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HomeMy WebLinkAboutMIN PWPRC 2018/11/19 2016-2018Committee on Public Works and Parks and Recreation 28th Session West Hawaii Civic Center 74-5044 Ane Keohokalole Highway, Building A Kailua-Kona, Hawaii November 19, 2018 CALL TO The regular meeting of the Committee on Public Works and Parks and Recreation ORDER: was called to order at 1:34 p.m., in the Council Chambers, Kailua-Kona, by Ms. Maile Medeiros David, Acting Chair. R(1T T CAT T Present: Ms. Maile Medeiros David, Vice Chair Mr. Aaron Chung, Member Ms. Karen Eoff, Member Ms. Susan L. K. Lee Loy, Member Ms. Eileen O'Hara, Member Member Ms. Valerie T. Poindexter, Member Mr. Herbert M. "Tim" Richards, III, Member (came in later) Absent & Excused: Ms. Jennifer Ruggles, Chair STATEMENTS The Chair directed the Committee to proceed to the next order of business, FROM THE Statements from the Public on Agenda Items. PUBLIC ON AGENDA ITEMS: The following individuals registered to speak in regard to Resolution 748-18 (Comm. 1157), and came forward when called by the Chair: Jon Olson, comment. Richard Bidleman, comment Georgette Anne Yaindl, in opposition. (representing 19 homeowners of Leilani Estates) Robert Ramsdell, in opposition. Marianne Farrell, in opposition. Philip A. Denney, in opposition. PWPRC-28 November 19, 2018 Geoffrey Last, in opposition. Vicki Stump, in opposition. Bridget Milligan, in opposition. Brian Jordan, in opposition. Hendrika Ruder, in opposition. Cheryl Carroll, in opposition. Kalia E. Avery, in opposition. Eliot Rosen, in opposition. Patty Jones, in support. Harriett Steele, in support. Robert Golden, in support. Lisa Frazer, in support. James Tucker, in support. (representing Leilani Community Association) Andy Andrews, in support. Pete Wilson, in support. Jay Turkovsky, in support. (representing Leilani Community Association) Michael Garbarino, comment. (representing Leilani Community Association) ACTING CHR. DAVID: At this time, I'm closing public testimony. COMMUNI- The Chair directed the Committee to proceed to the next order of business, CATIONS: Communications. (There were none.) Page 2 PWPRC-28 November 19, 2018 ORDER OF The Chair directed the Committee to proceed to the next order of business, Order RESOLUTIONS: of Resolutions. Res. 748-18: AUTHORIZES THE TEMPORARY CLOSURE OF LEILANI AVENUE PURSUANT TO CHAPTER 24, ARTICLE 7, DIVISION 3, SECTION 24- 153.3(B) OF THE HAWAII COUNTY CODE 1983 (2016 EDITION, AS AMENDED) Authorizes the Mayor, in consultation with the Police Chief, the Civil Defense Administrator, and the Public Works Director, to enter into an agreement with the Leilani Community Association concerning the barricading of Leilani Avenue, which may remain in effect during the period of the road's temporary closure to the general public to prevent loitering and illegal trespassing onto private property. Reference: Comm. 1157 Intr. by: Ms. O'Hara Motion to Approve: Ms. O'Hara moved to recommend adoption of Res. 748-18. Seconded by Mr. Chung. ACTING CHR. DAVID: Go ahead, Ms. O'Hara. MS. O'HARA: Okay. I know the Council is not that well-acquainted with this area, back in the woods. I just asked Scott to print a map of Leilani (see Comm. 1157.2), because just discussing this out of the blue is like me talking about one of your Kona subdivisions that I'm unfamiliar with and I wouldn't know what street leads where. I have asked that a map be provided, so if you would allow me five minutes to check on that progress. ACTING CHR. DAVID: Thank you. We're in recess. Recess: At 2:36 p.m., the Chair called for a recess. Reconvene: The meeting reconvened at 2:49 p.m. ACTING CHR. DAVID: Alright, Council Members, I'm calling the meeting on Public Works out of recess at this time. And while we wait for documents that Ms. O'Hara is requesting—Ms. O'Hara, can you go ahead? MS. O'HARA: Okay, you have this resolution before you. It's fairly short. It was brought to my attention by the incorporated section of Leilani, which is as explained 2,046 lots. They're board, seated board, and its attorney had asked me to meet with them about the possibility of temporarily closing Leilani Boulevard until such a time as it can be opened to the general public. That was the origin of this resolution. It's based on—it's addressing the section of the Code that allows Page 3 PWPRC-28 November 19, 2018 for a temporary closure of a public street. It does not transfer the ownership to Leilani or privatize the road in any way. In drafting this, I had discussions with them about what it was they were trying to achieve, and what they wanted was some kind of certainty as to how Leilani will be barricaded to the general public. Leilani has become a terminated roadway. It used to extend from State Highway 130, and you could travel about three, four miles down Leilani Boulevard and you would reach Pohoiki Road, a County road. Because of the flow of lava across the bottom quarter, one-third of the subdivision, it has become a stub -out of a boulevard. It no longer continues to anywhere. All of the side streets—let me back up. Leilani Boulevard is County. It is County -owned and County -maintained. All the other streets that comprise the Leilani Estates subdivision are private. I think you've just received this map, and it doesn't show you the absolute top of the subdivision because it cuts off Highway 130, but you can kind of get the idea. Highway 130 is at the left-hand side of this map. It goes on down and jogs out. It used to connect to Pohoiki Road. No more. That whole bottom third, down where Kahuwai Crater is, that is now Fissure 8 and associated fissures that opened up after May 3rd. So it's been effectively terminated at the bottom. They have no other way out. None of these other roads connect to anything. What they're seeking is some relief in knowing whether or not the County is going to continue the checkpoint at the top or not? As we have seen from the administration's handling, that information has not been shared with the public until the very last minute. I was told at the beginning of October by the head of our Civil Defense that Mayor Kim wanted to remove the checkpoint as of the end of October. I advocated with Civil Defense to please let our Mayor know that it might be too soon to remove. We have no other lava viewing site. There's talk about it. A lot of talk, but nothing has transpired, and nothing is moving forward. Illegal tourism is already occurring within the subdivision. People were having their property trespassed on. Yes, there is looting and squatters but I'm sorry, there were looters and squatters before this event. The focus is on the unwanted tourism activities. So I pressed Talmadge Magno to tell the Mayor to please consider keeping the checkpoint at least another month. I was backed -up by Captain Quiocho of the Pahoa Police, who I met with just a couple days ago; because he recognizes that once that checkpoint is lifted, there will be a lot more calls for service. We, if you haven't forgotten, have one of the lowest ratios of officers to population in the State and in this County, so we don't have excess officers to use for unnecessary calls. So Leilani wanted to have a seat at the table in making that decision as to whether to lift barricade, keep barricade. This isn't about gating. This isn't about Section 1, which is ten percent of the estates against Section 2. This is about making this Page 4 PWPRC-28 November 19, 2018 terminated road temporarily closed to the general public to be prevent an unwanted nuisance, which is illegal tourism. That's all this resolution is about. It's temporary. Once, if it were to go into effect, it can be lifted at any time by the County Council. So that's what it seeks, and it was a way to avoid court cases. If the Council felt that way and wanted to support this, it would basically the "Therefore" in this resolution gives Leilani a seat at the table in discussing how to barricade this public road. They don't want to see it privatized. There is no consensus on gate. That's not the issue. The issue is to temporarily close it to the general public. So that's what Resolution 748 calls for. I think I've given a pretty adequate background, but if anybody has any questions, there are other people standing by who might be able to answer. But again, this is temporary, There were a lot of misunderstanding expressed in testimony. But this is not intended to gate the community. So, that's the resolution. ACTING CHR. DAVID: Thank you. Council Members, if you don't have any questions, I'd like to call up Corp. Counsel to give the County's position on this before— (Note: At this time, Corporation Counsel Joseph Kamelamela came forward to address the members of the Committee.) MR. KAMELAMELA: Good afternoon, Chair and Members of the Council. Joseph Kamelamela, Corporation Counsel. I really appreciate the fact that I heard a lot of testimony being stated because I think that's going to help us make a decision here. First of all, I just wanted the Council to know that I had actually did a site visit of Leilani Estates back in August 22nd. I'm familiar with Leilani Boulevard, and because of that familiarity I think I would be able to address the requirements that we have to look at in determining whether this is the appropriate vehicle in which to move forward. The reason why I say whether it's the appropriate vehicle—because I actually had discussion with Mr. Garbarino in October; when he had written an email to me, citing 24-153.3, Subsection (b), Hawaii County Code. In it, he had indicated why he believes the Code was appropriate. But I gave him a call and told him, "From what you had stated, it's really not applicable; this is not the way you go about it." So this is something that's now had resurfaced again, a resolution like this. I'm going to go through what the requirements are in looking at Section 24-153.3. Essentially, it says in order to authorize a temporary closure of the roadway, there are the following conditions that exists. Not something that is going to exist, you know, it's something that exists. So in it, there are four things that it says that you Page 5 PWPRC-28 November 19, 2018 need. One is, Leilani Avenue is a stub -out, dead-end, or similar road terminus. You know, some people have their own definition as to what that is. But I'm more familiar with the definitions of these terms in relation to Public Works. Under the way that the Public Works Director had looked at this, this is not a stub -out, this is not a dead-end, this is not a road terminus. Why isn't it a stub -out? Because usually when you talk about a stub -out, it's at the end of the road and it's going to be connected to someplace else. That's a stub -out. This is an avenue that at the end there's lava on the road. That's clear. So is it a dead-end or is it a similar road terminus? You have your own definitions of that. But what I know, when I went out there in October, at the end of Leilani Avenue there's a guardrail, going right across the road, letting people know you cannot venture pass this section of the road because there's lava field over there. So there is a barricade towards the ending part of Leilani Avenue. In my discussions with Attorney Garbarino, I had asked him, "Where do you plan to put the barricade?" He told me at that time, "Near the entrance." Then I'm thinking, wait a minute, if you're going to have someplace near the entrance, what is that then? What's going to happen is, when you have it at the entrance, seeing what you see on the map, you're going to affect the flow of traffic, you're going to affect public access because there's different roads. As soon as you get in, there's the roads that goes around the parameter of the subdivision. And then, you have to cross streets. To meet this—Condition No. 2, it says the closure should not affect the flow of traffic or public access. It does. In talking to people about this section, people say, "Yeah, even emergency access that's going to be impacted trying to go through this." Condition No. 3 is the one that—it's clear to me because I haven't seen anything, any evidence, that the adjacent landowners had provided with written notification about this temporary closure by the requesting agency. Who are the requesting agency that's noted in this ordinance? It's Public Works and the Police. I haven't seen any evidence or hear anybody state that they had received, from either the Police or from Public Works, written notification of the road closure, and that's a critical significant element here that's missing. Now we have the fourth condition, whether it's necessary or not. Well, we have different testimony whether it's necessary or not. I'm not going to really address that issue because that really belongs to the County Council. I know that people had stated the reason for this resolution is to prevent a lawsuit. Hey, we just got sued last week. One of my deputies was already asked in the paper what we thought about the lawsuit/ Laureen Martin had stated in the paper—you know, as far as what she say, the constitutional arguments being brought up by counsel and Page 6 PWPRC-28 November 19, 2018 the association doesn't seem to apply. So, having this resolution didn't stop a lawsuit. Given all that what I've said, the conditions in order to pass a resolution like this does not exist. Thank you. ACTING CHR. DAVID: Thank you. MR. KAMELAMELA: Any questions? I'll be glad to answer. CHR. DAVID: Alright. Thank you very much. Ms. Lee Loy, go ahead. MS. LEE LOY: Thank you. You know, I have those four conditions in front of me, right here, Mr. Kamelamela. Couple of questions. Do all four have to be met to make the road closure or is it one of the four? MR. KAMELAMELA: Well, the way that I read it, when it says, "following condition," it means all. All four. So not getting one should be enough to disapprove this resolution. MS. LEE LOY: I have a follow-up. Because you also mentioned consultation with the Chief of Police, the Director of Civil Defense, Public Works, have any of them been consulted? MR. KAMELAMELA: I think there was some consultation. But in my communication with them, both had indicated that they did not request the temporary closure of Leilani Avenue. MS. LEE LOY: This is my last question, and more of a clarifying point. Because my understanding is this is for closure, the temporary closure. We're going to split hairs on whether it's closed or not; because the way I see it, it's allowing controlled access. MR. KAMELAMELA: Exactly. MS. LEE LOY: I'm having a real difficult time supporting this. I think, moreover, I don't want to get the County in the middle of a neighbor war. We have litigation pending, and I don't think that's a place where we want to be, is picking sides at this point. I'm going to let my other colleagues figure out what they're going to do. But I know my duty as a legislator and a policymaker, and the last thing I want to do is put us in the middle of litigation. So I'm not going to be supporting this resolution for all of the reasons stated. But just for that main reason, we should stay Switzerland in this one. I yield. ACTING CHR. DAVID: Thank you, Ms. Lee Loy. Mr. Chung, go ahead. Page 7 PWPRC-28 November 19, 2018 MR. CHUNG: Yeah, thank you. I wasn't really going to say anything, but this has peaked my interest. You know, I agree with Joe, first of all. All four of those conditions have to be met. In my opinion it could be argued that all four conditions have been met, arguably. I mean, you talk about first you have to consult Chief Engineer, Public Works' Director. You know, I think Ms. O'Hara did that. It won't impede flow of traffic, but when you close a road, it's obviously going to affect the flow of traffic. Then, you have some other things. The last one is the most problematic, I think. You know, whether it's going to address illegal activity. But if we really, really stressed it, we could say, "Yeah, there's some illegal activity," like trespassing. I think that's why Ms. O'Hara mentioned illegal tourism. I never heard of illegal tourism before. But let's just assume that there is illegal tourism going on over there, just for argument sake. Let me backtrack somewhat. I think, Joe, you probably know how this ordinance came about, right, because it was probably there when you and I were both at Corp. Counsel. It was because you had these subdivisions which weren't fully developed. And then you had these little stub -outs or cul-de-sacs, where you guys were going over and partying and causing all kind of problems for neighboring, right? That's how this whole thing came about. It didn't contemplate something like this. But let's just assume, arguendo, that this is a stub -out. I still have to vote against it. Sorry. I've got to say this. If I were in your position, I'd be fighting like hell for my constituency too. This is one of those situations where it looks like the Council can be the initiating branch. But this is really something that was meant for the administration to look at and see that there's a need to close a road, but they had to come to the Council for permission. That's why they use the word "authorization." It's not where the County Council can direct, or I don't even know what other word we could use. But this thing is going backwards actually, in my opinion, and that's why I have to say no. I'm going to be voting against it. You know, it doesn't preclude the administration from determining that there is a need to close a road, but I'd rather it come from you guys because you guys are better equipped to make that decision, I think. Thank you. ACTING CHR. DAVID: Thank you, Mr. Chung. Ms. Eoff, go ahead. MS. EOFF: Thank you very much, Madam Chair, Mr. Kamelamela, and my fellow Council colleagues that have spoken before I am. Page 8 PWPRC-28 November 19, 2018 Listening to the testimony, I was really uneasy because the whole time, without really even understanding as well as I do now, this provision in the Code, I just felt so uncomfortable that being a part of the Council that I would have to make this decision. It just didn't seem like I could do that. Listening to both sides of the arguments and the attorneys, andI just felt a gut feeling that it wasn't really my proper time to make this decision. So now I understand that there are other things that may need to happen before a decision like this should be made or initiated by the Council. Yeah, I don't think I can support it. I don't know what the answer is for that community. I feel like that they need to get together, though. Maybe a mediator, I'm not sure. It seems like there's a need to bring the community together in some way, but this wouldn't be the way. So, mahalo. ACTING CHR. DAVID: Thank you, Ms. Eof£ Anyone else before I close? Alright. Thank you, Mr. Kamelamela. You can have your second try. MS. O'HARA: I'm not trying for anything. ACTING CHR. DAVID: Well, your second chance to talk. MS. O'HARA: I appreciate all the comments made. Mr. Chung, if you're not familiar with illegal tourism, you need to come to Puna. Just this past week, Sunday, there were like 20 cars parked at what used to be Four Corners. It's still illegal to walk on a lava flow. But there were no people present, so all 20 of those cars, people had gotten out and walked on the lava flow. That's illegal tourism, and it's happening all over Puna right now. If the County would get it together to offer the lava viewing site, a lot of stress will be taken off of all of these neighborhoods. That's all I can say. But one of the things that came up when I was in discussion with the attorneys and the board on this resolution was a discussion you had with them, about saying these needs the only body that can decide this is the County Council. That was their understanding of your counsel, Joe. And it may not be the correct interpretation of what you said to them. I don't know; I wasn't there. But it appears that this ordinance can be acted upon by the administration and not the County Council. In fact, you're arguing that it has to be initiated by the Department of Public Works or the Police Department. That is actually not what their understanding was, of that discussion with you. They thought they had to bring something before the County Council. Page 9 PWPRC-28 November 19, 2018 So I am kind of relieved that—it has been stated publicly that, no, this temporary closure of a public road is something that the administration had told the administration they could possibly use. What Leilani is asking for, and in their lawsuit, is just to be a party to how that transpires. Having last minute notifications. Right now, the guard services is supposed to be extracted from the top of Leilani. The checkpoint at the top of Leilani is supposed to be closed on November 30''. They won't find out until that day whether or not it's closing and whether the street is being opened up to the general public because that's how the communication going up until now. All they want to know is what are the plans? Since the emergency declaration, currently in effect, extends until December 29, and it's my understanding that the Mayor plans to extend it until the end of May, why is the County not responsible for maintaining said checkpoint because it does put restrictions on their private property rights, under that emergency declaration? So all they know, is what are you guys going to do? Are you going to keep the checkpoint, not keep the checkpoint? Like I said, this was about barricading. It was never about a gate. All that other discussion is something that are current in the community that needs to be worked out. It's been going on for 25, 30 years, so that's nothing new. But really what's at stake here is once that checkpoint goes away, how much more additional tourism will be taking place in Leilani? People walking on Fissure 8, et cetera. That's really the grave concern. Understand that Fissure 8 is on private property. All of that lava field is on private property. So there's just no clear understanding of how the property owners are going to be impacted by that. So, if there's some way to work with them. Even this ordinance could be enacted by the administration. Shoots. Move on it. ACTING CHR. DAVID: Thank you, Ms. O'Hara. Anyone else? Seeing none. Mr. Kamelamela, thank you very much for your explanation of our role as this body and also who would be the requesting agency, or who has to be requesting agency in something like this. Council Members, all those in favor of approving Resolution 748-18 please say "aye." Vote on Res. 748-18: The motion to recommend adoption of Res. 748-18 Failed failed by the following voice vote: Ayes: None. Noes: Committee Members Chung, Eoff, Lee Loy, O'Hara, Poindexter, Richards, and Acting Chair David – 7. Absent: Committee Member Ruggles –1. Excused: None. Page 10 PWPRC-28 November 19, 2018 BILLS FOR The Chair directed the Committee to proceed to the next order of business, Bills ORDINANCES: for Ordinances. (There were none.) CHR. DAVID: A motion to adjourn, please. ADJOURN- There being no further business, at 3:17 p.m., Ms. Lee Loy moved to adjourn MENT: the meeting. Seconded by Ms. Poindexter and carried by the following voice vote: Ayes: Committee Members Chung, Eoff, Lee Loy, Lee Loy, O'Hara, Poindexter, Richards, and Acting Chair David — 7. Noes: None. Absent: Committee Member Ruggles — 1. Excused: None. ACTING CHR. DAVID: We are adjourned. Approved: L:A '--- Ms. Maile Medeiros 1 , Acting Chair Public Works and Parks and Recreation Committee MD/na /,P-- / Y- fes//oe, (Date) Page 11