2009-07-13 Public Access, Open Space and Natural Resources Preservation Commission Minutes

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he's only giving a right to use a certain portion of his property to someone else. So he cannot block that, he cannot, depending on what the easement document says when he's granting the easement, usually it's for egress /ingress, ingress /egress, meaning in and out access through the property. It can be for like for instance, the water department gets easements so that they can run a waterline; HELCO gets easements so they can have utility poles. So whatever use you're giving that person when you give them grant them an easement you cannot interfere with that use. Otherwise, the owner of the easement is responsible for making sure that the easement is maintained unless it states otherwise in the granting document, okay. So like for instance, in some instances we've been able to get the owner of the property to grant public access, a public access easement and they're responsible for maintaining it and all of that, they're covered under, as long as it's for recreational use and they're not charging admittance or anything like that they're covered, they're not liable under HRS 5 -20 which is called the recreational use statute, okay. So anyway, so whatever rights or whatever use that the landowner, meaning the grantor, is granting in that easement to the grantee he cannot interfere with that use, okay, but if it's not otherwise stated in the granting language that the owner will still be maintaining that easement it's automatic that the grantee who is getting the easement is responsible for the easement for making sure it's maintained. And that's why were in a kind of a crossroads right now with our trail system because if any of you ever heard of the State trail system, Na Ala Hele trail system, well there's a statute, HRS statute, I think it's 198 -D, that in fact protects the State from liability on their trail systems but it didn't include County trail systems so the Counties are still hanging out there in fact we're thinking that we're gonna see if the other Counties will join us at this next legislative session to try and get the Counties included in that. When you ask me about access, here's where there's a difference because when they're requiring the owner to provide access to the public to the shoreline let's say for as a condition of the SMA permit, Special Management Area permit. Unless it's a Land Court property, if it's land that's registered in Land Court, I just found this out because I just did a lot of research on this. Unless it's a Land Court property, if its Land Court property the only way your going to guarantee that the County continuously and always has the public access is if you have a survey, it has to be an easement surveyed so that you have a metes and bounds description of where it's exactly located on the land and it has to you have to register with Land Court and it has to appear on the TCT, the Transfer Certificate of Title, it has to actually appear as an encumbrance on that, there's case law on this or else it doesn't exist as far as the landowners concerned and if you go to court and it's not on that, it's not listed as an encumbrance on the title your out of luck, you don't have a real easement. So, cause we had a landowner that wanted, he does not want to pay for the survey and he's required as part of his SMA permit to provide a public access along down to the shoreline. So we're trying to get around that just by providing a general description in an agreement, have an agreement with the landowner that you will provide a perpetual public access easement within along the shoreline lateral shoreline access along the shoreline within 40 feet from the edge of the cliff and also include language so that if there's any sort of erosion that they have to move it mauka. So that's fine you have this agreement you sign but that's not good enough for Land Court because there's no metes and bounds, we though we could save him the money of having to go to survey but if it's Land Courtproperty it has to be surveyed, so there's no getting out of that. So we are in other instances where it's just been recorded at the Bureau of Conveyances versus the Land Court. We can have just an agreement for public access and not have to actually get a grant of easement, or not have to have a metes and bounds description of the property. You could actually draw it, cause they're more lenient at the Bureau then they are at Land Court. " -5-