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HomeMy WebLinkAbout2013-5-23 Open Space Commission Minutes Approved PUBLIC ACCESS , OPEN SPACE & NATURAL RESOURCES PRESERVATION FUND COMMISSION REGULAR MINUTES May 23, 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 (arrived 1 : 13 p.m.) Linda Dela Cruz Joseph Figaroa (arrived 1 : 16 p.m.) Patrick Gegen Dorothea Hayashi John Lydgate Maurice Nakahara Absent and excused: Luke Evslin The following staff members were present: Nani Sadora and Duke Nakamatsu and Deputy County Attorney Mauna Kea on behalf of Deputy County Attorney Ian Jung. CALL TO ORDER Chair Childs called the meeting to order at 1 : 09 p.m. APPROVAL OF AGENDA On the motion by John Lydgate and seconded by Linda Dela Cruz to approve the agenda, the motion carried by unanimous voice vote. APPROVAL OF MINUTES — Minutes of 3/28/13, 4/11/13, and 4/25/13 Commissioner Lydgate noted a correction to the minutes of 4/25/ 13 , in the first paragraph on page 4, from "Deputy County Attorney Jung pointed out that the two trails are County Property" to "Deputy County Attorney Jung pointed out the two trails that are County property". He questioned the source of the 214 beach accesses mentioned on page 7 . 1 V:\2013 Master Files\Commissions\Open Space\Meetings\2013-5-23 Minutes Commissioner Gegen stated the list of beach accesses was distributed at a previous meeting. On the motion by Linda Dela Cruz and seconded by Maurice Nakahara to approve the minutes of the meetings of 3/28/13, 4/11/13, and 4/25/13, the motion carried by unanimous voice vote. ANNOUNCEMENTS There were no announcements. RECEIPT OF ITEMS FOR THE RECORD There were no items for the record. 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 Mauna Kea Trask requested deferral of this agenda item per Deputy County Attorney Jung so he can provide a more accurate briefing and synopsis. Max Graham representing the property owner agreed with the deferral. On the motion by John Lydgate and seconded by Linda Dela Cruz to defer this item to the June 13 meeting, the motion carried by unanimous voice vote. 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 he and Commissioner Dela Cruz attended the Waimea community meeting and there were three people in attendance. One of them attended the past three Commission meetings . The other two were adamant about Salt Pond. People are under the impression that whenever Salt Pond is mentioned, it is associated with development. Sewage was mentioned which he believes is addressed in the Parks Master Plan. A sea wall was also mentioned and stopping people from camping and driving on the beach. They were in support of a buffer area. One of the people felt that the Commission is talking with the wrong people and 2 V:\2013 Master Files\Commissions\Open Space\Meetings\2013-5-23 Minutes the wrong people are showing up at the meetings. He requested a list of people they should be talking to and hopes that he will receive the information by email. Deputy County Attorney Trask stated Salt Pond Park is County property and everything else in the area is State land. The land mauka is under the control of DLNR, Department of Agriculture, via Agribusiness Development Corporation. The salt pans and the area that wraps around toward Port Allen is State Department of Transportation. The County Administration and Council have been active in trying to determine the best management practices and uses. State Historic Preservation, DLNR, also has an overlay of interest because of the salt pans and the historic value and cultural nature. There is a long line of ohana that have been utilizing the pans for cultural practices and economic purposes for thousands of years . They would be the right people to approach. The County has spoken with the Department of Transportation to give them a heads up that the County would like to speak to the Hawaiians first, because that would be the proper protocol. It is a slow process . The ohana themselves are not aligned with one another. There are generational and family differences that need to be respected. Commissioner Lydgate stated it is a very good and important clarification. The word "buffer" is a neutral term, but there are interests that they need to be aware of. Commissioners Blake and Figaroa joined the meeting. Commissioner Blake stated there has been a lot of interest in the salt pans and the Commission is constantly explaining their responsibility. He felt having aerial maps of the area would help in understanding. Ms. Sadora stated the 2011 reports show the property owners with aerial maps. Deputy County Attorney Trask stated he spoke with Pua Ain, the head of State Historic Preservation, and to the best of her understanding, the salt makers notify the SHPD at the start of salt making season although DOT owns the land. There is no tracking of families due to the nature of the ohana unit. Kuulei Santos and Mr. Nobrega are two of the leaders of the groups, but there are elders that direct what goes on according to the cultural practices. There is a formal agreement usually in writing every year by Mr. Nobrega, but they don't know where the documents are located. They can continue to work on it, but patience is a virtue. Commissioner Blake questioned the ownership of the pans. Deputy County Attorney Trask stated the land is owned by DOT but the pans are subject to the rights of native tenants. Commissioner Blake questioned the desires of the salt makers . Deputy County Attorney Trask stated the salt makers want to make sure their kuleana is preserved. They anticipate discussions with them in the future. They learned through the bike 3 VA2013 Master Files\Commissions\Open Space\Meetings\2013-5-23 Minutes path, Section 106 consultation, process that they have to approach things very slowly and to be very open. Whenever a government agency goes down there they are very protective. Commissioner Blake questioned if they all gather. Deputy County Attorney Trask stated they haven 't gathered yet; they are trying to determine who and how to do that. Commissioner Gegen requested an overview of the statements from the Deputy County Attorney. He did not know how much time the Commission should be spending if the County is already pursuing it. They are supportive of the buffer and anything they can do to assist would be great. Deputy County Attorney Trask stated it is high level policy maker type issues. The Council and the Administration have indicated they are interested. When approaching a native Hawaiian group they have to be sure they are approached with the right people and make sure that everyone who is there needs to be there. Commissioner Gegen requested some kind of statement that they can refer to should people make that recommendation at public meetings. They can also refer to the fact that there is a process ongoing. Commissioner Hayashi noted the Commission' s role is not so much the salt pans, but to acquire the land mauka. The salt pans are part of it, but the intent was to acquire the property before it falls into other people ' s hands . Chair Childs agreed that they don't have to worry about the salt pans land. It is the land around the pans. He asked for clarification of Section 106 . Deputy County Attorney Trask stated Section 106 is part of the National and Historic Preservation Act which is a Federal Statute implemented through 36 Code of Federal Regulations, Part 800 which states any time a governmental organization proposes a project or action utilizing Federal funds, they have to take into account any adverse effects the project may have on historic sites, whether it is historic, or any land that would affect Native Americans or Native Hawaiians specifically. For instance, the Wailua portion of the bike path was utilizing Federal funds and may have had a potential effect on Native Hawaiian burials . It does not have to be a burial; it can be a place that has meaning. They would have to go through a consultation process . The County did a typical process up until the Wailua portion of the bike path. Subsequently the County has revamped how it approaches the 106 process . They implemented a process for Phase C and D which will run behind the Coconut Marketplace. Although they were complying with all the legal requirements, the Native Hawaiians didn't feel like the process was working or they were not being listened to or approached correctly for cultural and protocol reasons . They changed the 106 process and modeled it after the Hooponopono process as described Mary Kawena Pukui in Nana I Ke Kumu, Volume I . They realized the best thing to do was to have a member of the Native Hawaiian community run the meetings . The Po ' o was 4 VA2013 Master Files\Commissions\Open Space\Meetings\2013-5-23 Minutes Cheryl Lovell-Obatake and everything went through her. There was no talking to each other and every question is asked to Po ' o and Po ' o relays it. That way, per Native Hawaiian culture, tempers are controlled. There was an opening declaration, kapus were invoked; it was kapu to yell, it was kapu to be disrespectful. It was the fastest 106 ever. Not including the unfortunate passing of Sharon Pomroy and some illnesses that occurred to other people, they finished in about 8 months . Department of Transportation took 4 years . It looks like this is the way it will go from now on. They utilize the Native Hawaiian community to tell them what to do versus telling the Native Hawaiian community what to do. Chair Childs stated that Ms. Holi mentioned 106 during the Waimea meeting, and he was not familiar with it. He felt it was important for the Commission to be familiar with it since they will be engaging the community. Regarding the spreadsheet, Chair Childs stated it is a good indicator of the worth of a site. He would like to come up with a better plan for going after accesses, separate from properties. Many are tied up in legal issues. If a homeowner blocks an access 30 years ago, and everyone has access to it, he did not think it would require use of funds . Deputy County Attorney Trask stated if access is predicated on the granting of a permit, it would already be in effect. The issues are usually liability and maintenance. Chair Childs questioned the Kauapea access. It was designated, but it is not there. It is not an acquisition issue. Deputy County Attorney Trask stated there are issues between accesses that were granted and the accesses that are preferred. Commissioner Blake questioned how to address that issue. Deputy County Attorney Trask stated it is a difficult issue. They have seen Court settlements that are enforceable by the Judge. Agreements are good, but when there changes in land owners there are different ideas. Solving the issues is predicated on the individual facts and circumstances. What can work on the South side may not work on the North shore. Commissioner Blake noted an issue at Lawai Kai where access goes along the coastline along the stones. On a day when there is surf, there are problems. A faction of the community wants the access to be changed to a safer route. The property owner refused because they wouldn't be able to control people that come in and they are satisfied with the existing access. Most people who have lived in the area all their lives consider that private property and respect it. There is a faction that states that it is public land and they want to access it. There are those who are happy with the current access in the interest of keeping it in the ahupuaa for the future generations and the present, and there are those that just want it because it is their right. It seems ridiculous to him at times, but they need to consider it because they do have a right. 5 VA2013 Master Files\Commissions\Open Space\Meetings\2013-5-23 Minutes Chair Childs agreed that to a greater or lesser extent, they all have a right to the beach and to the mountains, but it goes back to picking their battles. Some people can tie them up in Court forever. They should pick the right accesses for their final report and they should be in separate categories ; a distinct access section and a property acquisition section. Ms. Sadora noted she and Commissioners Figaroa and Hayashi attended the Anahola Town celebration with minimal public attendance while they were, but they were able to solicit surveys to be completed from the other vendors . Chair Childs clarified this was the first annual Anahola celebration. Ms. Sadora noted it was a fundraiser by the canoe club . Later in the day was well attended, but not while they were there from l Oam to 2pm. She distributed surveys in the parking lot as they were leaving. Discussion on updating the Open Space Commission webpage. Ms. Sadora stated she was told by members of the public they were experiencing error messages when trying to submit the surveys. IT is working to determine the problem. There is a template for the web design and they are going to use the photo from the reports as the logo for the Commission. Chair Childs requested that the 13 recommendations be listed on the web page for public comment. Ms. Sadora will see if they are able to include the 13 sites. It may be something they list on the main page and people can go to the survey to provide more input. Discussion on 2013 public input process for developing the biennial list of prioritX projects to be reported to the Kauai County Council and the Maw Ms. Sadora stated they have completed the purchase order process and the display has been ordered. The artwork will include the County seal with an attachable name banner. They should receive it within a month. It includes expedited shipping. Commissioner Figaroa questioned if the Princeville Community Center has been reserved for the community meeting. Ms. Sadora stated that because there are facilities that do not charge rental fees, she would need to verify that it can be done and what is required for authorization. She noted the public service announcement in the Garden Island highlighted the meeting dates . The attendees at the Waimea meeting were there because they read the press release. She requested an updated 6 VA2013 Master Files\Commissions\Open Space\Meetings\2013-5-23 Minutes release be issued at the beginning of every month. She noted an error to the North Shore meeting date of June 24 instead of July 24. They will correct the date in the updated release. Chair Childs questioned Hanalei School. Ms. Sadora stated they can look at different locations and adjust the press releases accordingly. Chair Childs questioned the County Fair possibility. Ms. Sadora stated that Beth Tokioka from the Mayor' s office is managing the County booth and is checking if the Open Space Commission can participate in their booth. Chair Childs felt it would be a great source with many people walking by that booth. Ms. Sadora stated she will follow up with the Mayor' s office. Discussion on island-wide list of accesses and cataloging access conditions . Chair Childs stated the island wide list will be a huge undertaking, but possibly needs to be undertaken anyway. Commissioner Blake noted he started working on the list. He used the names associated with the areas because there were five accesses at Anini listed as Stallone 1 , 2, 3 , 4, and 5 . He got the list of TMK from Hope Kallai and the list of accesses that staff distributed at a prior meeting. Chair Childs questioned if there is a clear understanding of which accesses are legal, blocked, etc. Ms. Sadora stated the accesses exist. The list includes research that was done by the consultants. Whether or not there are issues now, will take time to go back and visit. Chair Childs clarified the research was done in 1991 . Ms. Sadora stated the Commission is also looking at creating a system that tracks the accesses when they are attached to something in the Planning Department so there can be follow through. Research will be required to determine if a consultant should be considered, the cost, and whether or not it would be authorized. Commissioner Blake questioned the difficulty in determining if they are legal. Ms. Sadora stated it would require going through the records. 7 VA2013 Master Files\Commissions\Open Space\Meetings\2013-5-23 Minutes Chair Childs stated someone would also have to walk the properties. Ms. Sadora stated creating a cataloging list should be done correctly from the beginning. She suggested a status column that can be updated. Commissioner Blake suggested going through the list, categorizing them by moku, and have each Commissioner check out the accesses in their districts . It will be more work, but they will be the authority in their moku and they can go from there. Chair Childs questioned the alternate accesses to Kukuiula Bay. Commissioner Blake suggested following up with the easement through the former Hoban property first and pursing the others later since the process is already started. If they can get more, it would be wonderful . Discussion on acquisition of land for open space preservation to create a buffer at Salt Pond Beach Park. • Resolution to Hawaiian Islands Land Trust Ms. Sadora stated Deputy County Attorney Jung was going to work on the Resolution. Commissioner Lydgate questioned whether Jennifer Luck from the Hawaiian Islands Land Trust has reported back. Ms. Sadora stated her presentation was general to what they do; it wasn 't specific to a location. Because of the presentation, the Commission considered a Resolution asking for their possible assistance with the buffer area. She questioned if the Commission still wants to continue pursuing the Resolution. Chair Childs didn't see how it could hurt. The Resolution would help the Commission to produce a more complete package to possibly help it move faster. Commissioner Lydgate felt that it would legitimize the whole process . Commissioner Gegen questioned if anyone has looked at the land mauka of the salt pans as part of the ongoing discussions . Deputy County Attorney Trask stated the County cannot acquire State land. It could only be done via executive order. Regarding the 106 issue, there would be no Federal money used, and it is not Federal land so 106 wouldn't apply. The County has been cognizant of not pre- ordaining anything. They want to be able to ask the Native Hawaiian groups what they want to see first, and then see what can be done to help them accomplish it. The difficulty is that it has always been industrial agriculture property. Now BASF leases it. The Department of 8 VA2013 Master Files\Commissions\Open Space\Meetings\2013-5-23 Minutes Agriculture, under Title 11 of the HRS , has a comprehensive scheme in order to direct agriculture in Hawaii. Pursuant to Hawaii State Constitution, Articles 11 , Sections 3 , 4 and 5 requires that the State shall conserve and protect agriculture lands, promote diversified agriculture, increase agriculture self-sufficiency, and assure the availability of agriculturally sustainable suitable lands . That means the State runs the show. If the State in their legal authority wants to lease it to a seed corn company or organic farm, it is totally up to them. The County can't affect it. He felt it is important to talk to the Native tenants in the area. As far as the ponds, the DOT has made it clear that they don' t want to give anything up. It is airport land that may be used in the future. DOT is especially protective of their property. It is really up to the State. They need to be approached as nicely as possible, we need to have all the ducks in a row, there needs to be community buy in, and the politicians need to follow suit if they see value in it. Commissioner Gegen questioned whether going to the Hawaiian Islands Land Trust would be premature since the stakeholders haven 't been approached. Chair Childs stated the Commission is asking if they are willing to cooperate when they ask for it. They will also go to the community. He would like all the paperwork done when they present their report at the end of the year. The Resolution is asking for their participation; not requesting that they ask the State to buy the land. Deputy County Attorney Trask suggested starting it so they have a draft to work with. Chair Childs stated that they have to put something on paper to make the request or it is never going to start. Commissioner Hayashi stated the Native Hawaiians have their rights. She felt the community is also impacted. She questioned the community' s rights. Commissioner Blake stated if they go back into Hawaiian history, the community has more rights than the salt makers, because they live in the ahupuaa. The community has a say in what goes on. Someone who has been making salt for a long time may come from Kekaha. Commissioner Hayashi stated her fear is this property may not be kept for conservation or open. She questioned the possibility that someone could start building. Chair Childs stated the land is currently feral or has corn on it. The Commission' s idea would be to let the land go feral or plant native trees and native shrubs and let it grow back to its natural state so that it would be open land. Nothing would be done beyond preservation. Commissioner Hayashi stated there are many rumors. Some people believe that it is the beginning of the walking path. Chair Childs stated the Commission would want to include strict wording on what can happen on that land. 9 VA2013 Master Files\Commissions\Open Space\Meetings\2013-5-23 Minutes Commissioner Nakahara clarified the bottom line is the Commission is looking at a buffer zone surrounding Salt Pond area. Deputy County Attorney Trask suggested the Commission appoint members to attend the future discussions and they could report back to the Commission as needed, rather than having a hanging agenda item. He can notify the Commission on future meetings . Ms. Sadora agreed there is a protocol being utilized to best manage the area. If the Commission continues on their path on what they want, it may conflict with what could be a good outcome. There was push back at the community meeting and the comment was to educate the Commission on Section 106. If the agenda item is continually listed, the community will continue to question the Commission' s plan. She felt it was a good idea to form a committee to report back to the Commission and allow things to progress . A community member at the Waimea meeting commented if Commission is supposed to support the community, they need educate themselves before they plan what they want to do. Now that the Commission understands what is in the works, she felt it was a good idea. In the long run it will make the Commission ' s support more impactful to have someone at the table supporting the community as well. Chair Childs agreed and volunteered to be on the committee. Commissioner Hayashi noted Commissioner Dela Cruz is from Hanapepe. Commissioner Gegen agreed that it would be important to have someone from Hanapepe on the committee. Deputy County Attorney Trask stated there can be two members. It would be good to have the Chair and the local point person on the committee. Commissioner Dela Cruz requested a copy of Section 106 , Deputy County Attorney Trask stated he will forward a copy to staff for circulation to the Commission. On the motion by Theodore Blake and seconded by John Lydgate to nominate Nathaniel Childs and Linda Dela Cruz to the committee to attend Administrative discussions regarding Salt Pond and report back to the Commission, the motion carried by unanimous voice vote. Discussions on current state of access at Kaakaaniu (aka Larsen ' s Beach) . Ms. Sadora stated Deputy County Attorney Jung requested a deferral on his presentation . Ms. Kallai also intended on presenting, but she was not in attendance. 10 VA2013 Master Files\Commissions\Open Space\Meetings\2013-5-23 Minutes COMMISSION EDUCATION Public Access workshop Presentation by Planning Department regarding conditions, dedications, and entitlements through Subdivisions and Special Management Area processes. This item was deferred. NEXT MEETING DATE AND AGENDA TOPICS FOR DISCUSSION Chair Childs requested an outline for the Resolution from Deputy County Attorney Jung, Ms. Sadora stated she will request a template or projection. Chair Childs stated most of the agenda items will continue on the next agenda. He did not have new business. Ms. Sadora noted there is a community meeting in Koloa on the 291h with Commissioners Blake and Gegen. The Lihue meeting is on June 12 from 6pm — 7 : 30pm in the Moikeha meeting room with Commissioners Hayashi and Lydgate, and Kapaa Neighborhood Center on June 26 with Commissioners Evslin and Figaroa. She noted Commissioner Evslin was only available on June 26 . Commissioner Gegen stated he will not be available for the meeting on June 13 . ADJOURNMENT Chair Childs adjourned the meeting at 2 : 17 p.m. Respectfully submitted by: Duke Nakamatsu, Support Clerk 11 VA2013 Master Files\Commissions\Open Space\Meetings\2013-5-23 Minutes