HomeMy WebLinkAbout 12/11/2013 Planning Committee minutes MINUTES
PLANNING COMMITTEE
December 11, 2013
A meeting of the Planning Committee of the Council of the County of Kaua`i,
State of Hawaii, was called to order by Tim Bynum, Chair, at the Council
Chambers, 4396 Rice Street, Suite 201, Lihu`e, Kauai, on Wednesday,
December 11, 2013, at 9:13 a.m., after which the following members answered the
call of the roll:
Honorable Mason K. Chock, Sr.
Honorable Ross Kagawa
Honorable JoAnn A. Yukimura
Honorable Tim Bynum
Honorable Gary L. Hooser, Ex-Officio Member
Honorable Jay Furfaro, Ex-Officio Member
Excused: Honorable Mel Rapozo
Minutes of the November 13, 2013 Planning Committee Meeting.
Upon motion duly made by Councilmember Kagawa, seconded by
Councilmember Chock, and carried by a vote of 4:0:1 (Councilmember Rapozo
was excused), the Minutes of the November 13, 2013 Planning Committee
Meeting was approved.
The Committee proceeded on its agenda items, as follows:
C 2013-271 Communication (07/16/2013) from Ian K. Jung,
Deputy County Attorney, recommending Council approval
of a Grant of Pedestrian and Parking Easements relating
to Kahuaina Plantation Subdivision (S-2007-02) and
Kahuaina Plantation Subdivision Phase II Subdivision (S-
2009-15):
• Grant Of Pedestrian And Parking Easements;
concerning real property identified as Lot 15-A
(TMK (4) 5-1-003:006), Lot 15-D (TMK (4) 5-1-
003:032) and Lot 15-K (TMK (4) 5-1-003:039).
[This item was Deferred to April 16, 2014]
Chair Bynum: It is my intention to have some
Councilmembers discuss issues with representatives that are here, and take public
testimony. To facilitate that, I will give the floor to Councilmember Yukimura and
•
suspend the rules.
There being no objections, the rules were suspended.
PL COMMITTEE MEETING 2 DECEMBER 11, 2013
Ms. Yukimura: Thank you, Planning Chair and
Mr. Lombardi. I want to give a brief history of the last two (2) months. Let us just
say that during the period of the Bill No. 2491 deliberations, Councilmember
Hooser and myself went out for a site visit and the developer's representative Sean
Smith was there. We walked the staked area but there was a part of it on the
seaward side of the mauka/makai proposed access that was fully vegetated and it
was difficult for us to really see the terrain. We also discussed the problem of
actually accessing the shoreline, because of the terrain, which was a twelve (12) foot
drop from rocks. So there was an agreement and I hope Mr. Lombardi will confirm
that the owner/developer will clear and stake the full length of the proposed
mauka/makai access and then also stake and show a lateral access to the beach
from the mauka to makai access and also propose wording that will give us a
perpetual access. At the last meeting Mr. Smith was available to speak, but had to
leave and Mr. Lombardi, I think you were here too, but they had to leave before the
subject came up but I hope that will be the focus of today's discussion. I also want
to acknowledge that there were questions about the agricultural subdivision itself
that were not relevant or directly related to the mauka/makai access and I made a
commitment to get that as an agenda item separately, so we could have a discussion
about that. But in reflecting on it, I felt we should really keep the subject-matter
separate and so that will be on the agenda in the future and hopefully after we
settle this issue of access both mauka/makai and lateral access. So that is just the
backdrop of why we are here today and the landowner/developer's representative,
Mr. Lombardi, is here to engage with us in a discussion and my thought and
intention is to defer this matter till April of next year so that Falko Partners can get
permits from Department of Land and Natural Resources (DLNR) to do the clearing
at the makai end of the mauka/makai access because that is a requirement and
allow us then to see the full length of the access and also show us the lateral
connection to the beach and some proposed wording, which we all then be able to
look at, review and respond to. So, Mr. Lombardi, does that reflect it accurately?
DENNIS LOMBARDI: Generally it does.
Mr. Bynum: Mr. Lombardi could you please introduce
yourself for the record?
Mr. Lombardi: I am Dennis Lombardi here on behalf of
Falko Partners. Thank you. Certainly Councilmember, you are aware that Larry
Bowman was here last week and personally came out to make an inspection of the
site. He walked the trailhead. I can tell and commit to the Council that
Mr. Bowman is committed to giving an additional path to the County. That path he
has walked it now and thinks he knows where the right path is but as you pointed
out, it needs to be reviewed. That path takes a jog from where the path ends on the
makai side and moves about thirty (30) feet in a northward direction, meets a set of
natural stairs, which were existing in there, and then connects up with the
PL COMMITTEE MEETING 3 DECEMBER 11, 2013
fisherman's trail that goes directly to the beach. So we obviously need to get
engineers out there to lay it out, get the topography and make certain it is the right
path to follow for everyone. As you pointed out, April, perhaps the second meeting
in April is the best time to reschedule this matter and any other matter being
deferred past that date for the simple reason that we need sometime do the
engineering, we need some time to survey and stake the additional path that
Mr. Bowman proposes to give the County. We also need as you pointed put to hand
clear, which is what we have intention to do the makai portion of the mauka/makai
pedestrian easement and that may require DLNR approval. So we need to go to
DLNR and get approval for that action. Thereafter, we would hope we can
accomplish all of that by late March and we would like to invite the Council out at
that time to walk the mauka/makai easement that is before the Council now and
the additional path that Mr. Bowman is proposing to gift to the County. We think it
can all happen in that period of time. As for the language, I would recommend and
suggest to the Council, if it is amendable that I work during this period of time with
the County Attorney's office to formulate what type of documentation is appropriate
to evidence the gift and this perpetual pathway to the beach for the County.
Chair Bynum: We are going to open the floor for questions
and I am going to start with one. You have used the word lateral.
Mr. Lombardi: Actually, I did not use the word "lateral" at
all, sir. Councilmember Yukimura did.
Chair Bynum: I want to know if part of this commitment is
to establish with DLNR the lateral access commonly known as ala loa.
Mr. Lombardi: Absolutely not, sir.
Chair Bynum: I am extremely disappointed to hear that.
Mr. Lombardi: I appreciate your comments, sir.
Chair Bynum: Was there any discussion with Mr. Bowman
about the ala loa and the historical trails?
Mr. Lombardi: I have not had that discussion.
Chair Bynum: Are you aware that the community is
concerned about lateral access and that lateral access is a premiere issue on this
island and in this State. Are you aware of that?
Mr. Lombardi: I am aware that it is a State issue and not a
County issue.
PL COMMITTEE MEETING 4 DECEMBER 11, 2013
Chair Bynum: It is a County issue. May I interject?
Mr. Lombardi: I know that from the standpoint of the State
has reviewed the matter and has been out to inspect the site and is satisfied that
the mauka/makai access to the beach satisfies its concerns. It is not interested in
and intends not to pursue an ala loa with respect to this piece of property.
Chair Bynum: We seem to have mixed communication from
DLNR regarding that. I do not want to belabor it, Mr. Lombardi. I just want to say
that I am very, very disappointed given this context and what the community's and
Councilmembers concerns are, that you never even discussed this issue with
Mr. Bowman.
Mr. Lombardi: Sir, I would not be permitted to share with
you my direct discussions with Mr. Bowman. Mr. Bowman is certainly aware of this
issue and that is why we invited the DLNR out to come and look at the site. I am
happy to share with the Council the recent correspondence directed to Sean Smith
by the DLNR relative to this issue.
Chair Bynum: Mr. Lombardi, I just made a comment. I am
just sharing with you my deep disappointment that you are unwilling to share this
concern with the community.
Mr. Lombardi: I will assure you that I will communicate
that to Mr. Bowman.
Chair Bynum: Any other questions from Councilmembers?
Mr. Hooser.
Mr. Hooser: You mentioned several times the generous
gift of Mr. Bowman of the access, and it is my understanding this is a requirement
of the subdivision. That is not a gift per se. It is an exaction, if you would, in return
for the subdivision approval.
Mr. Lombardi: Actually, I disagree with that assessment
completely and let me tell you why. The assessment to which you refer was already
made and determined by the Planning Commission of the County of Kaua`i and is
represented by the mauka/makai trail or pedestrian access easement which is
before this body. With that said, we do not disagree to say that we think there is a
better way to get to the beach and we are prepared to address that issue. There are
certain legal constraints that come into play, that cause us to view the gift as the
better approach to document this matter and I am happy to work though that issue
with the County Attorney. I do not know if this is going to take an easement form
PL COMMITTEE MEETING 5 DECEMBER 11, 2013
or other documentation, but whatever it is I am committing to this Council that we
will get through it and deliver it.
Mr. Hooser: Thank you. I do not want to belabor
semantics either, but there is a requirement of the subdivision that the County be
given an easement to the beach and when I went out there to inspect that easement
with Councilmember Yukimura, I came away thinking that we do not have an
easement to the beach. There is no way for a reasonable person to get to the beach
on the existing easement and so therefore, the easement will be adjusted. Whether
it is via a gift or via new language of the easement, and so do not get me wrong, I
appreciate the consideration of the developer and the landowner working with the
County to establish an easement that the public can actually get to the beach. I just
want to say that and also, Councilmember Yukimura and I were very clear in our
discussions with Mr. Smith that we do not represent the Council and we are not
writing a deal out there on the beach. If you do this, then we will do this. We
expressed our concerns that the easement was not clear in a manner that would
allow us to traverse the easement that was on the map and when we actually saw
where it hit the coastline, it was clear that the twelve (12) foot drop could not be
used and we discussed that. My purpose for being there in the discussion was to
discuss the easement, the requirement of the subdivision and not to discuss the ala
loa. So I want to be clear from my personal standpoint that this discussion we are
having today does not preclude a discussion on the ala loa. In my opinion, there is
no deals being cut in terms of you do this and we will do this kind of thing. I am
strictly looking at the requirement of the subdivision for beach access and I hope
your understanding is the same.
Mr. Lombardi: We understand that is your position, sir.
Thank you.
Mr. Hooser: Thank you very much.
Chair Bynum: Councilmember Kagawa.
Mr. Kagawa: Thank you, Mr. Lombardi. I know this is
kind of a tough one, even for us. If we can go back and not belabor this, when they
first came before the Council, I had similar reservations as the other members. I
was saying the same things. How can this be acceptable? A long walking access?
Why did they not allow vehicular access at least closer in proximity, easier to get to
the beach? But after I made those statements I got tons of E-mails from local
fishermen telling me that they did not want a lot of people getting down there and
that they enjoyed having that place be hard to get to. So that is why I kind of
changed my thinking, because again, this is another issue, where the community,
the locals are split. There are some that want a lot of access and there are a lot that
do not want a lot of access. So the Planning Commission, I think they vetted this
PL COMMITTEE MEETING 6 DECEMBER 11, 2013
and they had both sides say their peace and I think the Planning Commission came
out with their decision. You know, I agree with Councilmembers that it is kind of
bad when you get to the end. It is tough to get to. It is a cliff or what have you but I
think that is why you guys want more time. So my question is if you look at that
map, and I do not know if we can give him a pointer. Can you point out the current,
well, we all know the current is on the southerly end of the property. Basically,
where is the proposed access that will be given to the County?
Mr. Lombardi: This is where I understand the current end
of the mauka/makai pedestrian easement is on the makai side.
Mr. Kagawa: Okay.
Mr. Lombardi: If you go over, and this is a fairly wide area.
Mr. Kagawa: Okay.
Mr. Lombardi: You only have to go about thirty (30) feet
over and then there is a set of natural stairs that lead down to the fisherman's trial
that takes you over to the beach. The fisherman's trail is in the State lands. We
think that is the best path but we are going to have engineers take a look at it, and
make certain that it is. I understand that the path is currently clear and walkable
from this end. Now as Councilmember Yukimura pointed out, there is a heck of a
lot of vegetation in this section of the existing pedestrian easement which we are
going to hand clear, so the people can walk it and the Council can get down there
and walk the whole thing and take a peak and make certain it is walkable by
somebody my age.
Mr. Kagawa: So the access that you will be giving the
County is not a very long run. How many feet are you talking about?
Mr. Lombardi: It may be between fifty (50) to ninety (90)
feet. It is a short extra distance.
Mr. Kagawa: It goes around the cliff? The true test will be
that site visit because the interpretation of what is an easy fisherman walk
compared to you needing "opihi picking" skills.
Mr. Lombardi: I understand. That is a question I have
asked since I know that Mr. Bowman walked it and he is not much younger that I
am.
Mr. Kagawa: I guess the ala loa, you are saying that it is
DLNR's jurisdiction to mandate the ala loa or not? As of right now all of the
correspondence that we have gotten is that they will not be enforcing the ala loa.
PL COMMITTEE MEETING 7 DECEMBER 11, 2013
Mr. Lombardi: All of the correspondence we have indicates
that they have of intention of pursuing the matter. That is correct.
Mr. Kagawa: To me the replacement for the ala loa is
having a walkable area in front and I guess as long as the people get access down to
that beach, nobody really owns the beach, and that could also take the place and
reconnect at some point. I too, of course, like any resident, I would want all of the
landowners to give us a beautiful walking path around all of the properties, but I
guess whether that is realistic or not, I do not know. So anyway, thank you for your
time and I look forward to doing that walking path and seeing how bad the last part
is.
Mr. Lombardi: Thank you for your support. I am confident
you will not find it bad.
Mr. Kagawa: Thank you.
Chair Bynum: Councilmember Chock.
Mr. Chock: Thank you. Mr. Lombardi, thank you for
being here. I have a few questions. You know I had mixed E-mails about the
location of the parking lot. Some people, like Mr. Kagawa said want it far. Some
people want it close. I just wanted to know if there is more discussion that you are
planning on having in terms of certifying that location or is it permanently a mile
out?
Mr. Lombardi: I believe that the location is currently fixed
on the parking lot.
Mr. Chock: Okay. I heard that you mentioned March
being the best time that we might be able to come out and do a site visit.
Mr. Lombardi: That is our goal, yes sir.
Mr. Chock: Thank you. I also heard you say that you are
not willing to work with the State in identifying the ala loa and creating that
lateral access.
Mr. Lombardi: Actually, what I indicated is that the State
has made a determination that it is not pursuing the ala loa with respect to this
property. I also indicated that we are not prepared to gift it.
Mr. Chock: Okay. If the State were to change its stance,
would you be willing to work with the State in providing that?
PL COMMITTEE MEETING 8 DECEMBER 11, 2013
Mr. Lombardi: We would likely dispute the State's position.
Mr. Chock: You would?
Mr. Lombardi: Yes sir.
Mr. Chock: Okay. One last question. Kahu'aina, can you
tell me more about that name? Where it came from? What it means? You may not
know, that is okay.
Mr. Lombardi: Well, I will do a very poor job, but it means
to be a steward, does it not?
Mr. Chock: Technically, literally it means head master of
the land, that is kind of what I see it as, it is probably taken out of context in the
western frame of mind.
Mr. Lombardi: It could easily be I have given you a western
frame of mind response.
Mr. Chock: I had a great conversation with Ms. Linda
Sproat this morning about how for generations fishermen would traverse the land
from Anahola to Kilauea through the ala loa and that is how they got to gather. It
was because of the access and stewardship of others who owned those areas that
this type of activity occurred. I think that is what we are looking for from our
landowners. Is people to become stewards and if that is the true meaning of what
you folks intend to do, my hope is that you would change your stance on working
with the people and with the State. If the community in which my understanding
that I have heard a lot of people in the public say that they will continue to seek an
opportunity for us to work with the State at whatever cost that the ala loa would be
established. I know we are going a little off subject, so I will end it there, but I look
forward to the March visit. I went out this past weekend and there is a steep drop
as Councilmember Yukimura mentioned. So we will see what we can get done.
Mr. Lombardi: Absolutely, we will see if we can get you all
to the beach.
Mr. Chock: Thank you.
Chair Bynum: Council Chair.
Mr. Furfaro: Thank you. I am a non-Committee member,
but thank you very much. So accordingly the law reads that the public trail is not
under the jurisdiction of the State Board of Land and Natural Resources (BLNR)
PL COMMITTEE MEETING 9 DECEMBER 11, 2013
unless it was created by or dedicated to a particular County. So the first piece I
want to understand is this lawai a which is different from the ala loa, you refer to
that as the fisherman's trail and the discussion you had at the site with
Councilmember Yukimura and Councilmember Hooser, the lawai a path would
encroach on this new lateral piece that allows the public traverses the shoreline and
it encroaches on the existing fisherman's path?
Mr. Lombardi: I am not certain that I understand you
question Councilmember.
Mr. Furfaro: Let me try to clarify, because I want some
clarity here. You know these things need to be recorded with either the County
directly or the State. There is a current fisherman's path that goes along part of the
shoreline there. This ninety (90) degree angle, because I have not seen a map or
anything. I am just trying to find the discussion of allowing better mauka/makai
access for fifty (50) to ninety (90) feet, the existing fisherman's path encroaches on
this proposed change?
Mr. Lombardi: No sir, it does not. Actually, I think it is
probably better to describe it as an attempt for us to reach the fisherman's path
from the existing mauka/makai easement. In order to do that as I said, I think the
path overall may be seventy (70) to ninety (90) feet long but it is only about a thirty
(30) foot jog to some natural steps that take you off the higher ground and move you
down to the lower ground and then it leads over to the fisherman's path. I believe
that the entirety of the fisherman's path is within the State controlled zone between
the shoreline and the surf line. I believe but I do not know that for certain. That is
one of the reasons that we will have an engineer take a look.
Mr. Furfaro: So it would be abutted? So this fisherman's
path does not encroach on it.
Mr. Lombardi: That is correct. Abut is a good term. We are
going to abut into it or connect into it.
Mr. Furfaro: Thank you.
Chair Bynum: Councilmember Yukimura.
Ms. Yukimura: You are an attorney, right?
Mr. Lombardi: I have been for a few years.
PL COMMITTEE MEETING 10 DECEMBER 11, 2013
Ms. Yukimura: So based on your legal understanding or
knowledge, if the State reverses its right to the ala loa, they still have not waived it
or forfeited it in anyway?
Mr. Lombardi: That is correct, Councilmember. There is no
forfeiture as far as I understand it here and no direct waiver or forgiveness.
Ms. Yukimura: So there is always an opportunity for the
State, when it is ready to assert its right with the ala loa wherever that may be
identified and located, which could be a huge legal proceeding and also involves the
issues of the State's kuleana, which is protection of wildlife and resources because if
they do identify where the ala loa is they have to make sure that wildlife resources
and other natural resources are protected.
Mr. Lombardi: I think you very fairly stated that.
Ms. Yukimura: So it is not an easy job to identify where the
ala loa is, but it is not waived or it is not forfeited in any of these discussions?
Mr. Lombardi: To my knowledge, that is absolutely correct
Councilmember.
Ms. Yukimura: Actually, I think the County owes the
landowner an apology for not, at the time this issue was before the Planning
Department for the Planning Department not to go out and inspect it before
identifying in verbiage as a condition of the agricultural subdivision permit to really
clarify how this mauka to makai access works. That was at least five (5) years ago.
And we are all doing this work because the Planning Department failed to go out
and do this work, so that we would have a clear and appropriate mauka/makai
access that ties in with the lateral access to the beach. What Councilmember Hooser
and I wanted to see when we walked there was a safe and clear access to the beach.
I appreciate that Mr. Bowman and yourself and Mr. Smith are trying to help get us
that minimum, at least. To me, that is a minimum of a mauka/makai access. I am
glad Councilmember Hooser clarified that this is not a deal we are making with
you. We are just asking for a clearing and staking of the trail, so we can see how it
is going and that it is accessible in terms of people's capabilities of walking safely to
the shoreline and then onto the beach. I believe it was Mr. Bowman or Sean who
stated that the fisherman's trail may or may not at certain points cross the property
line into private property, but if it does, he says he would grant or convey that part.
So is there a clear and perpetual easement to the beach and that is what we are
hoping that you propose to us and all of us, Council and public will get to look at the
proposal, so we can see whether it is acceptable in terms of the public interest that
we have to represent. Just so all of that is clear and we are on the same wavelength
so that we do not come here in three (3) months later and say "I thought you were
PL COMMITTEE MEETING 11 DECEMBER 11, 2013
going to do this" or "Now we need another extension or deferral." We want to real
clarity of what is going to happen during the period of deferral, so that we can bring
this thing to a conclusion at least on a minimum basis, which does not forfeit the
ala loa issue in any way, but we do not have a clear partnership with the DLNR
right now saying we will work with you. So I do not believe we should tie up this
legal access. It has been tied up for five (5), years basically. We need to get that
completed. If we can find a way to make sure that the public interest is protected.
Mr. Lombardi: I have heard what you said. I will certainly
communicate it to Mr. Bowman. I believe that you have properly stated what our
intent is. One (1) issue that I would point to the Council is that the eye of the
beholder sometimes perceives things differently and that has been one of the issues
here. It is a sense to exercise of judgment. What, in what our judgment may be
adequate, you may perceive differently and that is why we suggest that you come
out and take a look. We intend and are committed to do the right thing. It sounds
really trite but that is what we are here to do.
Ms. Yukimura: Well, and what the right thing is needs to be
visibly shown on the land and that is what you are going to show us as your
proposals, based on our concerns and we will get to look and see if it works.
Mr. Lombardi: I will even walk it with you.
Ms. Yukimura: Alright, we will hold you to that
Mr. Lombardi. I appreciate you being here and Mr. Bowman's commitment to get us
to March/April to hopefully be able to close this part.
Mr. Lombardi: As you well pointed out, to be very blunt, I
would like to see us off the agenda, until then, so I can actually focus on solving
what the documentation looks like during that period of time.
Ms. Yukimura: Thank you. I think we are all on the same
wavelength.
Chair Bynum: Mr. Lombardi, I have a question. Thank
you very much. I want to start with the mauka/mauki. For the second time in my
life, I am coming out of a period where my mobility has been really impaired. I
cannot walk the mile. So how can I visit the site? Will you help facilitate?
Mr. Lombardi: I will have to address that issue with
Mr. Bowman.
Chair Bynum: You are going to have an internal road
system, are those private roads or dedicated to the County?
PL COMMITTEE MEETING 12 DECEMBER 11, 2013
Mr. Lombardi: I do not believe that decision has been made
at this time.
Chair Bynum: But you are going to have a road system to
access these agricultural lots, correct?
Mr. Lombardi: Yes sir.
Chair Bynum: Okay. Why would you not put a parking lot
closer to the beach and make a shorter trail in consideration of people like myself,
who have mobility impairments?
Mr. Lombardi: Sir, I was not involved in that initial
determination, so I do not know what the thinking was.
Chair Bynum: Okay. You mentioned the fisherman's trail
that is completely within the State right-of-way, are you talking about below the
certified shoreline?
Mr. Lombardi: Actually I said I thought it might be sir.
There is a difference. I do not know exactly where it is.
Chair Bynum: So in your work to identify this you
mentioned there was vegetation that you had to remove. You intend to apply for
grading and grubbing permits?
Mr. Lombardi: As I mentioned when I first spoke of the
matter, we intended to hand clear the area so I do not intend to do any grubbing or
grading.
Chair Bynum: So this is an agricultural subdivision correct,
and you do not know if the roads will be private or public?
Mr. Lombardi: I do not know that the decision has been
made yet, sir.
Chair Bynum: I wonder if our Planning Department is
aware of that. Are we this far along that we do not know what the roadway system
is going to be and whether or not it is built to County standards?
Mr. Lombardi: I believe that the current construction plans
for the road contemplate building them to County standards. That does not
necessarily conclude that they would be dedicated however.
PL COMMITTEE MEETING 13 DECEMBER 11, 2013
Chair Bynum: The people who buy these properties in this
agricultural subdivision, what kind of agriculture is going to occur?
Mr. Lombardi: Well, I am happy to address that at a
different meeting sir. This is an issue related to pedestrian easement along the
beach.
Chair Bynum: Yes, I understand that completely and all of
these matters and what type of subdivision it is and what use it is going to be have
will have an impact public access. So, I am not going to belabor it. You have
answered the question. Is there any mention of the ala loa in any of the deed or
title documents that were related to this property?
Mr. Lombardi: In the overwhelming majority, the answer
would be no. I do believe there is a single kuleana on this site where the State
reserved the right to make a claim, but did not pursue the claim relative to the
ala loa.
Chair Bynum: Were all relevant documents submitted to
the Planning Department?
Mr. Lombardi: I am not certain what that question means,
relevant to what?
Chair Bynum: Relevant deed and title documents.
Mr. Lombardi: I believe the practice is to supply title
documentation, supporting ownership of lands and the context of any subdivision
act in the County of Kaua`i and so therefore the answer is yes.
Chair Bynum: Okay. You mentioned to Councilmember
Yukimura that in the letter you have from the State, in essence that we are not
pursuing the ala loa at this time, but we reserve the right to do so in the future. Is
that the upshot of what I heard?
Mr. Lombardi: Actually the upshot of what I said is that
they are not pursuing it. Councilmember Yukimura inquired whether they were
waiving a right and I confirmed that they were not in my opinion and she asked, I
think after my legal assessment of the position that they had taken, versus their
direct communication to me?
Chair Bynum: So at this point in the subdivision, the actual
boundary of each lot and Condominium Property Regime (CPR) lots has not been
determined, is that correct?
PL COMMITTEE MEETING 14 DECEMBER 11, 2013
Mr. Lombardi: I am not certain that I understand the
question. There are boundaries for each of the subdivided lots that have been
approved by the County of Kaua`i, Planning Department.
Chair Bynum: But those are not set in stone at this point,
right?
Mr. Lombardi: They are not set in stone to the extent that
we could seek to adjust the boundaries through another subdivision act, but I can
assure you that that is not our current intention.
Chair Bynum: You are talking about dedicating some
additional property for the purposed of public access. That is what the agenda for
the purpose of mauka/makai, correct?
Mr. Lombardi: Correct, sir.
Chair Bynum: So it is not set in stone yet. You are
suggesting that you are going to make boundary adjustments?
Mr. Lombardi: Actually an easement, sir, does not affect a
boundary.
Chair Bynum: Okay.
Mr. Lombardi: Nor would a declaration of public use affect a
boundary to subdivide a lot.
Chair Bynum: That is correct. I understand the distinction,
but for the layperson it allows public access?
Mr. Lombardi: That is correct sir.
Chair Bynum: And it takes a piece of property and says the
public can go here and that changes the property line of what you sell?
Mr. Lombardi: It changes the impact on the property or the
encumbrance on the property but it does not change the line.
Chair Bynum: I will get to the point.
Mr. Lombardi: Okay.
PL COMMITTEE MEETING 15 DECEMBER 11, 2013
Chair Bynum: In the future, if the State should pursue this,
and boundaries and property have been lined out and subdivided, right, it is going
to be a much more difficult endeavor for the State to do that, correct?
Mr. Lombardi: Is it your suggestion sir, it would be more
difficult because more people are involved or more pieces of the property are
involved?
Chair Bynum: If you take a big, giant piece of agricultural
land and draw lines and change ownership and then you subdivide that further by
putting CPRs in to those lots and than people move on them and they have all of
this ownership and now you want to get a path lateral, it is going to be a lot more
difficult if all of that is finalized. There are going to be taking issues, and there is
going to be compensation issues. We want this easement, oh, no that is going to
involve our privacy. You did not ask for it before and now you are asking for it now?
So you have to compensate us. That is what will happen in the future if we try to
get this lateral access through those kinds of means, correct?
Mr. Lombardi: There is certainly a risk that people will
dispute the lateral access and ask to be compensated for it, if there is an effort to
take it, yes sir.
Chair Bynum: Thank you. Any further questions from
Councilmembers? Councilmember Kagawa?
Mr. Kagawa: Well, I just wanted to put this on the
overhead. I do not know if you got this letter so we are not going into saying who is
saying what about the DLNR and their response. We can just read it in writing and
we do not have any question as to what the DLNR's response and I will just read it.
"Dear Mr. Sean Smith, The Department of Land and Natural Resources Division of
Forestry and Wildlife continues to respond to the public's concern regarding the
ala loa historic trail on Kaua`i island. We are aware from the location of the trail
may be in dispute with landowners. Our site visit with you on October 9, 2013 gave
us a better understanding of the area. An agreed condition of your subdivision
application of the County of Kaua`i is to provide mauka to makai pedestrian public
access. We anticipate that this will satisfy the public's concern regarding access to
the coastline. As a result, DLNR has no plans to take action regarding this trail.
Sincerely Roger Imoto, Administrator for DLNR." This was regarding the ala loa.
So, I guess, did you receive this?
Mr. Lombardi: Yes sir, I did. That is the letter to which I
have been referring.
PL COMMITTEE MEETING 16 DECEMBER 11, 2013
Mr. Kagawa: It is not saying whether DLNR is going to
look at it later. Whether they will possibly look at this at another time. They are
just saying right now we have no plans to take action regarding this trail. It may be
frustrating to us here, but again, here we have the State decision being made and
we at the County may not be totally happy with it, but what can we do? We are not
their bosses. So that is where I am at. Thank you.
Chair Bynum: Councilmember Hooser.
Mr. Hooser: Thank you, Councilmember for putting the
letter up there. I appreciate that. They say we are aware of the location of the trail
may be in dispute. So the State acknowledges that there is a trial. It is just the
location of the trail that is in dispute. So there is no question that there is a trail, is
that correct?
Mr. Lombardi: I disagree with that assessment of the letter
sir. I think if they intended to say that they believe there was a trail, they would
say so. It does not say that.
Mr. Hooser: It says, "the location of the trail may be in
dispute." That pre-supposes there is a trial.
Mr. Lombardi: Perhaps for you, it does not for me.
Mr. Hooser: Again, semantics or differences of opinion.
They also, excuse me say that, "we anticipate" basically saying that they guess this
will satisfy the public's concerns. So whether or not it satisfies the public's concern
is again speculation again from DLNR. So to me, the letter does not say much
except reaffirm the existence of the trail and the existence of an unresolved dispute
as to the location of the trail.
Mr. Lombardi: I think it is patently clear that there are no
current plans to take action.
Mr. Hooser: Thank you very much. Thank you Chair.
Mr. Bynum: Any other questions from Councilmembers?
My final question, will the people who live in these lots will sign farm dwelling
agreements under current law, is that correct?
Mr. Lombardi: Absolutely.
Chair Bynum: Thank you. Any other questions? If not,
thank you very much for your testimony.
PL COMMITTEE MEETING 17 DECEMBER 11, 2013
Mr. Lombardi: Thank you.
Chair Bynum: Is there a representative from DLNR that we
can speak with?
Mr. Furfaro: I am going to ask you to come up and make
that statement on the microphone, so it is recorded in our rules, please. Please
introduce yourself, your association, and then you can make your statement. Excuse
me, Mr. Bynum, I am sorry.
MILO SPINDT: Thank you. Good morning Council. I am Milo
Spindt, the District Land Agent for DLNR, Land Division. Unfortunately, the
ala loa trails fall under the Division of Fish and Wildlife and I do not have the
information that you are probably looking for.
Chair Bynum: I appreciate that, but why are you here then?
Mr. Spindt: I am here to listen.
Chair Bynum: As a citizen?
Mr. Spindt: Yes.
Chair Bynum: I think it would be an appropriate time for
us to start public testimony. Is there anyone registered to speak on this matter? I
will suspend the rules for public testimony.
LORI MARUGAME, Council Assistant I: Yes, two (2) speakers. Perry
Maglidt followed by Rayne Regush.
Chair Bynum: The rules remain suspended.
PERRY MAGLIDT: Thank you. My name is Perry Maglidt,
resident of Wailua. I am privileged to work with Surf Riders. It is a lot of hard
work. You have no idea. I do walk Lepeuli and Waipake an average of two (2) days
a week from about sunrise to noon, picking up nets, floats and rubbish. So I am
familiar with the fisherman's trail. It is an easy trail and it connects Lepeuli and
Waipake. I am a layman to all of the technical part of this, but I think we are
making it harder than it needs to be. The trail coming down to Lepeuli has many
spots where there are split telephone poles and rocks have been piled, trying to
make steps. I think the County needs to take a look at that trail because it is
unsafe. As to the mauka/makai trail to the fisherman's trail, I think it is going to
be easier than you think and if someone cannot hike a long distance, they should
PL COMMITTEE MEETING 18 DECEMBER 11, 2013
not go there. Go to a beach that is more accessible. However, that trail can be easily
done and I do not have any other means of saying I think we are making it more
difficult than it need be.
Chair Bynum: Thank you for your testimony. Are there any
questions? Councilmember Kagawa.
Mr. Kagawa: Thank you for your testimony. From your
knowledge, because you walk it a lot, are you saying that we are making it more
difficult than it needs to be meaning that from what you heard Mr. Lombardi say,
you are thinking that it is a good solution?
Mr. Maglidt: A twelve (12) foot drop can be made easily
into a stepping trail to the fisherman's path.
Mr. Kagawa: And your other point was that the
fisherman's path could be improved?
Mr. Maglidt: Not necessarily improved. No. That is
stationary. That is there. I think the improvement would be made in the trail to
Lepeuli to help people that have maybe hiking issues to go down safely to Lepeuli
and then you can walk all the way to Waipake. The mauka/makai trail public
access as Mr. Lombardi said just needs to be a few feet over, make a stepping,
twelve (12) steps to the fisherman's trail. It is that easy.
Mr. Kagawa: Thank you.
Chair Bynum: I have a couple of questions. Thank you very
much for your testimony. You are talking about traversing laterally from Lepeuli
along the coast to where?
Mr. Maglidt: Waipake. At the end of Lepeuli, the
fisherman's trail starts, and the trail is at the rocks where the rocks meet the cliff
and goes right around. Easy access.
Chair Bynum: And that trail you believe is entirely on State
land when you make that? You are not crossing?
Mr. Maglidt: It is at the beach. In my knowledge there is
no crossing any private land. There is a little trail that goes up on private land, but
fisherman's trail goes right at the shoreline.
Chair Bynum: And there is facilitated access along the
shore, even in high surf conditions?
PL COMMITTEE MEETING 19 DECEMBER 11, 2013
Mr. Maglidt: There are a lot of places you should not hike
in high surf conditions and fishermen do not do it.
Chair Bynum: The State land is from the high wash of the
waves, so it is from where you get wet.
Mr. Maglidt: That has been there forever.
Chair Bynum: Thank you.
Mr. Maglidt: Thank you for your time.
Ms. Marugame: Rayne Regush.
RAYNE REGUSH: Good morning Councilmembers. Rayne
Regush for the record and I am speaking on behalf of the Sierra Club Kaua`i group.
We appreciate the opportunity to testify and to express our strong concerns. When
this grant of easement was first presented to the Council it had significant
shortcomings, which thankfully, several residents recognized and alerted you to and
you should be asking why the original easement document failed to address parking
and vehicle capacity. Why it failed to reach the beach. Why it disallows bicycles.
And why it failed to disclose the historic ala loa lateral trail, which the grant of
easement intersects. So, there has been a significant omission of facts. Falko
Partners LLC failed to disclose to the County the existence of the traditional public
access along the ala loa in Waipake during the subdivision process and the title
report that was provided to the Planning Department omitted an important four (4)
page document and I have that to give to you. It is the 2008 Fifth Circuit Court
stipulation between Falko Partners and the State of Hawai`i for a Quiet Title
Action. It contains the stipulation, item number six (6) that the State "reserves its
right, title and interest and claim to the ten (10) foot wide ancient trail affecting
parcel ten (10) also known as the ala loa." So thus, while the County required a
mauka/makai pedestrian grant of easement to the beach as condition of the
subdivision approval it imposed no requirement for access along the ala loa and it is
very likely this is because this information was not disclosed and by concealing the
public's right to traverse this historic trail, Kahu'aina Plantation achieves greater
exclusivity for their gentlemen estates. Does this significant omission warrant
revisiting the subdivision permit? Is it reasonable for the County to now require a
metes and bonds survey to preserve this important public trust resource? I would
suggest that the site visit for Councilmembers is needed immediately. We
encourage the Council to schedule a site visit as soon as possible so you can see the
proposed easement, the historic ala loa trail before there is any more ground
disturbing activity. Most likely you will be brought down the unimproved roadway
that I believe run along that southern boundary fence, which will be the pedestrian
PL COMMITTEE MEETING 20 DECEMBER 11, 2013
right-of-way and towards the coast you can evaluate whether there is a broad and
level area that might be a viable area for parking, similar to the parking logistics at
Larsen's Beach. So since the proposed pedestrian easement does connect to the ala
loa, it is really critical that access remain open along that historic footpath, allowing
passage in both directions throughout the entire ahupua'a as has been done for
generations. Surveying the location of the ala loa is critical and because I served on
the State Na Ala Hele Advisory Council, this proposed grant of easement and its
impact to the ala loa...
Ms. Marugame: Three (3) minutes.
Ms. Regush: ...was brought before the attention of DLNR
Chair Aila and Attorney General Louie in a letter dated September 29th. The State
replied that they had no plans to take action regarding the trail and you saw the
letter to Sean Smith dated November 6th that states that they anticipate that the
mauka to makai easement will satisfy the public's concern regarding access to the
coastline. Well, this ridiculous position misses the point entirely, because as you
understand, guarantying lateral access along the historic ala loa along the length of
the ahupua'a is just as important as access to the ocean. So without County
Council's support, public access along the ala loa may be lost, just like we lost
access to Papa'a Bay and many others. And as the State seems so unwilling to fund
the survey of the ala loa, Sierra Club is prepared to initially donate a check for two
thousand dollars ($2,000) towards the cost of a survey and we understand that
other community groups would be willing to help financially as well. So in
conclusion, the traditional, culture and historical value of the ala loa in Waipake is
clear. It has been used for generations. The proposed alignment of pedestrian grant
of easement can on the reach the beach by way of the ala loa therefore please do not
say it is not the County's jurisdiction. The County must represent the public's
interest and can help protect this public trust asset for Kaua`i's residents. So we ask
the Council four (4) items. Please go on a site visit as soon as possible before the
landscape is altered. There is no need to wait until April. The vegetation there is
minimal, particularly as you heard it can be cleared by hand. If it is not being
cleared by hand, I believe that would trigger conservation district use permits. So
there is no need to wait. Number two (2), see firsthand the historic ala loa path,
whose existence was hidden from the County during the subdivision process.
Three (3), commit to protection this treasure for your constituents; and four (4),
work with DLNR, the landowner and importantly, community representatives who
have the expertise in this area to help establish the delineation of the ala loa with
metes and bounds and a survey to be recorded in the Bureau of Conveyances, prior
to making your decision on accepting the mauka to makai pedestrian grant of
easement. Mahalo.
Chair Bynum: Councilmember Yukimura.
PL COMMITTEE MEETING 21 DECEMBER 11, 2013
Ms. Yukimura: Hi Rayne. Thank you for your testimony.
You know that I have already scheduled a site visit to go with you, right?
Ms. Regush: Yes.
Ms. Yukimura: Now when you say "see the ala loa path" I
am totally baffled.
Ms. Regush: For generations this footpath has gone
through, across the ahupua a.
Ms. Yukimura: You are saying that you can actually see it?
Ms. Regush: Yes, you can walk on it. It is an established
footpath. It is narrow in places and gets wider in other places. People have used
that for generations.
Ms. Yukimura: It is a continuous path?
Ms. Regush: Most of the ways. There are some gulches or
gullies and it gets a little more confusing, but apparently on you site visit, of course
it was not in the landowner's best interest to show you the complete picture.
Ms. Yukimura: Okay. Because my understanding is that
there is not an actual physical delineation of the path and I apologize if I am vastly
incorrect about that but there are historical written references/stories about it, but
that would have to be actually used before court to establish something that two
thousand dollars ($2,000) is not going to be anywhere near the amount to do that,
but if I am incorrect, I would like you to correct me.
Ms. Regush: We certainly understand that attorneys
representing private interests have agendas that often do not align with public
good. And therefore in other meetings when you have these meetings with
landowner's representatives it is so important to include community members that
have expertise as well. When we go on that site visit and ideally, everybody should
go together. We can see the delineation of the path as it is now. We can go ground
truth it, because it is there. People have not stopped using it for all these
generations, so again, it keeps the vegetation clear, because it is being used. It is
being walked on.
Ms. Yukimura: Where does it go in relation to the resources
that were of concern to DLNR on the north end of Waipake property?
PL COMMITTEE MEETING 22 DECEMBER 11, 2013
Ms. Regush: I believe the ala loa may be makai of that. I
believe.
Ms. Yukimura: It is something you can actually see?
Ms. Regush: As I said, most segments of that trail are
visible because they are being used. It is not hidden.
Ms. Yukimura: Okay, so are you or are other citizens
creating a petition before the Department of Land and Natural Resources Board to
ask the Board, because they are the holders apparently of the legal rights to the ala
loa? So is there an effort to ask them to take the leadership, because one of the
biggest problems there is not an active willing partner in the people who have, in
the department or government agency that has the clearest jurisdiction over the ala
loa.
Ms. Regush: Well, I find it kind of astounding to hear
Mr. Lombardi say this is something they would fight the State on when in 2008
here we have this court stipulation from the Fifth Circuit Court signed off by
representatives about State.....
Ms. Yukimura: That does not surprise me that a landowner
would say that they would defend their position in court. My question was, are the
citizens who are concerned about petitioning DLNR asking them to assert their
rights on behalf of the people of Hawai`i to this trail, because they have the most
direct jurisdiction over this matter.
Ms. Regush: We will be meeting with Chair Aila. We do
not find their response acceptable that they are not going to take action at this time.
We suspect that the landowner has probably approached them several times prior
to us, and perhaps there is some bias there and fear there that they do not want to
go down a legal tussle. If you are following the news with the Haleakala trail and
the DLNR giving that away to private entities, I know the State has their hands full
on some of these similar issues.
Ms. Yukimura: The way to make the State's hands full is to
put before them through proper procedure, which I do not know myself, but perhaps
the Native Hawaiian Legal Association or someone with legal expertise could help
you develop whether it is a petition, ask for a contested case. I do not know what it
is to request action from DLNR because no matter where the County stands and we
would, I believe, support some work on this ala boa, they are the ones who are the
legal holders of the right as far as I can understand.
PL COMMITTEE MEETING 23 DECEMBER 11, 2013
Ms. Regush: We see the County as stakeholders that you
would want to advocate as well.
Ms. Yukimura: We are stakeholders. We can advocate, but
we are not the ones who can assert the ala loa right as far as I understand.
Ms. Regush: I did not have a chance to speak with my
contact at Office of Hawaiian Affairs who is aware of this as well. So yes, there are
lots of different angles going forward on this and we are looking for the Council's
support, strong support from the Council for this. I have another document I can
give you also, where DLNR wrote to Case Lombardi, to clarify their understanding
of an agreement pertaining to the subdivision of the parcel. It states "that the lot in
the conservation district will remain as-is and will be donated to a public trust to
remain in perpetuity." So I do not believe that has come to pass, so just to
illustrate, I wanted to put that out there for your consideration.
Ms. Yukimura: Thank you. I appreciate the information and
can you provide a copy of what you just referred to as well to us?
Ms. Regush: Yes.
Ms. Yukimura: Thank you very much.
Chair Bynum: Councilmember Kagawa.
Mr. Kagawa: Thank you. In 2008, did the Sierra Club or
yourself, you participate in the subdivision application process for Kahu'aina?
Ms. Regush: I am glad you are asking that because
subdivision process is so under the radar.
Mr. Kagawa: Yes or no?
Ms. Regush: They have not been funds to caption that, so
people are not aware, unless you pull up the agenda every two (2) weeks.
Mr. Kagawa: I am talking in 2008, did you participate and
make your comments because that was the time when you should have. If you had
such strong reservations about the distance of the parking lot and walkway, that
was the time and I was just wondering at that time did the Sierra Club strongly
oppose that subdivision?
Ms. Regush: I cannot recall. I can tell you that I have a
copy a copy of the...
PL COMMITTEE MEETING 24 DECEMBER 11, 2013
Mr. Furfaro: Excuse me, let us follow the rules. Let us all
follow the rules here. You do not get to extend your time in dialogue and sir, you
posed a question and asked for a response and you got a total response.
Mr. Kagawa: She gave me a different response.
Mr. Furfaro: I understand. Rayne, in the sense of
responding to the question first and then see if there is further dialogue. Thank
you, Members.
Mr. Kagawa: So you do not recall whether in 2008 the
Sierra Club strongly opposed the subdivision?
Ms. Regush: I do not recall. I do have a copy of the
conservation district use permit that was required for the subdivision. I would have
to go back and look through if we submitted testimony.
Mr. Kagawa: Because to me, that is what we have to fix. If
the subdivision process is failing, let us fix that. Let us not fix it at the Council
when everything is done. It is like fixing a broken car that cannot be fixed.
Ms. Regush: You are right. It illustrates as a problem.
Mr. Kagawa: Last question, has the Sierra Club, I guess,
had those discussions with Mr. Aila regarding the ala loa? I guess, if they have had
success on other properties as they go for approval for easements or whatever, if
they have some success on some other ones, then maybe we can hope that maybe
they have some success with this one.
Ms. Regush: Yes. Because we had success with Moloa`a
Bay Ranch and that meeting with Chair Aila has not been scheduled yet.
Mr. Kagawa: Councilmember Rapozo and I have talked to
him personally and that is why we got that response. We also talked to the Kallis,
walked the ala loa with them, and sent the letter asking Mr. Aila, "are you going to
enforce that ala loa on the property?" That was the response we got, whether or not
we are happy. That is why I said we cannot order him to do it. County and State
are totally different and you know that, and that is the dilemma that we are in.
Ms. Regush: If I may, do you have an understanding why
they said they are not going to take action at this time?
PL COMMITTEE MEETING 25 DECEMBER 11, 2013
Mr. Kagawa: My understanding, just from reading it is
just basically the same thing. They are not planning to do it and I guess it is not
important to them at this time.
Ms. Regush: When we pursue, we would like to find out
why they are taking that stand.
Chair Bynum: Other questions? Council Chair.
Mr. Furfaro: Non-committee member. Thank you. I want
to make sure that I did hear this referencing Rayne, you do see the County as a
stakeholder, and you are in agreement that the authority, the authority on this is in
the hands of the State under the Highway Act of 1892, which governs trails and
right-of-ways, highways. I am sorry, but you see us as stakeholders, not the
authority?
Ms. Regush: Yes, the State has the claim yet it is the
County residents that would traverse the trail.
Mr. Furfaro: So you see us as stakeholders and you
recognize that the authority is with the State of Hawai`i. Now that being said, we
have these two (2) documents. One that says they are not pursuing the ala loa at
this time, but at the same time, we do note that in this other correspondence, that
they are reserving the right to revisit this. That is kind of what I got from that.
Ms. Regush: I have the Court stipulation as well.
Mr. Furfaro: Could we get a copy of that?
Ms. Regush: Sure. It reserves the ten (10) foot claim to
the ancient trail known as the ala loa.
Mr. Furfaro: Yes. So we have these ying and yang for lack
of other actions. We are not pursuing it but we are not giving up the right-of-way.
The County is the stakeholder but the State has the authority and I think that is
what your group will be lobbying support for.
Ms. Regush: And as you discussed earlier, that pedestrian
grant of easement is intersecting with a portion of the ala loa to get you to the
beach. That is how it comes into play as well.
Mr. Furfaro: I also feel that there is some definition
needed there because as having kama aina family on the north shore there were at
one time two (2) trails at one (1) point. One (1) was the postal delivery system. So
PL COMMITTEE MEETING 26 DECEMBER 11, 2013
which are we discussing and which was the right-of-way? They actually went as far
as Ha`ena to deliver on the postal trail and then they overnight in Ko`olau and
Anahola. So, two (2) different trails. Thank you. I wanted to give clarity to you, as
Councilmember Yukimura pointed out, the County could be stakeholders in this,
but we are recognizing the authority to be with the State. I need a recorded
acknowledgment.
Ms. Regush: That is true, but what will you do pertaining
to getting the beach at this point because it intersects the ala loa.
Mr. Furfaro: That is the mauka/mauki access and that
why my earlier question, the path for the fishermen, the lawai a, that in fact is
where I was coming from. Is that going to be encroached on this new proposal? We
do not know yet and will not know that until April.
Ms. Regush: That is why it would be why it would be so
wonderful to see before the landscape changes and the fisherman trail between the
boulders. It is probably hit by the high wash of the waves occasionally, so it is in
the public right-of-way.
Mr. Furfaro: Councilmember Yukimura has acknowledged
that she is planning to coordinate that site visit and I would also encourage that the
County Engineer, as it relates to our charter and trails, that he does have some
influence about the maintenance, which was brought up by the gentleman from the
sierra club, about addressing the safety aspects of it. I am sorry, what did I refer to
his organization? Surf Rider Foundation, I am sorry. Surf Rider Foundation and
we will see about getting the County Engineer to participate in the site visit too.
Ms. Regush: Thank you.
Mr. Furfaro: Mr. Chair, thank you for the floor.
Chair Bynum: Councilmember Yukimura.
Ms. Yukimura: Rayne, you say before the landscape
changes. What changes in the landscape are you talking about?
Ms. Regush: Well we just heard there is minimal
vegetation there that apparently they want to clear by hand to facilitate your
walking along the proposed easement. Now why it is being deferred to April, I am
unclear because I thought I heard it had something to do with permits or
conservation district use permits. But if you are hand-clearing vegetation, it does
not require those State permits. So maybe you can seek clarification and again
there have been major, significant, mature trees on the sandy beach that were
PL COMMITTEE MEETING 27 DECEMBER 11, 2013
removed in September. So like I said, the landscape is already changing. Let us
have you go out there and see how it is before it changes any further.
Ms. Yukimura: Well, from what I saw, the vegetation did not
go all the way down to the shoreline. There is a clearing and I do not know that we
are going to determine how they should clear it for us because I think a bulldozer or
whatever could also do it.
Ms. Regush: I am suggesting had you been taken in a
different direction, it is accessible now by foot nothing needs to be cleared at this
point in time, because the pins are in already. So it is clear where it is and it is
easily traversable.
Ms. Yukimura: That was not our experience.
Ms. Regush: That is not what the landowner presented to
you. Yes, that is apparently right and another reason to have a representative from
the community, when you do have these meetings with the landowner's
representatives. It is nice to have everybody at the table otherwise it is a divide and
conquer mentality that occurs.
Ms. Yukimura: I agree. Thank you.
Ms. Regush: Thank you so much.
Chair Bynum: You are talking about doing a site visits and
you have done site visits with folks and the developer is talking about doing a site
visit. I have not done one there in years. I have been on that property before but a
very long time ago. I want to do a site visit and as I said earlier the area in question
is near the shoreline. I cannot walk a mile to get there. So I would like to put on the
record, I would like to make a site visit with the Sierra Club and the developer and
I am requesting that the developer facilitate me getting to the site without
physically... I can walk about a half a mile but I cannot walk a mile. In six (6)
months I will be fine, I hope, but I am coming through this period of mobility
problems. Anyway, is that something that you are able to do, a joint site visit?
Ms. Regush: If I can clarify, my understanding when we
all left the last Council meeting it was agreed that a site visit would be scheduled
within thirty (30) days and we heard Mr. Lombardi say "yes" and that would give
them enough time to prepare the site to bring Councilmembers down. So you would
be brought down likely in a vehicle, because there is an unimproved road that
follows the delineation of where I believe they want the easement and you would be
brought fairly close to the coastline.
PL COMMITTEE MEETING 28 DECEMBER 11, 2013
Chair Bynum: Well, we have not approved this easement,
so if I go on the property now, I would be trespassing and I do not want to do that.
Ms. Regush: You would stay on the ala loa.
Chair Bynum: I think some people...I am asking for an
accommodation and I am putting up the concept that community members and
representatives of the developers would meet on-site together. That is the request I
am making. Would you be willing to do that?
Ms. Regush: Yes, certainly.
Chair Bynum: Council Chair Furfaro.
Mr. Furfaro: I just want to remind us all about your rules.
Rayne, it is important that you hear this as well. There can be no meeting of any
discussion at the site. There can be a site visit, questions limited to members, but
the reality, the discussion has to come back to the chambers.
Mr. Bynum: I am only saying me, just me.
Mr. Furfaro: Understood. I just wanted to share.
Chair Bynum: It appears others have already been there
and I have not. I do not know how you access private property without getting
landowner's permission. That is the appropriate thing to do. So I will see if that
occurs.
Mr. Furfaro: I just want to finish, since I had the floor, I
want to finish. I just want to make sure that we understand what the rules are.
We could not have a meeting there. That is all I wanted to point out. We would
have to come back and she referenced "the Council." Just so we are clear. Thank
you, Mr. Chair.
Chair Bynum: And I will clarify that further. Because the
Open Space Access Commission has had mobile meetings, but you have to post it,
you have to make accommodations for the public.
Ms. Regush: That is true.
Chair Bynum: It is not practical.
Ms. Regush: I thought Councilmembers understood that
when they all agreed, when Councilmember Nakamura was here, that that is the
PL COMMITTEE MEETING 29 DECEMBER 11, 2013
process, because that is what public access, Open Space and Natural Resources
Preservation Fund Commission does for their site visits as well. Exactly.
Chair Bynum: Right. I am not suggesting that the Council
do those logistics. It would be unnecessary. Thank you for your testimony. Next
speaker.
Ms. Marugame: There are no other speakers.
Chair Bynum: Is there anyone else in the public that
whishes to testify on this matter? Mr. Kallai.
TIM KALLAI: Aloha, Tim Kallai for the record. Aloha
Council and thank you once again for allowing us the opportunity to speak on the
issue of the ala loa, as well as the subdivision process and our easement. I guess at
the forefront. What comes to me as I am looking at this whole process,
unfortunately, is dealing with something far greater that I think the State is
recognizing and that is to preserve the elements of the cultural and traditional
practices that have been maintained prior to the demise of the Hawaiian people and
the kanaka maoli with the takeover. Because of this, I feel we have an element that
the public trust and the State, even though they are the holders and are supposed
to be helping with these resources, I feel that they have personally done an
inadequate job as can be almost shown to us by the letter that was presented by
Councilmember Kagawa. Showing us, that at this point in time they are not taking
action to preserve our public trust. How are we supposed to use something any more
or any longer if we cannot even find where it is and if it is not being delineated?
We, as personal citizens have been asking for over a decade not necessarily with
just this ahupua a, but others such as Lepeuli, Ka`aka`aniu, Moloa`a and we are
newbies. Malahini that have coming here to appreciate this beautiful aina, this
land and everything that the people and the culture have to offer us, and we have
not been able to participate in that because the State will not take action.
Something is wrong here. Drastically wrong. I can see why the kanaka maoli are
infuriated and upset. I ani and am not kanaka maoli. Something is drastically
wrong with this process. These people are supposed to be stewards for us, on our
public behalf. Are they really doing this? No, instead they give us a letter that says
this other easement will suffice for what should already be there and already
delineated for our usage. What does that mean? That I can cross a fence and
anywhere on the ahupua a? That I can go since they have not delineated where the
ala loa is? I am not in contempt of trespass then, am I? How can they be? They
have not delineate where the ala loa is. They state it is there, but how can I use it
properly if it is not given to me in that sense? They are saying their lack of
resources is the reasoning for why we cannot get this done. Is it going to be easier
when this is fully developed? I only see it as being harder at that time to try to get
back our resource.
PL COMMITTEE MEETING 30 DECEMBER 11, 2013
Ms. Marugame: Three (3) minutes.
Chair Bynum: That is your three (3) minutes Tim.
Mr. Kallai: Am I allowed another three (3)?
Chair Bynum: Yes, you are.
Mr. Kallai: Thank you so much. Just recently I heard
that the President has signed into act Article 32 which specifically states these very
issues of how States have the diligence and rightful duty to protect the public's
resources and it definitely applies here with this ala loa and other issues connected
with the kanaka maoli and others that have presented their testimonies to Council,
as well as to the State on these issues, not necessarily specifically with Waipake but
once again the generalized term the ala loa and ajoining ahupua'a and things of
this nature. In particular, as Councilman Chock made note of Auntie Linda Sproat
and her family going back thousands of years. Oral testimonies have her even
having walked with her father and grandfather on these trails for resources, not
just to use from the ocean, but also to use mauka or on the aina itself for medicinal
purposes, things of this nature. In the document one of the things that I seem to
constantly come across and it talks into the back about the aspects of public trust
and how it is the State's diligent duty that they have to be doing this and they are
just not doing this and I do not know what else we can do above and beyond this to
ensure that we have this for our sake of preservation. Like you say it is like a slow
process of "white-washing" or slowly getting away or acting like the host culture of
this nation here did not exist. If you slowly erase all of it eventually with due
course and time and especially as the kupuna are slowly dying off that we no longer
have that connection. How can we use something once again when we are being
barred to use it, so we can perpetuate this? So I am just asking that the Council,
when you do have the opportunity for a site visit, if you could please include a
representative from the Kilauea Neighborhood Association? They are the ones that
should be looking out for this particular area. If I could please put that request in
when this does happen, that somehow or another they are notified so they can have
representation.
Ms. Marugame: Six (6) minutes.
Mr. Kallai: Thank you again once again. And forgive me
once again for the passion, the volume that I had used, but I am upset.
Chair Bynum: Thank you, Tim. Any questions?
Councilmember Yukimura.
PL COMMITTEE MEETING 31 DECEMBER 11, 2013
Ms. Yukimura: Hi Tim. Thank you. When you invoke people
like Auntie Linda Sproat and others, you realize that they were using this trial in a
time that they were accessing food to eat and other resources. It is a different time
when a million (1,000,000) tourist are on this island in a year and if they have free
access of that trail as well, I believe there will be issues of resource protection that
have to be addressed. You keep talking about preservation and protection of
resources, like we learned when we acquired Crater Hill from private ownership to
public ownership, we had to give up public access for the protection of the resources
at Crater Hill. All I am trying to say is that in this day and age, the management of
public access is a very delicate dance and I do not know all of DLNR's...I mean I
think Rayne's question about why are they taking this position that they are taking
is a really good question to ask them and to understand. I think some of them are
concerned about resource protection and that defining the access and managing the
access is something that has to be really well-thought through. Whether it is monk
seals or trampling of a native species or overfishing and overtaking resources from
the reef, or four (4) wheel drives on the beach, I mean, there are all of these issues
that go along with access that have to be thought through. That is why I do not see
the definition of ala loa as a simple task that can be done with two thousand dollars
($2,000) or more.
Chair Bynum: Councilmember Yukimura, is there a
question for Mr. Kallai?
Ms. Yukimura: Do you see that the definition or defining of
establishment of public access can be a difficult thing as well?
Mr. Kallai: Thank you, Councilmember Yukimura. I
think when we look at the issues and particularly with the ala loa, we can look at
different examples on say for instance the Big Island. They have been recognized
and they too have massive trail systems throughout, but some of them have even
reached the point that they are national historic registry status. If something of
this nature were given to us here on Kaua`i, there would be funding sources and
other things that would be available not only for the maintenance, but for the
protection of these. You could have people once again, if we feel that the tourists are
going to be so obligated to get out of their rental vehicles to want to take a ten (10)
mile hike. There are pros and cons to all of this. I can see this, but I think most
people come to Kaua`i and the reason that they come to Kaua`i is because it is still
relatively close or one of the last vestiges of it being relatively close to what the
lifestyle and what the people and the culture use to be like. It is not Waikiki. It is
not Lahaina on Maui. That is why they come here. They still want to feel that
essence. If they come with that mindset, a good majority of them will not be coming
here to be abusing or to be taking away from, but I believe that it will help them
also carry the consciousness that we carry on Kaua`i to preserve our natural beauty
and the tendencies of what we have at its highest and best.
PL COMMITTEE MEETING 32 DECEMBER 11, 2013
Chair Bynum: Can you sum up there?
Ms. Yukimura: I think the kind of management that is
happening on the Big Island could be of great interest to me and others who are
establishing trails. So if you have the information and contacts I would be very
interested.
Mr. Kallai: We would love to provide that to you.
Ms. Yukimura: Thank you.
Chair Bynum: Councilmember Kagawa.
Mr. Kagawa: DLNR is not here, but you and Hope are
probably just as knowledgeable, if not more about the ala loa. You educated me
early on and I am still am rookie at the ala loa. The ala loa that you are talking
about would run somewhat along the property line?
Mr. Kallai: In places it actually does go mauka and
especially through Waipake. We have to state one thing when the State come to
visit, they claimed that it went a little bit mauka inland, away from the coastal trail
and the reasoning is because during certain seasons or time of the year, when you
are so close to the ocean, you do not want to put yourself in harm's way. You have
high surf and high weather conditions prudent common sense, you know?
Mr. Kagawa: When we walked the ala loa it was pretty
much along the coastline.
Mr. Kallai: It was, but up on the bluffs. On the pall too.
Not down on the fisherman's trail, closer to the rocks, closer to the ocean, correct?
Mr. Kagawa Yes.
Mr. Kallai: That was out interpretation.
Mr. Kagawa: I mean where is the ala loa as you
understand it? Is it running along there?
Mr. Kallai: To the best of my knowledge, I could say yes,
relatively close.
Mr. Kagawa: Can any of the ala loa run on the State
property, in front of the property line? The property line does not go all the way
into the water, right?
PL COMMITTEE MEETING 33 DECEMBER 11, 2013
Mr. Kallai: I cannot make that determination, Ross. I
am sorry.
Mr. Kagawa: That would be another alternative. That
would satisfy the ala loa if parts of the ala loa could be pushed towards the ocean.
Mr. Kallai: When you say "towards the ocean," the State
already has the right-of-way on the sandy beaches to the high wash of the waves by
law. There is also Hawai`i Revised Statutes (H.R.S.) 115-9 that allows for safe,
lateral transit and I believe that is above and beyond the high wash of the waves.
Mr. Kagawa: Okay.
Mr. Kallai: So there are all kinds of books already
marking that we can delineate this if need be. Is that the historic trail? Ross, like I
said, I wish I could state that, from my perspective, I am not kanaka maoli.
Mr. Kagawa: My question is such that you stated your
frustration, and myself and Councilmember Rapozo felt your frustration. We went
to the head of DLNR and we told him that we wanted to see what is their plans for
identifying the ala logs along Kaua`i and especially the Waipake property and we
get that response. I think we had two (2) responses. One (1) earlier, maybe in July,
then we asked them again if they changed their mind from July to October. What
more do you want us to do?
Mr. Kallai: Article 32, Ross. I am telling you right now.
Mr. Kagawa: We do an Article 32?
Mr. Kallai: Article 32 will trump them. It is Federal on
top of the State stating it is their kuleana to act on this and preserve the resources
for these people.
Mr. Kagawa: I have never used Article 32, so I suggest
that you talk to Mr. Jung and he can advise us about that process.
Mr. Kallai: Okay.
Mr. Kagawa: My normal process is to work together and
get them to do their job, because it is the right thing to do, not because I have to
force them to do something that I want to.
PL COMMITTEE MEETING 34 DECEMBER 11, 2013
Mr. Kallai: I agree and why should that be the public's
kuleana to do that? That is what the State is here for.
Chair Bynum: Other questions for Tim? Council Chair.
Mr. Furfaro: Tim, what this is really boiling down to is the
fact that we have a mauka/makai easement for us, and we have the State
recognizing that in the documents given to us, that they are acknowledging in
condition six (6) of stipulations, "the State reserves its right, title, interest and
claim to the ten (10) foot wide ancient trail affecting parcel 10 known as the ala
loa." The State is recognizing that, but are we going to be....and I am glad to hear
that Councilmember Yukimura is going to defer this to April. Are we going to find
ourselves at a point in April that we cannot be stakeholders and lobby for the State
to pursue the ala loa, which they have acknowledged and we are going to delay the
mauka/makai acess and this will go on and on and on? I just want to make sure
that we understand and this is the Committee. I am not a voting member. The ala
loa is available in the State's future with us creating some type of strategic plan as
stakeholders, the County; to kind of lobby for taking inventory of how we are going
to do this. There might be some financial resources and determining priorities, but
in the meantime, are we willing to hold up the mauka/makai trail? Until we resolve
the ala loa, which could go on for a very, very, very long time but the good point and
I heard your frustration is that they are acknowledging in this court stipulation
that it exists. That is the first step and now the group needs to ask the County to
try and help them lobby to get the State to formulate a plan to get this recorded but
are we going to hold the two (2) up? That is my question.
Mr. Kallai: Thank you, Council Chair Furfaro on this. I
definitely see certainly, from the County's perspective. The difficult aspect too and it
comes to mind for me is that first and foremost should our Planning Department or
Planning Commission have even allowed a permit for a subdivision if all of these
clarities...
Mr. Furfaro: You have to answer my question. You are
basically saying do not issue the permit and do not take the mauka/makai access
until we resolved the ala loa. You have just answered it.
Mr. Kallai: Mahalo.
Mr. Furfaro: And that is the question before us, is that
acceptable or not or to have this perpetuated forever and not have access to the
ocean. Thank you, Chairman.
Chair Bynum: Thank you. Are there any other questions
for Tim? Thank you, Tim.
PL COMMITTEE MEETING 35 DECEMBER 11, 2013
Mr. Kallai: Mahalo so much.
Chair Bynum: Anyone else who would like to speak on this
matter? Hope.
HOPE KALLAI: Aloha. Hope Kallai. I have testimony, but I
would like to address the map while it is up here. That little, bitty square in the
corner by Kepuhi Point is the kuleana that we have been talking about. When that
kuleana was moved the State reserved the ala loa right there. It is only one
hundred (100) by one hundred (100) foot lot. That is where the ala loa reservation
is. On the other side of the ahupua a, was the other kuleana. I do not know why it
is not on this map but the ala loa connected those two (2) costal kuleana pahale. It
is not rocket science to find it. It is there. There is a bit of confusion in the
vernacular with all these fisherman's trails. There is an existing fisherman's trail
in the ironwoods. That is what people with calling the ala loa and that is what
people call the fisherman's trail. Aunty Linda refers to it as the limu trail. It is
called Tutu's trail. There are a bunch of fishing trails in the rocks but the one that
people call the fisherman's trail is in the ironwoods. Really what we are talking
about is an ancient, historic, cultural byway and I do not believe we have asked the
right people. We have not barked up the right tree. Asking the Department of
Forest & Wildlife (DOFAW) about a cultural trail is inappropriate. Only Office of
Hawaiian Affairs (OHA) can comment on that and I do not believe we have
comments from OHA on this. So please defer the acceptance of this grant of
easement until comments can be included from the Office of Hawaiian Affairs, State
Historic Preservation Division, Kaua`i Historic Preservation Commission. This area
is of high historic and cultural resource values, comments and concerns of Native
Hawaiians and cultural practitioners have not been adequately considered.
Traditional gathering and Public Access Shoreline Hawai`i (PASH) rights have not
been considered. The cultural and historical coastal trail, the ala loa has not been
located. Attached please find comments from the Office of Hawaiian Affairs about
the importance of preserving the ala loa in the contiguous Lepeuli from 2010 and
2011 and in Moloa`a in 2008. The significance of the ala loa, also known as the limu
trail is established under Criterion E of A.T.R. 13-284-6, have an important value to
Native Hawaiian people or to another ethnic group of the State due associations
with cultural practices once carried out or still carried out. limu harvesting is still
carried out. H.A.R. Section 13-284-6C further states prior to submission of
significance evaluations for properties other that architectural properties the
agency shall consult with ethnic organizations or members of the ethnic group for
whom some of the historical properties have significance under Criterion E
Ms. Marugame: Three (3) minutes.
PL COMMITTEE MEETING 36 DECEMBER 11, 2013
Ms. Kallai: ...to seek their views on the significance
evaluation, for native Hawaiian properties which may have significant under
Criterion E, the Office of Hawaiian Affairs shall be consulted.
Mr. Furfaro: Hope, that was your first three (3) minutes.
Ms. Kallai: Thank you. On January 28, 2008 then OHA
administrator, Clyde Namuo wrote the Kaua`i Planning Committee. Neither the
developer's paid archeological consultant nor the State Historic Preservation
Division possess the capacity to determine whether any historic site found and
evaluated meets the criteria for having an important value to Native Hawaiian
people and thus the obligation to meaningfully consult with the Office of Hawaiian
Affairs so that the people can determine what is valuable to them. The lateral
coastal trail, the ala loa, the limu trail is a very significant, traditional, historical,
cultural trail. The importance of which can only be determined by native
Hawaiians. Attached please find kupuna testimony about the importance of
preserving access on the lateral ala loa from the Linda Sproat, there are two (2) of
them, Nalani Kaneakua, Gladys Christian, Mark Boiser, Pearl Santos, Charley
Perreira and federal archeologist, Jennifer Waipa, makua testimony, testifying as a
private citizen. These kupuna are cultural icons with many generations, over five
hundred (500) years of knowledge and should be respected for their mana`o. DLNR
representatives from Oahu who visited the area for an hour with attorneys cannot
be expected to have the generational depth of knowledge and understanding about
our island and its resources that our kupuna have. Our kupuna should be listened
to and not just the property owners, attorneys and their State workers. Please
ensure the lateral coastal access on the ala loa will not be comprised by the
development in the conservation district. In 2008 CDUP 3448 was issued by DLNR
to move those two (2) kuleanas stating "no subdivision of land is proposed in the
conservation district." Yet Falko submitted five (5) houses in the Special
Management Area (SMA) and one (1) in the Conservation District (CD) in their
subdivision map. So this house and this CD has great potential to impact the
location of the ala loa. Whose responsibility is it to make sure that the Conservation
District Use Permit (CDUP) conditions of no development in the SMA of CD is
honored? Lot 15-K is SMA and CD with density of six (6) house sites. That severely
impacts the potential location of our lateral costal trail. Please determine the final
density of residence and ADU guest house sites and where they can be located.
There have been two (2) subdivisions on a one (1) time only agricultural land
consideration. Why has it been allowed to be subdivided twice? Please consider the
importance of the ala loa in connecting the network of coastal trails and
mauka/makai beach accesses. We have twelve (12) county mauka/makai beach
accesses that the State has failed to identify the ala loa is compromising and
segmentalizing all those.....
Ms. Marugame: Six (6) minutes.
PL COMMITTEE MEETING 37 DECEMBER 11, 2013
Chair Bynum: Hope, that was your six (6) minutes. Can you
wrap it up quickly?
Ms. Kallai: I just think that OHA needs to be at this
discussion. It is a cultural trail and for us to sit here and decide thirty (30) feet this
way, thirty (30) feet that way to lug a hundred (100) pound bags of limu. First
priority is native Hawaiian comment on this trail situation. I do not believe that
they have been asked to come to the table on this.
Chair Bynum: Thank you for your testimony.
Ms. Kallai: I have a whole bunch of kupuna testimony to
submit here.
Chair Bynum: Wait, we may have questions. I am going to
start with Council Chair Furfaro.
Mr. Furfaro: I just wanted to get some clarification. First
of all, have you been able to seek on a OHA visit to Kaua`i to be able to get on this
agenda?
Ms. Kallai: I have submitted this at some of their
meetings and I have spoken to their attorneys. I have letters here to Kai Markel
and Koalani Kaulukukui and Everett Ota and I have papered DLNR. I have
papered everyone I could think of.
Mr. Furfaro: I am talking about the OHA board.
Ms. Kallai: Yes.
Mr. Furfaro: You have? Okay. I mean if you would like
our help....
Ms. Kallai: Yes and I actually went in on Monday and
tried to see if I could get Trustee Ahuna out to take a look.
Mr. Furfaro: I was going to finish my statement. Would
you like us to write a letter to them to encourage, them we will do that.
Ms. Kallai: That would be great.
Mr. Furfaro: Earlier when you talked about the map you
referenced a particular kuleana that was on the Kepuhi Point area. I just want to
PL COMMITTEE MEETING 38 DECEMBER 11, 2013
get clarity here. You referenced it as a pahale kuleana and I just want to make sure
that we understand that as you go through the recordings of the mahele and so
forth you will find that if someone had their kuleana referencing, maybe taro or
canoe building and so forth, they recorded that and then they also had an
opportunity to record approximately a quarter (.25) acre for the house site. Usually
those deeds are referenced as pahale. They are specifically house sites. How did you
make that connection with that kuleana being a pahale kuleana with the ala loa?
Ms. Kallai: I read it in Hawaiian. I read the kuleana
filing. I can provide that to you.
Mr. Furfaro: I would like to see it because it is very
unusual.
Ms. Kallai: It does not state the ala loa.
Mr. Furfaro: I thought you were saying it stated the ala
loa.
Ms. Kallai: It states pahale. The 2008 condition in the
civil filing stated it. They called it ala loa. That is the first time that I had heard it
called that.
Mr. Furfaro: I would love to be copied on that, if I could.
Ms. Kallai: In clarification, the kuleana that are up by
Ko`olau road are identified as alanui aupuni. They are on that and those words are
in the kuleana filings. Not ala loa. So the allegations that Ko`olau road is the ala
loa in the deeds it states it as alanui aupuni.
Mr. Furfaro: Again, I am just interested in the piece you
referenced at Kepuhi Point as a pahale.
Ms. Kallai: And that is why I cannot understand why
there is all of this speculation.
Mr. Furfaro: I do not have any more. That was my
question. Thank you. Thank you, Chairman.
Chair Bynum: Thank you, Hope. Thank you, Chair. We
have five (5) minutes before we take a break. Councilmember Yukimura.
PL COMMITTEE MEETING 39 DECEMBER 11, 2013
Ms. Yukimura: Hi, Hope. Thank you as always. I was happy
you said that you have kupuna testimony, and you said you will be submitting
that?
Ms. Kallai: Yes.
Ms. Yukimura: Okay. Do you think that public access
should piggy back on native Hawaiian rights of gathering?
Ms. Kallai: I think they are clear and distinct.
Ms. Yukimura: If you put public access on the same access,
you could very well affect the gathering access rights.
Ms. Kallai: I agree.
Ms. Yukimura: That is part of resource protection. Over
gathering by non-Hawaiian people who do not have those traditional gathering
rights. You can see that public access is a really complex can of worms so to speak.
In the establishment of it and the definition of management plan for it, because I
think there has to be a management plan along with a definition of it, all these
things have to be thought through.
Ms. Kallai: There are twelve hundred (1,200) people a
day on the trail to Hanakapiai.
Chair Bynum: I am sorry, Hope. I did not hear a question.
Ms. Yukimura: My question was do I see public access piggy
backing on Native Hawaiian rights of gathering. And I think we were just trying to
flush out the answer. Thank you.
Ms. Kallai: Thank you.
Chair Bynum: Thank you. Anything else? If not, Thank you
Hope.
There being no objections, the Committee recessed at 11:03 a.m.
The Committee reconvened at 11:22 a.m., and proceeded as follows:
Chair Bynum: Any further public testimony? Yes, please
come right up.
PL COMMITTEE MEETING 40 DECEMBER 11, 2013
PETER WALDAU: Peter Waldau for the record. Councilmember
Bynum, may I speak before the quorum is full?
Chair Bynum: We have a quorum. We are back in session.
Mr. Waldau: Thank you. There has been discussion about
the ala loa and the mauka/makai easement both with the State. There was an
original proposal for the mauka/makai easement being on the north side of the
property. That was discussed in a State CDUA/CDUP process and that location
was denied. It was CDUA KA-3416 which was denied because the concern was that
the north location of the mauka/makai proposed easement was coming through
culturally sensitive areas. It was kind of hazardous to traverse down the hillside
and it was ending up in an environmentally sensitive location. Now, what is before
Council, is a proposed easement that is on the south side of the property. I spoke
with Tiger Mills from OCCL, which is the Office of Conservation and Coastal Lands,
Tiger Mills was involved with this, denied potential location of the mauka/makai
easement. She is on the same page, I think with JoAnn Yukimura here that we are
definitely looking at a new CDUA on this location on the south side of the property,
because the heavy clearing that needs to be done to open up this way so the public
can see what we are looking at, the activity requires a CDUA. Just so that we are
clear, between now and April, on what is going to be done... because
Councilmember Bynum was thinking maybe this was a County grading and
grubbing permit that we are looking at. I am totally celebrating JoAnn's clarity on
this. That we are looking at Falko Partners needing the time to go to the State for
the permit required to do the clearing so we can see what is on the table in terms of
this mauka/makai public easement.
Chair Bynum: That is your first three (3) minutes.
Mr. Waldau: In addition to OCCL, I am hearing broad
brush being painted about the State. We have this letter that is being floated
around but keep in mind that this letter is between the community and the State.
In other words, at what point is the Council going to be partnering with the State to
locate this ala loa? That is the part I am hearing Ross saying there was some
verbal dialogue, but I thought there was a letter going from the Council to the State
saying can you partner with us in locating this ala loa. I have not seen that take
place. The other thing is that a piece that I heard was that Attorney General's
office, we have the State, OCCL, the DLNR's Division of Fish and Wildlife and the
AG's office and one pivotal issue that is the State claiming fee simple ownership of
the ala loa and we know that the mauka/makai grant of easement is going to be on
top of it. So we know that Falko Partners cannot grant on land owned in fee simple
by the State because it is not theirs to grant. All I heard from Council is we are
going to ask for the AG's opinion on that. Where is this dialogue? I do not see it. I
just do not see it. My request is to please get that. So let us get clear about the
PL COMMITTEE MEETING 41 DECEMBER 11, 2013
State is not a broad brush. There are different entities with different
responsibilities and different kuleanas and we need to do due diligence by
dialoguing with the appropriate little agency on the appropriate issue. So you are
hearing my frustration and you are hearing my being wound up about this, but I am
passionate about this. So forgive me for that. On Monday, I went down to the
property and I saw three (3) different sets of ribbons which might be where the
proposed easement is hitting the shoreline. Three (3) different sets. I am not sure
if there are three (3) different proposals on the ground or we are still figuring out
where the property boundary is but there are three (3) different sets and one (1) I
think is the correct set is I think the one that JoAnn and Gary looked at, which does
require heavy clearing of heavy brush for hundreds of feet and that is why we are
into the State CDUA permit that is required at this point between now and April.
Ms. Marugame: Six (6) minutes.
Chair Bynum: That is your six minutes
Mr. Waldau: So my time is up. Any questions? I would be
happy to entertain any questions.
Chair Bynum: Councilmembers, any questions? This is the
time for us to ask questions and we have done a lot other than that today and I do
not want to perpetuate that, but you asked the question who is coordinating this?
Where is the collaboration with the County? I share your frustration, because here
is what happens right now. You go to this State agency and they say is it not
appalling that we are letting this go through and not identifying the ala loa and
then you go to this department and so in your confusion and your frustration. I am
working on a resolution for the Council to try to address just those issues. How do
we advocate for this public need and formalize that dialogue because it is clearly
necessary. I am making a comment and not asking a question which is not really
appropriate according to our rules, but you wanted to answer your question briefly.
Any questions? Anyone else who would like to testify? Yes sir, please come right up.
RICHARD SPACER: Good morning Counilmembers, Richard
Spacer for the record. Nice to be with you again today. On a simple housekeeping
note, following on what Peter Waldau just said, perhaps before we part this agenda
item today we could ask Mr. Lombardi to identify those various photos that I have
sent to you and that others have taken since then and if he would be able to point
out for us exactly where this staked out and flagged trail goes down to the shoreline,
so we are all on the same page with that. In no particular order, the comments that
I want to make are the ala loa trail is a public trust feature that is State law and it
cannot be trumped. Other discussions about resources and things like that are very
important but they cannot trump the State public trust and the ala loa is a public
trust feature. It is a Native Hawaiian right of public access and under the
PL COMMITTEE MEETING 42 DECEMBER 11, 2013
Highways Act of 1892, today is 264-1, it is everyone's right of access. The Planning
Commission approved this subdivision according to previous testimony by
Mr. Lombardi without any reference to the ala loa or State Historic Preservation
Division comments. I would request that the County Council consult their
attorneys and determine if this is reason enough to void the subdivision approval,
because a significant omission was made; that is by not notifying the Planning
Commission of the presence of the State's property in the subject property that was
subdivided. That is really all I wanted to bring up today. I am available for any
questions. I do think that a deferral is a good thing in this case. It will allow all of
us to continue doing more research, but I would ask that the County Council liaison
with the landowner and try to persuade them to recognize the ala loa, which the
State already recognizes. I think it is very interesting that Mr. Lombardi today
would dismiss the idea of the trail, when his landowner and boss and his same law
firm five (5) years earlier have already agreed to this. This is already a done deal.
So today to come before us or to previous County Council meetings to come before
you and say it is a false issue or it is not there is simply bizarre. So I would ask you
that you please try to work with the landowner saying look, we have already agreed
to this. This is something that has already been done. It already exists. We have a
mauka/mauki trail that we want to get passed and we have the ala loa that is there
that needs to be reasserted for public use. Let us just work together on this. Thank
you.
Chair Bynum: Thank you. I do not see any questions.
Thank you for your testimony. Anyone else on this matter? Seeing no one, I am
going to call the meeting back to order. We actually do not have a motion on the
table. So I would ask for a motion to approve. We need a motion to put this on the
table and then we can discuss a deferral. We are also going to have discussion,
right?
Ms. Yukimura moved to approve C 2013-271, seconded by Mr. Chock.
Chair Bynum: Discussion?
Ms. Yukimura Yes, Mr. Chair. As I stated at the outset, I
am planning to make a motion to defer until April 16th for the purposes explained
and a motion to defer does not allow debate or discussion so I would prefer that we
talk before I make the motion.
Chair Bynum: Thank you.
Ms. Yukimura: Because I do not want to cut off debate.
Chair Bynum: That is the intention. Further discussion?
Councilmember Kagawa.
PL COMMITTEE MEETING 43 DECEMBER 11, 2013
Mr. Kagawa: Thank you. I will support Councilmember
Yukimura's motion to defer. I think what has come about is something positive.
Instead of just approving it and accepting it the way it was, I think Councilmembers
had time for the opportunity to go down and physically walk down there and they
saw that the last part of getting down to the beach was quite troublesome. So at
least the landowner has recognized that something better needs to come out of it
and we have that acknowledgment. I think a deferral is good. I think forward to
the date that we can walk down there. As far as the ala loa is still again a work in
progress and in dealing with the State DLNR and even if you want to extend that to
OHA, Mr. Aila is Native Hawaiian and I think it is his department that really needs
to want to do it if it is ever going to get done. I think working with all State
agencies are fine but the bottom line is Mr. Aila is the head of that agency and his
call right now is not to do it at the present time. I do not know how long that
means. Thank you.
Chair Bynum: Okay, other discussion? Councilmember
Chock.
Mr. Chock: Our last testifier talked about getting an
attorney opinion on whether or not the omission of the identification by the State
and the trail is grounds for us to revoke the permit. I was wondering if we might be
able to get that opinion?
Chair Bynum: May I respond? We heard a number of
things in testimony today that at this point I consider for lack of a better term,
allegations about withholding documents and other perspectives. It is my intention
that we will follow-up on all of those questions. I do not know that it is the best use
of our time to do that today on the floor. You know, that is up to the Committee.
We have representatives from the County Attorney's office and the Planning
Department here. I do not know if we want to belabor it today, if Committee
Members would like to ask questions. But my intention as Committee Chair is to ...
and I would seek the assistance of the Committee to make sure it is comprehensive.
That those questions that were posed, the documents and I am reluctant to use the
word "allegations," that we look into it, and that will be part of our due diligence.
Mr. Chock: Thank you.
Chair Bynum: Other discussion? Councilmember Hooser.
Mr. Hooser: Chair, I am not a voting member of the
Committee.
Chair Bynum: That is fine.
PL COMMITTEE MEETING 44 DECEMBER 11, 2013
Mr. Hooser: I appreciate the time to make some remarks
and I second Councilmember Chock's question and the need to clarify whether or
not information was withheld and what legal implication it might have on the
subdivision approval? In addition, two (2) things are really clear. One (1) is that the
landowner/developer must provide public access to the beach and that is the issue
that is primarily on the table in the front of us today and there is no question about
that. They must provide access to the beach. The access that was provided in my
opinion and I think most of us concur that was inadequate. It did, in fact, go to a
twelve (12) foot bluff/cliff that no reasonable person could safely get down. My hats
off to the community for bringing that to our attention and what was said earlier,
ultimately the Planning Department and/or Planning Commission that failed to
properly evaluate that access. So that is one issue that no one will argue that has to
be resolved. The other issue that is clear is the presence of the ala loa and the State
says clearly that the ala loa exists and the historical records, court records all say
clearly that this ala loa exists. So there are two (2) items that impact this
particular property and I would think that the landowner would be eager to resolve
both of those issues in a positive manner, otherwise it is going to impact all future
owners. Any time you have an unresolved issue it makes things difficult, I think,
and here we have two (2) major unresolved issues that are going to impact the
property, ownership and use of the property in the future. So I would hope that the
owner is watching and listening, and will realize that it is in his best interest, it is
in the community's best interest, certainly and this Council's best interest in terms
of time, the agenda and resources to resolve this issue. Between now and April,
maybe some thought can be given to that.
I think Mr. Spacer suggested that it is just a matter of determining where
that ala loa is and the landowner could work with the State and OHA and the
community and delineate an acceptable area of that and we can all move on. At the
minimum, when we do our easement, I say "our easement." The easement that is
required, that is on the agenda today, the access, it should be written and construed
so it ties into the ala loa, because the ala loa exists. At some point there is a left-
hand turn to connect with the ala loa and that should be part of the record that we
all acknowledge that the ala loa exists. I would be happy to give some thought and
some action into how this Council might further that discussion, whether it is by
resolution stating our belief and directed to the Department of Land and Natural
Resources or to OHA or whoever is the appropriate body, but if we are in agreement
that it exists and in the best interest of the community to take some actions to move
it forward, acknowledging what Councilmember Yukimura has brought up
repeatedly is the need to protect the resource and I think you can do that. I think
you can protect the resource, protect Aunty Linda's right to gather limu and
manage it so it is not overrun by tourist. So you can have both it does take some
work, it is going to take some effort. But I do not think we should penalize our
traditional users and empower eighty (80) luxury homeowners all under the
PL COMMITTEE MEETING 45 DECEMBER 11, 2013
disguise of protecting the resource. I think there is a way to do it properly. Chair,
thank you very much for allowing me the time.
Chair Bynum: Other Councilmembers? Councilmember
Kagawa.
Mr. Kagawa: I just wanted to mention real short, and this
is what I was in strong support for at the initial onset. As a fisherman who likes to
go to different places, for Kaua`i we do not have Disneyland, so we have to go and
find entertainment other ways. I always like to go to new grounds and try to fish or
dive, pick opihi, and what have you. A lot of the local fishermen there have
expressed in E-mails that having easy access there may really contribute to the
detriment of the fish, limu, coral and what have you. It is hard to juggle what the
local people want, the Hawaiians, everyone and finding that balance. It is pretty
tough but when I make a mistake I am willing to change my mind and I have to
respect the local fishermen who regularly use that area to gather food and for
recreation. From what I gathered from them was that they wanted limited access
to that area. Again, it is a tough call and at least we have some time. Thank you.
Chair Bynum: Okay, any other Councilmembers?
Councilmember Yukimura.
Ms. Yukimura: As difficult at times that this discussion and
issue has been I think we have all learned a lot and hopefully it will direct us to do
both improve processes as well as get better results. Hope just told me during the
break of a real resource dilemma, if I may share it, that there are seventeen (17)
turtle nests at Waipake and none at Larsen's because at Larsen's there is access for
vehicles onto the beach. That is just an example of how you have to think through
access to balance properly in protecting resource and giving people access, but
thinking through all of this kind of different aspects. I think also what we are
looking at is, for whatever reason, a State department who is not willing to fulfill its
kuleana in establishing the ala loa and we need to find out what the reasons are,
whether it is resources, whether it is the amount of money and time it will take to
do this because we know now that access is not a simple issue. I think nothing we
are doing between now and April is going to diminish our opportunity to establish
or move to establish the ala loa. It is also making us think about some amendments
to our subdivision law that may have this kind of issue addressed at time of
subdivision rather than through this indirect process of mauka/makai access.
Hopefully good things will come out of this and immediately or at least in the next
few months. I will trust the Falko Partners to do what they have committed to that
is clear and stake the mauka/makai access, establish and stake out a lateral access
at least to the beach, and propose some legal wording that will establish perpetual
rights of public/pedestrian access along the lateral pathway. We will hopefully get
some of that in March so we can perhaps organize a Council trip there. It is as the
PL COMMITTEE MEETING 46 DECEMBER 11, 2013
Chair has pointed out logistically difficult but we will see if we can do that. In any
respect we will have a proposal from Falko that we can all look at and respond to
and hopefully bring this particular issue of mauka/makai access to conclusion.
Chair Bynum: Well here we are again on a very complex
and contentious issue that should have never ended up here. We will start with
that. Clearly this was not done well to start with; the mauka/makai part. I want
to talk about access. This is an agricultural subdivision. It is a unique, a special
one because it is the one that rushed under the wire when we closed the open space
density bonus. I believe this is correct. I thought it would be the last agricultural
subdivision on Kauai. But the Council has failed to stop this practice of chopping
up agricultural land, and pretending it is farms. I had mentioned whether these
people are going to sign farm dwelling agreements. Everyone that moves in there is
going to sign a paper that says that they are farmers and that reason that they have
that property is to farm it and the house is just ancillary to the farming, it is just
farmer worker housing. We all know this is a joke because in 2000 the general plan
told us to fix these things and we have not. We are going to be talking about
agricultural subdivisions again because the new ones that are coming along have
similar issues and problems. So we have a lot of work to do. This is Hawaii, and
we have access to the coastline. These documents since statehood and way before
want to preserve that kind of culture of lateral access. Lateral access is not a new
issue. Former Mayor Baptiste was passionate about lateral access. In this binder is
a lateral access Bill put before this Council by then Mayor Baptiste that has never
been completed. I intend to bring that discussion back to this floor as a Chair of the
Planning Committee. I have already announced that I am working on a Resolution
for the ala loa so I want to talk big picture and conceptually. The most important
words that got said today were by Tim, "prudent comment sense." Obviously there
were always a mauka and makai transportation corridor, there still needs to be.
We only got the makai one and the modern thing with the highway. We did not get
the mauka highway like other people did. But clearly there is an ala loa. Is it
clearly identified on every parcel and western thing? No, on some it is, some it is
not, some land owners were cooperative, and the State was pursuing this
aggressively in the 80's and they just stopped. Why did they stop? Because it was
not important? No, because of budget cuts. Why is Mr. Aila saying we cannot
pursue it at this time? Because there is no personnel to do it. There is no body to
do it. The State clearly has abandoned their kuleana here again. I talked with
Mr. Lombardi today, if we do not identify this now with metes and bounds, very
clearly this is State ownership or at least easement and we chop up this land again
and people build houses to get that in the future will be how do I know that?
Papa'a Bay. Papa'a Bay we clearly had access to the ocean for years and we got out
lawyered and they went to court and they said "have you ever heard of
reversed/adverse possession?" This Council passed a Resolution to try to address
Papa'a Bay in the mechanisms we have and the attorneys that represent the
current landowners have come before the access commission and said this will cost
PL COMMITTEE MEETING 47 DECEMBER 11, 2013
you eight and a half million dollars ($8,500,000) because you have to compensate us
for the less privacy we will have if the public accesses our beach. We are in a battle.
We are in a battle parcel by parcel. We are in a battle in the bigger picture. This
has been playing out in Hawai`i years before I arrived. Remember George Harrison
and the Big Island. These wealthy people come and say they want their privacy,
they want their agriculture subdivisions, they want to keep their houses as far
away from other houses as they can and they have this exclusive idea. Look at
Seacliff that Councilmember Yukimura mentioned. It is now a gated community.
There are all kinds of accesses and easements on those documents but you currently
do not have access to. How could anyone with prudent common sense not want to
preserve the ala loa? Now where is it exactly aligned? It has been there for
thousands of years. It changes because there are landslides, and the coastline
changes. That is where prudent common sense comes in. Ron Agor use to talk
about this when he was Land Board Manager. Prudent common sense, let us go out
there, sit down and talk together and walk it. And yes it use to be there but there
was a wash out so now it is over here but let us identify it, preserve it, clearly that
is in our public best interest. This idea of public access we are supposed to have
access everywhere. I share Ross's concern and fishermen. Larry Saito help
organize meetings with fishermen for me twelve (12), fourteen (14) years ago and I
have talked to fishermen ever since because when we talk about doing bike paths,
and doing this we are trying to increase access not decrease it. So the answer to
this is of course we do not want a bike path at every beach, we do not want a
parking lot, and we do not want bathrooms. We love what we have but if we have
easy, frequent access along the coastline to the shoreline and lateral access along
the shoreline then no one (1) spot is going to get overwhelmed. You know the games
that landowners play. They plant plants, they put up bushes, they try to sneak it
through, hide it, mostly they just use... you do not see the access so you do not know
it. If we only end up with three (3) or four (4) those three (3) or four (4) are going to
get overwhelmed. But if we have access every one hundred fifty (150) yards and
any of those accesses you can traverse laterally. A lot of landowners recognize this,
the County has a long history of preserving this, we have a beach reserve in Kapa`a,
first one hundred (100) feet of shoreline belongs to the County. We negotiated that
when those were subdivided. Why are we not negotiating that now, years later
when we have a subdivision? It is lack of political will. We would not even have
agricultural subdivisions if this County Council had done what the citizens asked us
to do in 2000. So, yes, I am passionate. Tim Kalai is a great man. He has great
passion and has testified here many times. I have never seen him this passionate.
No need to apologize because you did not say anything inappropriate, you did not
say anything wrong and your passion is justified and I share it. We have to work
these things out. I have talked to tons of landowners. I am deeply disappointed
that Mr. Bowman chooses not to work with collaboratively with this Committee on
these issues that he knows are important. I am disappointed that his attorney
comes here and says "no way." Other landowners say, "I want the lateral access."
They recognize that it increases the value of their property because they do not have
PL COMMITTEE MEETING 48 DECEMBER 11, 2013
this exclusive view of community. They have an inclusive view of community. The
same as our resorts. Some resorts tell their employees "you cannot come here when
you are off' because they are exclusive, I mean in the State not Kaua`i resorts so
much. Other resorts like the infamous Coco Palms which we are going to talk about
today, they said "welcome. Come on in. Hang out with the guests when you are off
because that is why they come here." These are huge issues. I intend to have a
Resolution before this Council by June and I intend to have these questions that
were brought up by the community, legal questions addressed. I intend to resurrect
this lateral access and ask for new County Attorney opinions. In the current era
with a new set of County Attorney opinion. To pursue these issues at the County
level with every single mechanism that is before us. Because to do less than that,
would be not taking our kuleana. I am tired of this that is the State's kuleana.
They are failing us everywhere. Thank you. If there is no other discussion I will
entertain a motion to defer.
Upon motion duly made by Councilmember Yukimura, seconded by
Councilmember Kagawa, and carried by a vote of 4:0:1 (Councilmember
Rapozo was excused), C 2013-271 was deferred to April 16, 2014.
CR-PL 2013-11: on Bill No. 2502 A BILL FOR AN ORDINANCE TO REPEAL
ORDINANCE NO. 716, RELATING TO
STANDARDS, PERMITS AND FEES FOR
WORK ON BUILDINGS, STRUCTURES
AND PROPERTY DAMAGED BY
HURRICANE `INIKI) [Approved as
Amended.]
There being no further business, the meeting was adjourned at 3:07 p.m.
Respectfully submitted,
Lori L. Marugame
Council Services Assistant I
APPROVED at the Committee Meeting held on January 8, 2014
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