2008-11-06 TBARSELL - Laserfiche WebLink

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the same location as the Kapoho Beachlots Road. There is a law in Hawaii that is called the Highways Act of 1892; and it said that any road whether laid out by the government or by private parties, and if it had been laid out by private parties that had been abandoned to public use for five years previously, becomes a public highway. And this has been the basis for claiming public access over many roads and trails shown on old maps prior to 1887, which would be five years before 1892. We’re still working on this but we believe there is a basis for saying that there is a legal public right of access over the Kapoho Beach Lots Road. And if that is correct, the trail or road appears to come out across the northern portion of the Barsell property roughly on a straight line from the existing road. So we are, as I say we’re still working on that issue. It may be that the Kapoho Beach Lots Road is like Beach Road in Hawaiian Paradise Park, which is a road that was, there was an existing trail where Beach Road is in Paradise Park. There was an old trail and Beach Road was basically built over and along the old trail. So that’s a possible situation here. And I don’t think we can really resolve it today. We do advocate for having a public access condition. Certainly this applicant does not control the access outside of their own property and we can’t make them do that as a condition of this approval. We are content with the idea that the exact, that public access over their property should await the resolution of the question of public access to their property; but we do think that there should be a requirement for public access if public access can be established to their property. So that’s the explanation of the public access. I’d be happy to take any questions on that or on any other topic. WOODWARD: Commissioner Alameda. ALAMEDA: That was great. That’s actually the question I had on the whole, I mean the song that keeps ringing in my head now right is Israel Kamakawiwole’s, you know, Uamau Kea Oka Aina Ika Pono, and it goes on to say about how public access is actually restricted for native Hawaiians who, you know, were there previous. And so that’s a big concern for me, I think, you know, having access to this area. And I really commend the applicants for all the hard work that they’re doing to preserve the aina as well. But then the double-edged sword is, you know, you’re preserving them for who, you know, and who’s going to have access to that? So that’s an important issue; and I’m glad the Director kind of brought it up. So, I mean, that’s going to weigh heavily in my decision. WOODWARD: Commissioner Iwashita? IWASHITA: Thank you, Mr. Chair. I appreciate the Director’s explanation of this two- fold public access issue. There’s one other concern I wanted to ask about, and that is whether there are any CC&Rs in the subdivision that may pose some sort of impediment to allowing public access. Because, I guess, wherever this, the lawyer training in me says, well, if you look at these old maps, the argument is going to be that you’re limited to wherever those roads are shown on the map; and if that road doesn’t actually end up going near this property then, you know, any provision for public access across this property is going to be defeated in my mind because the public road won’t go through their property. And then if there are any CC&R restrictions, you know, that can pose further impediment. You know, to that, to me, just because there’s a road that goes from the existing public highway down to somewhere within this subdivision is not going to, it does not necessarily mean that, you know, that the other subdivision owners are just going to stand by and say, okay, we’re going to allow them to go EXHIBIT B 4