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HomeMy WebLinkAbout2013-7-11 Open Space Commission Minutes Approved PUBLIC ACCESS , OPEN SPACE & NATURAL RESOURCES PRESERVATION FUND COMMISSION REGULAR MINUTES July 11, 2013 A regular meeting of the Public Access, Open Space & Natural Resources Preservation Fund Commission of the County of Kaua'i was held in the Lihu'e Civic Center, Mo ' ikeha Building, in meeting room 2A/2B . The following Commissioners were present: Nathaniel Childs, Chairperson Theodore Blake (arrived at 1 : 15 p.m .) Luke Evslin Joseph Figaroa (arrived at 1 :43 p.m .) Dorothea Hayashi John Lydgate Maurice Nakahara Absent and excused: Linda Dela Cruz Patrick Gegen The following Staff members were present: Planning Department, Nani Sadora and Duke Nakamatsu; Boards and Commissions Staff, Mercedes Youn, Paula Morikami, and Teresa Tamura; and Deputy County Attorney, Ian Jung. CALL TO ORDER Chair Childs called the meeting to order at 1 : 10 p.m . SELECTION OF CHAIR AND VICE CHAIR Chair Childs called for a motion to defer this item to the last meeting in August. On a motion made by Commissioner Lydgate and seconded by Commissioner Nakahara to defer Item A. Selection of Officers to the August 22nd meeting. Mr. Nakahara asked the Chair if he was going to attend the first meeting in the month of August. Chair Childs replied that he would be attending the August 8th meeting. Mr. Nakahara asked if the selection can be. deferred to the August 8th meeting since the Chair would still be here. Mr. Lydgate indicated that he would be able to attend the August 8th meeting but will not be available for the rest of the month in August. Mr. Evshn stated that he would not be available on August 81h because it' s the day of his wife ' s 30th birthday. Mr. Nakahara suggested that the Commission defer the item to its July 25th meeting. The Commission all agreed. Deputy County 1 VA2013 Master Files\Commissions\Open Space\Meetings\2013-7-11 Minutes Attorney Ian Jung stated that the Commission should bear in mind that if Chair Childs attends the meeting he would have to relinquish his chairmanship after the vote, Chair Childs agreed . Deputy County Attorney Jung advised the Commission that technically Commissioner Lydgate should withdraw his original main motion and Commissioner Nakahara should withdraw the second and do a new motion. Commissioner Lydgate withdrew his original motion and Commissioner Nakahara withdrew the second. On a motion made by Commissioner Nakahara and seconded by Commissioner Lydgate to defer the selection of Chair and Vice Chair to the July 25th meeting, the motion carried unanimously by voice vote (5 : 0). APPROVAL OF AGENDA Chair Childs stated that before the Commission approves the agenda he would like to modify the agenda by taking public testimony after Item E . Receipt of the records . Deputy County Attorney Jung clarified that the re-organization of the agenda is to take Item F. 4. before Item E . to accommodate the lady who has requested to testify. He suggested that the Commission make a motion to approve the agenda as modified. On the motion made by Commissioner Lydgate and seconded by Commissioner Hayashi to approve the agenda as modified, the motion carried unanimously by voice vote (5 :0). ANNOUNCEMENTS Nani Sadora announced that the Office of Boards and Commissions will be taking over the recording and transcribing of the meeting minutes. Duke Nakamatsu and Nani Sadora will remain as support Staff for the Commission . Commissioner Evslin noted that he needs to leave the meeting by 3 :30 p.m , Deputy County Attorney Jung noted that it might break quorum . Child Chairs noted that the meeting should be over by 3 :30 p.m. Commissioner Evslin noted that he can stretch the time if needed . RECEIPT OF ITEMS FOR THE RECORD There were no items for the record. 2 VA2013 Master Fifes\Commissions\Open Space\Meetings\2013-7- 11 Minutes UNFINISHED BUSINESS Discussion on 2013. public input process for developing the biennial list of priority projects to be reported to the Kauai County Council and Mayor The Commission received testimony from Bonnie Bator, Ms. Bator submitted written testimony for the record (on file) similar to the one she gave on June 26th at the Kapaa Neighborhood Center. She asked that the Commission place Ma'alo on its biennial list of priority projects. She stated that Governor Neil Abercrombie gave the land to Mayor Carvalho who wants to turn it into a dump for the next three hundred years . She asked . that the Commission do what they can to protect Ma'alo from becoming a dumping ground which would not cost the Open Space Commission a dime of their funding. Commissioner Nakahara asked if the land is currently being used for agriculture. Ms. Bator replied that there are some farmers that are utilizing the land for agriculture. Commissioner Nakahara asked if she knew what they were planting. Ms . Bator stated that it is her understanding that the farmers are planting bananas. She noted that she even spoke to someone at the DLNR (Department of Land and Natural Resources) to find out what type of Ag designation the land came under. She stated that there is a site study that can be found on the County' s website that shows aerial photographs of where the artesian wells and irrigation lines are located. She suggested that the Commission arrange a fact finding field trip to the site. Commissioner Nakahara asked how far the area is from the K1UC power plant. Ms. Bator stated that the KUIC power plant is located close by, which is the reason the County picked the site in the first place, to put the Solid Waste Landfill. She voiced her concern that there are people that are sitting behind closed doors and looking at Kaua'i like it' s a monopoly game and making decisions to suit the agenda of these big land owners . Commissioner Lydgate asked how close to the coast is Ma' alo situated . Ms . Bator stated about a mile and a half. Commissioner Blake stated that he understands her concerns regarding the location of the proposed landfill. He asked if she had suggestions or options on where to put the proposed landfill . Ms . Bator replied that the best place for the proposed landfill would be at Umi because the County paid. 1 . 8 million dollars to acquire the land. She noted that there were eight other locations mentioned in the site study but Ma' alo was picked because the land was free. Commissioner Blake asked Ms. Bator, of all of the options that were available were there others that she felt was better than Ma' alo . Ms . Bator stated Kekaha has held the burden of the dump since 1955 and that the people of Kekaha needed a break. She stated that the best location for the County to put the proposed landfill is on Umi because the area is very dry. The Commission received testimony from Loea Keana' aina. 3 VA20I3 Master Files\Commissions\Open Space\Meetings\2013-7- 11 Minutes Ms. Keana' aina stated that Walo is on Hawaiian land that should be protected and not used as a dump. Presentation from Ms. Hone Kallai regarding the Kilauea River corridor as it pertains to the scenic aspect of the Kilauea Falls. Ms. Kallai stated that she prepared her presentation back in April 2013 because of a situation regarding the Kilauea River corridor that has her neighborhood association entering into a contested case. She believed that the situation is an open space issue and that the Commission should be involved . She explained that due to development fishing and public access to the Kilauea River, the corridor is now restricted and that no one in the Kilauea community knew that they were going to lose access to the river, especially with Kau'pea being closed. She stated that HILT (Hawaiian Island Land Trust) has acquired a portion of the land but now there seems to be an issue with the trees disappearing which prompted HILT to offer a reward . She stated that the Federal government was in negotiations to acquire the land however, Mr. Somers eventually bought the land . She noted that the Federal government had other plans for the land which was to provide public access throughout the Kilauea River corridor. Commissioner Lydgate asked when the land was acquired by Mr. Somers. Ms . Kallai stated that the land was acquired in 2004 or 2006 . Commissioner Lydgate asked prior to Mr. Somers' purchase of the land, what was the Iand being used for. Ms. Kallai stated that the land was placed on the market a couple of times and that the Federal government was actively involved in the negotiations. Commissioner Lydgate asked how many acres of the land are there. Ms. Kallai stated that the land consists roughly of 160 acres of conservation easement. Ms. Kallai stated that Kilauea Falls is one of the major features of the river corridor; it has a lot of cultural importance and by aspects of the maps you can see trails throughout the Kilauea area. It was determined through the Highways Act of 1892 that the trails should be usable in perpetuity because it allowed public access to the river corridor. Montserrat' s map of 1892 depicts trails continuing throughout the Kilauea area; the landing area was just as important because it had rail road ties . Downstream from the Kilauea slippery slide is the Kilauea Falls. Ms . Kallai stated that the Kilauea River corridor is very important to the town of Kilauea and the community was devastated when they learned they were going to lose public access by the conservation easement. She stated that there is a lot of documentation on public use in the area and the river is the heart of Kilauea. She pointed out a road sign that says CLOSED which is posted on the corner of Kilauea Lighthouse road and Kahili quarry road that instructs the public to use the Wailapa road to get to the beach. She stated that one of the conditions in the permit was to put crushed coral on the entire length of the existing roadway, but it has been five years into the development and there is still no crushed corral . Ms . Kallai pointed out that most of the land surrounding the Kilauea River corridor is within a conservation easement that was acquired by HILT after Mr. Somers bought the land. Public access has always been a priority for everyone, but somehow it was lost to the community. In 2010 through Act 233 , the State recognized the importance of trails, networks, and greenways . In 2005 the Open Space 4 VA2013 Master Piles\Commissions\Open Space\Meetings\2013-7- 11 Minutes Commission started its first report that made public access to Kilauea Bay, Slippery Slides, and Kilauea Falls a priority, however somehow it fell off of the radar and as a result the loss of public access. She stated it is now up to the I{ilauea Neighborhood Association to enter into a contested case, which to her made no sense. She stated that if a cultural feature on a conservation easement is going to be impacted, it needs to be brought into the discussion . She noted that cultural access was not considered in the conservation easement and she encouraged the Commission to take a position on the issue because it relates to public access and open space. She stated that the Natural Fish and Wildlife Resource agency considers the Kilauea River corridor the most pristine navigable estuary left in the State of Hawaii . Commissioner Evslin stated that he has never been to Kilauea Falls and asked what the conditions of the trail are . Ms. Kallai stated that the trail looks a like road. Commissioner Evslin asked whether Mr. Somers cut off public access to Kilauea Falls . Ms. Kallai said yes and that he also cut off access to the river and now the public can no longer fish there. Commissioner Evslin asked what happens when you kayak up the river. Ms. Kallai stated that there is a portion of the river where you will get watered out because the gravel bed will prevent you from kayaking further up the river. Ms. Kallai stated that when the issue went. before the Planning Commission there was a lot of public testimony and concerns regarding the development. She stated that pro rmses were made and one of them was to put crushed coral on the Kahili quarry road . She stated the other stipulation in the permit was to prevent the development from visual impact of the surrounding area, but the building alone is almost as big as the proposed Kilauea Shopping Village, Chair Childs asked for clarification on whether HILT bought the conservation easement in the area. Ms . Kallai confirmed that HILT purchased the conservation easement but at what price, she doesn't know. She noted that there was no public access considered in the negotiations . Ms. Kallai asked Deputy County Attorney Jung if he knew the date of the contested case hearing. Deputy County Attorney Jung stated that the contested hearing date has not been set and that the KNA is looking into retaining an attorney. Ms. Kallai stated that it is crazy that the Kilauea Neighborhood Association now has to hold a fundraiser just to retain an attorney. She asked the Commission for input and guidance on whether they felt the issue was just for the I{ilauea community or the County. Deputy County Attorney Jung asked if the suit is against HILT for not providing public access . Ms . Kallai stated that issue has not yet been determined and that the people are upset because they are being denied access . Chair Childs stated that the Commission would like do whatever it can to help the situation, even draft a resolution . He pointed out that for him personally, he would go after the owner in an aggressive manner because his hired security should not keep the members of the community off of land that is essentially open to the public. Vice Chair Figaroa asked whether she approached the Building Department. Ms . Kallai stated that part of the reason the permit was granted was because a condition was made that the 5 VA2013 Master Niles\Commissions\Open SpaceMeetings\2013-7- 11 Minutes caretaker ' s house which included a barn would not be built, however she has learned that Mr. Somers had the nerve to ask that the barn be re-implemented into the plan. Vice Chair Figaroa asked whether KNA had informed the agency who granted the permit that Mr. Somers was not conforming to the original conditions, and to request that they revolve the permit. Ms. Kallai stated that she did and the response she got was the issue would be deferred until the completion of the contested case . Deputy County Attorney Jung pointed out that he would have to interject at this point. He explained that there are two different functions of various commissions. The Planning Department and the Planning Commission is a permit issuing agency and this body should not get involved with imposing permit conditions. He further explained that the Open Space Commission is a body that makes recommendations to the Council on where to expend money for acquisitions . He stated that if the Commission wants to look into the possibility of condemning land they would need to go after public accesses, which is within the Commission' s purview. The enforcement of the conditions is for the Planning Commission to look at. He stated., given that this case is entering into a contested case hearing it will eventually get to an evidentiary phase and that' s when Ms . Kallai can testify, which is a separate process in and of itself. Deputy County Attorney Jung stated that be is hesitant to provide any commentary on this issue because at some point the County will be going into an administrative litigation, which is what a contested case is all about, going before a hearings officer to justify whether or not the request for the additional guest house should be granted or not. Vice Chair Figaroa asked if the purpose today was to bring awareness to the Commission relative to the Kilauea River corridor. Ms. Kallai stated that the main issue has to do with the restriction of public beach access to the Kilauea River corridor. She noted that public access is listed in the County' s inventory and that now someone is preventing the. public from using that public access . Deputy County Attorney Jung asked if the sign was located in front of Mr. Somers' house . Ms . Kallai said no, the sign is located at the intersection of Kilauea Road and Kahili Quarry. Commissioner Blake questioned if the situation that Ms. Kallai just described can be construed as an open space issue. Deputy County Attorney Jung stated that there is no such thing as a so called open space; the County has a zone for open district which he believes is where a portion of the area is in . He stated that the subject area has no specific County dedicated access and a person may be trespassing if they were to go to the waterfall. Commissioner Blake asked whether the Open Space Commission would have any standing if it were to make a recommendation . As he indicated earlier, Deputy County Attorney Jung stated that the only recommendation the Open Space Commission can possibly do is to try 6 VA2013 Master Files\Commissions\Open Space\Meetings\2013-7-11 Minutes to condemn the trail up to the falls, however the Council would have to waive the potential liability because of all of the issues and injuries at a freshwater waterfall area such as Kipu Falls . Commissioner Blake noted by looking at the existing conditions that has passed relative to the permitting, can the Commission ask for a status from the Planning Department and its Inspection Division including the Public Works Building Division. Deputy County Attorney Jung stated that the Commission could, but given that he is involved with the contested case hearing he would have to advise the Planning Department to wait until it gets to the evidentiary portion of the contested case . He advised the Open Space Commission to wait before it formally submits something over. He explained that the Commission would need to identify all of the issues before it can make a recommendation. Commissioner Blake asked whether it would be appropriate for the Commission to file this matter for it to become its issue too . Deputy County Attorney Jung stated that it would be up to the Commission to decide. Chair Childs stated that the way he sees it the Commission needs to give it some time to settle before it can to do anything because at this point the issue has not yet been settled. Commissioner Blake stated that although he agrees, it would still be nice to know that pressure is coming from an outside source to get more answers. Chair Childs asked Commissioner Blake what he would like to propose. Commissioner Blake suggested that the Commission make a motion to check with the Planning Department and the permitting inspectors to see if the permit is being adhered to because the issue has the possibility of falling into the purview of the Open Space Commission because of the denial of public access . Secondly, make an inquiry to the Building Department to see if they are also responsible in making sure that conditions of the permit are being adhered to . Deputy County Attorney Jung explained what will probably happen is Planning would forward the Staff Report to the Commission. Commissioner Blake stated that as long the discussion is on the record to show that the Open Space Commission is concerned and has taken interest in the matter. On a motion made by Commissioner Blake and seconded by Commissioner Nakahara, to send a request to the Planning Department asking for a status on the permit usage including an update to see if the conditions of the permit are being adhered to; send an inquiry to the Building Department relative to its responsibilities to ensure that the conditions of the permit are being adhered to; the motion carried unanimously by voice vote (7 ; 0). The Commission received testimony from Tim Kallai . Mr. Kallai began by thanking his wife Hope Kallai for her hard work in putting together the presentation . He felt that it was important to keep the issue on the forefront for the best 7 VA2013 Master FilesiCommissions\Open SpaceWeetings\2013-7- 11 Minutes interest for Kauai because it is not just a community issue, it is something larger which could affect other parts of island relative to public access . He stressed how important it is for the people of Kaua' i to have access to its pristine beaches and waterway. As for these private landowners, they need to know that part of owning the land is it is their stewardship rights to ensure that all public access is offered to the general public with the greatest of aloha. He asked for the Commission's assistance whether through a condemnation process or a letter of intent, either one. He thanked the Commission for keeping the issue on its radar. The Commission received testimony from Bonnie Bator, Ms. Bator thanked the Commission for taking an interest in the matter. Relative to her dismay about the movie industry receiving a tax credit from the legislature, she voiced her concerns asking why is the movie industry being allowed to come to Kauai and run rampant? They have re-routed rivers up at Waialeale and have used pyrotechnics in cultural areas for their scenes , She voiced her concern that the big movie directors have purchased property and is denying public access. 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 or alternate access options Deputy County Attorney Jung stated although he has identified the landowner he did not have the opportunity yet to contact the landowner but would try to do so before the next meeting. He noted that the land is owned by a mainland firm and that he would try his best to get a phone number by utilizing the new Westlaw Next software, which is a legal research tool that can actually track and locate people . Commissioner Nakahara asked why the attorney for the landowner couldn' t provide him with the landowner's number. Deputy County Attorney Jung stated as far as he ]mows there is no attorney on Kauai that represents the landowner and the land happens to be a vacant lot. 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 Iist (2013 Report) Chair Childs stated this is just another item that the Commission needs to think about. He asked Ms . Sadora if there were other outstanding community events. Ms . Sadora indicated that the last round of meetings will be held at Hale .Halawai ' Ghana ' O Hanalei also known as the Hanalei Community Center on Wednesday, July 24, from 6 to 7 :30 P.M. Commissioners Figaroa and Nakahara will be in attendance. Commissioner Evslin asked when the Commission would receive the results of the survey. Ms . Sadora noted that following the Hanalei meeting, the Commission will begin .to 8 VA2013 Master Files\Commissions\Open Space\Meetings\2013-7- 11 Minutes draft their biennial recommendations to the County Council on which sites should be acquired using the Open Space Fund. Chair Childs asked about the County fair. Ms. Sadora stated she has information to share and would do so once the item comes up on the agenda, Discussion on 2013 public input process for developing the biennial list of priority projects to be reported to the Kauai County Council and Mayor Chair Childs noted that the Commission will begin to draft its biennial list of recommendations once the results of the survey are compiled , Ms. Sadora stated that she was able to get a communication back from Beth Tokioka who is recommending that relative to attending the County Fair, it would not be a good idea to have a shared booth with what the Commission wants to do relative to its survey. Ms . Tokioka wants to make sure that the Commission is committed to manning the booth for the duration of the fair before she actually goes to the Farm Bureau to ask fora free booth. Chair Childs noted that the dates of the County Fair are from August 22-25 . He informed the Commission that he would not be on island and that it was up to the Commission to decide if they want to commit or not. He stated that it is a great opportunity for the Commission to meet the public . Ms. Sadora stated that if the Commission decided to commit to a booth, the times of coverage would be on Thursday, August 22 and Friday, August 23 from 6 p .m. till 12 midnight; Saturday, August 24 from 12 p.m. till 12 midnight; and Sunday, August 25 from 12 p.m . till 5 p .m. with the busiest day on Thursday and Friday. Ms, Sadora noted that if the Commission needed to pay for a booth the cost for a non-profit would be $300.00. Commissioner Blake asked if there would be a storage area to keep the materials . Ms. Sadora stated that the materials would. be placed in plastic bins and kept in the booth that is assigned to the Commission. Commissioner Blake asked if the Commission decided not to get a booth will they be provided with a storage place . Ms . Sadora stated that the only way the Commission can solicit its survey is they must have a booth , Commissioner Blake pointed out that his experience in soliciting input from the public is you have to actually go out and work the crowd; sitting in the booth will not be effective. Chair Childs stated that according to the Farm Fair policy every organization must have a manned booth in order to solicit the public. Ms . Sadora noted that Ms . Tokioka recommended that the Commission come up with ideas to help draw the public to its booth and minimize the survey to just one sheet. Chair Childs stated that was a good idea and that the Commission would need to work on minimizing the existing survey. Ms. Sadora suggested that the Commission keep the Open Space photo on its survey and have the rest of the information on display at the booth. 9 VA2013 Master Files\Commissions\open SpaceiMeetings\2013-7-1 l Minutes Ms. Sadora suggested that the Commission make its decision as soon as possible so that Beth can secure a booth. Commissioner Evslin stated that he can work either on Thursday or Friday afternoon but will begone for the weekend. He offered to provide seedlings of Koa Trees or basil to help draw the public to the booth . Commissioner Hayashi questioned if the intent is to list the entire list. Chair Childs noted it was just an idea. Ms . Sadora noted that the list of recommendations can be placed on the Commission ' s display board , She added that the new survey would only include the three recommendations from last year. Vice Chair Figaroa noted that the Commission does not need to decide right now on the actual layout of the survey; what it needs to do is figure out if it is going to participate or not. Chair Childs agreed. Deputy County Attorney Jung asked if two members must be at the booth at all times. Ms . Sadora stated that Ms . Tokioka will not ask for space unless there is a commitment from the Commission . She noted that she does not see a problem with having just one member manning the booth but would prefer two. Vice Chair Figaroa asked for clarification if the participation meant both Commission and Staff. Ms. Sadora said yes however, the Commission participation cannot exceed two members . Vice Chair Figaroa asked when does Beth need an answer? Ms. Sadora said it is up to the Commission, but the longer it waits would make it harder for Beth to secure a booth. Commissioner Lydgate noted that he would be available on Saturday and Sunday afternoon . Commissioner Blake stated that he would first like to have assurance that the survey would be modified to a simpler format before he gives his okay on whether or not the Commission should commit to a booth . Chair Childs clarified that the long survey will be displayed at the booth and the new survey will be handed out to the public , Commissioner Blake noted that if the Commission is going to do a survey at the fair it needs a survey that is direct and simple and not ownbersome like the survey that was done in Hanapepe , Vice Chair Figaroa pointed out the Commission can talk about the survey all it wants, the bottom line is that it needs to decide whether it is going to participate or not. Commissioner Blake reiterated that he would like to see the survey first before he decides whether the Commission should participate or not. Vice Chair Figaroa asked if he should take that as a no. Commissioner Blake clarified that if the Commission is going to participate he would like a commitment from the Commission that it will work on creating a new survey. Chair Childs noted that the Commission would commit to create a new and simpler survey. Deputy County Attorney Jung suggested that the Commission make a motion . On a motion made by Vice Chair Figaroa and seconded by Commissioner Hayashi, for the Open Space Commission to participate in the 2013 Farm Bureau Fair from August 22-25. 10 VA2013 Master Files\Commissions\Open Space\Meetings\2013-7-11 Minutes Commissioner Evslin pointed out that if everyone says yes and then no one can do it on Sunday from 4 till 6 p.m . the motion would be for not. He noted that he was absolutely sure that he cannot commit to the four days, only one or two . Commissioner Lydgate noted that he would like to abstain from the vote because like Commissioner Evslin, he too cannot commit to all four days. Deputy County Attorney Jung noted that it does not need to be decided upon today, we just need to know who can be flexible. Chair Childs noted that the only reason the Commission is voting today is because of the time constraint. Deputy County Attorney Jung noted that as long as the Commission agrees to fill in on certain days. He noted that it can become a problem if the Commission commits to a certain time and finds that no one is available . Vice Chair Figaroa noted that it shouldn't be a problem because it includes the Commission and Staff. Deputy County Attorney Jung noted that a Staff member may need to be there at all times . Commissioner Hayashi noted that she understands what Commissioner Blake is trying to say but her commitment is to the Commission and if this is vital to the Commission' s report she would like to be available. Vice Chair Figaroa noted that Commissioner Evslin stated that he would make himself available according to his schedule whether it' s one or two days. Deputy County Attorney Jung joked that he may not be able to attend because he is just the legal guy. Vice Chair Figaroa noted that he would be available and asked for a roll call vote to signify the availability of the Commissioners . On a motion made by Vice Chair Figaroa and seconded by Commissioner Hayashi, for the Open Space Commission to participate in the 2013 Farm Bureau Fair from August 22-25, the motion carried by roll call vote. Commissioner Hayashi Yes Commissioner Lydgate silent vote Commissioner Nakahara Yes Commissioner Blake Yes Commissioner Evslin Yes Vice Chair Figaroa Yes Deputy County Attorney Jung suggested that the Commission work with Ms . Sadora regarding the scheduling. He asked also that Ms . Sadora create a matrix to help with the time arrangements and send to the Commissioners via email . Deputy County Attorney Jung noted that he would only be available during the later part of the night, but only if the Commission really needed him . Discussion on island-wide list of accesses and cataloging access conditions. I1 VA2013 Master Files\Commissions\Open Space\Meetings\2013-7- 11 Minutes Chair Childs asked how the island-wide list was coming along. Commissioner Blake reported that the list should be available by the next Commission meeting. Discussions on current state of access at Kaakaaniu (aka Larsen ' s Beach Deputy County Attorney Jung explained that at the last meeting, Chair pro tern Nakahara requested that the item remain on the agenda until the Commission receives information on an official time that it will be worked on. He stated that the Commission may ask for public testimony on the item but noted that agenda Item G. 2 also refers to a draft letter from the Open Space Commission to the State Attorney General requesting for additional information on the traditional alaloa trail in Kaakaaniu. Ms. Sadora provided the draft letter to Deputy County Attorney Jung and noted that she did not make any copies for the Commission. Chair Childs asked Deputy County Attorney Jung to read the draft letter to the Commissioners . NEW BUSINESS Resolution from Open Space Commission to the State Attorney General requesting information on the traditional alaloa trail in Kaakaaniu, Lepeuli, and Waipake Chair Childs noted that he was told by Staff that a draft letter was ready for review. Deputy County Attorney Jung stated that he and Ms . Sadora, with the assistance of the Planning Director, drafted a letter on behalf of the Commission. He informed the Commission that the letter has already been signed but if the Commission wanted to make amendments to it they could certainly do so at this time and Staff would draft a new letter. Deputy County Attorney Jung began to read the letter. The letter referenced that it was brought to the attention of the Open Space Commission by concerned citizens that the Department of the Attorney General has issued a letter dated September 12, 2012, indicating that the State owns a historic trail crossing the Waioli Corporation property located at Lepeuli on Kauai, Hawaii . The letter also indicates that the State is asserting ownership of a historic trail pursuant to the Highways Act of 1892 and that the exact location of the historic trail has not been determined and that the location is in dispute. To date, the Department of the Attorney General has no present plans to take action on the historic trail fence. However, the Open Space Commission strongly encourages that the Department of Natural Resources resolve the dispute with the Waioli Corporation as to the location of the historic trail and future quieting title to the historic trail. Furthermore, the Open Space Commission invites the Department of Land and Natural Resources to one of their meetings to discuss the basis for ownership of the historic trail as well as to provide a briefing and timelines to resolve the dispute. Chair Childs noted that the letter meets his approval . He asked if any of the Commissioners had any comments regarding the letter. 12 VA2013 Master FilesTommissionstOpen Space\Meetingsi2013-7-11 Minutes r Commissioner Blake asked Deputy County Attorney Jung to go back to the statement before the timeline. Deputy County Attorney Jung noted that the statement references what the Attorney General had said as to not taking any action on the historic trail fence . The statement reads as follows : "However, the Open Space Commission strongly encourages that the Department of Land and Natural Resources resolve this dispute with Waioli Corp . as to the location of the historic trail and future quiet titling to the historic trail" . Commissioner Blake noted that the letter asks for a briefing on the timeline and status. Deputy County Attorney Jung stated that the intent of the letter is to try to get the Department of Land and Natural Resources to work with the Department of the Attorney General to create a timeline and invite both agencies to come to a meeting to give the Commission a timeline if they are willing to do so. Commissioner Blake asked whether it would be appropriate for the Commission to be more assertive when asking for a timeline or expected dates of the timeline. Deputy County Attorney Jung stated it would be up to the Commission to decide if they want the letter to be more assertive. Commissioner Blake stated that based on his experience with the government, if the Commission doesn't make what they are asking for a high priority the issue will eventually end up on the backburner which is something that he does not want to see happen . Deputy County Attorney Jung stated that the Commission needs to recognize the reality of the situation because it cannot force DLNR or the Attorney General to make this issue a priority. He suggested that the Commission show a little bit of aloha towards these agencies . Commissioner Blake stated that the intent of the letter should show that the Open Space Commission is serious and that it does not want to wait forever for the issue to be resolved. Chair Childs noted that the first letter was worded just right and if the Commission wants to send another letter in six months he would totally agree that the letter should demand more, but being that it' s the first letter he would like to wait for their response. Commissioner Blake asked if the letter had already been sent. Deputy County Attorney Jung replied he did not know. Chair Childs stated again that he would like to wait for a response from the first letter because it might be a good response. Commissioner Lydgate stated that the Commission can only push and persuade but not dictate and that the idea is to create a sense of urgency. Commissioner Evslin stated that one of the commitments is to create a paper trail so that when the time comes for these agencies to malce a presentation, the Commission will be able to provide a sequence of documents that can be used as a record of the Commission' s actions. Commissioner Nakahara stated that he agrees with Chair Childs that the letter is fine for now and that the Commission should start to think about when to expect a response and if it' s not within a month or two weeks then the Commission can send another letter as Commissioner Blake had suggested. 1. 3 VA2013 Master Files\Commissions\Open Space\Meetings\2013-7-11 Minutes Chair Childs stated that because it's a government agency the Commission should allow more than just two weeks for a response. He suggested that the Commission give these agencies one to three months to respond. Vice Chair Figaroa asked if someone would be following up on the letter after it has been sent to see if the letter was received or not. Deputy County Attorney Jung stated that the Commission can request Ms . Sadora to follow-up with a call in a week or so to check on its status. Chair Childs requested that Staff keep the item on the agenda as an on-going item . Commissioner Blake asked Deputy County Attorney Jung if this matter is the responsibility of the Attorney General ' s office or another agency. Deputy County Attorney Jung stated this issue falls under the Department of Attorney General Division of Land and Transportation . He noted that the letter will be sent to Chair Aila with a copy to the attorney who executed the 2013 letter. The Commission received written testimony from Hope Kallai . Ms. Kallai submitted her written testimony and materials for the record , attached hereto . She requested that the Open Space Commission reflag the County right-of-way at Lepeuli with the current shore line determination and clear and maintain this public right-of-way. She stated that her request is to the County' s Public Works Department because it is the kuleana of the County to maintain this right-of-way. Deputy County Attorney Jung stated that there are issues of liability that the County faces relative to maintenance of the trail . He shared with the Commission information about Maui Attorney Tom Pierce who gave several presentations on conservation easements. He stated that he is working with Attorney Pierce and hopefully with another agency to introduce a bill to State legislature to allow the counties to be exempt under the recreational use statutes in which private landowners are exempt from simple negligence liability. The intent is to try to create a framework on how to address this issue, in which one of the first steps to address will be why counties can be held liable for certain trail improvements . Commissioner Lydgate asked if it was a maintenance issue. Deputy County Attorney Jung clarified that it is a maintenance and improvement issue. He explained that private landowners under I4RS 520 have limited exemptions or exceptions from liability when they allow people onto their property for recreational use. The statutes do not apply to either the State or County. He further explained that they are trying to establish limitations of liability for the maintenance of the trails and any potential public access to protect the County from being sued should someone go to the beach and get hurt. He noted that the County has seen their fair share of lawsuits from people who go to the beach, get hurt, or have an accident. 14 VA2013 Master Piles\Commissions\Open Space\Meetings\2013-7-11 Minutes Deputy County Attorney Jung stated that he would not talk about the issue of liability because that's an issue for executive session . But in terms of where they are trying to move forward on this issue, he has been talking to County Engineer Larry Dill who has started to conceptualize the idea of having trail crews, but given the current budget it was not feasible at this point but maybe in the future. Commissioner Lydgate asked if the limitations of liability issues affect private trails or organizations . Deputy County Attorney Jung stated that they could always work with the Department of Parks and Recreation or the County Engineer to try and do some kind of stewardship type of an agreement. As for private organizations like the Boy Scouts of America, Kilauea, they would need to obtain insurance coverage and waive liability to the County for any work they do . From there the administration will evaluate where and what type work that needs to be done . Commissioner Lydgate thanked the Deputy County Attorney for the clarification. Commissioner Blake asked if Attorney Tom Pierce would be introducing a bill at the 2014 legislative session. Deputy County Attorney Jung stated that they are going to try to make it part of the HSAC package for the 2014 legislative session. Deputy County Attorney Jung shared with the Commission that there were previous attempts by the County of Hawaii to do this but it got hung up in the judiciary committee and the bill died because of the issue which gives private attorneys the ability to sue . Chair Childs asked what happens if somebody were to use the existing trail to go down to Larsen ' s Beach and they slip and fall . Deputy County Attorney Jung reiterated that he does not want to discuss any potential liability issues because he could expose the County to liability based on what he says. He noted that if the Commission wants to continue the discussion on liability he would advise that the Commission go into executive session . Ms. Kaliai asked if it made more sense to maintain a trail that was half as steep and designed to be family friendly then a trail that is really steep and dangerous . She questioned if the liability would be less on a trail that is half as steep . Deputy County Attorney Jung stated that what makes sense would be in the eye of the beholder and that it depends on the context of the natural conditions exist on the trail . He stated that if you evaluate the case law, there are certain ways one would look to see what the natural and improved conditions are and what level of improvements that are being done that could create liability. COMMISSION EDUCATION Chair Childs stated that the Commission education workshop will be postponed by request to the next meeting. Public Access workshop Presentation by Planning Department regarding conditions, dedications , and entitlements through Subdivisions and Special Management Area processes . 15 VA2013 Master Files\commissions\open SpaccNcetings\2013-7-11 Minutes NEXT MEETING DATE AND AGENDA TOPICS FOR DISCUSSION Chair Childs stated that the agenda items will essentially stay the same. Discussion on updating the Open Space Commission' s webpae. The Commission took the opportunity to view their website. ADJOURNMENT Chair Childs adjourned the meeting at 3 : 14 p.m. Respectfully submitted by: Mercedes Omo-Youn, Supp lerk (x) Approved as circulated on: August 8, 2013 ( ) Approved as amended on see the meeting minutes of 16 VA2013 Master Files\Commissionslopen Space%4eetings12013-741 Minutes