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HomeMy WebLinkAbout2013-4-25 Open Space Commission Minutes PUBLIC ACCESS , OPEN SPACE & NATURAL RESOURCES PRESERVATION FUND COMMISSION REGULAR MINUTES April 25, 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 Linda Dela Cruz Luke Evslin Patrick Gegen Dorothea Hayashi Maurice Nakahara Absent and excused: Theodore Blake Joseph Figaroa 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 : 05 p .m. APPROVAL OF AGENDA Ms. Sadora noted that Vice Chair Figaroa requested a deferral of the presentations since he would be unable to attend the meeting. She noted the Planning Department is requesting cancellation of the May 9 meeting due to staffing logistics . The next meeting is scheduled for May 23 . Commissioner Evslin noted that he would not be available for the meeting of May 23 . Commissioner Gegen questioned whether the Commission would prefer to wait until Commissioner Evslin was also available. 1 VA2013 Master Files\Commissions\Open Space\Meetings\2013-4-25 Minutes Ms. Sadora noted that the Commission would still be in the development phase of their priority list. Chair Childs recommended the first meeting in June. Commissioners Evslin and Gegen noted that they would not be present on June 13 . Chair Childs stated that they would have the presentation on May 23 . Deputy County Attorney Jung stated that he wouldn' t mind presenting twice. Commissioners Evslin and Gegen noted that they can read the presentation in the minutes . On the motion by Patrick Gegen and seconded by Linda Dela Cruz to defer the Public Access Workshop to May 23, the motion carried by unanimous voice vote. On the motion by Patrick Gegen and seconded by Linda Dela Cruz to approve the agenda, the motion carried by unanimous voice vote. ANNOUNCEMENTS Commissioner Gegen announced that he will be leaving the meeting at 2 : 30 p .m. RECEIPT OF ITEMS FOR THE RECORD Deputy County Attorney Jung noted that a letter was received from Ms . Robin Torquati regarding Larsen ' s Beach Road. On the motion by Patrick Gegen and seconded by Luke Evslin to receive the items for the record, the motion carried by unanimous voice vote. UNFINISHED BUSINESS Discussions on current state of access at Kaakaaniu (,aka Larsen ' s Beach) . Deputy County Attorney Jung stated that some Commissioners were unable to attend the meeting but wanted to hear the presentation and requested that it be deferred. Commissioner Gegen questioned if Ms. Kallai was notified of the request prior to the meeting. 2 V:\2013 Master Files\Commissions\Open Space\Meetings\2013-4-25 Minutes Ms. Sadora noted that the request was only received in the morning and she was only able to leave a voice message for Ms . Kallai. Chair Childs apologized for the confusion. The Commission received testimony from Peter Waldo. Mr. Waldo submitted materials for the record (on file). The first letter references that fee simple ownership of the section of the alaloa that passes through Kaakaaniu is with the State of Hawaii. He would prefer that dialog reference private property being on each side of a public thoroughfare rather than a trail that goes over private property such as the State owned Kuhio Highway at Lepeuli with private property on either side owned by the Waioli Corporation. He stated that fee simple ownership is being claimed by the State, so private property can be on either side of the entity, but it is not a trail that is going through or over private property in terms of semantics. He expressed concern regarding dialog over private property rights regarding the public trail. He hoped that dialog between the DLNR and Ms. Hanwright can be started back up . He stated that he heard from the representative for Patricia Hanwright, that there has been ongoing dialog with the State that he was not aware of and it may be helpful for the Commission to hear from her. If the State is claiming fee simple ownership, he did not see how the County can condemn what is being claimed by the State . Deputy County Attorney Jung clarified that it is not that the County is trying to claim condemnation on any of the supposed alaloa or fee lots. The reference to condemnation was for the 10 mile by 10 foot northeast corridor trail access as proposed by Ms. Kallai . If the County acquires land, they would have to go through a condemnation. It is not that they would condemn against the State if they have a right to a trail. It is a State issue if they want to quiet title against Waioli Corp. or Ms. Hanwright. He referenced Lot 4 that the County attained from Waioli Corp in 1979 that includes the roadway lot and the parking lot. When Waioli Corp. was going to propose a fence that was going to block what some perceived to be the alaloa, there was some discord over the issue. The County worked with Waioli to obtain the existing trail to the beach that was never utilized as a specific easement. This has been a contentious issue between Waioli Corp. and the State as well as some individual members in the public. The County was interested in access to the beach and worked with Waioli Corp . to acquire the trail that already existed, but it would be up to the State to stake a claim for the lateral trail . Mr. Waldo stated that discussions on a lateral trail and discussions on mauka makai beach access are different issues. They are proposing a 10 mile long, 10 foot wide green belt that is a lateral trail. It may intersect with mauka makai beach accesses along the way, but they are two different issues. Chair Childs requested that staff set up the equipment to receive the testimony from Ms . Kallai. Commissioner Evslin questioned the lateral trail and asked for clarification that anyone walking through the gate is walking through Waioli Corp. land. 3 VA2013 Master Files\Commissions\Open Space\Meetings\2013-4-25 Minutes Deputy County Attorney Jung pointed out the two trails are County property. The issue that the State was engaged in with Waioli Corp. is whether the lateral trail is the historic trail owned in fee simple. Until the State makes a claim in Court, it is presumably Waioli Corp . property, but it would be up to the Courts to decide and not the Commission. Commissioner Evslin noted that there are steps along the trail and questioned he maintenance. He also questioned why the gate is left open. Deputy County Attorney Jung stated that he is not sure why the gate is open. He noted that Native Hawaiians have gathering rights but they would have to be established through customary and traditional practices. Mr. Kallai stated that the County right of way was made by Ralph Daehler with the Boy Scouts and complied with some ADA standards. The better part of that trail is still unmaintained. The County accepted another public access easement, but that particular trail was made by cattle that disinterred three human remains that were later moved to upper portion of the Waioli property. She is not sure if there is any current County maintenance for that trail either. Commissioner Evslin stated that someone did a fair amount of maintenance work along the trail including steps embedded in the ground. Mr. Kallai stated that she was not sure who did that work. It may have been Charlie Cobb Adams who is a trails maintenance person for the State, who recognized that there were safety issues. 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 stated that he was informed by the Honolulu counsel for the land owner that they are willing to turn over their appraised value for the easement. He will look at it when he receives it and discuss it at the next meeting. He noted that Mr. Graham would also like to provide a brief presentation of the issues from the land owner' s perspective. Discussion on updating the he Open Space Commission webpage and 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 stated that he would like to narrow the properties down to recommendations by the Commission and ask the public to state which of the ones on the list they would like to see pursued the most. 4 VA2013 Master Files\Commissions\Open Space\Meetings\2013-4-25 Minutes Commissioner Gegen questioned if there is a proposed plan for the year. He drafted a proposal for continuous and ongoing public input process incorporating the discussions from prior meetings. Instead of having specific community meetings, they would participate in more activities like they did in Hanapepe, as well as having the availability on the webpage to list generic sites that they may not be considering at this point. The webpage should reflect whatever they adopt for the public input process. Chair Childs stated that it will end up being a combination of a bunch of different things . Commissioner Gegen stated that the draft includes the input opportunities that are always available which would be the website. He suggested that forms be available at the County building, and a phone number where someone can call in. The idea is to make it easily accessible to everyone at all times. Then include specific input opportunities to interact with the community similar to Hanapepe. He agreed with having a table available at the County Fair where there are 40,000 to 50,000 people. He would like to adopt a plan so they don 't have to revisit it every week. Chair Childs noted that an email was sent out with the different upcoming community events . Commissioner Nakahara noted that they established dates for the community input process . They will be at different libraries and will have their forms available to fill out. Commissioner Gegen stated that he was surprised that the Commission went back to setting up specific times for those and not capturing the opportunities that are already available. His would like to create a plan and execute it. Commissioner Hayashi stated that she initially felt that they should support the prior list because of the work that was put into it, however after the Hanapepe event, she was pleasantly surprised that she was not aware of the feelings of many west siders. One of their recommendations was for the Pakala access to the beach which she never considered and also the right to fish off of Niihau. Chair Childs stated that there will always be the opportunity to provide other recommendations. Commissioner Hayashi felt that it is important to allow that opportunity. Chair Childs questioned the Pakala access problem. Commissioner Hayashi stated that everyone walks along the ditch. She stated that some of them bring children and she worries about their safety. Chair Childs questioned if Commissioner Gegen had any recommendations so that they don't have to keep revisiting this issue. 5 VA2013 Master Files\Commissions\Open Space\Meetings\2013-4-25 Minutes Commissioner Gegen suggested adopting a plan and going with it and reporting back after the event is held. Chair Childs stated that dates were sent out by email. He questioned other ideas. Commissioner Gegen suggested the survey forms be made available online and at the volunteer stations at the County. He questioned how accessible they are going to make it. Ms. Sadora noted that the email was sent regarding public input meetings . The surveys will be available at the Planning Department, public libraries, and neighborhood centers . The Commissioners will be given 25 surveys to distribute within their communities and will be available at the public input meetings. Only the survey has been updated on the website. The other changes have not yet gone live. Chair Childs requested that the properties be listed on the website and that it be left open for the public to recommend others . Listing the 13 sites might provide some direction. Discussion on island-wide list of accesses and cataloging access conditions. Commissioner Dela Cruz noted that Commissioner Blake was working on updating the list. Deputy County Attorney Jung stated that there have beach access guides and inventories but he was not sure when they were last updated. If the Commission would like to engage a consultant, it would have to be through approval by the Planning Department and would have to go through procurement process if funds can be allocated. Chair Childs stated that it would be a large undertaking. Deputy County Attorney Jung stated that legal research would be required to identify if the easements are recorded and are in compliance with terms of the easements. Commissioner Nakahara questioned the cost. Deputy County Attorney Jung stated that they would need to develop a scope of work and then a bid would go out. Commissioner Nakahara stated that if they could have combined County and State access conditions mauka and makai, it can be compared to the publications that are coming out. People using GPS on their rental cars are going to places that may not be legally accessible. If the County or State can come out with a true list, it would be a better way to deal with the issues, especially the makai accesses that are resulting in drowning. 6 VA2013 Master Files\Commissions\Open Space\Meetings\2013-4-25 Minutes Chair Childs stated that they will wait for Commissioner Blake ' s update before any decision is made. Commissioner Gegen noted that they were given a list of 214 beach accesses as of April 23 , 1993 . He questioned what data they already have. Deputy County Attorney Jung stated that it would basically be an update. The Historic Preservation Review Commission does updates on their pre-existing historic inventory. There are still a lot of open ended questions on many of the accesses. Commissioner Nakahara stated that access to the beach near the target range on the west side was listed in a commercial guide book, but staff noted that there is no legal access there. He questioned what is legal and what is not. Commissioner Evslin questioned at what stage they would find out a price range for a consultant. It would make a difference whether they would want to go out for bid. Deputy County Attorney Jung stated that it is negotiated within the Planning Department. The update to the historic inventory sites for Lihue, Koloa, Kalaheo, and Lawai was about $50,000 . He would say that it would be around $ 30,000 to $75 ,000. A consultant would need to research in the Bureau of Conveyances or Land Court to identify recorded easements and create categories. There are many variables to interpret and apply. Then the Commission would go to the Council to request that they either acquire or stake a claim. Commissioner Nakahara questioned if it would be possible to do something in house within the County. Deputy County Attorney Jung stated that if it was the only thing he had to do, he would love to do it. Commissioner Evslin stated that if they could have an interactive map on the website in which people could see the accesses, it would be helpful. Commissioner Gegen stated that it would help to identify all the accesses that exist with a note that if they are not there, to please let us know. Deputy County Attorney Jung stated that they would have to make sure there is a lawful recorded easement so they are not encouraging people to potentially trespass . Commissioner Gegen stated that is what the previous study did. Deputy County Attorney Jung stated that he would probably need to double check them. He is not sure who the consultant was, but they would need to have legal staff review it to be sure it is defensible in court. 7 VA2013 Master Files\Commissions\Open Space\Meetings\2013-4-25 Minutes Discussions on current state of access at Kaakaaniu (aka Larsen' s Beach) (Continued) The Commission received testimony from Hope Kallai (PowerPoint presentation on file) . Ms. Kallai noted that the reef from Moloaa to Pilaa has the best limu kohu in the State and is the most managed marine resource. It was weeded every year so that the good limu would flourish. She noted that segment of trail is a State recognized Na Ala Hele segment. The wedge tail colonies are ground nesting, protected, migratory birds. The trail was acquired because of the Moloaa Hui partition action Grant 10095 that secured that section of the Na Ala Hele as State ownership. The archaeological sites are 1033 and 1034. The trail is on the bluff because you cannot hop the boulders . It is a cultural byway that does not go to the resource that the trail was intended. They are concerned with the safety of people who are trying to access the best limu. It is inaccessible from Moloaa. She referenced letters from sisters who used the trail. There is no doubt that it is the Alaloa in the State ' s mind but it is blocked from the Hanwright property. She questioned the trail and how people can safety access the limu that the trail was meant to access . It was never intended to end at a fence. She noted that it appears that there is fencing on conservation district that needs to be straightened out. The trail can't just end on the cliff. Chair Childs questioned the amount of people that use the trail on average. Ms. Kallai stated that use of the trail is holiday related. People come back during Christmas and there may be 50 people using the trail in two weeks, and then there may not be 50 for the next month. There is no way to predict. Sometimes a family reunion or school reunion will bring in hundreds of people. People who used to walk the trail 20 years ago will come to the fence and think they can go down the cliff, but they can' t. It is a taking of the beach access. She noted that there are senators and representatives that only eat limu from that reef. She does not want to mess with private property rights, but she believes that they have a historic trail. The County has written to the DLNR but they haven't answered back since 2007 . DLNR owns the trail and we can 't do anything until they decide where it is, similar to Hapa Road. The attorney for Waioli Corp . says that the alaloa goes inland to Koolau Road. Their allegation is that from the corner of the Hanwright property, people would walk all that way mauka for a mile and a half and go onto Koolau Road then go back makai a mile and a half again to pull limu. She stated that it is illogical and that you can see the trail . They need the State to step in and clarify. Waipake is developing and selling and the State has a 10 foot wide reservation on the coast. They moved the kuleana from the stream channel for real estate purposes and put them on the bluffs, but the State retained the trail on the coast where it always was and it is in the deed that the State reserves the right for the 10 foot wide ancient trail known as the alaloa. She clarified that she is referring to the 10 mile long trail, not about condemning land. These are low hanging fruit, easily available, trail reservations in the deeds . The reservation is in the deed but the County can 't do anything until the State identifies where it is . She referenced a Court case on Maui with Haleakala and the Maui path people. The trail had been closed for 70 years and the State retained fee simple ownership of the trail that bisected private property. DLNR is working with the path people to protect public trust rights of access. It is a big case that should be settled 8 VA2013 Master Files\Commissions\Open Space\Meetings\2013-4-25 Minutes in May in the Supreme Court. She referenced a book "From Stepping Stones to Curbstones" and the four types of trails . Chair Childs questioned when the fence went up. Ms. Kallai stated that there have been a series of fences that have been put up. Sometimes there were fences with gates . Sometimes there was a cattle guard. Now there is barbed wire that was put up in the late 90s . Commissioner Gegen requested a response from the legal counsel for the Hanwright property. The Commission received testimony from Laura Barzalai, attorney and friend of Patricia Hanwright. Ms. Barzalai stated that she has visited the property for the last 12 years and has seen the amazing conservation efforts that have been done including allowing limu pickers and net fisherman to access the beach over the rocky shoreline that is the traditional access. She will forward exact details regarding the fence. There has always been a fence there; it is an animal fence. She noted many inconsistencies in Ms . Kallai ' s presentation that she prefers to address in writing. Regarding the comment that there is no doubt that this is the alaloa in the State ' s mind, she has been working with the State for the last eight years, and the State does not feel that the alaloa is at the coastal site pointed out by Ms. Kallai. The State has suspended their action and is not moving forward with quiet title action. As a result of several meetings, they have decided to take no action at this time. She would like to work with Ms. Kallai. She has comments about the Maui trail that she will also address in writing. She noted that the trail is being shown by tour only so there are factual inconsistencies that she will be addressing. Chair Childs noted that the "From Stepping Stones to Curbstones" book will be added to the Open Space library. 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 (Continued). Chair Childs questioned the schedule of upcoming community meetings . Ms. Sadora stated that the Commission agreed to participate in the Anahola Town Celebration on May 3 . The Waimea Library does not have a meeting room and the Waimea Tech Center charges so she reserved the Waimea Neighborhood Center for May 15 from 6 : 00 p .m. to 7 : 30 p .m. Chair Childs questioned the status of the display board. 9 VA2013 Master Files\Commissions\Open Space\Meetings\2013-4-25 Minutes Ms. Sadora stated that they are wanting it to be printed with the County logo so that it can be multi-functional. They can utilize the temporary display in the meantime. They are looking at processing time from the companies that are out for bid. They need to target the purchase before the end of the fiscal year. She stated that the Koloa Library has a meeting room, but many of the community meetings are held at the Neighborhood Center so it may work out better for attendance. For June 12, the Lihue Library is currently under renovations and the Commission room is currently being used on Wednesday evenings . They can try to secure one of the smaller meeting rooms in the Piikoi Building or they may have to consider another night. For June 26, Wednesdays at the Kapaa Library are already booked. They have Thursdays available if the Commission would like to consider June 20 . Commissioner Gegen suggested choosing the dates and locations and then determining which Commissioners can attend. Ms. Sadora stated that they will try to determine whatever is available in Lihue for the week of the June 12th. For July 24, she noted that the Princeville Library does not have a meeting room and the Kilauea Neighborhood Center is booked. They can consider the Hale Halewai O Hanalei . They will confirm the times and let the Commission know what dates have been reserved. Chair Childs asked for volunteers for the community meetings. Commissioner Dela Cruz stated that she will attend the Waimea meeting on May 15 . Chair Childs stated that he will also attend the Waimea meeting. Commissioner Evslin noted that he will be unavailable for most meetings . He may be available for the July 24 meeting. Ms. Sadora noted that Commissioner Blake will probably be available for the Koloa meeting. Commissioner Dela Cruz requested public service announcements for the meetings . Chair Childs questioned if Commissioners will be able to attend the Anahola Town Celebration. Ms. Sadora noted that it is an all-day event, Friday through Sunday. Commissioner Nakahara stated that he has another engagement on Saturday and Sunday. He can distribute fliers at the Kilauea celebration on Sunday. Chair Childs questioned the County Fair, Commissioner Nakahara stated that the County Fair is always in August. 10 VA2013 Master Files\Commissions\Open Space\Meetings\2013-4-25 Minutes (Commissioner Gegen left the meeting at 2 :40 p.m.) Chair Childs stated that he can attend the Anahola Town celebration for half a day in the afternoon. Commissioner Hayashi noted that Commissioner Blake may have stated that he was interested in attending the Anahola event. Ms. Sadora stated that she will try to find out their schedule. Chair Childs stated that he and Commissioner Evslin can probably do Friday afternoon. Ms. Sadora noted that the County Fair is August 22-25 . Chair Childs stated that it would be a good resource and requested that staff check into the pricing for a table. Commissioner Nakahara stated that he will volunteer for the North Shore meeting. He suggested checking with Church of the Pacific as a meeting location. Commissioner Dela Cruz questioned if they would need to attend all of the County Fair days. Chair Childs suggested staffing the table the best they can for the three days . He clarified that he can attend the Anahola event from 2pm to 6pm on Friday. Commissioner Evslin stated that he could attend Friday during the day, but he will have to leave at 4 : 30 p.m. NEXT MEETING DATE AND AGENDA TOPICS FOR DISCUSSION Chair Childs stated that the public access workshop was deferred to the next meeting. They will discuss the access to Kukuiula through the former Hoban property and discuss the criteria spreadsheet. He suggested leaving Kaakaaniu on the agenda. Deputy County Attorney Jung clarified that it is a State issue and the County is not a player. It is in the conservation district, and only the State can assert a right to HRS 264. There is always the ability for the County to condemn property, but for what is allegedly reserved in the deed as a historic trail is for the State. Commissioner Evslin questioned if the Commission can write a letter of support. 11 VA2013 Master Files\Commissions\Open Space\Meetings\2013-4-25 Minutes Deputy County Attorney Jung stated that it has been an ongoing issue. The State is not taking a firm position. There would be descent litigation if quiet title action is pursued. Regarding the Maui issue, the path people sued the State for not upholding the public trust in keeping the trails open. Maybe that case will push them to go after it, but there is case law that allows government agencies to pick and choose how they enforce because they can't enforce everything. Chair Childs stated that it might be beneficial in the long run to express the Commission' s support. Deputy County Attorney Jung suggested that the phrasing of a letter should probably be to please provide clarification on the State ' s position because people are asking on a biweekly basis. If the Commission receives a response it can frame whether or not the Commission will support it or understand their position. A two tiered approach will probably be beneficial. Chair Childs noted that they will also be hearing from Ms . Barzalai . Regarding Salt Pond, he questioned Ms . Libre ' s concern. Commissioner Dela Cruz noted that Ms . Libre was concerned about the expansion, but she explained to her that their intention was to create a buffer for the salt pans. Ms. Libre agrees with a buffer. Commissioner Evslin noted that Ms . Libre was against expansion of the beach park. Chair Childs noted that she will come back to speak to the Commission at the next meeting. ADJOURNMENT Chair Childs adjourned the meeting at 2 : 52 p.m. Respectfully submitted by: Duke Nakamatsu, Support Clerk 12 VA2013 Master Files\Commissions\Open Space\Meetings\2013-4-25 Minutes