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

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Ms. Springer asked Ms. Self for the purposes of their work would it be proper to use the word easement or access. Ms. Self replied that it depends on what they want. Mr. Flores added that you can have access without an easement, for example if it's under the Highways Act of 1892, it can be a traditional easement. Ms. Self noted that only if the trail or road was there before 1892, if not you have to prove that it wasn't a government road prior to 1892 or else there's no public access. Ms. Self noted that at the end of July, Gilbert of the Planning Department will be doing an additional GIS (Geographic Information System) layer that will have all public access and easements included and she can do a presentation to the Commission once she gets that information. Ms. Self added that another situation for this particular Commission is "the way that the Planning Department gets the accesses is either that they're required pursuant to under State law, there is a requirement that when somebody comes in to apply for subdivision, that the County must require them, if it's shoreline property, that they must require them to provide mauka/makai access to the shoreline. The other way they get it is through SMA permits, because SMA, you cannot, the reason they're able to get it as a condition of the SMA permit, is because if you look at what the requirements are to get an SMA permit, you cannot block access to the shoreline, you have to make it in other words you have to mitigate in order to not negatively interfere with access to the shoreline, or the ecology of the shoreline, all of that is taken into consideration and Hannah can she might be able to enlighten you even more because she used to be on the Planning Commission and they're the ones that grant SMA permits. So it's made a condition of the SMA. So we have State law that backs that up, we also have State law that backs up the access that I was telling you about for as a condition of subdivisions, okay. Now, if you guys were to do it, that's different because we don't have anything that allows you or the Council pursuant to your list to just do that. It would be considered a takings. You cannot require somebody to give up a portion of their land without paying for it even an easement. So, in this instance we would have to purchase an easement rather than having requiring the owner to provide it. So that's why it's different in this situation, we don't have any State law that, unless they're coming in for an entitlement from the County, and this they're not coming in for an entitlement, you guys are putting them on a list and saying Council this is what we want. So in that instance we'd have to purchase an easement. The only other way would be if for instance the landowner came in and said oh I want to agree to give you access to the shoreline through my property and we can sign an agreement and then he's protected under the recreational use statute for doing so. " (At the request ofMs. Garcia, italicized excerpts from Ms. Self's discussion above is verbatim) Ms. Springer asked Ms. Self is she has any examples of purchased easements. Ms. Self replied that the Water Department has documents for utilities that she's aware of Ms. Springer asked if there's an abstractor attached to the public accesses for the County. Ms. Self replied that she's not sure, if there is one it would be in the Real Property office. (the commissioners continued their discussion) 12:32 p.m. — lunch 1:15 p.m. - reconvened M