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HomeMy WebLinkAboutCOM 0343.022 2012-2014 1 Murashige, Laura �,✓I�� �i 54 From: toni withington [sundownertoni @yahoo.com] Sent: Monday, December 02, 2013 9:54 AM To: counciltestimony @co.hawaii.hi.us Subject: Res. 140 13 Kohala Kai LLC Grant of Easement Attachments: Kohala Kai council test..doc Attached is my written testimony for the above item on the Finance Committee Agenda for Dec. 3. mahalo, Toni Withington o c) C-, Comm.No, 3�''3' �� Ref.To: r/iG Ref.Data. EL 4 1 U13 12/3/2013 Resolution No. 140 13 Hawaii County Council Finance Committee Kohala Kai LLC Grant of Public Easement December 3, 2013 Testimony of Toni Withington Hawi, Hawai'i This document is flawed. It violates the County's public trust and needs to be re-drafted. It was drawn up with almost no public input. Through delays and manipulations of the Planning Department Rules and Regulations, the County has managed to diminish rather than enhance the public's rights along the coast. The precedent it could set is a major blow to public access rights. I believe these problems can be worked out through negotiation. Fourteen years ago a five-lot subdivision was proposed for the land now owned by Kohala Kai LLC. Because the estimated cost of improvements was declared to be below $120,000 the County granted a Minor SMA Permit. No public hearing was required. Owners were told to submit a public access plan within 6 months of the Dec. 1999 permit. Now the subdivision is 11 lots. The infrastructure alone is estimated by the owner to cost $4.5 million. The Planning Department restricted public discussion to one public hearing and did not uphold the recommendations of the North Kohala Community Development Plan. The private project has grown, but the public access originally proposed has been cut back. The historic Ala Loa is to be turned into a private golf cart road: Instead of locating the public trail on the historic Ala Loa, as is recommended by the North Kohala Community Development Plan, the Planning Department has authorized modification of the Ala Loa into a private golf cart path for lot owners and guests leading to an authorized private clubhouse near the only cove on the property. The public will be walking on an owner- constructed trail seaward of the cart path. The size of the easement: From 1999 to April 2013 all documents associated with the public access easements at Kohala Kai describe them as being 20 feet wide. The Grant of Easement before you is for 10-foot-wide easements. Who maintains the trails: From 1999 to April 2013 all documents indicated the developer would construct and the subdivision would maintain the public trails. The Grant of Easement before you says the County shall maintain both public trails. Parking is a long dangerous walk away from the mauka-makai trail: From 1999 to April 2013 all documents have described the required public parking as being "in close proximity to the mauka end of the mauka-makai trail." The Grant of Easement before you has the public walking 160 feet on the skirt of a high-speed highway and another 200 feet on a trail along the highway before reaching the trailhead to the ocean. Trail description downgraded: The April 2013 draft of the Public Access Plan describes the trails as "a minimum 6- foot wide walking area with a graded earthen surface to allow reasonable pedestrian passage." One month later May 2013 the trails are to be "a cleared or constructed earthen surface." Access to historic sites and burial eliminated: The State Historic Preservation Division in 2000 wrote: "Public access must be ensured to enable the public to see the sites" and burials that were to be preserved. No mention of this public right is identified in the Grant of Easement. Recommendations of the North Kohala Community Development Plan ignored: Planning Department overlooked the recommendation of the NKCDP to put coastal trails on the Ala Loa or traditional trails where possible. Nor did the department consult or share documents with the NKCDP subcommittee on public access. Did the County's actions meet State law regarding public participation in Public access decisions? The Special Management Area permit applications (SMA Minor Permit No. 84 and SMA Major Permit 06-10) Both state that the project will meet the objectives and policies as provided by Chapter 205A of State law which says: (Quoting from the above applications) "Communicate the potential short and long-term impacts of proposed significant coastal developments early in their life cycle and in terms understandable to the public to facilitate public participation in the planning and review process." It is my view that the County failed to do this, and should now do it right. I believe the interested parties in North and South Kohala are willing to work with the land owner and County to iron out these differences. Here are the details of the above statements: The historic Ala Loa is to be turned into a private golf cart road Despite evidence in department files, including three maps, indicating that the traditional jeep road along the coast is the Ala Loa, the Planning Director on Feb 25, 2013 accepted the location of the public access trail as constructed by the landowner seaward of the Ala Loa. A Planning Department communication says "Trail construction was done without prior review and approval by the PD." The North Kohala Community Development Plan, Ordinance 08-151, adopted November 2008, states that the coastal trail from Pololu to Kawaihae "should follow the Ala Loa where it can be identified or traditional fishing trails." Even before the Public Access Plan was approved in May, Kohala Kai was granted use of the Ala Loa alignment for a golf cart path to be used by owners and guests in a letter dated March 6, 2013. Two months later on May 23, 2013 the director approved the construction of a "private community building and recreational canoe shed" along the golf cart path near the cove used by locals for fishing and swimming. The private clubhouse will have a kitchen, restrooms, showers, an outdoor barbecue area and a covered lanai. The canoe shed will "store the Project lot owners' outdoor recreational equipment." The size of the easement: The Special Management Area (SMA) permit applications, dated November 1, 1999, June 14, 2002 and Jan. 31, 2008 as well as the Land Court maps submitted with the SMA dated as recently as Aug. 19,2011 describe the mauka-makai and lateral trail easements as being 20-foot wide. SMA Minor Permit No. 84 says "A 20-foot wide easement for a lateral public pedestrian shoreline access is being provided. The lateral public access has been delineated within the 40-foot shoreline setback area of the property and extends the entire ocean frontage." SMA Major Permit No 06-10 says: "From the northwestern boundary of the property, the mauka-makai pedestrian access will be located within a 20-foot wide "Public Pedestrian Access" easement. Along the shoreline the pedestrian access will be located within the property's 40-foot shoreline setback area in a 20-foot wide "public pedestrian access" easement." The Land Court Map shows both trails (Easement F) as being 20 feet wide. The Public Access Plan, submitted to Planning Department in April 2013 and accepted by the department in May 2013 (with revisions) describes the mauka-makai and lateral trails as "A public pedestrian access easement on existing trail (being 10-feet wide). . ." The Grant of Public Access Easements currently before the County Council includes the same 10-foot easement description. Who maintains the trails: The Cultural Impact Assessment submitted by Kohala Kai as part of the SMA permit application says "The public access easements will be maintained as part of the proposed Kohala Kai development; and will serve to mitigate any impacts relating to coastal access and the use of the shoreline for fishing." The SMA Permit 06-10 issued in May 2006 says "The public access easements will be maintained as part of the development and will serve to mitigate any impacts relating to coastal access and the use of the shoreline for ocean activities. A condition will be included requiring that the public pedestrian and access easements be improved for public use." When the developer submitted the Public Access Plan in January 2013 the condition to construct the trails was acknowledged. But the text said: "Kohala Kai shall have no responsibility to maintain, control, implement or provide public accesses upon and through the project." In addition to the county taking over maintenance of the trails, "the County shall assume all liability for maintenance and control of the public access easements." The plan calls for all "night fishing activities through a permit system managed by the County of Hawaii pursuant to Planning Department Rule 21, and does not include the right to overnight camping." In response the Planning Director wrote saying "We request that this section be amended to provide for maintenance of the public accesses by Kohala Kai or any successor homeowner's association." The Grant of Public Access Agreement before the County Council says Kohala Kai will only be responsible for maintaining the pedestrian public trail in the two small places where the private and the public pathways overlap. Other than that Kohala Kai "shall have no responsibility to maintain, control, implement or provide pedestrian public access upon on through the Project. The Grantee (the County) shall be solely responsible for maintaining, controlling, insuring and repairing all remaining sections of the trail. . ." Also the County will bear all costs of relocating the trail should the land under it be eroded away or destroyed. Parking a long dangerous walk from the mauka-makai trail: The SMA permits describe the public parking of a minimum of three spaces "in close proximity to the mauka end of a mauka-makai pedestrian trail." Neither the SMA Permit 06-10, the Tentative Subdivision Approval (dated Feb. 13, 2009) or the Grant of Public Easement document before the County Council mention that in order to get to the mauka- makai trail the public must leave Kohala Kai property and walk along the pavement of Akoni Pule Highway for approximately 160 lineal feet before returning to Kohala Kai property for an additional approximately 200-foot distance along the highways to the proposed trail. This requirement of the public to walk beside traffic going 55 miles per hour only appears in a footnote at the bottom of page 2 of the Public Access Plan submitted in April 2013. Trail description downgraded: SMA Permit No. 06-10 says: "The trails shall be constructed or their construction shall be bonded prior to Final Subdivision Approval, to standards meeting with the approval of the Planning Director." The trails were constructed by Kohala Kai LLC prior to submission of the Public Access Plan. The location and condition of the pre-constructed trails was approved by the Planning Director during a site inspection Jan. 31, 2013 with slight modifications that were approved April 18.2013. That was the month Kohala Kai submitted a draft Public Access Plan in which said: "The lateral pedestrian public trail shall have a minimum 6-foot wide walking area with a graded earthen surface to allow reasonable pedestrian passage." A month later, without any communications appearing the department files regarding the trails, a Final Public Access Plan was accepted saying "The lateral pedestrian public access trails shall have a cleared or constructed earthen surface to allow reasonable pedestrian passage." The 6-foot wide graded trail somehow got lost. Access to historic sites and burial eliminated: In reviewing the historic sites preservation plan, the Hawaii State Historic Preservation Division called for signs with minimal interpretation on the 6 sites, including 2 burials, identified as well as buffers and maintenance. The letter dated Oct. 16, 2000 says: "Public access must be ensured to enable the public to see the sites." There is no provision for site visitation in the Public Access Plan or Grant of Easement. Recommendations of the North Kohala Community Development Plan ignored: No mention was found in Planning Department files of communication between the department and developer about the public access recommendations of the North Kohala Community Development Plan. The Kohala Kai Public Access Plan, required as a condition of both SMAs, was not submitted to the department until April 2013, five years after the NKCDP became a County Ordinance in Nov. 2008. Neither the planning department nor the land owner provided a copy of the draft Public Access Plan or the Public Access Grant of Easement to the NKCDP Action Committee or its subcommittee, the NK Community Access Group. Copies of the access agreement were provided to the Access Group by County Council members in August of this year just prior to the first hearing of this resolution.