HomeMy WebLinkAboutCOM 0853.031 2010-2012 Testimony of Chris Yuen
County Council Nov. 9, 2012 '
Resolution No. 308-12
-7 23
Council Chair Yagong and Members of the County Council:
The question before the Council is whether it should pass Resolution 308-12 to
purchase a pedestrian public access easement to the beach at Papa'ikou.
The answer is yes!
This was the clear message at the public hearing held at Papa'ikou Gym on Oct. 10.
About 300 people attended—an almost unprecedented turnout in such a small
community. The vast majority were in favor of the resolution. And the resolution
is supported by 5500 people who signed the petition.
The purchase will assure permanent public access to the ocean. Over the years, the
state and county have bought land along the ocean, creating beach parks like
Richardson's, `Ahalanui, and Kekaha Kai. The public never regrets these
acquisitions later. People are always glad that the elected officials of the past had
the foresight to obtain these lands for public use. Future generations will feel the
same about the current Council if it passes this resolution.
The Papa'ikou area has few recognized, legal shoreline access points. While there
are informal trails used by `opihi pickers and fishermen, with unclear legal rights,
Papa'ikou would be the only officially recognized public access in the 3.5 miles
between Honoli'i and Onomea Bay. And in the nearly 50 miles between Hilo Bay
and Waipi'o Valley, the major sand/pebble beaches are Honoli'i, Hakalau, and
Papa'ikou, with a tiny one at the mouth of Alakahi Stream in Onomea Bay.
Some hesitation has been expressed about the use of eminent domain to buy a
public access easement. Our laws make it clear that this is a proper function of
eminent domain. In fact, the laws direct the counties to use eminent domain to
purchase public access easements to the shoreline. H.R.S. sec. 115-2 says: "...the
various counties shall purchase land for public right-of-way to the shorelines, the
sea, and inland recreational areas... H.R.S. sec. 115-6 says that "the provisions of
this chapter shall be executed under provisions of chapter 101" [the eminent
domain law].
The public owns the entire shoreline up to the high wash of the waves, but in many
places, the land in between the shoreline and nearest public road is privately owned,
and the public cannot reach the shoreline. Without access, the public is locked out
of one of its most precious possessions—the shoreline. If the County,Qolla. 8'C 3. 3
valuable parcel of land that was entirely landlocked by surrounding pfWate t'/ C-4/144'141 1
Ref. Date NOV 0 9 2012
property, it would use eminent domain to buy an access. The situation at Papa'kou
is exactly the same: the public needs access to a prized public resource.
Eminent domain for public shoreline access is as legitimate, and as necessary, as
its use for roads, sewer lines, drainageways, and schools. Eminent domain is a tool
that has been used by the federal, and state and local governments, thousands of
times over hundreds of years, for every conceivable public purpose. It is not a
hostile act against the private property owner personally, either in general or in this
case. It is no more hostile than, for example, acquiring the right-of-way for the
Kapi'olani St. extension, or the Mamalahoa Bypass.
The property owner has suggested an alternative path that they would develop and
then be willing to sell to the County. I personally think that this idea has potential;
others may disagree. But clearly, a number of hurdles must be overcome before
we can know whether this is even feasible. There was a meeting between one of
the property owners and some of the advocates for public access, including
Papa'ikou and Silverton Camp residents, on Oct. 29, arranged by Council Chair
Yagong. While the meeting was useful, and long overdue, in starting some basic
communication and clearing the air, no consensus has emerged and the hurdles to
an alternative path remain unsolved.
Those of us advocating for guaranteed public access continue to urge the Council
to pass this resolution now. There will be time between the passage of the
resolution and the actual beginning of eminent domain in which alternatives can be
further explored. We are more than willing to continue talking. If another solution
can be found that guarantees permanent public access with reasonable terms, the
Council can reconsider this action later, before spending money, up to the actual
filing of an eminent domain action in court.
This concludes the main part of my testimony. The remainder of this written
testimony deals with side issues the property owner has raised, especially in his
Oct. 16 presentation. None of these are directly affect whether the Council should
authorize the purchase of this easement. If councilmembers are interested in these
issues, they can consider the following responses. They are not crucial to the main
point of the resolution at all.
2
SIDE ISSUES
1. Road vs. Flume? The issue here is an unlabeled line on an 1878 map, Reg. Map 910,that
runs northerly from the bay at Papa'ikou. The relevant portion of this map—which covers a
larger area—is attached as Ex. "1". The unlabeled line we are discussing goes north from the T-
shaped structure at the coast,which,we will see from Ex. "2B",was a pier next to a large
building.
The property owner contends that this unlabeled line is a flume,based on some related sketches
by the surveyor. But please look at Ex. "2A"and Ex. "2B",photographs taken in 1878 from
slightly different angles at slightly different times. Both show that at least the lower portion of
this unlabeled line is a road. They show a road switchbacking between the wharf and some
uphill buildings. The switchbacks correspond to the"squiggles"on the unlabeled line on the
1878 map. Now, Ex. "2A"also shows the end of a flume at the uphill buildings. Unfortunately,
we cannot tell from either photo whether the road or the flume goes mauka from that point,
although it seems likely that both of them did, because both a road and a flume would have some
uphill connection.
When a surveyor draws a continuous line that depicts a road for part of its length, it is only
logical that the remainder of the line also depicts a road. It is also logical that there was a road
leading to the wharf and mill at Papa'ikou from the main government road, which is shown on
the 1878 map in approximately the same location as the Old Mamalahoa Highway today.
Otherwise,how did people get from the main road to the mill and wharf? Certainly they did not
just cross a half-mile of fields at random places. They would have used a set path.
It is certain that Mill Road existed along its current alignment at least by 1915. See the portion
of the 1915 USGS map attached as Ex. "3".
This issue—road or flume, or road and flume—doesn't affect the validity of the action called for
by the resolution. The resolution treats this as an acquisition of private property, for fair market
value, as if there were no existing public rights to cross the property.
2. Permissive Use of Mill Road.
The property owner presented evidence of periodic closures of Mill Road by the sugar company,
and signatures—in 1959—of people, including Silverton Camp residents,acknowledging that
this usage was by permission of the sugar company. It is hard to understand what the relevance
of this is supposed to be. Silverton Camp residents testified about their use of a trail or trails to
the beach at the end of Mill Rd. There is certainly no evidence that the sugar company made
them sign statements that their use of this trail or trails was permissive.
In the 1950's,the sugar company subdivided Silverton Camp and sold the lots to the residents.
With their deeds came easements to use Mill Road, and after that,their usage was clearly by
right,not by permission.
Again,the resolution calls for the purchase of a pedestrian easement over Mill Road. It does not
depend upon the current existence of a public right to use the road.
3
3. "Disappearing"Beach.
The property owner presented photos purporting to show that the beach is disappearing. We
shouldn't jump to conclusions based on a few photos. Pocket beaches at rivermouths are very
variable. The sandbar beaches at Honoli'i and Hakalau, for example,periodically disappear,
then return.
There is a big difference between the time of mill operations in the 1970's and the present. Back
then, large shoreline areas were covered by mats of bagasse. These mats of bagasse have indeed
gone, and greatly changed the appearance of the bay.
Whether the beach at Papa'ikou will eventually disappear is a question that I am not qualified to
answer, and I suspect that the property owners are not qualified to answer either. We do know
that the shoreline is dynamic, and can change. The sea level is rising, and the island is sinking.
Conditions at our various beach parks may change as well. But the end of this trail will likely be
a desired and valuable shoreline access long into the future. Even without a beach,there would
be a river mouth entering into a sheltered bay, with relatively safe access into the water, and a
surfing break.
4. Property Owners' Need to Use Trail.
The property owners have also testified about their need to use the trail to remove mill debris.
The easement would not be exclusive;the property owners could still use it; and if there needed
to be controls for periods so heavy equipment could haul out debris,this is the type of thing that
can be worked out between the county and the owners in the future.
4
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