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HomeMy WebLinkAbout2014-5-22 Open Space Commission Minutes Approved PUBLIC ACCESS, OPEN SPACE & NATURLA RESOURCES PRESERVATION FUND COMMISSION REGULAR MINUTES MAY 22, 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 Llhu` e Civic Center, Mo'ikeha Building, Meeting Room 2A/2B . The following Commissioners were present: Theodore Blake Randall Blake Linda Dela Cruz Luke Evslin Dorothea Hayashi Maurice Nakahara Absent and Excused Joseph Figaroa, Chair Patrick Gegen, Vice Chair The following Staff members were present: Planning Department Nani Sadora and Duke Nakamatsu; Deputy Planning Attorney Ian Jung; Boards and Commissions Support Clerk Mercedes Youn. A. CALL TO ORDER Commissioner Dela Cruz opened the floor for nominations for Chair Pro Tem. Commissioner Nakamura nominated Commissioner T. Blake to serve as Chair Pro Tem, Commissioner Hayashi seconded, hearing no objections, the motion passed by voice vote 5 : 0 . Chair Pro Tem Blake called the meeting to order at 1 : 06 p.m. Commissioners Dela Cruz and Hayashi noted that they would be leaving the meeting at 3 : 00 p.m. B. APPROVAL OF AGENDA On a motion made by Commissioner R. Blake and seconded by Commissioner Nakahara to approve the agenda as circulated, the motion carried unanimously by voice vote 6 : 0 Page 1 of 9 C. ANNOUNCEMENTS Mr. Jung noted for the record that at 3 : 00 p.m. the Commission would lose quorum due to the absence of Commissioners Dela Cruz and Hayashi. Ms . Sadora noted for the record that Chair Figaroa was not able to attend the meeting. D. APPROVAL OF MEETING MINUTES 1 . Minutes of April 10, 2014 2. Minutes of April 24, 2014 Deferred to June 26, 2014, E. RECEIPT OF ITEMS FOR THE RECORD There were no items to be received. F. UNFINISHED BUSINESS 1 . Review and discussion on past recommendations and prioritization of the Commission' s work plan/timeline of events and activities . Ms . Sadora stated Item F1 . would remain on the agenda for continued discussion as needed. 2. Update on a recommendation to 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 option to Kukui `ula Bay. Mr. Jung reported that he is in the process of responding to Council ' s request for additional background information from a historical standpoint. He stated that once the information goes over to Council, the Chair has 120 days to place the item on Council ' s agenda but at this point, he is unsure whether Council is ready to place the item on their agenda. Chair Pro Tem T. Blake stated he found it interesting that the three (3 ) individuals approached to tell him that they use the path on a daily basis but he has never seen anyone down by the beach fishing. Mr. Jung asked if the path is still being used because from what he understands the path is overgrown to which Chair Pro Tem T. Blake replied that he does not know how the fisherman manage to get down to the ocean, but they do. Page 2of9 3 . Discussion on historical roads issue and access issues to Papa`a Bay, Mr. Jung explained that on this particular item the Commission requested to keep it on the agenda in case new information became available. He stated that at the last briefing the Commissioner was provided with an outline of all of the historical issues relative to the law suit and where the County is at now with the current access. Chair Pro Tem T. Blake asked if at one time the County road traversed all the way down to the beach. Mr. Jung stated that was the cause of the dispute because the Judge ruled that the road ended at the Wedeman' s reservation. He explained that there are historical references that describes the road actually lead down to the beach which prompt the lawsuit which the County loss which was later appealed to the 9th Circuit Court in which a settlement of $50,000 went to County to pursue footpath access in a different area which he believes is the access across of the upper Plato where the `Aliomanu Beach Estate is located. 4. Discussion on request from Council Chair Furfaro dated February 5 , 2014 regarding access to Kilauea Falls located on TMK (4) 5-2-012: 035 , being placed on the Open Space Commission's priority recommendation list. Commissioner Dela Cruz asked if the Item 4. could be deferred or discussed in conjunction with Item 11 . because from what she understands a letter from the Open Space Commission was sent to Mr. Somers requesting to meet with him to discuss access to Kilauea Falls. She stated although there was a request to place Kilauea Falls on the Commission' s priority list it would still result in a standstill. Chair Pro Tern T. Blake stated from what he understands the President of the Kilauea Neighborhood Association met with Mr. Somers and both parties are now working towards setting up another meeting to discuss access to Kilauea Falls. Ms . Sadora stated at the last meeting, Mr. Kallai did confirm that a meeting took place; however, whatever was discussed is something that both parties might not want to reveal at this time. She voiced her concerns that Mr. Somers might have reservations about meeting with the Commission because he already started dialogue with KNA. Ms. Sadora stated that the Commission may want to advocate through the Kallai' s versus the going out to meet with Mr. Somers who may or may not be receptive to the Commission ' s recommendations. Chair Pro Tern T. Blake stated as Ms. Sadora pointed out, KNA has taken the lead which is better than having two entities with different agendas. Ms. Sadora stated because the Commission is aware of what KNA wants to do which is to gain access to Kilauea Falls she felt that the Commission should start to make arrangements with Public Works to identify the existing P 1 . Pedestrian easement. Chair Pro Tern T. Blake asked if the P 1 easement was considered an easement or traditional trail. Ms. Sadora stated it was always considered a pedestrian easement. Page 3 of 9 Mr. Jung stated traditional or not there was an existing pathway that the people once used to get to Kilauea Falls which is why he felt that the community wanted the County to identify trail during the time of the subdivision. Chair Pro Tem T. Blake called for a motion in regard to the Commission' s next step. Commissioner Evslin asked if the discussion was in conjunction to Item 11 . or just Item 4. to which Chair Pro Tem T. Blake replied that he would combine both items. Commissioner Evslin asked if the letter was sent to Mr. Somers to which Ms. Sadora replied yes. Commissioner Nakahara asked if there was a response to which Ms . Sadora replied no . Commissioner Evslin stated he thought the intent of the letter was to get Mr. Somers to offer some type of access because theoretically, the Commission could move forward with the condemnation. He stated he wants the Commission to continue to pursue the matter by sending Mr. Somers a request for a right-of-entry to do a limited site visit of the trail. Ms. Sadora stated the Commission could keep item on the agenda and may be at the next meeting get an update from the Kallai' s as to what type of activity took place in regard to access to Kilauea Falls. In the meantime, the Commission could continue to track the progress because she felt it would be better that it came from one source instead. of two. Chair Pro Tem T. Blake stated there are three entities involved; the Kilauea community; Open Space Commission and the Kallai ' s. Ms. Sadora pointed out that the Kallai ' s are not working directly with Mr. Somers and the information they receive comes through Mr. L' Hote. She stated she would contact Mr. L' Hote to see if he is willing to share information on what has taken place since his meeting with Mr. Somers. Commissioner R. Blake asked if there was confirmation as to the receipt of the letter by Mr. Somers to which Ms. Sadora replied she did not receive anything. Commissioner R. Blake then asked if it was possible to find out if when the letter was received so that the Commission could have it on record. Commissioner Nakahara agreed that having it on record is one way to track the progress Chair Pro Tem T. Blake called for a motion to combine Items 4 and 11 . On a motion made by Commissioner Nakahara and seconded by Commissioner Dela Cruz to combine Items 4. and 11 ., the motion carried unanimously by voice vote 6 : 0. Commissioner Evslin asked if it were possible to continue the discussion on the right-of- entry even though is no response from Mr. Somers by the next meeting. Chair Pro Tem T. Blake stated personally he would rather talk to Mr. L'Hote first to find out about their progress . Page 4of9 Commissioner Evslin stated maybe the Commission could invite him to the next meeting rather than wait for another month to request for the right-of-entry. Mr. Jung stated the Commission will have an opportunity under Item G (New Business) to place the item on agenda for the next Commission meeting. Chair Pro Tem. T. Blake asked if a copy of the Commission' s letter would go to Council to which Ms . Sadora replied no. Chair Pro Tern T. Blake asked if it was a good idea to send them a copy of the letter just to keep them abreast of what both sides are doing to which Mr. Jung replied it would not be necessary. 5. Update on Kauapea (Secret Beach) pedestrian public beach access. Mr. Jung stated a site visit to the area was scheduled with the landowner representative but due to the May Day celebrations the site visit had to be rescheduled. He stated he spoke with the landowner' s representative this morning to reschedule another site visit that would accommodate the Mayor's schedule. Commissioner R. Blake asked if he could get an aerial map of the area. Mr. Jung replied yes, and if he wanted a briefing outlining some of the issues he could provide that to . 6. Update on pedestrian public access involving Falko Partners Subdivision in the Waipake ahu uaa Mr. Jung stated although the issue is still begin deliberated at the Council they were able to schedule three sites that included the public. He stated in addition to the two councilmembers and two commissioners there were at least eight (8) to ten ( 10) members of the public in attendance. He stated there is an obvious divide of what people perceive the access should be but overall, people in general were supportive of it being a pedestrian access rather than vehicular access because of the sensitive nature of the area. Mr. Jung stated there is still room for two more site visits scheduled for May 30th and another one in June. He stated due to Sunshine law if any of the Commissioners are interested only two are allow at any given time. Commissioner Evslin stated he would like to go. Commissioner Nakahara stated he is interested but can he go as a member of the public to which Mr. Jung replied no. Commissioner R. Blake also expressed his interest in going. Commissioner Evslin stated if Commissioner R. Blake wanted to go he would wait for the next one, but if by chance one of the Commissioners decided not to go to have Staff email him. 7 . Discussion on Article XII, Section 7 of the Hawaii Constitution regarding customary and traditional at�g rights. Commissioner Hayashi stated she recalls the public not being able to sue if someone gets hurt on the beach because the County is protected by the State but if someone was to get hurt on mountain trail they have a right to sue. Mr. Jung stated she is referring to liability issues which is different from customary and traditional gathering rights . He stated if the Page 5of9 Commission wants to talk about liability issues he would advise them to place the item for discussion under the executive session. Commissioner Hayashi asked from what she understands the Hawaiians have gathering rights to the mountains and the ocean but what if something happens do they have the right to sue the County. Mr. Jung stated anyone can sue the County for anything but whether it has merits is up to the judge to decide or ultimately for a jury to decide. He stated in regard to native Hawaiian customary and traditional gathering rights the law both constitutional and State constitutional including case law has been developed to allow native Hawaiians a specific right to enter into an undeveloped private property to practice gathering rights for a reasonable use and not for any type of random gathering. Mr. Jung stated everyone needs to recognize under both the state and federal constitutional law people who own property have the right to privacy; they have the right to exclude people (an inherit right of having a fee simple interest in a piece of property). He explained how that interplays with native and customary traditional practices is critical because the idea is to get both sides to work it out; if someone is going to use bonafide native and customary traditional practices they need to make sure that they work something out with the landowner to avoid the possibility of being charged with trespassing. Commissioner Hayashi stated the problems the people are faced with is. they go through the process of negotiating only to be denied over and over again which brings it to the Open Space Commission to condemn the property for sake of public access . Mr. Jung stated that is the reason why everything is in a stalemate because the Commission is dealing with unwilling landowners . He stated if the Commission would just focus on areas where there is a willing landowner the possibility of moving things forward would be far greater. He pointed out that Council may someday question the Commission why are they selecting the most problematic areas because that was one the questions Council has posed to him. Mr. Jung shared with the Commissioners that the Office of the County Attorney is down two attorneys and does not have the manpower or the financial resources to take on condemnation proceedings which is the reason he wants the Commission to refocus and find areas with an easier route in terms of obtaining property which may be beneficial not to just one sector of the community but other sectors as well . Commissioner Evslin stated based on the Commission' s priority list none of the properties have willing landowners . He asked if the Commission should put out a call to landowners who have property they are willing to sell. Mr. Jung stated it' s not just for the landowners to come forward the Commission needs to do its own research in locating potential properties and not rely on staff as much. He stated the Commission needs to search for areas where there is a possibility of doing a park expansion. For example, salt pond the possibility of going east instead of mauka is greater and because it' s something that the Mayor is currently working on maybe the Commission could have a joint effort with the Mayor. Page 6 of 9 Although it' s really up to the Commission to decide any decision the Commission makes must come in a form of a recommendation to the County Council. Commissioner R. Blake stated with the repeat denial of access has it ever been challenged in court where the party had to sue the private landowner to gain access. Mr. Jung stated anyone who wants to sue the landowner must incur all of the cost by counsel; however, the native Hawaiian legal corporation was originally set-up to do these type of things including quiet titles but re-shifted their focus on suing under environmental statues versus assisting native Hawaiians with getting rights to certain areas . The Commission received testimony from Hope Kallai. Ms. Kallai stated these historic trails are there for native Hawaiian gatherings. In the Koolau district there are limu trails and for anyone who does not consider these as cultural by ways she feels is unconscionable. She stated the County being a willing landowner who owns Kaakaaniu access needs to do something because for the past six (6) years they have been coming to the County to ask them to open the trail but yet the trail is still not opened. Mr. Jung stated the Commission has gone over this issue a few times before and the problem is maintenance. He stated in early June Mayor Carvalho will be making an announcement which may provide a hopeful solution as a temporary measure to address this issue. He stated because the County Public Works Department does not have a maintenance crew cutting back some of the shrubbery unfortunately has not happened. Mr. Jung pointed out that the trail is not closed in fact, it is open but you have to find your own way down. He noted that there is a middle trail that is easily accessible even is three (3 ) year old can use. Ms. Kallai stated the middle trail is not the historic cultural trail its ' a ten dollar easement that was just acquired. She stated the public has the right to walk on the historical trail which was purchased in 1969 asking, why it is still closed. Mr. Jung stated the trail is not closed to which Ms . Kallai replied it is closed. Commissioner Hayashi questioned whether it' s even within the Commission purview to force the State to identify these historical trails because she feels that the Commission is always stepping into the State' s jurisdiction when it comes to identifying historical trails . She expressed her frustration that the issue keeps coming up which makes her wonder Commission rethink the situation and accept that it cannot do anything. Mr. Jung stated the reason the issue keeps presenting itself is because the community is not getting anywhere with the State and is turning to the Commission who he believes can help by advocating on behalf of the community however, even if the Commission writes letters the State can always turn around and say they are not interested, which brings the issue back to the Commission. Commissioner Evslin stated the Commission needs to continue to be a strong advocate for the community even though it' s out of the Commissions hands. Page 7 of 9 8 . Update on Commission education topics. Mr. Jung stated in regard to an accusation that he has not been in contact with Tom Pierce is a mischaracterization because he has the emails to prove that he has been in contact with Mr. Pierce. He stated Mr. Pierce is interested but wants to know the parameters the Commission is looking at so that he can choose the right topics. He stated because Mr. Pierce needs to be careful when rendering advice they are trying to set-up a seminar type of scenario. He stated both he and Ms. Sadora still need to go over the specifics with Planning Director Michael Dahilig in regard to the case outlining Haleakala and conservation easements . 9 . Discussion on acquisition of land for open space preservation to create a buffer at Salt Pond Beach Park. Commissioner Hayashi asked whether there was activity regarding the piece parcel east of Kamakani. Mr. Jung explained what Commissioner Hayashi is referring to relates to fence that was recently built around the State property but falls under the jurisdiction of the ADC (Agricultural Development Corporation) which leases the property out to the seed companies. In regard to the fence up he does know whether it was the ADC or the seed companies. Commissioner Evslin stated at the last meeting, the Commission decided that it did not want to duplicate efforts of the Administration without knowing what the Administration is planning on doing. Ms. Sadora stated because the Administration is taking the lead on this issue she unsure whether or not she can get the information. Commissioner Evslin stated it has been a year since the Commission received any updates. He asked if the Commission could a play role in terms of endorsing some type of plan. Mr. Jung stated the issue is very sensitive because it involves a lot families and at this point, he would prefer that the Commission hold back on the issue. 10 . Discussion on proposed Bill to amend Chapter 6 Article 14 Section 1 Kauai Count Code, to reduce the annual allocation made to the Public Access Open Space and Natural Resources Preservation Fund. Chair Pro Tern T. Blake stated the proposed Bill was defeated and that he wanted to reiterate what Council said that the Commission stood the chance of losing a portion of its funding so they better get their priorities inline and start using the funds . Ms . Sadora stated the Commission needs to focus on its priorities in terms of looking at acquisition parcels that can work. Commissioner R. Blake asked if the Commission would consider sending a thank you letter to Council for not reducing the funds. Chair Pro Tern T. Blake agreed that it would be a nice gesture on the part of the Commission. Page 8 of 9 On a motion made by Commissioner R. Blake and seconded by Commissioner Nakahara to send a thank you letter to Council for keeping the Open Space Commissions funds intact, the motion carried unanimously by voice vote 6: 0. 11 . Letter from the Open Space Commission requesting to meet with Charles Somers and/or his representatives to discuss access issues to the Kilauea Falls, located on Tax Map Key (4) 5-2-012-035 . Chair Pro Tern T. Blake noted that this item was discussed in conjunction with Item 4 and that Commission is aware that KNA' s President did meet with Mr. Somers to discuss access to Kilauea Falls. The Commission receive testimony by Tim Kallai. Mr. Kallai stated he spoke to County Engineer Larry Dill this morning to inquire about the maintenance agreement regarding the Kahili Quarry road and the P 1 easement. He stated Mr. Dill will be looking into these issues and will try to get to him with a response. Commissioner Hayashi asked if the Commission is successful in gaining access to the Kilauea Falls would the County have to take out another liability insurance policy or will it fall under another umbrella. Mr. Jung stated the County' s retention policy is pretty significant and if the Commission wants a briefing on liability issues he can do it at the next meeting in executive session. Commissioner R. Blake asked if it was possible defer the briefing until the 9th Commissioner is sworn in to which Mr. Jung replied yes. G. G. NEXT MEETING DATE AND AGENDA ITEMS The next meeting is scheduled for June 12, 2014. New Business item will include: • Discussion on a proposed letter to Mr. Charles Somers regarding a right-of-entry. H. ADJOURNMENT At 2 : 26 p.m. Chair Pro Tern T. Blake declared the meeting adjourned. Submitted by: TN, fig � Mercedes YAm, Support Clerk Approved on: August 28 , 2014. Page 9 of 9