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HomeMy WebLinkAbout2013-10-10 Open Space Commission Minutes Appoved PUBLIC ACCESS , OPEN SPACE & NATURAL RESOURCES PRESERVATION FUND COMMISSION REGULAR MINUTES October 10, 2013 Regular meeting of the Public Access, Open Space & Natural Resources Preservation Fund Commission of the County of Kauai was held at the Llhu` e Civic Center, Mo 'ikeha Building, in meeting room 2A/2B . The following Commissioners were present: Patrick Gegen, Chairperson Theodore Blake Luke Evslin Dorothea Hayashi John Lydgate Absent and excused: Joseph Figaroa,'Vice Chairperson Linda Dela Cruz Maurice Nakahara The following Staff members were present: Planning Department Nani Sadora and Duke Nakamatsu; Boards and Commissions Staff: Mercedes Youn and Deputy County Attorney Ian Jung. Public testimony: Hope Kallai and Peter Waldau A. CALL TO ORDER Chair Gegen called the meeting to order at 1 : 07 p .m. B. APPROVAL OF THE AGENDA The agenda was approved as circulated. On a motion made by Commissioner Lydgate and seconded by Commissioner Evslin to approve the agenda as circulated, the motion carried unanimously by voice vote (5 : 0) C. ANNOUNCEMENTS Commissioner Blake announced that he would be leaving the meeting shortly after 2 p.m. Commissioner Evslin noted that he would also have to leave at 3 :45 p.m. Page 1 of 11 Chair Gegen announced that he would be off island for the next two weeks and would not attend the October 24th meeting. D. APPROVAL OF MEETING MINUTES Regular meeting minutes of September 12, 2013 , Chair Gegen questioned whether Staff had the chance to send a follow-up letter to the State requesting clarification regarding its response addressing public' s concerns and contrary assertions relating to the Historic Alaloa trail. Deputy County Attorney Jung stated that at this point rather than addressing that issue he would prefer that the Commission make any amendments to the minutes for clarification purposes and that any follow-up issues relative to agenda item F1 . (b) can be discussed later. Chair Gegen stated that he just wanted to make sure that the Commissions requests were being followed through. Deputy County Attorney Jung replied that if the Commission has any amendments that they would like to make in terms of clarification or verbiage that may have been misconstrued by the minute taker, it should be done at this time. Chair Gegen noted that the minutes were pretty accurate and that he would call for a motion to approve the minutes as circulated. On a motion made by Commissioner Lydgate and seconded by Commissioner Hayashi to approve the meeting minutes as circulated, the motion carried unanimously by voice vote (5 :0) E. RECEIPT OF ITEMS FOR THE RECORD Deputy County Attorney Jung noted that the following communications needed to be received for the record : 1 ) Memorandum from Planning Director Michael Dahilig to the OSC regarding the Historic Alaloa trail in Waipake, Lepeuh and Ka' aka' aniu regarding requested from Mr. Spacer dated 8/28/13 ; and 2) A written request from Mr. Spacer dated 10/9/13 . Chair Gegen called for a motion to receive the communications for the record. Commissioner Lydgate made the motion to accept the items . Commissioner Evslin seconded. Chair Gegen asked the Commission if they wanted to continue the discussion before he called for the vote. Commissioner Lydgate voiced his concern that Mr. Spacer' s request for special counsel may set precedence and that he was under the impression that the Sierra Club and the Surfrider Foundation have their own legal counsel and money to pursue this type of issue. Deputy County Attorney Jung stated that the Commission should receive the communications for the record and then discuss the matter under agenda item F41 On a motion made by Commissioner Lydgate and seconded by Commissioner Evslin to accept the items for the record, the motion carried unanimously by voice vote (5 : 0) Page 2 of 11 F. UNFINISHED BUSINESS 1 . Review and discussion on past recommendations and prioritization of the Commission ' s work plan/timeline of events and activities through 2013 including_ a. Status on acquisition plan 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 or alternate access options . Chair Gegen noted that it is his understanding that the Commission is still waiting for an update from Deputy County Attorney Jung regarding a response from the landowner(s) . Deputy County Attorney Jung stated that he did not receive any response from the landowner(s) except for a phone call. He explained to the Commission that the letters were not sent and that he only realized it after he left for paternity leave. He assured the Commission that he would send the letters by next week however, given the phone call he felt that the Commission should look into other options because certain members of the community, including the Council, have raised serious safety concerns. He stated that the Commission should look at other alternative accesses from either the Spouting Horn side or looking at pursuing a possible condemnation action through the former Hoban property now, the Leight Property. Commissioner Blake asked if he was suggesting that the OSC forego its efforts to obtain the subject easement and look elsewhere. Deputy County AttorneyJung stated that at this point, there is no easement and that the discussion should be focused on trying to get access down to Kukui `ula Bay. He stated that the Commission should be aware that the situation is going be an uphill battle against the Leight Family Trust based on the findings in the County' s report regarding the Leight Family Trust counter appraisal . He pointed out that the Commission has the option to place the access on the Spouting Horn side; however, it is going to take a lot of work because the County has closed off the area to prevent the public from going down to the Spouting Horn. He stated that there is another area where the public could traverse down to the pine trees and continue walking along the rocky coastline to avoid walking on the boulders. Deputy County Attorney Jung asked Ms. Sadora for her input in terms of the walking distance to which Ms . Sadora replied that the walk is nice but she is not good at judging distances . Chair Gegen asked if it was a safer access. Deputy County Attorney Jung stated that it is safer however, parking is an issue. He stated that there are two fallbacks if the Commission decided to place the access near the Leight Family Trust property; the first one is a small vacant lot with a stairway leading down to the rocky coastline where the public would have to traverse over the boulders, and the other is the lack of parking. Deputy Jung stated that if this is what the OSC wants he would talk to the County Engineer to see whether the area could be opened however, it would take an action from the Council which requires a level of detail in terms of applying for a permit with the Office of Coastal Conservation Lands, Page 3 of 11 Commissioner Blake noted that he is confused as to whether the opening will be in the area next to the boulders or the Spouting Horn. Deputy County Attorney Jung stated that the opening would be near the Spouting Horn. Commissioner Blake asked whether the Commission would run into federal regulations. Deputy County Attorney Jung stated that the concern is really with the State' s OCCL agency because if the County decides to put up a fence to divert the public from going down to the Spouting Horn the County will need a permit and authorization from the State. Commissioner Blake asked what other reason is there for putting up a fence if only to keep the public out. Deputy County Attorney Jung replied that there was thought to put up a fence, but not all the way down to the Spouting Horn because it would cause an official impact. Commissioner Lydgate questioned whether it would be safer to put the fence in the vicinity of the Spouting Horn. Deputy County Attorney Jung explained that safety is in the eye of the beholder because there is always the question of what' s safe. Commissioner Lydgate voiced his concerns that having a public access that is not safe is not a good idea. Commissioner Lydgate asked if there are warning signs posted in the area. Deputy County Attorney Jung stated there are warning signs to the public to keep from going down to the Spouting Horn area. Commissioner Lydgate voiced his concerns that if the County Engineer decides to open up the area it could turn into a dangerous situation to which Deputy County Attorney Jung agreed; however, the only difference is that the public would have to walk on the lava rocks versus walking on boulders. Commissioner Blake asked whether the access would start at Spouting Horn side and end at the former Hoban property. Deputy County Attorney Jung pointed out that he has a map of the area and could run up to his office to get it. Commissioner Lydgate stated that it was not necessary because he was only asking a question. Chair Gegen asked the Deputy if he could bring the map to the next meeting, and hopefully by then he would have a response from the landowners. Commissioner Blake asked what other options are available if the Commission decided not to pursue the access. at the former Hoban property. Deputy County Attorney Jung stated that the other option is to go for a condemnation against the Leight Family Trust. Commissioner Blake asked for what purpose because there is still the issue of the boulders to which Deputy County Attorney Jung replied for access . Commissioner Blake asked by condemning the property how would it keep the public from walking onto the boulders. Deputy County Attorney Jung explained that there are three (3 ) scenarios that he could think of that the Commission might want to consider, one of which he refers to as a historical distance in terms of a historic consensus that was done in 2005 to 2006 by the Koloa Community Association in which the body worked through the Kukui `ula zoning amendment to identify and placed a condition that Kukui`ula would pay someone to go after a beach access in the K61oa area. He explained that the area was identified through the former Hoban property which is now owned by the Leitht Family Trust, which is a sixty (60) foot long piece of land that sits adjacent to an old drainage easement that the Leight Family Trust wanted to convert to a public pedestrian beach access . But the plans fell through for a variety of reasons and then later reappeared with the help of former OSC Commissioner Tessie Kinnaman who urged the OSC to continue its pursuit of the access, which resulted in a dossier to the County Council who encouraged the OSC to go after the property and later submit a report. He stated that after the report and appraisal was done the Leight Family Trust made a counter appraisal of $ 600,000 . He stated that given the high price, Page 4 of 11 and the potential of it going into a contentious condemnation type of proceeding, the next idea was to look for other alternatives in which the OSC found a small vacant lot with a stairwell that lead down to the boulders where the public would have to walk about two to three hundred feet to get to the sandy area from the southeast side going west. Deputy County Attorney Jung stated that given the difficulty of trying to get in touch with the landowners the other option was to place the access on the left side of the Spouting Horn parking lot in an area where the local fisherman go to fish, which is left heading southeast to a sandy beach area. Commissioner Blake asked if the vacant lot was former Hoban property to which Deputy County Attorney replied that the Hoban property has a house on it. Commissioner Blake asked if he was familiar with the area to which Deputy County Attorney Jung replied yes. Commissioner Blake stated that it brings up the question of how much money is the OSC willing to spend, and whether or not it warrants spending that amount of money for an access that might not be used often versus spending the money elsewhere. Deputy County Attorney Jung stated that the democratic process is to allow the OSC to make a decision which can be changed to accommodate, but the power of due diligence will give the Commissioners a chance to learn and understand why the prior Commissioners did what they did, and to see where they were coming from. He stated that the OSC must keep in mind that these things happen a step at a time, which in this case the hurdle is to the fight the litigation and what it would ultimately cost. Chair Gegen stated that is the reason the Commission wants the Deputy to send a letter to the landowners to see if they would allow the access through their lot. Commissioner Blake asked whether the cost attributed to the easement would come from Ieukui `ula. Deputy County Attorney Jung stated that is a subsidiary issue because of the way the condition is set-up, and if the money is not used within a certain timeframe the money would have to be dedicated to park improvements . Commissioner Blake asked if the OSC has reached its park improvements stage. Deputy County Attorney Jung said that the deadline has passed. Commissioner Blake commented that most local fisherman know how to get to the beach regardless if there is an access or not and so far, he has never seen anyone lounging at the beach because to him the area is not a conducive place to go swimming. He suggested that the Commission focus its efforts by looking for an area that is user friendly. Chair Gegen pointed out that the OSC is currently undertaking the task of looking for a safer access, and is open to other options worth exploring. Deputy County Attorney Jung stated that he would bring his map to the next meeting and probably schedule an executive session to discuss outlining some of the legal liability issues that comes with creating accesses . Commissioner Lydgate stated that he would like to make a motion to defer the matter to the next meeting. Commissioner Evslin questioned whether the Spouting Horn public access option would go through someone' s property, and whether the discussion is about getting the County to open up the fence. Page 5 of 11 Deputy County Attorney Jung pointed out that what is mainly misunderstood is when people say that they need beach access is really about having a vertical access down to the beach corridor. He stated that in some places there are no beach corridors where one can refer to it as a State property because it' s really a public trust property from the shoreline down to the ocean, which is considered a beach corridor codified under H.R. S 115 . He stated that the OSC could actually traverse to the beach corridor by putting the access vertically down to the beach and then laterally. In this case, the OSC has the ability to go laterally because the access would go along the pahoehoe lava. Commissioner Blake stated that the only way to get to the beach is by walking on the rocks, which is only safe during low tide. He voiced his concerns that he does not want the OSC to get stuck with an access because of precedence over something else. Deputy County Attorney Jung asked if the Commission would like to loop the discussion down to Lawa` i Kai . Commissioner Blake stated that the discussion is going to come up sooner or later because the public input list shows that the Lawa` i Kai becoming a big issue in the community. Commissioner Evslin stated that he felt theoretically, the Commission could resolve the access issue with a cheap to free access by opening up the fence then move on to Allerton' s because he kind of feels that they are separate beaches. Commissioner Blake stated that although they are separate beaches the problem is basically the same. Chair Gegen stated that the OSC could look into what the issues really are, and defer the discussion on Lawa` i Kai until the OSC has had the chance to prioritize its list. Commissioner Blake asked in regard to the former Hoban property, would the OSC have to explain how it is going to get the public down to the beach or can the OSC let them do what they want. Deputy County Attorney Jung stated that it ' s an option. Commissioner Blake voiced his concerns that if the OSC starts to tell the public how to get to the beach it could become a liability issue for the County. Deputy County Attorney Jung stated not necessarily. Chair Gegen stated that the OSC will take all of these issues into consideration and at this point it' s only following through on a request to provide access, which to him makes sense for the Commission to do its due diligence in order to make the right decision; but for now the Commission does not know what these options are and what it entails. He noted that he is aware of the concerns regarding the value of placing a public access in a small area that may not be utilized often, but if the Commission is able to purchase the property at a relatively low cost he would like to follow through on that and honor the wishes of the previous Commission. Chair Gegen pointed out because of the concerns that were raised by Commissioner Blake, and shared by the Commission, he would keep the matter on the agenda for continued discussion at the next meeting with the anticipation of the map and pictures of the access, which will be provided by Staff. Page 6 of 11 b . Status on current state of access at Ka' aka' aniu (aka Larsen' s Beach) Chair Gegen asked the Commission if they had any comments regarding the item. Deputy County Attorney Jung pointed out that there is a need for clarification regarding the access at Ka' aka` aniu because it involves issues pertaining to Lepeuli and Waipake. He explained that the three (3 ) locations serve as a function to get to as Larsen' s Beach, but not the Hawaiian identification name of Lepeuli Beach itself. He stated that because the OSC has placed Ka' aka % anui on its agenda, the Commission can talk about all three locations, but should be aware that the issue is also being discussed at the County Council based on a request for a vertical access through the Kahu' aina Subdivision as part of the subdivision ordinance conditions. He stated that the issue has drawn a lot of public opposition, and that the public wants the issue regarding the alleged historic Alaloa trail resolved first. Deputy County Attorney Jung explained that the reason he referred to the trail as the alleged Alaloa is mainly for slander of title purposes just in case someone decides to launch a claim against somebody because there is no recordation of any map in the bureau or with the land court. He pointed out that the issue of safety was also raised because of the slight slope at the end of the proposed easement, which prompted members of the Council to schedule a site visit to the area to see whether the proposed access leading down to the beach is safe or not. Deputy County Attorney Jung stated that the other issue that involves the access to Larsen' s Beach is the lot access through the Waioli Property, which is a County owned trail that goes left towards the beach. He stated that although the accesses are accessible, the question is whether it is easier, harder, safe, or over grown. He stated that the Ka' aka' amu issue is a fencing issue, which is primarily a State issue because there has been no development planned in the area by which the County can gain access. Chair Gegen stated that relative to the Ka` aka' aniu there are issues regarding the easement and the access lot, which at one point he believes that the Commission had requested that a letter be written to the Parks Department asking them to clean up the access lot to make it passable. Deputy County Attorney Jung stated that the County is working with the Department of Public Works to identify the problem and that he has mentioned it to the Council, which makes it a resource allocation issue because the State has its own trail crew to maintain the trails, and the County has its own roads crew to take care of the roads. He stated that the next level of discussion that will be brought to a head is how to get the money and man power to maintain the trails on a regular basis . He stated that the other issue is getting a stewardship type of agreement where the public can go in and do the work voluntarily, but there are certain requirements that the County will require in order for the volunteers to proceed with the work in terms of real leases of liability. He added that the County Engineer is looking at other issues, and once those come to a head he would invite the County Engineer to a meeting to discuss what next steps are going be taken. Commissioner Evslm stated because the County does not have a trail crew how will the trails be maintained if there are no funds. Deputy County Attorney Jung stated that no one seems to know however, the County did decide to look into the Highway Fund for possible financing, but it was discovered that the Highway Fund was too specific, and therefore the funds could not be used. He stated that at this point, there are no funds to purchase any equipment and pay for the Page 7of11 manpower. Deputy County Attorney Jung stated that one good thing about having the discussion is that it is beginning to turn the wheels on how the County is going to address the maintenance issues and certain liability issues to keep the trail in its natural state. Commissioner Evslin asked if that involves all easements mauka or makai on how it will be maintained. Deputy County Attorney Jung stated that it is hard to say because although the County has a parks crew to maintain the County' s parks it must be made clear that the trails are not under the parks jurisdiction because it belongs to the Department of Public Works . He stated that trails are maintained simply by the way of foot traffic. Commissioner Evslin stated that he noticed at Larsen' s Beach someone is making an effort to maintain the wooden steps leading down to the beach. He asked whether the intent of the Commission is to get the access and place the burden on the County Council to find funds to maintain the accesses. Deputy County Attorney Jung stated that it would fall with the Administration to maintain the trails, but under its new rules the OSC can certainly advocate for certain things. Commissioner Lydgate commented that the discussion sets a good precedence between State and County agencies including other organizations that look after the trails . Commissioner Blake pointed out that any organization who wants to do maintenance work will be asked by the County if it has liability insurance, which to him is the biggest hang up. Commissioner Hayashi stated that she can recall in her younger years when the County and State would hire the youth to clean up the County parks. She asked whether it was possible for the County to create a program. Deputy County Attorney Jung stated that the State has a real good summer program called the Conservation Core Program where the youth would go up to clear parts of Kokee, which would be a good idea for the County to look into . Chair Gegen explained that at its last meeting, the OSC discussed the need for clarification from the Planning Department relative to the acceptance of easement in which the OSC had concerns about the easement ending at a steep drop and included a request to the Council to help resolve the issue. Deputy County Attorney Jung stated that the issue on whether or not things were done properly in terms of complying with the subdivision ordinance is more of a Planning Department issue. and would hedge on the OSC in getting involved in trying to ensure that the conditions were met because the developer did try to meet the conditions by submitting a proposal for an access easement. He stated that in the future the OSC can raise the issue, but it is up to the Planning Department to do the investigation. Chair Gegen stated that the OSC was just curious on the Planning Department proceeding to accept an easement that is not accessible based on the photos that were presented to the OSC. Deputy County Attorney Jung stated that there was a lot of discussion with the kuleana lot owners including a communication from DLNR dated 11 /1 /07 regarding a denial of a request to consolidate which he read into the record. It is recommended that the applicant consider more fuller investigative alternative public access to the shoreline that shall not enclose or intrude upon special eco-systems, threatened or endangered species, historic features and shall not subject the public to potential hazardous conditions. Deputy County Attorney Jung explained that communication stated that the original proposal was to place the easement on the eastern side of the property, but the DLNR (Department of Page 8 of 11 Land and Natural Resources) suggested to put the public access on the western side versus the eastern side because of issues relating to the monk seals, nesting birds as well as the steepness of the bluff, which compared to the eastern side is a relatively flat area that ends what people refer to as a cliff, which is actually a six (6) foot slope down to some boulders. He stated that the Council is trying to identify the specific pin line from where the shoreline is to where the State's property and the State beach corridor exists to see whether or not the eastern part of the property line displaces a person onto the rocks or unto a trail. He noted that the County Council will be conducting its own visual site visit to try to curb some of the allegations that are out there. He added that by visiting the site he found that the area is relatively flat and that he was able to get down the six foot slope with ease. He explained that the structure of the process is left up to the Planning Commission to determine where the access will go, and that the Council has the authority to accept the liability indemnification provision within the easement document including the acceptance of the easement as an asset of the . County in terms of real property. He stated that there were a lot of considerations going in, and history in terms of how the decision was made. He encouraged the Commission to watch the Council videos to get a better perspective from all sides . Chair Gegen questioned whether it would be appropriate to ask the Council to include the OSC on their site visit. Deputy County Attorney Jung stated that it would be probably easier for an individual member to visit the site on their own compared to trying to organize a site visit with the Council, but he would ask Council Chair Furfaro to include the OSC. Commissioner Evslin asked if there really is a transecting path on the alleged Alaloa trail leading to the bluff. Deputy County Attorney Jung stated that there appears to be a path, which is why the Council is planning a site visit to see where the path leads, and whether it' s in the beach corridor or on Faulko Property. Commissioner Evslin stated that this should be an opportunity for the OSC to pursue the Alaloa concept because it sounds like a path does exist, and that the State's reluctance to identify the path may make it disappear for forever. Deputy County Attorney Jung stated that that the only agency that can determine whether or not the Alaloa is actually a historic trail is the State, and even if the OSC had special counsel it would not be for the County to go after it because it's on State property. He stated that the cost to condemn the trail would come at an exceedingly high price for the County although it does have the inherit ability under the Constitution of the United States to go and condemn property for public purpose. Commissioner Evslin pointed out that there is a possibility of transferring the Hanapepe Salt Pond into a conservation easement however, it would call for an executive order, and if there are historic trails under the Highways Act it might be a possible, but he does not see procedurally how the OSC could get that. Chair Gegen pointed out that the State would still need to identify the property if they decided to transfer the property, which is a problem because of the State being reluctant in identifying the location of the historic Alaloa trail. Commissioner Evslin pointed out that this issue is all about timing, and that the OSC should at least continue it efforts to find out what the State' s position is because by next year this issue will no longer exist. Deputy County Attorney Jung stated that it is his understanding that the County Council is Page 9 of 11 having discussion with the State but who knows what will happen next. Chair Gegen stated g Pp g that is why the issue is a timely one, and something that the OSC should keep on its agenda. Commissioner Hayashi stated that because the OSC is preparing a spreadsheet it really needs to know whether or not it can get the property because if there are lawsuits involved is the OSC willing to go down that path because it will affect the prioritization list. Deputy County Attorney Jung stated that it is important to recall that from a legal stand point what the OSC is trying to do is come up with a list to acquire or at least to get land, and in this ability will prevent the OSC from acquiring the land. He stated that the OSC could acquire a separate trail, and not call it the Alaloa, and condemn it. But it will come at a cost because only the State has the right to go after the historic nature of the trail. Commissioner Hayashi asked if what he is saying is that the OSC could create another access. Deputy County Attorney Jung stated that the OSC could, but it must remember to condemn. Chair Gegen added that according to Act 925 it gives the OSC the ability to look at accesses and lobby on its behalf to make sure that the trails are being maintained. Deputy County Attorney Jung stated that when it comes to the list the OSC must specifically denote that the OSC ' s intent is to go after the property or encourage the opening. Chair Gegen pointed out that the list is changing because of the process the OSC is going through, which he will explain later. Commissioner Lydgate asked if the Commission would take testimony from the public to which Chair Gegen said yes, and that he would suspend the rules. Written public testimony dated October 9t' (on file) was received by Ms. Hope Kallai. Ms. Kallai stated that she hoped by now that the County would have put forth a maintenance plan because for the past four (4) years she has made many appearances before the OSC requesting maintenance on the County owned Ka' aka' aniu beach right-of-way. She noted that the Kilauea Boy Scouts of America even approached the Administration requesting for the stewardship to maintain the County owned trail however, till this day no reason was given as to why the trail was not being maintained. Ms. Kallai voiced her frustration that the trail is still overgrown, and that she was told by Charlie Cobb Adams that it would only take three (3) to four (4) days to clear the trail . She noted that the trail that was laid out by the forester and the Boy Scouts does not create any erosion on the beach, and that' s why the limo tastes so good. She stated that the Larsen's is the Luna for the plantation, and by looking back from the ocean all of the plantation land makes up Larsen' s Beach, which encompasses the entire reef and the three (3 ) ahu pua' a' s. She stated that she belongs to a community where public accesses no longer exists, which is the reason why her community is very concerned about getting the best easement in Waipake. She requested that the Commission schedule a site visit, and include every consideration for beach accesses. Ms. Kallai shared with the Commission a letter she received dated October 2, 2013 , from Roger H. Imoto of the State' s DLNR (on file) . The letter states that the DLNR will be meeting with the Developer (Falko Partners) to discuss a lateral public access corridor across the development. Chair Gegen thanked Ms . Kallai for sharing her letter with the Commission. He informed the Commission that they had lost quorum due to Commissioner Blake ' s absence. Deputy County Attorney Jung stated for the record that if the Commission loses quorum it can, under the new Page 10 of 11 OlP rules, still accept testimony from the public, but cannot discuss business until the next meeting. Public testimony was received by Mr. Peter Waldau. Mr. Waldau stated that the August Ste letter confirms that Falko Partners has met with DLNR to discuss the location of a lateral trail across the development. He stated that the State is claiming the lateral trail across Waipake, Ka`aka'aniu and Lepeuli in fee simple, which if you think about it, the State is also claiming Kuhio Highway because it goes through Lepeuli. He stated that the Waioli Corporation owns the land on either side of Kuhio Highway so it is correct to say that the Waioli Corporation does own the land on either side, but it's not like Kuhio Highway is going over or through private land. He stated that by talking about private property rights it will make people want to talk about the trail going over or through private Falko land. He stated that because the mauka and makai easement is being considered the State will need to locate their fee simple Alaloa because Falko Partners cannot grant the land that they do not own even though the land intersects. Mr. Waldau stated that historically when the State adjudicated the Alaloa in the Moloa`a petition they reserved a trail over and across the land along near the high water mark. He stated that although DLNR is coming to the table to locate the trail through the development, which is not below the high water mark wash. In regard to the maintenance issues, Mr. Waldau stated that when the Moloa`a Bay Ranch became a perpetual public way -to go the Grantor and Grantee held different parts of the maintenance agreement. He stated that the Grantee was required to maintain a sanitary condition and an orderly condition of the trail, and the Grantor was required to keep a two foot wide tread opened and a two foot wide branch/brush kind of corridor opened. He noted the issue on finding the resources to maintain the trail should have been thought about up front when trying to dialogue in getting these trails and easements. At this point in the meeting, Chair Gegen adjourned the meeting due to a lack of a quorum. The meeting ended at 2:13 p.m. Submitted by: 7N,t Ut"e, Mercedes Youn Boards and Commiss n Support Staff (x) Approved as amended on: December 4, 2013. Page 11 of 11