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HomeMy WebLinkAboutRES 308 Draft 02 2010-2012J�tr.os ~1!r c ' � COUNTY OF HAWAII STATE OF HAWAII art 60 ;F MnN RESOLUTION NO. 308 12 (DRAFT 2 ) A RESOLUTION PROVIDING FOR THE ACQUISITION OF EASEMENTS IN PRIVATE PROPERTY BY EMINENT DOMAIN, BEING A PORTION OF TAX MAP KEY NUMBERS: (3)2-7-004-118 AND (3)2-7-027-065, SITUATED AT PAPA`IKOU, DISTRICT OF SOUTH HILO, TO PROVIDE A PEDESTRIAN PUBLIC ACCESS EASEMENT TO THE BEACH AT PAPA`IKOU. BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII: WHEREAS, the beach at Papa`ikou is one of the few sand beaches on the coast north of Hilo; and WHEREAS, the beach at Papa`ikou is used and enjoyed by many residents of the island of Hawaii, especially those living in Papa`ikou, for surfing, fishing, swimming, outdoor recreation, picnicking, spending time in nature, and for the exercise of Hawaiian gathering rights; and WHEREAS, the beach at Papa`ikou is public property up to the high wash of the waves, as defined in Hawaii law; and WHEREAS, the public has used paths over what is now known as Tax Map Key (3) 2-7- 004-118 to get to the beach at Papa`ikou for many decades; and WHEREAS, an 1873 map, Registered Map No. 910, shows a road to the vicinity of the beach at Papa`ikou in the approximate location of the current Mill Road; and WHEREAS, the 1979 County of Hawaii shoreline public access inventory identified an existing public access described as "Mill Road to Papa`ikou Landing through Silverton Subdivision and private lands"; and WHEREAS, Mill Road is currently designated as Tax Map Key (3) 2-7-027-065; and WHEREAS, the current path used by the public to get access to the beach at Papa`ikou begins at the end of Mill Road and continues through Tax Map Key (3) 2-7-004-118; and WHEREAS, the current owners of Tax Map Key (3) 2-7-004-118 assert that the path is private, and that access by the public to the beach at Papa`ikou is available only with their consent; and WHEREAS, the owners of Tax Map Key (3) 2-7-004-118 have imposed restrictions on the use of the path, including limitation of hours, and have occasionally denied use for periods of time; and WHEREAS, if the use of the path is only with permission of the private owners, they could place additional limits, or deny access altogether; and WHEREAS, the owners of Tax Map Key (3) 2-7-004-118 also claim ownership of Mill Road, Tax Map Key (3) 2-7-027-065, through a quitclaim deed, although owners of lots within the Silverton Camp have easements over Mill Road in their deeds, and one condition of the original subdivisions allowing the private purchase of the lots in Silverton Camp in 1952, Subdivision Numbers 566-569, was that the lot purchasers were supposed to receive undivided interests in the Mill Road; and WHEREAS, the owners of Tax Map Key (3) 2-7-004-118 have posted "Private Road" signs at the entrance to Mill Road; and WHEREAS, the public's right to use the beach at Papa`ikou cannot be enjoyed without overland access; and WHEREAS, there may be a public right to overland access to the beach at Papa`ikou based upon the Highways Act of 1892, prescriptive usage, implied dedication, or other legal means, but to establish such public rights would require litigation which could prove expensive; and WHEREAS, the path over Tax Map Key (3) 2-7-004-118, and over Mill Road, Tax Map Key (3) 2-7-027-065, is the safest and most convenient access to the beach at Papa`ikou; and WHEREAS, a survey has been completed showing the metes and bounds of the path currently used by the public over Tax Map Key (3) 2-7-004-118; and WHEREAS, Tax Map Key (3) 2-7-004-118 consists of about 16.9 acres, but the path, according to survey, is only about 1117' long and 10' wide, and occupies about 0.5 acres, mostly on a slope that is unusable for other purposes; and WHEREAS, a pedestrian easement over the path would allow public access to the beach at Papa`ikou, while continuing to allow the private owners to have the beneficial use of their remaining property; and WHEREAS, according to County property tax records, both Tax Map Key Numbers (3) 2-7-004-118 and (3) 2-7-027-065 are owned by Papa`ikou Landing, Inc., c/o James Waugh, P.O. Box 4697, Station C, Calgary, Alberta, Canada; and WHEREAS, the acquisition of a pedestrian easement over the path and Mill Road would reduce conflict between the private landowner and community members by clearly establishing the extent of private and public rights in the area; and WHEREAS, members of the community are ready to assist in the maintenance and management of a public access easement to the beach at Papa` ikou, and in the maintenance and management of the public use of the beach, and have already done so; and WHEREAS, over 5000 residents of the island of Hawaii have signed petitions calling for public access to the beach at Papa`ikou; and WHEREAS, Section 115-2 of the Hawaii Revised Statutes provides in part that "the various counties shall purchase land for public rights-of-way to the shorelines, the sea, and inland recreational areas"; and WHEREAS, Section 115-6 of the Hawaii Revised Statutes provides that such purchases to allow for public rights-of-way to the shorelines, the sea, and inland recreational areas shall be made under Chapter 101 of the Hawaii Revised Statutes, which sets out provisions for condemnation of private property, otherwise known as eminent domain; and WHEREAS, Section 101-13 of the Hawaii Revised Statutes requires that a condemnation action by the County must be authorized by resolution; and WHEREAS, the acquisition of an easement to the beach at Papa`ikou would be in the public interest; now, therefore, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII, that it is necessary for a public use and purpose, to wit: for the benefit of the public, to ensure access to the beach at Pdpa`ikou, to take, acquire and condemn a pedestrian public access easement over those certain private properties in Pdpa`ikou, District of South Hilo, identified as Tax Map Key Number: (3) 2-7-027:065 as described in Exhibit "1" and through a portion of that certain private property identified as Tax Map Key Number: (3) 2-7-004:118 and delineated on Exhibit "2" attached hereto. BE IT FURTHER RESOLVED that the Corporation Counsel of the County of Hawaii be and hereby is authorized and empowered to initiate proceedings in eminent domain, as provided by law, for the taking, acquisition and condemnation of the aforesaid easement over private property. BE IT FURTHER RESOLVED that in the process of said proceedings in eminent domain, the Corporation Counsel be and is hereby authorized and empowered to negotiate terms of settlement, subject to the approval of the court before which such proceedings are prosecuted. BE IT FURTHER RESOLVED that the Director of Finance is hereby authorized to initiate any funding mechanisms required for the acquisition of said public access easements. BE IT FINALLY RESOLVED that the Clerk of the County of Hawaii is directed to transmit copies of this resolution to (1) Papa`ikou Landing, Inc., c/o James Waugh, P.O. Box 4697, Station C, Calgary, Alberta, Canada; (2) the Honorable William P. Kenoi, Mayor of the County of Hawaii; (3) the Department of Public Works; (4) the Department of Finance; and (5) the Office of the Corporation Counsel. Dated at Kona , Hawai`i, this 21st day of November , 2012 Date of Introduction Date of 1st Reading: Date of 2nd Reading: Effective Date: DUCED BY: COUNCIL November 9, 2012 November 9, 2012 November 21, 2012 November 21, 2012 COUNTY COUNCIL County of Hawaii Hilo, Hawaii 1 hereby certify that the foregoing RESOLUTION was by the vote indicated to the right hereof adopted by the COUNCIL of the County of Hawaii on November 21. 2012 ATTEST: i COUNTY CLERK CHAIRPERSON & PRESIDING VFFER 4 OF HAWAII ROLL CALL VOTE. Reference: C-853.28/FC-2{ RESOLUTION NO. 308 12 AYES NOES ABS EX BLAS FORD X HOFFMANN X IKEDA X ONISHI X PILAGO X SMART X YAGONG X YOSHIMOTO X 5 2 Reference: C-853.28/FC-2{ RESOLUTION NO. 308 12 EXHIBIT -Li- 1"1.292 Acrpr. 1'2 9 HILL ROAD (REVISED) Portion Of R.P. 7875, L.C. Aw. 11215 Ap. 1 to Aarona Xealiihonui Papaikou, South Hilo, Hawaii, Hawaii Beginning at a point at the southwest corner of this parcel Of land being also on the northerly boundary of Lot 1, Land Court Application 1490 and on the easterly aide of the Hawaii Belt Road (F.A.P. NO. SDR 3(4)) the coordinates of said point of beginning referred to Government Survey Triangulation Station "ALALA" being --- 19,149.50 feet South and 5,791.86 feet East and running by azimuths measured clockwise from true South: 1. 201' 55' 30.00 feet along the easterly side of the Hawaii Belt Road (F.A.P. No. SDR 3(4)); 2. 291' 55' 117.32 feet along Lots 1,2 and 20-1root Road, Silverton Camp Hauka: 3. 296* 45' 92.08 feet along 20 -Foot Rcad and Lot 6, Silverton Camp Naukal 4. 307' 49' 46.98 feet alone) Lots 6 and 10, Silverton Camp Hauka; S. 315' 45' 104.99 feet along Lot 10 and 20 - Foot Road, Silverton Camp Mauka; 6. 321' 35' 309.37 feet along Lots 3,5,7.:0 - Foot Road, 9 and 11, Silvertan Carden Subdivision; 7. 328' 42' 434.40 feet along Lots 11, 20 - Foot Road, 13115120 -Foot Road, 17,19,20 -Foot Road and 21, Silverton Carden Subdivision: 8. 327' 50' 184.83 feet along Lots 26,24 and 20 -Foot Road, Silverton Camp Hakai; 9. 331' 50' 95.30 feet along Lots 22 and 21, Silverton Camp Hakai: 10. 334' 10' 166.43 feet along Lots 20,19 and 18, Silverton Camp Makai: 11. 337' 40' 61.75 feet along Lot 18, Silverton Camp Makai; 12. 83' 40' 31.21 rest along Papaikou Mill Site; 13. 157' 40' 52.23 feet along Papaikou Mill Site; 14. 154' 10' 164.90 feet along Lots 17 and - 16, Silverton Camp Hakai; 15. 151' So' 93.50 feet along Lots 16 and 15, Silverton Camp Makai; 16. 147' 50' 162.45 rest along Lots 14 and 13, Silverton Camp Makai: 17. 71' 04' 10.26 feet along Lot 13, Silverton Camp Makai; 18. 148' 42' 431.50 fast along Lots F, E, F, D, C-1, and 8-1, remainders of R.P. 7975, L.C. Aw. 11215 Ap.l to Aaron& Keallihonui: 19. 141' 35' 305.27 fest along Lots a-1, A and a Lot, remainders of R.P. 7875, L.C. Aw. 11215 Ap.l to Aaron* Kealiihonui; 20. 135' 45' 98.85 feet along Lot, remainder of R.P. 7875, L.C. Aw. 11215 Ap.1 to Aarona Ksalilhonui; 21. 214' 17' 10.20 feet along Lot 2, Lard Court Application 1490; 22. 127' 49' 42.00 feet along Lot 2, Land Court Application 1490; -2- 23. 116 45' 87.65 feet along Lot 2, Land Court Application 1490; 2s. 111* 55' 116.30 feet along Lots 2 and 1, Land Court Application 1490 to the point Of beginning and containing arevised area of 1.292 Acres. This Mill Road description is a compilation of record courses relating to six l6) separate Subdivisions: Lots 1 and 2, Land Court Application 1490: Silverton Camp Mauka; Silverton Garden Subdivision; Silverton Camp Makai; Papaikou Hill Site; and Mill Road Supervisors Subdivision, and does not close mathematically with error of closure: 320' 39' 0.47 feet. ap�O J' Aft,9� KURRAY, SY.i:H L ASSOCIATES, LTD. p AC1,.'LRCa 7 O 1•\Ct(SSlondl, q� I --,- LM —, No. 124T Donald Jacea Y.0 tray yY wAfl Jy> Registered Surveyor Hilo, Hawaii June 16,1995 HSA 4073 END OF E%ttIBIT "1_' 3- LXHl5JT PAPAIKOU BEACH TRAIL LOT " tub,Q 7 1 WITH IMAGE OF MAP BY r62'ul o0. � 10.02' 18 f � CHARLES L. MURRAY��— -3740*00" SUBDIVISION 30017, JUNE .29 9971 c�c 34. s4 �,��� _ ti ��. 275'52'48' /j .. NP�� , � y ..., - ���: MAY 3 19 74aA.� , ' 2 pct IN GRAY SHADE 552'48' R-20.00' PAPAIKOU, S. HILO, ISLAND OF HAWAII, Hawall lVatt °' tie i I Lo, X ja 10 6 44tjtj( /"' rr "•� t43Q28 q 1 f%I Rs3 '.tomj 4/y:jt/'tj�yi1� Svfr .ap r ✓ h PIVED— s l r 53.49' r ^- 12,CTIONS TRAIL PROPOSED TRAIL EASEMENT \\\ 1 0.500 Acres° 1 C 20.765.31' S 8,445.07' E03 L Rcr.hLALA" r� sssor7xl "� * rxtRvauR 23.85. 39'07' Aft, This work was prepared by me — — — �'—`•,,��`t} or under my direct supervision` POND Niels Christensen Licensed Professiana4 Land Surveyor License Number 9077 i The - Independent H awaii — S ua-s eyors, Li.0_ _ — P fl BOX 57 1 ,aD HZ, r: 9672159—CSJ ph., 6'J6 9Dote: February 1;,, 2011 I — Pe s3 t1 FAX 8s 949 -oar Dr0wig: d0694724.dwg FST nfaQnueaimaurtdv y, am TMK: (3) 2-7-4'. 118 AFFIDAVIT OF PUBLICATION State of Hawaii ) SS: County of Hawaii ) M. R. Chavez, being first duly sworn, deposes and says: 1. That she is the Classified Accountant of WEST HAWAII TODAY, a newspaper published in the City of Kailua Kona, State of Hawaii. 2. That "COUNTY OF HAWAI' I STATE OF HAWAI' I RESOLUTION NO. 308- 12 (Draft 2) RESOLUTION PROVIDING FOR THE ACQUISITION OF EASEMENTS" of which a clipping from the newspaper is attached hereto, was published in said newspaper on the following date(s) November 17, 2012 (etc.) Subscribed and sworn to before me This 19th day of November, 2012 Notary Public, Third Ci State of Hawaii Henriann P. Kahananui aePN��N P. Kqy� %moi • i N®.11-188 >� PUB LIC My Commission expires: June 6, 2015 # Page(s): 1 1 A COUNTY OF HAWAI'I e` , ' ° STATE OF HAWAII RESOLUTION NO. 308-12 (Draft 2) RESOLUTION PROVIDING FOR THE ACQUISITION OF EASEMENTS IN PRIVATE PROPERTY BY EMINENT DOMAIN, BEING A PORTION OF TAX MAP KEY NUMBERS: (3)2-7-004- 118 AND (3)2-7-027-065, SITUATED AT PAPA'IKOU, DISTRICT OF SOUTH HILO, TO PROVIDE A PEDESTRIAN PUBLIC ACCESS EASEMENT TO THE BEACH AT PAPNIKOU. BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII: WHEREAS, the beach at Papa'ikou is one of the few sand beaches on th'e coast north of Hilo; and WHEREAS, the beach at Papa'ikou is used and enjoyed by many residents of the island of Hawai'i, especially those living in Papa'ikou, for surfing, fishing, swimming, outdoor recreation, picknicking, spending time in nature, and for the exercise of . Hawaiian gathering rights; and WHEREAS, the beach at Papa'ikou is public property up to the high wash of the waves, as defined in Hawai'i law; and WHEREAS, the public has used paths over what is now known as Tax Map Key: (3)2-7-004-118 to get to the beach at Papa'ikou for many decades; and WHEREAS, an 1873 map, Registered Map No. 910, shows a road to the vicinity of the beach at Papa'ikou in the approximate .location of the current Mill Road; and WHEREAS, the 1979 County of Hawaii shoreline public access inventory identified an existing public access described as "Mill Road to Papa'ikou Landing through Silverton Subdivision and private lands"; and WHEREAS, Mill Roadlis currently designated as Tax Map Key: (3)2-7-027-065; and WHEREAS, the current path used by the public to get access to the beach at Papa'ikou begins at the end of Mill Road and continues through Tax Map Key: (3)2-7-004-118; and . WHEREAS, the current owners of Tax Map Key: (3)2-7-004-118 assert that the path is private, and that access by the public to the beach at Papa'ikou is available only with their consent; and WHEREAS, the owners of Tax Map Key: (3)2-7-004-118 have imposed restrictions on the use of the path, including limitation of hours, and have occasionally denied use for periods of time; and WHEREAS, if the use of the path is onlywith permission of the private owners, they could place additional limits, or deny access altogether; and WHEREAS, the owners of Tax Map Key: (3)2-7-004-118 also claim ownership of Mill Road, Tax Map Key: (3)2-7-027-065, through a quitclaim deed, although owners of lots within the Silverton Camp have easements over Mill Road in their deeds, and one condition of the original subdivisions allowing the private purchase of the lots in Silverton Camp in 1952, Subdivision Numbers 566-569, was that the lot purchasers were supposed to receive undivided interests in the Mill Road; and WHEREAS, the owners of Tax Map Key: (3)2-7-004-118 have posted "Private Road" signs at the entrance to Mill Road; and WHEREAS, the public's right to use the beach at Papa'ikou cannot be enjoyed without overland access; and WHEREAS, there may be a public right to overland access to the beach at Papa'ikou based upon the Highways Act of 1892, prescriptive usage, implied dedication, or other legal means, but to establish such public rights would require litigation which could prove expensive; and WHEREAS, the path over Tax Map Key: (3)2-7-004-118, and over Mill Road, Tax Map Key: (3)2-7-027-065, is the safest and most convenient access to the beach at Papa'ikou; and WHEREAS, a survey has been completed showing the metes and bounds of the path currently used by the public over Tax Map Key: (3)2-7-004-118; and WHEREAS, Tax Map Key: (3)2-7-004-118 consists of about 16.9 acres, but the path, according to survey is only about 1117' long and 10' wide, and occupies about 0.5 acres, mostly on a slope that is unusable for other purposes; and WHEREAS, a pedestrian easement over the path would allow public access to the beach at Papa'ikou, while continuing to allow the privat&owners to -have, the; beneficial use oftheir remaining property; and WHEREAS, according to County property tax records, both Tax Map Key Numbers: (3)2-7-004-118 and (3)2-7-027-065 are owned by Papa'ikou Landing, Inc., c/o James Waugh; P.O. Box 4697, Station C, Calgary, Alberta, Canada; and WHEREAS, the acquisition of a pedestrian easement over the path and Mill Road would reduce conflict between the private landowner and community members by clearly establishing the extent of private and public rights in the area; and WHEREAS, members of the community are ready to assist in the maintenance and management of a public access easement to the beach at Papa'ikou, and in the maintenance and management of the public use of the beach, and have already done so; and WHEREAS, over 5000 residents of the island.of Hawaii have signed petitions calling for public access to the beach at Papa'ikou; and WHEREAS, Section 115-2 of the Hawaii Revised Statutes provides in part that "the various counties shall purchase land for public rights-of-way to the shorelines, the sea, and inland" recreational areas"; and WHEREAS, Section 115-6 of the Hawaii Revised Statutes provides that such purchases to allow for public rights-of-way to the shorelines,.the sea, and inland recreational areas shall be made under Chapter 101 of the Hawai'i Revised Statutes, which sets out provisions for condemnation of private property, otherwise known as eminent domain; and WHEREAS, Section 101-13 of the Hawai'i Revised Statutes requires that a condemnation action by the County must be authorized by resolution; and WHEREAS, the acquisition of an easement to the beach at Papa'ikou would be in the public interest; now, therefore, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAII, that it is necessary for a public, use and purpose, to wit: for the benefit of the public, to ensure access to the beach at Papa'ikou, to take, acquire and condemn a pedestrian public access easement over those certain private properties in Papa'ikou, District of South Hilo, identified as Tax Map Key Number: (3)2-7-027:065 as described in Exhibit "1" and through a portion of that certain private property identified as Tax Map Key Number: (3)2-7-004:118 and delineated on Exhibit "2" attached hefeto. BE IT FURTHER RESOLVED that the Corporation Counsel of the County of Hawaii be and hereby is authorized and empowered to initiate proceedings in eminent domain, as provided by law, for the taking, acquisition and condemnation of the aforesaid easement over private property. BE IT FURTHER RESOLVED that in the process of said proceedings in eminent domain, the Corporation Counsel be and is hereby authorized and empowered to negotiate terms of settlement, subject to the approval of the court before which such proceedings are prosecuted. BE IT FURTHER RESOLVED that the Director of Finance is hereby authorized to initiate any funding mechanisms required for the acquisition of said public access easements. BE IT FINALLY RESOLVED that the Clerk of the County of Hawai'i is directed to transmit copies of this resolution to (1) Papa'ikou Landing, Inc., c/o James Waugh, P.O. Box 4697, Station C, Calgary, Alberta, Canada; (2) the Honorable William R Kenoi, 'Mayor of the County of Hawai'i; (3) the Department of Public Works; (4) the Department of Finance; and (5) the Office of the Corporation Counsel. Introduced by: Dominic Yagong Council Member I HEREBY CERTIFY that the foregoing resolution was duly passed on first reading by the Council of the County of Hawaii at its meeting held on November 9, 2012, by the following Aye/No/Absent/ Excused vote: AYES: Council Members Ford, Hoffmann, Onishi, Pilago, Smart, Yoshimoto, and Chair Yagong — 7 NOES: Council Member Ikeda —1. ABSENT: Council Member Blas —1. EXCUSED: None. Jamae K. K. Kawauchi County Clerk County of Hawaii (Note: Exhibits "1" and "2" are on file at the Office of the'Coun'ty Clerk for inspection.) Hawai'i County is an Equal Opportunity Provider and Employer (No. 68379 -West Hawaii Today: November 17, 2012) AFFIDAVIT OF PUBLICATION State of Hawaii ) SS: County of Hawaii ) LEILANI K. R. HIGAKI duly sworn, deposes and says: 1. That she is the BUSINESS MANAGER HAWAII TRIBUNE -HERALD newspaper published in the City of HILO State of Hawaii. 2. That the" COUNTY OF HAWAII STATE OF HAWAII RESOLUTION NO. 308-12 (Draft 2) ... etc. being first of ,a of which a clipping from the newspaper as published is attached hereto, was pub- lished in said newspaper on the following date(s) November 17, 2012 , (etc.). 51811rl Subscribed and sworn to before me this 27th day of November, 2012 SHARON H. P. OGATA Notary Public, Third Circuit, State of Hawaii My commission expires Octobers 2016 Page(s): 1 COUNTY OF HAWAPII RErESTATE OF HAWAII )TION NO. 308-12 (Dre ff2), RESOLUTION PROVIDING FOR THE ACQUISITION Or BASEMENTS IN PRIVATE PROPERTY BY EMINENT DON BEING A PORTION OF TAX MAP KEY NUMBERS: (3)2-7-004-118 AND (3)2-7-027-065, SITUATED AT PAPA'IKOU, DISTRICT OF SOu , rl HILO, TO PROVIDE A PEDESTRIAN PUBLIC ACCESS EASEMENT TO THE BEACH AT PAPA'IKOU. BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAI'I: WHEREAS, the beach at Papa'ikou is one of the few sand beaches on the coast north of Hilo; and WHEREAS, the beach at Papa'ikou is used and enjoyed by many residents of the island of Hawai'i, especially those living in Papa'ikou, for surfingg fishing, swimming, outdoor recreation, picknicking, spending time in nature, and for the exercise of Hawaiian gathering rights; and WHEREAS, the beach at Papa'ikou is public property up to the high wash of the waves, as defined in Hawaii law; and WHEREAS, the public has used paths over what is now known as Tax Map Key: (3)2-7-004-118 to get to the beach at Papa'ikou for many decades; and WHEREAS, an 1873 map, Registered Map No. 910, shows a road to the vicinity of the beach at Papa'ikou in the approximate location of the current Mill Road; and WHEREAS, the 1979 County of Hawai'i shoreline public access inventory identified an existing public access described as "Mill Road -to Papa'ikou Landing through Silverton Subdivision and private lands"; and - WHEREAS, Mill Road is currently designated as Tax Map Key: (3)2-7-027-065; and WHEREAS, the current path used by the public to get access to the beach at-Papa'ikou begins at the end of Mill Road and continues through Tax Map Key: (3)2-7-004-118; and WHEREAS, the current owners of Tax Map Key: (3)2-7-004-118 assert that the path is private, and that access by the public to the beach of Papa'ikou is available only with their consent; and WHEREAS, the owners of Tax -Map Key: (3)2-7-004-118 have imposed restrictions on the use of the path, including Limitation of hours, and have occasionally denied use for periods of time; and WHEREAS, if the use of the path is only with permission of the private owners, they could place additional limits, or deny access altogether; and WHEREAS, the owners of Tax Map Key: (3)2-7-004-118 also claim ownership of Mill Road, Tax Map Key: (3)2-7-027-065, through a quitclaim deed, although owners of lots within the Silverton Camp have easements over Mill Road in their deeds, and one condition of the original subdivisions allowing the private purchase of the lots in Silverton Camp in 1952, Subdivision Numbers 566-569, was that the lot purchasers were supposed to receive undivided interests in the Mill Road; and WHEREAS, the owners of Tax Map Key: (3)2-7-004-118 have posted "Private Road" signs at the entrance to Mill Road; and WHEREAS, the public's right to use the beach at Papa'ikou cannot be enjoyed without overland access; and WHEREAS, there may be aublic right to overland access to the beach at Papa'ikou based upon the Highways Act of 1892, prescriptive usage, implied dedication, or other legal means, but to establish such public rights would require litigation which could prove expensive; and WHEREAS, the path over Tax Map Key: (3)2-7-004-118, and over Mill Road, Tax Map Key: (3)2-7-027-065, is the safest and most convenient access to the beach at Papa'ikou; and WHEREAS, a survey has been completed showing the metes and bounds of the path currently used by the public over Tax Map Key: (3)2-7-004-118; and WHEREAS, Tax Map Key: (3)2-7-004-118 consists of about 16.9 acres, but the path, according to survey, is only about 1117' long and 10' wide, and occupies about 0.5 acres, mostly on a slope that is unusable for other purposes; and WHEREAS; a pedestrian easement over the path would allow public access to the beach at Papa'ikou, while continuing to allow the private owners to have the beneficial use of their remaining property; and WHEREAS, according to County property tax records, both Tax Map Key Numbers: (3)2-7-004-118 and (3)2-7-027-065 are owned by Papa'ikou Landing, Inc., c/o James Waugh, P.O. Box 4697, Station C, Calgary, Alberta,,Canada; and WHEREAS, the acquisition of a pedestrian easement over the path and Mill Road would reduce conflict between the private landowner and community members by clearly establishing the extent of private and public rights in the area; and WHEREAS, members of the community are ready to assist in the maintenance and management of a public access easement to the beach at Papa'ikou, and in the maintenance and management of the public use of the beach, and have already done so; and ,WHEREAS, over 5000 residents of the island of Hawaii have signed petitions calling for public access to the beach at Papa'ikou; and WHEREAS, Section 115-2 of the Hawai'i Revised Statutes provides in part that "the various counties shall purchase land for public rights-of-way to the shorelines, the sea, and inland recreational areas"; and WHEREAS, Section 115-6 of the Hawai'i Revised Statutes provides that such purchases to allow for public rights-of-way to the shorelines, the sea, and inland recreational areas shall be made under Chapter 101 of the Hawai'i Revised Statutes, which sets out provisions for condemnation of private property, otherwise known as eminent domain; and WHEREAS, Section 101-13 of the Hawaii Revised Statutes requires that a condemnation action by the County must be authorized by resolution; and , WHEREAS, the acquisition of an easement to the beach at Papa'ikou would be in the public interest; now, therefore, BE IT RESOLVED BY THE COUNCIL OF THE COUNTY OF HAWAI'I, that it is necessary for a public use and purpose, to wit: for the benefit of the public, to ensure access to the beach at Papa'ikou, to take, acquire and condemn a pedestrian public access easement over those certain Private properties in Papa'ikou, District of South Hilo, identified as Tax Map Key Number: (3)2-7-027:065 as described in Exhibit "1" and through a portion of that certain private property identified as Tax Map Key Number: (3)2-7-004:118 and delineated on -Exhibit "2" attached hereto. BE IT FURTHER RESOLVED that the Corporation Counsel of the County of Hawai'i be and hereby is authorized and empowered to initiate proceedings in eminent domain, as provided by law, for the taking, acquisition and condemnation of the aforesaid easement over private property.' BE IT FURTHER. RESOLVED that in the process of said proceedings in eminent domain, the Corporation Counsel be and is hereby authorized and empowered to negotiate terms of settlement, subject to the approval of the court before which such proceedings are prosecuted. BE IT FURTHER RESOLVED that the Director of Finance is hereby authorized to initiate any funding mechanisms required for the acquisition of said public access easements. BE IT FINALLY RESOLVED that the Clerk of the County of Hawai'i is directed to transmit copies of this resolution to (1) Papa'ikou Landing, Inc., c/o James Waugh, P.O. Box 4697, Station C, Calgary, Alberta, Canada; (2) the Honorable William P. Kenoi, Mayor of the County of Hawai'i; (3) the Department of.Public Works; (4) the Department of Finance; and,(5).,the Office. of the Corporation Counsel. "' "-"' - - • - Introduced by: Dominic Yagong Council Member I HEREBY CERTIFY that the foregoing resolution was duly passed on first reading by the Council of the County of Hawai'i at its meeting held on November 9, 2012, by the following Aye/No/Absent/Excused vote: AYES: Council Members Ford, Hoffmann, Onishi, Pilago, Smart, Yoshimoto, and Chair Yagong - 7. - NOES: Council Member Ikeda -1. ABSENT: Council Member Blas -1. EXCUSED: None. Jamae K. K. Kawauchi County Clerk County of Hawaii (Note: Exhibits "1" and "2" are on file at the Office of the County Clerk for inspection.) Hawai'i County is an Equal Opportunity Provider and Employer (51811r1 Hawaii Tribune Herald: November 17, 2012).