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HomeMy WebLinkAboutCOM 0853.021 2010-2012 • FINANCE COMMITTEE MEETING ' ' 2012:10:16 Corn 853.10 Presentation by James Waugh and Charlene Prickett (01)WHEREAS,the beach at Papa`ikou is one of the few sand beaches on the coast north of Hilo;and "one of the few sand beaches" There are actually many sand beaches on the coast north of Hilo;almost every stream has a sand beach of some sort at least part of the time. This beach is currently one of the largest sand beaches on the coast between Hilo and Waipio. But this beach is a product of sugar plantation activity,and since that activity has disappeared,so too is this beach. Early photographs(1878)clearly show that no beach was present here. The first observation of sand appearing at the mouth of Kapue Stream was recorded in 1907. Sand is a product of the extensive soil erosion that occurred under the intense farming of sugar cane that began just a few years before 1907. The finest soil particles were carried out into the ocean by the stream as enormous brownish red plumes,but the heavier particles,sand,dropped out when the churning of the stream ceased at the coastline. Even as late as the 1940s,photographs show nothing but water at the location of the current beach. After mechanical harvesting began later in the 1940s,large quantities of rocks were trucked in mixed with the cane,and waste rocks began to be dumped into the bay. The rocks formed an armature on which sand could gather. By the time of a 1952 air photograph,rocks and sand had accumulated to form a beach in roughly the same location as the present beach in 2012. By the time of a 1965 air photograph,the beach had extended more than 75 yards past the Hamakua end of the Mill platform and had become so hard and stable,the plantation had begun to do work and even build on this area. Anecdotal reports without photographic evidence suggest that sometime in the late 1960s or early 1970s,sand extended to the mouth of the 1946 cane pit. However,from the early 1970s when the EPA banned dumping into the bay,both the rock pile and the sand have been on the retreat due to ocean and stream erosion. By about 1980, some two years after sugar production ceased at Papaikou,when bagasse had left the bay, and storms could do their work, the beach had already fallen back behind the 1965 line. The crest of the beach is presently hundreds of yards farther inland than it was in 1970. The quantity of sand and rock is much reduced. With better farming practices,a shift away from tillage crops, and more limited farming, this beach will likely become just another of the "disappearing" beaches common on this coast and quickly will return to a state not unlike what was seen in the 1870s. Let me show you some slides: Comm. No._ S3.Z-1R Ref.To: 1 6 CUlC Ref. Date. 2 (05)WHEREAS,an 1873 map,Registered Map No.910,shows a road to the vicinity of the beach at Papa`ikou in the approximate location of the current Mill Road;and "an 1873 map" This so-called map is undated and is merely a surveyor's working sheet. It could not have been drawn before 1878(for it was not until February, 1878, that Lyon's Papaikou field survey was carried out) and the sheet continued to be developed for a decade or more after that. Lyon was very meticulous in his survey notes to label everything. No"road" is shown "in the vicinity of the beach at Papa`ikou". The unlabelled line referred to in the resolution as a road is elsewhere and variously described with much better authority in the surveyor's own notebooks(pp.55 and 57)as a flume and a ditch. Since he had already labelled the same line two times already as a flume and a ditch,he had no need to label it a third time on his third sketch(p.55). The only detailed official map known to have been produced from this working sheet is Reg.0939(ca.1879),and in the vicinity of the present-day beach,Lyon shows,following the direction in his own notebooks,an unlabelled ditch or small stream cascading over the pali and into the ocean. That official map does not show a road at all near the mill in Papaikou. This is in contrast to the situation,in the near vicinity,at Puueopaku,where a road is shown and labelled at Pahoehoe Stream(p.53). The same occurs at Paukaa where Lyon does record a road and labels it"road"on the working sheet. That road also appears recorded as a road on the later official map. But no road is shown in Papaikou near the mill. Materials with FC already: Working sheet, RM.0910 Map, RM.0939 Lyon 1878, p. 54, 56, 52, RN.0316 Let me show you some slides: Lyon map Ellis map 3 (15)WHEREAS,there may be a public right to overland access to the beach at Papa`ikou based upon the Highways Act of 1892,prescriptive usage,implied dedication,or other legal means, but to establish such public rights would require litigation which could prove expensive;and "Highways Act of 1892" The operative word here is"may". Both the County and Na Ala Hele have written definitive letters on this matter with respect to the Highways Act. Sugar company closing records and our own records show there are no grounds for "prescriptive usage",or"implied dedication". This issue requires proof to succeed,not a maybe. A number of those who, in testimony to the Finance Committee, have claimed this sort of right through the earlier generations of their families will find that those earlier generations were entirely aware those rights did not exist and signed documents so stating. Tulang, Estillore, Lyman, et al. testimony about use: Matsunaka swimming in egg pond, skating in sugar warehouse. Everyone of the old-timers has stories to tell about what they did on the mill site in small-kid time. I have recorded many. This is the second or third time this general topic has been mentioned in the Resolution,so it is worth it to lay out some of the rigour involved in the property closing effort. Let me show you some slides: 4 (18)WHEREAS,Tax Map Key(3)2-7-004-118 consists of about 16.9 acres,but the path, according to survey,is only about 1,117'long and 10'wide,and occupies about 0.5 acres,mostly on a slope that is unusable for other purposes;and "unusable for other purposes" The so-called path was built as a road to give heavy equipment access to the sugar factory for its demolition and has already been used for this purpose,the demolition of two lower level factory buildings in 1996. It remains eminently suitable for this purpose and will be used again. Our road provides access to the"back"end of the factory buildings and bringing heavy equipment up and down this treacherous slope is essential to the safe and efficient continuing demolition of the remaining buildings. The central portion of the sugar factory is a very crowded area and it drops as much as 20 feet below adjacent floor areas. It acts as a barrier to demolition vehicles which would have to work from both sides of it,the"front"and"back"ends of the factory. Much work in this regard remains to be done. The road will,in fact,be required again for this purpose in the future according to several of the contractors interested in the work. It may well be that such uses are incompatible with a public trail. But this road is not unsuitable for the purpose for which it was originally built. (19)WHEREAS,a pedestrian easement over the path would allow public access to the beach at Papa'ikou,while continuing to allow the private owners to have the beneficial use of their remaining property;and "beneficial use of their remaining property" The path also provides access to the landowner's lower level agricultural lands,lands that have so far been only partially developed because of vandalism and theft. Already,however,we are growing approximately 200 Hawaiian hardwood trees of various species in this area. Without the access,there would be no ability to use our sizeable remaining property in this vicinity. The land slopes from both sides towards the trail, and it would be impossible to mow or otherwise maintain these areas with a fenced trail in place at the bottom of the steep side slopes. The farm road was built to provide access to our land on a very difficult slope. Removing the trail from farm road use would be equivalent to suggesting people would have no trouble accessing their houses in a city if they were unable to use the road system! Several acres of our property would suddenly be made inaccessible. 5 (24)WHEREAS, Section 115-2 of the Hawai`i Revised Statutes provides in part that"the various counties shall purchase land for public rights-of-way to the shorelines, the sea, and inland recreational areas";and HRS Chapter 115 was enacted to encourage the counties to create shoreline and mountain accesses where there are none,as it says in 115-1,for"mites". It is an unfunded mandate. Honolii,the major surf location in East Hawaii,is barely one mile away,not"miles"distant. Also,the permitted access at Mill Road in Papaikou has,despite this surf spot's much smaller capacity,rules modelled on those used at other County beach and water parks. "Access"might actually end up being more restricted than it is now if the Papaikou access were taken by the County, once the County has reviewed its potential liability and taken into account the reasonable protections needed by adjoining residents. Under 115-3,there needs to be some consideration taken of the fact that the present trail is not—and could not be made—ADA compliant(or even"safe"). The County is already deficient in this regard and can ill afford to make itself even more deficient. A good argument could be brought against the County that if it is to spend new money on ocean access,it ought to go towards ADA compliance which could benefit some tens of thousands of people,not just to purchase a non-compliant access(where an access already exists)and serves only a few hundreds of people. The clear intention of this statute is to provide access where none is available now. In the present case, permitted access has been provided by the current owner for 18 years a long and substantial record. Since the current owner is the only small landowner on this coast to be providing permitted access, and for free, this seems an inappropriate application of the statute, which would better be brought to bear against some of the neighbouring properties which are actually closed—and the County itself is included on that list of closed properties. Condemnation and purchase would not necessarily change anything. And it would expose the County to substantial costs,first to acquire the access(access is already available free of charge),and on an ongoing basis in assumed maintenance and liability. 6 Niels Christensen's testimony on October 10"', 2012, on getting trespassed: On June 18`h 2010, a very inflammatory letter to the editor from Christensen was published in the Hawaii Tribune Herald regarding us and the land we own at Papaikou, and the beach. On September 25',2010,Christensen was caught trespassing on our land carrying out an illegal survey. When Christensen appeared at our gate on February 2', 2012, I happened to be there and I had every reason to believe he did not intend to come onto our land for recreational purposes. On that date,I heard some sort of disturbance out on the street,and I decided to hang about the gate just to see what followed, pulling the man-gate closed just in case. Paul Sulla (lawyer), Niels Christensen (surveyor), and James Kuriyama (Surfrider Foundation) appeared at the gate; I recognized Christensen, and Sulla had a rolled paper(which looked like it might be Christensen's folded and rolled"map"of our trail)in his hand;none of them had boards or beach gear. I told them they were not to enter. Sulla protested and attempted to push the gate open, but I held it closed. Kuriyama insisted it was a public access and they had a right to use it. Sulla said "I think it is a public access"in response to my saying read the sign; this is private property. After a few minutes of back and forth,they retreated up the road and I reopened the man-gate. I stayed near the gate for perhaps another ten minutes, and returned toward it to greet a group of surfers heading down to the beach. However,the three trespassers followed right on their heels,and although I attempted to get to the gate to shut it, and although they had been warned ten minutes earlier not to enter, Sulla got himself into the gate opening so I could not re-close the man-gate. Instead, I held out my arms to block them, warning them again that they were not to enter because I did not want them on the property, but Sulla forced his way past on my right and Kuriyama pressed past on my left with Christensen following. Short of grappling with them,there was nothing I could do to stop them, so I advised them from behind that unless they left, they were trespassing,and I would call the police. Sulla said I should go right ahead and do that, that they were within their rights, and at 17:33 I did make the call. The lawyer, Sulla,backtracked after getting about 50 or 60 yards onto our property down the beach trail, while I was in the middle of my conversation with the police dispatcher— immediately after I told the dispatcher his name. As he left,he said to the others"Maybe I shouldn't be here." Christensen and the surfer continued on to the beach with me following right behind them, and they talked to a couple of the surfers who were still on the beach putting on their wet-suits. Christensen and Kuriyama then left going back through our gate at 17:49;Sulla was waiting for them on the road, on the other side of the gate. I followed them on up Mill Road, and finally, in front of our driveway ma uka Mr Ono's house,we were intercepted by the police,officers Victor McLelland (who talked to them), and Cory Hasegawa (who talked to us). At our request, the police issued notices of trespass to all three, Christensen, Sulla, and Kuriyama. The officers left about 18:30. 7 Tony Guiteras' testimony on October 10`n,2012, on getting trespassed: On January 6`h, 2006, I wrote Guiteras a letter regarding his family's use of quads on our private property, requesting that he stop this activity immediately. On January 23rd, 2007, I again wrote Guiteras regarding his family's use of dirt bikes on our newly-tilled farm fields,advising him to stop or I would be forced to take further action. On February 7', 2007,we heard gunshots shortly after 6 pm I went out to find Tony Guiteras and perhaps half a dozen friends out on our land shooting at a pig in the gulch in the direction of the nearby houses along Kapue Street. Despite my sense of danger with the guns present, I told him to get off our land and the group slowly complied. We decided to have a notice of trespass issued to him. This was someone who had ample warning to adjust his behaviour over more than a year,and yet continued to take no responsibility for his actions and for putting others lives and property in jeopardy. Kalani Lyman's testimony October 10th,2012, on Norman Lyman's memorial: Good Friday was a day by which Norman thought everything needed to be madepono. Good Friday, 2012, was almost 16 months after Norman had died on the beach trail. His memorial stone in Homelani Cemetery had already been up for at least six months. The beach trail memorial was run down and neglected now. Out of respect for Norman I determined to put that place right for Good Friday. I worked almost four hours on the Thursday before Good Friday, cleaning up all the beer cans,dead plants,rotting lei, and other debris,all now overgrown with weeds. I used the rocks and sand to repair the beach trail where Norman had last walked up alone, and I sprigged the shoulder area where he died with grass to have it ready for "Norman's day". I did this out of respect for Norman and his memory, not to desecrate the Lyman family's memorial. In addition, I would like to point out that it was our property managers who called 911 the day Norman died; it was Alisa Michael, one of our property managers and a registered nurse,who administered CPR until EMS arrived. When I returned in January, 2011, one of the first off-site things I did was to visit Homelani Cemetery and pay my respects at the grave site where Norman had been so recently buried. I also did some investigation of having a memorial stone made for Norman to be placed on the trail,and we approached one of his sons to see if there was something we could do together. He never did get back to us about it. In October,2011,ten months after Norman died, I again went to Homelani to pay my respects and observed that the family had already placed a memorial stone for him there. As mentioned earlier,Norman volunteered to help us with our closing day for half a dozen years prior to his death and had become a friend over that time. We would do nothing to disrespect his life or his memory.