2008-11-06 TBARSELL - Laserfiche WebLink

Home

YEY: I do. J. BARSELL: I do. S. BARSELL: I do. WOODWARD: Very good. Okay. YEH: Thank you. WOODWARD: Would you like to start your testimony. YEH: I think might be good. My name is Thomas Yeh and I’m the attorney representing the applicants. My business address is 85 West Lanikaula Street in Hilo. Let me see, where shall I start. Well, basically from a historical standpoint it is true that, you know, we haven’t seen -. If we were here today and this Kapoho Beach Subdivision was coming in for an SMA application, I’m talking about the subdivision itself, there’s no question that there would be public access conditions imposed. What happened was this subdivision dates back basically to the 1950’s. And you can see the information that we provided, by both the Planning and Traffic Commissions at that time as well as subsequent interpretations by previous Planning Directors, has been that those roads are private And so based on that, and let me back up a little bit more. The property was basically, all of that Kapoho ahupuaa was owned by the King Kamehameha, then it was passed on to Kaiana and then thereon passed to the Lyman family who most of us know. The property that the Barsells own used to be essentially the Lyman Ranch House property with some fishponds there. So we didn’t really have historically dating back to even the 1800’s any government road per se. Now we have looked at the maps. In fact, we just got them yesterday. But if you were to take a look at the large, I ‘m not sure what you got passed out, but the larger map that dates to 1896 shows the Highway between Kapoho and Kaimu or Pohoiki. That’s reflected as a Government Road. The road that comes down to the subdivision itself indicated this road goes down to the Lyman Ranch property. So it still, to me, is a very large issue as to whether or not that road was considered to be public back in the 1800’s, 1890’s or 1800’s. So now we move back, forward to the 1950’s where the subdivision was approved. Part of the problem has been that from a relatively consistent basis the people who have bought into these lots and into this subdivision have come to understand that the roads are private. There was a Dec (Declaratory) Action done, I believe, it was the late 70’s or early 80’s where the Court was also asked to kind of step in on the issue of the maintenance of the roads. An Association was formed to undertake that maintenance. In this Declaratory Ruling the Judge indicated the Association would then have the authority to maintain and control those roads because they were certainly believed to be private; and I think it’s still the case. That’s where this gate issue came in. So that’s the backdrop. And I think the problem now is, here we are some 50 years later, the Barsells are coming in to build a second dwelling for their family, and now we’re to some extent trying to make up for what happened before; and they’re kind of getting caught in this process, so to speak. Yes, the property is 16 plus acres. But if you take a look at where that wall is that’s being rebuilt, it EXHIBIT B 6