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HomeMy WebLinkAbout2013-11-13 Open Space Commission Minutes Approved PUBLIC ACCESS, OPEN SPACE & NATURAL RESOURCES PRESERVATION FUND COMMISSION REGULAR MINUTES November 13, 2013 A regular meeting of the Public Access, Open Space & Natural Resources Preservation Fund Commission of the County of Kauai was held in the Lihu` e Civic Center, Mo 'ikeha Building, in meeting room 2A/2B . The following Commissioners were present: Patrick Gegen, Chairperson Theodore Blake Linda Dela Cruz Dorothea Hayashi John Lydgate Maurice Nakahara Absent and excused : Joseph Figaroa, Vice Chairperson . Luke Evslin 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 A. CALL TO ORDER Chair Gegen called the meeting to order at 1 : 09 p.m. B. APPROVAL OF THE AGENDA Chair Gegen called for a motion to approve the agenda as circulated. Deputy County Attorney Jung stated that if the Commission wants to address the issue regarding agenda item E. 3 first they need to take the item out order. On a motion made by Commissioner Lydgate and seconded by Commissioner Dela Cruz to take agenda item E3 . before item E1, the motion carried unanimously by voice vote (5 : 0) E. UNFINISHED BUSINESS 3 . Compilation and evaluation of the 2013 public input process pursuant to Ordinance No . 812 and the development of a biennial list of priority projects and 2013 Report to the Kauai County Council and the Mayor. Page 1 of 9 Chair Gegen made a Powerpoint presentation on a draft of the 2013 Annual Open Space Commission Report. The report includes an executive summary; status of funds for 2013 , the Commission' s accomplishments for the year; challenges that include filling the vacancies, public input process; historic perspective; current properties in the dossier that was previously discussed and put on hold; letters of support to identify the metes and bounds of the Historic Alaloa trail , Ka` aka' aniu, and Waipake ahu pua` a; activities that include site visits around the island, data showing the 2012- 13 public input process, one vacancy (Mayoral appointment), number of meetings held, Ordinances 812 and 925, rules and regulations, the Commission' s historic perspective, data showing a list of current properties that were included in dossier to the County Council; recommendations for acquisitions using OSC funds including priority properties (aerial photos). Chair Gegen noted that some of the information in the report would need to be updated with new information. Commissioner Lydgate commented that the sites are very important for the OSC to continue its on-going assessments. C . ANNOUCEMENTS There were no announcements . D. RECEIPT OF ITEMS FOR THE RECORD There were no items to be received for the record. E. 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 informed former OSC Commissioner Tessie Kinneman that the Commission received an appraisal for the public beach access easement and that the County Attorney and the representative for the landowner met to discuss generalities. He explained that because of the price differential and the extent of the valuation, the Commission decided to explore other alternatives. The first alternative was a vacant lot located two houses down from the former Hoban property. Chair Gegen stated that although the letters were sent to the owners, the Commission in the meantime looked at another potential access at the Spouting Horn, Commissioner Hayashi asked Deputy County Attorney Jung what was the amount of appraisals between the County and the landowners. Deputy County Attorney Jung stated that the County appraised the property at little over $ 80,000, and the appraisal that was done by the Leiht Family Trust came to a little over $600,000 . He noted that currently the argument stands that the Page 2 of 9 County' s appraisal did not take into account the issue of severance damages, which will be contested. He stated that after receiving the appraisals the Commission decided that they needed to explore other options. Deputy County Attorney Jung explained that the first alternative was a piece of vacant lot located on the far west side on the makai corner of the property line, which has a stairway leading down to some boulders . He further explained that in a letter to Mr. Weist, principal for Lopaka Kale LLC, the Commission had requested a meeting with a representative of Lopaka Kale LLC to discuss the potential purchase of an easement for public beach access purposes. The second alternative that is being considered as a pathway for public beach access is the Spouting Horn, which the Commission is working with the County Engineer to address the issue of its closure to prevent the public from venturing down to the blow hole. He stated that the proposed public beach access would allow the public to walk and traverse to the beach access corridor along the lava rocks going east to the sandy portion of the beach at Kukui `ula Bay. Deputy County Attorney Jung stated that comprehensively there are three (3) potential alternatives for public beach access, the first is the current proposal; second is the vacant lot proposal however, no parking is available and walk to the beach is roughly 100 feet; the third is at the Spouting Horn where parking is not an issue but the walk to the beach is longer. He stated that if the current proposal ends up in litigation, the jury will determine the ultimate price by balancing out the testimony of each appraiser. Chair Gegen noted that the Commission intends to look at all of the alternatives before entering into litigation. Commissioner Lydgate asked if it was possible for the National Tropical Botanical Garden to allow the beach goers to park in their parking lot. Deputy County Attorney Jung stated their parking lot is used exclusively for their patrons however, the County could meet with NTGB to discuss parking for the public beach access. Commissioner Lydgate asked whether parking on the vacant lot could be used for parking to which Deputy County Attorney Jung said no because the lot is privately owned. Chair Gegen asked whether the owners would entertain an idea of an access or even sell the lot to the County who could turn it into a parking lot. Deputy County Attorney Jung pointed out that the long term plan for the zoning conditions at Kukui`ula includes the Kukui `ula Boat Harbor where there is a grassy area that will evenly be turned into a County park with comfort stations facilities. He stated that it might not be worth it for the Commission to purchase the vacant lot because the proposed County park will be located just down the street. Chair Gegen asked what the status on the Spouting Horn is. Deputy County Attorney Jung stated that he would need to check with County Engineer Larry Dill on the history of when the warning signs were first posted, and when the County closed the area. The Commission received testimony from Tessie Kinneman. Ms. Kinneman voiced her concerns that placing the public beach access at the Spouting Horn may be unsafe because the area is generally dangerous because there is a steep grade leading down to the rocks onto the shoreline. In regard to the vacant lot she believes that the staircase was illegally built and that the area is also unsafe. She thanked the Commission for following up on the dossier, and is hopeful that the Council will make a recommendation. Page 3 of 9 Chair Gegen noted that the recommendation will be made by the Commission and not the Council . Ms. Kinneman stated that she does not believe that there will be an issue with parking at Spouting Horn because it' s a public parking lot. She shared with the Commission that plans are in place to rebuild the rock wall at Kukui `ula, which will provide additional road side parking on the mauka side of the road. Commissioner Nakahara asked Ms. Kinneman for her thoughts should the Hoban property become a public beach access, and what type of traffic she envisions it would create. Ms. Kinneman stated that the area will be used frequented by local fisherman, divers and surfers . El . b Status on the current state of access at Ka' aka'aniu (aka Larsen' s Beach) Chair Gegen stated that in the past, the discussion included the Alaloa and from what he understands the County Council is now following up on some of the concerns that were raised by the public regarding the Grant of Pedestrian and Parking Easement relating to the Kahuaina Plantation Subdivision. He stated that there was a site visit, but only two councilmembers were able to make the trip, which might be the reason why the Commission was not invited. However, another site visit will be planned early next year, and the Commission should continue to monitor the situation because it involves the alleged Alaloa trail. Deputy County Attorney Jung read a letter into the record dated 11 / 16/ 13 from DLNR to Developer Shawn Smith, the letter states that the Department of Land and Natural Resources Division of Fish and Wildlife continues to respond to the public 's concerns regarding the Alaloa historic trail on the Kauai island. We are aware that the location of the trail maybe in dispute with the landowners and the site visit by DLNR on 1019113 gave us a better understanding of the area and agreed condition to your subdivision application to the County of Kaua C is to provide mauka to makai a pedestrian public access. We anticipate that this will satisfy the public 's concerns regarding access to the coastline, and as a result the Department of Land and Natural Resources has no currentplans to take action regarding the trail. Deputy County Attorney Jung explained that the State is now saying that they do not have additional plans to take action on the alleged Alaloa side of the trail. He stated that although the letter is not in response to the Commission' s letter dated 10/23/13 he is assured that a response from the State will be forthcoming sooner rather than later. Commissioner Lydgate asked for clarification on the dispute. Deputy County Attorney Jung explained that the dispute happened when the subdivision was going through the process in 2006 there was a condition for a public access, but while going through the process members from the community did not want the access placed on the western side of the property, and that DLNR also had bad concerns about putting the access on the western side of the property because of the nesting birds and monk seals that frequent the area. As a result, there was another push to put the access on the eastern side of the property line in which the Planning Commission, after hearing hours of public testimony, decided to push the access to the eastern side of the property line that resulted in another dispute because the pedestrian easement leads to a six foot drop. Deputy County Attorney Jung explained that because there was no original trail in the area, unlike some of the other easements that the County gets, there are trails which meander onto an Page 4 of 9 existing trail. He further explained that the intent was to cut and lay out a trail because the County' s ordinance only requires the developer to give the County the land. However, if the project was tied to an SMA the County would have more guts and glory to require the developer to do more improvements or have them actually build out the trail for the County. But in this case, it' s a straight subdivision condition to get the applicant to dedicate the property, which the Council is now attacking the Planning Department by questioning the process. But now, what they are willing to look at will be discussed with the landowners based on a request by the Council to get a small side access right to where the existing trail is within the beach access corridor that by State law allows traverse through the areas below the shoreline areas. Deputy County Attorney Jung stated that in regard to the current letter the question is whether or not the Council wants to proceed on acquiring the access knowing that in the future if the State does want to go after the alleged Historic Alaloa Trail there would be an intersection between the two public access trails; one potential is laterally that the State may acquire, but they do not have to go through a quiet title action to acquire it or whether or not the Council wants to accept the mauka to makai access, which is a condition of the subdivision. He stated that if Council does not accept it then the access would remain about half a mile away through the current Lepeuli access where the County has a lot that goes down to a parking lot continuing on to an access lot, and now an access easement going down to the beach. Commissioner Lydgate stated that it strikes him that the County has an active part in dealing with the situation and the State does not want to do anything about it and just walks away from it. Deputy County Attorney Jung explained that it is a very complex issue when trying to deal with going after historically old trails because it has to be litigated. He gave an example the case of the Moloa` a Hui where the landowner was willing to work with the State to identify the trail through partition action. But the alleged Alaloa trail there is no partition action, no concurrence or pending lawsuits that can be tacked onto the issues of separating the properties, and that an action has to be filed to go after it. Deputy County Attorney Jung clarified that contrary to Mr. Spacer's request that the Commission hire outside counsel, in reality only the State can go after it because under HRS 264 it' s the State' s kuleana to go after it and not the County. He added that the County could go in and condemn a different area for lateral access purposes, but then again the County would have to face the issue of severance damages by splitting up the property. But if the County wanted a lateral trail not within the current area it can have an access to the beach access corridor. Commissioner Lydgate stated that in the days of the Hawaii Kingdom and Territory the trails were identified and pin marked, which he felt was kind of sad that the State does not want to take the time to look at the old maps, which could help identify the location of the trails . Deputy County Attorney Jung noted that if the State were to litigate it would have to go through the old maps, and show why the trails weren't put in the deeds and also show peril evidence. He stated that a good example is what happen out in Papa` a Bay where the County went looking at all of the historic maps because it thought it had a case, but it ended up that the County did not have a case. Page 5 of 9 Commissioner Lydgate commented that he thinks that the landowners took advantage of this because it was not clear, and just came and did whatever they wanted to do and the hell with the public. Deputy County Attorney Jung stated that he felt it was important for the Commission to know that the intention of the Council is to ignore the fact that the County does have a subdivision ordinance that states "a public access from public roads ". He added that there was a lot of disappointment about the length of the access, which is a little over a mile long, but it cannot be helped because of how the code is written. But if someone wanted to amend the code they could certainly try, but it would be a matter of where to start the access. Chair Gegen stated that the Commission should wait for the State' s response before making decisions; not to mention that a councilmember felt pretty positive about her discussion with the developer. The Commission received testimony from Richard Spacer. Mr. Spacer stated that since the Commission went slightly off the agenda item to talk about Waipake instead of Lepeuli and Ka' aka` aniu that he would not feel that he would be out of order to briefly touch upon it as well . He stated that what Commissioner Lydgate said is right because the landowners in his own opinion do take advantage, and it is quite clear to him that the three (3) properties that he made the request for outside counsel is taking place right now. He reiterated for the Commission' s erudition that the State has claimed the Alaloa trail on all three (3) properties so it is not something that needs to be pin marked later because the State has already done so and do so now. But actually doing something about it is why he wanted outside counsel. Mr. Spacer stated that the Commission may have noticed that he took an absence of a couple of meetings from the time that he made the motion. He noted that he would not hide the fact that he was very displeased by some of the public testimony on that day, but to wrap it up he would like to say that there may have been misimpressions created by what he said or did not say or what another party said that the only reason to have outside counsel or any counsel for these type of matters is for court room litigation. He noted that he tried to make it plain that is just one option, but certainly an option, if nothing else works. He noted that he has to disagree with the Deputy County Attorney that only the State can do this because the Haleakala Ranch on Maui has a trail going up to the top, which shows that private parties can retain counsel and litigate because what they found in this instance is that the Department of Land and Natural Resources flipped sides, and is now on the side of public access. He stated that an attorney in this particular area can work with the County to facilitate a discussion with the State, which he felt is a conflict but more constructive at this point. He noted that if he had his own money and was doing the litigation the defendants in this case would be somewhat different in this whole matter. But if it were outside special counsel for the public and the County, the goal would be to facilitate a discussion get this issue settled once and for all, and to get the State to do something about it. He noted that what he is trying to convey covers all three (3) properties on the agenda. Page 6 of 9 Chair Gegen thanked Mr. Spacer for his testimony and noted that the Alaloa is located on all three (3 ) subject properties, and that the Commission could discuss all of them concurrently. Mr. Spacer expressed his appreciation by thanking the Chair for being present at the Council meetings . He noted that the cross pollination of boards and commissions and council is a good idea because it makes everyone aware of what' s going. He noted that he has heard comments from the Commission on certain agenda items that they wished they had known what the other Commissions and Council are doing. Commissioner Hayashi asked for clarification on the difference based on what Mr. Spacer said that it would be a different contention if he were to do the litigation himself or if the Commission did it. Mr. Spacer stated that because the State is not doing its job it' s obvious that the State would be the defendant, and that it would be Mr. Spacer versus DLNR and the three (3 ) property owners. He stated that the problem in the County' s Planning Department is that there is an SMA permit that prevents anyone from blocking the lateral coastal trail, but yet the trails are blocked, and now the question is should he ignore it because it is his own lawsuit; of course not. He would have to sue the Planning Department because they are not doing anything about it. He noted that the litigation would expand if he was doing it because the government, besides the three (3 ) property owners, is not doing its job . He commented that he thinks one of the testifiers on September 26'11 misunderstood something about that whole thing, and that he is just answering Commissioner Hayashi ' s question on how he would do things differently. He noted that each of the three (3 ) properties has its own personality relative to its different tolerances to public access, and lawyers on how they are going to respond. He stated at a previous meeting he heard one of the testifiers make comment that it was premature to talk about retaining an attorney for Waipake in which he disagrees because he did say that Waipake was heading to court room litigation. He noted that if the three (3) landowners knew how serious the Commission and the County is about solving the problems it would move things along much faster. E1 D . Status on access plan for Papa` a Bay Deputy County Attorney Jung stated .that Commissioner Evslin had expressed an interest in being part of the discussion including review of the lawsuits. Chair Gegen stated that he would defer this item for continued discussion at the next meeting. 2. Discussion on island-wide list of accesses and cataloging access conditions . Chair Gegen stated that the item is being spearheaded by Commissioner Blake but due to his absence he would move on to the next item. F. COMMISSION EDUCATION 1 . Public access workshop Page 7 of 9 a. Presentation by Planning Department regarding conditions, dedications, and entitlements through Subdivision and Special Management. Deputy County Attorney Jung stated that he had heard that the Commission needed to leave the meeting room by 2: 30 p.m. He asked if the Commission wanted him to do the presentation because he has his Powerpoint presentation available. Chair Gegen asked how long will it take to which Deputy County Attorney Jung stated that it all depends, but it would take longer than fifteen minutes. Commissioner Nakahara suggested that the Commission wait until it has more Commissioners present. Chair Gegen agreed and called for a motion to defer the item to the next meeting. On a motion made by Commissioner Nakahara and seconded by Commissioner Dela Cruz to defer the item to the next meeting, the motion carried unanimously by voice vote (6: 0) G. NEXT MEETING DATE AND AGENDA TOPICS FOR DISCUSSION Chair Gegen stated that the next scheduled meeting is on Thursday, December 12, 2013 . Commissioner Dela Cruz asked if it were possible to move the meeting dates up to Wednesday, December 4th and the 11th in recognition of the upcoming holidays. Commissioner Dela Cruz noted that because the Commission already has all of its reports were it possible to schedule just one on December 4th Ms. Sadora stated that she would need to check the availability of the meeting room because at the time when the room reservations were being made all of the dates were being locked in. Chair Gegen stated that it would be safer to say that the next meeting date will be on December 12th and the 19th if the Commission chooses to have a meeting on that day. Deputy County Attorney Jung advised the Chair that he could state for the record that the next meeting date would be set by the the Chair depending on the availability of the meeting room. Chair Gegen stated that he would like all of the items under agenda item E1 . left on the agenda. H. ADJOURNMENT Chair Gegen called for a motion to adjourn the meeting. On a motion made by Commissioner Lydgate and seconded by Commissioner Dela Cruz to adjourn the meeting, the motion carried unanimously by voice vote (6 : 0) At 2 : 19 p.m. the meeting adjourned. Page 8 of 9 Submitted by: Mercedes Youn, Boards and Co ission Support Staff Approved on: DecemIgo. 4, 2013 Page 9 of 9