2014-09-04 Hearing Transcript-Scott Watson Amend SMA 450

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This is what the County Background Report actually states. And, if we look at Pages 2 and 3, Paragraph 6, and I highlighted the ones that I provided to you. There was a discussion about where this survey shoreline which we claim was inaccurate came from, and that this ended in misidentification and may have been due to heavy vegetation not being cleared away prior to survey which reduced visibility in the area. And I think Mr. Yuen also addressed that and said the area was heavily vegetated at that time, and the landing was not, or the ramp was not included in the consideration of the public access. Okay, in the Background Report, it talks about approval of this amendment would establish a 40- foot setback line from the 2010 certified shoreline. That’s true, but for the amended language consistent with Mr. Yuen’s position that we presented you, so the 2010 certified shoreline, the setback line where it exceeds 40 feet. And if you can increase this, when you review it, this is what we’re driving at. When there’s a difference between the existing shoreline as certified in 2010 and the 2002 shoreline, when this distance exceeds 40 feet, the proper setback under the amended language would be the 2002 certified shoreline, and so no construction could occur makai, oceanward, of the 2002 certified shoreline. Mr. Yuen raised an issue as to that if we just used 40 feet back from the shoreline, then there’s a potential for some additional development that could occur in the, in that sloped area, and we’re agreeing that, you know, there should be no additional structures built in that area. So, we’re content to bring the shoreline setback all the way to the 2002 line as shown in the area where the 2010 certified shoreline increases the width of the shoreline area to by more than 40 feet. If you see on, this is on again the County’s Background Report in Paragraph 8, regardless of what may have been told to you today, the County stated that there are gaps in the existing easement alignments that do not provide continuity for pedestrians to access the shoreline. Mr. Yuen and I may disagree about that and whether that exists or not. This is the County’s position, and this was our position as well. It doesn’t really matter because what the County has recognized and what we’ve recognized is the proposed access that we’re asking you to approve through the SMA amendment that we commit to, provides a superior, improved superior access, regardless of whether those gaps exist. Now, there was also a reference on, about an agreement with Continental Pacific. I just want to state that that Agreement is not of record. Not a record title for this parcel. And, again, people may disagree about what that means, but it’s not part of our title, and so the woman who suggested that we knew that such an Agreement exists--we didn’t. It was not present, and it cannot be imposed on us. The County may have a lawsuit against Continental Pacific for damages, but they cannot compel specific performance. They can’t force a subsequent lawyer— a subsequent buyer who purchased for value without knowledge—as Mr. Brilhante would likely tell you as well, to accept a condition that was in an agreement with a prior developer and that was not of record. There was also concern, I reviewed in the transcript the last time, that, about concerns about building what you want and then asking the government agency to help you save you from yourself. That’s not what happened here. There was no violation of setbacks until the County advised later on that there was a setback problem. There was no setback problem when it was first, the structure was first plotted, was first approved by the Building Department, and then 11 EXHIBIT G