HomeMy WebLinkAbout2013-3-28 Open Space Commission Minutes PUBLIC ACCESS , OPEN SPACE & NATURAL RESOURCES
PRESERVATION FUND COMMISSION
REGULAR MINUTES
March 28, 2013
A regular meeting of the Public Access, Open Space & Natural Resources Preservation
Fund Commission of the County of Kauai was held in the Lihue Civic Center, Moikeha
Building, in meeting room 2A/2B . The following Commissioners were present:
Nathaniel Childs, Chairperson
Theodore Blake
Linda Dela Cruz
Luke Evslin
Dorothea Hayashi
Maurice Nakahara
Absent and excused:
Joseph Figaroa
Patrick Gegen
John Lydgate
The following staff members were present: Nam Sadora and Duke Nakamatsu and
Deputy County Attorney Ian Jung.
CALL TO ORDER
Chair Childs called the meeting to order at 1 : 16 p .m.
APPROVAL OF AGENDA
On the motion by Linda Dela Cruz and seconded by Maurice Nakahara to approve
the agenda, the motion carried by unanimous voice vote.
ANNOUNCEMENTS
There were no announcements.
The Commission received testimony from Tim Kallai,
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Mr. Kallai questioned the status of the Kauapea easement. Kilauea Neighborhood
Association will be having a Board meeting and he would like to provide any feedback to the
Board.
Deputy County Attorney Jung noted that it was not listed as an agenda item for
discussion, but he would provide a briefing to Mr. Kallai during the break.
Mr. Kallai noted that Council Chair Furfaro was a little upset that it has fallen off the
radar. They would like to be able to provide an update.
The Commission received testimony from Peter Waldo regarding Kaakaaniu.
Deputy County Attorney Jung noted that it was not listed as an agenda item, but the
Commission could receive the testimony and place it on the next agenda if they would like to
have discussion.
Mr. Waldo stated that Kaakaaniu, to the right of Larsen' s Beach Road, is an ahupuaa
between Moloaa and Lepeuli owned by Patricia Hanwright. He referenced an 1878 map that was
included as an exhibit in an abstract regarding public access rights-of-way to Moloaa in 1978 by
Na Ala Hele State trails system. They have information on the horse postal delivery routes that
went North on what is now Koolau Road and came back along the coastal alaloa. He referenced
letters from kupuna that discuss using the trail between Moloaa Bay and Larsen ' s beach along
the alaloa in the 1930s and 1940s . He included a testimony of Bob Schleck the Director of
Waioli Corporation to the Kilauea Neighborhood Association describing the history of Larsen' s
Beach Road where he claimed the access was a pretty strenuous hike. He referenced an internal
memo within Na Ala Hele of March 2000 stating that fee simple ownership of the section of
alaloa passing through Kaakaaniu and Lepeuli is with the State of Hawaii. In 2001 , the new
owner of the property renamed it Moloaa Bay Ranch and they surveyed a coastal trail entering in
through Kaakaaniu. He referenced an excerpt of a letter from 2007 stating that Na Ala Hele
recently completed a trail abstract of property owned by Joseph Hanwright connecting to the trail
on Moloaa Bay Ranch, ensuring that the public trail traversing both properties must be
established first and foremost to ensure contiguous perpetual public easement. He referenced
photographs of the trail on the CD he submitted (on file). He referenced a letter of March 2007
stating that the easement on the Moloaa Bay Ranch property terminates at the previously existing
gate on the easement of the Department' s Na Ala Hele trail. DLNR has determined that the
historic trail identified on the registered maps is still owned by the State . The DLNR assured
Patricia Hanwright that they were sensitive to private property rights with associated liability
concerns and equally so about ensuring minimal disturbance to the small colony of albatross that
seasonally nest on the property and apparently where the trail may be located. He stated that his
photos document the trail but there are no albatross . He referenced a letter of December 2009
from Malama Moloaa and a letter from Council woman Kawahara to the State pointing out that
the trail has been blocked off.
Chair Childs took agenda item G.3 . out of order to accommodate testimony from Hope
Kallai,
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NEW BUSINESS
Testimony from Hope Kallai regarding beach accesses at Moloaa and Kauapea.
Ms. Kallai stated that there are segments with problems regarding the concept of a
through-trail in the Kooalu district. It has been on the community radar for about a decade and
they don 't know what to do about it. The trail from Moloaa was a cultural byway. To close it
off half way would not allow access to the resources that the trail was preserved for. According
to Aunty Loke, limu pickers and horses have fallen off into the ocean and died. She does not
want to see more deaths there because the fence is in the wrong place. The Council has written
to the State with no response. It is a coastal trail with metes and bounds in Moloaa and it appears
again in Waipake. There are situations in the Hanwright property. There has to be a way to get
from the trail to the limu without people going over the edge. There is also a situation arising in
Kilauea with a large house on the Kilauea side of the river; the Somers property. The road that
goes past the house goes to the boat ramp on the river and is a traditional fishing access and is
also the alaloa. The owners do not want the trail in front of their house.
Chair Childs asked for clarification that the land owner also donated a piece of land for
preservation.
Deputy County Attorney Jung noted that Kahili Beach Road is not on the agenda and
cautioned the Commission to limit discussion to specific agenda items.
Ms. Kallai stated that her PowerPoint includes photos of the trail. When they brought to
the Moloaa Hui Property Owner' s Association ' s attention that that trail was blocked, they
cleared it within a week. She noted the trail goes from the property line to the ironwoods and it
needs to be designated going from the Papaa side down to the beach. She believed it was part of
the original County easement and she does not know where it is. If it can be located on the maps
it would be good. She noted that there is a chain blocking the easement and surfers are
wondering where the access is.
Deputy County Attorney Jung noted it is purportedly private property and they don't
know the intent of the original easement. He noted the existing County parking lot and access
easement. They also acquired another easement to connect with Papaa Bay. The question of the
gate is a matter of a 100 yard walk around.
Ms. Kallai stated that the subdivision map in the Aliomanu Estates indicates that the
access went all the way to the end of the property. Now there is a gate. She questioned how
they lost the easement and questioned the authority of the chain. The Moloaa Hui lands access
was blocked up to 5 ' high in some places, for about 1/4 mile. Since Councilmembers Rapozo and
Kagawa visited the site, it has been cleared. From the ironwoods, the trail needs to be
designated. She presented another idea from Herb Silva for an additional access at Moloaa from
a little strip of property about 10 ' wide that goes to the beach and would double the access to
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Moloaa Bay. She stated that it would be like the access to through the former Hoban property in
Poipu.
Chair Childs questioned the owner of that strip of land.
Ms. Kallai responded that the owner is Gertrude Watase.
The Commission received testimony from Herb Silva.
Mr. Silva stated that there used to be a road during WW2 that went alongside the beach.
Over time the road was swallowed up and what they are seeing are remnants of the road.
Ms. Kallai stated that the County access is difficult. The alternate would facilitate access .
Deputy County Attorney Jung stated that the Commission could place it on a future
agenda for discussion.
Regarding the concept of a 10 mile long coastal corridor foot path along the Koolau
district, she stated that there are 12 mauka/makai County accesses that have no lateral
connection. She is requesting that the State connect the dots from Aliomanu to Princeville.
There are laws that enable lateral, coastal, safe transit and her request was to designate it as a
foot trail because it is an archaeological site. Attorneys have told her that there is no reference of
the alaloa on the maps . She noted that maps were made in English and the only Hawaiian map
maker was Samuel Kalama and he did not include any trails. In the 1833 Emerson map, the
coastal trail was mapped. She suggested that they establish it along the ancient trail wherever
they can. If it has already fallen into the ocean, then they should establish it where it is easy.
They need to know where they can legally hike. The concept is to preserve a foot trail in the
Koolau District, 10 miles long, connecting to other multi-modal paths.
Commissioner Evslin questioned how the vision would apply to Papaa Bay and if there is
a north side exit.
Ms. Kallai stated that there is access both ways. Most people don't know about the 85
acre strip in front of the Hui lands preserved for the precipitous pali . It is an opportunity that will
be lost if they don't do it this decade.
Commissioner Evslin questioned if it would be made safer.
Ms. Kallai stated that was the reason the Council was pushing for a more friendly access.
There will be multiple multi-modal needs . She noted that it is an archaeological site and not
appropriate for everyone, but it is important to preserve it. The right of lateral safe transit exists
in Hawaii State Statutes. There are less than 10 property owners along the 10 miles.
The Commission thanked Ms . Kallai for her presentation.
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APPROVAL OF MEETING MINUTES
Regular meeting minutes of 3/ 14/ 13
On the motion by Theodore Blake and seconded by Linda Dela Cruz to approve the
minutes of 3/14/13, the motion carried by unanimous voice vote.
UNFINISHED BUSINESS
Status on acquisition plan for a portion of TMK (4) 2-6-003 : 017 to obtain a pedestrian
public beach access easement to Kukuiula Bay through the former Hoban property.
Deputy County Attorney Jung has been informed that the counter appraisal from the land
owner is done. He will be meeting the 2nd week of April to discuss the appraisal and determine
the next steps . He noted that Commissioner Blake will be discussing alternate access
possibilities under agenda item GA .
Commissioner Blake stated that he spoke with two Board members and the President of
the Koloa Community Association and they are expecting to begin with the development plan
update. It would be better to bring up the discussion after a comprehensive review of Koloa.
Deputy County Attorney Jung clarified that the Planning Department is updating the
Koloa-Poipu-Kalaheo Development Plan.
Commissioner Blake asked for clarification that the process they are going through with
this easement would probably take a few months .
Deputy County Attorney Jung stated that if it goes to condemnation, it could take a few
years depending upon how the case progresses.
Commissioner Blake questioned the timeline if the land owner is willing.
Deputy County Attorney Jung stated that if they can negotiate a sale, it would be up to
the County Council to appropriate the funds. Then they negotiate the land sales agreement and
close. That would be contingent upon agreement of the sale. If not, condemnation would lead to
litigation.
Chair Childs questioned the timeline for Commissioner Blake.
Commissioner Blake stated that it is hard to gauge the County' s timeline. His
understanding is that they have selected a contractor.
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Deputy County Attorney Jung stated that the next step would be to formulate the
Development Plan committee members and do the kick of party. Sometimes it can be six
months, sometimes a year. He noted that the Kapaa-Wailua Development plan has taken seven
years. The current Planning Director is motivated to move on the plans because the update to the
General Plan is also approaching.
Commissioner Blake requested withdrawal of his discussion on alternate accesses.
Deputy County Attorney stated that he will update the Commission on his discussion
with the land owner and the Commission can decide whether or not they will recommend that
Council utilize Open Space funds for this particular access .
Chair Childs requested adding "or alternate accesses" to this agenda item so they can still
discuss any other options.
Review and discussion on past recommendations and prioritization of the Commission' s
work plan/timeline of events and activities through 2013 including_
• Criteria spreadsheet for recommendations list (2013 report)
Chair Childs stated that at the last meeting he asked Commissioners to think of sites they
would like to recommend and present to the public. His idea was to narrow down a list rather
than starting with 100 properties like in the past. From the list of properties, they can further
narrow it down with public input. He asked Deputy County Attorney Jung for an update on the
buffer for Salt Pond Beach Park.
Deputy County Attorney Jung stated that most of the surrounding properties are owned
by the State of Hawaii. The property to the North, above the park, is under the jurisdiction of the
Agriculture Development Corporation which is under the State of Hawaii, Department of
Agriculture. They would have to request an executive order to establish park purposes. It is a
novel idea that he did not think has been brought to the State before; an executive order not for
development by way of infrastructure or improvements, but for the purposes of conserving the
area to avoid impacts downstream. There are concerns with potential breaking of leases on the
property which is being used for mono-crop agricultural operations . There is also a process for
executive orders that would have to go through the Board of Land and Natural Resources to
make a recommendation and the Governor' s Office for signature. It would have to be for a
stated purpose. He did not know what the reaction would be for purposes of conservation. He
could set up a meeting with the State, but requested refinement of the intent of the buffer zone.
It could be categorized as view plane issues, dust mitigation, agricultural mitigation, or clean
water improvements .
Commissioner Hayashi noted that Mr. Nobrega' s testimony provided reasons.
Chair Childs questioned if it could be for all of those purposes.
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Deputy County Attorney Jung stated that the Commission questioned the possibility of
utilizing the Hawaiian Islands Land Trust' s services to approach the State.
Chair Childs stated that the Commission wanted to ask if it would be a candidate for a
conservation easement.
Commissioner Evslin stated that it might be easier to pursue a conservation easement, if
their intent was only for conservation.
Deputy County Attorney Jung stated that conservation easements are usually used to
restrict activities on private lands in an effort to preserve and conserve timber, marshes, etc. The
process is set up through executive order which is like a license agreement where the State
retains ownership and the County has stewardship of the land. It is the same function as a
conservation easement in government terms. They could try that approach, but the executive
order may be the best approach because they have done it before.
Commissioner Evslin questioned if there has ever been agricultural land that has been re-
zoned as conservation or if a conservation easement has ever been granted on agricultural land.
Deputy County Attorney Jung stated that conservation land has come out of State Land
Use District conservation and ag, and it has probably gone from agriculture to conservation
somewhere in the State, but it would take a Land Use Commission petition and he did not know
if the State would be interested in converting that land.
Commissioner Evslin asked for clarification that the land would still be zoned agriculture
but with a conservation easement granted on it.
Deputy County Attorney Jung stated that conservation easement language is designed for
some specific preservation type purpose. It comes down to the specific language between the
management entity which controls the conservation easement land and the owner of the property.
They enter into a contract restricting certain activities in that conservation easement area and
there is enforcement. If the land owner violates a provision, they have remedies in court to sort it
out.
Commissioner Evslin questioned if any of the land is currently being used for agriculture.
Commissioner Dela Cruz noted that corn is growing on the land which is a concern of the
salt makers .
Chair Childs clarified that they would like to acquire the land up to the highway.
Deputy County Attorney Jung stated that if they are able to set up a meeting it would be
good for two Commissioners to attend.
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Chair Childs stated that he is recommending Salt Pond, Coco Palms, Kauapea, access
through the former Hoban property, and Lawai Kai to Port Allen. He noted that Commissioner
Gegen recommends Salt Pond, Coco Palms, Kauapea, and Larsen ' s Beach.
Deputy County Attorney Jung stated that the issue brought up by Ms . Kallai is regarding
signage. He is working with the Kauai Life Guard Association for placards at certain beaches .
He suggested listing general signage as a recommendation. He did not think they could utilize
Open Space funds, but suggested a dossier to Council to figure out a system for signage and trail
maintenance. It would fall under the jurisdiction of the Department of Public Works. It may be
difficult to establish a crew with the current budget, but the Commission can include it on the list
as general signage and trail maintenance.
Commissioner Blake recommended Salt Pond and Hapa Trail. He noted that Waita was
included as a past recommendation. He noted that it is private property and a liability issue.
Deputy County Attorney Jung noted that when it comes to acquisition, whether they need
to negotiate a sale or go for condemnation there is always the issue of liability. Counties
ordinarily accept liability on grants of easements. The Council weighs whether or not to accept
the risk. How much weight the Commission gives a consideration is up to the Commission but
the ultimate decision maker is the County Council.
Commissioner Blake stated that his recommendations would be Salt Pond, Coco Palms,
Moloaa, and access to Kaneiolouma.
Chair Childs noted that the Commission has made contact with Rupert Rowe. His
understanding is that he will approach the Commission when he needs further assistance.
Commissioner Blake stated that they received funding from the CFD for the wall, but he
did not believe they have any more than that. If Kukuiula goes for another bond, there will be
more money for Koloa projects.
Chair Childs agreed to include the access to Kaneiolouma.
Commissioner Dela Cruz stated that she agrees with the recommendations as is . She felt
they were all important and felt they should concentrate on what they have listed.
Commissioner Hayashi stated that her recommendation would be for Puolu Point. He
noted that there was a heiau there, but almost all of the rocks are gone. She referenced a map
that was drawn by a 90 year old man referencing a shrine for the Japanese fisherman.
Commissioner Blake noted that heiau encompasses everything that could be a shrine or a
religious place.
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Commissioner Hayashi referenced Benson' s report from the 1800 ' s noting that there was
nothing left but rubble, but there was a huge heiau at Puolu Point at one time. She also
recommended Alekoko Fish Pond.
Commissioner Evslin stated that he would like to recommend Salt Pond and Papaa Bay.
Commissioner Nakahara stated that he would recommend Kauapea along with everything
else. He questioned the reference at a previous meeting of another County acquisition next to the
Hodge property.
Deputy County Attorney Jung stated that they are currently going through condemnation
on parcels to the south east. There is an executive order for the sand spit. The County has the
Hodge property, the Black Pot Beach Park, the sand fronting the beach park, and currently in
litigation are the Sheehan parcels at the corner of Weke Road. It is a contested condemnation.
Chair Childs suggested separating accesses from and land acquisitions. He suggested
including more properties that can be acquired utilizing the funds.
Commissioner Nakahara noted the access through the former Hoban property would
require purchase or condemnation.
Commissioner Hayashi questioned reverse mortgages and whether they are able to be
purchased.
Chair Childs stated that it would be good to look into.
Commissioner Evslin stated that the future of agricultural land is a concern. A lot of the
land is degraded and can only support mono-cropping. There is a lot of land still designated as
viable agriculture land but it is not that viable. The future of those lands would be industrial
farming or development. He would like to see a push for providing a viable option. He
suggested exploring the idea of a non-profit organization that would be dedicated to reforestation
as a viable third option in which they would approach the Commission with the land identified.
Commissioner Blake questioned if the suggestions can be categorized and prioritized so
their time can be spent more efficiently. Some of the recommendations are dreams and will
require a lot of work.
Chair Childs noted that part of the process involves narrowing down the list. They will
decide as a group which recommendations they can pursue or which are the most important
culturally. They will also take the list to the public . They cannot focus I % on their time on 100
recommendations. He would prefer to spend his time on those where they can make a
difference. He noted that all of the recommendations are on the spreadsheet. He asked the
Commissioners to review the criteria and to research the recommendations if they need more
information.
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Commissioner Blake questioned determining the degree of difficulty for acquiring each
recommendation.
Chair Childs stated that they have to start somewhere. He felt that even though Salt Pond
may be difficult, it is worth going after. They pursued the access through the former Hoban
property because there was a need for access and the money was there, but it wasn't acted on.
He agreed with Commissioner Evslin that if they stop pursuing it now, it would be a disservice to
past Commissioners . The Commission has a tendency of changing members before anything
gets done. He was told when he was appointed, to just do something. He asked the
Commissioners to evaluate the recommendations and they will discuss them further.
Commissioner Evslin commented that was inspirational; just do something.
Discussion on updating the he Open Space Commission' s webpag_e.
Chair Childs stated that they will open up discussions on the recommendations on the
web page when the web page is ready.
Discussion on acquisition of land to expand Salt Pond Beach Park
Deputy County Attorney Jung stated he will make initial contact with the State and set up
a meeting for the Commission to make their pitch.
NEW BUSINESS (Continued)
Review and discussion on the draft Resolution on Coco Palms by the Kauai County
Council .
Chair Childs stated that he did not feel the need for further discussion.
Deputy County Attorney Jung stated that they can track what the Land Trust is doing at
the Legislature and see where the Money Bill is moving.
Commissioner Evslin clarified that the Commission is just waiting.
Deputy County Attorney Jung cautioned that the issue is still moving through
Administrative litigation on the permits. The Commission can track the progress, but they would
need to wait until the entitlement issue is done before they consider acquisition.
The Commission received testimony from Rayne Regush.
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Ms. Regush noted that it would be valuable to have a letter of support from the
Commission to Senator Kouchi and other State Representatives supporting the grant in aide
submitted by the Hawaiian Islands Land Trust for a community based planning process and to
create a funding plan for future acquisition.
On the motion by Theodore Blake and seconded by Linda Dela Cruz to send a letter
of support, the motion carried by unanimous voice vote.
Deputy County Attorney Jung stated that staff can draft a general letter of support with
Chair Childs as the signator.
Discussion by Commissioner Blake regarding alternate accesses to Kukuiula Bay_
Chair Childs stated that this item will be added into the update on status of acquisition
plan for access to Kukuiula Bay as "or other options".
COMMISSION EDUCATION
Status update regarding_upcoming_public access workshop .
Presentation by Planning Department regarding conditions, dedications, and entitlements
through Subdivision and Special Management Area processes.
Deputy County Attorney Jung stated that he could present from his notes today or he can
prepare a PowerPoint presentation for the next meeting.
Commissioner Dela Cruz stated that a PowerPoint would be good.
Deputy County Attorney Jung stated that is will take about 30 to 40 minutes.
Chair Childs stated that they will have a PowerPoint presentation at the next meeting.
UNFINISHED BUSINESS (Continued)
Discussion on 2013 public input process for developing the biennial list of priority
projects to be reported to the Kauai County Council and the Mayor.
Chair Childs noted that the Hanapepe Library event will be on April 6 and the Anahola
Days Festival will be from May 3 -6.
Commissioner Hayashi noted that the Hanapepe Library event will be from 9 : 00 a.m. to
2 : 00 p .m. on Saturday.
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Commissioner Blake stated that he will participate with Commissioner Hayashi. He can
bring a table and chairs for the display.
Commissioner Hayashi questioned if more than two Commissioners could attend.
Deputy County Attorney Jung noted that if more than two Commissioners want to attend
they could form a Permitted Interaction Group, but they would have to detail the scope.
Ms. Sadora noted that she can provide copies of their past report and the new Ordinance.
Chair Childs stated that they should present the list of properties they just suggested, but
because they don 't have anything written up, they could just ask what properties the public
would like to see purchased using the fund and why.
Ms. Sadora stated that they can utilize the survey forms from last year identifying the
address, owner' s name, the protection they are looking at, and why. It would highlight the three
recommendations from last year.
Commissioner Dela Cruz felt that would be sufficient.
Chair Childs agreed that they should keep it simple.
The Commission received testimony from Rayne Regush.
Ms. Regush suggested that it may be a good opportunity to solicit accesses that may be
blocked or have become problematic so there can be in inventory list.
Chair Childs stated that they will leave it broad in scope.
Discussion on island-wide list of accesses and cataloging access conditions.
Chair Childs stated that this is an ongoing project. He questioned the purpose of this
agenda item.
Commissioner Blake stated that he requested a list of accesses . He is working on making
it easier to read. He will narrow it down including the districts and tax map key numbers.
The Commission received testimony from Rayne Regush.
Ms. Regush suggested that committees be formed to do site visits so they can determine
the state of the accesses from the old inventory and divide them up by districts. She suggested
keeping the agenda item continuous to open up more public interest and input.
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NEXT MEETING DATE AND AGENDA TOPICS FOR DISCUSSION
Chair Childs stated that the presentation from Planning Department will be at the next
meeting. He requested a new agenda item to discuss Kaakaaniu. They will select the
Commissioners to attend the meeting with the State at the next meeting regarding the buffer for
Salt Pond.
Deputy County Attorney Jung stated that normally the Chair and another Commissioner
attends meetings with State or County officials . Two Commissioners can attend meetings and
discuss board business as long as there is no agreement to vote.
Commissioner Blake stated that would defer to the West side Commissioners.
Commissioner Hayashi stated that Commissioner Dela Cruz should attend since she was
working on it for many years .
Deputy County Attorney Jung noted that he will keep them posted on the meeting date .
Commissioner Hayashi questioned if one of the salt makers could attend.
Deputy County Attorney Jung stated that they should keep it internal and when it comes
back to the full Commission, the public can be invited for discussion.
Commissioner Blake noted that under the State Scenic Byways program, once you are
designated and complete the corridor management plan that is accepted by the Department of
Transportation, there are grants specifically for signage, trails, and safety from the Federal
Highway Administration. He felt that it may be an avenue for Ms . Kallai ' s concept. He noted
that there is a designated byway in Koloa that was the first on Kauai. The Federal Government
provides funding for the corridor management plan that can run from $50,000-$ 80,000. They
were fortunate to have the tourist industry in Koloa. They are looking for signage, off street
parking, and interpretive centers . The funds are earmarked and the County doesn 't have to
utilize County funds.
Deputy County Attorney Jung stated that he will provide a briefing on Kaakaaniu at the
next meeting because it is primarily a State issue.
Chair Childs requested that staff draft a letter of support for Coco Palms. He stated that
everything from unfinished business can continue on the next agenda. He reminded
Commissioners to work on the spreadsheet.
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ADJOURNMENT
Chair Childs adjourned the meeting at 3 : 59 p.m.
Respectfully submitted by:
Duke Nakamatsu, Support Clerk
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