HomeMy WebLinkAbout04/16/2014 Planning Committee minutes MINUTES
PLANNING COMMITTEE
April 16, 2014
A meeting of the Planning Committee of the Council of the County of Kaua`i,
State of Hawai`i, was called to order by Tim Bynum, Chair, at the Council
Chambers, 4396 Rice Street, Suite 201, Lihu`e, Kaua`i, on Wednesday,
April 16, 2014, at 10:11 a.m., after which the following members answered the call
of the roll:
Honorable Mason K. Chock, Sr.
Honorable Ross Kagawa
Honorable Mel Rapozo
Honorable JoAnn A. Yukimura
Honorable Tim Bynum
Honorable Gary L. Hooser, Ex-Officio Member
Honorable Jay Furfaro, Ex-Officio Member
Minutes of the April 2, 2014 Planning Committee Meeting.
Upon motion duly made by Councilmember Kagawa, seconded by
Councilmember Rapozo, and unanimously, the Minutes of the April 2, 2014
Planning Committee Meeting was approved.
The Committee proceeded on its agenda item, 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 (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 07/02/2014)
Mr. Furfaro: Just on a housekeeping note, may I ask a
question?
Chair Bynum: Yes.
Mr. Furfaro: I am expecting the Planning Director and
counsel for the Planning Commission, so Ian that is you and Dee are you filling in
PL COMMITTEE MEETING 2 APRIL 16, 2014
for the Planning Director today? Okay, thank you. Back to you Mr. Bynum. You
have a question from Councilmember Kagawa.
Chair Bynum: Yes, Mr. Kagawa?
Mr. Kagawa: I would like to wait to make my motion but
in the end I think I want to make a motion to defer time specific when full
discussion is made. Thank you.
Chair Bynum: I give the floor to Vice Chair Yukimura who
has been communicating with many regarding this issue.
Ms. Yukimura: Yes, thank you, Committee Chair. We have
received word from the landowner that the pathway as requested by myself and
Councilmember Hooser has been cleared so we can now actually see the mauka to
makai access and as well a kind of an apron that gets us to the ocean or the beach
also will be marked out. It is our intention, myself and one other Councilmember to
take a field trip to the site and the landowner has graciously said that they would
allow members of the public to join that field trip as long as members sign a waiver
of liability and indemnification to protect the landowner in case anything happens
while people are on the land. It is not public property so it is appropriate, I believe
for them to have a waiver signed. But with a signed waiver then members of the
public will be allowed to join myself and one other Councilmember on that field trip
and if more than myself and one other would like to see it the landowner has also
said that they will do another trip with no more than two (2) other Councilmembers
and members of the public may be on that as well. So that will enable all of us to
view what the proposed mauka to makai access will be as connected to the beach
areas. I agree with the deferral that we would then come back into Committee
having seen the actual access way and look at some wording suggestions as well to
the proposed deed and make our decisions as a Committee. I just want everyone to
be aware of that plan. It will enable those of you are interested to walk with us and
I thank the landowner for that. I think the Chair now wants have some testimony
from the public. Am I correct, Ian, on how we have arranged that?
Chair Bynum: Would you like to make that statement,
Mr. Lombardi?
There being no objections, the rules were suspended.
Ms. Yukimura: With respect to that plan or to everything
else?
DENNIS LOMBARDI: If Council permits, I will just address the
plan first.
Ms. Yukimura: The plan to go out there?
Mr. Lombardi: The plan to go out there and reserve any
other comment based on what happens. Essentially, we are prepared at this point
PL COMMITTEE MEETING 3 APRIL 16, 2014
to establish three (3) visitation dates. If we need to we will do four (4) given the
constitution of the Council, the fact that maybe everybody wants to go out but at
minimum we want to do three (3). We can do a visit on April 30, 2014 assuming we
can work through with Ian the particulars of the form of waiver and get out, get it
signed, get it returned and do those items. I have explained to Ian that my schedule
is particularly congested over the next several months but Loren will be available to
work through the waiver with him between now and April 30, 2014. We will also
make a date available on May 30, 2014 and I am assuming morning is fine,
10:00 a.m.? Okay, 10:00 a.m., May 30, 2014 and on June 27, 2014, again at
10:00 a.m.. So, we will have three (3) separate dates available, preset so that if
members of the public wish to go, recognizing that we would like to keep this group
to approximately ten (10) people per visitation, if that is possible and if it turns out
that there are more than that many people that want to visit we will schedule
another date, I am assuming. That is what we will have to do. But that way
everyone can get out, take a look at what is there and the Council can reconvene
and be able to listen to everyone (inaudible) and have the benefit of their
observations.
Chair Bynum: Questions for Mr. Lombardi?
Mr. Furfaro: Mr. Lombardi, you do understand with
our...as this Committee rules are, the fact of the matter is for each of these dates
you have offered we need to be firm because we will not allow public discussion at
the site that there will be questions that will have to come back to the Council so
that they can be appropriately recorded.
Mr. Lombardi: Absolutely. I do understand that and that is
why I wanted to commit to the actual time as well as the date.
Mr. Furfaro: Again, I just wanted to say that for the
benefit of the Committee, of which I am not a member of, but those are our rules
and we need to comply with such. So, site inspection, back to the Council for the
questions and answers (Q&A).
Mr. Lombardi: And what I would like to do is fix a specific
date after these inspections occur where anybody who wishes to speak can come in
and speak about what they observed.
Ms. Yukimura: Chair, I have a slight difference of
understanding and maybe Ian Jung can come forward and while he is coming
forward, I do not think it is a big thing, but with only two (2) Councilmembers
going, I believe we can have full discussion at the site.
IAN K. JUNG, Deputy County Attorney: That is correct. We vetted this
whole thing with Office of Information Practices (OIP) to try and look at how we
either; A) do a limited meeting, open meeting, site visit meeting or do, what we refer
to as the "pigs" or the two by twos, where two (2) Councilmembers can come and
meet with the public, and engage in discussion. The two (2) Councilmembers that
PL COMMITTEE MEETING 4 APRIL 16, 2014
are with each other can talk about the subject but cannot agree to vote. So under
Sunshine Law, you cannot agree to vote. So, we have been in contact with Office of
Information Practices (OIP) on this and they understand the parameters of what we
are looking at for this particular site visit.
Mr. Furfaro: Excuse me, JoAnn, I want to ask him...to the
County Attorney, I want to make sure, Deputy, that in fact if that is the
interpretation from OIP, since the rules come to me, I want to see it in writing and I
want to see it directed to the Chair of the Council. Although this is not my
Committee, I would like to see it from OIP in writing. I would also like to clarify
again that it is by rule no more than two (2) Councilmembers. It is not the
Committee person plus two (2) Councilmembers. Maximum together, the
interpretation is for two (2) members.
Mr. Jung: Correct, Chair.
Mr. Furfaro: Thank you.
Mr. Lombardi: The only thing I am concerned about and I
will be perfectly blunt about this is what I had understood, and again thank you
Councilmember Yukimura for bringing this to everyone's attention was that
features could be pointed out during the course of the site inspections but there
would not be an ongoing discussion. There would not be a debate at the site. I am
not able to attend each of these site visitations.
Mr. Furfaro: And I use the term, there will be no
discussion at the site.
Mr. Lombardi: And the difference between discussion and
conversation is a distinct difference? I am just trying to make certain that I
understand.
Mr. Furfaro: The distinct issue is no Councilmembers
would make anything that implies a decision being made at the site. Does that help
you?
Mr. Lombardi: That helps me a bit, sir. Thank you.
Ms. Yukimura: The rule about pointing things out is only if
there is an official Council Meeting that is posted with quorum. When we are just
two by two we can have a discussion. I do not think it will be a debate because we
are out there and it will depend on how the Councilmembers conduct themselves
but I trust the Councilmembers to conduct themselves in terms of understanding
what is being proposed and maybe talking alternatives because that is within the
Councilmember's due diligence but it is basically about understanding what it looks
like over there and how it would work on the land. That is allowed in a two by two
discussion. If we are all clear maybe we can take public testimony.
PL COMMITTEE MEETING 5 APRIL 16, 2014
Chair Bynum: I would like to follow-up for a minute. I do
want to make a site visit and I want to be able to...what I would envision and I
know the way I want to comport myself is to collect information, listen to people's
opinions, and ask questions. I am hopeful that there is a representative of the
landowner present that can say this is the access and this is why we made these
decisions and this is why we think it is adequate. If others are present who have
different opinions, I would listen to those opinions as well but I would not say you
know what you are right and you are right because that is a discussion that we will
have here when we convene in public. What we want with OIP, our staff, and our
Chair, goes through great lengths is to obey the law. Make sure that we are in
compliance but within the bounds of that law allow for as much open and free
dialogue as possible. I think Councilmember hits it on the head when she said
hopefully you trust that the Councilmembers understand those boundaries and will
keep them. I know I will commit to do that and will be open to critic afterwards so
if that helps at all.
Mr. Lombardi: We will have a owners representative
present at all site visits.
Chair Bynum: I appreciate the accommodation very much.
I mentioned last time that I had some mobility issues and I could not walk the
entire place. I am happy to report that I can now so I thank you.
Councilmember Chock.
Mr. Chock: Thank you, sir. I just had a question. There
was a discussion previously about location of the parking lot. I know that there has
been a designation for it but there were concerns about. Has there been more
discussion of the vicinity of it in relation to the front end or closer to the beach?
Mr. Lombardi: The only discussion that has occurred in this
Council room, and it is not our intent to relocate the parking lot, if that is your
inquiry.
Chair Bynum: Councilmember Kagawa.
Mr. Kagawa: Thank you, Chair. One (1) of the groups that
I wanted to make sure that had a chance or invitation to attend one (1) of the site
visits was the Kilauea Neighborhood Board. I was wondering if you guys could send
an invitation to the Board and I think one (1) of the heads of the Board is Mr. Hope,
I think.
Mr. Lombardi: Mr. Hope?
Mr. Kagawa: I think it is Mr. Hope, right?
Mr. Jung: It is Yoshito L'Hote.
Mr. Kagawa: Holt?
PL COMMITTEE MEETING 6 APRIL 16, 2014
Mr. Jung: Hote.
Mr. Kagawa: So if you guys can send out an invitation to
them to go out and have a site visit as well. Thank you.
Mr. Lombardi: We will make certain that they get word of
it.
Chair Bynum: Councilmember Yukimura.
Ms. Yukimura: I just want to say that the purpose and value
of a site visit is that when people come to this place here and say, "You are just
going off the rocks...", you actually are there so you can see it. That is what I hope
we will...and when they refer to something in this room it is hard to actually know
but you can over there because it is clear.
Mr. Lombardi: Well hopefully nobody goes off the rocks on
this walk.
Ms. Yukimura: Right. I think we made some progress about
that and sometimes going of the rock is a short little hop off the rock and sometimes
it is the six foot (6') drop or a thirty foot (30') drop so like it is at Kaupea or it was.
That is the value and the purpose and I hope that is the purpose we will keep in
mind as we are at that field trip and I also want to say that at least as one (1)
Councilmember will expect that everyone will be respectful of each other.
Chair Bynum: Just a couple more things, Mr. Lombardi. I
have more follow-up. I want to say this and then ask a question so I do not have to
say it later. I feel very strongly that every time that we locate any kind of beach
access that people on our island with mobility impairments need be considered. I
am not saying that we need to build an Americans with Disability Act (ADA)
compliant path everywhere. That is not required by law and it would be silly.
What I am saying is if there is a path to the beach that path should be designed by
a path maker because there are trail standards. You do not have five foot (5') drop
offs on a well designed trail. You also consider the distance when you are walking
almost a full...I think it is more than a mile from the roadway when there is an
eternal roadway why can you not place a parking lot closer? That allows people
who cannot do that to still have access? There are all kinds of levels of mobility
issues that people have. I know my expectation is not to have ADA compliance but
to have those folks, especially with our aging population considered. So I just ask
you why can you not locate a parking area closer as is common on this island. Right
in the middle of Princeville you park at the trail head. You do not go across a mile
of level ground. So why not?
Mr. Lombardi: Councilmember Bynum, we complied
completely with this County's regulations and standards in the formulation of this
path and with the requirements of the State in respect to its location. If this
PL COMMITTEE MEETING 7 APRIL 16, 2014
Council wishes, it is certainly in a position to adopt whatever Ordinance it wishes to
assure that in the future those items that you are asking be addressed are
addressed. Currently, however, your laws do not require that nor is there an
imposition relative to that. I am confident that you may have been able to secure
certain exactions from large developers and I would not classify us in that category.
Chair Bynum: I think large is a matter of opinion but I
accept your answer Mr. Lombardi and I want to inform you that former Mayor
Baptiste put such an Ordinance before this Council and it remains pending in our
Planning file. I recently asked for an updated legal review of that law. I
understand, just I am compliant with the law. I understand that. Thank you.
Mr. Chock: Just a follow-up please.
Chair Bynum: Yes, Councilmember Chock.
Mr. Chock: Mahalo. The question that I have is we are
trying to work together at coming to some resolution. I know that there are
some...we have varying opinions. We want it far away so that people...we will
actually restrict some access from having a whole bunch of people down out there
and there is the need for some people to be able to get there who want to. What is
bothering me is I am hearing you say that if you create the law then we will play
with you. I am just saying is that not an option for us to even consider then? Before
going towards the books or trying to force this down someone's throat that we might
consider options so that we can get the best outcome possible?
Mr. Lombardi: Are you asking me whether I believe it is in
the purview of this Council to consider options relative to easement? My answer is
absolutely not. I do not think that is what you are here to do. If you want my
opinion as a lawyer, your job is to decide whether to accept an easement that has
been approved by an agency that was established by your Charter and told to
undertake to make the determination of what was acceptable. Before you is a
question of indemnity and maintenance in part and I think that is the purview that
the Council has. Now obviously we want to get past this, we do not want to be in an
argument with the Council but my God, we have been through twenty-six (26) or
twenty-eight (28) public hearings relative to this effort that started for us in
2005...no 2006. It has been a considerable amount of time. Our first subdivision
act, when this pedestrian easement, based on 777 was established was in 2008.
From our perspective, we have done everything that the County has asked us to do.
We paid two million dollars ($2,000,000) in taxes on that property to the County of
Kaua`i. We have undertaken to pay over one million dollars ($1,000,000) in
affordable housing to the County of Kaua`i of which a substantial portion has
already been paid. We have made millions of dollars of contributions to local
charities. We employ at least ten (10) people on this island. I think we are a good
corporate citizen and I do not think we deserve what is going on here. I am sorry.
We are happy to accommodate. I believe it is appropriate to go out there and have
these site visit, let people look at the site, make a determination that they have got
an access to the beach that they can walk but I do not think it is fair for the County
PL COMMITTEE MEETING 8 APRIL 16, 2014
Council to attempt to renegotiate something with each person that shows up here
on a technical issue and I will be very blunt about that. I think it is inappropriate.
Chair Bynum: Mr. Kagawa.
Mr. Kagawa: I think much of the concerns that come from
the Councilmembers is a way that the north shore has changed over the years. I
am glad that I have not sat on this body or other elective offices because if I say that
there a problem ten (10) years ago I would have stopped it then or change the
system then but we are here today. We are looking for how to make agriculture
subdivisions more suitable for our island. Are you going to have some suitable
agriculture operations going on?
Mr. Lombardi: We have currently an organic farm on site
and if you are asking about long-term plans and commitments each unit that is
ultimately sold, and none are sold by the way at this point, will be subject to a
caveat and a requirement to undertake and engage in active agricultural activity
that produces income for the farm dwelling unit owner. So yes, put simply.
Mr. Kagawa: So that organic farm that is operating now
what kind of stuff are they growing.
Mr. Lombardi: Oh my goodness, I know of one (1) papaya
and there may be many, many more. In fact I think that Mr. Farris is here today
and he could certainly walk you through what his efforts are. I understand he is
very well respected here by lots of people.
Mr. Kagawa: So Mr. Farris is already successful growing
things on that...
Mr. Lombardi: Yes, he is.
Mr. Kagawa: That is already better than a lot of other
agriculture subdivisions that we have in Kilauea because...
Mr. Lombardi: Because we actually have some agriculture
going on?
Mr. Kagawa: Yes. The ones I see out there just have some
beautiful mansions and no farming going on.
Mr. Lombardi: We have no mansions but we have a farm.
Mr. Kagawa: Okay, thank you.
Chair Bynum: Council Chair.
PL COMMITTEE MEETING 9 APRIL 16, 2014
Mr. Furfaro: I am a non-member of the Committee but
you are in front of the Council today because this easement needs to be accepted by
us.
Mr. Lombardi: That is correct, sir.
Mr. Furfaro: The Charter reflects the fact that all
easements appropriately recorded are approved by the Council and in fact then
recorded with the signature of the County Council's Clerk.
Mr. Lombardi: You are absolutely right.
Mr. Furfaro: Okay. So it is not fair and reasonable...and I
just say this on behalf of the Vice Chair that we would like to get to a conclusion on
this so that the repair, the maintenance, the access...we negotiate the best effort we
can for the citizens of Kaua`i. Would you agree with that?
Mr. Lombardi: I do not agree with that, sir. I actually do
not think that is the Council's position, nor do I think that your Ordinance permits
you to do that. Notwithstanding that we are here.
Mr. Furfaro: So why do we not do this, since you answered
my question let us agree to mutually agree to disagree. Fair?
Mr. Lombardi: Perfect acceptation. Fair.
Mr. Furfaro: You know, my family is a north shore family.
My family is in the Kalihiwai area and we are pretty known as pretty decent
fishermen too but you have answered my question but you do on the purpose, the
accepted of the easement is the duty of this Council.
Mr. Lombardi: Absolutely, sir.
Mr. Furfaro: You would also agree that it is to our benefit
to make sure the facilities they send imposed the least amount of public risk for the
purpose of public safety.
Mr. Lombardi: I do think that is within your purview to
assess risk relative to those items, sir.
Mr. Furfaro: Thank you. Thank you for the time
Chairman.
Chair Bynum: A couple more questions from me and then I
will make a comment, then we will get to public testimony. Thank you for your
patience. I mentioned earlier that there are trail standards, right? We have put a
lot of public effort into those standards on Kalalau with volunteer efforts and
PL COMMITTEE MEETING 10 APRIL 16, 2014
money. This trail, when I walk it down to the beach will it meet the standards that
a trail be a hiking trail?
Mr. Lombardi: I do not know the answer to that.
Chair Bynum: Well, you have a trail. You have identified
it. Does it meet the standards of a hiking trail?
Mr. Lombardi: And I will repeat again, I do not know the
answer to that. I would have to have the standards in front of me. I do not know
that...
Chair Bynum: Okay. So, Mr. Lombardi, if the Council has
no role in this whatsoever, why does the Charter have us vote on this?
Mr. Lombardi: That is not what I said.
Chair Bynum: Okay, then clarify that for me.
Mr. Lombardi: In fact, I agreed with the Chair that there is
a very significant role that the Council has. We just disagree as to how far that
takes you.
Chair Bynum: Okay. Thank you. Any other questions?
Mr. Kagawa.
Mr. Kagawa: Have you seen Hanakapi`ai trail?
Mr. Lombardi: No, sir, I have not.
Mr. Kagawa: Well that trail is brutal and we have
hundreds of people that hike that trail that the State is supposed to maintain. That
trail is brutal.
Mr. Lombardi: And I will rephrase. I have not seen it for
over twenty (20) years.
Mr. Kagawa: If the State is going to follow that trail
guidelines they better work on Hanakapi`ai trail because seriously, that trail is
brutal. Broken ankles and all kinds of stuff happens on there and it is not
exaggerating. Let us make this trail a little better that Hanakapi`ai. Please go
check that out. Hanakapi`ai there are hundreds of people that walk that trail and I
am not exaggerating.
This meeting was called back to order, and proceeded as follows:
PL COMMITTEE MEETING 11 APRIL 16, 2014
Chair Bynum: Any other questions from Mr. Lombardi?
Thank you very much, sir. Before we start public testimony we do have a sign-up
list I understand. I just want to make some general comments. What I said earlier
is I believe every time we site a trail, we should need to take mobility impairments
into consideration. Not that we are going to make it ADA compliant and have
steeps and slopes but the trail should be outlined and meet trail standards. We
have trails on our public access where there are five foot (5') drops off of a boulder. I
cannot do that. I cannot do that. So I cannot go to that beach but yet there is an
identified trail that has not been maintained, that was done by a trail maker. We
will decide as a community what level of access we want at each but should we not
consider this on each one that we make and make it safe for everybody? This is not
Hanakapi`ai trail. This is a trail to get from wherever you park to the coastline or to
our shoreline. It should be a reasonably built trail. Mr. Lombardi makes his point
that we need to change the County laws so we require him to do something
different. I want to speak to Mr. Lombardi's owners, the potential owners of this
place. Most of them will probably come from elsewhere to become citizens and they
will be welcomed because that is what we do but we were given an incredible gift of
public access in this State and there is an ancient trail called the ala loa that goes
through this property you might buy. This property that you might buy that you
have to sign a document that says I promise to be an active farmer engaged in
farming. These agricultural subdivisions should never have occurred in the way
they have occurred and we have worked hard to change that and we are still not
done with that work but you come into a community as new citizens. If I lived in
that community, I want access to the ala loa. It would be a sales feature. You are
on this trail where you can leave your home and go to these incredibly beautiful
places. That trail should be identified. As I understand the State's position on this
they are saying we do not give up the rights to that trail but we do not have the
personnel to come out an identify it. We are not going to actively...so go ahead and
do your subdivision but once you draw lines in the sand and you change ownership
it is forever and getting that lateral access or reasonable access after that becomes a
huge problem. This should be done at the subdivision level and anybody that
subdivides here, yes, Mr. Lombardi, you have to meet the letter of the law and we
need to change that law. You also come in as new community members and you
create a subdivision to isolate you from the community and cuts off things that are
important to the people that already live here and you do not accommodate. I am
deeply disappointed in that regardless of whether you are required by the law. I
asked a key question that is important to me, if I use this access will it meet trail
standards? Because I know I can hike on standard trails but I also know that I put
my health at risk if I run into a place where I have to do something that is going to
be difficult or extraordinary from a trail standard. Those are my personal
comments. I thought I would do them upfront rather than at the end and now we
will start personal testimony.
There being no objections, the rules were suspended to take public testimony.
LORI L. MARUGAME, Council Services Assistant: Committee Chair, we
have six (6) registered speakers. First speaker is David Whatmore followed by
Peter Waldau.
PL COMMITTEE MEETING 12 APRIL 16, 2014
DAVID WHATMORE: Aloha, Councilmembers. My name is David
Whatmore. I am a little nervous but I am a tropical fruit farmer from the north
shore. My farm is specifically in west Waiakalua, or "Waiakalua Nui" as it use to be
called. I have been there about twenty-nine (29) years and I am a property owner.
On my farm there is a thirty foot (30') wide beach access easement. It is a road that
goes all the way as close to the coast as possible. It takes up nine percent (9%) of
my property area. In 1985, I was advised to plant trees in the easement and block
it off to increase my property value and increase the farmable area and I tell you I
would not think of doing such a thing. I would not think of blocking off my
neighbors and my friends and the general public from using that resource. I feel
very strongly about this. For our island to prosper we need to support the public in
this need. There is also a coastal trail, part of the ala loa trail that traverses right
next to the makai portion of my property. Many people use this, everyday. I would
say a couple dozen at a minimum, everyday. There are fishermen, beachcombers,
surfers, hikers, and people collecting limu and opihi. I have used the trail many,
probably a hundred times myself and as several times I have used that same trail to
hike all the way over to Larsen's beach along the coast. As a hiker, excuse me, I feel
very emotional about this. As a hiker and a Boy Scout and a Boy Scout leader I
noticed that in many places that the trail, it follows the natural and logical route. It
does not go in places that are difficult to go. It takes the natural and easiest route.
That the way trails are and you can see in sections of it where it had been used a
long time and it is that way. Every time I took that trail all the way to Larsen's
beach I encountered other people. I was not the only person out there doing it.
There are other people going both ways, not a lot, but I would always see a few
people at least. So this lateral trail is in use all the time. Anyway, I am almost
finished but what I was going to say is that I did a little bit of research and I
learned that the ala loa trail is a public highway under the Highways Act of 1892
and it is incorporated into our own State constitution...it is in the Hawai`i Revised
Statutes, excuse me, Section 264 and it is very clear. The public still has these
rights.
Ms. Marugame: Three (3) minuets.
Mr. Whatmore: Okay, whether the other public officials
recognize. Now we have these rights and it is your duty as public officials to protect
public property especially when that public property, which is a right-of-way, is
regularly used means of accessing other public property. My three (3) minutes are
up?
Chair Bynum: You have about two (2) more.
Mr. Whatmore: Oh, I thought I heard somebody say three (3)
minutes.
Chair Bynum: You can go as long as six (6).
Ms. Yukimura: It is a warning.
PL COMMITTEE MEETING 13 APRIL 16, 2014
Chair Bynum: You get a three (3) minutes warning.
Mr. Whatmore: I have just a little more, not very much. It is
your duty as public officials to protect public property which in my mind this clearly
is public property. It is a public right-of-way and it is one that is in use and to
diminish that use, to interfere with its use as it is would be wrong. I do not know
why in our subdivision we have a road that go clear up as close as you can get to the
ocean and that seems to be working fine. I cannot imagine a landowner that would
want to be so negative toward the public interest to want to make it more difficult
to get there. The lateral access is really important because there are obstacles
along the beach and things where you cannot access certain places unless you have
lateral access. That is a necessary part of the access. I was going to say as far as
Mr. Kagawa is talking about the Hanakapi`ai trail, I would say that I hiked the
Hanakapi`ai trail many times as well and that is placed in the most advantages
place possible. It is a difficult trail to maintain and yes, it is a rugged trail but that
is because it is really rugged area and they did not make the trail go up and around
up the mountain and other places it needed to go over rocks. They made it in the
very best place, the most passable way possible. They did not send it somewhere
else. We should not be taking actions to make our coast less accessible than before
than it historically has. It should be the same or better in my opinion. I think that
pretty much sums up what I want to say. Why should a private landowner allowed
to use public property which the ala loa trail is and I am not necessarily saying that
is happening here, I am not totally up to date on this issue but I do not think as a
general rule private landowners should not be allowed to use public property for
their own benefit at the public's expense. Our population is growing and this is
going to be needed more in the future even than it was in the past. Also, I would
like to say you guys are elected by the public as well...
Ms. Marugame: Six (6) minutes.
Mr. Whatmore: ...and I am pretty sure that they will want to
keep the access as good as possible.
Chair Bynum: Thank you, David. Let us see if there is a
question. Councilmember Kagawa.
Mr. Kagawa: Since you referenced my name and
Hanakapi`ai, I meant did you walk Hanakapi`ai trail recently?
Mr. Whatmore: I have not in a couple of years.
Mr. Kagawa: But there are hundreds of people everyday
walking. A lot of tourist, some residents but there...if you want to use the word
choke...there are choke people walking that trail everyday. If you have not walked
it in a couple of years the State has really fallen behind, I think on the maintenance
and the comparison I made is that that trail is heavily used. A lot of people are not
finding it accessible for them. It is not ADA accessible and it is the most popular
trail on the island. That is the only comparison that I am making. If we are going
PL COMMITTEE MEETING 14 APRIL 16, 2014
to assess trails and standards we have to talk about our most highly used trail that
affects most tourist and residents is that Hanakapi`ai trail and let us make sure
that our standards for our most populated trail is followed by other trails. It is like
worrying about the small problem and not caring about the big problem. I am
saying that we need to treat all of our trails as important and if we want this
particular one accessible but our most used inaccessible, what is the logic in that?
Mr. Whatmore: Well, I can tell you what the logic in that is
and that is that it shows how much demand there is for people to use coastal trails.
There is a lot of demand and I would say the better we maintain them the more
people that will use them and in this case this area is not nearly as challenging for
maintaining a good trail as Hanakapi`ai so there is no reason we should dumb this
one down to the standard of Hanakapi`ai. We can easily make a better trail here,
why not?
Mr. Kagawa: I guess we are missing each other's point.
Mr. Whatmore: I get your point. You are trying to say since
that is a bad trail why not have a bad trail over there too and I do not see it that
way. Okay, thank you.
Chair Bynum: Next registered speaker please.
Ms. Marugame: Next registered speaker, Peter Waldau
followed by Hope Kallai.
Chair Bynum: That will be fine. You need to introduce
yourself, though.
DAVID DINNER: I am David Dinner.
Chair Bynum: See if the blue light is on. Push the button
where it says push.
Mr. Dinner: I really appreciate the opportunity to talk.
JoAnn, I apologize, I did not give you the wrong number but you misinterpreted
what I said. I said not clearly enough. It is Ordinance No. 777, 9.29 is the...so I am
sorry. I saw you looking through the papers and I was concerned that I did not
steer you right. I am going to simplify my testimony particularly because in my
rush to get here on time I left it on my desk and I did not have to be here this early
anyway because everything was delayed so you see how things work out. I just
want to say that it has been brought to my attention, and I know I am not a legal
expert on this matter but Ordinance No. 777 which I was referring to JoAnn, 9.29
states that there has to be a minimum of three hundred (300) and not more than
fifteen hundred (1,500) feet between beach accesses. This property runs about three
thousand feet (3,000') at the beach and given that there actually should be at least
two (2) beach accesses here according to the law. It looks to me that neither of the
beach accesses that we are talking about is really ideal. Maybe the one I think at
PL COMMITTEE MEETING 15 APRIL 16, 2014
the south end is the one we are talking about now is maybe useable. I am not even
sure of that. It looks to me, from what I have heard that it is not very useable
under given certain circumstances but it seems so simple to go down the main road
of the development for beach access that it boggles the mind that we would not do
that. That would accomplish a number of things. First of all, it would make it
simpler. Second of all, it would dispel the idea that this community wants to be
separated from the rest of the community by gating itself. I know that there is no
law that says that you cannot gate a community at this point, it was attempted to
be made a law but it has not been but it is not the right thing to do. It is not pono
and it is just galls me when I hear somebody say that they are working within the
law but underneath you feel this undercurrent of I am not being pono, I am not
doing this in the way that this community would accept. In my view this
community does not accept this approach of gating a community, keeping it
separated from the rest of the community and giving lip service to agriculture which
is what is happening here, I think we all know that. Please have a deferment, let us
look at this thing completely and do everything we possibly can to make this fit into
this community of Kilauea. This is one of the last remaining great places we have
on this island. Let us maintain it. Thank you so much. I really appreciate your
time. Aloha.
(Committee Chair Bynum was not present.)
Ms. Yukimura: Yes, thank you, David. Chair Bynum has
had to step out so I am managing now. Any questions of Mr. Dinner? Thank you
very much.
Mr. Dinner: Thank you, JoAnn.
Ms. Yukimura: Next speaker please.
Ms. Marugame: Peter Waldau followed by Hope Kallai.
Ms. Yukimura: Hope first? Go ahead.
HOPE KALLAI: Aloha. I have a PowerPoint that I can skip
through most of it but there are some pictures of the proposed easement and...
Ms. Yukimura: Okay, use the PowerPoint but you have to
stay within your six (6) minutes.
Ms. Kallai: I got you. I have a letter to present but since
you are going to defer anyway, that was what I was asking for. The deferral until
the site visit.
Ms. Yukimura: Okay, so we will start when her PowerPoint
starts.
PL COMMITTEE MEETING 16 APRIL 16, 2014
Ms. Kallai: And just while that is loading, I would like to
address a couple of things that Mr. Lombardi said and that is about a corporate
citizen. Maybe he thinks that Falko is a good corporate citizen but in this case that
corporate citizen is not a good neighbor. He stated that the project has been in
complete compliance but the file plan that was submitted with the original
subdivision plan was not complete. It ended five hundred eighty feet (580') from the
beach. That is not beach access. That is not complete compliance. The next map
that was presented ended in a twelve foot (12') vertical rock wall. That is not
complete compliance and it is not being a good neighbor to our community. This
trail is not like Hanakapi`ai, it is not a wilderness experience, it is a neighborhood
beach access and we are trying to get a family-friendly, environmentally conscious,
and culturally appropriate beach access. This is where it would go. The beach
access would be at the base of that rock wall cliff in this boulder field. In October,
the Council said that they were going to make a site visit and I hope we are going to
get to the site visit really soon. This is the area of the easement. I believe it is on
the Lepeuli boarder and this is the sign that has gone up since this action has
started. This is not neighborhood friendly beach access, sending it someplace else.
This is the sign that has gone up on the ala loa just recently. This is not
neighborhood...this is not a good neighbor. This might be a good corporate citizen
but this is not a good neighbor. This is the beach that is trying...the area we are
trying to access with this easement. It is not Lepeuli. It is not Larsens. It is
Waipake and it is all the way from Pakala Point, right where that rock pile is. That
is where the easement comes down. Right in the rockiest place on this whole
stretch of shoreline and goes all the way from Pakala Point, right there where all
the rocks are...this will go right past a very sensitive archeological site to Kepuhi
Point, the other side of the ahupua a. It is gorgeous land, it is beautiful stripe,
picture perfect postcard beautiful and the public has the right to access safely.
There is a lot of complication on this beach with endangered species that we need to
plan for in advance. That is why sending people down to the beach and not having
a back dune option of lateral safe transit is not the best for the endangered species.
They pile up, they go mauka as far as they want to go. You are not supposed to go
makai of seals so we need a way that we can walk mauka of where the seals are.
We also have albatross to consider. Being environmentally conscious does not mean
precluding people.
Ms. Marugame: Three (3) minutes.
Ms. Kallai: Now the ala loa trail is in the background.
Now there is vegetation being planted in the middle of our ancient trail. I will skip
all of this...this is the new proposed easement going down the hill. This is going up
the hill from the ala loa. This is going to be an erosion problem, a straight shot like
this going down to the beach it is going to run red unless we do some erosion control
measures. It is a gorgeous beach. It is clean when all of the other beaches are
running red. We need to talk about this in advanced. This is the narrowness of the
trail at the base of the rocks and you can see the marine debris. This gets covered
with high wash of the waves, has been covered this year. (ooh that is too dark) I
guess the arrow is the property boundary that has been painted just recently. You
can see how narrow the area is between the arrow and the rocks. It is very erosive
PL COMMITTEE MEETING 17 APRIL 16, 2014
rocks and this is where it has been determined the property boundary was. We did
not know when we made our original pictures but it looks like we were pretty close
spot on in the same place. This is the rock apron, natural rock wall I forget what
they are calling it now. To get down to the beach after you have hiked a mile. This
is it. Oops, two (2) of them and the sign that has gone up in the middle of the ala
loa. New signs, down on the beach keeping people off the sand. We have problems
coming down that I would like to talk about in advance to trouble coming down the
pipe. We have got this big subdivision planned that Mr. Lombardi said has had
twenty-six (26) or twenty-eight (28) public hearings. I do not quite find that record.
We are accepting a mile long easement. Our closes beach access easements have
been impacted by lack maintenance by the County. Aliomanu's new easement you
cannot even find it. The Kakaniu access in Lepeuli, we have been coming here and
Mr. Whatmore and the Boy Scouts have been coming here since 2009 about that
one. Kilauea Falls Ranch, cannot find it, Kauapea, cannot find it. So our closes
four (4) County beach accesses are not maintained and now we are considered
taking on a mile more. It does not make too much sense. Maybe a shorter trail
would make more sense. We have a long stretch of beach here...
Ms. Marugame: Six (6) minutes.
Ms. Kallai: ...that we should be...we deserve the best
access that we can get. Thank you.
Ms. Yukimura: Questions? Hope, I heard that Department
of land and Natural Resources (DLNR) recently met with the Ke Ala Hele group
and said that the ala loa, to their knowledge, is like one thousand feet (1,000') in
from the shoreline?
Ms. Kallai: Well they produced a map that was skewed.
It is a flawed map and makes no sense. It has Koolau Road not where Koolau Road
is. It is way off scale. They also said that it is not Naalahele's job to provide coastal
access.
Ms. Yukimura: No, I am not talking about whose job it is, I
am just talking about where the trail is and what documentation there is for it.
Ms. Kallai: They took the file plan 2458 from Falko and
dropped in the first government survey. But they dropped it in at the wrong scale.
It is skewed.
Ms. Yukimura: Alright, thank you. Any other questions? If
not next speaker, please.
Ms. Marugame: Paul Waldau followed by Richard Spacer.
PETER WALDAU: I am requesting the overhead projector
(Committee Chair Bynum was noted present.)
PL COMMITTEE MEETING 18 APRIL 16, 2014
Chair Bynum: Do you have a PowerPoint or a piece of paper
you want projected?
Mr. Waldau: It is pieces of paper.
Chair Bynum: I am sure Mr. Sato will accommodate you.
Mr. Waldau: And while that is being set-up, I just wanted
to address that point about maintenance on existing trails. We have a model in the
Koolau district. A place called Moloa`a Bay Ranch where the grantor of the public
easement was responsible for creating a two foot (2') wide tread and on either side of
that a two foot (2') wide of brush overhang. The grantor being responsible for the
maintenance, just keep that in mind when we are looking at establishing now a
grant of pedestrian easement at Kahuaina. We have a model next door that
addresses where we do not run into this trouble of the trails not being maintained.
I am just trying to throw that out. And then you are going to be putting the sheets
on for me? I get a little magic wand? Is that what this is?
Chair Bynum: That is a pointer.
Mr. Waldau: And I hit the red button?
Chair Bynum: Yes. There you go.
Mr. Waldau: Got it, thanks. The point that I am really
wanting to...I am making one (1) point with four (4) photos. That is traditionally
the way the monk seals have been kind of addressed by the Monk Seal Program is
these monk seal enclosures...we have monk seals that I have seen come ashore in
Kapa'a and by setting up these temporary enclosures it seems that they are able to
do their rest on the shore and the public is not accidentally walking over them.
This is Waipake and what we have here, this is like the first sandy landfall that you
would make if you were walking from the proposed grant of pedestrian easement.
What I wanted to point out here is that the public, when they are walking, need the
lateral coastal trail so that they are not walking on top of mom and baby on the
beach. At night the mom and baby are up at the vegetation line here. The next
photograph will be a little further down this lateral coastal trail. You see how
crucial it is to separate. This lateral coastal trail is crucial in separating the
critically endangered monk seals from the lateral coastal transit by people. This is
the pupping area.
Ms. Marugame: Three (3) minutes.
Mr. Waldau: We are going to be bringing in either
seventy-six (76) or eighty (80) house sites, people are going to be here. Compare
this to Kapa`a, we have a way of traditionally keeping the critically endangered
conservation concern with these monk seal enclosures. Next photo please. This is
at Lepeuli so this is next door but I just wanted to point out that the monk seal
PL COMMITTEE MEETING 19 APRIL 16, 2014
encloses...this is was a mom and baby in 2010; this was the first baby in 2010. The
only way to really not be in the zone of mom and baby is the lateral coastal trail.
Are you with me on this? Next photo. This is going to be now another Lepeuli
photo but again this is the lateral coastal trail that I have walked for twenty (20)
years. This is not anything new. This is a different baby and a different mom and
you see that the monk seal enclosure it is crucial that we have access to the lateral
coastal trail. This is the lateral coastal trail that I have walked for twenty (20)
years. This is not rocket science. The only problem you might find when you do
your site visit is that now there at Waipake they are throwing brush and trying to
plant out this very well maintained coastal trail so that when you get there you do
not see this coastal trail. I am just pointing that out that in addition to public
safety please consider the appropriate conservation configuration which needs to
include this lateral coastal trail. Thank you very much.
Chair Bynum: Thank you. Any questions for Mr. Waldau?
Next speaker please.
Ms. Marugame: Richard Spacer followed by Steve Luckman.
RICHARD SPACER: Good morning, Councilmembers. It is nice to
be back with you for our seventh discussion on Waipake here and Kahuaina in
particular. I am not going to talk about conservation among seals but I am going to
talk about the word that the "L" people like the lawyers and that is liability. I know
that you like to talk about to talk about that in Executive Session and I assume you
would be doing that so to be brief all I want to say this morning is I sent you a photo
that I took in January at Waipake while I was seated on the so called natural stone
steps looking to the north west towards Waipake Beach. That photo shows a wave
washing over survey pins on this proposed trail where the landowner wants the
public to walk instead of walking on the lateral coastal trail which is about twelve
feet (12') or so more or less high off of sea level and more mauka. It may be argued
by some that this was some sort of an abnormal event but that in fact was not the
case. In January when the weather service was predicting these outrageous
numbers of thirty-five (35) and forty (40) feet those waves never materialized. It
was more like twenty/twenty-five (20/25) and that was taken around 8:00 a.m. when
high tide was already at about five feet (5'), so we already missed some waves
washing over that. As was already mentioned, there are lots of wave debris and in
that whole area so the point is you as County Officials cannot accept an alignment
of a trail that is in a splash zone of high winter waves. That is liability. Maybe no
one will get hurt three hundred sixty-four (364) days of the year but what happens
when someone does get swept in. Oh, yes and I was on the County easement when it
happened. We cannot do that. And of course as I have testified previously the
solution for that is to use the ala loa, which is a State public highway that is very
conveniently running through that property in a safe zone. That is the solution to
that. The other photos that I sent you more recently are what Mr. Waldau referred
to is all of the ironwood trees that were in that splash zone where they proposed the
alignments to continue from the natural stone steps up to Waipake Beach. Those
ironwood branches that were in the way of people walking on that proposed were
cut and then those cut branches were stacked up on the ala loa trail to make the
PL COMMITTEE MEETING 20 APRIL 16, 2014
vegetated barrier that I photographed. Hawai`i Revised Statutes 115-9 goes on to
numerate a long list of things that cannot block trails such as security guard,
vegetation, dogs, etc.
Ms. Marugame: Three (3) minutes.
Mr. Spacer: Thank you. That is really all I had to say on
that. I too would have requested a deferral and I see that is going to happen so
apparently no decision making will take place until at least July which will give all
of us more time to continue the research we have been doing since last July on this
issue. Again, I urge the Council not to accept this easement until we resolve the ala
loa issue. Doris Moana Rowens at that Na Ala Hele meeting advised us that private
litigation would be the way to go with that and I have been feeling that for three (3)
years. If the landowners and these three (3) apuhua'a are not willing to recognize
the existence of this historic feature then I guess that is what we have to do but it is
there and it will intercept this mauka/makai alignment and it makes perfect to
resolve this entire issue now as Councilmember Bynum has previously said before
these different lots are broken up and sold and then we have a real quagmire of
someone suing all of these different landowners instead of trying to amiably
reconcile this issue now before all this happens. That is all I had to say this
morning and again thank you for your patience with us and listening to our
concerns. It is always a pleasure to be back.
Chair Bynum: Thank you. Any questions? If not, next
speaker.
Ms. Marugame: Steve Luckman followed by Thomas Beebe.
STEVE LUCKMAN: Mr. Chairman, fellow Councilmembers, good
morning. My name is Steve Luckman and I live at 7705 Koolau Road, across the
road from the subject property. As a little background I have spent seventeen (17)
years involved in the practice of planning, architecture, and engineering. I have
served four (4) terms as a Planning Commission member and as a Chairman for two
and a half (2.5) years. Currently, I am involved in real estate development. I am
appearing here today on behalf of Larry Bowman and Shawn Smith who over the
years have dealt in good faith in mediating the differences with the County on this
property all of which has resulted in a full approval at all levels of the County and
has been duly recorded. The past recorded agreement with the County included a
footpath along the eastern edge of the property for beach access, augmenting the
vehicle access already existing at the adjacent Larsen's Beach. Adding additional
vehicle access would not be in the best interest may not be in the best interest from
either in a environmental or neighborhood point of view. The County is not acting
in good faith and is adding unnecessary cost after the fact to Mr. Bowman who has
already mediated this project in its entirety with all entities of the County. As a
neighbor directly affected by this proposed after the fact change I want to voice my
objection and urge you to act in good faith and adhere to the joint agreement and
respect the recorded property rights of Mr. Bowman in this matter. Thank you.
PL COMMITTEE MEETING 21 APRIL 16, 2014
Chair Bynum: Next speaker please.
Ms. Marugame: Next speaker is Thomas Beebe followed by
Jason Kerr.
THOMAS BEEBE: Aloha, Members of the Council. My name is
Thomas Beebe. I have been a resident on Koolau Road, directly across from this
project for ten (10) years. My family and I built our house there and we farm and
we live off the food we eat there in addition to other food of course. I came here
today to try to temper what I feel is a movement, sort of anti-development
movement in general. I think it is created by a lot of the frustration that people are
feeling of projects that have already happened and people see and wish that things
could have been done differently in the past and I feel like this particular project is
being villainized in a few different ways. One of those ways is anyone who refers to
this as a development that is doing lip service to farming has not been out there,
has not seen what is going on. Mr. Farris and his workers, every morning when I go
to work I see guys getting dropped off, I see farming happening, I have been
watching papayas growing with envy I should say for years over there. Please
dispel any ideas that this is a token farming operation. There is actual farming
going on there and go to the farmers markets and you will see the results. I have
also heard about people proposing that there be a parking lot made available down
closer to the beach and I do property management over by Mr. Whatmore's property
where there is a dirt road, sort of a remote dirt road that goes to the edge of the
coast and that is exactly where on Friday and Saturday nights you will hear all
kinds of crazy sounds and partying and activity going on over there. The owners
that I manage for over in that area are continually concerned in trying to buffer
themselves from people who live in their cars down at the end of that dirt road and
while I applaud access we do not have the enforcement to keep those areas
protected and keep them safe. Just go down there some night on an evening and
see how sketchy it can be. I just feel like obviously more information is necessary
about the beach access. I do not know the details about what access is required and
what access has been offered but clearly a site visit is what you need and my
encouragement is just to rather than take out on this particular project past
mistakes that have been made try to create, at it seems you are doing a solution
that will both provide access to the public...
Ms. Marugame: Three (3) minutes.
Mr. Beebe: ...keep our neighborhood safe and not
unnecessarily expose the wildlife down there to people camping in their cars and
living down there without facilities and without general protection from our law
enforcement. Thank you.
Chair Bynum: Coucilmember Yukimura.
PL COMMITTEE MEETING 22 APRIL 16, 2014
Ms. Yukimura: Thank you for being here Mr. Beebe. You
said that this is not lip service to farming. If it is not then there would be some
long-term tenure for the farmer. Do you know whether the farmer(s) have
long-term tenure or whether they would be expected to disappear once the lots are
sold?
Mr. Beebe: I do not know about that. I can just say that
there has been a lot of developments that are on agriculture land that show no
operation or anything like what is going on there now so I cannot speak to what will
happen in the future. I can just say that anyone who says that they are not really
farming it is just not sure.
Ms. Yukimura: I agree with you. I have known Ben Farris
for a long, long time and he has always been a really creditable hard working
farmer producing amazing food for people here and for export. I know there is a
real farmer there but how long is the question, one of the questions we all need to
ask in terms of long term sustainability. Thank you.
Chair Bynum: Mr. Beebe, how many lots are there in this
subdivision, do you recall? Is it somewhere in the seventies?
Mr. Beebe: I have heard reports that there is a capacity
number but there is fifteen meters up front.
Chair Bynum: I just want to know if you understand that I
am well aware of the farming that is occurring on the north shore but these
seventy-six (76) new owners, are you aware that each one of them is going to sign a
document that promises that their intention is to farm that particular plot and that
they only have this house because it is a farm dwelling. Do you believe that all
seventy-six (76) people there that buy these properties intend to engage because
each one of them has that requirement not just one (1) portion of this subdivision
because when it says subdivide there are seventy-six (76) new owners. All of who
are attesting, I know because I did it once, they are attesting that home is just for
farming and that they intend to use that land to produce crops. Are you aware that
is our current state?
Ms. Beebe: Yes I am. I know that there is no
enforcement on that.
Chair Bynum: How many of those seventy-six (76) are going
to actively engage in real and significant farming like Mr. Farris is?
Mr. Beebe: It is hard for me to believe that there are
ever going to be that many people that are living on that property just by the way it
is set up. But of course there is no way for any of us to know.
Chair Bynum: The issue is seventy-six (76) owners. Not
that this one is doing agriculture. This is a subdivision. There is going to be
PL COMMITTEE MEETING 23 APRIL 16, 2014
seventy whatever new owners. Each of whom are saying I am a farmer and I am
moving here to farm. And they are also going to move into this subdivision where
the neighbors are on them and say well those are the people that kept me from
having lateral access. Maybe that should be disclosed prior to their ownership.
Thank you.
Mr. Beebe: I understand what you are saying and I
understand about your concern about the future. What I have heard so far today in
this testimony which I believe influences your whole Council is that currently there
is no farming going on there. No substantial or significant farming going on there
and the current development is paying lip service to farming. My point is that this
development project in general is being villainized and that they are actually
making great efforts and being excellent neighbors and they are being treated as if
they are the same developers who have taken advantage of our lack of laws and
enforcement in the past.
Chair Bynum: Thank you. Other questions?
Mr. Chock: Just for the sake of the public and
transparency. I know this has been an ongoing discussion here but can you...I
think it is important that you share your affiliation with the landowner and for that
matter anyone else who comes up to speak.
Mr. Beebe: Absolutely. I originally met Shawn Smith
about ten (10) years ago. Our daughters went to the same school. He is a neighbor.
I do not have any regular social interaction with him other than seeing him and
waving to him and the other people that work on that property.
Mr. Chock: So you are employed by Falko Partners?
Mr. Beebe: Not in any way. I am a neighbor and not
associated or affiliated.
Mr. Chock: My apologies. Thank you.
Mr. Beebe: You are welcome.
Chair Bynum: Next.
Ms. Marugame: Jason Kerr.
JASON KERR: Good morning.
Chair Bynum: Can you state your name please.
Mr. Kerr: Jason Kerr. I have lived on Kaua`i for
thirty-three (33) years, since I was eight (8) years old. I served the island as a
plumbing contractor for fourteen (14) years, and as a pastor for three (3) years. I
PL COMMITTEE MEETING 24 APRIL 16, 2014
am here to talk about beach access. It is my feelings...I also have helped take care
of the property for Falko Partners for about ten (10) years now. It is a special place
down there and I feel like in all honesty the less traffic down there the better. We
have got Anini Beach ten (10) minutes north and Anahola Beach ten (10) minutes
east where people can drive up and have access to the beauty of Kaua`i. This place
is kind of a sacred place where I have uncles who are seventy (70) years old who
walk the trail and fish and they are still able to still go diving there. I do not think
that every place should have an access along the beach the collaterals, you call
it...laterals. You can get that on Maui. We do not want to turn Kaua`i into Maui.
That is my feelings. I was riding my bike on the bike path where there is a lateral
trail the other day and from the substation to the swimming pool you have people
who are obviously on drugs and loitering and just hanging out down there and it
made me very sad. I would hate to see that happen in the same place and like other
people have pointed out people being able to drive their cars down there and I would
personally not want to see that happen. It can be a very dangerous beach.
Ms. Marugame: Three (3) minutes.
Mr. Kerr: That is the way I feel about it. I do not think
that every place on Kaua`i should be...you should be able to drive your car. It is
accessible. A footpath would be sufficient in my opinion.
Chair Bynum: Thank you. Any questions? Mr. Kagawa
and then Ms. Yukimura.
Mr. Kagawa: You mentioned Anini right next, seeing the
reefs and the fish stock really go down in the past ten to twenty (10 — 20) years in
areas like Anini, the reef looks dead. It use to look so bright and beautiful and is
one of the reasons you say perhaps not having an access where many people will go
down to the beach, it could maybe harm the fish stock?
Mr. Kerr: Yes, definitely. Most fishermen and divers
on Kaua`i know that in order to get fish you have to walk and I can see this place
being over fished and over dived if you make it so easy to get there.
Mr. Kagawa: Already now I get this picture that nobody is
really...because it is hard to get down to there are not really many people fishing or
throwing net and stuff, right. Are there people on the weekends as you go down?
Mr. Kerr: The last time I was down there on the beach
there were three (3) gentlemen throwing net and I believe there were one (1) or two
(2) people pole fishing.
Mr. Kagawa: So basically the local people they still go
down there. They go down there because they pay the price and get maybe better
grounds.
Mr. Kerr: Definitely.
PL COMMITTEE MEETING 25 APRIL 16, 2014
Mr. Kagawa: Thank you, Chair.
Ms. Yukimura: Thank you, Jason. You ended your
testimony by saying a footpath would be sufficient. I do concur with you that public
access, especially one not well managed is a double-edged sword and can lead to the
destruction of natural resources. It is not a simple issue but when you said a
footpath would be sufficient what were you referring to? The mauka/makai access?
Mr. Kerr: Yes.
Ms. Yukimura: You feel that to a safe passageway lateral to
the beach would be sufficient?
Mr. Kerr: Yes.
Ms. Yukimura: What is your response to the argument that
when you are protecting resources like the monk seal and the beach is screened off
from lateral access along beach how could we address that?
Mr. Kerr: I am not quite understanding your question.
Ms. Yukimura: There were photos shown where the fencing
that fences off the public from the monk seal pretty much runs mauka/makai
across the beach. So the argument is people cannot go...in order to protect the
monk seal you cannot go laterally along the beach. One could say you have to defer
to wildlife.
Mr. Kerr: In all honesty it is like I said I do not think a
monk seal should take precedence over a human being at all, period. I think we
could safely walk by without harming it. That would be my answer and also I think
if the monk seal, was on the beach then maybe that portion of the beach would not
be accessible for the time being, if you are very concerned about the monk seal than
sure let them...that one section of the beach we just cannot go there for that period
of time. That would be my answer.
Ms. Yukimura: Alright. Thank you for your answer.
Chair Bynum: Mr. Chock.
Mr. Chock: I do not actually disagree with you in terms
of the footpath and access so much. The question I had earlier about parking lots
and so far, where it is, is insignificant to me as long as there is process involved.
Mr. Kerr: I am sorry did you say you do not disagree
with me?
PL COMMITTEE MEETING 26 APRIL 16, 2014
Mr. Chock: I do not. Access is important, whether it be
what kind is something that is in discussion right now. I am just saying have
everyone had a chance to and according to some people saying, "yes, we want it
here, we want it there," that is what I am trying to get to. But in reference to your
reasons why I am a fishermen too and I know that no matter what you push people
out, push people out they are still going to find a way. I come will my boat, I come
around the corner and I can take all the fish. I think the issue is actually if you
could agree with or disagree with this, is that it is about education. Our fishermen,
the people who go to the beach they have to know what is right or wrong and be
responsible. I think that eliminating people is just kind of stopping what is
inevitable because people are going to find a way to get there so we have to take
care of our community in a way that is more proactive on the prevention side and
getting people to think right and act right. I just wanted to reflect on that. That is
the other way I would look at that scenario.
Mr. Kerr: Would you agree then if...say that if there is
one hundred (100) people there would probably be, let us just say, just guessing
maybe five (5) people, ten (10) people that would fish too much, would take too
much from the ocean, correct. The more people who are accessing that area, if it is
easier to get to with a car or a truck would you agree that where would be more
people taking more than they should from that area?
Mr. Chock: It could very well be if we did not have a
good enough system...I do not want to get into too much philosophy. I know it
suppose to be a question but we did it before. The Hawaiians fed everybody in
ahupua a and we knew what to take and what not to take and so we had way more
people and we were able to manage the resources properly.
Mr. Kerr: Absolutely.
Mr. Chock: I am not talking about cars. I am talking
about management of resources. My point is there is a way. It is the mindset that
we are working against. It is not whether we should block people off or not and that
is all. I do not want to go into too much discussion on it.
Chair Bynum: This is fine. I think this is a really good
discussion that our community needs to have and we have been having.
Mr. Kerr: I would just hate to see that beautiful beach
look like what it looks like in front of Kapa'a Beach Park right now. I was just
there. It was saddening to me.
Chair Bynum: Or what the secluded beach at Lepeuli
looked like when there were hundreds of people camping down there and abusing
the resource. We have these problems, no question.
PL COMMITTEE MEETING 27 APRIL 16, 2014
Mr. Kerr: I think we would probably make an educated
guess that if we had the lateral path there would be more of that than what is there
now.
Chair Bynum: So what I want to continue this dialogue
because I think it is useful and because I also agree with your sentiments almost to
a tee, but not all of your conclusion. I think the vision that was out there, Jason,
was that the law says it, there is going to be access to the beach on a regular basis
all the way down. Mr. Developer, you want to develop this is already in the law.
You have to provide a way for citizens to get to the beach every so many feet and the
concept was if we have access to the entire coastline than no one place is going to
get overwhelmed. So in this instance, pragmatically, I have seen this. I also fish. I
have met with fishermen dozens and dozens of time as we negotiated fishing access
in this path on the coast and lots of fishermen are happy they still go to the places
that they need to be and we have higher use and we have the problems that come
with that. My point is that if we have access lots of places no one place is going to
get overwhelmed but look at this subdivision, in reality, you are right, people
throwing net, I can tell you those guys are not walking a mile from the road before
they get out of their cars to throw net. You know that. Like Mr. Chock says, you
find way but now you put the only legal accesses a mile from the road and there is
nothing you can go laterally from an adjacent access. You cannot get from the
access to here. Well now there are seventy-six (76) people that virtually have a
private beach, right. Because they have access everyday and those guys that are
throwing net all of a sudden nobody hassles now because the land is not developed.
Put seventy-six (76) new owners in there and all of a sudden the guy throwing net
on a high surf day goes onto private property and gets arrested and this is
happening. This is what is happening. People move here and they want this
isolation. The developers practically tell them look we have designed this in a way
that you are going to have almost exclusive access to these beaches. This one place
is sacred and special. It is sacred and special to lots of people who may have their
access taken away by not providing lateral, by not providing a convenient access
frequently as the original intent was. It is clear that there has been a historic
lateral trail there and it is for gathering, it is for fishing. I would just like you to
respond because I agree with you we do not want to put a Po`ipu and Anini in each
place. Those are different problems but fishermen have lost...long time traditional
fishermen cannot get to the places they use to be because we have not negotiated
these things well. I would like for you to respond.
Mr. Kerr: Are you saying that if we do not have a
lateral trail that they will not be able to get...
Chair Bynum: If the only way to get to this beach, there is
no other way to go from the other beach access laterally onto this beach is this one
(1) mile so these guys come down here and gather now you are going to have
seventy-six (76) new owners with their little pieces and where people use to just
step up out of the high wash of the waves into what will now be private property
that somebody is going to enforce their property rights or build a fence. This has
happened over and over again. This is a subdivision that I thought we would do
PL COMMITTEE MEETING 28 APRIL 16, 2014
better. I thought Mr. Bowman who I respect would not just meet, as Mr. Lombardi
has said, we are meeting the letter of the law. If you wanted something different
you should change your law. I accept that but not everyone comes into development
that they do not want to accommodate the desires and needs of the local community.
We did get philosophical and we will get back to this but I really appreciate your
testimony and I would love to continue this conversation when we are not on t.v.,
thank you. Any other questions? Thank you.
Mr. Kerr: Thanks.
Chair Bynum: Next speaker.
Ms. Marugame: No other registered speakers.
Chair Bynum: Is there anyone present who would like
testify in this matter? Sir, step up. Can you state your name for the record please.
CLINT BETTENCOURT: Good morning, Council. Clint Bettencourt.
Chair Bynum: Oh, Clint. I did not recognize you.
Mr. Bettencourt: I am here to speak on the property that
Shawn manages and I just wanted to say that I have been there fifty (50) years, I
have been fishing there. Part of my concern is preservation. The land is pristine
and it is that way because there are very little people that go there and throw their
opala all over then go home. Mr. Smith takes very good care of the property. I fish
there and I also go down there for my medication. It is a religious area for us
Kanka's and that land is loved and worshiped by our people and we would like to
keep it the way it is. Now lately I have been going there, recently, it was about a
month ago, and there are nude man and women walking all over the place. I think
this place is getting...people are getting to learn this place because of these
meetings and stuff so they are trying to find out where this place is so they go there
and there is a nudist beach just down the road there and if they stay there I would
be alright. I have no objections to them being nude. That is not my kuleana so I do
not bother them. I do not bother the monk seal but like I said it is a religious land
and a sacred land. Had one (1) person talking, which is not the right race, saying
that was here sacred trail. I beg to differ. The trail belongs to the Kanakas, it
always did and it always will. I do not care who owns the land and I am a Kanaka,
I have rights too. I pay taxes and I would like to kind of keep the land the way it
was. I have nothing more to say and I thank you for listening to me.
Chair Bynum: Thank you.
Mr. Rapozo: I have a question.
Chair Bynum: Mr. Rapozo.
PL COMMITTEE MEETING 29 APRIL 16, 2014
Mr. Rapozo: Thank you. Thanks, Clint. I guess I have
just been absorbing everything but something you said kind of woke the sleeping
giant because you said something that there is a nudist beach not far away.
Mr. Bettencourt: Yes.
Mr. Rapozo: We do not have any nudist beaches on this
island or we should not have any nudist beaches on this island.
Mr. Bettencourt: To your knowledge.
Mr. Rapozo: I know the law prevents it.
Mr. Bettencourt: But you know it is there though.
Mr. Rapozo: I do not know which beach you are
referencing.
Mr. Bettencourt: Larsens.
Mr. Rapozo: I do not want the public to believe...because
we have a lot of tourist ask, is there a nudist beach where nudity is legal and we do
not. If there is nudity and nobody complains then I guess it is like speeding without
a cop catching you. It is still illegal.
Mr. Bettencourt: But there is still a law.
Mr. Rapozo: There is still a law.
Mr. Bettencourt: One (1) of the issues the law state is for you
to make a nudist complaint you have to see somebody nude at the time and also you
have to be sexually aroused by their actions or their nudity. That is why a lot of
people do not make complaints.
Mr. Rapozo: Or a fronted or alarmed or harassed or if you
felt that was not appropriate on a public beach because the beaches are public. I
would hate to take my kid down the beach.
Mr. Bettencourt: Well that is what is occurring now and I
have concerns about that.
Mr. Rapozo: Well I appreciate you bringing it up, Clint. I
do not think I have ever seen you here to testify before so it is obvious that it is
important to you and that is important to me as well. Public access is one (1) thing
but openly violating laws is another for me and that is just another issue that we
have to deal with but maybe we need to get the police to go down more often and
check. Anyway, thank you very much, Clint. I appreciate it.
Mr. Bettencourt: Thank you, Councilmember.
PL COMMITTEE MEETING 30 APRIL 16, 2014
Mr. Kagawa: I just have a short question to follow-up
Councilmember Rapozo. How much, and I am alarmed as well. I thought our
island was absolved of having nudity on our beaches so I guess I do not look for it
and I did not represent the public until just last year so I did not make it my
personal vendetta but how many people do you see at a time on Larsens?
Mr. Bettencourt: I do not really go that side. From a
distance...it is a known fact by all of us publicly.
Mr. Kagawa: A known fact. Is that like five (5) people,
twenty (20) people?
Mr. Bettencourt: Probably more throughout the day. And now
they are crossing over into the property that everybody is concerned about and my
reason is what is their reason to be there? To enjoy? To be blessed with the sacred
area or to be there nude for their enjoyment? This area should not desecrated in
such a manner. This area should be preserved and like I said, a lot of us is not here
today, us people because we work. We cannot attend these things. A lot of the
people here do not work so they can come here every day but we have rights and we
have a voice and today me and a few people are that voice.
Mr. Kagawa: Thank you. For me, Clint, my primary goal
here on the Council is to represent our children and for our children to have to put
up with that kind of stuff and not want to go to the beach because people are not
following the laws and exposing themselves is, to me a problem and like I said I put
our children, our keiki first. When our keiki has to see that we cannot enforce the
laws on our beaches it is very concerning to me. Thank you.
Mr. Bettencourt: Okay. Thank you very much.
Chair Bynum: Thank you, Mr. Bettencourt. Nice to see you.
Mr. Bettencourt: Thank you, Council.
Chair Bynum: Anyone else would like to testify? Mr. Rosa,
step right up.
JOE ROSA: Good morning members of the Council. For
the record, Joe Rosa. I have been sitting down here just like what Mel said and just
listening. Now, to get things straight the language, are people looking for an ala loa
or an ala hele? You have to get that straight because when I was working with
Department of Transportation (DOT) on surveys we did work that included some
Kuleana research. Ala loa is a road or a street, are we looking for a road or a street
along the shoreline or are you looking for an ala hele which is a path or a trail? Say
what you mean and what is the thing that you want to get there for the public? Is it
a trail or a road? Get the language straight because like I said kuleanas you go
mauka/makai Pohaku, you know all those things. They had Hawaiian language
PL COMMITTEE MEETING 31 APRIL 16, 2014
and ala loa was a road or street. Ala hele is a small path or trail. So get the
language straight. I told the Planning Department when the hearing came out, I
said get the language straight. Still I am hearing "ala loa, ala loa." Then secondly,
the olden days, Kilauea plantation was the keeper of the land and a lot of the lands
that they were leasing were lease lands. People that owned the land and made it
accessible to the people and those people that use to fish that land, get limu and all
those things use to be the keepers of the trail because I know they use to bring
sickles, cane knives because when we were working out on the north shore there,
the fishermen say they are going to clean trail today and that was the trail that
they maintained. Access was no problem. I do not know. Ever since the change
where the tourist came after statehood or people decided to move to Hawai`i because
it is a state now, things have changed. The fences start coming along the shoreline.
Access...do not come into my land. You are trespassing. They say aloha. Now
those people are killing the aloha. Where is that aloha spirit? We use to walk all of
the shoreline where the Marriott hotel is...
Ms. Marugame: Three (3) minutes.
Mr. Rosa: ...and at that time the Rice family owned
that property there. They did not chase us out from fronting and swimming at that
beach there. Why all of a sudden these people come, they want to own everything,
the land and the ocean. So those are the things that you people have to set aside
and tell these people, this is Hawai`i you seek aloha. Mean what you say and say
what you mean. Aloha is welcome and they tell you as long as you do not do
anything wrong on the property, do not throw rubbish, do not do this, you do that
you cannot come walking through here. We are going to stop you. And that was the
same thing with the big plantation owners and people that own the beach front
property. There was love and the people could do their fishing. Like JoAnn, she
talks about vertically up and down, laterally this way JoAnn for your information.
If you can get to the shoreline, a trial, maybe one (1) trail to get down vertically and
you can move laterally freely up to vegetation or high water line. That is the way it
was before. Now day they put a pin there and they put vegetation in front there
that is not their land. They are going out of bounds so those are the things that are
causing these kinds of problems. Share, let the people...you know you come in you
share the land. You share the wealth. They like to fish, sure but how can they
claim everything? The trails were done by the fishermen. A few fishermen that
wanted to make it easier for them to access and everybody else enjoyed and shared
and used it. So where is that love? You all here is talk, talk. Hey come on, let us
share. Open up your heart and let the sun shine in and everybody be happy. It is
sharing that will solve all of these problems. Do not be selfish. I thank you.
Chair Bynum: Anyone else?
BEN FARRIS: Good morning. My name is Ben Farris and I
am farming property at Koolau. I have heard a number of questions so I thought I
would come forward and let you ask them directly to me. One (1) of the questions
was about permanents of the farm there and I am beginning the eight year of
PL COMMITTEE MEETING 32 APRIL 16, 2014
farming there. As far as the seasons when I grow and I mainly grow ginger root
that I do ship to the mainland. At this time there is an improvement in the water
system going in which is to me a firm indication of permanence, as far as that goes.
So if you have any questions I will do my best to answer.
Chair Bynum: I will start. Thank you for being here. I
appreciate it. You have how much land is there and is it leased?
Mr. Farris: It is about ten (10) acres of land.
Chair Bynum: And it is leased from Mr. Bowman at this
time?
Mr. Farris: Yes.
Chair Bynum: And is that land set aside for farming and
will you continue that lease when this subdivision is done?
Mr. Farris: As far as I know.
Chair Bynum: Do you know if the land is currently in
agriculture dedication?
Mr. Farris: I cannot say. I do not know about the
dedication.
Chair Bynum: Thank you, Ben. Other questions? Mr.
Kagawa.
Mr. Kagawa: Thank you, Chair. You said some
improvements to the water system has been made? Can you just briefly describe
what kind of improvements?
Mr. Farris: I have been using 5/8" county water meter
which might surprise some of you but that can put out a lot of water. We are
improving from a 5/8" water meter to a 3" line. So it is a huge improvement.
Mr. Kagawa: The second thing that I would like to thank
you for doing what you do. Growing ginger root that is actually selling and being
eaten, I think that is the kind of direction we want go with farming and so I just
thank you. We just approved the Kilauea agriculture subdivision or whatever it is
called but I think if you can provide some guidance to them as well I think that is
definitely a bright spot for agriculture this year.
Mr. Farris: I am involved in that and I am the
coordinator for the County at the Sunshine Market in Kilauea and we are looking to
moving the Sunshine Market to the agriculture park. I think that is what you were
referring to on the road to the lighthouse. So it is very bright spot potentially for
PL COMMITTEE MEETING 33 APRIL 16, 2014
farming in the north shore area and I want to thank each one of you for opening
that door for the community.
Mr. Kagawa: One (1) last question. How is the soil quality
in that area for farming?
Mr. Farris: If you want to talk about soil we can go on
for about an hour.
Mr. Kagawa: I mean is it high quality being near the
ocean?
Mr. Farris: The short answer is yes and I would like to
just say one (1) thing about soils. A lot of the American public has the opinion that
we need poison and chemicals to feed the world's growing population. There are
other very simple solution to that problem of feeding the people that do not involve
poisons and we have used them on the Koolau property and they actually double the
yield and it is very simple. It involves using small amounts of ocean water.
Mr. Kagawa: Thank you. I just to elaborate, I use to have
a small garden and I used no poison as well but it took a lot of labor because I
actually used to hand pull all of the weeds. It can be done. It takes a lot of sweat if
you do not use something like salt water.
Mr. Farris: Weeds are a different issue. If you are
timely and...
Chair Bynum: As fascinating as this is...
Mr. Farris: You want to stop it. I told you we could go on
for an hour.
Mr. Kagawa: Thank you.
Chair Bynum: Councilmember Hooser.
Mr. Hooser: Thank you for being here. Your ginger,
really is great so thank you. You mentioned you have ten (10) acres?
Mr. Farris: Approximately.
Mr. Hooser: Do you need more or is that enough? If you
were in the world you want to live in how many acres would you need or want.
Mr. Farris: All three hundred ninety-seven (397) acres.
PL COMMITTEE MEETING 34 APRIL 16, 2014
Mr. Hooser: You believe as a farmer you could utilize
three hundred (300) acres and have a viable farm with that much land?
Mr. Farris: With enough help, yes.
Mr. Hooser: And do you know of other farmers who if
they had the land, more land they could utilize more land also for commercial
farming?
Mr. Farris: I think there are a lot of potential farmers
out there, yes.
Mr. Hooser: Thank you. Final question, you mentioned
that you have been there for eight (8) years and you believe that...do you have a
long-term lease?
Mr. Farris: At this point it is, I believe a five (5) year.
Mr. Hooser: That is one (1) reoccurring theme that has
come up from farmers we speak to is a lack of twenty (20) year leases or thirty (30)
year leases or to provide the protection to put in infrastructure and make
investments in the property.
Mr. Farris: It is very hard to find land to lease and it has
been a great blessing to me to be able to keep farming by being on this property I
was looking, as JoAnn knows, I was looking to lease her property about eight (8)
years ago and it is very, very difficult.
Mr. Hooser: Thank you. Thank you very much.
Chair Bynum: Thank you. Thank you, Ben, for coming.
Anyone else who would like to testify on this matter?
The meeting was called back to order, and proceeded as follows:
Chair Bynum: Discussion? Councilmember Yukimura.
Ms. Yukimura: I just want to say first of all I just want to
thank everyone for testifying. I could not help it but I was really moved by what
Mr. Bettencourt said about fishing over there for fifty (50) years and it brought back
memories to me of in 1984 I asked the trust for public lands from San Francisco to
come in and look at the Maha`ulepu area to see how we could get into public
ownership and I walked the area with Dorothy Towel who was a much beloved
librarian there who was also an amateur botanist, David Chang and some others
who had worked hard to stop development in that area. With the two (2)
representatives from the Trust for Public Lands (TPL) and the community
representatives were really ambivalent about turning it into a public park that
would be on the map, that tourist would come to. They were concerned that a
PL COMMITTEE MEETING 35 APRIL 16, 2014
sacred place would be overrun and commercialized. Because there was that
ambivalence the TPL representatives said the community is not ready so instead we
went to the north shore to speak to Dan Moriarty who was the ranger then of the
Kilauea Point National Wildlife Refuge and we looked, at that time the only
ownership was the peninsula there where the lighthouse is on. We talked to the
community. We looked at that whole half crater up to Mokuleia point which is right
where the Kilauea river comes out and we talked to people like Gary Smith and
others. It was so clear that the community was ready to go for that piece of
property so over a four (4) year period we secured a conservation easement over the
high point of the crater and bought Mokuleia point on one hundred thirty (130)
acres if I remember correctly. That all went to the National Wildlife refuge.
Included there, there were about thirty-eight (38) legal agreements which gave
access to fishermen, based on keys to the access that Mr. Moriarty administered.
He knew all the local fishermen. Then there were a whole range other, actually the
estate owners at the slope of crater hill got special access too. Because you had
rodent proof gates, dog proof, cat proof that had to protect the wildlife but the other
thing was that we, the members of that north shore community gave up this
beautiful slopping area where everybody use to go and watch the sunset with wine
and cheese and beyond that grassy slope. It killed the committee that I was working
with to have to give that up but we gave it up because of the resource that had be
protected. I just want to say, that experience taught me about the complexities of
public access. Mr. Bettencourt wants that area preserved but I have to say that
seventy-seven (77) lots and people with this ownership of that place, feeling this
ownership is going change that place too. Anyway, I just wanted to share that
experience that I had working on public access issues. It is not easy but all of the
input is important, heartfelt, I know and we are going to have to...I know we are
just looking at this lateral access but we are looking, thanks to the landowner's
willingness at how to connect it to at least beach access. It may not be enough. On
the other hand too, sometimes when winter waves come up nobody has access for a
while and we bow to nature. The Hanalei river rises we do not have access. That is
all a part of this crazy and difficult issue of public access.
Chair Bynum: Members, Councilmember, Kagawa then
Councilmember Chock.
Mr. Kagawa: Thank you, Chair. I plan on attending one
(1) of those sessions to walk the area and as I recall the last time we deferred this
item we wanted to make sure there was a better access to access the beach and not
to have to be expert mountain climber to get down. I think we look forward to
seeing what that improvements or compromise looks like. After that deferral and
after the community and everybody has had their input we can see where we go
from there so I would like to support that deferral. I think the hardest part in this
whole situation is deciding what the public wants because as we can see from the
testimony there are two different sides to what the public wants. In the end it will
be up to this Council to decide or be the referee in deciding what is acceptable and
what is not acceptable but certainly let us whatever comes out of that site visitation
to help us to make that decision in the end. Thank you.
PL COMMITTEE MEETING 36 APRIL 16, 2014
Chair Bynum: Councilmember Chock.
Mr. Chock: Mahalo, Chair. I just want to say I really
like Shawn Smith. I have met the guy. I have known him for a while. He has been
a community servant and I want him to succeed this project and so I am supportive
of him and I am also supportive of the needs of this community. I think that in that
process we have to come up with what is the best scenario. What we can actually
achieve together, not separately or due to the confines of the law. I think the
approach is really important to hear and unfortunately I was not appreciative of the
approach this morning. In just having a discussion, at least a continued discussion
about what is...I also appreciate that Falko Partners is a community partner. They
have done a lot for us on Kaua`i and they have contributed they have gone through
the motions. This is something that we need to continue to look at in order to come
out with the best solution. That is what I want to advocate for and I want to see it
through to the end. I am happy that we are looking at this lateral access now
because if we did not have the voices come out then we would not be there right
now. When I do service out in the community, and I do a lot, I do not have an
expectation for something in return. I am looking because I want to serve and I
think that is the difference here. The approach here is that we are all in the same
community and we are all here to give and try to come to the best thing for everyone
who is involved in it. The other thing that keeps coming up is this public versus
private and I understand. The Public, the County, the State we have not done a
good job of enforcement of maintenance and all of those things but on the other
hand what are the interest of the private entities too? I will be fully supportive of a
stewardship plan from the private interest that would support the protecting of our
resources but I do not see that so I think that moving forward we have to really
seriously look at the complexity of these issues, like Councilmember Yukimura said.
I just hope there is more openness to the discussion rather than just going straight
to the laws and the things that are going to continue to drive us apart rather than
together. Thank you.
Mr. Hooser: I apologize for being late. I am part familiar
with the issues and the property and I missed the public testimony, much if it but I
think I am aware of the heart of it and it is an ongoing discussion, ongoing debate
that has been going on for a long, long time. My main concern is the rights of the
public. The public today and the public tomorrow. We talk about the children and I
want the children's children as well as the people that are getting on years now to
be able to access the coastline which is their legal right to do so. Even if it is unsafe,
the State law requires transit along the shoreline above the unsafe area so if the
waves are so intense or the area is so treacherous that people cannot walk along the
coastline State law requires access to be granted, lateral access along the coast. I
think we need to look at that and we need to follow the law and we need to err on
the side of the public interest. Though most of the conversations focused around, it
seems like public access I think it is telling also that the need for farmland is so
great and the farmers are able to farm productively and commercially but they just
cannot find the land that they need so we have kind of a double edged issue if you
would. We have the public access issue and we have the use of the land for
purposes for which it was originally intended in which the Hawai`i State
PL COMMITTEE MEETING 37 APRIL 16, 2014
Constitution requires it use to be made, which is for agricultural use. I am looking
forward to visiting the property. We are going to be visiting on April 30th, 2014, is
that correct? A site visit and looking at the property again, I was there on one
previous visit but looking at it again, looking at the access that is being offered up.
I appreciate the offer of the landowners and the developer and Mr. Smith and I
agree we should be thankful for that but also we should recognize that it is a law
and it is a requirement of the law and we need to make sure that requirement is
fulfilled in the best interest of the public. Thank you all very much. Thank you,
Chair, for the opportunity to speak.
Mr. Bynum: Councilmember Yukimura.
Ms. Yukimura: Maybe we can look at t law but I am not sure
that the law requires lateral access above the wash of the waves. I think it does not
allow blocking access below the shoreline which is public property. I just want to
get that clear. Can Ian come forward?
Chair Bynum: Sure.
Ms. Yukimura: Thank you.
Chair Bynum: You have a question for him?
Ms. Yukimura: Yes.
There being no objections, the rules were suspended.
Mr. Jung: To answer that question you have to take a
look at HRS 115 and they do establish the beach access corridor however there are
areas where you cannot traverse laterally because of either steepness or hazard
then the County can go in by condemnation to take the property but they have to go
through the condemnation process. The lateral transit is in that beach corridor,
where the water itself up to the perceived shoreline is.
Ms. Yukimura: So if there is a beach that does allow lateral
access below the shoreline does the County have the right to condemn?
Mr. Jung: The County will have the right to condemn
above the shoreline but the idea...just to try and circle back why we are here in this
particular situation is there was a development proposal which triggered our
subdivision requirements. Our subdivision requirements require public pedestrian
access from a public road and that goes vertically down to what we call the beach
access corridor or where the State jurisdiction starts from below the shoreline area.
Then laterally you can transit in that beach access corridor, where the shoreline is
to where the lapping of the water begins. That beach access corridor is State
jurisdiction where you can traverse over someone perceived property or if there is a
metes and bounds description then over that area is held in the public trust.
PL COMMITTEE MEETING 38 APRIL 16, 2014
Ms. Yukimura: There is nothing in the law that enables a
condition of subdivision to be imposed for lateral access at this time?
Mr. Jung: Not lateral access. Where lateral access
comes into play is when you trigger Special Management Area (SMA) permits. If
there is a Special Management Area permit then you can look at recreation in terms
of vertical or lateral access. In this particular subdivision there is no SMA trigger
because the subdivision was done outside SMA lines because the bordering piece
where it goes down into near the makai portion where the ocean is, it is a
conservation lot. So it is conservation district not State land use agriculture. And
that is when DLNR got involved in 2007 to try to look at the issue of we have to
recognize the preservation issues here and that is why it was requested that the
trail move from what was proposed to be on the western side of the property line to
the eastern side of the property line because there was a little more habitat on the
western side versus the eastern side.
Ms. Yukimura: So if the County desired lateral access it
would either be through a dedication or donation by the landowner or a
condemnation by the County.
Mr. Jung: Right, and where we are at now working
with the landowner they were looking at having the current grant where the
Planning Commission set. So the Planning Commission sets the designation of
where the easement is going to be and then it comes before the County Council, but
it does not necessarily say Council in our subdivision ordinance, it is the County but
the Council acting on behalf of the County to indemnify the County will be the ones
who finalize it by accepting it as an asset into the County and accepting
indemnification because the County will then release the landowner from any
potential liability by the County allowing the public to go onto this particular piece
of property.
Ms. Yukimura: Thank you.
Chair Bynum: And the County assumes the liability.
Mr. Jung: Then County assumes the liability.
Chair Bynum: Thank you, Ian. Chouncilmember Hooser.
Mr. Hooser: Just a follow-up. So HRS 115-4 says
"includes the right of transit along the shoreline." That is correct?
Mr. Jung: Correct, and I think what you are trying to
refer to is the shoreline potentially (inaudible) and it all depends what you are
looking at that time and space.
Mr. Hooser: There is a section in the law and I am trying
to find it now and I cannot remember at the top of my head that says in situations
PL COMMITTEE MEETING 39 APRIL 16, 2014
when safe lateral access is not available then it use to say "shall," I think, but now
it says "the County may condemn." Do you know what section of the law that is?
Mr. Jung: I was just showing it to Hope Kallai to
explain the law to her on this issue and do not the specific cite but I can get it for
you and pass it on to Council.
Mr. Hooser: Okay.
Chair Bynum: We are going to defer this matter so we could
follow-up with these questions. Anything else for Mr. Jung? Thank you, Mr. Jung.
The meeting was called back to order, and proceeded as follows:
Chair Bynum: We were in final discussion. Do you still
want the floor?
Ms. Yukimura: Yes please. I just want to point out that
some of the concerns related to public access need to be addressed at the level of the
general plan update. It is about what the carrying capacity of this island is for both
population, residential population and visitor population because those of us who
remember growing up here when the population was thirty thousand (30,000) and
we had free access to the shoreline everywhere, pretty much. Those were wonderful
days but the circumstances are no longer the same and so if there were issues of
nude bathing I sure did not know about it back then and there is now a whole bunch
of clash of different cultures and exposure of this island to many more impacts
because just of numbers but also many different value systems. Some of them do
not fully appreciate the local culture or Native Hawaiian culture.
Chair Bynum: I am going to make some comments and...oh,
I am sorry. Mr. Rapozo, go right ahead.
Mr. Rapozo: You know I was not going to make any
comments because I have not see the proposed alignment so I do not think it is
appropriate for me to speak of that but I will say that I think access is a primary
concern for me but I also believe that the appropriate use of the resource, the beach.
As you can tell when Mr. Bettencourt testified I cannot say I was shocked when he
talked about the nudity and what was going on down there. I will say that I worked
on the north shore in the Police Department for many years and we had very few
complaints but it is sounding like it is becoming a common thing so I took the
liberty of just typing in Kaua`i nudist beaches on google and I was shocked to find
Kaua`i Beach Scoope has an actual link to nude beaches and interestingly they say,
"nudity is illegal at beaches on Kaua`i according to State park regulations. That is
the official position of the State of Hawai`i; however, as is often the case nothing is
that simple." Well it is that simple, it is illegal. It is not difficult to understand it is
illegal to be naked on a public beach. "The fact is that there are beaches that are
well known as nude, topless or clothing optional" and they go into, in this one here
they site four (4) beaches but it is interesting because they basically encourage
PL COMMITTEE MEETING 40 APRIL 16, 2014
nudity. They encourage that on this website, which I am going to see if there is a
way we can...I believe freedom of speech and freedom of the media, whatever the
heck, freedom of the internet but Lord have mercy these people are encouraging
illegal behavior on our Kaua`i beaches and I am not going to stand for that. You
have your rights, you have your rights to the beaches, to everything else but you do
not have a right to violate the law on our beaches. I am sorry. Call me black and
white. That is the reality of it. We stopped access to Hanamd'ulu Beach Park at
night because of inappropriate behavior. We stopped it. The public is prohibited
from enjoying a County asset at Hanamd'ulu Beach Park because of inappropriate,
drugs and all of that garbage. Access is one thing but if access is going to promote
that kind of behavior than I cannot support that. We need to police that up and
make sure that it is very clear that access is very important and it is required but it
has to be done in a way that is not going to encourage this kind of illegal behavior.
Some people may think that nudity is nothing. I disagree because those beaches
are for our kids. Mr. Bettencourt touched a part of my heart because I have known
him for a long time. He is not a complainer. He has never been to this Council
meeting to testify. And out of all of this I think the...and I have not spoken to him
since his testimony but what I think that bothered him the most was the nudity.
Not the fact that the resources are being eaten up or whatever. It was when he
spoke I felt that his concern was the nudity and I share that so as we go down and
go through the process I just want the public to understand I support public access.
I support a trail that the kupuna can get on and get down to utilize the resource as
they did but not one that is going encourage illegal activity. Thank you, Mr. Chair.
Chair Bynum: I know we went far field today, talking about
nudity and lateral access and I wanted to do that because this is an important
dialog to have. I am going to say something I was told never to say on the Council
floor but I grew up in California. I have been here twenty-five (25) years. In
California, when I grew up there were forty to fifty (40 — 50) miles of glorious
California coast that the public could not access unless you knew some wealthy
person who lived there. You see this on Two And A Half Men every day that Malibu
coast. That is the worst part of it. In the State of California, when I was a young
democrat, activist went through incredible things to open access. Imagine wealth
people's homes and they said you know what, you have to give five feet (5') and
these fences are going and the public is going to go to the beach. I went down there
and went on that beach that I was not allowed to be on my entire life until I was
twenty-four (24), twenty-five (25) years old. Then I moved to Hawai`i where the
State grant has fee simple interest in a lateral trail along the coastline. There are
no private beaches. It was just amazing. What a wise and wonderful State this is
that they see these as public assets things and now, in my time in the Council I
have watched that be under attack the entire time by various things. We all play
our roles and it is all true, everything you heard here today is true. Mr. Lombardi
probably is meeting the letter of the law and we need to eventually bring this to a
conclusion and we need to change the laws to meet the public needs better. You are
correct, Mr. Lombardi, and I appreciate the role that you are playing here. I am
very disappointed. This was going to be our last agricultural subdivision.
Something that our General Planner was mentioned today told us to end this
practice. Told us in 2000, fourteen (14) years ago, to end this practice and we have
not done it yet. We still creating these mansions in isolated communities with
people pretending they are farmers. We need to get to truth. We are going to move
forward with this but why would we not...what happened there in California is
PL COMMITTEE MEETING 41 APRIL 16, 2014
Papa'a Bay. We had access to Papa'a Bay for many, many years and Aunty Loke
went there and a new owner came in with more money than sin. More money than
the County budget for fifteen (15) years and said I will do whatever it takes to keep
this a private beach and beat us in court. And now we have an option to get that
access and we have empowered a Public Space Access Open Space Commission that
was frustrated on this access issues for years until Nadine Nakamura and others
put forward laws to make it clear that they could advocate, that our citizens can
advocate for these access issues. Councilmember Yukimura and I authored
legislation to give them 1.5% of our property taxes and so they are geared up. They
are ready to go. They finally have the permission to go. They are pursuing access
at Hoban right now through condemnation. That is what we need to do. Use the
powers the government has to meet the public purpose. We need to do that at
Papa'a Bay and then ironically this Commission is ready to go and it has great
members and the Mayor's budget proposal says let us take all of their money or two
thirds of their money that we committed to this away. So we have these stops and
starts. The State has failed us again. We have fee simple ownership of a lateral
trail. The State put lots of effort in. Some place it is indentified and it is there.
Nobody questions it. Other place, oh we do not know where it is. Is it a mauka? Is
it makai? Is it here? Is it there?
Ms. Marugame: Four (4) minutes.
Chair Bunum: How can it not be in our best interest for the
State of Hawai`i and the County to ensure that these things...so we do not have to
do what Malibu had to do and spend millions and millions of dollars in fighting,
legally fighting to get the access back. This subdivision goes through without doing
the lateral access and it may because it meets the letter of the law. We may
discover. I am not totally convinced of that yet but it probably because these are
really sharp people. They know how to meet the letter of the law. But how can it
not be in our best interest? If this goes through, to get that lateral access we will
have to condemn property and spend tons of money and get into legal battles with
owners. Why can some developers not come here and say let us embrace the
community. Let us have the path here because they know that (inaudible) of
Hawai`i is engaging with this incredible population and ethnic diversity we have
and then other developers come and say no let us have this private little place for
you and because we are afraid the local community we have to keep them out. The
guys who access the beach for hunting and gathering, right now you know they are
not parking at the thing and driving a mile. But when we have new ownership
people like Clint exercising their gathering rights are going to get harassed. How
do I know? It is happening all over the place. We need to get on top of this. We
need to have a big question and Mr. Lombardi is absolutely correct. We need to
make our laws more clear about what our expectations are of these people who come
here who have tons of money that they want to invest and those they have their
vision. It needs to meet the vision that we have as a community. We have a
Planning Department who is working really well now to put these things out. We
have community plans that should have been done twenty (20) years ago that are
going to do some of the things Mr. Lombardi says to give more clarity to developers.
You cannot blame a capitalist person for doing what they are supposed to do. Get
the best return on investment they can. It is up to us, the decision makers to put
the parameters in place that do it in a way that is pono and good for our community.
Thank you for letting me preach. If there is anyone else that wants to speak, if not
Chair will entertain a motion to defer.
PL COMMITTEE MEETING 42 APRIL 16, 2014
Upon motion duly made by Councilmember Kagawa, seconded by
Councilmember Yukimura, and unanimously carried, C 2013-271, was
deferred to July 2, 2014 Planning Committee meeting.
There being no further business, the meeting was adjourned at 12:33 p.m.
Respectfully submitted,
Lori L. Marugame
Council Services Assistant I
APPROVED at the Committee Meeting held on May 7, 2014:
TI NUM
CHAIR, PL COMMI ��