HomeMy WebLinkAbout08/21/2024 Planning Committee minutes MINUTES
PLANNING COMMITTEE
August 21, 2024
A meeting of the Planning Committee of the Council of the County of Kaua`i,
State of.Hawai`i, was called to order by Bernard P. Carvalho, Jr., Chair, at the Council
Chambers, 4396 Rice Street, Suite 201, Lihu`e, Kaua`i, on Wednesday,
August 21, 2024, at 9:17 a.m., after which the following Members answered the call
of the roll:
Honorable Addison Bulosan
Honorable Bill DeCosta
Honorable Ross Kagawa
Honorable KipuKai Kuali`i
Honorable Bernard P. Carvalho, Jr.
Honorable Felicia Cowden, Ex-Officio Member
Honorable Mel Rapozo, Ex-Officio Member
The Committee proceeded on its agenda item as follows:
PL 2024-02 Communication (08/08/2024) from Council Chair Rapozo,
requesting the presence of the Planning Director, to provide a
briefing on the beach access to the area fronting the end portion
of Anini Road. (This item was Deferred.)
Councilmember Kuali`i moved to receive PL 2024-02 for the record, seconded
by Councilmember Bulosan.
Committee Chair Carvalho: I will turn it over to you.
Council Chair Rapozo: I am a non-committee member. I asked to put
this on the agenda. I think everyone is familiar with Anini Beach. I think for those
of us that were here when we were little, tiny "tots," for those of us that could not
afford to travel to the mainland, Anini Beach was one (1) of our vacation spots, as
well as Koke`e and Hanalei Pier. For those of us that went to Summer Fun back many
years ago, Anini Beach was one of the common field trips that we would go to. Anini
Beach is very special to so many of us. I had always assumed that Anini Road was a
public road. Many of you know that I used to be a police officer. We never looked at
Anini Road as being a private road. As far as we knew, it was a County road and at
some point, the County stopped maintaining the road and trash service on the road.
I honestly have not been down to the end of Anini in many years, so when I saw the
post about the blocking of...Mr. Morimoto made a post on Facebook about the access
being blocked, residents being kicked off the beach, access to the end of Anini Road
being closed, I started to ask questions and found out that maybe, private landowners
may have claimed some of the public property, and that is not right. I did not ask the
Department of Public Works (DPW) to be here, but I did ask for the records on the
maintenance and trash service because I knew, I was on the Council when it stopped.
We received a lot of calls from the residents that lived on that section of the road and
let me read DPW's response. My question was, how long has the County maintained
the road and provided trash services? "Historically, the County Roads Division,
PL COMMITTEE MEETING 2 AUGUST 21, 2024
Hanalei Baseyard maintained Anini Road from Kuhio Highway up to where the
pavement ended back Calendar Year 2012, as well as approximately nine
hundred (900) feet of unimproved road that continued beyond the paved portion, and
they have a map attached. Additionally, County refuse collection services were
historically provided for residences along the entire length of Anini Road. Due to the
short time requested for this response, we relied on anecdotal evidence." Bottom line,
that is what I remember. We did the trash all the way to the end. Also, why were
maintenance and trash services terminated? They "terminated for the non-County
owned portion of Anini Road, due to a roads-in-limbo issue."Again, I remember when
former Council Chair Jay Furfaro was here. The roads-in-limbo was a big issue. The
State does not want it, the County does not want it, but it is still a government road
and at that point, back in 2012, the County made a decision to stop all of that.
"Termination of refuse collection services for the unimproved coastal portion of the
road followed due to roadway conditions which were unsuitable for the trucks."
Basically, the County had maintained that road and collected trash for a long time
and then it stopped. When we stopped maintaining the road, it fell in disrepair, so
then we could no longer pick up trash. As I look at the maps and the testimonies from
a lot of you, and I appreciate all of you that sent in a testimony, as well as talking to
long time Kaua`i residents that are familiar with Anini, which I think is most of the
population in my area because Anini was so popular. It still is. It was clear to me
that the Council needed to take a look at this, and I know that there is a question
about jurisdiction because this is a State beach. At the end of the day, we cannot sit
back and wait for the State to do something or for someone else to do something. All
I want to do is raise awareness. My goal is to have the State do a shoreline survey
and have that survey be delineated so that everyone knows where the State property
ends. This is not just for Anini, but around this island. Any landowner that tries to
claim State land, they need to stop. The Council needs to go back and reclaim that
land, take all of their 'opala and fake vegetation off and put that beach back for the
locals to use. It is simple, so that is why we are here today. Councilmember Carvalho,
hopefully, at the end of the day, we will have enough information, and the State will
listen and do that certified shoreline survey (Shoreline Certification), so that we can
once and for all determine where the State property ends. There is also an issue about
the road, but I do not know this. Until there is a shoreline survey, I would not be
surprised to find that the road is in the State right-of-way. Until we get that survey
done, we just do not know. That is Step 1, and I am hoping that this meeting will
encourage the State to move forward quickly and get that survey done. With that,
thank you, sir.
Committee Chair Carvalho: Thank you. Are there any other members?
Councilmember Cowden: I have a little presentation, but I can...
Committee Chair Carvalho: What is this for?
Councilmember Cowden: ...my agenda item. Let me know when it is a
good time.
Council Chair Rapozo: I did ask Mr. Morimoto, because he has done
a lot of research. He is registered as a speaker, and he has a presentation as well,
Councilmember Carvalho.
PL COMMITTEE MEETING 3 AUGUST 21, 2024
Committee Chair Carvalho: Okay, so we will have Mr. Morimoto come up
and do the presentation first.
Councilmember Kagawa: After that presentation by Mr. Morimoto, will
we have Planning Department as well? I want to see not only the public's point of
view on what the situation is, but I also want to see the County's point of view, even
if we have maps to show exactly what is State and private. Like you stated, Council
Chair Rapozo, Anini Road has been a lifestyle for a lot of us not from the North Shore
and we need to preserve access and fishing rights. Thank you.
There being no objections, the rules were suspended to take public testimony.
PETER MORIMOTO: Good morning, Councilmembers. Thank you
for taking on this issue. My name is Peter Morimoto. I am a registered voter, and it
is an election year, which is why I raised the issue. For over a hundred (100) years
and since at least 1892, Anini Road provided public access to Anini Stream and the
big channel that allows boats to get past the reef and out into deep water. Depending
on the conditions, you can swim, fish, dive, surf, and kayak on that stretch of beach.
Recently, and I have been told that it was in 2020, someone put up a guardhouse and
a gate across the road, essentially cutting off access to the stream and channel. They
replaced the gate with cones, but they still restricted the public access. There are
boulders on the beach that prevent the public from putting their boats and
watercrafts into the channel. Often, commercial beach chairs and surfboard stands
are placed on what appears to be public property. There are two (2) issues that I want
to bring to your attention. First, this is a public road under the Highways Act of 1982.
I have some photos here. This is a screenshot (shot) of Bing Maps of the area. This is
Princeville and Anini Beach at the top. This is a shot of the same area from Google
Earth, and you can see all the subdivisions have been graded. "Scape the aina," as
we say. This is a close up from Bing Maps of where Anini Stream meets Anini Road.
This is a Google Earth image of the same area, and you can see all the runoff in the
stream going out into the ocean. This is a screenshot from the Kaua`i County Tax Map
website (site) and that lot that is in blue, in the middle there, is owned by the State
and it is past the area where they coned off and put the guard, so I do not know how
that happened. This is the gate. Someone sent me this picture. I did not take these
photographs (photos). I think Ms. Pacheco sent me this one. Here is another one
without the gate, but with some sort of vehicle. Here is a map of Hanalei done by
W.A. Wall in 1893 and this is a closeup of that area and you can see the road going
across the stream at that point. Here is another map by Wall done in 1903. This is a
close up of the area. Again, you can see the road crossing Anini Stream and going up
towards Princeville. Here is another map from 1907, the Hawai`i Territory Survey of
Anini Kuleanas and Government Land, and as you can see, there is a road again
going towards the stream. This is a subdivision map of Princeville Ranch done in 1968
by R.M. Towell and this is a closeup of that same area. You can notice that the road
stops right where it says Anini Government Reserve and then it continues on past
that. That is an interesting one. I do not know how that happened, but they made the
road disappear. This is a photo of the area just beyond where they post the guard,
and you can see the surfboard stands on the beach. Here are some lawn chairs, beach
chairs that they put up. Notice that the grass here is really green and lush-looking,
it is because they put dirt and planted the grass on what appears to be public
property. Here is another photo of the area, sort of a "before" picture. Here is another
"before" picture. Here is an "after" picture, and another "after" picture. This is a
passage from the Diamond v. State Case, and kudos to Caren Diamond for suing the
PL COMMITTEE MEETING 4 AUGUST 21, 2024
State. Basically, it talks about where the shoreline is located and the reason why that
is important is because the shoreline determines public property. There are two (2)
ways to determine the shoreline. One (1) way is by the vegetation line and the other
is by the wash of the waves, so in this case, this owner planted, dumped dirt, and
artificially planted vegetation to enlarge the vegetation line and make the vegetation
line go makai of what the actual shoreline was. The court said that is wrong and you
cannot do that, merely planting artificially vegetation does not determine the
shoreline, so they decided that the shoreline would be determined by the upper reach
of the wash of the waves. I think what needs to happen here is...we have to, as Council
Chair Rapozo said, determine where the shoreline is because that would determine
where public property begins. This is from the Hawai`i Administrative Rules (HAR),
Section 13-221-2 and it talks about unencumbered lands, which includes beach and
coastal areas. This defines commercial activities. For the purposes of this statute or
rule, it means the use of or activity on State land for which compensation is received
by any person for goods or services or both rendered to customers or participants in
that use or activity, and it goes on. Commercial activities include activities whose
base of operations are outside the boundaries of the unencumbered State lands or
Kaua`i transportation to or from the unencumbered State lands. Here is the rule that
prohibits any commercial activities without a permit. This is from the Kaua`i Special
Management Area (SMA) Rules and Regulations. It says no person shall be allowed
to conduct any use, activity, or operation on lands located within the SMA, which may
significantly impact coastal waters or related coastal resources, without first
obtaining a SMA permit, so I think what needs to happen here is that someone needs
to look into this, determine where the shoreline and public property is, and figure out
whether an SMA permit and a permit from the Department of Land and Natural
Resources (DLNR) is needed to conduct those activities, on what I believe is State
property. The second thing is that the road cannot be closed off to public access. It is
a public highway under the Highways Act of 1892, and I believe that there is a law
against obstructing public access. I need to look it up and I will share it with the
Council if I find it. What is happening down there is that they are privatizing this
beach and it is a microcosm of all the issues facing Hawai`i, especially Kaua`i. You
have the "one percenters"that are trying to squeeze off the local people from resources
that they have had access to for generations and that is wrong. I am hoping that in
this election year, you people will do something about it. Thank you.
Councilmember Kagawa: For me, it is nothing about election. I never
thought about of myself of doing more during an election year. I just do what is right.
Have you brought your concerns...you have a lot of experience, a lot of respect, you
have worked here a long time. Did you bring your concerns to the Planning
Department and the Mayor and what was their response?
Mr. Morimoto: You will hear, hopefully, from community
members who brought this to the attention of the government back in 2020.
Councilmember Kagawa: Was it to Mayor Kawakami?
Mr. Morimoto: I do not know to whom. To the Planning
Department, correct?
Councilmember Kagawa: The Mayor, being an avid surfer and avid
supporter of the fisherman, I am surprised that the Mayor has not responded because
it is a travesty. I have not encountered the blockage, so I personally did not know
PL COMMITTEE MEETING 5 AUGUST 21, 2024
about it until now. Anyway, I am pretty shocked and I would hope that the message
you presented with all the facts is conveyed to the Mayor. I am sure that he would do
something about it. As far as the grass being planted on the beach and access being
blocked, I think that the Mayor would do something.
Mr. Morimoto: To put it in the bluntest terms, whoever made
the road disappear for five (5) years, going on five (5) years, has a lot of"juice," you
know what I mean. Thank you for taking this on because you are "bucking" someone
with "juice." Look into it and find out what is what. Thank you.
Committee Chair Carvalho: Members, any further clarifying questions?
Councilmember Cowden: No, I have a lot to say, but I will say it on my
own.
Committee Chair Carvalho: Okay. Thank you, Mr. Morimoto.
Councilmember Cowden: Thank you, Mr. Morimoto.
Committee Chair Carvalho: Is there anyone else in the audience wishing
to testify? We will open up now.
Councilmember Cowden: Are we going to hear from Planning
Department?
Committee Chair Carvalho: After.
Councilmember Cowden: I have a whole presentation also that might
add something.
Committee Chair Carvalho: I would rather do the members first.
Council Chair Rapozo: I would recommend doing the public
testimony because I think the public may have information that we can...
Committee Chair Carvalho: That we can use.
ROSLYN CUMMINGS "MANAWAIAKEA": Aloha no, my name is Roslyn
Cummings also known as Manawaiakea. My experience is that we sued the Governor
for two (2) years in a row on the Emergency Proclamation and then Mr. Morimoto
was a representative of the (inaudible) in Koloa for development, so what he says is
true. When you have money involved, it is not an easy fight, so stopping small things
is not hard, but something like this, where you can clearly see if you go down there,
the privatization. Our family goes down there because I know of burials in the area.
I am a ho oilina of Keali nui who has a pretty much a keli ahinui under his name. I
am here for the people actually. What is happening is detrimental to the health of the
people. Anini became very desolate. I was born in 1983. My father used to take us
down there because he is a surfer. I come from a (inaudible) family. I take my kids as
much as I can down there because I do not want them to lose that connection to the
area. If we talk about mental health and talk about the vision given to me by God, we
are going to have an increase in suicide no matter what age because of disconnection
to the aina. Things like this is considered violations of laws, so I am going to go down.
PL COMMITTEE MEETING 6 AUGUST 21, 2024
On the record, for the record, notice to agent is notice to principal and notice to
principal is notice to agent. I am one of many heirs, descendants, Mo`opuna Ho`oilina
who has inherit birth rights to aina as a (inaudible) Patent 11215, not above nor
below, as equals, with kuleana, I see that there is an illegal representative in the
room. People need people, so unjust enrichment and argument of Trust Law cannot
be at the benefit of corporate interest like PRW Princeville Development
Company, LLC or any corporations over kanaka public interest, especially not hoa
`aina native tenants kuleana land holders, so unjust enrichment came up in the
lawsuit pertaining to the State vs. Maunakea. Basically, the government cannot put
corporate interest above public interest. If someone is receiving money, then that
could be an unjust enrichment. The Kanawai written by Kanaka for Kanaka,
based on the rights of kanaka, the people written in the Bill of Rights in 1839, a right
cannot be taken, but a privilege can, because it was given. In the Hawai`i
Revised Statutes (HRS) Section 7-1, right-of-way, so this is where the right-of-way
access comes from. It is the oldest written law in Hawai`i. It refers to the Civil
Code 1859, 14-77. In the Law of 14-77, right-of-way, no new law right to access cannot
be taken away because the Constitution is already protecting it. In the event that you
are arrested, because of trespass, no one can take from you what God has given. In
Section 172-11, Law 1872, Chapter 21, Section 1, was revised in 1897 Republic Law.
(Inaudible) the kingdom sealed document by Virtue of Law. Living descendants, laws
are made to protect you. Officers do not know the law, so if the officer in the courts
should not and cannot make an arrest out of ignorance or indifference. How many
times should we be confronted by officers and or any warranty deed holders ignorant
in their offices...
Committee Chair Carvalho: Can you hold off?You can come back up again
for an additional three (3) minutes.
Ms. Cummings: I was actually going to close...are a danger to
our lahui.
Committee Chair Carvalho: Mahalo for your testimony. Madam clerk, is
there anyone registered to testify?
SHARI RABAINO, Council Services Assistant I: No.
Committee Chair Carvalho: Is there anyone else in the audience? Please
come forward and you have three (3) minutes to testify. There is a green light and a
yellow light, it means thirty (30) seconds.
JADE HAUNANI PACHECO: Aloha, my name is Haunani Pacheco. I live in
Kilauea and my family has more than one hundred (100) years of history in Anini. It
was a place that people did not want to go to because it was so remote, but now it has
become the place where people want to go. The ocean was our "ice box." Let me tell
you that...I work for Princeville Corporation for nineteen (19) years, and we have to
pick...during those days, you needed to choose jobs and Princeville saved Kilauea.
They employed all the people, retrained them, so they could work on the golf courses
and had a job because they had to buy homes. In those days, too, there were
designated areas of visitor destination areas (VDAs) that would be developed as
tourist bases. One (1) was Princeville, the other was Waipouli and the others were
Nawiliwili and Koloa, where we had VDAs. The difference in tourism during that
time, because I have been in that business for a long time, was that tourists would
PL COMMITTEE MEETING 7 AUGUST 21, 2024
come to Kaua`i. I worked for inter-island resorts that was Kaua`i Surf, Islander on
the Beach, and they would run tours through Kaua`i for two (2) days, so they would
bus them in. They would check-in, they would go to Waimea. The next day they would
go to Hanalei, they put them on the bus, take them to the airport and they would be
out of here, so very little impact on any of our landscape on Kaua`i. They dropped
their money and left. Then you folks all allowed them to come into our neighborhoods,
which was a very big mistake because now, we are feeling it. I warned the County
about this many years ago. It is not only in the VDA, but it is in all of our
neighborhoods now, where all the taxes are rising because the value of properties are
rising because they are able to charge whatever they want to charge to be in those
areas. You can rent, rentals in Anini were twelve thousand dollars ($12,000) a week,
which again raises the value and makes the taxes higher, which again makes all of
us...
Committee Chair Carvalho: You have the red light; you can come back if
you want for an additional three (3) minutes. Great job. Is there anyone else in the
audience? Come forward. State your name.
ROBIN KUTKOWSKI: I am Robin Kutkowski. I was born and raised
out in Anini. I would like to ask for the State to get involved with the survey. I think
that would be a really great first step and I would absolutely support that. The grass
situation, I think is something to look at, as well. If we could remedy the grass once
the survey gets done, because the grass is now considered their property and there
are personal belongings like chairs and other things. I personally have not been asked
to leave from that place, but I have;had the cones up and was not able to go down to
the end in different circumstances and things. Another topic is that the area is being
a pretty dangerous area for drownings and things, like the back channel there, so
there needs to be the access for fire trucks and ambulances to be able to come down
there accessibly and the traffic there is insane with all the potholes and everything.
It is intense to get down there in the first place. That is an area where people do
drown, so that would need to have more public access maintained and managed. It
just worries me, the progress that has been made in the last few years, what is to
come with that area, because we know that there are large plans, so now, I think is
absolutely the appropriate time to get involved and see if this road is government
property. I wonder why it has taken this long for it not be serviced. That is all I am
going to say today.
Councilmember Kagawa: I have a clarifying question. You said "they,"
have efforts been made to question if this is their property and do they defend that?
Ms. Kutkowski: Things that I follow. Yes, people are asking
why you are assuming ownership of this area and...I am not exactly sure.
Councilmember Kagawa: The "they" that we are talking about, are they
absent owners who have property managers?
Ms. Kutkowski: No, the "they" they are talking about is the
North Shore Preserve and the Princeville Corporation. Jeff Stone, right?
Councilmember Kagawa: Is it Jeff Stone's property?
PL COMMITTEE MEETING 8 AUGUST 21, 2024
Ms. Kutkowski: I mean he is the owner of the North Shore
Preserve and they have the business homes there and another spa home in the back.
Councilmember Kagawa: Thank you. That answers a lot of questions.
Committee Chair Carvalho: Is there anyone else in the audience wishing
to testify? State your name. You have three (3) minutes.
K. HOKU CABEBE: Aloha, Hoku Cabebe. I am sure, I mean
maybe some of you are not as familiar with this, but we definitely should be familiar
with. This is not just an Anini Beach problem, this is a Kaua`i problem. Zuckerberg
pretty much "blew that up" from the get-go, so it is pretty much from the same thing,
right, or no? Pretty much. That is like she said, KOloa, you know what I mean. Maybe
the Westside, one of the least, except for the genetically modified organism (GMO)
companies, owning and blasting, and pretty much ruining all of our beaches. The
mountain to the oceans, same thing. Now, they are taking over the beach, but their
golf course has been ruining Anini reef for generations. We barely fish over there.
Why? Because of all that runoff that comes off the golf course, I am sure. It does not
take a scientist to figure that out, which I am not. It is just atrocious and sad, and it
is some billionaire humbug that has taken over our island, all the way out to Ha`ena.
Thirty (30), forty (40) years that our family had to fight to even get Ha`ena and now,
it is Anini. You have to go through all of that just to protect an area. It is sad how
hard we need to fight and to come here and even do this is atrocious. I barely can get
out of bed this morning because how? Just the "juice" and money, it does not take a
scientist to figure out what is going on down there. It should not take a whole island.
Representative Nadine, Representative Evslin, you folks already know. This is not
something new on our island. I love Mr. Morimoto's presentation, but "duh," or is it
just me? Thank you, folks, for bringing this up and hopefully, we can clean up this
billionaire humbug that is "stinking up" our whole island.
Committee Chair Carvalho: Thank you. Is there anyone else wishing to
come forward and testify? Planning Department is going to come up after.
Council Chair Rapozo: The reason that we are taking public
testimony first is because if you folks have any questions, then it is much easier to
get it before Planning Department comes up, so they can address the concerns.
Ms. Pacheco: I guess the meeting is regarding access and
we are losing our accesses, mainly Pila`a, Larson, Secret Beach, Kahili are all in
jeopardy because we are losing all those accesses on the North Shore. On
January 2, 2022, I filed a complaint in regards to Jeff Stone blocking the access to
where my cousin lives. She could not get home that day. They put in the gate, and I
contacted Representative Evslin and he actually came down to look at it and was
working on it. He sent me a couple of maps that said the property owner can put a
gate at the beginning of his property, and he was looking into it. He gave me a name
and I have it in my phone and of course, we went through the pandemic and the whole
thing. At the day I went down to check, they had trucks there, a roller, and people
working on the road and beach. I have pictures of that. I can tell you who they were
and so, he came down and got them to take out the gate that was at right at the entry
of that area. I just want to let you know that my grandfather, when he lived down
there, he tried to block the road himself. He put a gate, a chain across the road and
Mr. Chism filed a complaint, at that time, with the DLNR, and there are records of
PL COMMITTEE MEETING 9 AUGUST 21, 2024
that in our file with the DLNR. The reply came back to him that he had to remove
the chain because it was a public road, because that road used to go back and there
is a government road that goes up on the top, that probably used to be the very old
road before. Then I understood that they bought the government road on the top. You
see, I work for Princeville. I know that the problem was that they could not have yet
have access down to the beach and they were wanting to get down to Anini from way
before. Of course, now, it is a whole different "ball game," a whole different owner.
Now, they are developing the western plateau, when we are doing, we were pretty
much on the eastern plateau.
Committee Chair Carvalho: Thank you so much for your testimony. Is
there anyone else in the audience wishing to testify? Maka'ala.
MAKA`ALA KA'AUMOANA: Aloha, Maka'ala Ka'aumoana, for the record,
in protest because I like to wait until after Planning Department. This is an example
of how we lose our culture, how we use our information, how we lose our practices,
and how we lose our knowledge. This area, at the very end of the road is personal for
me. We have ohana lands there and we, for generations, have fished there. I, in my
own lifetime, have fished kala there. Pelehu kala is aunty's favorite, so losing that
access is huge, but more importantly, this is serving as an instruction, as an example
for us all over Kaua`i that you cannot plant the beach. Caren Diamond has been
fighting this fight solo for decades now. Let us hui up and make this the shining
example of how you not treat the beach. It is not your beach. I have focused on this
area in recent times more related to monitoring for sea level rise and I have seen it
myself. The debris line of the high wash of the wave, which is the legal definition for
shoreline, mauka of that road. The debris was actually in the North Shore Preserve
property at this, what they are calling "The Beach Club." It was on that lawn, so if
we are going to push them back, get a survey, push them back to what is the truth
today. This is how we are going to save our accesses, and this is how we are going to
protect our people from sea level rise. It is important that we use this place as a
textbook, an example to our residents and government folks that this must occur. I
will tell you that from personal experience, requesting a shoreline survey of the State
is a very long process. They wait for a surveyor to fly over. You need to press the speed
button on this. DLNR takes a long time. It is just their capacity issue, but if you say
no, that this must be done immediately and to do it now, they will come. They come
with a team, and they must inform us of when they come. They will Caren know.
They will let me know. They will let you folks know, and we will all go down there
with our evidence, because they do not necessarily come on a day when the debris
line is visible. This is personal to me and I am trying to be helpful here and use this
as an example for all of Kaua`i, and all of Hawai`i. The law is the law. Mahalo.
Committee Chair Carvalho: Thank you, Maka'ala. If there is no one else in
the gallery wishing to speak, we will call Planning Department to come forward. I am
sorry. You can come back up and have your additional three (3) minutes.
Ms. Cummings: Roslyn Cummings, again, for the record. I
have been in court since 2019, trying to fight for our rights. The reason why law is
important is because when you go to court, the judge will utilize the law, so if
Kingdom Law does not exist, then the statutes does not exist. HRS Section 7-1 has
Civil Code 1859, so HRS Section 7-1 includes building materials, water, landlords'
titles subject to tenants' use. Where the landlords have obtained, or may hereafter
obtain, allodial titles to their lands, the people on each of their lands shall not be
PL COMMITTEE MEETING 10 AUGUST 21, 2024
deprived of the right to take firewood, house-timber, aho cord, thatch, or ki leaf, from
the land on which they live, for their own private use, but they shall not have a right
to take such articles to sell for profit. The people shall also have a right to drinking
water, and running water, and the right-of-way, so the law is written in here. The
entire area has become desolate due to the water diversions and populations from
developments. I have fought development in Hanalei, and I have had someone who
worked in PRW Princeville Development Company, LLC admit to me that why are
making such a big deal over five (5) burials when they did Princeville, there were
bones every eight (8) to ten (10) feet. We numbed out society at this point and
ignorance to law is not an excuse, but our cultural practices are being lost every single
day. I am forty (40) years old, and I have seven (7) children. My grandma taught me
to fish at Anini and she taught me about waterways. I have a hard time teaching my
children the same thing because of access, so I urge you folks to please look up the
law itself, because it must be upheld. As far as planning goes, there is an excuse that
we need to be notified before Planning Department...that is not an excuse. Anything
that is new condition that is introduced to Planning Department, must be obtained
to the point where the Planning Department has to pull and process their permits.
There are many laws that are being violated in these agencies. It takes a person
one (1) year to just go through files for one (1) development area. That is how long it
took me, so I urge you folks to please take this matter seriously in the capacity that
you can. Mahalo.
Committee Chair Carvalho: Mahalo. Thank you for your testimony. Now,
can we have the Planning Department come forward? Hi, Jodi.
JODI A. HIGUCHI SAYEGUSA, Deputy Planning Director: Good
morning. Jodi Higuchi Sayegusa, Deputy Planning Director. I have to apologize in
advance. Our Director has been more intimately involved in this particular issue. He
personally went out to Anini last week, along with our inspectors. He could not be
here. He provided notice in advance that he was not able to be here, so you have me,
but to the best of my ability, I can provide the information that I gained over the
couple of days to get up to speed on this issue. I think the previous presentations by
Mr. Morimoto has provided a lot of information that we agree with. There is a map,
that is up currently. At the end of the pavement is where the County considers its
right-of-way. Beyond that, the gravel road is within State unencumbered lands, but
clearly there is access there. It is a public access that goes all the way to the other
side of that property that had the cones. The property that came up, that had the
cones and formerly had the gate, is not actually an easement granted through the
State, so there is reserved public access through that easement to the other side,
which is State unencumbered lands. That is adjacent to the stream, so there should
be access, we agree.
Committee Chair Carvalho: Can you use the pointer?
Councilmember Kagawa: It looks like you are pointing, but you do not
have a pointer?
Ms. Higuchi Sayegusa: This is the property where...this property
expands makai of this easement and mauka, yet there is an easement through this
property here to reach State unencumbered lands here, and this is the stream. It is
public access. Right now, there are cars and people can access the beach, and folks
are parking along this area here. Sorry, it is hard to see. It is a little zoomed out.
PL COMMITTEE MEETING 11 AUGUST 21, 2024
There is parking happening here, but again, this is an easement, and this is State
unencumbered lands. I understand that there are boulders placed here and it was
placed there by the State. It may or may not, and this is just my understanding to
date, it may or may not have been in response to possible homeless issues. I do not
know. I cannot speak for the State as to the exact reason, but that was one (1) of the
thoughts, that it was in response to homeless. Let us see. That is my understanding,
to date.
Councilmember Cowden: I have a question, and I wonder if I could use
the pointer. I actually have been asking questions for a number of years and definitely
when Aunty Haunani raised that issue, I sent letters to Planning Department. Right
here, I noticed there is a kuleana land that belongs to Kevin Pike, so he has kuleana
right there. I believe that right here, we have the owner of that property sitting in
the room. I might have that one right, so access down there is something that is
important. I had looked at this at the time, right here at this area, and on the qPublic
site for Real Property Tax (RPT), it said PRW Princeville Development Company.
Ms. Higuchi Sayegusa: Which one?
Councilmember Cowden: Right here. This was assigned on our RPT
qPublic site, it had it to Princeville, so I immediately called Mike Loo and Jay Furfaro,
and asked what is up with that? They said that they had gotten it and when I looked
at the report section of qPublic, it had a date in there of when it had been assigned. I
had fits over that. They are both my friends, but I could never find it on the Board of
Land and Natural Resources (BLNR) piece and now, our,County qPublic site does not
name reports on any of the road properties. I was looking for this here. Do you know
what is up with our qPublic site, why it does not? That is something that I would like
to find out. I guess when it is my turn, I will bring more up then, but my question
is...I guess I asked my question and you said that you did not know. Up until very
recently, because I have been watching and addressing this issue for five (5) years,
we have another person in the room here that I have been addressing it with for...this
had already said Princeville. I just do not understand why now it is not there, on the
road, on the report. When I have my presentation, I will ask a little more.
Councilmember DeCosta: Thank you for being in the hot seat, Jodi. My
question is, Mr. Morimoto brought up some old land maps that showed Anini Road
traversed all the way up to the stream. I know that road exists because when I was
small boy, we would poke prawn, hihiwai, malut and moi. That was a very precious
area. What has happened? Do you know from the time that Mr. Morimoto's map that
showed the road? How can we not take that road now? Your picture does not show
that road, but the maps that Mr. Morimoto presented had a road. Who is responsible
for removing roads from maps that you provide before the Council? How does that
happen? What division has the right to look at maps and either install or remove a
road?
Ms. Higuchi Sayegusa: I do not know.
Councilmember DeCosta: That is what I want to know. What happened
to that road? The road ends now, over there, but the road used to go up quite a bit of
ways.
Ms. Higuchi Sayegusa: I do not know what happened.
PL COMMITTEE MEETING 12 AUGUST 21, 2024
Committee Chair Carvalho: Councilmember Kuali`i.
Councilmember Kuali`i: Very simple, when you were talking earlier,
you were talking about that property within the black box. Did you say that the
property includes, and the black box shows it...you said that it includes of all of this
property mauka of the road and that little bit of property makai of the road?
Ms. Higuchi Sayegusa: Right.
Councilmember Kuali`i: It would not have always been that way
because that was a government road and you would think the government owns the
road.
Ms. Higuchi Sayegusa: Also, this morning, we were able to find the
old tax map key (TMK) maps, so this sort of reflects. According to our records, this is
the end of Anini Beach road here. This is an old government road and here is that
property that reflects an easement here, and so these are sixteen (16) lots that were
carved out within this subdivision. This government road is within the "quote
unquote" State unencumbered land area.
Councilmember Kuali`i: Would you not say that if you look at that
map, the part this is makai of the road seems very significant compared to what you
actually see, because one (1) of the testifiers had stated. too, that the water debris
would come up even mauka of the road. If that is true, even way back when, why
would that, makai of the road, be private property?
Ms. Higuchi Sayegusa: Are you talking about this road here?
Councilmember Kuali`i: Yes. Well, here or there.
Ms. Higuchi Sayegusa: This is just a reflection of the historic TMK
map, the condition that existed when this subdivision was carved out. You are right.
As time goes on, the evidence of the historic upper reaches of the waves were washed.
That is what delineates State lands versus private property lands. That is why we or
the State requires a State certification to delineate which lands are public, State
unencumbered lands versus private property lands. When we are talking about this
property, and this is the sliver of green where there are lawn chairs, etcetera. Yes,
there is clearly a need to be delineate which is public, State lands now and still private
property, which is why there is a need to follow-up and work with the State to get a
certification done, based on the historic evidence of the upper reaches of the waves of
the wash.
Councilmember Kuali`i: Would you be initiating that?
Ms. Higuchi Sayegusa: That is part of the issue. I do not know of any
process where it is landowner led or requested, but that...
Council Chair Rapozo: This would be the first.
Ms. Higuchi Sayegusa: This is something we have been working. As
for Planning Department, we do not necessarily...if there is a proposal like a SMA
application or other structures, yes, we do require a certification before we accept an
PL COMMITTEE MEETING 13 AUGUST 21, 2024
application. We do not ever become a party to request a certification. It is just
pursuant to review of our permits that process has to be done.
Councilmember Kuali`i: But not only does the private landowner come
to the Planning Department to initiate the process to evaluate and make the
determination, the public can go to the Planning Department, right? We would take
a community nonprofit or entity. Does it have to be some entity? We are the County,
right?
Ms. Higuchi Sayegusa: It becomes an issue on the State regulating
their properties, the State unencumbered lands. Any encroachments within the State
unencumbered lands. Much like we have jurisdiction to regulate what goes on our
beach parks, that is our jurisdiction and lands, but there is an issue or could be an
encroachment or things that are existing in State lands, that is a State regulation to
regulate what goes on in their areas.
Committee Chair Carvalho: Thank you. Councilmember Kagawa.
Councilmember Kagawa: Again, Councilmember Cowden stated that
she has been sending correspondence for five (5) years. What has been accomplished
in five (5) years?
Ms. Higuchi Sayegusa: Again, in my limited couple of days in getting
up to speed, we did have complaints based on the blocking of the roadway, to which
we agreed this is a public roadway.
Councilmember Kagawa: Did you folks have inspectors go out and tell
the gentleman that the gate needs to be open?
Ms. Higuchi Sayegusa: As far as I know, yes, but we also had to loop
in State because again, that is a State access easement to the unencumbered lands.
Councilmember Kagawa: Just letting the State know that you would be
going out on their behalf and notifying the owner that access needs to be open. Was
that gate to prevent homeless at night or something, like at Mahaulepu Beach?
Ms. Higuchi Sayegusa: I do not know what instigated the gate.
Councilmember Kagawa: They probably read the map and said that the
easement is on our property, and we can protect the rights of our property and figured
that they could put that gate up, then found out that the gate is illegal. The more
important question is, even for Mr. Matthew Bracken, having heard and seen what
Mr. Morimoto has presented, some of the illegal questions, the need for an immediate
survey, is there going to be some sort of meeting with the Mayor to say that a
Councilmember has been saying for five (5) years, Hoku folks have been saying "no
brainer," do you see some sort of meeting taking place where we can take action and
try to preserve the rights of our local fishermen and beachgoers? Families like yours,
your father-in-law goes to Anini every Labor Day.
Ms. Higuchi Sayegusa: To my knowledge, the Planning Director has
already reached out to the State to see what we can do to address these access issues.
PL COMMITTEE MEETING 14 AUGUST 21, 2024
Councilmember Kagawa: Thank you. Certainly, Jeff Stone can own
whatever he wants, but he cannot take away what is not his. We need to set the rules
down right now and stop all this nonsense about trying this or that and seeing if I
can get away with it. Just set the rule now and protect the folks without money, so
that they can have what they deserve. Thank you.
Committee Chair Carvalho: Council Chair Rapozo.
Council Chair Rapozo: Thank you for being here, Jodi, and I
apologize that you had to come on short notice, but who enforces the SMA law on
Kaua`i?
Ms. Higuchi Sayegusa: We do.
Council Chair Rapozo: The County, not the State.
Ms. Higuchi Sayegusa: Yes.
Council Chair Rapozo: Does the Planning Department have the
ability and authority to go out and enforce the public access laws?
Ms. Higuchi Sayegusa: You are right. I think as I have sat here, we
are taking note of issues that we probably need to investigate as far as the activities
in the SMA.
Council Chair Rapozo: I am extremely frustrated, not at you, Jodi
because you were not here five (5) years ago, but this is my first attempt to try and
resolve this issue. In five (5)years, we could not even go down and do an investigation.
We could not even go down there and look at what was the problem. Is there an SMA
permit for that location?
Ms. Higuchi Sayegusa: I would have to check what exactly was
permitted.
Council Chair Rapozo: Now, based on what you saw today, the
testimonies from the residents, and even some Councilmembers, we know that the
upper reach of the wash is well above that nice green patch of grass that has been
artificially planted, which is against the law.
Ms. Higuchi Sayegusa: Right. Not only that, SMA...there is
jurisdictional issues between the State and County, but yet we do regulate the SMA.
Council Chair Rapozo: Correct. I keep hearing about the State. Let
us focus on what the County can do. We regulate the SMA law in the County. My
question again, it is the violation of the law to artificially expand the vegetation. That
is not my law, it is the State law. Does the County have the authority to enforce that
law?
Ms. Higuchi Sayegusa: Yes, under the SMA, any placement of
materials or structures within the SMA, would require an SMA permit.
PL COMMITTEE MEETING 15 AUGUST 21, 2024
Council Chair Rapozo: That is not the State's responsibility to
enforce.
Ms. Higuchi Sayegusa: Correct. I am just saying...I am not
necessarily only blaming the State. I think that State involvement is inevitable and
necessary to fully tackle the issues that we have heard.
Council Chair Rapozo: That is the next step, but my question is, what
is in the County's toolbox right now, that we can go down there to take care of the
problems that are existing?
Ms. Higuchi Sayegusa: Right, but if the issue is...there are various
things, right. As far as I know, the access is...again, this is just my understanding is
from the last couple of days, the cones were removed, and the security guard clearly
cannot be diverting people. There is already access next to the property in question.
It is really whether there is also access down the road onto the State unencumbered
lands with the boulders, and the State put the boulders there. There are various
issues that need to be tackled.
Council Chair Rapozo: Jodi, I am not interested in what the State is
doing or not doing. Today, the discussion is on the County. We have had complaints
where the public was kicked off the beach. We heard complaints of people not being
allowed to go into the public access. There is a law, right? Is there a law? I think
former Councilmember Gary Hooser, many years ago introduced a bill or law that I
believe was athousand dollar ($1,000) a day fine for any private landowner who was
blocking public access. Who is charged with enforcing that law?
Ms. Higuchi Sayegusa: I can say that from Planning Department's
perspective, again, we do regulate the SMA, but whether that allows us to regulate
against the security guard being there...it is tricky. We have had situations where
folks put up lawn chairs during the day for a couple of hours, every day, but whether
that is a structure within the SMA, I am just saying that it gets tricky with the
gradation of the uses.
Council Chair Rapozo: It is not tricky when they are blocking access.
They could have ten (10) security guards up there and watching, but when they block
our community from going in, that is a violation of the law. My question is who is in
charge of enforcing that law. Is it Planning Department, DLNR, or the Kaua`i Police
Department (KPD)? I do not know and I am asking the question, because those
violations have already occurred, but there was absolutely no penalty, no citations,
nothing. I am just trying to understand.
Ms. Higuchi Sayegusa: As far as I understand, the previous
complaints on access that Planning Department dealt with, we have involved the
State to have the State go and enforce their easement, to open access again. That is
how Planning Department has used the power that we have in order to address that
access issue.
Council Chair Rapozo: I guess I am trying to figure out where the
County's power end and the State's begin or is there dual authority as far as
enforcement. Thank you.
PL COMMITTEE MEETING 16 AUGUST 21, 2024
Committee Chair Carvalho: Councilmember DeCosta.
Councilmember DeCosta: Sorry to ask these difficult questions. The
question that I want to ask is, do we have the right as a County to impose a fine on
an area that has an illegal structure post or gate? Do we have the availability as the
Planning Department to issue a fine?
Ms. Higuchi Sayegusa: Yes.
Councilmember DeCosta: Thank you. I think we did that with the Grove
Farm fence that went down to Mahaulepu Beach. Now, that gate is obstructing an
access. How can we not go there and impose a fine or just remove the gate?
Ms. Higuchi Sayegusa: Again, I have to sit down...
Councilmember DeCosta: I know, but I am just saying that you
recognize that we have that power.
Ms. Higuchi Sayegusa: ...and look at all the previous enforcement
files of what happened, but yes, if there is a structure that is fixed in the SMA, then
yes...
Councilmember DeCosta: The last question that I have for us. On
Kaua`i, do we allow gated or gates to block off communities to be on another side, in
any subdivision, any access area from Kekaha all the way to Ha`ena? Do we, as
Kaua`i, allow gates to exist where folks cannot go in and out?
Ms. Higuchi Sayegusa: That cannot go in and out? I cannot speak to
the whole island. I do not know exactly.
Councilmember DeCosta: I can tell you that we do not, but I just wanted
to say that for the record.
Committee Chair Carvalho: Councilmember Bulosan.
Councilmember Bulosan: Just the same thought process, but with the
grass. I am assuming that is a State issue.
Ms. Higuchi Sayegusa: Again, the placement of materials and things
that are fixed to the ground, yes, that is within the SMA purview.
Councilmember Bulosan: Thank you.
Committee Chair Carvalho: Councilmember Kuali`i.
Councilmember Kuali`i: Can you put up slide 5 from Mr. Morimoto's
PowerPoint? Anyway, on that slide, it shows the property and beyond the property,
you had mentioned it too, the blue box is State property. Then they would have to go
through that the access easement, the government road...in the handout, it has a
blue box, but that is okay. Basically, towards the stream side of the property that we
were talking about in the black box, that the government access road goes through,
there is a State property, you said.
PL COMMITTEE MEETING 17 AUGUST 21, 2024
Ms. Higuchi Sayegusa: Yes.
Councilmember Kuali`i: Is it DLNR?
Ms. Higuchi Sayegusa: I am sorry...the end of the road?
Councilmember Kuali`i: At the end, closer to the stream?
Ms. Higuchi Sayegusa: I believe that it is managed by DLNR, Land
Division.
Councilmember Kuali`i: All I am asking is whose property is it, how is
it used, and what is Planning Department's record of the allowable uses on that
property?
Ms. Higuchi Sayegusa: I cannot speak to...I do not think there are
any permits in our possession.
Councilmember Kuali`i: Is it conservation land or something?
Ms. Higuchi Sayegusa: Mr. Morimoto put up the statute that
delineates the unencumbered land and secluding beaches.
Councilmember Kuali`i: Even then there, where the State property is,
then there is other property in the back. Is that private property?
Ms. Higuchi Sayegusa: Which one?
Councilmember Kuali`i: Whatever this is here.
Ms. Higuchi Sayegusa: I am sorry. Are you asking if that is a private
property?
Councilmember Cowden: I think that the owner is in the room.
Councilmember Kuali`i: Then, does the County then have...what is the
use of that property? Obviously, they have to go through that road to get through to
their property, like the public would need to use that other State property, which is
not being used. Maybe you can just follow-up and figure out if DLNR is holding onto
it or if they subleased it to anyone. I guess it just takes some follow-up.
Ms. Higuchi Sayegusa: Clearly, again, I think we all agree that this
is a public access.
Councilmember Kuali`i: And two (2) more public lands.
Ms. Higuchi Sayegusa: Yes.
Councilmember Kuali`i: Including the stream, I guess, which is there,
not just the ocean.
Ms. Higuchi Sayegusa: Yes.
PL COMMITTEE MEETING 18 AUGUST 21, 2024
Councilmember Kuali`i: Okay. Thank you.
Committee Chair Carvalho: Are there any other questions for Planning
Department? Just one (1) more question. Bottom line, is the SMA permitting process
under the County, Planning Department? I just want to make that clear.
Ms. Higuchi Sayegusa: Another option within the Planning
Department's or actually the Council's purview is, of course, the Open Space Fund
and that is a fund that can be used to purchase access, acquire coastal lands. That is
one (1) option. Of course, it should go through the Open Space Commission and the
proper vetting, and ultimately if it is approved by you folks, that fund could be used
to purchase that sliver of property, possibly condemn it, most likely condemn.
Committee Chair Carvalho: Council Chair Rapozo.
Council Chair Rapozo: Or the Council could initiate the eminent
domain proceedings without going through Open Space to make it a lot quicker.
Ms. Higuchi Sayegusa: Right, but it is a pocket of moneys. Yes, and
the Open Space Fund...
Council Chair Rapozo: We would use their money.
Committee Chair Carvalho: Members, are there any more questions for
the Planning Department? If not, thank you.
Councilmember Cowden: I have a simple PowerPoint that I would like
to show that I think will show and will add a lot. This might help Mr. Morimoto. Can
I do that?
Councilmember Kagawa: Is this part of the ten-minute discussion that
we have? I do not want to set the policy now, but if it is not your item because you are
from there, you can have more time to speak than the other members.
Committee Chair Carvalho: We will just leave it here. Just call it back to
order here.
There being no objections, the meeting was called back to order, and proceeded
as follows:
Councilmember Kagawa: I am curious. It sets precedents.
Committee Chair Carvalho: I am telling you, let us do it that way. Further
discussion here at the table with the Councilmembers.
Councilmember Kagawa: This is not a political forum.
Councilmember Cowden: Okay, I will try not make a political forum,
and I did ask the Council Chair, but I guess not. Can I put up my little presentation?
I will"whip through" it quickly. I have been focused on this for a long time and I think
I have something to add here, and I will try to make it go very fast. Did you folks get
a copy of my presentation?
PL COMMITTEE MEETING 19 AUGUST 21, 2024
Council Chair Rapozo: You gave me one (1) copy. I am not sure if the
other members received one.
Councilmember Cowden: I saw that they were printed out. Allison, do
you have them? Did someone hand them to you? The Historic Trail System present
at the ili of Anini in Hanalei. Public Access on Pre-1892 trails and roads are secured
by 1892 Highways Act and HRS Section 264. The Historic Trails are held in trust by
State unless disposed of according to HRS Section 171. The Historic Alanui trail
system at Anini has not been relinquished by the State nor has the access on it. The
next slide is a map. This map came, I believe from 1833, and this shows all the alaloa.
This map was made by a woman. Can I just say, yay girls. This is done by a
missionary and so, if we flip to the next page, the American Board of Commissioners
Foreign Missions (ABCFM) Calvinist Mission showed where with the little blue dots
on this next slide. You see the little triangles and blue dots, these are churches and
outstanding meeting houses, so we see between the Waioli Mission in Hanalei and
the next square up in Anini, which is right next to this, I think they are calling it a
"snack surf house." They have a little school there and then outlined missioned house.
The next slide, again, we are seeing where these churches are between Hanalei and
Anini. They had a road, an alanui that went in between these two (2) places and this
is the early maps. We have one (1) more little one. We really went through a lot of
effort to look at the paperwork and the assignments that came there. They called
(inaudible) a little bit, that was another word for the area. Here is the Highways Act
of 1892 and the part of it in the Chapter 264-1(b) for the HRS. You all have a copy of
it, but when we have been asking about the pertinent laws, and I sent to
Mr. Morimoto since he asked, HRS Section 115 is the coastal access law and HRS
Section 115-9 is specifically about not blocking beach access. Something that I sent
as a question to the Planning Department and the Office of the County Attorney, this
is Uncle Teddy Blake at the Hapa Trail. He sued and what came out of that lawsuit,
is that it is up to the State. The County cannot assign a road to a private entity. It
has to go through BLNR and relative to Princeville, right now, it is empty on that
road on the County website, but if it did go to Princeville from the County and I see
no record of it in the State, it is probably still a road-in-limbo and does not belong to
this property here. Since it is my style, I called Jeff Stone, and I always try to talk to
whoever might be impacted. I want to hear from both sides. He was super helpful.
Hope and I went down to the property on Monday and met with their team. We did
talk about this. This is a picture of the high wash of the shoreline, the waves, the
sand comes over. I will show you another picture in a moment where it does not just
to this property, but many properties, so we have to be a little careful if we decide
that the high wash of the wave is where it ends. Sometimes, it ends in the middle of
yards and even into the back of people's garages, up against their house. I want to
say that his team was great. They were super helpful. We had the documents there
and we were looking at the history of the elements. We talked about the State putting
the boulders there. This is an area that I do spend time at, and the State put the
boulders there to keep the houseless community away. I did go, somewhat
door-to-door, asking people a little bit to the East how they felt. There were mixed
feelings. Some were very unhappy with the closing. Others appreciated the security.
I did talk to the team there about the security because I will tell you that I have been
blocked walking along the beach and was told to get off the beach. The security system
did not know who I was, not that I am somebody special, but I did pull rank and tell
them that they cannot tell me to get off the beach. I challenged that. I do go down and
I talk to the team there about going down there when there is a high wash of the
waves and I see fresh raking and the grass comes back way faster than could ever
PL COMMITTEE MEETING 20 AUGUST 21, 2024
possibly happen. I do not recall that in the history for grass being there, they were
actually amazingly good. They were like, "hey we are totally fine if people are walking
on this road, walking through there." They were hoping and feeling that the white
picket fence was very relevant.
(Councilmember Kagawa was noted as not present.)
I copied Haunani Pacheco because you have something good to say here. It
says, "my ohana has lived in wanini for over one hundred (100) years. This past
Thursday, the road to the end of the road was blocked off for public access. Those of
you who go to the end of the road to picnic and fish are not able to drive to it." She
speaks about what it is there. I know that I have a very short period of time, but I felt
that her point was very important. All this, we need to go to the BLNR, Na Ala Hele,
Aha Moku, The Office of Hawaiian Affairs (OHA), State Historic Preservation to do
a Cultural Impact Assessment, Ka Pa`akai Analysis and Shoreline Certification
before any sort of disposal of a historic trail, but I would say at least with the crew
there, from Jeff Stone's office, they said "we do not want to take it away." What I do
know is who might be working one (1) day is not necessarily what might be the case
in two (2) or three (3) years, but I was really encouraged and I communicated with
Jeff. After the communication, he was behind it. It was tense, but positive, so what I
would like to happen is that these things works. We get the process of creating that
confirmed win-win and we talked about what can be talked about a cart trail. I
learned that it was Princeville that turned the word from "highway" to "cart trail,"
but if you come up next to The Westin Princeville Ocean Resort and there is a guava
road that I think is really for birds pooping on the fence. It is like there is a tree tunnel
and a guava tree tunnel. All of that needs to make sure is held in perpetuity as our
historic trail. Then, Christiane, I gave you those other two (2) pictures. There are
two (2) more pictures that are...I had pictures that were in someone's house because
this is important to me where you can see how far up the high wash of the waves
goes. Here is a picture of one (1) house. See how the sand comes across and into
someone's place and there is a next picture. This is another area, and I had gone in
there while they were cleaning it out. Another friend of mine, they were sweeping
this out, so if we were to say that the high wash of the wave is absolutely the
shoreline, then we are going to be taking away...really, you can see that it would have
gone into the living room right here. The high wash of the waves can be really extreme
down there in Anini, but guaranteed, it goes over the road and pretty regularly, I will
go down there after a big surf, and you can see all the little pieces of wood that have
gone into the yard. Okay, did I miss my time period?
Committee Chair Carvalho: Yes.
Council Chair Rapozo: We have to take a caption break, unless we
can wrap it up.
Committee Chair Carvalho: Can we wrap it up?
Councilmember Cowden: We had a break because we were taking
pictures.
Council Chair Rapozo: It was not a ten-minute caption break. I would
say that we should take the caption break.
PL COMMITTEE MEETING 21 AUGUST 21, 2024
Committee Chair Carvalho: We will do a caption break at this time for
ten (10) minutes and then we will bring this issue back to the floor.
There being no objections, the Committee recessed at 10:37 a.m.
The meeting was called back to order at 10:50 a.m., and proceeded as follows:
(Councilmember Kagawa was noted as not present.)
Committee Chair Carvalho: We are at final discussion here at the table.
Members, I know Council Chair Rapozo will wrap it up...
Council Chair Rapozo: I do not know if I will wrap it up. I am not a
Committee Member.
Committee Chair Carvalho: I know. We can have other Members speak
first.
Council Chair Rapozo: If anyone else would like to go first...
Committee Chair Carvalho: Let us start with Councilmember Bulosan.
Councilmember Bulosan: I want to thank Chair Rapozo for bringing
this issue to our Council and having this in our Committee Meeting. This was a tough
one. Like many local people who were born and raised in Lihu`e, not living on that
side and not being rich, our excursions with family were to the North Shore and to
the Westside. Those were our memorable moments as a family. At that end of the
road, we have a lot of camping memories and I have a lot of memories there. To see
these photographs (photos) are a travesty. It is breaking my heart in every possible
way. Having a newborn at five (5) months thinking that he will not experience the
things that I had experienced as a kid and hearing the many testimonies sharing the
testifiers'perspectives on practicing their culture and practicing their livelihood...the
best one was where one of the testifiers said this is a "no brainer," and the "duh" was
so loud in my head that it hurt. I am at the point where the County must take
immediate action as soon and as quickly as possible, so I am open to every suggestion
that is on the table, many of which were extreme in which I am definitely open to.
Committee Chair Carvalho: Councilmember DeCosta.
Councilmember DeCosta: Thank you. Where do I begin? I will tell you
where I will begin. I will look out into the community right here and recognize Pearl
who sat on the Public Access, Open Space, Natural Resources Preservation Fund
Commission from 2003 to 2005. We spoke about this issue. We spoke about many
open space accesses mauka to makai. Pearl and I spoke about a very important
issue—open space in Kalaheo. I want to reference this because we spoke to Alexander
& Baldwin to try to negotiate, and in good faith, we tried to talk to landowners. I was
not a Councilmember, I was just a Public Access, Open Space, Natural Preservation
Fund Commission member. In good faith, they said, "Yes, we will open it to the public
and let the hunters go." Do you know where that access is today? It is absorbed into
a subdivision that was sold to a billionaire, and that Kalaheo mountain access is gone,
because that is what happens when we turn a blind eye, and think we can negotiate
and hold people in good faith. The Kobayashis, the Hermosuras, the Horiguchis, the
PL COMMITTEE MEETING 22 AUGUST 21, 2024
Ornellas', the Pachecos, the Olanolans, and the Hamadas. They are all friends of my
father from when I was little. We would go out to the North Shore. I am not a Westside
politician, I am a Kaua`i politician. When I look at this, I am really worried that gate
is still standing...that access. That gate should be removed, dug out, and put back to
its natural state. Yes, there may be some homeless individuals who traverse through
there.
(Councilmember Kagawa was noted at present.)
Councilmember DeCosta: There are other ways to deal with those who
are homeless than to block off access to our local people. When I saw the road, it does
not even go to the last two (2) properties. Those last two (2) properties should have
an available road going through. The stream should be available for us to park our
vehicles, and if they are there, we should be able to get °o°opu, hihiwai, and prawns.
Do you know what happens to our generation? It skips one (1). Our children, and our
mo opuna will not be able to go down to that stream. They have not for a generation.
When we lose that, then we lose that sight,just as Mr. Peter Morimoto showed us the
land map with the road and the County's new land map does not have the road.
Somewhere along the line, government officials let that road disappear. I am sorry
that Ms. Jodi Higuchi Sayegusa is the person who was called on, because she has not
been working for the County that long. You can go back decades to see that this is a
problem. Let us fix the problem, let us rewrite the wrongs, and let us get our accesses
back. There are a lot of accesses that still need to be available, not only makai, but
also mauka—mauka right in Kilauea, mauka, Unit "C," above the billionaires. It is
all open for access with County easements that are in language since the 1970s, yet
they are not opened. We let it be absorbed by those agricultural (Ag) owners, then
there is a generational gap where information is lost, and unless you know people
within the Planning Department and the Administration, to be able to get the
information, because we are not smart about that...Ms. Higuchi Sayegusa is the
smart one. She is the person who can pull the information and help us, unless we
have community members, like Mr. Morimoto or Ms. Roslyn Cummings, who came
forward with old maps, or like Ms. Pacheco with her testimony of one hundred (100)
years. Let us not lose any more accesses. Let us get back everything for our people.
Thank you.
Committee Chair Carvalho: Vice Chair Kuali`i.
Councilmember Kuali`i: Mahalo nui loa to Chair Rapozo for asking for
this issue to be put on the agenda, and mahalo nui loa to the folks who came forward
and shared all their testimony, especially to Mr. Morimoto and Councilmember
Cowden for sharing the maps and some of the research that you folks have done to
see all the historical things. Public access is absolutely a critical priority for our
fishermen, hunters, gatherers, families, and our kids. It is actually for the way of life
for many of us, right? I grew up in a poor family. We did not go away on vacation. We,
as some said before, went to the North Shore and Hanalei Bay, we went camping with
the Pacheco and Kimura family, and we went to Anini and all of that. It has been a
long time since I have been there in that way, but that is how we were brought up. I
think this public access issue across the island is critical for our families and our
future, so we have to do what we need to do, work with the State. I do not think the
County and the State can do this thing where one says, "It is for you to do," and the
other says, "No, it is for you to do." They just need to work together and get it done,
because that is what the people demand and deserve, and maybe every instance is
PL COMMITTEE MEETING 23 AUGUST 21, 2024
going to be a little different, and if we have cooperative landowners, even better, but
we have to make sure that these types of pictures do not show up. It is troubling to
see that the people would be inhibited from accessing their own public lands, whether
it is along the coast or mauka. It is just important that we do what we need to do. I
am hopeful that after today we will get some follow up from the Planning Department
and the County will pursue this further to make sure that...Aunty Haunani
(Ms. Pacheco) not only mentioned this specific place in Anini, but also mentioned a
whole list—Pila`a, Larson's Beach, Kahili. We can go across the entire island and find
different examples from what the testifiers shared. I think it is important that we
stay on it and follow up. Thank you.
Committee Chair Carvalho: Councilmember Kagawa.
Councilmember Kagawa: Thank you, Chair Rapozo. First of all, I want
to thank Ms. Higuchi Sayegusa. I think she has done a tremendous job stepping in
for Mr. Hull and other staff who may have spent more time with this. Her humbleness
and her wisdom were great. Thank you, Ms. Higuchi Sayegusa. I also want to thank
Mr. Peter Morimoto for, obviously, spending a lot of time telling us some of the
history, and for giving us arguments about why this is so important and why we need
to do something about it. Our hope here at the Council is that when an issue like this
is brought up...if Mr. Morimoto were to do this presentation and talk to the Mayor,
the Mayor would get his team on it and "nip it" if it was five (5) years ago,
two (2) years ago, or five (5) days ago. However, the progress has obviously not
happened and there are still questions and outrage. Is this going to be a lingering
problem with this rich developer who has money? If I was to meet with him, my
conversation would be very different from Councilmember Cowden's. I would tell him,
"I know you have money, but I expect you to...if you want to be part of the community,
you need to give more than you are entitled to, because it goes a long way to make
peace with the middle class and the poor to let them have more rights than they had
prior to your ownership. That would show the community that you have all the money
and you can buy this, but at least you can be trusted on some level. If you do not see
that, it will be typical scenario where you have the money, you will do whatever you
want to have what you want, and forget about the people." I may not come from the
North Shore, but I taught special education for eighteen (18) years and driver's
education for ten (10) years at Kapa'a High School. I know the North Shore
community, especially the younger generation that I taught. I know them well, so I
care about the whole island, even though I am from the Westside. I am a Westside
boy, so the Westside folks will call me all the time. Maybe they called Councilmember
Cowden for this issue, but when the issue is brought up to a Councilmember, I think
the key is that in the future we need to give everyone a chance. If nothing happens in
five (5)years, then perhaps you need to call me instead, because it is about the results,
right? It is about the results. If you are five (5) years away and we are here, maybe I
could have done something more in two (2) years. It is just giving everyone a chance,
because we do not need to hog or be possessive about one (1) issue being ours that we
are going to cure. Together, as a team of seven (7), we need to figure out a way to get
this thing to the Mayor, so he can get his team to work together and accomplish what
was before and what will be for the future, which is total access and even improved
access. This is not to disrespect transient vacation rental (TVR) owners and their
residents. Local people are not like that. We do not trespass on property, we respect
property, but we make sure that they do not take more away or treat our residents in
ways that make them feel uncomfortable, because the beach is a right. It is a privilege
for our residents for forever, and we need to protect that. I remember my first night
PL COMMITTEE MEETING 24 AUGUST 21, 2024
diving experience. I was about ten (10) years old, it was at Anini Beach, and we had
that heavy cast iron diving light that had about ten (10) D cell (D) batteries inside
and would last about four (4) hours before just going out, so if you went for more than
four (4) hours out there, you would be in the darkness. In the old days, everyone slept
early, so it is sort of spooky. There were no lights. You do not know where the lights
are. It is a picture I cannot get out of my mind, because Anini was so colorful, it was
like Jacques Cousteau looking at all these beautiful colors of coral, fish, and seaweed,
but it is nothing like that now. It is brown, yellow, or whatever color the water
becomes after a flood, and it does not have the abundance of fish or lobsters. We could
be choosy. Now, I think the kids shoot whatever they can see, otherwise they will be
diving for hours and not take anything home to eat. Basically, I think if our kids are
middle class or poor, they eat everything that they catch. There is no waste to me
even if they shoot something that is undersize, but as long as they eat it. It is the
memories of Anini that go back that we need to somehow improve that aspect as well.
We need to bring that back to how it was before. I think this Council needs to once
again get our Mayor to do something rather soon—do the surveys, remove the grass
in the case that it is on beach property, issue fines to discourage that action in the
future...big fines, not small fines...and give the money to improve Anini Park. My
family camped there this week. It was a big family gathering, and they had a
wonderful time. Thank you to the North Shore people for always hosting the Eastside
and Westside people who, like Council Chair Rapozo said, do not have money. For
those who do not have the money to go to the Mainland U.S., Anini is their
Disneyland. Mahalo. Contact all the Councilmembers in the future, because, like I
said, we all work in different ways, but I feel I am results-driven. Thank you, Chair.
Committee Chair Carvalho: Again, mahalo to all of you for coming in and
testifying. This whole discussion about Anini is very important for all of us,
family-wise, politically, and overall, with taking leadership by working closely with
Planning Department and making sure we follow through on everything that we
discussed here. That is an important part. Access, Special Management Area (SMA),
or whatever the permitting process is. I know we can go on and on, but I appreciate
all the discussion. Be assured that we will follow through by working closely with the
Planning Department, and of course, with the Administration taking a lead as well,
and the Council providing support. It is a team effort. That is what I am hearing right
here. I just wanted to say that upfront, a lot has been said already, and be assured
that there is a commitment by this side to move forward. At this time...
Councilmember Kuali`i: I have one more point before you go to him.
Committee Chair Carvalho: Go ahead.
Councilmember Kuali`i: I forgot to say this. I was happy to hear
Councilmember Cowden say that she has a relationship with Mr. Jeffrey Stone, that
working with his team was great, that they were helpful, and that they did not want
to take the access away. The only thing I would say to Mr. Stone and his team is
please do not even give any type of appearance that will look like you are inhibiting
the public from accessing the area. Remove all cones, stop parking the all-terrain
vehicle (ATV) at the entrance, remove surf racks and boards from the beach, remove
the furniture, chairs, and tables and put it on the white side of the fence on the mauka
side of the road, and have your guest of whoever enjoy it there. If they go on the beach,
they have that right, too. They can carry the chairs with them and sit there, but when
they leave, they should take it back with them, so that it does not look like you are
PL COMMITTEE MEETING 25 AUGUST 21, 2024
putting your presence there as if you own it, because you do not. It is the beach.
Personally, I am okay with you helping to maintain the beach, but do not put yourself
on there like you own in. In fact, in the future, if the Planning Department shows us
how...there was talk about public access moneys and trying to buy that piece of land,
it is the beach, so I ask you, Mr. Stone, to donate that piece of land that is makai of
the highway and makai of the ironwood trees. There is nothing makai of ironwood
trees that should be public lands. Obviously, the ironwood trees are there to protect
to private lands mauka of that from the sea breeze and all of that. It is a small piece
of land that is an extension of the beach. The pictures show that very clearly. Whether
we see grass or sand, it is literally just feet...not far from the ocean. The sand comes
up in the high wave time and it is just very clear, so let the public enjoy that, please.
Committee Chair Carvalho: Council Chair Rapozo.
Council Chair Rapozo: Thank you. First of all, thank you
Mr. Morimoto for posting that on Facebook. I think it was Ms. Cabebe who said we
should all be aware of everything that is going on. Unfortunately, we do not know
what we do not know on this body. Maybe some Members know, but I can honestly
tell you that I did not realize `Anini...I have not been down there in a long time, but
I did not realize it is as bad as it is. As Councilmember Kuali`i said, seeing these
pictures is quite disturbing. When I came back to being on the Council a year and a
half (1%) ago, Councilmember DeCosta came up to me and said he really wanted to
focus on public access, and that he had been unsuccessful in his prior term for
whatever reason. We immediately submitted a request to the Planning Department
and we received a list of all the accesses that the County has, and it is,a lot. There
are a lot of accesses that need to be reclaimed. We are working on about four (4) of
them right now, but then Anini popped up. When I saw the Anini issue and when I
did my research, I realized that this was the one we needed to attack first, because
in my opinion, it was the most egregious. That is how this all started. A lot has been
said today, there were a lot of pictures and stories, and it is very easy to get tangled
in the weeds with something like this and to start making excuses. There is no excuse
for this. There is simply no excuse. I mentioned about the public access law that was
passed...thank you, Mr. Bracken. It is HRS Section 115-9. I will read it. "Obstructing
access to public property. A person commits the offense of obstructing access to public
property if the person, by action or by having installed a physical impediment,
intentionally prevents a member of the public from traversing a public
right-of-way...this qualifies...a transit area, a public transit corridor..." I think they
may be talking about roadways "...a beach transit corridor," yes "...and thereby
obstructs access to and along the sea, the shoreline, or any inland public recreational
area. Physical impediments that may prevent traversing include but are not limited
to gates...that is one...fences, walls, constructed barriers, rubbish, security guards,"
uh huh "...guard dogs or animals and..." this is the one that I think we need to act on
right now, "...a landowner's human-induced, enhanced, or unmaintained vegetation
that interferes or encroaches within beach transit corridors." That is exactly what is
going on at Anini. This is even better, because I thought it was a civil thing.
Obstructing access to public property is a misdemeanor. It is a criminal offense. It
means you can go to jail. In other words, that security guard can be arrested, whoever
planted that grass can be arrested and should be arrested. That is the law. I
appreciate efforts to negotiate, but our County has lost accesses, as Councilmember
DeCosta talked about, because we have miserably failed at negotiating with
landowners. I am not interested in negotiating. When it is our right and our land,
what is there to negotiate? I am serious. What is there to negotiate? Give us back our
PL COMMITTEE MEETING 26 AUGUST 21, 2024
land and we will give you something. No. In other words, get your things off or you
will be arrested. You will not be cited; you will be arrest. That is how. That is the
approach that needs to be taken, and this is a great example of where to start. We
have lost so many accesses. I can sit here and talk about Anini, the aweoweo, shining
the light at night to see the lights glitter, how you can throw your pole in the water,
and I think I said in a meeting last year that you did not need to put bait on the hook.
You just threw the hook in and you caught the aweoweo because...I do not know, I
guess they eat metal. Mr. Morimoto did a lot of research. Mr. Morimoto is well-
respected, I consider him an expert, and he gave us every reason of why we should
act, as did many of you. I have worked with sending memoranda to DLNR when there
was the alaloa controversy in Moloa`a where Mr. William "Bill"Aila flat out said, "We
are not interested in pursuing alaloa." It is not your option. The alaloa is the alaloa.
He was the Director at the time, but even if you are the Director, you do not have the
right to say, "We are not going to pursue it." No, that is the alaloa. That is on the
maps. You cannot give that away. We cannot negotiate giving away our rights to our
public accesses. It is wrong. This extension of the shoreline by the property owner...he
plants the grass...Councilmember Kuali`i, I am not sure if you were with me and
Ms. Caren Diamond. We saw irrigation pipes and tubes in the ground. I ripped them
all out. Call the cops. It was so egregious and disrespectful for the landowner to
actually plant naupaka and put in irrigation hoses to water them so that his or her
property could be extended, taking away our public access to the beach. That is wrong.
As I am finding out and remembering, it is also a criminal offense. I love that it is a
criminal thing. Ms. Higuchi Sayegusa, the answer to my question is, "If it is a criminal
matter, then we would probably call the KPD." That is the clue to all of you. If you
are ever bothered by anyone at any public access, call KPD, then call me, and I will
make sure the police officers do their job. Once you arrest a couple of these people, it
will stop. I am not very optimistic about getting any help from the State. I am not. I
do not think they care. First of all, Committee Chair Carvalho, I will ask that this be
deferred for two (2) weeks rather than received it for the record. In two (2) weeks, we
will have Mr. Hull, DLNR, BLNR, the Office of Conservation and Coastal
Lands (OCCL), and whoever we need to get in the same room and at the same time,
so this matter can be clarified once and for all. I am asking for that for the next
Committee Meeting and to keep this item going. This is what I would like to see and
this is what I encourage my colleagues to support: (1) Investigate and enforce existing
laws at Anini. Send someone out there right now, send the police officers. From the
photos, we know where the shoreline is, and we know where the upper reach of the
wash is. I understand Councilmember Cowden's comment that the upper reach of the
waves might be extreme. In some cases, it is, but that is not in place because we are
trying to protect the rights of the property owner. That is in place because we are
trying to protect the property owner's life and property, and we do not want to see
their homes and structures in the ocean. That is why we have that, so we have to use
it. I am not talking about the upper reach of the hurricane. With the way the statute
reads, I think it is seasonal, so it is during the winter. It is the highest reach during
the winter, not that of a hurricane. You are not counting that. The highest reach of
the wave during the winter season is where the shoreline should be. Is that my
twenty (20) minutes? Can I get one more thing in? .
Committee Chair Carvalho: One more.
Council Chair Rapozo: We need to get the State to do the shoreline
survey. If they do not, I have asked Mr. Bracken to look into if the County can. I
believe the County can. I think the County can request and pay for the shoreline
PL COMMITTEE MEETING 27 AUGUST 21, 2024
survey. I think we need to start looking at exercising the County's right of eminent
domain for that area. We will start exploring that, as far as condemnation of that is,
then the County can condemn what it wants, and can make it a vehicular access with
a parking lot and a bathroom. The County can do a lot of those things if it goes down
that road. Thank you, Committee Chair Carvalho.
Councilmember Cowden: Can I ask a follow-up question? If you look at
past practices, this has been a problem for so long. I would watch it along Hanalei. I
would work with Ms. Diamond, too. I would call her up and work on it with her. They
move. We have strong landscaping companies who extend the vegetation line
fifteen (15) feet for two (2) weeks around five (5) properties, then two (2) weeks later,
they do it again, and again, and again, so people get forty (40) feet onto their property.
You lose all that place to play with your babies on the beach. This has been a problem.
This has been a persistent problem for a long time. I was complaining when my
children were babies. I think we definitely need to look at `Anini, but we need to
consider how to do this everywhere, especially along the North.
Committee Chair Carvalho: As Council Chair Rapozo said, we will follow
up on all the others, making sure we bring it back, revisit everything, and bring it
back to the table. Without any further discussion...
Council Chair Rapozo: I would ask that there be a motion to defer it
and the same item will show up again.
Committee Chair Carvalho: We can move to defer so we can relook at
everything again and bring it back to the table.
Councilmember Bulosan moved to defer PL 2024-02, seconded by
Councilmember Kuali`i and unanimously carried.
Committee Chair Carvalho: With no further discussion for the meeting, I
would like to adjourn this meeting. Are there any closing remarks?
There being no further business, the meeting was adjourned at 11:18 a.m.
Respectfully submitted,
Shari L. Rabaino
Council Services Assistant I
APPROVED at the Committee Meeting held on October 2, 2024:
BERNARD P. CARVALHO, JR.
Chair, PL Committee