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HomeMy WebLinkAbout2013-9-12 Open Space Commission Minutes Approved PUBLIC ACCESS , OPEN SPACE & NATURAL RESOURCES PRESERVATION FUND COMMISSION REGULAR MINUTES September 12, 2013 Regular meeting of the Public Access, Open Space & Natural Resources Preservation Fund Commission of the County of Kauai was held at the Lihu' e Civic Center, Mo 'ikeha Building, in meeting room 2A/2B . The following Commissioners were present: Patrick Gegen, Chairperson Theodore Blake Linda Dela Cruz John Lydgate Maurice Nakahara Absent and excused: Luke Evslin Dorothea Hayashi The following Staff members were present: Planning Department Nam Sadora and Duke Nakamatsu; Boards and Commissions Staff: Mercedes Youn, Paula Morikami ; Teresa Tamura- Amoy; Deputy County Attorney Jodi Higuchi-Sayegusa. Public testimony: Hope and Tim Kallai and Richard Spacer. A. CALL TO ORDER Chair Gegen called the meeting to order at 1 : 07 p.m. B. APPROVAL OF THE AGENDA The agenda was approved as circulated C. ANNOUNCEMENTS On behalf of the Commission, Chair Gegen thanked the Planning Department Staff Nani Sadora and Duke Nakamatsu for their hard work and support in preparation and during the 2013 County of Kauai Farm Bureau Fair. Ms . Sadora announced that Deputy County Attorney Ian Jung will be on paternity leave for the next two weeks due to the birth of his new baby boy. Page 1 of 10 D. APPROVAL OF MEETING MINUTES Regular meeting minutes of July 25, 2013 and August 8, 2013 . Commissioner Nakahara suggested that the Commission defer the approval of the minutes to its next meeting to allow the Commissioners time to review the minutes as submitted. On a motion made by Commissioner Nakahara and seconded by Commissioner Lydgate to defer the approval of the meeting minutes to the October meeting, the motion carried unanimously by voice vote (5 : 0) E. RECEIPT OF ITEMS FOR THE RECORD There were no items received for the record. F. UNFINISHED BUSINESS 1 . Status of the acquisition plan for a portion of TMK (4) 2-6-003 -017 to obtain a pedestrian public beach access easement to Kukuiula Baugh the former Hoban property or alternate access options . Chair Gegan recalled that at the last meeting, Deputy County Attorney Jung indicated that he had drafted a letter on behalf of the Planning Department' s Open Space Commission and sent it to the Kauai address Lopaka Kali LLC, Chair Gegen asked Ms. Sadora if she received a response from the owner(s) in regard to the Commission' s request. Ms . Sadora stated that she did not receive any updates and that hopefully the Commission would get an update by its next meeting. Commissioner Blake noted that the owner of the subject vacant lot is Ms. Hannah Sirois a realtor on the South shore. Chair Gegen requested that the name of the owner be reflected in the minutes as a follow-up reference for Deputy County Attorney Jung, 2 . Review and discussion on past recommendations and prioritization of the Commission' s work plan/timeline of events and activities through 2013 including the criteria spreadsheet for a recommendation list for the 2013 Report. Chair Gegen asked whether the Commission had further comments on this item. There were none. Page 2 of 10 5 . Discussion on the current state of access at Ka` aka` aniu (aka Larsen ' s beach) Chair Gegen announced that he would take agenda item F5 . before agenda item F3 . to allow the members of the public who wish to give testimony. Before opening the floor for public testimony, Chair Gegen referred to a letter dated August 8, 2013 , from William J . Aila Jr. , Chairperson of the Board of Land and Natural Resources, to Director of Planning, Michael Dahilig. The letter is in response to a request from the Open Space Commission to the State to provide input on their game plan and identify and possibly even quiet title the historic Ala loa trail that the State made claim to. Chair Gegen read the letter into the record: The Department of Land and Natural Resources, Division of Forestry and Wildlife have responded to the public 's concerns over this disputed historic trail over private property. Contrary to the assertions made regarding ownership and location of the historic trail, the Department through the Attorney General 's advice has no present plans to take any action on this trail. Ms. Sadora noted that based on Mr. Aila' s response it appears at this point that the State is not going to take any action. Commissioner Lydgate asked who the keeper of the records is for this on-going issue. He noted that year's ago, the Historic Preservation Commission had discussed this very issue and that the dispute was never resolved. Ms . Sadora stated that the Planning Department has an active file for all matters that come under the purview of the Open Space Commission. She noted that any activity beyond its purview would not appear before the Commission. Commissioner Lydgate asked whether the records are available to the public. Ms. Sadora stated that all the public records are available and that the public would need to fill out a request records form and submit it to the Planning Department. Commissioner Lydgate voiced his concerns that the issue might be forgotten with time. Chair Gegen noted that the Commission does not intend to let this issue be forgotten. Ms . Sadora noted that there is another issue in the Planning Department that connects with identifying the location of the historic Ala loa trail. Commissioner Blake stated that the issue he has with the State is its reluctance to identify the metes and bounds of the historic Ala loa trial over private property. He pointed out the fact that how would the public know where the boundaries are to keep them from trespassing. Commissioner Blake suggested that the Commission write another letter to the Attorney General only this time use assertive language to get the State to understand that there are legal ramifications and liability issues that would affect the County by not identifying the location of the historic Ala loa trail. Commissioner Dela Cruz noted that because the State made a claim to that particular historic trail she felt that the State should place some type of markings or signage in the area. Commissioner Lydgate noted that during a field trip to Larsen' s beach the Commission pointed out that there was a lack of the signage. Page 3 of 10 Chair Gegen noted that he does not recall a discussion on signage for Lepeuli. Ms. Sadora stated that the Commission had discussed signage for all County owned accesses within the area and the only way it will happen is for the Commission to approach the proper departments . Commissioner Lydgate stated that he would like to recommend that the OSC continue its efforts to get the signage, including periodic updates from Staff on the situation because he feels is it important for the public to know the location of all public accesses in the area. Commissioner Blake asked Attorney Sayegusa how the County would protect his rights as a Commissioner if he decides to go there, and what would she suggest. Attorney Sayegusa stated that the letter from Chairperson Aila basically says that the State is not going to take a position on the matter, which in her opinion may be due to a lack of devoting resources to do a survey to nail down the historical accounts of the trail. She noted that if the Commission decides to send a follow-up letter to the State it could also include that there is a lack of signage as well as other concerns . Commissioner Blake asked if there was something that the Commission could to do to force the State to take action. Attorney Sayegusa noted that based on the comments in the letter it seems that the State is purposely trying to be vague in its response. She suggested that the Commission set up a meeting with the proper officials to see if they could help resolve the issue because she felt that the Commission cannot force its will onto the State. Ms. Sadora noted that the issue has been a concern of the public for a long time and that the letter that was sent to the Attorney General in July was the result of a letter that the OCS received from the State last year that it was not going to identify the location of the historic Ala loa trail . She stated that as an official body the Commission can make another request on behalf of concerns citizens that the State re-evaluate the issue and take action. Commissioner Blake questioned whether it would be appropriate for the Commission to phrase the letter in a more demanding approach that the State comply with its request and identify the location of the historic trail. Ms. Sadora indicated that she felt that the Commission basically took a position that hears concerns from the public for the right to all public accesses. Ms. Sadora stated that if the Commission decides to take a more aggressive approach the State may come back and say, contrary to the Commission ' s demands, the matter is not within its purview of responsibility. She noted that the initial letter that was sent to the State was a request that they re-consider their decision because of the fact the issue keeps appearing before the Commission. Commissioner Nakahara asked if the letter can be worded in a way in which the Commission is not demanding nor requesting that the State take action, and that all it wants is for the State to identify the location of the historic Ala loa trail because they own it. Ms. Sadora noted that the State did take action through the advice of the Attorney General that the State has no present plans to any action on the trail. Page 4 of 10 Chair Gegen stated he is open to any clarifications from the County Attorney as to the intent of the letter as far as the State' s response to the public' s concerns over the disputed historic trail over private property, contrary to the assertions made regarding the ownership and location of the historic trail . He suggested that the Commission send a follow-up letter to ask the State to clarify in detail its response to the public' s concerns. Commissioner Blake noted that the letter should include the type of assertions the State based its decision not to take on. On a motion made by Commissioner Blake and seconded by Commissioner Nakahara to send a follow�up letter to the State requesting that they clarify their response regarding the public's concerns and contrary to the assertions. Commissioner Lydgate noted that before the Chair calls for the vote he would like to have more discussion on the matter. Attorney Sayegusa advised that the Commission hold off on sending the follow-up letter until the return of Attorney Jung because he may have additional updates on the issue. The Commission received verbal testimony from Ms . Hope Kallai. Ms. Kallai indicated that she could provide some insight contrary to the assertions. She stated that in 2009, a string of communications started dated August 0, 5th and 6th, and then again on September 9th. She stated that the first letter was written by surveyor Alan Hiranaka to Attorney Lorna Nishimitsu who wrote to Na` ala hele who wrote to the DLNR (Department of Land and Natural Resources) . The assertion that Chairperson Aila was referring to was based on a statement that the Ala loa trail was not located on the coast, but actually on Koolau Road which till this day is being perpetuated. She stated that the State disagreed and noted that the trail is on the coast but the communication dated September 9th, from Doris Moana Roland, overturned the State' s decision that the trail is on the coast. She noted that although the State did not reserve the trail when the land was land corded in 1943 , and it took the State a couple of years for Chairperson Aila to overturn his staff s reversal in which he wrote a letter last year indicating that it was not the State' s position on the land corded land. She stated that although the State did not reserve the trail the issue is still on- going and the liability still falls under the State. Ms . Kallai stated that the State failed to address several requests to locate the trail because she believes that the State felt that there was no immediacy in the near future to push the State to pay attention to the area except for the violation of public trust right for safe access . Ms. Kallai pointed out that the issue to recognize the Ala loa is stronger on the Waipake side of the ahu pua` a (a land division usually extending from the uplands to the sea) . She stated that at this point in time, it might be prudent for the Commission to make a request to the State to take immediate action to locate the Ala loa in the ahu pua' a because of an immediate development need. She pointed out that on October 2, 2013 , they are being asked to consider that an easement go through the Ala loa, which makes it more imperative that the State find the location of the Ala loa in Waipake; otherwise any discussion on the proposed easement will end. She brought to the attention of the Commission that they were informed by the property owner at Page 5 of 10 Lepeuli not to trespass on their property, and that they would not allow any survey to be done to locate the historic trail even though it is owned fee simple by the State. She noted that it would be best to take it through Waipake because it' s more accessible. Chair Gegen asked in regard to Waipake how many times did she appear before the Council. Ms . Kallai stated that she has approached the Council several times, and will again on October 2, 2013 , in which she would also request that the trail known as Kealakaiole is made accessible because Lepeuli (aka Larsen's Beach) is a County owned public beach access. Ms. Kallai asked Chair Gegen for agenda time at its next meeting to do a presentation on a proposed beach access easement at Waipake, and its connection with the lateral Ala loa trail. Ms. Kallai read her written testimony which is attached hereto . Chair Gegen thanked Ms . Kallai for her written testimony, and granted her request for agenda time at the next OSC meeting on September 26, 2013 , regarding the proposed beach access easement in Waipake and its connection with the lateral Ala loa trail . Mr. Tim Kallai, member of the public, read his testimony which was taken from an excerpt of the Garden Island newspaper dated March 7, 2009, which is attached hereto . He encouraged the County to continue its efforts that would require developers to provide public access to and along the shorelines. He pointed out that at a recent Council meeting there was discussion on Waipake in which Councilmember Rapozo put in a request to the State to give them an opportunity to respond to this particular ahu pua' a rather than at Lepeuli because there was no reason for the State to take action in which Council felt that the development was imminent as with the subdivision in Waipake. Hopefully that would be enough to spur the State to take action with immediacy to prevent the issue from becoming similar to that of the Hapa Trail situation whereas the County access would cross the State' s fee simple land. He asked whether it would be incumbent of the OSC to write to the Council a letter of support with the forgoing request of Councilmember Rapozo. Chair Gegen asked if Councilmember Rapozo was looking for a response from the State before October 2'd I Mr. Kallai stated that as to how soon Council would be sending the letter he is unsure whether the letter has been sent as of yet. Commissioner Blake referred to a photo of the trail in question. Mr. Kallai explained that the photo itself is not of the trail in question in terms of the lateral; it is only to show that there is a lack of maintenance. Commissioner Blake asked if the lateral trail passes close to it or next to it. Ms . Kallai stated that the lateral trail intersects it. Commissioner Blake asked Ms. Kallai whether she knew the meaning of kilo i' a. Ms. Kallai replied yes. She added that it is the only place where a person can see the whole reef from a high place. Commissioner Blake noted that the trail in question would lead directly to the kilo i' a. Ms . Kallai replied yes, and noted that the historic cultural trail called keala aka i' oli and the County right of way includes the kilo i' a. She noted that her written testimony reflects a map of the area. Chair Gegen asked whether Commissioner Blake was referring to Lepeuli and not Waipake to which Commissioner Blake replied yes. Chair Gegen noted that there was mention of a letter from last year from Chairperson William Aila of the Board of Land and Natural Page 6of10 Resources. He indicated that he would like Staff to provide copies of the letter, including other correspondence' s relating to Lepeuli and/or any trail or accesses in the area for review at the next meeting. Chair Gegen also requested that Staff draft a follow-up .letter in response to Mr. Aila' s letter dated August 8 , 2013 , for approval at the next meeting on September 26, 2013 , Ms. Sadora acknowledged the Chair' s request and questioned whether the letter he was referring to from last year was in response to the State. Chair Gegen clarified that the letter he is referring to came from Chairperson Aila in regard to the Ala loa and Lepeuli. Ms. Sadora stated that the last letter the OSC wrote to Chairperson Aila was dated July 12, 2013 . She recalls that the OSC also wrote a letter to Nalahele and another similar letter to Mr. Aila requesting that the State identify the location of the historic trail. She noted that she would need to look to see if she has last year' s copy of the letter from Mr. Aila, Chair Gegen clarified that his request is for Staff to do research on what correspondence have been done regarding identifying the location of any accesses along Lepeuli. The Commission received verbal testimony from Mr. Richard Spacer. Mr. Spacer stated that the reason he is before the Commission is to request for agenda time to discuss a recommendation from the County Council that the Commission consider outside counsel for the purpose of obtaining the historic, lateral, costal ala loa trail in Waipake, Lepeuli and Ka` aka` aniu for public access. He indicated that he agrees with Chair Gegen 's request to gather all correspondence that has been generated relating to the subject properties . He stated that he briefly looked at the minutes of one of the July meetings and noted the discussion about the letter that was sent to Mr. William Aila from Planning Director Michael Dahilig on behalf of the OSC . He noted that in the discussion one of the Commissioners stated that the letter was fine in its form and content however, if the response from the State came back lacking of a resolve the Commission would follow-up with a more aggressive letter. He brought to the attention of the Commission an article in the Hawaii Constitution that guarantees the public to enforcement of their individual rights, including the right to make an agency of the government to do its job . He stated that he would prefer to leave the issue with outside counsel to have them determine how to proceed in the name of public interest. He urged the Commissioners on their free time to review the last three (3 ) County Council meetings . Although it is not directly on Lepeuli, the Council agenda item relates to the proposed subdivision/access in Waipake. He noted that the issue is part of the OSC kuleana, and as suggested earlier by Ms. Kallai that the Commission put the item on its agenda for the next meeting. He stated that there were a lot of great testimonies by qualified people that included Rayne Regush of the Sierra Club, Carl Imparato and Dr. Jack Lungren who indicated that he knows where the trail is through Lepeuli, Ka` aka` aniu and Waipake because he has walked there since the 60 ' s. He suggested that the Commission invite Dr. Lungren to a future meeting. Mr. Spacer suggested that the Commission review the Council' s July 31 and August 21 meeting on Ho' ike, which refers specifically to agenda item C2013 -271 . Chair Gegen noted that as far as he knows, the Commission did not receive a letter from the Council. He asked that Staff place the communication on the next meeting agenda. Page 7of10 3 . Discussion on updating the Open Space Commission webpage. Chair Gegen noted that he had one request from the public to put the Commission' s contact information on the website. 4. Discussion on island-wide list of access and cataloging access conditions . Chair Gegen asked Commissioner Blake if he had any information to provide. Commissioner Blake stated that he has been looking at the traditional names and cataloging the conditions. Chair Gegen asked if any of the Commissioners has done work on this item. Commissioner Blake noted that he was not able to put much time into it during the last three weeks because his week has been intense. Chair Gegen noted that he would leave the issue as it now stands. G. NEW BUISNESS 1 . Compilation and evaluation of 2013 public input process pursuant to Ordinance No . 812 and the development of a biennial list of priority projects and 2013 Report to the Kauai County Council and the Mayor. Chair Gegen stated that pursuant to the Kauai County Charter, the Open Space Commission has an obligation to acquire public input as to what piece of property the public might be interested in or would like the Commission to pursue; whether it is for a public access or actual outright purchase of a property or saving it as an open space. Ms . Sadora noted that on. the bottom of page ( 1 ) of the public' s input it shows a breakdown of the source where the surveys were taken from. She stated that this is the first time the Commission has collected a total of 445 surveys of which 62 came from community outreach; 82 from online; 301 from the County Fair, compared to the last survey of 276 . Ms . Sadora explained that surveys that were collected at the County Fair have a date of August 22nd and 25`". The surveys collected in July were submitted online and the surveys with no dates were collected at the community outreach meetings. Chair Gegen noted that the similar properties are grouped together. Ms. Sadora commented that less than half of the surveys that were collected at the County Fair are true recommendations and the rest, in her opinion, would not help the Commission because of the insufficient data. Chair Gegen noted that some of the suggested locations seemed more valuable than others. Commissioner Blake suggested that the Commission take each location one by one because the information seems to differ. He noted for the record that a person' s individual rights do not coincide with Hawaiian rights, and living in the United States of America meant that a person can go any place at any time. He stated that Hawaiian rights are considered generational rights, and asked how can the Commission balance a person' s right to be anywhere with Hawaiian generational rights . He voiced his concern that the Allerton Beach in the K61oa district is a very special place and should be kept for generational rights. Page 8of10 Ms. Sadora stated that the Commission is charged with the task of developing a biennial list of recommended priorities of lands or property entitlements to be acquired or for funding of projects. She suggested that for each recommendation the Commission keep a calendar of how it is going to get to the end result. She stated that the report must be completed by December or at the latest by January or even March. She noted that the Commission has the support of the County Council, and that they are anxious to see the results of the report. She advised that the Commission review each recommendation in a timely manner, and noted that the status report to the Kauai County Council and the Mayor must include a summary, status of funds, accomplishments, challenges, future goals and objectives, and recommendations identifying properties for acquisition. Commissioner Lydgate asked whether the report should be more quantitative or qualitative. Ms. Sadora stated that because the Commission has expanded its role of wanting more responsibility, she felt that the quality of information in the report was important. Commissioner Lydgate mentioned that in the past there was discussion to identify only nine properties. Ms. Sadora stated that the previous Commission identified six properties, and even addressed the concerns regarding the existing accesses. She stated that the Commission must be prepared to answer the questions from Council based on the information it received from the public relating to access recommendations and property acquisitions. Commissioner Lydgate asked what the status of the OSC fund is for 2012. Ms . Sadora replied at this time the balance is approximately $ 1 . 9 million with an additional $ 1 . 5 million that would be received in the future. Chair Gegen stated that at this point, he is less concerned about the budget because the Commission is not ready to make any decisions. He stated that the report would basically include current events; what level the Commission is at in acquiring properties; and an analysis of all the data that was collected to see how it fits into the queue. He noted that in 2012, the Commission was expected to take things a little further instead of just presenting a list. Commissioner Blake noted that the list contained a lot of repetition. He suggested that the Commission consolidate the similar properties to help move along the review process . Chair Gegen stated that due to the amount of public input he suggested that the Commission take the review process up to 3 p.m. After the review the Commission decided to keep the following properties : ( 1 -5) Aliomanu (Hanalei District) ; (6) Aliomanu to Anini (Hanalei District) ; (7) Anim -end of the road (Hanalei District) refer to the proper agency; (8) Ele' ele behind glass beach/graveyard (Waimea District) send letter to Kauai Coffee request a copy of the company 's access policy; ( 12) 2"d Ditch, (Waimea District) ; ( 14) 3rd beach, Kauapea, Kilauea (Hanalei District) ; (21 -23) Ahukini, (Lihu` e District); (24) Ala loa (Hanalei District); (25-28) Alekoko Fish Pond, (Llhu` e District); (29-39) Allerton Beach (KOloa District) ; (41 -42) Anahola, access to Kalalea-Anahola mountain (Hanalei District); (43 -44) Anahola River Mouth, (Hanalei District); (45) Archery Firing Range Page 9of10 (Waimea District); (46-47) Ahukini/Ahukini beach (Lihu` e District); (53 ) Behind Hanapepe Salt Pond, Top Priority (Waimea District); (56) Black Pot (Hanalei District) keep as a live item); (57) Blue Hole (Kawaihau District) leave it as an open space. Chair Gegen suggested that the Commission take home the survey for further review and bring their comments to the next meeting. H . COMMISSION EDUCATION 1 . Public access workshop a. Presentation by the Planning Department regarding conditions, dedications and entitlements through Subdivision and Special Management Area processes. Due to the absence of Deputy County Attorney Jung, the Commission deferred the item to its next meeting on September 26, 2013 , in anticipation of his return. I. NEXT MEETING DATE AND AGENDA TOPICS FOR DISCUSSION Chair Gegen noted that the next meeting date is on September 26, 2013 , and asked if any of the Commissioners had a conflict with their schedules. Commissioner Nakahara stated that he would like to note that he would not be able to attend the October 10, 2013 meeting. Ms. Sadora asked if the Commission would like to keep the current agenda items, in addition to the presentation from Hope Kallai regarding the proposed beach access easement in Waipake, and its connection with the lateral Ala loa trail . Chair Gegen stated that he felt it would probably be okay to take Item F3 .Discussion on updatin the he Open Space Commission webpage off of the agenda. Commissioner Nakahara questioned whether it would be appropriate to add a new business item to the agenda relating to the creation of a timetable for reporting. Chair Gegen agreed and instructed Staff to place the item under new business. Ms . Sadora stated that she would also create a draft of past recommendations to help the Commission with its review process . J. ADJOURNMENT At 3 :01 p.m. Chair Gegen declared the meeting adjourned. Respectfully submitted by: s� 1 Mercedes Omo-Youn, Support Cler) 4 (X) Approved as circulated on: 10/10/1 ( ) Approved as amended on: see meeting minutes of Page 10 of 10