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Home My WebLink AboutCOM 0343.029 2012-2014 Pa IFCof 1 CO' '°.' -Y r1._F c Murashige, Laura Co PI,ti. 34-3 From: oneheartl @hawaiiantel.net 7013 BEC 6 PV1 ) 36 Sent: Monday, December 16, 2013 8:39 AM To: counciltestimony @co.hawaii.hi.us Subject: Opposition to Resolution 140-13 Attachments: Kohala Kai 121713 testimony.docx Aloha, Please attached testimony. Mahalo. Comm.No. 303. '29 Ref.To: P/Pc Ref. Date, DEC 1 7 20t1 12/16/2013 December 16, 2013 Aloha Madame Chair and members of the Hawai'i County Council Finance Committee, We oppose Resolution 140-13 for the following reasons: 1. If Resolution 140-13 passes,the constitutionally-protected ala loa trail will be irreparable harmed. This is because acceptance of the proposed Grant of Easement by the county council is the last condition preventing final subdivision approval by the Planning Director. The right to use the ala loa trail as a right-of-way is a constitutionally-protected right under Article XII, Section 7, Hawai'i State Constitution recognizing Native Hawaiian traditional and customary practices and use of the ala loa trail right-or-way is a traditional native Hawaiian right. Since Kohala Kai's subdivision plat maps currently exclude the ala loa trail right-of-way and have no easements protecting the ala loa trail, if the county council passes Resolution 140-13, it will join with those who will be legally responsible for the destruction of the ala loa trail on this property. 2. The county has an affirmative duty to protect public trust resources, including historic sites, and native tenant rights. The county does not have the legal right to accept an easement that undermines that rights to the ala loa trail, which are reserved for native tenants in the Land Grants, Royal Patents and Land Court Applications, because the ownership of the ala loa trail remains with the State. The description of the boundaries of the Mahukona-Kawaihae/ala loa trail is not contained in Land Court Application No. 1036. Under Revised Laws of Hawai'i (1935) Section 5041, public highways whose boundaries are not described are exempt from certification of title. The Main Government Road boundaries are described in the 1938 stipulation between the Territory of Hawai'i and Bishop Trust Company, but those of the Mahukona-Kawaihae/ala loa trail are not, so ownership of the ala loa remains with the State. In fact, the ala loa trail alignment is still shown in a LCA No. 1036 map dated 1967, thirty years after the 1938 stipulation. 3. E Mau Na Ala Hele,the non-profit organization that has focused on preserving and perpetuating our island's trails along with their associated historical,cultural, and natural features for over 30 years,the North Kohala Community Access Group, and the Ala Kahakai National Historic Trail have all requested that the coastal public access easement at Kohala Kai be located on the historic ala loa trail/jeep road. Public testimony in the 12/3/13 Finance Committee meeting was unanimously against Resolution 140-13. The North Kohala Community Development Plan calls for the location of the shoreline trail to be the ala loa or traditional trails where possible. Kohala Kai and the Planning Department have ignored all of this. 4. Resolution 140-13 is legally flawed. The Special Management Area Minor Use Permit No. 84 referred to in the resolution was improperly issued by the county. The developer stated in their SMA application that improvements for the subdivision would not exceed $120,000,yet it was subsequently secured with a Set Aside Letter issued by First Hawaiian Bank for$410,000. Therefore,final subdivision approval for Subdivision 7495 is revokable. In addition, Minor SMA Permit No. 84 expired in 2009, but was reinstated by the Planning Director without regard to the conditions to SMA Major Use Permit No. 06-000010 and public access. The county approved Subdivision Nos. 7495 and 7635 without legal protections for the ala loa and mauka-makai trail alignments. 5. The Grant of Easement and Public Access Plan are legally flawed; elements of the two SMA applications and approvals (SMA Minor Permit No. 84 and SMA Major Permit 06-10) have been changed to the public's detriment in the Public Access Plan and Grant of Easement. The easements on both trails were decreased from 20-feet wide to 10 feet wide. Responsibility for maintenance of the trails was shifted from Kohala Kai and successors to the County. Public parking "in close proximity to the mauka-makai trail" was located over 100 yards from the trail requiring walking on the highway for 160 feet. Trail construction description was changed from "a minimum 6-footwide walking area with a graded earthen surface" to "a cleared or constructed earthen surface." Public access to historic sites and burials was eliminated. The shoreline trail was constructed by Kohala Kai in violation of the SMA because it was built prior to submittal of a Public Access Plan without Planning Department review. Location of the trail was never allowed public review before approval. 6. Kohala Kai violates state land use law. Kohala Kai is within the state Agricultural Land Use District, meaning that residences must be "farming dwellings" that are part of a farm or farming operation. However, the Planning Commission's letter to Glen Koyama dated June 16, 2006, it states, "The proposed subdivision is intended to meet the demand for large, oceanfront lots in the north and south Kohala coast area." In addition,the Planning Department approved a recreational center and canoe hale that is directly related to residential, not agricultural, uses. These structures were allowed, despite that they are not contained within Kohala Kai's SMA permit applications. Mahalo for this opportunity to testify, Laura Lahilahi DeSoto-McCollough Halau kahula '0 Nawahine noho Pu'ukapu Diane Kaneali'i for Kailapa Homestead Association Toni Withington for Kamakani o Kohala Ohana Kona Hawaiian Civic Club Jeff Sacher South Kohala Hawaiian Civic Club Josephine Tanimoto