2008-08-22 TNKOHALA CDP - Laserfiche WebLink

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easements for these trails. If that was in there then that would have the force of law. What would you recommend that’d be substituted for what they have in this, on those couple pages? LUCE: I’m not an attorney, sir, but -. WOODWARD: Well, I’m not either, thank God. LUCE: I foresee, I don’t see a simple answer to that question because this is not a simple, you know, list something that realtors have to disclose, I guess. I’m, like I said I’m just th trying to point out some concerns to you folks. You have another meeting September 4, you have other CDPs. I imagine the problems are the same. But the, and maybe the Director knows what the impacts are on the real estate industry. WATANABE: That’s about the fourth time you asked for the Director and he has been raising his hand a couple of times so why don’t we give him a chance to respond. YUEN: The question of what is the legal effect of the CDP is pretty complicated and I did write something on it because I think it is very much misunderstood, it’s, even the “shall” parts. Let me give an example of what the CDP is not. The Council passed a law a couple of months ago that said you can’t smoke in a parking lot of a County park, basically you can’t smoke in any county facilities. All right? And like that is what I would call a direct regulation on somebody’s conduct. It’s a law and so it has a penalty attached to it. And if a police officer sees somebody smoking where they’re not supposed to smoke the police officer can cite them for that violation. And the person says, well, what is making, what makes what I’m doing illegal? The police officer points to that ordinance and says this makes it illegal. There is nothing in the CDPs or the General Plan, which is also passed by an ordinance, which is a direct regulation in that sense. You cannot go out and cite somebody for violating a provision of the CDP. There has to be something else. The CDP is primarily a guide to future action. It’s a guide to actions like those taken by the Planning Commission. Now when would it be mandatory? Now if the CDP said the Planning Commission shall not grant a special permit for any, let’s say an SMA Permit, for any development that causes the destruction of a heiau. All right? That’s mandatory language. And so you have an SMA Permit that comes in front of you and that involves, well, we’re going to do this wonderful project but we’ve got to destroy a heiau to do it, you would violate the CDP by granting that SMA Permit. That’s an example of a mandatory effect of the SMA Permit. If it said that you should avoid destroying historic sites then that’s not mandatory. It’s a policy that you should follow. It’s important, and plans are important for that kind of thing but it’s not any kind of mandate. So turning to the specifics of what Mike has been talking about, the trails, this is actually a point that I discussed in the process, is that, to make clear that many of these are not public accesses now. They’re public accesses that people would like to have, and you have to go through a process of getting them. Just putting it in the CDP, if it’s not public now putting it in the CDP and saying it ought to be public or even we think it’s public doesn’t make it public. It’s simply, it’s useful. So, for example, like sometimes we have SMA Permits where we have questions about public access to the shore. If the CDP has a public, if a person who owns that property EXHIBIT D 10