Commissions Staff: Commission Support Clerk Mercedes Youn. A. SWEARING IN OF COMMISSIONER Prior to the start of the meeting, Administrative Assistant to the County Clerk Eddie Topenio, officiated the Oath of Office for Commissioner Randall Blake. Be CALL TO ORDER Mr. Jung advised the Commission to nominate a member to serve as Chair pro tern due to the absence of the Chair and Vice Chair. Commissioner Evslin stated that he would like to nominate Commissioner Nakahara to serve as Chair pro tem, hearing no objections, the nominations were closed. On a motion made by Commissioner Evslin and seconded by Commissioner Hayashi to select Commissioner Nakahara to serve as Chair pro tem, the motion carried unanimously by voice vote (5 :0). Chair Pro tem Nakahara called the meeting to order at 1 : 08 p.m. Page 1 of 19 C. APPROVAL OF THE AGENDA Mr. Jung announced that Item G11 would need to be taken out of order. He explained that a representative from the Administration will be present to provide the Commission with information regarding the proposed bill to reduce the annual allocation made to the Open Space Fund. On a motion made by Commissioner Evslin and seconded by Commissioner Randall Blake to approve the agenda as circulated, the motion carried unanimously by voice vote (5 : 0). D. ANNOUNCEMENTS There were no announcements. E. APPROVAL OF MEETING MINUTES 1 . Minutes of March 13 , 2014 On a motion made by Commissioner Dela Cruz and seconded by Commissioner Hayashi to approve the minutes of March 13, 2014 as circulated, the motion carried unanimously by voice vote (5 :0). 2. Minutes of March 27, 2014 Chair pro tern Nakahara called for a motion to approve the minutes as circulated. He noted that he would like to abstain because he did not attend the meeting but if he needed will vote to approve the minutes as circulated. On a motion made by Commissioner Dela Cruz and seconded by Commissioner Evslin to approve the minutes of March 27, 2014 as circulated. Staff advised the Commission that the motion to approve the minutes would not carry because five (5) affirmative votes are needed to carry the motion. Chair pro tern Nakahara noted that he would vote to approve the minutes but wants to state for the record that he was not at the meeting on March 27h. Commissioner Evslin asked if the approval of the minutes could be deferred to the next meeting when there are more members present. Mr. Jung stated that the Commission could either vote to approve the minutes today or defer it to the next meeting. Chair pro tem Nakahara asked Commissioner Dela Cruz to withdraw her motion, hearing no objections, the motion and second was withdrawn. Chair pro tern Nakahara called for a motion to defer the approval of the minutes to the next meeting. Page 2 of 19 On a motion made by Commissioner Evslin to defer the approval of the meeting minutes of March 271 to the next meeting and seconded by Commissioner Randall Blake, the motion carried unanimously by voice vote (5 :0) F. RECEIPT OF ITEMS FOR THE RECORD For informational purposes a copy of a press release on the Haleakala Trail decision was distributed to the Commissioners. G. UNFINISHED BUSNIESS 1 . Review and discussion on past recommendations and prioritization of the Commission' s work plan/timeline of events and activities. Commissioner Hayashi mentioned that it is her understanding that Council Chair Furfaro wanted the Commission to prioritize either Papa` a Bay or Kilauea Falls. Ms. Sadora stated that the issue is a standing item to allow the Commission to continue its discussion relative to its recommendations and priorities. Commissioner Hayashi asked in what order regarding does the Hanapepe Salt Pond stands at this point because from what she understood the Mayor is addressing the issue. Ms. Sadora stated that the prioritization lies with the Commission and not anyone else; any discussion or decisions the Commission make will remain separate from other entities. Chair pro tem Nakahara requested that the matter remain on the agenda as an on- going item for continued discussion. 2. 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 alternative pedestrian public beach access options to Kukui`ula Bay. Chair pro tem Nakahara stated that based on the minutes of March 13th it seems that Managing Director Nadine Nakamura informed the Commission that another appraisal was needed and that the Administration is currently waiting for the new appraisal to be completed. Commissioner Evslin asked for an update on the status of the new appraisal. Mr. Jung reported that the County Council made a request via communication to the County Attorney' s office to look at other issues relating to the appraisal. He stated that it is his understanding that the Administration wanted to review the cost elements first and then proceed with an updated appraisal. Page 3of19 He explained from what he understands standard appraisals are usually good for about six months but it comes to condemnation it' s a battle between the experts based on the appraisal and at this point, the next step that the Council needs to do is eventually take up the proposed resolution. He added that the Council Chair has the option to review agenda items up to 120 days but at this point, he is unsure when the Council Chair will take up the matter in terms timing. Commissioner Evslin asked if the Council County had already received the proposed resolution. Ms. Sadora stated that she believes the resolution is still with the Administration because they had asked her to put together an acquisition plan in terms of the costs relating to the condemnation. She noted that she was instructed by the Administration to contact the firm who did the original appraisal and provide them with the same information but first the Administration wanted to review the information; get input from both sides before they move forward with the appraisal . Ms. Sadora stated that the communication was sent to Council and that matter is no longer in the hands of the Commission. Commissioner Evslin asked whether the communication was sent to both the Council and the Administration at the same time and all the Commission has to do at this point is wait for feedback from the Administration. Ms. Sadora explained that all matters that comes from the Planning Department must first be circulated through the Administration before it can be transmitted over to the County Council. She stated that at this point, she is unsure where the recommendation for condemnation lies but from what she understands it is being reviewed to see whether or not it would feasible to move forward to the next phase. Mr. Jung stated that he would follow up because he feels it is taking too long. Ms. Sadora stated that in the original appraisal, the appraiser recommended that the Commission really think about the issue before moving forward with the appraisal. She stated that the Commission needs to be absolute in what its intentions are because it will be included in the scope of work relative to the condemnation. Commissioner Hayashi asked how much would it cost to do the appraisal and is coming out of the Commission' s administration fund. Ms. Sadora stated that although it' s the Administration who is requesting for an updated appraisal the cost will come out of the Commission' s administration funds. Commissioner Evslin asked because the Administration is utilizing the Commission' s funds and the appraisal goes to Council in which they theoretically vote no to the condemnation; wouldn't it make sense for Council to pass the proposal for the condemnation now then wait for the new appraisal. Ms. Sadora stated that because Council is part of the process she believes they would probably ask the same type of questions as the Administration which will be forwarded to Mr. Jung for input. Chair pro tem Nakahara asked after reading the minutes, is it true about what Commissioner Blake said about the cost factor that the home values are going up Page 4of19 which will increase the amount of the new appraisal from the previous one. Mr. Jung stated that when it comes an unfriendly condemnation the County would most likely embark into litigation. He stated that essentially, the value of the proposed easement will be left up to a Judge or a jury to determine depending on what both parties agree to in terms, of valuation in which each party will have a chance to call in their own experts to determine on what they believe the value of that portion of the lot is going to be. He explained that there are two elements that are needed to determining the value of a property one of which is the public use element and the second is the value element. He referred to the Sheehan condemnation in which the trial took a little over a week to determine the value of the property. Mr. Jung noted in the reality no one will know what the value of a property will be because the decision lies with the Judge or jury. Commissioner Evslin asked what if the court theoretically decides that the value of the former Hoban property is worth $500,000; what other expenses will it incur outside of the purchase price and would it include special counsel fees. Mr. Jung stated that the funds can only be used for acquisition; any special counsel fees will have to be approved and paid for by the County Counsel. Chair pro tem Nakahara noted that he would like to keep the item on the agenda for continued discussion. Commissioner Evslin asked if he would have an opportunity to ask questions relative to the proposal to reduce the annual allocation funds and the appraisal. Mr. Jung stated that the Director of Finance will be present to address the Commission however, he would not be able to answer any questions relating to any procedural requirements. Ms. Sadora noted that she will ask for an update for the next meeting. 3 . Discussion on historical roads issue and access issues to Papa` a Bay. Ms . Sadora asked if the Commission would rather take the matter up under new business H 1 . The Commissioners agreed. 4. Discussion on a request from Council Chair Furfam dated February 5 , 2014 regarding access to Kilauea Falls located on TMK 5-2-012 :35, being placed on the Open Space Commission' s priority recommendation list. Chair pro tem asked the Commission if they would like to take this item under new business H 1 , to which the members agreed. Commissioner Evslin asked whether it would be appropriate for the public to testify on this item now rather than having them wait. Page 5of19 Mr. Jung stated just for edification at the last meeting, the Commission requested that the same items be placed on todays' agenda inclusive of the site visits which feels is somewhat duplicative. Commissioner Evslin noted that if the Commission agrees he would like to take public testimony now to which Chair pro tem Nakahara agreed and opened the floor for public testimony on Item G 4 in conjunction with new business Item H i pertaining to Kahili Quarry Road, The Commission received testimony from Ron Paul, Mr. Paul stated that at the last meeting, the Commission made a request to the public to provide preferred recommendations in terms of obtaining access to Kilauea Falls. He stated that it is a work that is still in progress and provided the Commission with a color coded map reflecting eight (8) different options for public access to Kilauea Falls some of which is preferably to others. One path in particular is a trail along Kahili Quarry Road referred to locally as the Mango Tree trail which he gave a description of the trail leading to Kilauea Falls. He stated that the Kilauea Neighborhood Association is scheduled to meet on May 6 in which time they will be asking the public for input including a discussion on part of the Board members to define a recommendation in terms of a preferable access route to Kilauea Falls which KNA hopes will help the Commission to determine the best route. Commissioner Evslin asked if he knew the approximate length of the preferred trail is. Mr. Paul said maybe a mile and a quarter. Commissioner Evslin asked if the trail is located anywhere near Mr. Somer's house. Mr. Paul stated that the trail circles around in the back of Mr. Somer' s house and would not have any impact in terms of distractions. He stated that the pedestrian easement that was pointed out to the Commission during its field trip which follows along the bank of the river would have much more of an effect on the resident. He stated that it was brought up by Ms. Kallai that the preferred trail goes through an area that has archeological artifacts. Commissioner Evslin mentioned that he has heard about people paddling up the river and then have to walk on a roadway to get to Kilauea Falls. Mr. Paul stated that the preferred trail would intersect with the roadway. Commissioner Evslin asked if the roadway belongs to Mr. Somer' s and would preferred trail have an impact on his driveway. Mr. Paul said no. The Commissioner received a testimony reflecting access options to Kilauea Falls (On file) from Hope Kallai. Ms . Kallai stated that the eight (8) access options were selected because they are all accessible from public roads and will not have any complications with the surrounding properties. She stated that the trail options in the subdivisions are pretty steep and that the Mango Tree trail (preferred route) has been in use for the past thirty (30) to forty (40) years. She stated that the pedestrian easement located along the Page 6of19 river is another accessible easement that connects to the Mango Trail. She stated that it would be a good idea to plan these trails as a network and not as isolated segments that leads to a dead end because she feels that there is a need to use both trails. Commissioner Evslin asked what the length of the P1 easement is. Ms. Kallai replied it' s about 3 ,200 feet starting at the corner where the river ends. Mr. Paul stated that he drove out to Kahili Quarry Road and did a GPS reading of where the head of the trail begins under the Mango Tree which is closer to the P1 easement. Ms. Kallai pointed out that the length of the trails are all approximations. Mr. Paul stated that it would make sense to connect the P 1 easement to the Mango Trail. Ms . Kallai stated that she thinks it is important to connect the trails and by opening the P1 easement the Commission could see during its site visit how difficult it was to get down there. Ms. Kallai stated that the Kahili Quarry Road has always been an important part of the Kilauea community because in the 1800 ' s it was known as the historic alaloa trail which had a lot of commercial use. The Commission received testimony from Felicia Cowden. Ms. Cowden stated that she has hiked down to Kahili Quarry using the various trails. She stated that the area that Ms. Kallai was referring to is a road that leads to Kilauea Falls which was wide enough to walk on. In reference to the other access options; the closer you get Kilauea Falls the steeper the trails become. Ms. Cowden stated that although she thinks that the Mango Trail is the best choice it does needs some improvement. She stated that some of the employees who works for Mr. Somer has placed extra impediments on trail which now makes it harder to utilize. Ms. Cowden reminded the Commission that the landowner has testified in this very same room that he would leave the trail open however, she thinks they were able to finagle the wording in the permit that allowed them to have a back door to his commitment. Commissioner Evslin asked if the riparian corridor from the P1 easement to Kilauea Falls was extended it would end up in front of Mr. Somer' s house. Ms. Cowden replied yes . Chair pro tem Nakahara asked if anyone has explored the kayak route to Kilauea Falls that intersects with the road that allows a person to walk up to the falls. Ms. Cowden stated that she has kayaked and even swam up the river to the area where the road intersects . Commissioner Blake asked if any attempt has been made to talk to Mr. Somer' s. Ms. Cowden stated that Yoshito L' Hote from KNA met with the landowner about a week and a half ago. She stated that she after she spoke to the landscapers there is a certain amount of reluctance from Mr. Somer' s but at some level someone is willing to hear to KNA' s concerns. Page 7of19 The Commission received testimony from Tim Kallai. Mr. Kallai stated that after he had spoken to Yoshito L'Hote to inquire about his meeting with Mr. Somer' s and from Yoshito ' s perspective he wanted to keep the meeting relatively informal because he has been trying for a couple of years to have dialogue with Mr. Somer's to get him to realize just how important the aspects of this particular access is to the community. He stated that Mr. L' Hote did say although it was a good meeting Mr. Somer' s is still reluctant to bestow anything to the community in terms of public access to K-11auea Falls. Commissioner Evslin asked what the process is in finalizing a path because he felt based on the public testimony the Mango Tree Trail is the best route. Mr. Jung stated that if the Commission agrees that the Mango Tree trail is the best route, the Commission will need to do a survey to stake out the proposed easement area. He added that based on his conversations with Mr. Somer' s attorney it looks like it will turn into unfriendly condemnation that will end in court. Mr. Jung clarified that the Commission would need to put in a request for a right-of-entry to get the surveyors onto the property to do the survey of the proposed area. Commissioner Blake asked Mr. Jung if it was appropriate for him and the Chair to meet with Mr. Somer. Mr. Jung stated that there are two elements involving this issue : 1 ) the reason Council gets involved with condemnation resolutions and ultimately accepts the grants of easements is because of the liability issue; and 2) Historically, the County went after public access easements to the beaches because a State law protects the County' s from Natural Ocean conditions, but for natural waterfalls conditions there is no limitation on liability. He stated that although the Hawaii Revised Statutes 520 protects the landowners to a certain extent, it does not prevent the people from suing if they get hurt which will only encourage the landowner to shut down public access to the area. Commissioner Evslin asked what happens if the landowner denies the request for right-of-entry will it mean that the County cannot send the surveyor do the survey to see whether the trail is passable. Mr. Jung stated that the next step is to wait for the litigation to start and through the discovery period certain methods can be used to gain access to the property so that an evaluation can be done in which the Council would have to initiate. Commissioner Evslin asked what if the landowner allows access two days a week would it be possible for the County to pick-up the liability for the two days. Mr. Jung explained at the time the County was going through the contested case and before KNA realized it would most likely be a regulatory taking in terms of a land grab out of the small permit. KNA realize that maybe they could work with the landowner to see if there could be some sort of deal made where KNA could obtain potential insurance liability to protect a person premises liability, in which a landowner Page 8 of 19 Mr. Jung stated that the reality is the public wants access but it is the landowner who ends up being taken advantage of by people who gets hurt and sues the landowner especially, those with deep pockets. He added that there needs to be an insurance policy to protect and indemnify the landowner from any potential access the landowner may voluntarily open up. Mr. Jung stated that if KNA is willing to obtain its own liability insur ance they need to speak with the Hawaii Island Land Trust who has an interest in the property relative to the conservation easement. Commissioner Evslin asked if it ends up being an unfriendly condemnation and the County ends up acquiring the access would the County naturally assume the liability or would they have KNA assume the liability. Mr. Jung stated that it would be an affirmative act by the County to inherit the liability once they accept the easement. Commissioner Evslin asked if it was possible to somehow get the County to offer liability on a twice a week basis. Mr. Jung stated that it would hard for him to say because it has never been done before and that he would need to do research to try to figure out how to process such a request. Commissioner Evslin asked if the Commission needs to take into account that there is no trail maintenance crew in Public Works should the trail prove to be unpassable from the top. Mr. Jung stated that there is movement to establish a maintenance crew but again, the way the budget is, the reality points to how much money the County has available. He stated that because the County cannot allocate the funds they are working on getting more stewardship type of agreements as well as working with State agencies who are willing to assist the County with trail maintenance on a voluntarily type basis. Commissioner Blake asked if HILT has an interest in the conservation easement. Mr. Jung replied that HILT has a conservation easement up to Kilauea Falls. He explained that a buffer area surrounds the falls and that the Mango Tree trail is located within the conservation easement owned by Mr. Somer; excluding the County' s P1 easement. He further explained that the conservation easement allows specific rights including prohibitions for certain uses on the property. Commissioner Blake asked who has the rights to the conservation easement to which Mr. Jung explained that the rights belong to HILT and Mr. Somers . He added that conservation easement is not for public use it just means Mr. Somer' s is waiving density for future development. Commissioner Blake asked if it was appropriate for representatives from the Open Space Commission, KNA including the Commission' s counsel office to approach Mr. Somer' s just to talk story to which Mr. Jung replied yes . Commissioner Evslin stated that he agrees with Commission T. Blake suggestion to approach Mr. Somer' s . Commissioner T. Blake stated that it hurts to see these areas closed off because there are some beaches in Koloa that are inaccessible because of the cane fields; to see these areas blocked off kind of gets him going. Page 9 of 19 Chair pro tem Nakahara stated that he also liked the idea of approaching Mr. Somers or his representative just as an informational basis to see how he felt about allowing public access to Kilauea Falls. He stated that access to Kilauea Falls does not have be .on a daily basis but at least once a week or even once a month and that maybe the Commission could use its own funds to obtain liability insurance. Commissioner Dela Cruz stated that the Open Space funds can only be used for acquisition in the interest of real property. Chair pro tem Nakahara stated either way he would still like to see an informal meeting between Mr. Somers and a member of the Open Space Commission. Commissioner Randall Blake asked if it was possible he would like the Kilauea Neighborhood Association provide the Commission with their preferences first before approaching Mr. Somers. Ms. Kallai made reference to a map that was presentation to the Planning Commission regarding Mr. Somer' s SMA application. She stated that although the map reflects how close in proximity the pedestrian P easement is to the existing road it does show the road going all the way down to the Mango Tree trail. Ms. Kallai stated that it is her understanding that HILT is offering scheduled hikes on the property covered their liability insurance which could be an option for KNA, if Mr. Somers would agree to allow access to Kilauea Falls. Mr. Paul commented in 1978, the P1 easement was granted to the County which absolved the property owner from all liability. He asked if the County were to obtain the additional proposed easement to Kilauea Falls it could link the proposed easement to the P1 easement as an extension to the Kilauea Falls which would absolved the property owner from all liability. He noted that he does know how much the County pays for liability insurance for access to the P1 easement that was granted in 1978 . Commissioner Evslin asked if it was possible to give Staff more time to draft a letter for approval at the next meeting and in turn KNA could back after their own meeting to inform the Commission which path they had endorsed. He stated that although he likes the idea of sending the letter first but if Mr. Somers does not respond within two weeks then maybe the Commission could talk about right-of- entry. Mr. Jung stated that if it is the Commission' s desire to extend the invitation through a letter both he and Staff could draft something up for approval at the next meeting. Chair pro tern Nakahara indicated that he agrees with Commissioner Evslin suggestion. The Commission received testimony from Ms. Hoku Cabebe. Ms. Cabebe asked if it was already an option to expand the P1 easement without liability falling upon the property owner. Page 10 of 19 Mr. Jung explained that once the County is granted an easement from a landowner the County Council has to indemnify the landowner in which the County will inherit the responsibility to either defend the landowner or if both the landowner and the County gets sued the County would have to defend the landowner. At 2 :20 p.m. Chair pro tem Nakahara called for a five (5) minute recess. At 2 : 30 p.m. the meeting reconvened. Chair pro tem Nakahara stated that based on the discussion he will instruct Staff to draft a letter to Mr. Somers requesting an informal meeting to discuss possible public access through his property. Mr. Jung acknowledged the request and stated that he would draft a letter for approve at the meeting in May. Commissioner T. Blake noted looking at the surface he thinks Mr. Somers will probably reject the letter which is why he wants someone to deliver the letter personally to Mr. Somers or his legal representative. Mr. Kallai pointed out that Mr. Somers is seldom on the island and to pin him down to a certain place and time would be impossible to do . Commissioner T. Blake stated that the letter could be hand delivered to Max Graham who is Mr. Somer' s legal representative here on island. 5 . Update on Kauapea (Secret Beach) pedestrian public beach access. Mr. Jung stated that he put in a request up to the chain of command for the County Attorney' s Office and the County Engineer to visit the area where the current trail is located in hopes of identifying it. Chair pro tem Nakahara asked Mr. Jung if he could provide an update at the next meeting to which Mr. Jung replied yes. The Commission received testimony from Tim Kallai. Mr. Kallai stated that at the last KNA meeting, the access committee asked if there were any updates from the County or the Mayor' s office. He stated that although he tried to tell KNA that the County is working on the matter KNA still wanted someone from the County to come to one its meeting to give them an update. He asked if anyone from the County was willing to provide an update at the next KNA meeting on May 6a'. Chair pro tem Nakahara noted that as the information becomes available he is sure that someone from the County would provide an update to KNA. Mr. Jung stated that at the last Council meeting, he has learned that the landowner is opening up his property to allow site visits but the participants must be willing to sign a waiver. He stated that the first visit was scheduled on April 20t' which will be Page 11 of 19 followed by two more site visits in the increments of ten ( 10) to a group. He reminded the Commission it is up to the Council to decide whether or not to accept the pedestrian easement. He noted that although Council talked about the location of the alleged alaloa it was not to identify the alleged alaloa but to figure out what would happen if the trail transects to where the County' s grant of easement is being proposed. Another issue that was brought up was whether the easement was long or safe enough which brought up the question on whether to relocate the access if needed, but that decision lies with the Planning Commission and not the Council. Chair pro tern Nakahara asked Staff to keep the item on the agenda for continued discussion relative to the Planning Commission' s decision to relocate the public access or not. Mr. Kallai stated that he would like to extend the invitation to the members of the OSC to visit the site since he is not able to go to Waipake himself. He noted that the site visits are scheduled for April 30{', May 30a' and June 27ffi at 10 a.m. He asked that the Commission take the time to go on site visit so that they can get a better grasp on this particular easement. Mr. Jung noted that it is his understanding that no time has been determined as of yet but if the Commissioners wanted to go he would suggest they go increments of two (2) pursuant to the Sunshine Law. Commissioner T. Blake asked who police' s the area to which Mr. Jung replied he does not know however, the terms of the usage of the property is limited to the terms of the easement document. For example, if the document states pedestrian than arguably it would be grounds to violate the terms of the easement in which the landowner could take back the property if the County does not honor the agreement. 6. Update on pedestrian public access involving Falko Partners subdivision in the Waipake ahupuaa. Ms. Kallai presented a PowerPoint presentation reflecting Kahu ' aina Plantation subdivisions grant of easements. (On file) Ms. Kallai stated that this access was meant to provide access to Waipake and not to Lepeuli and Larsen' s Beach, Commissioner Evslin asked who will be responsible to maintain the public access to Waipake beach to which Mr. Jung replied the County. 7. Discussion on Article X1I, Section 7 of the Hawaii Constitution regarding customary and traditional ag_thering rights. Commissioner T. Blake noticed that the word religious was left out. Mr. Jung explained that religious would come through the customary part of it. Page 12 of 19 Commissioner T. Blake stated that customary and traditional rights are not being utilized enough but yet everyone wants access. He stated that this practice can strengthen a person' s ability to gain access because if a guard has to stand at the entrance of a trail just to ask for a person' s birth certificate is crazy which brings up the question how can someone discern whether a person is of Hawaiian ancestry without having to take the most circle less route to get there. Mr. Jung stated at the last two meetings, he talked about certain native Hawaiians having certain access rights to undeveloped property to perform customary and traditional practices. He explained that a case law outlines parameters of where a person can go and how they can do it. He stated that there is a reasonable use requirement that basically asks is the custom or practice somewhat subjective to that particular undeveloped property. Another point that was discussed is whether to encourage the landowner to work with the person who wants to come unto his property to exercise his practice and how to get there. He added the only time that the issue will ever come in fruition is if someone is caught trespassing. Mr. Jung shared with the Commission that Mr. Somers has a condition in his permit in which he has to respect native Hawaiian traditional and customary practices for example, if someone has a reasonable and traditional practice he or she can make a claim but it has to be worked out with the landowner. Commissioner Hayashi asked if native Hawaiian' s from the outer islands can come in and claim the right to access the Somers property to which Commissioner Dela Cruz replied yes . Mr. Jung stated that case law did away with ahupuaa' s. Commissioner Hayashi asked if there really is something called a blood quantum to which Mr. Jung replied no . Commissioner T. Blake stated that he would like an attorney to draft language to give some landowners a cause to pause in terms of the customary and traditional gathering rights, because he feels all native Hawaiians have access rights to all developed or undeveloped properties to perform religious and customary/traditional practices. Chair pro tern Nakahara acknowledged the presence of Finance Director Steve Hunt and announced that he would take Item G 11 before Item G 8 . 11 . Discussion on proposed Bill to amend Chapter 6, Article 14, Section 1 of the Kauai County Code, to reduce the annual allocation made to the Public Access, Open Space, and Natural Resources Preservation Fund. Director of Finance Steve Hunt stated that he is purpose today is to discuss the intent of the bill which is NOT to reduce but allow a range for funding of real property taxes to the Public Access, Open Space Fund. He stated that the County is facing a very challenging budget year because the County' s bond rating was downgraded citing a lack of fund balances and the inability to mirror revenues and expenditures although not fatal went from a double AA to a double AA minus . Page 13 of 19 Mr. Hunt stated that relative to the ratings there were other concerns about the County' s performance in FY 14 and the anticipated of FY 15 to stabilize the continued imbalances with expenditures that have increased to 3 % per year while revenues declined at a rate of 2. 8% a year in the past four (4) years. He stated that after he reviewed the fund balance he found that the County did have balances in various other funds but from a financial outlook the only funds that were considered were funds that were expendable which are the unassigned funds and committed reserve balances which could be used for operational costs should the County incur any type of emergency situation. He stated that currently the County has roughly 2. 6 million dollars in committed reserve funds. In fiscal year 15 they will be a moving roughly 1 . 8 million dollars into the reserve which will bring the balance up to 3 . 68 million dollars. In the unassigned budget the current balance will be exhausted as of right now. Mr. Hunt stated that he will be heading to Honolulu tomorrow with the Mayor to try to gain back some of the County' s TAT loss revenue in which the State placed a cap of 93 million for the counties TAT share for a number of years now. He stated that there have been opposition and most recently he has heard about a proposal to increase the cap to seven and a quarter percent which would bring it to a little over 5 million dollars to the County, if successful. Mr. Hunt stated that the bill relating to the Open Space Fund precludes Council from funding the full 1 .5 % as stated in the ordinance but gives the Administration the flexibility to put in . 5% which required by Charter. He explained that Charter requires a .5% of real property tax opposed to the ordinance which requires 1 . 5%. He stated that it is encumbered by the Open Space Commission to submit to the urgency because his priority is the budget and he does want to see the fund continue to build without projects specifically earmarked. He added that bill would give both Administration and Council the ability to fully fund the 1 .5% based on the Commission' s needs but as far as he is concern he needs to restore the fund balances to the areas where he believes are critical to restoring the financial health of the County. Commissioner T. Blake stated that he is very uncomfortable with the proposal because there is no sunset clause to reassure him that the County will reinstate the Open Space Fund back to its original 1 .5% in the future. Commissioner T. Blake stated that the fact that Mr. Hunt brought up the point about not wanting the funds to build the way he see it right now, the Commission still does not have enough funds to acquire a piece of property for public access. He stated that although the funds could increase in ten years, the Commission would only be able to acquire two properties located on the eastside; not to mention that he does not want to have to approach the Council to fight for the 1 % that was taken away. Page 14 of 19 He stated that although understands the County is facing fiscal challenges he would still like to see a provision made to revisit the issue after a year to discuss replacing the 1 %that that was taken out. Mr. Hunt explained that he wants to make it clear to the Commission that he is NOT saying is that they would never have the ability to get back the full 1 .5% because both the Council and Administration feel that it' s still available. Commissioner T. Blake stated that it would say still be nice to see the language rather than assume. Mr. Jung clarified that the way the language is written stipulates each year a minimum of one half of one percent (0.5%) of the County' s certified real property taxes will be deposited into the Open Space fund. He explained that Council wanted to set the fund at 1 . 5% but was advised by the County Attorney' s office by setting it at 1 .5% would lock it versus if they left room for flexibility by setting it at .5% which will be evaluated year to year. He stated what is being proposed is a range of .5% to 1 .5% but at the end of the day Council are ones who will make the final decision. Commissioner T. Blake argued that the .5% amounts to a little over $400,000 versus the 1 . 5% which amounts to 1 .2 million dollars; it is clear to him that the $400,000 is not enough to get even into McDonald' s . Mr. Jung made reference to the Hodge acquisition in which the Commission found that there was not enough money in the Open Space Fund to acquire the property in which Council approved a money bill get money from a different fund to compensate the Open Space Fund, in other words if Council takes action by passing an ordinance to take money out of the Open Space Fund it could run concurrent with a separate Council ordinance which allows for payment of money from a different fund. Commissioner T. Blake asked if the 1 .2 million dollars would come from the Open Space Fund to which Mr. Jung replied although the 1 .2 million dollars is Open Space money it does not preclude the Council from going after other funds to aid in the acquisition of a property. Mr. Hunt stated that currently the Open Space Fund has a balance of $3 ,347,217 .00 and with the proposed 0. 5% in FY15 it will bring the balance to $3 ,859,450 . 00 . Commissioner Evslin stated based on the numbers it seems to him that the County' s revenue went down 4% and the expenses went up, asking if that normal or just a bad year and should the Commission expect the fund to be reinstated at some point. Mr. Hunt stated that in addressing the revenue aspect it has been a concerted effort to hold the line by not raising real property taxes. He stated that between 2004 and 2007 the County had a chance to build up what he refers to as a war chest in fund balance by not lowering property tax rates despite of the fact when things got bad the County could rely on its fund balances to offset the budget a practice that as continued for Page 15 of 19 five (5) years. Today, there is no money in the fund balance which prompt the County to raise the tax rates on real property. Mr. Hunt explained that the current proposal will only affect the budget for fiscal year 15 . Given the fact that the ordinance has the flexibility, if next year proves to be a better year and the County is able to regain a fund balance then maybe the proposal would be a 1 % reduction instead of the full 1 . 5%. He added that the ordinance has a range that will allow both the Administration and Council to submit a budget proposal of . 5% although the Council could come back and say that' s not enough and asks for 1 %. In other words, proposal has the flexibility from both the executive and legislative side to ask for the full 1 . 5% and even if the proposed ordinance should pass Council could still retain the full 1 . 5%. However, as he sees it from a financial point of view, if the fiend balance in the Open Space Fund exceeds its committed reserves he would not have a problem tapping into if a natural disaster emergency arise. He stated that there isn't enough resources available for the County to fall back on and that his main concerned is about getting the County' s financial health and bond rating back on track. Commissioner T. Blake asked what the status of proposal in terms of action taken. Mr. Jung stated that the bill will be moving into committee and although he does not know the exact date now, he will email the information to the Commission sometime this week. Commissioner T. Blake noted that it would be nice of everyone could write a letter of support because there are seven (7) members who are looking into retaining their seats on the County Council. Mr. Jung noted that it is his understanding that the body already agreed to collectively write a letter to the County Council. Commissioner Evslin noted that he personally opposes the bill because as Commissioner's we are here everyday hearing non-stop about access issues and to have the fund reduced is working against what the Open Space Commission is all about which is to obtain public access. Commissioner Hayashi stated that she does not want to give up anything at this point because it' s the responsibility of the Open Space Commission to keep open public access for generations to come. She noted that the Commission has been working hard to obtain public access and right now she feels like the rug is being pulled from right under the Commission which makes her wonder whether she should step down from the Commission. Commissioner T. Blake stated that the County of Kauai is the only county in the State of Hawaii that does not receive any exactions from developers. Mr. Jung clarified that the County has a full gamut of significant exactions that are impose upon developers for road structures including a housing ordinance that requires affordable housing to do an environmental assessment at a cost of 500 to Page 16 of 19 1000 dollars per unit; an access imposition fee is required for a landowner to pass land out. Commissioner T. Blake stated that the County of Kauai is behind compared to the other counties and he has the numbers to prove it. Mr. Jung stated that he may be referring to the impact fee which the City and County of Honolulu are the only ones in the State that imposes such a fee. He noted that the County of Kauai is working on implementing a fee schedule in its general plan. Commissioner T. Blake stated that when the Koloa Association did a circulation plan Kauai was the only county who did not impose a fee. Mr. Jung stated that Big island does not impose a fee either. Commissioner T. Blake stated that the County of Kauai should impose a fee because there is high demand for development. Chair pro tem Nakahara thanked Mr. Hunt for providing the Commission with the information. 8 . Update on Commission education topics. Chair pro tern Nakahara stated that it his understanding that the Commission had requested the presence of Tom Pierce at a future meeting to provide information relative to the alleged alaloa trail. Mr. Jung reported that he is still working on getting Mr. Pierce to come and that he called the AG' s office to inquire the name of the deputy who worked on the Haleakala path case to see if he was interested in coming to Kauai to explain why the State chose to pursue this particular trail and not the others. 9. Discussion on presentation of the Commission' s 2013 Report to the Kauai County Council and the Mayor. Ms. Sadora stated that Chair Figaroa and Commissioner Evslin did a great job in presenting the report to the Mayor and the County Council. She noted that she received a letter from the County Council who wrote to thank the Commission for the hard in producing a great biennial report. Commissioner Evslin stated that he thought the presentation was straight forward. He noted that Chair Furfaro was dismayed because it' s was his first time he heard about the condemnation resolution relative to the Hoban property. Ms. Sadora stated that the Hoban property was included in the recommendations but was not part of the report. Commissioner Evslin noted that Councilmember Ross Kagawa commented that he would like the Commission to look at Allerton' s in the future. 10 . Discussion on acquisition of land for open space preservation to create a buffer at Salt Pond Beach Park. Page 17 of 19 Ms . Sadora stated that she had no new information to provide. She noted that the Mayor is working on a master plan to use as a guide. She stated that the Commission' s main purpose is to concentrate on creating a buffer and that she recently learned that Council will be asking the Commission for information in the near future. Commissioner T. Blake asked if the buffer is on mauka side to which Commissioner Hayashi replied yes. Ms. Sadora stated that the buffer the Commission is referring to was for the run off coming from mauka. Commissioner Hayashi stated that it would be really interesting to find out the location of the original salt pans because from what she heard the salt pans originated under the asphalt on the airport side. Commissioner T. Blake explained that there are two types of salt pans a female and male. The female produces the salt and the male salt pan is located in the area where the road is. He stated that male salt pan produces the salt water which is poured in the female salt pans. He stated that area where the camper' s camp on a regular basis is more critical than the run off coming from the mauka side. He stated that if he a choice he would place the camp area including the road on the Commission' s priority list. Commissioner Hayashi stated that she has concerns about potential corn growers might want to try to take the land. She stated that she spoke with the kupuna' s and found that there is a conflict between the older generation and the younger generation because the younger generation does not want a buffer zone. She asked if it would be better to designate area a conservation versus leaving it Ag. Commissioner Evslin stated that he believes the Commission' s purpose is to take the Ag land and designate it as a buffer zone to prevent unwanted pesticides from going into the run off. Commissioner Evslin noted in the past, the Commission talked about getting an executive order to get the State to deed the buffer over to the County which in turn would take it out of Ag. He asked if the Commission could move forward in getting the executive order. Ms. Sadora stated that before the Commission does anything she would like to follow�up with the Mayor' s office first. She stated that there is a lot of conservancy within the Hui' s because each one has a different idea and that Deputy County Attorney Trask was tasked to be the conduit for the Hui' s by providing them with solutions. She noted that the Mayor working on a plan but she does not know the extent of it but will try to get an update for the Commission by the next meeting. NEW BUSINESS 1 . Discussion on 4/10/14 excursion to the following North Shore areas. • Papa` a Bay • Kahili Quarry Road Page 18 of 19 • Kauapea Beach Access off of Kilauea Road Chair pro tern Nakahara stated that he would like to defer this item for continued discussion at the Commission' s next meeting on May 8, 2014 to which the Commissioners unanimously agreed. H. NEXT MEETING DATE AND AGENDA TOPICS FOR DISCUSSION Unfinished Business items G1 through G11 will be deferred for continued discussion at the Commission' s next meeting on May 8, 2014. New business item will include discussion on a proposed letter from the Open Space Commission Chair requesting to meet with Charles Somers and/or his representatives to discuss access issues to the Kilauea Falls located on TMK (4) 5-2-012-035 . I. ADJOURNMENT At 3 : 54 p.m. Pro tern Chair Nakahara declared the meeting adjourned. Submitted by: Mercedes Yo i, ommission Support Clerk Approved on June 26, 2014 Page 19 of 19