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HomeMy WebLinkAboutMIN FC 2022/01/18 2020-2022 Committee on Finance 26th Session West Hawaii Civic Center 74-5044 Ane Keohokalole Highway, Building A Kailua-Kona, Hawaii January 18, 2022 CALL TO The regular meeting of the Committee on Finance was called to order at ORDER: 11:32 a.m., in the Council Chambers, Kona, by Mr. Matt Kaneali`i- Kleinfelder, Chair. ROLL CALL: Present: Mr. Matt Kaneali`i- Kleinfelder, Chair(via videoconference from Hilo) Ms. Heather L. Kimball, Vice Chair Mr. Aaron S. Y. Chung, Member Ms. Maile Medeiros David, Member Mr. Holeka Goro Inaba, Member Ms. Ashley L. Kierkiewicz, Member Ms. Susan L. K. Lee Loy, Member (came in later) Mr. Herbert M. "Tim" Richards III, Member (came in later) Ms. Rebecca Villegas, Member (via videoconference) STATEMENTS The Chair directed the Committee to proceed to the next order of business, FROM THE Statements from the Public on Agenda Items. PUBLIC ON AGENDA ITEMS: The following individuals registered to speak regarding Comm. 573, and came forward when called by the Chair: Cory Harden. Loke Davis. Chris Yuen Noelle Rodriguez COMMUNI- The Chair directed the Committee to proceed to the next order of business, CATIONS: Communications. Comm. 31.27: REPORT OF CHANGE ORDERS AUTHORIZED: DECEMBER 1 — 15, 2021 From Finance Director Deanna Sako, dated December 28, 2021, transmitting the above report pursuant to Hawaii County Code Section 2-12.3. FC-26 January 18,2022 Motion to Close File: Ms. Kierkiewicz moved to close file on Comm. 31.27. Seconded by Ms. David. CHR KANEALI`I-KLEINFELDER: Ms. Sako is here, from the Finance Department. Is there any questions, Council Members? MS. KIERKIEWICZ: Chair, I have one question,please. CHR KANEALI`I-KLEINFELDER: Okay. Go ahead Ms. Kierkiewicz. Ms. Sako is making her way to the front right now. (Note: At this time, Finance Director Deanna Sako came forward to address the members of the Committee.) MS. SAKO: Good morning. MS. KIERKIEWICZ: Good morning, Director. Great to see you. Just looking for a little clarification. So I was reviewing this change order and saw that there was an extension for General Plan review, and I thought, "Wait, is that an error?" Because I recall last committee meeting, there being the same exact item, in Communication 31.25. There it was noted, there was a $75,000 extension. In this one, it looks like there's no cost to the County. But just wondering if maybe you could shed light into the process and why there was a need to do an additional extension. MS. SAKO: Yes, the last time we added funding. This time is an extension. Not sure how much time was extended. Sorry, it's not on the Change Order report. But I can check with Planning. MS. KIERKIEWICZ: Okay, that would be helpful. I just wasn't sure what the exact process was, because there was an additional transfer of funding, and I just kind of assumed that there would be an additional extension of time. So I was just curious to what this one was about. Thanks for looking into it. MS. SAKO: I may have been we just forgot to include it with the first amendment. MS. KIERKIEWICZ: Got it. Okay. Thanks for the clarification. Chair, I yield. CHR KANEALI`I-KLEINFELDER: Thank you, Council Member. MS. LEE LOY: Chair? CHR KANEALI`I-KLEINFELDER: Ms. Lee Loy, go ahead. Page 2 FC-26 January 18,2022 MS. LEE LOY: Thank you. Thank you for that follow-up, Ms. Kierkiewicz. I had the same question. So Deanna, if you could just provide? Even if in an email, that's fine. And then, of course, I'm following up on the Environmental Management. There's a change order, looks like $35,000. Is that just strictly for the traffic assessment on top of the original contract? MS. SAKO: Yeah, I think when the preassessment consultation with Department of Transportation occurred, then they required us to do the traffic assessment, so this is just for the traffic assessment portion. MS. LEE LOY: And then just to clarify, the preassessment, that was for the scope of—included in the scope of services for the contract, or did this emerge out of the preassessment? MS. SAKO: The $35,000 occurred out of the preassessment. MS. LEE LOY: Got it. Thank you. Thank you, Deanna, for that. MS. SAKO: No problem. MS. LEE LOY: Chair, I yield. CHR KANEALI`I-KLEINFELDER: Thank you, Ms. Lee Loy. Any discussion from the Council? Okay, hearing none. We have a motion on the floor to close file on Communication 31.27. Mahalo for being here, Director. All in favor of closing file? Vote on Comm. 31.27: The motion to close file on Comm. 31.27 was carried by File the following voice vote: Ayes: Committee Members Chung, David, Inaba, Kierkiewicz, Kimball, Lee Loy, Richards, Villegas, and Chair Kaneali`i-Kleinfelder–9. Noes: None. Absent: None. Excused: None. Comm. 573: REQUESTS AN UPDATE FROM THE CORPORATION COUNSELON EMINENT DOMAIN PROCEEDINGS FOR THE ACQUISITION OF AN EASEMENT THROUGH PORTIONS OF TAX MAP KEY NUMBERS 2-7-004-118 AND 2-7-027-065 TO PROVIDE PUBLIC ACCESS TO THE BEACH AT PAPA`IKOU From Council Member Heather Kimball, dated December 20, 2021. Page 3 FC-26 January 18,2022 Motion to Close File: Ms. Kimball moved to close file on Comm. 573. Seconded by Mr. Inaba. CHR KANEALI`I-KLEINFELDER: Ms. Kimball, would you go ahead, please? And you do have Managing Director Lord here from the Mayor's Office, as well. MS. KIMBALL: Thank you, Chair, and thank you for providing the opportunity to put this on the agenda and to have a discussion about it today. Pre-COVID (Coronavirus Disease) I met up with my sister in the outer banks of North Carolina to see each other for the first time in many years, to get all our families together. We rented a small cottage and we went out to the beach, and there were markers on where you could go on that beach; and if you rented in this particular community, this was the area of beach that you were allowed to attend—or to visit. And at time, I was just shocked. I mean, nobody owns the beach. It's public access. It's a place for all of us to enjoy. And it made me really appreciate what we have here in Hawaii. And they are—or maintained public access to these really critical spaces. As we talked about before in Mr. Inaba's committee, the ocean is a place where we recreate. It's a place we exercise. It's a place where we go get dinner. So maintaining access to these spaces is critical and it's something that I personally value about our State. So I wanted to bring forth this communication because in November of 2020, the previous Council did pass a resolution supporting the purchase of the—or the acquiring of the Papa`ikou Mill trail access through eminent domain. And, you know, over the course of my first term, I've done several questions about this and have tried to understand and communicate as well as possible the position of the administration. There are a lot of folks out there in my district that support continued access, public access, to this particular location. And there's been increased anxiety recently because the particular property, where the trail resides, has been placed on the market. And so, it was determined that it was necessary for the community to have a very clear explanation from the decision-makers on why the decision has been made. I think that is the public's right to know. So that's the administration and Corporation Counsel to present this to explain the decision-making that went behind the current inaction to proceed on the Council's resolution. So we have Judge Strance from Corporation Counsel and Deputy Director Lee Lord present in the Hilo Chambers, I believe. (Note: At this time, Corporation Counsel Elizabeth Strance came forward to address the members of the Committee.) Page 4 FC-26 January 18,2022 MS. KIMBALL: Judge Strance, I believe you were going first, please? MS. STRANCE: Yes, thank you. Can you hear me okay? MS. KIMBALL: Yes. MS. STRANCE: Good morning. Elizabeth Strance, Corporation Counsel. I'll be providing a little bit of a procedural background for this. Most of it occurred before assuming my position. And then Lee Lord will be presenting what the administration's position is. So it is there have been two different resolutions passed by County Council with respect to this property. It looks like there was initially some attempts to research the property to determine whether it constituted a historic trail, and the determination was that it did not. Eventually in 2017, the Corporation Counsel filed an eminent domain action. In 2020, a motion was filed to dismiss that action based upon deficiencies in the complaint, and the deficiency was that the eminent domain statute requires that the description of the property to be complete and be included in the complaint; and the complaint contained a description of the entire lot. In response to that the County filed a Motion to Amend the complaint. At the hearing the court denied the County's Motion to Amend the complaint, and granted the motion for a dismissal, either by Summary Judgment or Motion to Dismiss, finding that the complaint was deficient because of the absence of a description. And that the description contained in the Council resolution was the governing document, and the resolution had the description of the entire lot. So the court dismissed the case, and it was dismissed without prejudice, which means that the County could file a new action if the deficiencies were corrected. As part of the Amended Final Judgement, that was eventually entered in the 2017 case, the court awarded fees and costs against the County in the amount of $72,788.98. So, those amounts were required to be paid. The Order Granting Final Judgement was entered in May of 2020. When the 2017 case was filed, there was also filed what's called a Lis Pendens, which was also recorded in the Bureau of Conveyances. Pursuant to the dismissal, that Lis Pendens was expunged or withdrawn in March of 2021. When I came onboard, there were inquiries about whether or not the case being refiled, and the instructions that we received were that a case should not be refiled. Page 5 FC-26 January 18,2022 To respond to the question in the testimony about the will of the Corporation Counsel, a resolution is described in the Hawaii County Charter, in both Sections 3.8 and 3.9. In Section 3.8, describes and states that resolutions are non-legislative acts and shall not have "the force and effect of law." And so in taking a direction about whether to proceed with the policy statement of the County Council, that was not a binding action on the part of County Council. And that County Council took the direction of the Mayor, about whether to proceed with another action. And without the direction of Council, Corporation Counsel did not file that lawsuit. I yield to Managing Director Lord to state the position of the administration in making that decision about not to proceed. That's all I have at this point. (Note: At this time, Managing Director Lee Lord came forward to address the members of the Committee.) MR. LORD: Good afternoon, Council Members. Lee Lord, Managing Director. I do have the words from Mayor Roth. He was very sorry he couldn't be here. He had to take care of a personal matter with his family on the mainland today. He did make the decision not to move forward with further legal action in the Papa`ikou Mill access road matter. His words are, "The decision was made for several reasons. During the last administration, staff at the Corporation Counsel advised the administration and a Council Member against moving forward for liability reasons, and also a Risk Manager hired by the County made the same advice for liability reasons." It is his understanding that this information was not shared with the Council as a whole. "As you should be aware, the County tried the case and lost, as Judge Strance said. Not only did the County lose, but it was required to spend a lot of hard- earned County tax dollars to pay for the other side's legal fees. If we were to go forward again and lose, it is quite likely that the County would have to pay more County taxpayer dollars for legal fees. These funds could also include more than just legal fees. Assuming that the County were to win this suit, the County would again gain very little. "At the current time, the owner opens the trail every day of the year, but one, in which the owner closes for maintenance and to preserve owner-property's rights. The owner maintains the trail at their expense and liability, and has rules which they enforce. Some people object to the rules, but they are no different than the rules the County has at beach parks, which we do oversee. "As stated earlier, there are liabilities that the County would have to tend to, and possibly need to make the trail ADA (Americans with Disabilities Act) accessible at the County's expense. There are several other reasons and legal issues for my Page 6 FC-26 January 18,2022 decision that involve the best interest of the County and stewardship of the County funds." That was all he had to share. (See Comm. 573.1). MS. KIMBALL: Thank you, Judge Strance and Managing Director Lord, for the presentations. I do want to hear from my colleagues, especially those with a little more legal expertise than I do, and those that were present during the original discussions, about the resolution from 2020. But before we move on that, Judge Strance, can you describe in this particular scenario what liability the County might hold if we were to take possession? And are you familiar with the risk assessment that was done, and is that something that's commonly done when we consider pursuing these types of activities? MS. STRANCE: I can't speak to what's commonly done. In anticipation of this hearing, I did review some information within Laserfiche. There were some concerns that had been raised based upon site visits about the condition of the trail, and whether or not it was a dangerous condition and under what circumstances, and so there was that issue. I believe that at least one County Council meeting there was some discussion about that. I don't know the extent of it. I didn't read all of the transcripts on the proposed resolutions. I think initially there might have been concerns because it followed there had been I think maybe on some people's mind, the Sacred Falls case over in Oahu. There was some legislation that attempted to address that. But the County does not—some obligation—some liability for negligence to the same extent that a private parry would. The question is, and what it appeared to have been the discussion at the Council meeting, was whether aif you post enough warning signs around, whether it absolves the County of liability. And we haven't researched whether the County didn't attempt to make the trail safe; whether it has increased liability and responsibility once the property's not spoiling a natural condition, and becomes an approved condition. And I think the next level discussion is regardless of those—if there is a dangerous condition, you know that members of the public are going to be coming on to County property, whether you want to invite them to do so, knowing that it's not a safe condition, even if it can protect itself from liability. So there are a number of different ways that matter can be looked at. You know, without knowing what the condition of the property is right now, what the plans would be, for warning and/or improving, I'm not comfortable drawing the legal conclusion about what is the County's liability. But you know, there's a whole host of cases in Hawaii regarding when the State or the County is liable for conditions at the shoreline for parks and access. And there are ways that the County can attempt to minimize its liability. Whether it can completely prevent any liability, I think that would be hard to assess. Page 7 FC-26 January 18,2022 MS. KIMBALL: Thank you, Judge Strance. So back to the risk assessment, is that something that your office has on file? Is that something you're aware of that would have been, I assume, based on a site visit, and therefore could be of tool to assess the level of liability that the County might encumber by acquiring this property with this trail? MS. STRANCE: I did not see a formal report. What I saw was it looks like there had been at least some exchanges. Whether there's something more, I would have to go back and look, and then possibly make inquiries with other departments to see if they might have something more informative than I was able to find. MS. KIMBALL: Thank you. So as Ms. Harden mentioned in her testimony, you know, the owners have maintained the trail. They've provided some level of access. I think there's a certain amount of heightened anxiety. You know, although the previous arrangement was not ideal and there were still issues, there's a heightened sense of anxiety right now because the property like I said is listed for sale. And there is the concern, since it is not recognized a historical trail, that a new owner might be able to come in and completely restrict that access. What protections does the public have to continue to access that trail in the event that there's a new owner? I mean it could be better, but it could also be worse, and I think that that's the concern that exists right now. And the concern that the County hasn't proceeded with taking steps to acquire the property. Again, my question is what level of protection is there for continued access under new ownership? Right now access is at the will of the current owners, and they should be credited for that, but what is the—are there any protections for that continued access? MS. STRANCE: Without having read the recent title report, my general response would be with a new owner who didn't want people to come onto their property, they could prevent that. It would result in trespass for people to cross over. MS. KIMBALL: Okay. I'm going to move on for now. I just want to reiterate a point that was made by one of the testifiers, in fact multiple testifiers, that this is one of the very few access points to the ocean in this area, especially now that both Kolekole and Hakalau are closed entirely. And so, it is of the highest level for importance, both for the community and myself, to make sure that there's continued access to this location. Chair, thank you. And at this time, I'll yield. CHR KANEALI`I-KLEINFELDER: Thank you, Ms. Kimball. Good questions so far. Council Members, any more discussion on the communication? Page 8 FC-26 January 18,2022 MR. INABA: Chair, this is Holeka. CHR KANEALI`I-KLEINFELDER: Mr. Inaba, go ahead. MR. INABA: Yeah, I have a few questions. So just to confirm on your report, is that we paid out approximately $72,000 in the previous filing. Is that correct? MS. STRANCE: Yes. MR. INABA: Okay. And like you said, the primary reason for that case having being dismissed was the lack of property description. Is that correct? MS. STRANCE: It isn't the lack of property description; it had a description of the property. It didn't have a description of the proposed easement area. So, you know, there's MR. INABA: Okay. And that was based on the resolution not having that description of the easement area, is that right? MS. STRANCE: It's two steps. The complaint filed was based upon what the County Council approved in a resolution. The catch to the resolution was the description of the property. That description was attached to the complaint, and so part of the court's ruling was that it would have taken a new resolution from the County with a correct description of the easement area before a case could be refiled. MR. INABA: Okay. And the last resolution that this Council passed, was that adequate in terms of describing the easement for the proceedings in the court? MS. STRANCE: I would have to get back to you. I'mmy assumption is that it either was or it was better, because the County was proposing filing an amended complaint, but I'm not sure that the amended complaint had a resolution in support of it. But I can get a better detailed procedural history, if that's what you would like. MR. INABA: Okay. Yeah, I think that's important; because if that was the reason and we got this missed the first time and we approved a new resolution, I would hope that that resolution has all of the information it needs so that you could take action if it was the desire of the Mayor, apparently. I do want to circle back to some of the statements made regarding if we were to proceed with this, that it's—what were the words used—we'd be getting very little. I think it's a little inconsiderate, and considering the number of testifiers who came today and wrote in to us regarding this whole situation. It's not very little to the people who can't access the ocean. While I understand the liability Page 9 FC-26 January 18,2022 and all of that needs to be considered on the County's part, when we have private landowners creating their rules for access to the shoreline, I see that as very problematic. And I'm happy that Council Member Kimball has brought forth this information. So in terms of the rules that this private landowner has implemented, are they posted somewhere for us to know on this island? Any questions, Corporation Counsel or Mr. Lord, if you folks have the answers for that? Because the access seems problematic, so what are the rules and are they posted somewhere for the people to know? MS. STRANCE: The answer your question from my perspective, Council Member, is I don't know. What I can say is in the order issued by the court, it looks like there had been some closures of the trail periodically, either due to weather, and it looks like that there may have been requests maybe by the Police Department for certain rules. Beyond that, if there was more, I don't know. MR. INABA: Managing Director Lord, do you have any information on the rules and if they're posted, and all the public is supposed to know about it? MR. LORD: No, I do not. MR. INABA: Okay. With this being a primary access point for the public to get to the shoreline, and private landowners implementing their own rules regardless of whether they are in line with what the County would perhaps implement, are they entitled? And is it legal for them to implement these type of rules, Judge Strance? MS. STRANCE: Is it legal for a private owner to post rules for access to their private property? MR. INABA: Access to the shoreline. MS. STRANCE: Well, I don't want to mix terms, because there's public access to the shoreline that is established, enabling public access; and then there is private property. You know, a private property owner can limit access or prevent access to their private property, and then it allows public access to their private property. And they carry some risk of their own in allowing it. MR. INABA: Okay, and I think that's part of the problem here. Because like Council Kimball said, and we know Hamakua is mostly cliffs, very few places to access the water. So if private landowners are determining when and if the public can access, one of the few areas on that coast, that's where I think we're running into a problem. Page 10 FC-26 January 18,2022 And I know you mentioned that Council resolutions are nonbinding, so it's up to the Mayor. Do you have any idea on—and obviously the administration is choosing not to pursue filing this in court. So do we have other options as a Council? Because this Council has on numerous occasions supported this action, and here we are again with the public crying for help. So do we have other options that we can pursue moving forward? In a bill format, or what's it going to take? Because we don't even know what the rules are right now and what we're restricting the public to. MS. STRANCE: That I would have to get back to you on. The only one that jumps out at me, and I don't know whether it would meet the qualifications is sort of a conservation easement under PONC (Public Access, Open Space and Natural Resources Commission). But I would want to consult with my colleagues on the use of this property for something like that. MR. INABA: All right. So I'm going to yield at this time; but I do before doing so, I want to acknowledge a lot of the people—obviously I'm young, but all of the people who've come before me to fight for people's rights to access the shore. People like Chair David, people like Council Member Eoff, who put in so much work, yet we continue to have these types of problems. So we need to figure out what we're going to do about this, because this County and especially the people of Hamakua should not have to be dealing with this kind of nonsense. So Chair, I yield. CHR KANEALI`I-KLEINFELDER: Thank you, Mr. Inaba. MS. DAVID: Chair? CHR KANEALI`I-KLEINFELDER: Ms. David, go ahead. MS. DAVID: Thank you. And thank you, Ms. Kimball, for bringing this forward. It's a hana hou on something that was very controversial back in the day. And thank you for the explanation of where we are today. I don't really expect any answers given what you said, Judge Strance, about liability and how it might impact the County. But I do have some your reference to that resolutions do not have the force of law, and therefore this new resolution, the Mayor is choosing not to move forward on because it doesn't have the effect of law when we—it's basically a request. But it was a determination that because the first resolution contained the description of the entire property, this new resolution would be—would pretty much fix that. And so I guessI'm looking at this as we paid $72,000 for a mistake on the original resolution, and for the cost of that litigation. And now that we have the correct description, we're not going to do anything based on Page 11 FC-26 January 18,2022 liability; and the fact that if we move forward, then it puts us as a County in a position where we would have to address the public safety issues, et cetera, et cetera, as we do in all our County parks. My concern is the access to this place has always been historical and generational. So what I'm hearing now is that we have now turned that historical access to gather, this is constitutionally protected, over to a private landowner. I believe that's something that Mr. Holeka Inaba was alluding to. And for me, the reason why we're not, is because through eminent domain—we cannot pursue it through eminent domain. And I think the question isn't how we confirm or protect this right, or how we do an eminent domain, but whether right pre-existed this owner, and I think it did based on all of the testimony. So now you are this decision not to move forward. I feel the County, if they're talking culture, if they're talking preserving how important culture and traditions are to protect based on the constitution, then this needs to be moved on or taken to the next level. Because eminent domain might not be in my mind the only way to address this, I'm not sure. I'm just throwing this out there. Why not condemn the property or the area that's in contention as opposed to taking it by eminent domain? We've condemn property for roads. We've condemn property for other reason. To me, the precedent that this private landowner is setting has a real, real bad impact or precedents on the very thing that native Hawaiians have been fighting for. And so, I find this very, very disturbing. So I'm not going to ask you any questions, but I'm just throwing it out there because this is more serious than just a method of how do we maintain this through eminent domain, condemnation or anything like that. I think we have established that through the people that lived there for generations, no, that they came first. So I'm not—you don't have to answer me, Judge Strance. We just needed to tell you that this is very concerning. And how we approach this—and if we did a new resolution to correct what we've done, I'd rather see us go for it. And then even though we spend any more money, I think it's worth moving forward. How? I'm not sure. But the main to me, the most important thing is what I just explained. So how you folks decide to do it, and how the administration decides to do it, is going to be critical. And I just want to keep that lines of communication open for now because this is very concerning to me. So thank you very much, and I yield. My time is up. CHR KANEALI`I-KLEINFELDER: Thank you. Thank you, Ms. David. MS. STRANCE: Council Chair David, I want to make sure that I didn't misstate. So my understanding is that in evaluation of whether or not the trail fell within Page 12 FC-26 January 18,2022 legal definition of historical trails was undertaken, and it was determined not to have met the criteria. A new case was not intended to include exercising eminent domain under the entire lot. It was intended—my understanding was that it had been narrowed to a public access easement; and if that was going to be the intended purpose of the that was—and would need to be the intention moving forward. It's just that when the property description was initially obtained, they obtained a complete description of the lot, rather than just the description of the area, to be granted the easement. And I don't know whether there was an intention to include a parking lot, which would, you know, they would have made it more than an easement. I don't have that knowledge about the history of it. I just wanted to make sure that I was clear that it appears that the evaluation of whether or not the trail itself is historic has been undertaken, and it was found that it was not. And it wouldn't be possible to hold the area in a proper proceeding, that would include just the easement area. The concerns around liability that are expressed are limited to the, as I understand it, and you can correct me if I'm wrong, about whether it's related to the easement trail and not the entire lot. CHR KANEALI`I-KLEINFELDER: Thank you, Ms. Strance. Ms. David, did you want to respond to Ms. Strance, or did you want to yield? MS. DAVID: I think she just wanted to clarify the statement. That's fine. Thank you very much. CHR KANEALI`I-KLEINFELDER: Okay. Thank you, Ms. David. Council Members? MR. RICHARDS: Yeah, Chair? Richards. CHR KANEALI`I-KLEINFELDER: Mr. Richards, go ahead. MR. RICHARDS: Yeah, thank you. Just want to echo the concerns for access. I don't think I'll be as eloquent as Chair David. But my concern remains the same geographically, Hamakua Coast is very limited. You know, I'm from Kohala. We have the cliffs, not near as Hamakua, but we have access points that PONC has worked very diligently to keep getting those for the community. So I won't take up a lot of Council time, but I echo the concern for seeking that way forward. And we can have the further discussion when we need to later, but I think that has to be kept on the front burner. Thanks, Chair. I yield. Page 13 FC-26 January 18,2022 CHR KANEALI`I-KLEINFELDER: Thank you, Mr. Richards. MS. VILLEGAS: Chair? CHR KANEALI`I-KLEINFELDER: Ms. Villegas, go ahead. MS. VILLEGAS: Yes. Just really fast, I want to make a statement that I concur wholeheartedly with the statements made by my colleagues, Holeka Inaba and Maile David. I recognize Chair David's historical knowledge and wisdom in dealing with these issues, and I heed her concerns as these decisions relate to what sets precedence in the future. I would urge this administration to reconsider the capacity for courage and leadership as we continue to navigate as a County, really extreme issues. And this area of this coastline having such limited access capacity, and the potential for bait and switch, and the selling of real estate, and unsecured agreements for access. I encourage this administration to utilize all sense of courage as you know, we continue to have these great sustainability summits and TEDx Talks, and part of that is the health, cultural practices, and wellbeing of our communities. And I see this as, while it may be complex, there is an opportunity for a resolution here, if the sights are set on ensuring that the public access to this shoreline is provided for and protected in perpetuity. And that is the will of the people and it has been stated whether or not a resolution is legally binding or not. The will of the people has been represented by this Council a number of times, and the Council before that. I don't envy you, Judge Strance, in the complexities associated with this, nor do I envy Mayor Roth. I can see the propensity for wanting to err on the side of caution and avoiding any complications, but things aren't getting any simpler. I think we make decisions based on our values, and I recognize here that my values lie with the people of this area, and the values of this Council in passing a prior resolution asking for the administration to follow through and secure access to this coastline in perpetuity. So thank you for listening to my two cents. Chair, I yield. CHR KANEALI`I-KLEINFELDER: Mahalo, Ms. Villegas. Council, further questions? Okay, Ms. Kimball, maybe you have follow-up questions? MS. KIMBALL: Chair, Council Member Lee Loy has a statement, and then I will go. CHR KANEALI`I-KLEINFELDER: Okay, thank you, Ms. Kimball. Ms. Lee Loy, go ahead. Page 14 FC-26 January 18,2022 MS. LEE LOY: Thank you, Chair. First of all, Lee, good to see you. I don't think I got to wish you a Happy New Year. I was wondering, in your statement you mentioned a couple of things that kind of perked up, and I was just wondering if you were able to submit that statement to the Council as a communication related to this? MR. LORD: Yes, I can. I will do that after the meeting. MS. LEE LOY: Great, because I—what I heard in that statement, and I might be paraphrasing, was a number of the Council was advised by Corporation Counsel about the validity of the resolution. MR. LORD: No, I don't believe it said anything about the resolution. I think what it does say is that they were advised not to go forward with the case. As the words implied, we wouldn't win. So it didn't have anything to do with the resolution wording. MS. LEE LOY: So one particular Council Member and Corporation Counsel contemplated this issue; and I just wish I had your statement in front of me so that I can better understand what you were sharing. MR. LORD: What Mr. Roth shared, was during the last administration, staff at the Corporation Counsel advised the administration and the Council Member against moving forward for liability reasons, which was also supported by the Risk Manager hired by the County. MS. LEE LOY: Thanks for that, Lee. Really, I appreciate it. MR. LORD: You're welcome. MS. LEE LOY: So I'm trying to digest all this information, and everybody knows I'm a big advocate, good information helps us make good decisions. And I'm also hearing that there's been more information that's been presented since that decision. Like Ms. David and Mr. Inaba, I think access is critical, and we're all trying to find a way. So Judge Strance, I'll re-ask,just very directly, how would we go about doing this? MS. STRANCE: How would you go about—? MS. LEE LOY: Securing this access for the public. Page 15 FC-26 January 18,2022 MS. STRANCE: I'd like to consult with my colleagues in my office to make sure that what I'm thinking is correct, and get back to you. MS. LEE LOY: That's perfect, because I don't want to debate the issue about whether a resolution is binding or nonbinding. It's a policy statement from this body. But we also pass resolutions to move money, to raise taxes. We use a resolution as a vehicle to do actionable things alongside the administration. But what's more alarming is we had to pay a property owner $72,000, and that was their attorney fees and costs. What's not being highlighted here is the time it took Corporation Counsel in court for this. So this is already costing us a lot of money; and if their attorney costed $72,000, ours costed that, if not more. And so we're already putting a lot of resources into this. I'd rather put our resources into how make it happen, rather than fighting over the nuances of eminent domain, and whether it's a historic trail. Ms. David mentioned something real interesting that we condemn a road for public purpose. Why don't we start looking at this trail as a road, because that's what it would have been historically? I mean,just—we've got to find a way, Judge Strance; and if you could help this body. It's what the community asked for, for a very long time, and I just really want to see us put our heads together, as Mr. Chung says, and give them an access. Because my concern is it's open except one day a year, and I understand legally that's how they keep it in private ownership, is that one-day closure keeps it from going from private to public. And so, let's just put it all on the table. As Ms. Kimball said, we have a property owner who is willing to do it, but who knows what happens after we're all no longer here? Thank you for those considerations. Managing Director Lee Lord, if you could please share that statement and make it part of our file, that would be incredibly helpful. I yield. MR. LORD: Yes, I will. Thank you so much. CHR KANEALI`I-KLEINFELDER: Thank you, Ms. Lee Loy. Ms. Kimball, back to you. MS. KIMBALL: Yeah, thank you. And thank you to all my colleagues for your comments and your thoughts on this. I think we're all in agreement that this access is important. And I hope that the administration and Corporation Counsel can continue to work with my office and figure out a way to make this happen. I think some valuable suggestions were made. I did want to mention that this was put forward in the last cycle as a potential PONC purchase, so we'll get those rankings soon. I know it didn't do well primarily because of an unwilling seller, but that doesn't mean we can't keep Page 16 FC-26 January 18,2022 trying again on that, and that we can't proceed a negotiation on that. I think the condemnation approach is also interesting. The other comment I wanted to make was just about the difficulty in identifying historical trails in Hamakua, between the climate and then just the extensive change in the landscape made by the plantation industries, there's very little historical trails. It's not like the west-side, where they stand out a little bit more. I actually went to DLNR (Department of Land and Natural Resources) to review their historical trail records, and there is the only one that really stands out in Hamakua is the Old Mamalahoa Highway, and that has always been the way that people have traversed there. So there is a shortage of evidence for these places that are historical, although we do know that this was a traditional access place through other mechanisms, whether it's stories, chants, family history, and things like that. So I'm hoping that we can maybe pursue that identification again as a historical route, as well. Thank you, Chair. I yield. And I'll just let your know that Council Member Chung has his light on, as well. CHR KANEALI`I-KLEINFELDER: Thank you, Ms. Kimball. Mr. Chung. MR. CHUNG: Yeah, thank you. Mr. Lord, what—how were the landowners making the trail available to the public? Could you go over that again? MR. LORD: The words that were shared with me, they keep it open MR. CHUNG: I cannot hear, sorry. MR. LORD: I'm sorry. They keep the trail open 364 days a year. They close it one day a year. MR. CHUNG: So it's—and what about the hours? MR. LORD: I don't know the hours. I'd have to get that for you. MR. CHUNG: Yeah, maybe if you can get back to us on that. But anyway, I'm going to make some comments. And I do apologize in advance to my colleagues, because there is not going to be any flow to this one. It's just going to beI'm just going throw out thoughts, okay. First of all, you know, let's look at it from the perspective of the landowner. The landowner certainly doesn't want to be saddled with any kind of potential liability, right? Okay, so we get that. On the other handoh, and also, this resolution, you know, although it is a policy statement, by its own terms it authorizes proceedings. It doesn't direct the administration to pursue eminent Page 17 FC-26 January 18,2022 domain, or to initiate an eminent domain proceeding. So it's you know, it could be construed as meaning that it's really up to them. Having said that though, and I did sign on to this resolution, I voted in favor of it. It is a policy statement; so I think it would behoove the administration, that if you know, they had concerns; for example, liability to the County, of course not the landowner, but to the County. And also, when I looked at the transcript of this, I had my assistants text me the transcripts, it seems it was also discussed. There was discussion about ADA(Americans with Disabilities Act) compliance; and you did too, Judge Strance, as well as parking. So you have all of those collateral issues. But if after being apprised of all of those and the cost to the County and potential liabilities, the Council still feels that this is something that should be pursued, you know, I think the administration, in going against the policy statement of the Council, should at least come back to us and get our input. And maybe it can redone, I don't know, okay. But I just want to draw everyone's attention to the comments that I made during the course of this discussion, because I knewI recall making a lot of comments on this, but I couldn't recall exactly what they were, okay, because of my age. So I had to have my memory jogged by looking the transcripts. And I still stand by it, okay. I reference what Maile had mentioned as being a constitutional right. If it's a constitutional right, then we don't need eminent domain. I said that at the very—during the course discussion, for the resolution. We don't need eminent domain. What the County could do in assisting the public, if it believes that is something worthwhile pursuing, is to perfect their rights, their constitutional rights. Whether it's traditional rights, or some thing that derives from, you know, some prescriptive easements. Now, I know what's problematic here, it's what was brought up by Judge Strance. You know, I don't know if this is something that should have been done in an Executive Session or not, or whether it's public knowledge, you know, at this point. But there was something said that there's no defined trail, or something, you know. There'sI can't recall what the precise term was. Yeah, and that I guess, in and of itself, becomes a bit problematic,but I think there's a way to work around that. But let's look at it this way, if there is no—if the public doesn't have any kind of constitutional right to that trail, then what they're asking for is really up to the landowner, and whatever they can get, they should appreciate. That's one way of looking at it. And if there is a right to that, that's existed all of these years, but why the hell do we have to buy that? Why do we as the County have to spend money and buy it, and expose ourselves to liability? Just help the public go ahead and get those rights. There must be some mechanism, Quiet Title or whatever it is. I don't know what, you know, that's not my field of expertise. Page 18 FC-26 January 18,2022 But I always felt that eminent domain wasn't the right way to go on this. But I supported it; and as a policy statement, it still exists. So I—you know, I would urge the administration to at least give deference to that policy statement. And that's all I have to say. Thank you. CHR KANEALI`I-KLEINFELDER: Thank you, Mr. Chung. Any more comments from the Council? Okay, hearing none. I'd just like to share a few things. Originally, Valerie Poindexter brought this to the floor. There was a lengthy discussion. I mean, ultimately on my end, this is public access. And I, being new at that point, was just incredulous that with all the constitutional law, the protections available, that we don't have that we're not able to hold this access open to the public. This is—while you can argue this is not historical, it hasn't gone through the correct process. People been fishing there since they were kids, and this is uncles that explained to me they used to go there a long time ago. The guys that I know who surf, surf there since they were babies. And the glass the bottle you find along the beach is because people went their to dump rubbish off the cliff. It's historical. You get landowners, and this goes for across the island, they come in, they take the land, they don't want to provide access. I understand the liability on private landowners part, but I just can't believe that we as a government, State or County, cannot require that access to be open and available at all times. It just it blows my mind. It really blows my mind. In the words of Valerie Poindexter, this would be "bullsh." And the first time she said, I cracked up laughing because I just couldn't believe she said it. But, it really is. We've got to do better. It's not because this Council wants it; it's because the public is asking for it. And this is kind of that point where you contenting growing now between the public and the landowner. There's going to be a breaking point. You know, I think people need to stand up for their right. When we as a government are not able to provide what they're asking for, there comes a point where the public is going to step up and do it themselves. You know, I would fully support whatever it would take on the public's end to make sure this access is open to them. There's no question to me about historical access to this area. And the community has asked us to make a statement. They're asking us to, you know, ask why we've dropped it. Reality is, we shouldn't have dropped it. We should be proceeding. No matter what it takes, we've got proceed and get it done. I mean, Mr. Lord, Ms. Strance, have you guys visited the area? Have you been down there? How's the parking? Nonexistent, yeah? Was it one? Two stalls, maybe? Ms. Strance, have you visited the area? Page 19 FC-26 January 18,2022 MS. STRANCE: I have not. CHR KANEALI`I-KLEINFELDER: What was that? MS. STRANCE: I have not. CHR KANEALI`I-KLEINFELDER: Okay. Now I used to surf there, a long time ago. I guess, these guys haven't surfed there in a long time. I haven't surfed in a long time,period. But, I mean, years, years ago it was four-parking spots; and if you cold find a spot, then good. And then you walk down the trail to the ocean, it's beautiful. It's a beautiful place, but more so it is a good surf-break. There's limited surf spots along the coastline, and given our population, they're crowded already. So, this is another access area for surfing, for fishing, for everything else. Now, from what I am told, you have to park at Pinkies, hope your vehicle is okay, and then walk down the road to the access point, then walk down to the beach. So, I just think we've got to do better. For our community, we have to do better. I would say, no matter what the cost. There shouldn't be a cost to protect constitutional rights. And that's my two cents, yeah. Ms. Kimball, thank you for brining this forward and speaking up for the community. MR. CHUNG: I have another comment. CHR KANEALI`I-KLEINFELDER: Yes, Mr. Chung, go ahead. MR. CHUNG: Yeah. You know, I just want to underscore what both you and Ms. David said, you know, in terms of having a right to this. You guys because I think everybody kind of missing the point over here. If there's a right, whether it's historical, cultural, constitutional, we shouldn't have to pay for this thing. It's just a matter of enforcing that right. So I think it's kind of irresponsible to say, "Hey, you know, no matter what the cost." There isshould be no cost on all of this. Let's kind of just shift our paradigms on this thing, okay? I mean, as I said, I signed off on this matter, eminent domain, let's try to do whatever we can. But we're barking up the wrong tree. So, let's kind of get out of that mindset, as much as we can; are able to, anyway. If we still can go with eminent domain, well, whatever. But let's think of different ways of doing this thing. If there's a right, pursue the right. That's all I'm saying. Thanks. Page 20 FC-26 January 18,2022 CHR KANEALI`I-KLEINFELDER: Thank you, Mr. Chung. I would say, I do remember your comments from the meeting that we had via the resolution, and you had, I think, and correct me if I'm wrong, you had reservations about the way that we were going to move forward, and possibly for this very reason. You know, again, I was still learning my way around the Council; but here we are, and we're still stuck. And I would have to agree, why do we have to pay for something that is a right. So I greatly appreciate that comment, and there's a lot of truth to that. I would say it actually lends a hand to what Maile David and I are saying. It's no so much that we want to pay for it. Or maybe that's mine. I don't want to speak on behalf of Maile. We shouldn't have to pay for something like this, and it should just be done. That's how I feel, and that's how I felt the first time this came around. Thank you, Mr. Chung, for that. Unless there's anything else from the Council, any more comments or discussion? Okay, seeing none. Ms. Kimball, again, thank you for brining this forward on behalf of your community. This does affect, I think, everyone on the east side of Hawaii, if not, the whole island, given public access, but also access to surf areas which we are very much limited to right now. So, thank you for bringing it forward. With that, we have a motion on floor to close file on Communication 573. All in favor, Council? Vote on Comm. 573: The motion to close file on Comm. 573 was carried by the Filed following voice vote: Ayes: Committee Members Chung, David, Inaba, Kierkiewicz, Kimball, Lee Loy, Richards, Villegas, and Chair Kaneali`i-Kleinfelder—9. Noes: None. Absent: None. Excused: None. CHR KANEALI`I-KLEINFELDER: That brings to the end of our agenda. ADJOURN- There being no further business, at 12:55 p.m., Ms. Lee Loy moved to adjourn MENT: the meeting. Seconded by Mr. Inaba and carried by the following voice vote: Ayes: Committee Members David, Inaba, Kierkiewicz, Kimball, Lee Loy, Richards, Villegas, and Chair Kaneali`i-Kleinfelder—8. Noes: None. Absent: Committee Member Chung— 1. Excused: None. Page 21