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HomeMy WebLinkAbout2014-8-28 Open Space Commission Minutes Approved COUNTY OF KAUAI - Minutes of Meeting OPEN SESSION Board/Committee: Public Access, Open Space and Natural Meeting Date August 28, 2014 Resources Preservation Fund Commission Location Mo' ikeha Building — Meeting Room 2A/213 Start of Meeting: 1 : 13 p.m. End of Meeting: 2 :46 p.m. Present Chair Joseph Figaroa (entered at 2: 00 p. m) Chair Pro Tem Randall Blake; Members : Linda Dela Cruz, Karen Ono, Luke Evslin, Dorothea Hayashi Also present: Deputy County Attorney Ian Jung (entered 1 :38 p.m.) ; Planning Department Staff: Nani Sadora; Commission Support Clerk Mercedes Youn Excused Vice Chair Pat Gegen; Commissioners Theodore Blake and Ivory McClintock Absent SUBJECT DISCUSSION ACTION Please note that recording of the meeting did not occur until partially into the beginning of Item F. 1 . Call To Order Both Chair Figaroa and Vice Chair Gegen were not present. Commissioner Dela Cruz called meeting to order at 1 : 13 p.m. with 5 Commissioners present constituting a quorum. Mr. Evslin moved to nominate Randall Blake as Chair Pro Tem. Ms. Dela Cruz seconded the motion. Motion carried 5 : 0. R. Blake resumed the meeting as Chair Pro Tem. Approval of Mr. Evshn moved to approve the agenda. Ms. Agenda Dela Cruz seconded the motion. Motion carried 5 : 0. Announcements There is no recording for this section. Unsure if any items were discussed or any action taken. Approval of Minutes of May 22 , 2014 Ms. Dela Cruz moved to approve the minutes of Public Access, Open Space & Natural Resources Preservation Fund Commission Regular Open Session August 28, 2014 Page 2 SUBJECT DISCUSSION ACTION Minutes May 22, 2014. Ms. Ono seconded the motion. Motion carried 5 :0 Minutes of July 10, 2014 Ms. Ono moved to approve the minutes of July 10, 2014. Ms. Dela Cruz seconded the motion. Motion carried 5 : 0. Receipt of Items There were no receipt of items. for the Record Unfinished F. 1 Review and discussion on past recommendations and prioritization of Business the Commission's work plan/timeline of events and activities (Only partial recording of this portion of the meeting was available.) Ms . Sadora noted while they are waiting for the update from Deputy County Attorney Ian Jung, the Commission may want to think about whether they would like to discuss how to go about providing a status update report that will be due at the end of this year. She explained for clarification that every other year the Commission does a biennial recommendations report, and on the off year, only a status update in the form of a report. F.2. Update on 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 options to Kukui `ula Bay Ms. Dela Cruz suggested a motion to defer the item until Commission ' s Public Access, Open Space & Natural Resources Preservation Fund Commission Regular Open Session August 28 , 2014 Page 3 SUBJECT DISCUSSION ACTION counsel was present to provide further information on the condemnation Ms. Dela Cruz moved to defer the item until review. later in the meeting when Commission's counsel is present. Ms. Hayashi seconded the motion. Motion carried 5 : 0 . Ms. Sadora suggested the item be moved to a later part of the meeting, and the language be changed to postpone the discussion on it rather than defer it. She further suggested the motion and second be withdrawn and a new motion made. R. Blake pointed out that the motion already passed, therefore a new motion to amend needed to be made. Ms. Dela Cruz moved to amend the motion to state "postpone" instead of "defer". Ms. Hayashi seconded the motion. Motion carried 5 : 0. F . 3 . Discussion on request from Council Chair Furfaro dated February 5, 2014 regarding access to Kilauea Falls located on Tax Map Key (4 012 : 035, being placed on the Open Space Commission' s priority recommendations list. • Discussion on proposed draft letter to be submitted to Charles Somers and/or his representatives regarding a right-of-entry request to enter property identified as Tax Map Key (4) 5 -2-012 : 035 , to do a limited meeting site visit with the Commission to Kilauea Falls Mr. Evslin asked to clarify that they had already approved submitting the draft letter at the last meeting regarding the right-of-entry to which Ms. Sadora confirmed. He asked if it had been submitted. Ms. Sadora stated at the July 10, 2014 meeting it was approved by the Commission for the letter to go out registered certified mail. Prior to that they had discussed doing a draft, but because they wanted to get the letter out, they voted to have it sent. She stated an update on that was not going __ I Public Access, Open Space & Natural Resources Preservation Fund Commission Regular Open Session August 28, 2014 Page 4 SUBJECT DISCUSSION ACTION to be given until the next meeting since the letter had just received approval from the Deputy County Attorney and from the Planning Department today. Ms . Sadora read the letter as follow: Aloha Mr. Somers: This is a follow up to our letter dated June 5, 2014. The Open Space Commission would like to request your permission to enter the property as identified by the address and TMK listed above to do a site visit of the current County of Kaua `i pedestrian easement P-1 as described in the attached grant-of-easement, and Exhibit A. A timely response regarding this matter would be greatly appreciated. Should you have any questions or comments please contact Nani Sadora. Ms. Sadora noted that the letter is signed by her as she is sending it on behalf of the Department, and was just approved today to be sent registered certified mail to Mr. Somers. It is being processed, but will probably not go out until tomorrow. R. Blake asked if the commissioners are being copied on that, noting that Vice Chair Gegen had previously asked to receive a copy of the letter at this meeting. Mr. Evslin asked if the letter specified only visiting P- 1 to which Ms. Sadora explained the way the letter is being generated now, which is advised by Attorney Jung as well, was if they are more specific to what is already existing they may get a better response from Mr. Somers. She clarified that currently they are asking to enter based on the information contained in the letter, and see where they go from there. She feels if they identify how they want to gain access all the way to the Falls, it may not generate any kind of communication. They are unsure whether this letter will, but she feels at least this is specific to a County owned easement. She noted the letter has just been done today, and if the Commission would like i Public Access, Open Space & Natural Resources Preservation Fund Commission Regular Open Session August 28 , 2014 Page 5 SUBJECT DISCUSSION ACTION to discuss it, they can do so . Mr. Evslin stated his view is part of the purpose of the letter is to inform Mr. Somers that the Commission is actively wanting to move forward in identifying potential access to the Falls, in hopes he will respond with an offer of some kind of access. He feels they are avoiding the issue by specifying P- 1 , which could also result in Mr. Somers allowing them access to P- 1 , but not giving them permission to explore the access they are looking at. He is hoping it could specifically say Kilauea Falls in the letter. Ms. Sadora stated the letter itself in the subject line does say Kilauea Falls, but it is not specified in the body of the letter; the letter can be changed to include that if the Commission wishes. Ms. Hayashi suggested they have that discussion once Attorney Jung is present so they are able to obtain more specific answers . R. Blake stated Attorney Jung has already looked at the letter, and it is now a question of whether the Commission is okay with the wording of the letter as it is. Mr. Evslin stated P- 1 itself doesn't go all the way to the Falls, and feels that what they are really after regarding the Falls needs to be made clearer. Ms. Hayashi stated she understands the intent Mr. Evslin is after, but wants to clarify what the intent of the letter is. Ms . Sadora replied it also states it is a follow up letter to a previous communication, and the information in the prior letter does state the Commission' s desire to meet with him regarding access to Kilauea Falls . R. Blake asked if that can be included as a supplemental enclosure with the letter in case Mr. Somers or his representative has misplaced that previous communication to which Ms. Sadora replied they can tailor the language of the letter to include Kilauea Falls in the body. Mr. Evslin asked if it would be too specific to state "via the Man go Trail" because he still thinks they could go to the site, and end Public Access, Open Space & Natural Resources Preservation Fund Commission Regular Open Session August 28 , 2014 Page 6 SUBJECT DISCUSSION ACTION up on the wrong side of the property without access to the specific trail they want to see. Ms . Sadora questioned whether Mr. Somers would know which trail they are referencing to which Mr. Evslin replied he thinks it is a common enough name, and does not think there is another way to refer to it. He feels there must be some sort of reference. Ms. Sadora stated since the letter is not going out until tomorrow, they will go ahead and modify it to include what Mr. Evslin is requesting. She explained that when the initial request for this letter came through, they did not know what it would look like, but now that they have an idea of what is to be included, they can make it more detailed. Ms. Sadora suggested a motion be made to Mr. Evslin moved to approve the letter as approve the letter as amended. amended with reference to the Mango Trail. Ms. Hayashi seconded the motion. Motion carried 5 :0. Mr. Evslin stated that because they are missing the next meeting, it will be a month before they get an update, and he doesn't think there is an action plan as to what happens should there be no response. He requested Attorney Jung prepare something that will give them potential steps with which to move forward should there be no contact from the land owner. Ms. Sadora asked to clarify that he meant some sort of outline on the steps this body could take to which Mr. Evslin replied yes. R. Blake requested it be listed as an agenda item to either review any correspondence received, if any, or to formulate the next steps as a subset Deputy County Attorney Ian Jung entered the under the same Item 3 . meeting at 1 :38 p.m. Member of the public Hope Kallai stated she would defer or postpone the item until Attorney Jung has had a chance to speak to the contents of the letter. Public Access, Open Space & Natural Resources Preservation Fund Commission Regular Open Session August 28, 2014 Page 7 SUBJECT DISCUSSION ACTION Chair Pro Tem R. Blake updated Attorney Jung on the discussion they have had so far on this item, and the requests made to amend the letter. Attorney Jung stated he thought the right-of-entry was to locate and identify P- 1 , and asked if they have moved on differently. Member of the public Hope Kallai stated the agenda item they are addressing first is Council Chair Jay Furfaro ' s February 5, 2014 letter, which prioritized acquiring access to Kilauea Falls. She thought that is what this letter was in response to . Mr. Evslin stated when the Kilauea Neighborhood Association provided the background on the five different accesses, the one they felt would be the best was the Mango Trail, which is the option they would like to explore. The concern is if the letter does not mention anything but P- 1 Mr. Somers would not be aware they were looking toward Mango Trail, or would only be allowed to walk onto P- 1 , and not be able to explore Mango Trail, Attorney Jung stated for clarification that the Commission wants access, not to survey the County' s property, but to identify. He asked if the right- of-entry request is for the Commission, or for Ms. Sadora and Les Milnes. Mr. Evslin replied he would think it ideally be the Commission and Ms. Sadora, and Mr. Milnes; however, it could just be Ms. Sadora and Mr. Milnes . Attorney Jung stated if the Commission wanted to do a site visit, there is always the availability to do a limited site visit, but he doubts the land owner would want the public to go. There are procedures within the Sunshine Law that allows for such limited meetings to be held that deal with private property. The Commission collectively needs to decide if they Public Access, Open Space & Natural Resources Preservation Fund Commission Regular Open Session August 28 , 2014 Page 8 SUBJECT DISCUSSION ACTION want to go as a body, or just send Ms. Sadora, Mr. Milnes, and Attorney Jung to take photos of the path. Mr. Evslin stated if it were equally doable for all commissioners to go, he would personally prefer that. R. Blake stated it would also be his preference to go as a Commission. Attorney Jung suggested they do two letters, one to request right-of-entry with the intent to locate and identify the County' s P- 1 easement, and another for right-of-entry onto the Mango Trail to evaluate whether it would be in the interest of the Commission to pursue acquisition or condemnation. Ms . Kallai stated she believes Mr. Somers is coming up for his sixth annual report next month, and suggested they include these letters as part of that annual report to show all these requests have been made for which they have not received any responses. She thinks there has been some action on Kahili Quarry Road with the crush coral. Attorney Jung stated the Commission had requested an update on that, which he will be providing. Ms . Kallai stated there are three distinct situations on this property: 1 . The P- 1 easement that the County already owns 2 . The Kilauea Falls that they want to acquire 3 . Kahili Quarry Road needing to be crush coral She stated both of these agenda items are addressing the Falls, and did not mention anything about P- 1 , which she feels is where the confusion came from. Attorney Jung suggested the Commission approve the letter for the P-1 easement to go out, and then give authorization for he and Ms. Sadora to use the same language to request access for the Commission to do an evaluation site visit of the Mango Trail, which can be conveyed to the land owner' s representative as well. Public Access, Open Space & Natural Resources Preservation Fund Commission Regular Open Session August 28 , 2014 Page 9 SUBJECT DISCUSSION ACTION Ms . Hayashi expressed her confusion, stating she thought Mr. Evslin wanted a broader interpretation, noting he mentioned there are five trails. Mr. Evslin stated for clarification that what they have heard from KNA is the Mango Trail is the best out of the five. Ms. Sadora informed Attorney Jung that prior to his arrival they amended the letter to include Mango Trail. She asked if that motion needed to be taken back. Attorney Jung stated they can go ahead and do it that way, but cautioned they may get approval on one and not the other. Ms . Sadora explained the content of the letter as was approved. Attorney Jung pointed out a problem with the technical language of the letter needs to be different, and stated the way they can procedurally unwind it is to do a motion for reconsideration of that motion, and then approve a P- 1 letter, and make a separate motion to approve the Mango Trail letter. Mr. Evslin asked to clarify that the P- I letter would be for Les to go to the site and survey it, and the Commission would not have to be involved in going, and the only request that would involve access for the Commission to go to the site would be the Mango Trail letter to which Attorney Jung Mr. Evslin moved to reconsider the motion. Ms. stated yes . Dela Cruz seconded the motion. Motion carried 5 :0. Attorney Jung explained this now opens up the previous motion to amend Ms. Hayashi moved to accept the P- I letter. Mr. the P- 1 letter, which they can move to accept. Evshn seconded the motion. Motion carried 5 : 0. i Attorney Jung stated another motion needs to be made requesting that he and Ms . Sadora do a site visit on behalf of the full Commission at the location of the Mango Trail off Kahili Quarry Road. In response to Ms. Public Access, Open Space & Natural Resources Preservation Fund Commission Regular Open Session August 28, 2014 Page 10 SUBJECT DISCUSSION ACTION Hayashi, Attorney Jung stated it would be a limited meeting, and if they would like it to be open to the public, it would be up to the land owner as they control the property, but would involve a whole other process of liability waivers, etc. In response to Mr. Evslin, Attorney Jung clarified that the Commission would open the public meeting here, and take public testimony if any. However, when once they leave the public meeting to go to the site and enter into the limited meeting, there can be no discussion until they return to the public meeting. R. Blake asked if they can photograph to which Attorney Jung replied they would need to receive Mr. Evslin moved to .send .a second letter permission from the land owner. requesting access from the Mango Trail to Kilauea Falls for a site visit. Ms . Dela Cruz seconded the motion. Motion carried 5 :0. Mr. Evslin reiterated his request to Attorney Jung to have an action plan put together by the Attorney on potential steps they would need to take should they receive no response from the land owner. R. Blake stated he feels that could still be handled with an agenda item at the next meeting. Attorney Jung stated they cannot anticipate what kind of response they will receive; however they can come up with an action plan to present at the next meeting. F.2 . Update on 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 options to Kukui `uia Bay (previously postponed) Attorney Jung stated there is no real update. He has been communicating with the Planning Director, and the Managing Director. The Planning Director is fine with sending a recommendation out, but procedural Public Access, Open Space & Natural Resources Preservation Fund Copunission Regular Open Session August 28 , 2014 Page 11 SUBJECT DISCUSSION ACTION requirements require him to go up to the Mayor. The Mayor has had discussions with the land owner, but he has not made a formal decision on his position on what the resolution will be yet. However, once that is finalized, it could get sent to the County Council. Mr. Evslin stated he thinks the last meeting that this was discussed, the Commission approved a letter to Council with an update on where they are at. He asked if they have received a response. Attorney Jung explained the protocol, noting this body is an advisory committee to the Planning Department, and before anything goes to Council it gets routed to the Mayor' s office. Mr. Evslin asked to clarify that the dossier cannot go to Council to which Attorney Jung replied the original dossier had gone to Council, but the actual resolution itself is a full Council action item that needs to first go through the Mayor' s office. Mr. Evslin stated for clarification that all the Commission did was to say they wanted to send a letter to Council to let them know what had gone to the Administration. Ms. Sadora stated she thought what was approved was the actual packet. Attorney Jung advised they go back and check the minutes. Ms. Sadora clarified that the memo they are referencing is a document that was requested by, and submitted to Administration for their review. Attorney Jung stated the Planning Director needs to be made aware of that to ensure he can go through his proper protocol . Attorney Jung commented they have been having difficulty ironing out some of the issues with protocol. Ms. Sadora added Commissioner Gegen expressed very strongly his desire to not have anything held back from getting to Council, but she noted that memo was written at the request of the Administration. The motion was for it to go to Council, but the communication they received from the Department was an issue with Public Access, Open Space & Natural Resources Preservation Fund Commission Regular Open Session August 28 , 2014 Page 12 SUBJECT DISCUSSION ACTION protocol . Attorney Jung stated he has no problem with the memo going to Council as he does not see it as privileged information. Once the Planning Director signs it, it can be sent to Council. Ms. Sadora stated the Commission would receive an update on whether or not that communication has gone to Council at the next meeting. Attorney Jung suggested an update via email could be sent out for informational purposes only. FA.Update on pedestrian public access involving Falko Partners subdivision in the Waipake ahupua' a Attorney Jung provided an update to the Commission stating with the proposed easement along the eastern boundary line, there was an issue with getting an additional swath of land in the area that displaces onto the shoreline. An additional easement document is being prepared for that "apron" area, which is supposed to be transmitted to him this week. The matter was scheduled to go back before Council on September 10, but they are working on pushing it to the following meeting as two Planning Committee members as well as the Planning Director, Ms . Sadora, and Attorney Jung will be unavailable. It is still in the Planning Committee, and they have yet to decide whether they will accept the easement or not. Referencing Tom Pierce' s presentation, Mr. Evslin asked if he could speak on the alleged alaloa to which Attorney Jung replied yes, as long as it is related to the Falko property. Mr. Evslin mentioned Mr. Pierce' s idea to move forward, which would involve communication with the land owners Waioli Corp. and Falko Partners. He asked given the 1892 Highways Act as well as the fact that there is a map in existence from before 1892 that shows the alaloa, and the potential legal precedent for the alaloa, could they facilitate dialogue with the land owners via letter. Public Access, Open Space & Natural Resources Preservation Fund Commission Regular Open Session August 28, 2014 Page 13 SUBJECT DISCUSSION ACTION Attorney Jung replied it may be difficult, noting DLNR has located the area they believe the alaloa to be, and the land owner has prepared a report as to where they think the alaloa is. He is unsure they would want to engage that discussion with the Commission since they anticipate it going straight to litigation, but they could always ask. Mr. Evslin asked whether the DLNR location of the alaloa is different from the land owner's location to which Attorney Jung replied he was only told that a report had been done, which was supposed to be sent to him, but he hasn't received it yet. He stated DLNR focused more on the Waioli property, but he is unsure if they are willing to continue on through that. Mr. Evslin requested that the Commission be kept informed on what is happening with this, and should there be a role for the Commission, they can jump in. If they feel litigation could be on the horizon, the land owners may be more willing to talk to the Commission to avoid litigation. R. Blake stated they could always continue with this item at that junction, noting at some point of obtaining the access, they will need to identify the true intersection of the easement and the alaloa. Mr. Evslin requested they Mr. Figaroa entered the meeting at 2 : 00 p.m. , continue to be-updated if there is any action on that. and resumed the meeting as Chair. At the request of Mr. Figaroa, Attorney Jung provided an update on what the Commission had just discussed regarding this item. Mr. Figaroa asked whether the original section that met up to the cliff is State land anyway to which Attorney Jung replied it deposited on State land, but they would have to build the trail out anyway when they obtained the land. The land owners were willing to base it on the natural contour of Public Access, Open Space & Natural Resources Preservation Fund Commission Regular Open Session August 28, 2014 Page 14 SUBJECT DISCUSSION ACTION where it stepped down onto the shoreline where State would then have jurisdiction. Mr. Figaroa asked for clarification that they would have to build a trail on State land if they had proceeded that way, but now they are doing a whole different route for which the County is working on all the documents, and metes and bounds for that; once that is approved, they will proceed. Attorney Jung stated the County does not do the metes and bounds because the land owner is giving it to the County; their surveyor will do the metes and bounds description, hand it over to the Attorneys for legal review, which will then move up to Council as they are the only ones that can accept easements into the County. Attorney Jung further explained the Council acts on the legal document for the acquisition of land, which then becomes an asset of the County, and then Council has to act on taking in that asset, which is the land itself; in this case, an interest of right to use. The Commission received testimony from Hope Kallai who informed the Commission that there is a letter that could be written that would be fairly easy right now, noting that this budget year the Legislature has approved $ 170,000 for the alaloa on Kauai to survey the alaloa through private land. This Commission could request that money be spent quickly because of the pending, imminent development, which she feels is entirely within the purview of this Commission. In response to R. Blake, Ms . Kallai explained the State has allocated $ 170,000 for this, and the County Planning Commission can make a request for it to be spent soon. Attorney Jung clarified the money is not corning into the County, it stays with DLNR, therefore, the County has no control over it. Ms. Kallai stated the request would trigger an archaeological assessment of the trail, which is Public Access, Open Space & Natural Resources Preservation Fund Commission Regular Open Session August 28 , 2014 Page 15 SUBJECT DISCUSSION ACTION what is needed. R. Blake asked to clarify that the Planning Department would have to make that request to which Ms. Kallai responded, they just have to be in support of it, and that it be done expeditiously. Attorney Jung explained different ways the Open Space Commission could advocate for the use of that money toward this alaloa, but it will essentially function as testimony to DLNR as they are the responsible party. If the Commission wishes to review the bill, it can be provided at the next meeting. Mr. Figaroa stated that would be great as it will allow them to see what is out there to educate themselves. Ms. Kallai stated the problem with these allegations is with the exact location of the trail. She provided a background on the alleged alaloa location for the new Commissioners. Some property owners allege the alaloa is at the boulders in the splash zone on the ocean, others allege it is actually on Koolau Road, and now DLNR is saying the alaloa is really 1 ,000 feet inland, which puts it in the middle of all the proposed homes for this subdivision. There is a great need to locate this. There was a lot of discussion on a certified shoreline, and the easement going down to the certified shoreline, but the last shoreline certification was done in 2009 . Ms . Kallai provided some maps for the Commission' s reference. Ms . Kallai stated they cannot really move forward until they get a current shoreline certification, and proceeded to explain the process by which that is done. She stated this project has been "on the burners" for over a decade, and the land owners know they have to give public access, yet a year later they still do not have any maps . She questioned why this $70,000,000 project does not have adequate maps being presented; how can the Commission make a decision about locating a trail to the shoreline if they don' t know where the shoreline is? Public Access, Open Space & Natural Resources Preservation Fund Commission Regular Open Session August 28 , 2014 Page lb SUBJECT DISCUSSION ACTION Mr. Figaroa asked who is responsible to create the shoreline certification; is it the State? Ms. Kallai stated most of the time the project surveyor does it, and then the State surveyor reviews and corroborates it. She noted, based on the maps she provided, it has been adjusted two or three times within one year. She expressed her confusion on why they do not have a shoreline certification on this project yet. The Commission received testimony from Tim Kallai who concurs with what Hope Kallai has presented. He stated they have been asking for a shoreline recertification since 2009, noting they are only good for one year. According to the last survey, the shoreline was up on the bluff. When they say they are gifting us something by giving us this little apron to easily get down to the trail they are supposed to use, he gets upset as he does not see it as a gift when it is something the State already owns . He has difficulty with this concept, and they still have not gotten clarity on it though they have asked time and time again from both County Council and developers. He is unsure how all of this is unfolding in terms of facts or truths, and he gets upset at the concept of the land owners gifting the County something they don' t even have the right to do. Mr. Kallai stated he would appreciate if the Open Space Commission, as a recommending body, can make a presentation to the County Council to ask for that clarity required to move forward properly. He also noted there has never been a cultural impact statement, or ES on this project; it is duly lacking. As this easement is going down into the conservation district, there will have to be some sort of permitting process, which will trigger the effects as to whose kuleana it will be. R. Blake commented he thinks it may be a matter of transfer of ownership . Ms. Kallai stated that is what she wanted to clarify as she recently found Public Access, Open Space & Natural Resources Preservation Fund Commission Regular Open Session August 28, 2014 Page 17 SUBJECT DISCUSSION ACTION out that there is a way to talk about the alaloa without locating it; an acknowledgement that you know it' s there though you don't know where, and when the time comes to talk about it, they will all do so . R. Blake commented that is the point he was trying to make earlier that they need to identify the intersection between the two paths . Ms. Kallai mentioned exactly where the trail is will determine if it' s in the SMA or the CD, which is what Mr. Kallai spoke of. Mr. Figaroa stated they need to determine where the Commission fits in this whole issue. As a recommending body, as Council is having discussion, they need to make recommendations as necessary. However, to define the location of the alaloa is out of the scope of this Commission. He thinks the extent they can reach is in advocating for the proper steps to be taken prior to any official decision being made. R. Blake stated he still feels they should proceed with getting the access open, and let people know there is an intersection there yet to be defined. Once that access is agreed upon, they must ensure there is an opening in the fence to accommodate that. Mr. Evslin stated there are two issues : one is crossing the alaloa and making sure it doesn't hamper any future efforts, and the other is that even with the apron, they are still ending up in the high surf line, and walking the 150 feet to get to the beach. He asked if the real issue is with the fact that when there is high surf activity, there will be no beach access to which Ms. Kallai replied yes. She added the environmental assessment is very crucial because of the monk seals and turtles, which also bar beach access when the taped barriers go all the way up to the bushes. Ms. Kallai provided a copy of a letter from Sam Lemo (sp?), and read the last part into Public Access, Open Space & Natural Resources Preservation Fund Commission Regular Open Session August 28, 2014 Page 18 SUBJECT DISCUSSION ACTION the record as follows : As this is a temporary pathway, should a permanent, cleared pathway easement be desired, further authorization shall be required. She questioned whether the County would need to obtain the permits, and stated it is confusing. Mr. Figaroa asked when this would appear before Council for discussion to which Ms. Sadora stated it was supposed to be on September 10, but it is still in Planning Committee, and may be pushed back; they have not received final word yet. Mr. Figaroa stated a letter could be issued to Council stating what was discussed in terms of doing the proper surveying to determine the intersection before moving forward. Mr. Evslin stated some council members have expressed hesitation with accepting the easement because of having to walk 150 feet through the high surf line, and if the easement ended up hitting the alaloa, and you turn left there, the alaloa deposits you right on the beach, avoiding the high surf. If he is not mistaken, that is the solution Council is looking at. He is unsure how to advocate that the shoreline setback be done, and express. as a body that should the shoreline setback fall in the high surf line, there is no access to the beach in the event of high surf. Mr. Evslin further stated that the Council could not even accept a portion of the alaloa because it could theoretically be on State land, and feels there needs to be more clarity, and direction for them to advocate for. Mr, Figaroa pointed out State land is the high water mark, so it is already public domain, and if Council proceeds with that discussion, this body could advise them not to make a decision on something that is already ours. Public Access, Open Space & Natural Resources Preservation Fund Commission Regular Open Session August 28, 2014 Page 19 SUBJECT DISCUSSION ACTION However, he thinks the Council is not educated in that area, and need to be made aware that this is ours. Mr. Evslin pointed out that Council' s discussion was access to that point, which was the cliff, and then they have the apron. However, that is still not adequate if it is within the shoreline setback area. Mr. Figaroa suggested they advise Council to work hand in hand with the State to get the metes and bounds of the alaloa officially settled, and from there go along with what currently exists there, which they do not even need to acquire as it is already public domain. They just need to know where that public domain is. R. Blake stated he feels it goes back to Ms. Kallai ' s recommendation to have it surveyed, and he feels they should look into how to access the State allocation to survey the area. Mr. Figaroa suggested now that there are State fiends available, one way is to advocate to acquire monies, another is to encourage them to get it done so that the State uses their own money to use their own workers to do their own job. Mr. Evslin stated he agreed, and feels they should make a request to DLNR to get the survey done as soon as they can. However, if Council will be taking it up in the next month, there is no way a survey will be anywhere close to being done. He feels they need to proceed with both aspects of it, and make two recommendations. Mr. Figaroa asked to clarify what Council ' s discussion is going to be about. Attorney Jung stated Council will just be accepting the easement, reminding the Commissioners that the County takes the land as an interest; that is what an easement is. If the State comes in and says this is the alaloa, that will not affect the title because the State will just take what is theirs, Public Access, Open Space & Natural Resources Preservation Fund Commission Regular Open Session August 28 , 2014 Page 20 SUBJECT DISCUSSION ACTION and the easement will break at public access point, and restart at the next line where the easement starts . The County easement is irrelevant to the alaloa issue. The easement will continue straight down mauka to makai — vertical — versus if an alaloa is located it will be horizontal. Mr. Figaroa asked to clarify that Council will be discussing the easement that is State' s land to which Attorney Jung replied no . He explained for clarification that the County has the ability, through the subdivision ordinance, to claim an easement for access . If it' s a subdivision of more than six lots, they can ask for a dedication of land, of which they can utilize 10 feet of the private land owners land for public pedestrian beach access, which is what happened in this case. Currently, they are at the point where the Council will be accepting an interest in the land through a legal document called an easement for public pedestrian access to the beach from Koolau Road. If the State were to claim an alaloa, it would essentially create new lines through the property in addition to where the easement area already is. Mr. Figaroa asked to clarify whether the shoreline setback has already been defined to which Attorney Jung replied the defined certified shoreline has. Mr. Figaroa asked for clarification that the easement the land owner is granting the County is within the certified setback to which Attorney Jung replied yes, it is in the setback, but there is no infrastructure going in there. Attorney Jung explained what is allowed in the setback area, which is not the issue•, the certified shoreline is the issue, noting the certified shoreline to the water line and out into the ocean is where State has jurisdiction. Above the certified shoreline is private property, but there are setback requirements for certain types of structures that are not allowable in the setback area. The setback is irrelevant to the easement because all it is, is a natural undeveloped trail. Mr. Figaroa asked to clarify that the easement is already within the certified Public Access, Open Space & Natural Resources Preservation Fund Commission Regular Open Session August 28 , 2014 Page 21 SUBJECT DISCUSSION ACTION area, and being gifted to the County even though it is already State land. Attorney Jung offered to explain it in a different way. The meeting recessed at 2 :37 p .m. The meeting resumed at 2 :47 p.m. Attorney Jung stated the issue at hand is whether or not a certified shoreline will delineate where the access will be; that point is irrelevant, which will be explained. Attorney Jung explained for example if there is a lot with two boundary lines, there are two ways to identify the boundary lines along the shoreline, which is done within the deeds of the property acquired. There is a definition that states the makai property line goes with the shoreline, or another definition that is a metes and bounds description of where the property line will be. There has been a recent case that says even with the metes and bounds description, the State can still claim where the certified shoreline is. It doesn't matter where the certified shoreline is because what they are currently dealing with is an easement for access . Easements in and of themselves do not trigger certified shorelines . Looking at part II and III of HRS Chapter 205 (a), which deals with SMA and setback lines . Setback lines have to do with activity and what type of structures are going into the setback area. Here, they are just getting an easement for public, recreational use. Therefore, certified shoreline is not required. The reason it is so important is the access given by the County will remain an unimproved trail; a dirt path. No infrastructure will be going in. Even if some grading work has to be done, it does not necessarily trigger a full certified shoreline because there are exempt activities, and exempt structures that are exempt from the shoreline certification process. Attorney Jung explained the difference between shoreline certifications and shoreline setbacks, and outlined the processes for each, explaining how they tie in with one another. _. I Public Access, Open Space & Natural Resources Preservation Fund Commission Regular Open Session August 28 , 2014 Page 22 SUBJECT DISCUSSION ACTION Attorney Jung continued that is this case, all of that does not need to be done because there are no structures or improvements going in; all they are doing is linking one access point with another coastal access point. He noted the BTC (Beach Transit Corridor) allows under State law the right to traverse (HRS 115) . Referencing the map provided, he pointed out the lateral access . Mr. Figaroa asked for clarification that when this goes before Council, they will discuss accepting that apron, which will contain no structures . Attorney Jung added that if the land owner wants to construct a fence, he has to go through the proper protocol, and if they do any work in the conservation district, it will require a separate permit outside of the County through DLNR. Mr. Figaroa stated his confusion came from the shoreline setback, and questioned that if the easement is already in that, why should there be a discussion for any easement if it is already owned by the public. Attorney Jung stated no, and reminded the Commission that the setback area is still private property, but the County designates it a no-build zone. Mr. Figaroa suggested the Commission be educated on the laws to provide a better idea of why they can or cannot do certain things. He thanked Attorney Jung for the explanation, noting he now understands. Mr. Evslin stated he has understood this, and thinks the concern from the community is more with the access being in an area that could be underwater in high surf events, which would mean zero access to the beach. He is unsure what the solution would be other than turning left on the alaloa. Attorney Jung replied the solution would be to not do any i Public Access, Open Space & Natural Resources Preservation Fund Commission Regular Open Session August 28, 2014 Page 23 SUBJECT DISCUSSION ACTION coastal walks during high surf, noting that it would be a rare surf event in this particular area. There may be unusual times of high swell, but the reality is in most cases, they will be dealing with a pretty traversable area that has been historically used by fisherman. At the Kzlauea Neighborhood Association meeting, there was a big discussion about that, with testimony received from someone who stated they had been fishing there for 50 years, and that is the path always used. He stated there must be a sense of reason in this situation, noting that the SMA triggered mauka to makai access to get down to the beach. To ask for more and more would open up a different realm, and it' s not as easy to just say "give us that"; there are protocols to follow, and case law to understand. Mr. Evslin stated he just wanted to reiterate that there are valid concerns, and noted it is not that far to get to the alaloa, and walk 60 feet to the beach. He thinks those concerns should be recognized, but he is unsure whether the Commission has a role in any of that. Attorney Jung reiterated that DLNR has the availability to claim the alaloa. Mr. Evslin stated he feels that any relevant access should have been along this established path; it seems like a funny access to go straight down into the rocky area. He stated that no one is walking to Waipake that would go to the rocky headlands, they're walking to the sand. Attorney Jung stated no, fisherman are going to want to fish right off the rocky headlands, and not go into the shallowest part of the bay. Mr. Figaroa stated that' s fisherman, but what about beachgoers? Attorney Jung stated it was a policy call made by the Planning Commission. W. Evslin asked whether they would be discussing the potential for submitting testimony to BLNR to use the State allocated money to identify Public Access, Open Space & Natural Resources Preservation Fund Commission Regular Open Session August 28 , 2014 Page 24 SUBJECT DISCUSSION ACTION the alleged alaloa. Mr. Figaroa stated he is definitely for that. Attorney Jung stated what was discussed was to bring the bill in as an agenda item for the Commission to make a recommendation after reviewing it. Mr. Evslin asked if there were a way to make that request without putting it on the agenda considering the next meeting is a month away. Attorney Jung stated before the Commission can take action on anything, it must be properly agendized to allow the BLNR, and everyone else the ability to have knowledge of the item prior to the meeting, and come testify if they wish. Any action taken by this body must have a specific item listed on the Mr. Figaroa requested that item be included on agenda such as a letter of support. the next meeting' s agenda. F. S . Update on Commission education topics Ms . Sadora stated the update for that falls with Item F . 6 . She informed the Commission that she attended a grant writing workshop this week in which she was able to have follow up conversation with Rhoda Libre who is willing to do a presentation on the workup for the Salt Pond area as requested by this Commission. That can be on the agenda for the 25t" meeting if the Commission would like. • Discussion on acquisition process involving willing land owners Ms. Sadora stated this had to do with language for the website, which the Department is still working on. Attorney Jung stated one of the issues they are consistently seeing is that they are going after difficult pieces of property and situations where there are no willing land owners, and claims to land that would take a significant amount of litigation and manpower to go forward on. One of the things Public Access, Open Space & Natural Resources Preservation Fund Commission Regular Open Session August 28, 2014 Page 25 SUBJECT DISCUSSION ACTION they should look at as a body is how to engage the community to find willing land owners to try to avoid litigation. Unfortunately, some of the best places require condemnation. Ms. Hayashi stated she thought they had discussed having an education topic regarding liability at a past meeting. She feels that is very important as they are trying to open up access to all these trails, and feels they need a better understanding of that as well as the maintenance of it. Attorney Jung asked Staff to include that as an Executive Session item on the next meeting' s agenda. Mr. Evslin asked why that needed to be an executive session item to which Attorney Jung replied because there is case law that he will be referencing and advising the Commission on. F.6 . Discussion on acquisition of land for open space preservation to create a buffer at Salt Pond Beach Park • Proposed draft letter to Senator Ronald Kouchi requesting assistance with an executive order to acquire State of Hawaii land to create a buffer area near Salt Pond Beach Park • Proposed draft letter to the Department of Land and Natural Resources to block motorized vehicles from driving on the beach and near the southern point at Salt Pond Beach Park Ms. Sadora stated both of these items have been continually deferred based on public testimony at past meetings just until these huis at Salt Pond would be able to do a presentation before this body. She thinks they believe any action taken by the Commission may jeopardize what these huffs may already be doing with their own efforts. If the Commission Public Access, Open Space & Natural Resources Preservation Fund Commission Regular Open Session August 28 , 2014 Page 26 SUBJECT DISCUSSION ACTION would like to include a presentation on the 25', which one of the groups have agreed to, they may be in a position then to take action, or they can defer it again. Ms. Sadora noted the Commission has given Staff the responsibility to coordinate the presentations, which is what has been communicated to those groups. She commented that if the Commission knew what the groups have been doing entailed, they may reconsider some of the things they want to do. Ms. Hayashi asked to clarify whether the letter to Ron Kouchi will be deferred to which Ms. Sadora replied yes, the Commission has deferred all Ms. Ono moved to defer agenda item F. 6 . R. of Item F. 6 . until after the education portion. Blake seconded the motion. Motion carried 6 :0. G. New Business Update and discussion on access to Kahili QugM Road Attorney Jung read the condition from the current set of permits as follows : The applicant shall provide roadway improvements to the entire length of Kahili Quarry Road as may be authorized by its present owners. Said roadway improvement should include clearing, and drainage improvements as may be permitted by the present road right-of-way width. The use of crush coral would be acceptable to retain a rural ambiance. The use of gravel and chemical sealant shall not be permitted. As represented, applicant shall maintain this road right-of--way. Said improvements shall implement and utilize best management practices as recommended by the Department of Public Works. No weekend or holiday work shall be permitted. Attorney Jung stated he asked the applicant' s representative for the status of any potential meetings or discussion, the question being should they go all the way down to where the old quarry was almost to the beach. Public Access, Open Space & Natural Resources Preservation Fund Commission Regular Open Session August 28 , 2014 Page 27 SUBJECT DISCUSSION ACTION However, from the last site visit, the property line ends, and it becomes US Fish and Wildlife property at a certain point, which would be unmaintained. What he has been told is that the applicant has met with US Fish and Wildlife, and is looking into the issue to see if the applicant can maintain the whole length, though they are not required to. Ms. Hayashi asked if there had been only one meeting to which Attorney Jung replied he was just told they had met, but was not informed whether that meant just one meeting or more. The Commission received testimony from Hope Kallai who stated she has more questions about the ownership of Kahili Quarry Road, and how Pali Moana Corporation acquired the makai portion that includes the quarry, and the parking lot. How was that part of the alaloa sold to Pali Moana? She stated the Kahili Quarry Road component of the alaloa is 12 or 13 feet that the County holds, but does not end there, it goes to the beach. The parking lot is a very important component as there is no parking along Kahili Quarry Road. They need to discuss every part of this road system. She asked again how Pali Moana got the title to the alaloa, and how was is then sold to US Fish and Wildlife? When did the County acquire the alaloa portion of Kahili Quarry Road? Attorney Jung stated he does not have knowledge of all the land transactions that occurred there, but he does know that US Fish and Wildlife owns the property. He has not seen the deed, so he is unsure if there are any reservations or exclusions in that deed. Ms. Kallai stated she has the deed, and will send it over. Ms. Kallai stated they need the US Fish and Wildlife component to make the whole thing complete. It is critical to determine who has ownership to the historic trail. Ms . Kallai again asked Public Access, Open Space & Natural Resources Preservation Fund Commission Regular Open Session August 28 , 2014 Page 28 SUBJECT DISCUSSION ACTION how it was sold to Pali Moana in the 1980 ' s. Ms. Hayashi asked whether Open Space should be getting involved with the Quarry Road ownership; how does that impact their decisions as an Open Space Commission and issues with access. She does not like to go into other areas that will not be helpful to this body' s decision making. She feels they may be taking up time discussing things they may not have jurisdiction over. R. Blake stated it becomes a maintenance issue, noting there is access to the road, but it is not maintained. Attorney Jung explained what Ms. Kallai is intending to do is encourage the land owner to see if he can get authorization from US Fish and Wildlife to maintain the road. Ms . Hayashi asked what this Commission's role is in that to which Attorney Jung replied he did not know. Mr. Figaroa asked whether the County side was being maintained to which Attorney Jung replied the County side is supposed to be maintained by Mr. Somers, and a portion of it has been; they are working on doing the next part during the next phase. Mr. Figaroa asked if there is an ETA on when that will be done to which Attorney Jung stated he did give the land owners representative a heads up that this would be coming up, and had hoped he would have been here. Mr. Evslin stated in response to Ms. Hayashi he feels the Kallai 's are coming before this Commission out of frustration, feeling that there is nowhere to go, and he feels this Commission is the sounding board to get things facilitated even though they all know they have no power in any of it. Ms . Hayashi stated her feeling is that there should be somewhere they can go to noting it seems like they are going around in circles. Mr. Evslin Public Access, Open Space & Natural Resources Preservation Fund Commission Regular Open Session August 28, 2014 Page 29 SUBJECT DISCUSSION ACTION stated he feels that in this body ensuring open space, the Kallai 's are coming before them to ask how they can facilitate access. Ms. Hayashi stated she can see how they can do that with reference to their previous discussion on P- 1 . Mr. Figaroa stated it comes down to their focus on maintaining open space for the County, and they so happen to have become a platform for different community associations as well, but he does see Ms. Hayashi ' s point of staying focused on what this body' s mandate is, and not deviate from that. Mr. Figaroa further noted as a recommended body, if it is a County agency, they can always draft a letter and recommend. H. Next meeting Chair Figaroa announced the next meeting date is on Thursday, September date and agenda 25, 2014, at 1 : 00 p.m. at the Mo' ikeha Building — Meeting Room 2A/2B . topics for discussion Mr. Figaroa stated everything would remain on the next agenda, and noted the new items to be included as follows : • Discussion on a letter to DLNR for support of the use of legislative appropriations for the alaloa on Kauai Mr. Figaroa suggested that the next agenda include discussion on the possibility of having the audio recordings of the meetings available online to ensure the right information is out there. Attorney Jung explained for the Commission' s understanding that they have special contracts with service providers to do video, but it is very limited, and he does not know if that can be extended here. For the audio itself, the only requirement under Sunshine Law is that a written record of the minutes be provided. He is not sure if the Planning Department is willing to expend additional funds to create a whole new audio posting process . Mr. Figaroa asked whether that would be considered Administrative funds under the Commission for which he knows there is money. Attorney Jung stated Public Access, Open Space & Natural Resources Preservation Fund Commission Regular Open Session August 28, 2014 Page 30 SUBJECT DISCUSSION ACTION they can look into that. R. Blake asked whether the audio recording used to make the minutes is available to the public upon request to which Attorney Jung replied they could make special accommodations if the request came in, but they don't normally keep the audio files once the meeting is transcribed. Mr. Figaroa asked how long the audio was kept to which Attorney Jung replied until the written minutes are approved. Attorney Jung stated the only legal requirement is to have written minutes, which do not have to be verbatim, and can be just a summary. R. Blake stated he does not feel that needs to be on the agenda if there is an alternative way for visually impaired individuals to access the minutes by having it read to them. Mr. Figaroa stated many of the questions have been answered. Ms. Hayashi asked whether there has been a request that is prompting this discussion to which Mr. Figaroa replied yes, stating there have been others who don' t come out to meetings that have expressed discrepancies when reading the minutes, which prompt suspicions or questions. He wanted to see if it could be made available, noting it shouldn't be very costly to do. R. Blake stated he does not want it to impact their already scrutinized budget. Mr. Figaroa stated with technology today, he feels it should be relatively inexpensive and easy to do. He reiterated that it has been brought to his attention for the past five months by a number of different people. Ms. Hayashi stated she does see his point considering they are a public Commission. She does not want to add expenses, but she does see where he is coming from. I. Adjournment Chair Figaroa adjourned the meeting at 3 : 31 p.m. Submitted by: Reviewed and Approved by: Cherisse ZaimaZ,5Aff Support Clerk Joseph Figaroa, Chair Public Access, Open Space & Natural Resources Preservation Fund Commission Regular Open Session August 28, 2014 Page 31 ( ) Approved as circulated { ) Approved as amended. See minutes of meeting.