2003-11-21 TCONTINENTAL - Laserfiche WebLink

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the beach. Now, how about the developer whoÓs handling any upland, can there can be an access to the upland for the hunters or public? YUEN:If thereÓs a rezoning, the County can put in public access to mountain areas as a condition of the rezoning. Usually for upland areas you wonÓt see it in an SMA permit. Now if they already have the zoning and they donÓt need any permits but theyÓre coming for a subdivision of six lots or more, the County Code says that the Planning Department at the subdivision stage is supposed to look for public access to the mountains if there is State-owned property that you might access. And I think that has only come up one time where we had a subdivision that was, where there was State property above that people might want to get access to. It does not call for us to have access to property thatÓs private that people donÓt have a right to go to once they pass through the subdivision anyway. So thatÓs how upland access is handled. FUJIKAWA:I understand. Thank you. GALDONES:Commissioner Graham? GRAHAM:IÓd like to ask a similar question, not quite similar but on the same topic to the Planning Director. First of all, we all did go and visit the site a month ago, and we walked around where the access points will be, and all of us got a good look at the land there and what the plans are. So we are kind of informed on that. I noticed on the access, there was one area as you recall, Chris, where the, it will be closed except under a maybe a key arrangement. But thereÓs an alternative access close by which is going to remain open so that itÓs slightly more mauka so the people can go down to the shore from there. And I was just wondering if thereÓs any issue here where I know the Hawaii law is something to the effect that if the road or trail or whatever has been used continuously without objection from the owner for so many years and all that, it sort of essentially assumes a public status. So I was wondering if this particular accessway that is going to be gated and closed, whether thatÓs a determination that the Planning Department makes and tries to look at whether, in fact, that has been used continuously for many years, or whether thatÓs up to individuals to press that case, or whether that really comes into play here. YUEN:Well, what youÓre talking about is prescriptive rights; and under some circumstances long-time public usage for more than 20 years making a private road become available for public use. We look at that, though, as a matter of thatÓs not a part of the County requirement. That would be for somebody to bring a private case for prescriptive rights. And itÓs tricky b for, if the landowner kept it open with the idea of letting the public go back-and-forth for recreational use, then the law does not make that prescriptive. If it is voluntary on the part of the landowner to, that theyÓre being a good guy to let people go use it, then they donÓt, the public doesnÓt get prescriptive rights and the landowner can shut it off later on. So itÓs not an easy call to make, and it depends on what the facts are of a particular situation. 7