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HomeMy WebLinkAboutCOM 0092.040 2004-2006 Claudia Rohr 369 Nene St. Hilo, HI 96720 96720 934-8040 Apri16, 2005 RE: Bills 355 and 356 Dear Honorable Chair Gary Safarik and County Council Members, PUBLIC ACCESS SHORELINE HAWAII ("P.A.S.H.") is a citizen's organization which is centered around protecting public rights to access public coastal lands for subsistence usage and recreation. We oppose passage of Bills 355 and 356. P.A.S.H. opposes any more approvals for development in this case where the initial Subdivision 7644 was finalized without full consideration for protecting public access to the shoreline and without due process or equal protection under the law. Public access to the shoreline was compromised in part by procedural irregularities involving required County Council approvals. Public access to the shoreline for Continental Pacific, LLC's initial increment I (Subdivision No. 7644) does not comply with HCC Chapter 34 spacing requirements nor have the public access easements committed under the April 12, 2002 Settlement Agreement for Board of Appeals and Subdivision of Continental Pacific, LLC's Lands been properly notated on Subdivision 7644 plan, as required by law. This initial subdivision No. 7644 covered 1300 acres, including the creation of Bulk Lot 70 containing part of the project azea now being considered for proposed development. SUB 7644 received final approved in .lanuary 2003 despite this irregularity. The public accesses for SIJB No. 7644 have not been created and perfected by any means and it is not proper procedure for the County Council to review and approve Bills 355 and 356, which would allow Continental Pacific, LLC to proceed with acquiring new land use approvals without the County and the public receiving and reviewing the public access easement conveyance documents for the underlying SUB No. 7644. Mr. Yuen is mistaken and needs to consult the SUB No. 7644 map and HCC Chapter 34. Here are the facts of law: 1) By definition in HCC Chapter 34 public access must be continuous from a public highway or public street to the shoreline. The public accesses to the shoreline as committed in the April 12, 2004 Subdivision Agreement aze not properly included on the subdivision 7644 map. The Settlement Agreement states in part C.2: There shall be public vehiculaz access allowed on Pepeekeo Mill Road [R-I and R-2], and along the Old Railroad right-of--way [R-3, R-6, R-5], the present road along Waimaauou Stream (unless equivalent vehicular access is provided) [no easement shown for access over lot 98], a new 10-foot wide driveway from Railroad right-of--way down along Kapehu Stream to the public access pazking area at the Beach Road cul-de-sac [P-17], and along the segment of road leading makai from the Banyan Tree on TMK (3)2-8-9:1 [R-7], to various public parking easements, as shown on Exhibit "A." Comm. No. -1 Ref. To:~y~ Ref, vote APR 6 ~nn~ T have noted the corresponding easement identification delineated on the SUB 7644 map in brackets. The only vehicular easement, from those listed above, shown in the table of SUB 7644 map as a vehicular access easement in favor of the County of Hawaii is the new 10-foot wide driveway from Railroad right-of--way down along Kapehu Stream to the public access parking area at the Beach Road cul-de-sac [P-17]. The rest of the vehicular access easements listed in the Settlement Agreement, part C.2 are shown in the table as road and utility easements "in favor of the Pepeekeo Point Gardens Association and/or the Pepeekeo Point Shoreline Association" with nne avrepti~n iuhj~h is not lahelPd at all_ the rnrPePnt rnarl glnng Waima4aiwn~~ Cirawm_ thPra is r2~ easement shown for access over l,ot 98. Therefore, Continental Pacific, LLC is in breach of Its contractual obligations committed in the Settlement Agreement, part C.2., which states in part: The vehicular easements, public parking areas and access road(s) thereto shall not be "County highways", and shall be designated on the final subdivision maps as easements for public vehicular travel and parking over private property. 2) By failing to comply with part C.2 of the Settlement Agreement, Continental Pacific, LLC is also failing to comply with HCC Chapter, Section 34-8, which states in relevant part: (c) The public access shall be clearly designated on the final map of the subdivision in accordance with the subdivision rules and regulations. 3) By failing to convey the public access easements Continental Pacific, LLC is delaying the official opening of the public accesses, which is prejudicial to the public. The Settlement Agreement, part C.5 states in relevant part: The various vehicular and pedestrian public access easements described herein shall not be officially open to the public until easement documents have been accepted by both parties and the easements conveyed to the County. 4) The words of Chris Yuen at the September 16, 2004 Planning Commission hearing , (pg. 22 middle of page), described the situation best: "So, at the moment, it is a matter of good grace by the landowner that the public access is physically open." 5) It is inherently prejudicial to the County and Its people for the County Council to approve any more development in the Pepeekeo Makai subdivision when the legitimacy of the underlying subdivision is in question. 6) The underlying SUB 7644 must comply with all of HCC Chapter 34 requirements prior to processing any new land use approvals. An accurate shoreline plan must be produced and the public allowed to review it before any more entitlements considered. 7) County Council reviews and approvals of Bills 355 and Bills 356 are invalid because of basic prejudicial error in procedure. 8) The County Council must send Bills 355 and 356 back to the Planning Commission to avoid legislative malfeasance prejudicial to the public. This is the only leverage there will ever be to get access agreements negotiated and properly documented. P.A.S.H asks for positive consideration and ask the Council to uphold the law to implement planned public accesses located within SUB 7644 as committed by the Settlement Agreement can be properly formalized and conveyed to the County. Sincerely, C~,~~~ Claudia Rohr ~oa~rr~ pY1~~~~~t~