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COUNTY OF HAWAI'I
<br />e` , ' ° STATE OF HAWAII
<br />RESOLUTION NO. 308-12 (Draft 2)
<br />RESOLUTION PROVIDING FOR THE ACQUISITION OF
<br />EASEMENTS IN PRIVATE PROPERTY BY EMINENT DOMAIN,
<br />BEING A PORTION OF TAX MAP KEY NUMBERS: (3)2-7-004-
<br />118 AND (3)2-7-027-065, SITUATED AT PAPA'IKOU, DISTRICT
<br />OF SOUTH HILO, TO PROVIDE A PEDESTRIAN PUBLIC
<br />ACCESS EASEMENT TO THE BEACH AT PAPNIKOU.
<br />BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF
<br />HAWAII:
<br />WHEREAS, the beach at Papa'ikou is one of the few sand
<br />beaches on th'e coast north of Hilo; and
<br />WHEREAS, the beach at Papa'ikou is used and enjoyed by
<br />many residents of the island of Hawai'i, especially those living
<br />in Papa'ikou, for surfing, fishing, swimming, outdoor recreation,
<br />picknicking, spending time in nature, and for the exercise of .
<br />Hawaiian gathering rights; and
<br />WHEREAS, the beach at Papa'ikou is public property up to the
<br />high wash of the waves, as defined in Hawai'i law; and
<br />WHEREAS, the public has used paths over what is now known
<br />as Tax Map Key: (3)2-7-004-118 to get to the beach at Papa'ikou for
<br />many decades; and
<br />WHEREAS, an 1873 map, Registered Map No. 910, shows a
<br />road to the vicinity of the beach at Papa'ikou in the approximate
<br />.location of the current Mill Road; and
<br />WHEREAS, the 1979 County of Hawaii shoreline public access
<br />inventory identified an existing public access described as "Mill
<br />Road to Papa'ikou Landing through Silverton Subdivision and
<br />private lands"; and
<br />WHEREAS, Mill Roadlis currently designated as Tax Map Key:
<br />(3)2-7-027-065; and
<br />WHEREAS, the current path used by the public to get access to
<br />the beach at Papa'ikou begins at the end of Mill Road and continues
<br />through Tax Map Key: (3)2-7-004-118; and
<br />. WHEREAS, the current owners of Tax Map Key: (3)2-7-004-118
<br />assert that the path is private, and that access by the public to the
<br />beach at Papa'ikou is available only with their consent; and
<br />WHEREAS, the owners of Tax Map Key: (3)2-7-004-118 have
<br />imposed restrictions on the use of the path, including limitation of
<br />hours, and have occasionally denied use for periods of time; and
<br />WHEREAS, if the use of the path is onlywith permission of the
<br />private owners, they could place additional limits, or deny access
<br />altogether; and
<br />WHEREAS, the owners of Tax Map Key: (3)2-7-004-118 also
<br />claim ownership of Mill Road, Tax Map Key: (3)2-7-027-065,
<br />through a quitclaim deed, although owners of lots within the
<br />Silverton Camp have easements over Mill Road in their deeds,
<br />and one condition of the original subdivisions allowing the private
<br />purchase of the lots in Silverton Camp in 1952, Subdivision
<br />Numbers 566-569, was that the lot purchasers were supposed to
<br />receive undivided interests in the Mill Road; and
<br />WHEREAS, the owners of Tax Map Key: (3)2-7-004-118 have
<br />posted "Private Road" signs at the entrance to Mill Road; and
<br />WHEREAS, the public's right to use the beach at Papa'ikou
<br />cannot be enjoyed without overland access; and
<br />WHEREAS, there may be a public right to overland access
<br />to the beach at Papa'ikou based upon the Highways Act of 1892,
<br />prescriptive usage, implied dedication, or other legal means, but to
<br />establish such public rights would require litigation which could
<br />prove expensive; and
<br />WHEREAS, the path over Tax Map Key: (3)2-7-004-118, and
<br />over Mill Road, Tax Map Key: (3)2-7-027-065, is the safest and
<br />most convenient access to the beach at Papa'ikou; and
<br />WHEREAS, a survey has been completed showing the metes
<br />and bounds of the path currently used by the public over Tax Map
<br />Key: (3)2-7-004-118; and
<br />WHEREAS, Tax Map Key: (3)2-7-004-118 consists of about 16.9
<br />acres, but the path, according to survey is only about 1117' long
<br />and 10' wide, and occupies about 0.5 acres, mostly on a slope that is
<br />unusable for other purposes; and
<br />WHEREAS, a pedestrian easement over the path would allow
<br />public access to the beach at Papa'ikou, while continuing to allow
<br />the privat&owners to -have, the; beneficial use oftheir remaining
<br />property; and
<br />WHEREAS, according to County property tax records, both
<br />Tax Map Key Numbers: (3)2-7-004-118 and (3)2-7-027-065 are
<br />owned by Papa'ikou Landing, Inc., c/o James Waugh; P.O. Box 4697,
<br />Station C, Calgary, Alberta, Canada; and
<br />WHEREAS, the acquisition of a pedestrian easement over the
<br />path and Mill Road would reduce conflict between the private
<br />landowner and community members by clearly establishing the
<br />extent of private and public rights in the area; and
<br />WHEREAS, members of the community are ready to assist in
<br />the maintenance and management of a public access easement to
<br />the beach at Papa'ikou, and in the maintenance and management
<br />of the public use of the beach, and have already done so; and
<br />WHEREAS, over 5000 residents of the island.of Hawaii have
<br />signed petitions calling for public access to the beach at Papa'ikou;
<br />and
<br />WHEREAS, Section 115-2 of the Hawaii Revised Statutes
<br />provides in part that "the various counties shall purchase land
<br />for public rights-of-way to the shorelines, the sea, and inland"
<br />recreational areas"; and
<br />WHEREAS, Section 115-6 of the Hawaii Revised Statutes
<br />provides that such purchases to allow for public rights-of-way to
<br />the shorelines,.the sea, and inland recreational areas shall be made
<br />under Chapter 101 of the Hawai'i Revised Statutes, which sets out
<br />provisions for condemnation of private property, otherwise known
<br />as eminent domain; and
<br />WHEREAS, Section 101-13 of the Hawai'i Revised Statutes
<br />requires that a condemnation action by the County must be
<br />authorized by resolution; and
<br />WHEREAS, the acquisition of an easement to the beach at
<br />Papa'ikou would be in the public interest; now, therefore,
<br />BE IT RESOLVED BY THE COUNCIL OF THE COUNTY
<br />OF HAWAII, that it is necessary for a public, use and purpose,
<br />to wit: for the benefit of the public, to ensure access to the beach
<br />at Papa'ikou, to take, acquire and condemn a pedestrian public
<br />access easement over those certain private properties in Papa'ikou,
<br />District of South Hilo, identified as Tax Map Key Number:
<br />(3)2-7-027:065 as described in Exhibit "1" and through a portion of
<br />that certain private property identified as Tax Map Key Number:
<br />(3)2-7-004:118 and delineated on Exhibit "2" attached hefeto.
<br />BE IT FURTHER RESOLVED that the Corporation Counsel of
<br />the County of Hawaii be and hereby is authorized and empowered
<br />to initiate proceedings in eminent domain, as provided by law, for
<br />the taking, acquisition and condemnation of the aforesaid easement
<br />over private property.
<br />BE IT FURTHER RESOLVED that in the process of said
<br />proceedings in eminent domain, the Corporation Counsel be and is
<br />hereby authorized and empowered to negotiate terms of settlement,
<br />subject to the approval of the court before which such proceedings
<br />are prosecuted.
<br />BE IT FURTHER RESOLVED that the Director of Finance is
<br />hereby authorized to initiate any funding mechanisms required for
<br />the acquisition of said public access easements.
<br />BE IT FINALLY RESOLVED that the Clerk of the County
<br />of Hawai'i is directed to transmit copies of this resolution to (1)
<br />Papa'ikou Landing, Inc., c/o James Waugh, P.O. Box 4697, Station
<br />C, Calgary, Alberta, Canada; (2) the Honorable William R Kenoi,
<br />'Mayor of the County of Hawai'i; (3) the Department of Public
<br />Works; (4) the Department of Finance; and (5) the Office of the
<br />Corporation Counsel.
<br />Introduced by:
<br />Dominic Yagong
<br />Council Member
<br />I HEREBY CERTIFY that the foregoing resolution was duly passed
<br />on first reading by the Council of the County of Hawaii at its
<br />meeting held on November 9, 2012, by the following Aye/No/Absent/
<br />Excused vote:
<br />AYES: Council Members Ford, Hoffmann, Onishi,
<br />Pilago, Smart, Yoshimoto, and Chair Yagong — 7
<br />NOES: Council Member Ikeda —1.
<br />ABSENT: Council Member Blas —1.
<br />EXCUSED: None.
<br />Jamae K. K. Kawauchi
<br />County Clerk
<br />County of Hawaii
<br />(Note: Exhibits "1" and "2" are on file at the Office of the'Coun'ty
<br />Clerk for inspection.)
<br />Hawai'i County is an Equal Opportunity Provider and Employer
<br />(No. 68379 -West Hawaii Today: November 17, 2012)
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