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HomeMy WebLinkAbout2013-6-13 Open Space Commission Minutes.2 PUBLIC ACCESS , OPEN SPACE & NATURAL RESOURCES PRESERVATION FUND COMMISSION REGULAR MINUTES June 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 Lihue Civic Center, Moikeha Building, in meeting room 2A/2B . The following Commissioners were present: Nathaniel Childs, Chairperson Linda Dela Cruz Dorothea Hayashi John Lydgate Maurice Nakahara Absent and excused: Theodore Blake Luke Evslin Joseph Figaroa Patrick Gegen The following staff members were present: Nani Sadora and Duke Nakamatsu and Deputy County Attorney Ian Jung. CALL TO ORDER Chair Childs called the meeting to order at 1 : 11 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 5/23/13 On the motion by John Lydgate and seconded by Linda Dela Cruz to approve the minutes of the meeting of 5/23/13, the motion carried by unanimous voice vote. 1 V:\2013 Master Files\Commissions\Open Space\Meetings\2013-6- 13 Minutes ANNOUNCEMENTS Chair Childs announced that he recently accepted a job on Maui and will be leaving by September 1 . 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. Chair Childs questioned the status of the appraisals and negotiations. Deputy County Attorney Jung stated the County' s contracted appraiser valued the easement at $80,300 plus an additional $36,000 for fencing and aesthetic landscaping for a total of $ 116,300. The land owner' s appraisal was upwards of $600,000 . If it is pursued, it would probably end up in condemnation. The Commission received testimony from Max Graham representing the land owner, Larry Leight. Mr. Graham stated the appraisal done by the Hallstrom Group for the County totaling $ 80,300 was attributed to loss of use of the area of the proposed pedestrian easement and was a valuation of the area to be taken. It said specifically that it did not consider or evaluate damages if any to the existing property. When property is condemned under the statutory scheme, the amount of land taken has to be paid, assuming the condemnation proceeding is valid because it is being done for a public purpose. He did not think there was any question that condemning land for public access to a beach is public purpose, but the issue is damages . The statute also looks at enhancement or damages to the remainder of the property. If the result of the condemnation is that the remainder loses value beyond the loss of the land being taken, it has to be factored in. On the other hand, if the government is doing a project that enhances adjacent lands, it could be that they are increasing the value of the remainder of property. Then, they would offset it against the value of the land being taken. This property is a little over 12,000 square feet. The house is on the east side and to the west is a small swimming pool; they pretty much take up the entire property. The question is the impact on the value of the property from having the public that close to the pool. The owner commissioned an appraiser to do an estimate that determined the value of the property is about $4.6 million. If there were an access easement along the side, the value would be $4 million. Therefore the damage to the property from having the easement is $600,000 . They can argue the actual damages, but what is clear is that it is much more than the County' s $ 80,000 appraisal estimates that don ' t take into effect the damage to the remainder of 2 V:\2013 Master Files\Commissions\Open Space\Meetings\2013-6- 13 Minutes the property. The Commission needs to decide, given the competing interests, whether it is worthwhile or not, whether it is the top priority, whether they have the necessary funds, and if they are going to recommend it to the Council . The decision needs to be made in the context of understanding what the actual damages might be to the County. If there were another piece of property exactly the same but has no public access going through it, the question is whether a buyer would pay $4 . 6 for the one that has an access on it, or the one that doesn't have the access. They are naturally going to pay less for the one with the access. Chair Childs stated we have a right to the ocean. Because of development, those rights have been slowly encroached upon. Part of the Commission' s job is to take back those accesses for the public. The owner would put up an 8 foot fence so they won 't be looking at people. It is the safest access the Commission could find. It just happens to be on that property. He understands it will take away from the value of the property, but their whole point is to get back some of the accesses. Mr. Graham pointed out in this case it is not taking back an access they used to have . It is a separate problem on the island. This is acquiring a new access. Chair Childs noted at one point there were no houses and essentially they were all an access to the beach. Mr. Graham stated it is the same beach they can get to by walking down from the Spouting Horn. Chair Childs expressed appreciation for the owner' s perspective. Commissioner Nakahara questioned possible negotiations that could occur between the County and the land owner. If there can be an 8 foot high barrier, perhaps the cost would lessen in terms of the loss of value . Mr. Graham stated there is always an opportunity to negotiate. The wall is something the County would have to do. The private land owner, because of the shoreline setback considerations, would have a difficult time getting permission to put in a wall like that. If the County was sponsoring it as part of the acquisition process, it would be much easier. Nobody wants to spend time going through a trial and incurring legal fees. If that can be avoided fairly to all sides it is always possible to try to settle. Commissioner Lydgate questioned the technical definition of the word damages . Deputy County Attorney Jung stated in the context of condemnation it has been evaluated in what is referred to as severance damages ; the evaluation of potential impact the public access is going to bring upon the adjacent property and the kind of damages it will suffer because of continual use of a trail going through that property. There is a parcel that is being severed out, the value of the easement being acquired, and the impact to the remaining area that will remain 3 V:\2013 Master Files\Commissions\Open Space\Meetings\2013-6- 13 Minutes held by the land owner. The Court will evaluate the impacts whether view, invasion of privacy, or noise. Commissioner Lydgate stated public input is paramount in their consideration as Commissioners. He questioned how they would reconcile the two sides and find mediation and compromise. Personally, $600,000 seemed excessive. Chair Childs stated if they go through the mediation of the Courts, it will probably end up somewhere in the middle. Commissioner Lydgate stated he is relatively new and questioned the traditional views of the Commission' s position. There has only been one prior purchase. Deputy County Attorney Jung noted the prior purchase was a negotiated sales agreement so they didn 't have to file a condemnation proceeding. With a condemnation they are operating under the Fifth Amendment to the United States Constitution. They are taking a piece of private property for public use that they would then have to value at what is perceived as fair market value . It is hard to reconcile without expert testimony as to their perception of the market value. The Commission received testimony from Tessie Kinnaman. Ms. Kinnaman urged the Commission to still go forward even if it means going through condemnation. She used the access 57 years ago to access the beach and they never used any other route. Any other access would not be safe. Since the two hurricanes, a portion of the land from Spouting Horn has eroded so it is not easily accessible. The abutting wall from the western property sits a little higher than the Hoban property. She felt a wall between the access and the property would be fine. The amount the land owner is asking is not reasonable. She encouraged the Commission to recommend condemnation to the County Council. Commissioner Dela Cruz questioned if the Koloa Community expressed interest in the access or if it was just a handful. Ms. Kinnaman stated the Koloa Community Association recommended that site for acquisition as a condition of the Kukuiula Development. They had a hard time trying to get the County to work with the Community Association. When the Open Space Commission was started, it was an opportunity to get it going again. Since then, the access has been blocked and they haven 't been able to use it at all. Chair Childs questioned if the land owners are willing to come to the table or if the appraisal is set in stone. Mr. Graham stated the appraisal is set in stone, but as far as negotiation, he was sure they would consider. They haven 't discussed it yet. His suggestion before any litigation is to at least see if they can get the parties together. 4 V:\2013 Master Files\Commissions\Open Space\Meetings\2013-6- 13 Minutes Deputy County Attorney Jung stated if the Commission needs more analysis or a better understanding, they can go into executive session. It can be noticed for the next meeting, or they can keep it on open session for discussion and public testimony. Commissioner Lydgate recommended they go into executive session. Chair Childs stated he will include it on the next agenda. It would also be nice to have more Commissioners present. Discussion on 2013 public input process for developing a biennial list of priority projects to be reported to the Kauai County Council and the Maw Ms. Sadora noted that Lihue ' s public input meeting was last night. Only one person attended; a younger gentleman around 23 years old from the West side who saw the newspaper article. He will complete the survey online. Commissioner Hayashi and she asked him to encourage his family and friends to participate. Commissioner Hayashi noted she was given a letter of testimony from a member of the public that showed up prior to the start of the community meeting but didn 't know the location of the meeting room, so she dropped off her testimony today. Ms. Sadora noted the Koloa meeting was attended by Commissioners Blake and Gegen. There were three people, but there was good dialog from a husband and wife who expressed interest in the shoreline by Makahuena. They were also going to complete the survey online. She will arrange another press release for next month' s meetings and it may be a reminder for people to do it online if they won ' t be attending. She noted it has always been a challenge to get people to show up unless it is driven. Last year there was good turnout but not a lot of people completed an actual survey. The Kapaa and Princeville meetings will be next. Chair Childs questioned the possibility of offering free food. It would be worth spending $ 100 on pizza if they can get 30 surveys. Commissioner Hayashi stated she saw that refreshments were offered at some meeting. Ms. Sadora noted it was for the Koloa community Master Plan meeting. They sent about 6,000 mailers to the area and about 40 people show up. She noted the biggest collection of surveys was from the Hanapepe event. They came away with about 25 surveys. Commissioner Hayashi noted it was a very large event. Ms. Sadora stated they have been in contact with the Administration about the County Fair, but they are still awaiting the extent of availability of space in their booth. Chair Childs questioned if the Commission could get their own booth. 5 V:\2013 Master Files\Commissions\Open Space\Meetings\2013-6- 13 Minutes Ms. Sadora stated she heard that there were still booths available . Chair Childs stated they need to figure out if they are going to share or get their own booth. Ms. Sadora stated that because the County already has a booth, they were looking into the availability of space within that booth. She will look into pricing for a separate booth. 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) Ms. Sadora stated at this point, when the Commission is ready to add additional sites they can come back to the spreadsheet. They need to wait until they receive the survey results in. Chair Childs questioned if Ms. Kinnaman completed a survey. Ms. Kinnaman stated that her recommendation is the same. Chair Childs requested that she distribute the surveys to her friends . Discussion on updatin the Space Commission ' s webpage . Ms. Sadora stated that she needs to follow up with the IT tech. They should be ready fairly soon to go online. At that point, the Commission can provide further input for alterations. Once they determine the legalities, the Commission can decide how to alter it, hopefully by the next meeting. Discussion on island-wide list of accesses and cataloging access conditions. Chair Childs noted that Commissioner Blake was working on updating the list. Ms. Sadora stated that she and Deputy County Attorney Jung need to work together on the cataloging to track existing accesses and their condition. It is going to take some time to plan out. Commissioner Blake is working on the place names. The cataloging will have to come from staff. Chair Childs stated it is a worthwhile project, especially since the last one was 20 years ago. It is a massive undertaking. 6 V:\2013 Master Files\Commissions\Open Space\Meetings\2013-6- 13 Minutes Ms. Sadora stated they are going to determine the statuses of the accesses and track any new accesses that come through the Planning Department. Commissioner Lydgate questioned if there are updated maps. Ms. Sadora noted there is a location map on the GIS, but it would only be for the existing accesses and what is on the report from 2001 . Chair Childs suggested a web page for just the accesses. Ms. Sadora stated that they discussed whether it could be a part of the County website. Discussion on acquisition of land for open space preservation to create a buffer at Salt Pond Beach Park. • Resolution to Hawaiian Islands Land Trust Chair Childs noted they were going to work on a Resolution to the Land Trust. Deputy County Attorney Jung stated that Deputy County Attorney Trask has more intimate knowledge on working with the Mayor on that issue. He questioned if the Commission is delegating the crafting of the Resolution to staff. Chair Childs replied yes. Deputy County Attorney Jung stated once that happens they will work with Deputy County Attorney Trask to narrow the scope to avoid the salt pan issue and work on the buffer issue. He will work with him on trying to identify if any of the lands immediately mauka of the parking area are on any kind of lease with the seed companies . If they are not, they can start trying to work on an executive order. Realistically, it is not looking good. If the lands are not in lease hold right now, they may be in the future. If they can possibly get the Resolution over to ADC seed company to encourage them to at least not to use the lands in the future, it might be a step even if they don 't get the executive order or any type of use of that area. Chair Childs questioned if it would be difficult to break the lease. Deputy County Attorney Jung stated it depends on the terms of the lease so it is on a case by case basis. Chair Childs stated they can send a Resolution to the State. Deputy County Attorney Jung stated the Resolution would be from the body and it can be disbursed to all relevant agencies . 7 V:\2013 Master Files\Commissions\Open Space\Meetings\2013-6- 13 Minutes Chair Childs requested a draft Resolution at the next meeting. Commissioner Lydgate stated his sense is they need to back off from the pressure they originally wanted to exert on Salt Pond because it is a very complex issue with many ramifications and we are not ready to act. Deputy County Attorney Jung stated the Parks Director noted they are not ready to do an expansion. Then it came to the issue of creating a buffer area to protect the salt pans, but that is a sensitive issue in itself. Now they are looking mauka of the actual parking lot area to preserve that area and limit the infiltration of dust and other elements into the park area. They can wrap those issues the Commission is contemplating but focus only on the buffer. Commissioner Lydgate questioned how it is left as a priority for the Commission. Chair Childs stated it has always been one of his highest priorities . Commissioner Lydgate stated he is getting the sense there is more to it. Deputy County Attorney Jung stated there is more to it, but the good thing about the Resolution is that it doesn't contemplate the utilization of funds at this point. It is a policy statement that the Commission wants to preserve the park from outside elements that may be coming in. They can work on at least informing the State that the Commission has an issue. Commissioner Lydgate questioned the degree of urgency. Chair Childs stated that he did not know about the urgency, but if they don't do it, it may never get done. If someone signs a 99 year lease it may be ruined forever. Nothing will happen fast, but the Commission should make it a priority. If they keep passing the buck, it may be all houses one day. Commissioner Hayashi stated this has been an ongoing issue and the previous Commission worked hard on it. Because there are so many factors, they missed a great opportunity in Hanapepe. She would like to request they pursue it with a sense of urgency. Discussions on current state of access at Kaakaaniu (aka Larsen ' s Beach) , The Commission received testimony from Richard Spacer. Mr. Spacer stated the trail the State consistently claims in documents from the Na Ala Hele trail program and 2012 from the Attorney General is hotly disputed by the land owner and the neighboring land owner, Waioli Corporation and Patricia Hanwright. The State ' s position has not changed and they are most disappointed with the Attorney General ' s latest communication saying that although there is a trail, they are not going to do anything about the trail and the fence. From the community ' s point of view it is nonfeasance on their part. If it is 8 V:\2013 Master Files\Commissions\Open Space\Meetings\2013-6- 13 Minutes their trail, they should do something about it and let the public take advantage of it. The illegal encumbrance blocking the trail was repaired a couple of times. He sent a communication to the County Council and William Aila about an incident someone witnessed where someone tried to climb the fence. The testimony was that the visitor from the mainland was forcibly pulled off the fence and thrown to the ground. A witness on a bicycle was told that he was going to be next. He, the Kallais, and the Sierra Club have talked about this in written testimony at the Planning Commission and the County Council. Until the State or the County steps up to the State and takes ownership of the trail, these kinds of things will keep escalating. They aren' t going to go away when people know there is a trail that the State in writing claims is theirs. The community would be interested in knowing what the Open Space Commission wants to do about the situation. Commissioner Nakahara questioned if it was a bicycle or motorbike . Mr. Spacer stated the individual was on a pedal bicycle. Any kind of bicycle or moped could go on the trail when it was open. One suggestion for that location and any location in general would be a device that keeps out cars, bikes, motorcycles, but allows people in . It can be applied to many places . Chair Childs questioned who was forcibly removing people. Mr. Spacer stated the property is owned by Waioli Corporation and the exclusive lease is granted to Paradise Ranch, owned by Bruce Laymon. Usually it is the employees of Paradise Ranch and/or his friends . Other times they have received documents from the Planning Department indicating from Robert Schleck, the Director of Waioli Corporation that over $27,000 was paid to have a private security force in and around the property. They don't believe the actual trustees of the corporation are there. Chair Childs stated the Commission has not taken action on it. There are a lot of things that go into claiming a trail. They are working on a couple of issues, but it is within their scope of vision. They received a presentation from Hope Kallai, but there is no solid action. Mr. Spacer stated he received from Kimberly Mills at Office of Conservation and Coastal Lands a copy of the conservation district use application on the neighboring property at Waipake owned by Falko Partners. The first was rejected because a proposed public parking lot and pedestrian mauka makai trail would have emptied people on the beach near the area where the Waipake stream meets the sandy beach by Pilaa. They re-wrote the plan and submitted a second application with the access and parking lot running along the Lepeuli boundary, more to the Southeast, opening up to a wider part of the beach. It was approved and the permit was issued. Because it is a subdivision, there is a public access component. The latest they heard was the property has not been developed yet so they are not allowing the public there; there is no management and security. In the spirit of open space and access, he requested the Commission send a letter. 9 V:\2013 Master Files\Commissions\Open Space\Meetings\2013-6- 13 Minutes Deputy County Attorney Jung stated it can be an agenda item for the next meeting. They are working on the grant of easement now and he can bring a map at the next meeting. Chair Childs noted they can' t discuss it now since it is not an agenda item. COMMISSION EDUCATION Public Access workshop Presentation by Planning Department regarding conditions, dedications, and entitlements through Subdivisions and Special Management Area processes . Chair Childs questioned if the Commissioners wanted to view the presentation by Deputy County Attorney Jung now or wait for more members. The Commission agreed to wait for more members to be present. Chair Childs recommended that if there are at least six members, they will have the presentation. He requested that staff suggests that all Commissioners attend the meetings. Ms. Sadora noted that they anticipated 7 commissioners attending the meeting, but 2 canceled today. Chair Childs stated they will schedule the presentation for the next meeting. Commissioner Hayashi stated she will not be able to attend the next meeting. Ms. Sadora noted Commissioner Evslin will probably still be unavailable, but there should still be 7 commissioners at the next meeting. NEXT MEETING DATE AND AGENDA TOPICS FOR DISCUSSION Chair Childs stated that he would like to hear about the Waipake project. Deputy County Attorney Jung stated he will work with staff to list it on the agenda. Ms. Sadora noted she will not be on island on June 27 . Chair Childs requested that the information be made available regarding the County Fair, etc . He can read they update or they can distribute handouts . He also requested an executive session on the access easement to Kukuiula Bay through the former Hoban property. He questioned the election process for new Chairperson. 10 V:\2013 Master Files\Commissions\Open Space\Meetings\2013-6- 13 Minutes Deputy County Attorney Jung stated he will outline the process for selection of Chair pro tem. Commissioner Lydgate questioned how the County can impact a State issue . Deputy County Attorney Jung stated he will discuss it in the presentation. When they get a proposal from a developer, they look at getting access or easements through the entitlement process. Time permitting it will come to the Open Space Commission to possibly make recommendations to the Planning Department. It is hard to look at locational issues because it depends on the layout of the subdivision and topographical or various geological features on the property, where the development team for the developer comes together and formulates where the access will go. This will be the first in a while. The prior ones were in 2005 and 2007 with certain hotels on the east side that were engineered and structured to be accommodating for the bike path. This will be the first big subdivision where there is an access easement produced. Commissioner Lydgate stated the information that people come up with such as the $27,000 for security is a new development. They are concerned about their properties. He questioned how that works. Chair Childs stated in reality that could be one part time security officer that can be justified as cattle. It isn 't that much for security for a year. He stated they will keep everything else on the agenda. Commissioner Lydgate questioned if Commissioner Blake will be presenting. Chair Childs stated Commissioner Blake may have an update on the list of accesses . It is a huge project that will take a while . They will also have an update from the Kapaa community meeting. Ms. Sadora noted that Commissioners Evslin and Figaroa will be attending the Kapaa meeting on June 26. Chair Childs questioned if they can advertise refreshments between now and then . Ms. Sadora will check on the guidelines or restrictions. The Development plan meeting on the south shore was arranged by consultants that were hired to do the community outreach. The Department was only facilitating the meeting. Chair Childs stated if they are able to advertise refreshments they can see if it affects the numbers. Commissioner Dela Cruz suggested cookies and juice. Being that all of the public meetings haven 't been very successful, having the handouts at the County Fair is important. 11 V:\2013 Master Files\Commissions\Open Space\Meetings\2013-6- 13 Minutes Chair Childs stated he will try to be here for the County Fair. He would love to sit in the booth for a shift of two . Commissioner Dela Cruz stated they can work in shifts . ADJOURNMENT Chair Childs adjourned the meeting at 2 :34 p.m. Respectfully submitted by: r Duke Nakamatsu, Support Clerk 12 V:\2013 Master Files\Commissions\Open Space\Meetings\2013-6- 13 Minutes