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answer is no, then I think we can move on. If the answer is yes, then I think it’s going to really
<br />require a really good hard look at this whole issue of how the public is going to get into this
<br />subdivision; and that’s some things that we’ve been trying to talk to Chris about that we have not
<br />yet been able to come to a clear agreement on. So that’s kind of where we’re at in this process
<br />today.
<br />WOODWARD: Any further questions for any of the testifiers? Yes, Commissioner
<br />Iwashita.
<br />IWASHITA: Thank you, Mr. Chair. I forgot to ask earlier about if there are any
<br />CC&Rs in the subdivision that would be a further impediment for, you know, for public access.
<br />YEH: You know, I haven’t looked at the CC&Rs recently. There are CC&Rs,
<br />but whether they apply to this particular road issue I’m not sure. There, and John, go ahead.
<br />J. BARSELL: As far as I know there are no CC&Rs.
<br />IWASHITA: Well, you have an Association that maintains -.
<br />J. BARSELL: We have Bylaws. We have a Declaratory Judgment from the Court which
<br />lays out how our subdivision should be administered, but we have no CC&Rs.
<br />IWASHITA: So in the Dec Action and the Bylaws there is no restriction as far as
<br />owner’s use of the subdivision roads? The question, the issue that I’m trying to raise and trying
<br />to get clarification on is I’m going to project out into the future, right, that there’s a court action
<br />and the court decides that in part based upon this 1880 map that under the Act of 1892 that the
<br />road designated on the map, you know, basically is a public road, and so the public has a right to
<br />use that road. And I guess the way, I’m looking at how that road goes.It basically shoots down
<br />pretty close to where your property is, but definitely within this subdivision. Right? Once
<br />there’s a public road from Pohoiki Road down to the shoreline, which is basically what that road
<br />shows, then the question becomes what rights there are beyond that actual road, that is all these
<br />subdivision roads now, right? Is there anything in the Dec Action Order or, you know,
<br />otherwise, the Bylaws establishing the Association that controls those road that would limit the
<br />public’s right to use those roads and, you know, to get access, to any access if we decide to
<br />provide access across this property?
<br />YEH: Okay. I see your question. Well, first of all, those Bylaws were actually
<br />recorded as covenants that applied to, and those Bylaws were recorded September of ’01. The
<br />Association in the Bylaws does have the authority to control management, maintenance of those
<br />roads. The problem with this access issue is that, yes, if -. And I don’t necessarily know, I don’t
<br />have a crystal ball, but I have my own opinions as to whether or not a Court would adopt the
<br />conclusion that there was a public road. But even assuming that it did, it would have to locate
<br />where that road goes to. And beyond that work, the public from a legal standpoint would not
<br />have a right to traverse any roads within that subdivision, that’s for sure. And then we’re going
<br />to be in a trespass situation.
<br />IWASHITA: Thank you for that clarification. That’s, you know, to use Commissioner
<br />Bowman’s fence picture, analogy, I share her concern about, one, allowing for public access on
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