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HomeMy WebLinkAbout2008-11-06 TBARSELL PLANNING COMMISSION COUNTY OF HAWAI‘I HEARING TRANSCRIPT NOVEMBER 6, 2008 JOHN AND SANDRA BARSELL A regularly advertised hearing on the application of (SMA 08-000029) was called to order at 11:01 a.m. in the County of Hawaii, Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawaii, with First Vice-Chairman Rell Woodward presiding. PRESENT: Rell Woodward ABSENT & EXCUSED: Rodney Watanabe C. Kimo Alameda Lani Bowman Takashi Domingo Frederic Housel Andrew Iwashita Shelly Ogata Ivan Torigoe, Deputy Corporation Counsel Christopher Yuen, Planning Director Norman Hayashi, Staff Planner Phyllis Fujimoto, Staff Planner IdeeC`qqnv+Rs`eeOk`mmdq L`hi`Bnsskd+Rs`eeOk`mmdq And three people from the public in attendance. APPLICANTS: JOHN AND SANDRA BARSELL (SMA 08-000029) Special Management Area Use Permit to allow the construction of a second single-family dwelling and related improvements on 16.9 acres of land situated within the Special Management Area. The property is located at 14-4934 Laimana Road in the Kapoho Beach Lots Subdivision, Puna, Hawaii, TMK: 1-4-002:036. WOODWARD: This is applicants John and Sandra Barsell requesting a Special Management Area Use Permit to allow the construction of a second single-family dwelling and related improvements on 16.9 acres of land situated within the Special Management Area. DARROW: Thank you, Mr. Chairman. Good morning, Members of the Planning Commission. If I could direct your attention to the wall for the next application. The applicants in this next matter are John and Sandra Barsell. They are requesting a Special Management Area Use Permit to allow the construction of a second single-family dwelling and related improvements on 16.9 acres of land situated within the Special Management Area. The location of the application is within the Kapoho Beach Lots Subdivision. Basically the yellow area, not to include all of it but about right in this triangle area here, is the Beach Lots Subdivision. You might also be familiar with Kapoho Vacationland. That’s on the lower EXHIBIT B portion of our map. The way that you would get to this particular property is from Pahoa. You would take the Pahoa-Pohoiki Road, I believe it’s 132, Highway 132, down to the Red Road or the Government Road, Pohoiki Road. And you have a direct access on Kapoho Road right into the subdivision. There is a gate located right at this particular location into the subdivision. The subdivision is gated. And just for clarification we did state under public access, which is No. 26 in our Background, that the Kapoho Beach Lots is a gated subdivision that is not open to the public for vehicular traffic, but it is open for pedestrians. We have learned since then that it’s actually a private subdivision. Although pedestrians have been unofficially allowed to go in, they are actually, officially would be considered trespassing at this point. The subject property is identified in black; and this is approximately 6.9 acres in size. The applicants are requesting a Special Management Area Use Permit to allow the second dwelling. This will include a two-bedroom one bath single family dwelling approximately 1174 square feet in size. It will be an elevated dwelling and it will include a 208-square foot lanai. This is an aerial photograph that we have of the area and the property. Recently the applicants had received approval for a conservation district use permit to allow the restoration of the fish ponds which are in front of the fishpond walls in front of the property on the makai side. The property is right in this general area. There are a lot of mangrove trees. You’ll see Kapoho Beach Lots Road coming in. The gate is probably approximately in this area. You have Laimana Road as well as Alapai Point Road, and this particular property is located right at the junction of those two roads. We have a little closer up of the property. Again, we have the reconstructed fishpond walls that are happening -. Right now I believe just in the general area there is a, the first dwelling was constructed in this general area. The second dwelling will be constructed approximately in this area and, again, that’s just a general. This is a site plan of the property. On the top portion of the map you have Alapai Point Road and you have Laimana Road coming in from the subdivision. We have the fishpond walls that are located out in the ocean. The location of the first dwelling is identified in blue and, again, the proposed second dwelling is identified in red on the property. The applicants have proposed to hold it back approximately 80 feet from the nearest fishpond or pond, which is identified in this area. So this is approximately 80 feet from the nearest pond. Conditions to mention, we do have several conditions we want to bring to your attention. Condition 8 requires the applicant to put in an aerobic septic system; and this is basically because Kapoho is an area that has been known for continuous subsidence. So they want to be able to make sure that there’s no overflow of cesspools or septic systems. An aerobic septic system would take care of that problem. Condition 10, it states that the dwelling shall be constructed so that the lowest habitable floor shall be not less than 18 feet above mean sea level. Right now the actual location of the second dwelling is at about 8 to 10 feet above mean sea level. That means that it will be raised approximately 10 feet higher for the first habitable floor. So it doesn’t have to go 18 feet high. It’s already at 8 to 10 feet above mean sea level. And, lastly, Condition 12 requires that the applicant submit a shoreline public access plan; and it goes into detail as to what that requires on Condition 10. The Planning Director is recommending approval with conditions. Are there any questions? WOODWARD: Any there any questions for Planning Staff? Commissioner Alameda. ALAMEDA: Maybe Mr. Director will answer my question so -. EXHIBIT B 2 YUEN: I just wanted to follow-up a little bit with a discussion about the public access condition. Jeff, could we have the slide with the overall Kapoho Bay area. DARROW: Sure. You want this one? YUEN: Yeah, that slide is probably the best. If you look at this slide, this shows the overall Kapoho Bay area; and then at the top of the picture there’s a Kapoho Beach Lots Road coming into the area. And the applicants, this is the Kapoho Beach Lots Road coming in. The Kapoho-Kalapana Highway is up here, the public highway. And then it comes down and then when -. A gate was placed here. I’m not sure of the exact date, but about, I believe it was sometime in the 1980’s. And it has an arm and it has spikes to prevent cars from being driven on the, around the opposite side of the gate. And access is currently restricted to the residents of the subdivision which includes guests. I’m not sure exactly how they handle bed and breakfast and vacation rental guests because there are quite a few in the subdivision. And so apart from what I’m going to discuss in a minute or two, there is no public access in the subdivision. Just out over here is what people call Champagne Pond which is on the 1960 lava flow; and there’s a way to drive to Champagne Pond. You really can’t get along the shoreline very well here just because of, there are seawalls, there are steep drop-offs, unlike many places on the island. Over much of this area you can’t really walk along the lava at the edge of the shoreline, for example, on public property. Then on this side again off the picture somewhat abutting on this side is Kapoho Vacationland Subdivision. Currently, and then there’s the Waiopae Marine Fisheries Management Area off that Waiopae tide pools. Currently the Vacationland Subdivision does not impede public access. They have a small parking area. I’m not aware of any public access conditional requirement in the Vacationland Subdivision but they don’t block people from coming and using public access. So it is, however, blocked in this area here. These are really two wings of the Kapoho Beach Lot Subdivision that were approved at different times. The applicant’s property is right here, this 16 acres. There’s a little cove that doesn’t really show up here, and their property is right here. The subdivision, the Kapoho Beach Lot Subdivision, was created in two increments, one being over here and the other being over here; and this is a property that’s in between the two. The Kapoho Beachlots Subdivision as far as I know is the only large subdivision that’s actually gated off and blocked to the public where there is no public access. If you think about all of the coastal resorts in West Hawaii like Mauna Lani or Mauna Kea there are public access conditions. There are probably a few small areas in Kona where there are maybe a few lots like maybe 10 or 12 lots where there are gates and there is no public access. But this is about the, as far as I can think of, it’s the only large subdivided area that has no public access. So there are really two issues here; and that is the access from, any access across their property as far as public access. But the bigger issue would be public access to the property because, as I mentioned, it is gated here. The road is owned by the Kapoho Beach Community Association. And when the subdivision was established it was the understanding of the Planning Department that the road was private. And there are also letters to that effect from the Planning Department when complaints were made about the gating of the road in the 1980’s saying that the Kapoho Beachlots Road is private. We have done some more research and we found a series of old maps from the late 1800’s that show, in one map it’s labeled paved road, another map it’s, on the map shows other kinds of labeling, but show a trail or a road from the Government Road to the sea in EXHIBIT B 3 the same location as the Kapoho Beachlots Road. There is a law in Hawaii that is called the Highways Act of 1892; and it said that any road whether laid out by the government or by private parties, and if it had been laid out by private parties that had been abandoned to public use for five years previously, becomes a public highway. And this has been the basis for claiming public access over many roads and trails shown on old maps prior to 1887, which would be five years before 1892. We’re still working on this but we believe there is a basis for saying that there is a legal public right of access over the Kapoho Beach Lots Road. And if that is correct, the trail or road appears to come out across the northern portion of the Barsell property roughly on a straight line from the existing road. So we are, as I say we’re still working on that issue. It may be that the Kapoho Beach Lots Road is like Beach Road in Hawaiian Paradise Park, which is a road that was, there was an existing trail where Beach Road is in Paradise Park. There was an old trail and Beach Road was basically built over and along the old trail. So that’s a possible situation here. And I don’t think we can really resolve it today. We do advocate for having a public access condition. Certainly this applicant does not control the access outside of their own property and we can’t make them do that as a condition of this approval. We are content with the idea that the exact, that public access over their property should await the resolution of the question of public access to their property; but we do think that there should be a requirement for public access if public access can be established to their property. So that’s the explanation of the public access. I’d be happy to take any questions on that or on any other topic. WOODWARD: Commissioner Alameda. ALAMEDA: That was great. That’s actually the question I had on the whole, I mean the song that keeps ringing in my head now right is Israel Kamakawiwole’s, you know, Uamau Kea Oka Aina Ika Pono, and it goes on to say about how public access is actually restricted for native Hawaiians who, you know, were there previous. And so that’s a big concern for me, I think, you know, having access to this area. And I really commend the applicants for all the hard work that they’re doing to preserve the aina as well. But then the double-edged sword is, you know, you’re preserving them for who, you know, and who’s going to have access to that? So that’s an important issue; and I’m glad the Director kind of brought it up. So, I mean, that’s going to weigh heavily in my decision. WOODWARD: Commissioner Iwashita? IWASHITA: Thank you, Mr. Chair. I appreciate the Director’s explanation of this two- fold public access issue. There’s one other concern I wanted to ask about, and that is whether there are any CC&Rs in the subdivision that may pose some sort of impediment to allowing public access. Because, I guess, wherever this, the lawyer training in me says, well, if you look at these old maps, the argument is going to be that you’re limited to wherever those roads are shown on the map; and if that road doesn’t actually end up going near this property then, you know, any provision for public access across this property is going to be defeated in my mind because the public road won’t go through their property. And then if there are any CC&R restrictions, you know, that can pose further impediment. You know, to that, to me, just because there’s a road that goes from the existing public highway down to somewhere within this subdivision is not going to, it does not necessarily mean that, you know, that the other subdivision owners are just going to stand by and say, okay, we’re going to allow them to go EXHIBIT B 4 across the Barsell’s property. They may assert their own separate private property owner rights to, you know, to say, well, okay, but you’ve got to stay on this public right-of-way and we’re not letting you come on our private road, other than that. So that’s another issue, I guess, that I foresee. WOODWARD: All right. If we could kind of just hold it to questions at this point and give the applicant a chance to come up and give their position, and then we’ll get into the discussion. DARROW: Mr. Chairman, if I could just -? WOODWARD: Yes, sir. DARROW: Thank you. I’m sorry. I’ve just got a matter or two I need to bring to your attention. There was a submittal from the applicants dated October 31, 2008, which you all should have received. Additionally, two of the maps that the Planning Director was referring to, one dated 1880 and the other dated 1895, have been passed out to the Commission. Lastly, just a minor change on one of the conditions, Condition No. 2 on page 8 on the top, it starts off with the word “Permits” and then it says “Special Management area assessment approval with conditions for the first single family dwelling.” We’d like to take that out of that condition. So it would just read, “previous SMA Minor Permits and the Conservation District Use Permit.” Thank you, Mr. Chairman. BOWMAN: I had a question. WOODWARD: Commissioner Bowman. BOWMAN: Pardon my ignorance but -. I realize this is an SMA Permit. And they have to apply for a subdivision to subdivide this land to build a second dwelling? DARROW: The zoning is Single Family Residential 10,000 square feet so they don’t have to subdivide. They can, for every 10,000 square feet they’re able to build an additional dwelling. But because it’s in the SMA they need to apply for an SMA Permit for the second dwelling because the cost exceeds $125,000. BOWMAN: Okay. So if they are able to, I did see that it was RS-10 or 15. So logically, well, I don’t know about logically, but legally they could build however many more lots? DARROW: Yes. BOWMAN: Okay, I mean, houses. Thank you. WOODWARD: All right. Any further questions for staff? Seeing none, I’d like to call the applicants and their representative up to the table. All right, if I could get you all to raise your right hand and speak into the microphone whenever you can. We only have two of them. Do you swear or affirm to tell the truth today before the Hawaii County Planning Commission? EXHIBIT B 5 YEY: I do. J. BARSELL: I do. S. BARSELL: I do. WOODWARD: Very good. Okay. YEH: Thank you. WOODWARD: Would you like to start your testimony. YEH: I think might be good. My name is Thomas Yeh and I’m the attorney representing the applicants. My business address is 85 West Lanikaula Street in Hilo. Let me see, where shall I start. Well, basically from a historical standpoint it is true that, you know, we haven’t seen -. If we were here today and this Kapoho Beach Subdivision was coming in for an SMA application, I’m talking about the subdivision itself, there’s no question that there would be public access conditions imposed. What happened was this subdivision dates back basically to the 1950’s. And you can see the information that we provided, by both the Planning and Traffic Commissions at that time as well as subsequent interpretations by previous Planning Directors, has been that those roads are private And so based on that, and let me back up a little bit more. The property was basically, all of that Kapoho ahupuaa was owned by the King Kamehameha, then it was passed on to Kaiana and then thereon passed to the Lyman family who most of us know. The property that the Barsells own used to be essentially the Lyman Ranch House property with some fishponds there. So we didn’t really have historically dating back to even the 1800’s any government road per se. Now we have looked at the maps. In fact, we just got them yesterday. But if you were to take a look at the large, I ‘m not sure what you got passed out, but the larger map that dates to 1896 shows the Highway between Kapoho and Kaimu or Pohoiki. That’s reflected as a Government Road. The road that comes down to the subdivision itself indicated this road goes down to the Lyman Ranch property. So it still, to me, is a very large issue as to whether or not that road was considered to be public back in the 1800’s, 1890’s or 1800’s. So now we move back, forward to the 1950’s where the subdivision was approved. Part of the problem has been that from a relatively consistent basis the people who have bought into these lots and into this subdivision have come to understand that the roads are private. There was a Dec (Declaratory) Action done, I believe, it was the late 70’s or early 80’s where the Court was also asked to kind of step in on the issue of the maintenance of the roads. An Association was formed to undertake that maintenance. In this Declaratory Ruling the Judge indicated the Association would then have the authority to maintain and control those roads because they were certainly believed to be private; and I think it’s still the case. That’s where this gate issue came in. So that’s the backdrop. And I think the problem now is, here we are some 50 years later, the Barsells are coming in to build a second dwelling for their family, and now we’re to some extent trying to make up for what happened before; and they’re kind of getting caught in this process, so to speak. Yes, the property is 16 plus acres. But if you take a look at where that wall is that’s being rebuilt, it EXHIBIT B 6 actually is comprised, much of that 16 plus acres is comprised of water as well as fishponds. And what we did is we sent to you essentially this set of photographs, which is actually after that aerial photo where they really have taken out a lot of the evasive mangroves, done their restoration, they’re working on the wall. And so from that perspective, you know, I think from the policy standpoint of this Commission the really big question is going to be understanding this history, understanding what they’re trying to do with the property, and the backdrop of these roads being private should a public pedestrian access be imposed as part of this application. In answer to Commissioner Alameda’s question about the issue of traditional, cultural Hawaiian access, when they got their CDU Permit with the Board of Land and Natural Resources the Board considered the issue of public access and said, no, because these fishponds are private, but at the same time we do not want to interfere with the traditional exercise of native Hawaiian and cultural traditions. And so that was kept as a condition that there would be no activity or behavior that would prevent that exercise from occurring. As we’ve indicated in our application that, and that wording is incorporated into the proposed conditions from the Planning Department, we’re saying that’s fine, that’s not their intention. But the real issue is dealing with whether or not public access should go in. When I looked at the, and I’m sorry for being somewhat long-winded cause that tends to be how I am sometimes. But when we look at the issue of the regulatory framework for dealing with public access issues, Chapter 205A, which you’re supposed to administer, it talks about public access, and it also talks about a balance consistent with the conservation of natural resources, along with areas that have recreational value. And, yes, it’s nice to snorkel and swim in that area. But as Chris said when we’re talking about lateral access along that shoreline it’s really not a practical thing to do in that area because you have these homes, seawalls, now we have this private fishpond wall that’s being constructed.So the whole idea for the Barsell’s property in particular is is there real purpose to doing this in light of also the sensitivities of what the Barsells are trying to do. They have, as I indicated, allowed educational groups. They have a turtle restoration program study that’s going on. So there are a lot of things that they’re trying to do, which from a real practical standpoint overall general public access may well interfere with those efforts. And so, and that’s just setting aside the issue, the private road issue. When I looked at the County’s public access Chapter 34, and, yes, we’re not dealing with the subdivision, the County has expressed a policy saying if you’re going to have a development that involves either six lots or more, or six multiple family residential units or more, then we are going to kick in this public access condition. Now that’s not binding upon you but it does express some policy from the County’s standpoint that talks about the circumstances under which public access really should be a condition. If we really look at what the Barsells are doing, it’s putting in a second family dwelling in what has been long considered a private subdivision. So that’s kind of where we’re at on this picture. I’m open up to questions, the Barsells are here also on that issue. So what we’re saying is for this particular property and circumstance is it really necessary, and then how do you then get to that point from a government road. Thank you. WOODWARD: Any questions for Mr. Yeh? ALAMEDA: Sure. EXHIBIT B 7 WOODWARD: Yes, sir. ALAMEDA: First, thank you for your articulation of all of that. That wasn’t long- winded at all. It was very, very good. I appreciate that. So tell me, you know, so how does a resident identify themselves as a cultural practitioner? I mean they don’t have a license so how would you know? I mean -? YEH: Basically, and I’m not an expert, but under Hawaiian law in essence one needs to show that there has been a traditional exercise, whether it’s a member of the ahupuaa or somebody with that background that has been able to go in and traverse and practice either cultural or gathering rights, or religious rights in that particular area.So you need to show or establish a historical basis for being able to do that. ALAMEDA: With whom, with the applicant, the resident, the owners? I’m just thinking the practicality. So if we have a bunch of, say, four or five folks, they walk into the property, they say, oh, we’d like to practice at that fishpond that was there before you guys came and we’d like, you know, to utilize that area for cultural reasons. So the response of the owners would be, oh, okay, you Hawaiian, you’re sure? I mean, how does that work? YEH: Yeah, it’s not limited, I mean, I should say it’s not necessarily that broad. There would have to be some historical analysis going back to either oral or other kinds of histories to determine whether or not those practices have occurred.For instance the Lyman family which owned the property since the late 1890’s would have some of that historical history passed down. Fishponds have generally considered to be private. So the question is whether or not for those konohiki rights, whether there was a relationship historically to whoever it is that wants to come in to be able to practice those rights in that area. ALAMEDA: Okay, thank you. YEH: That’s overall generally the process. ALAMEDA: Thank you. WOODWARD: Any other questions? Commissioner Housel. HOUSEL: Yes. Now the way I understand it was explained there is sort of informal public access through the gate. YEH: There has been, and, you know, I have to say, you know, I kind of wear two hats on this thing because I’ve also been representing the Association on issues; and this particular application kind of triggered a reassessment of things. And as I explained in the letter, within the Association there, I can’t say 100 percent, the people are saying we should prosecute people; and that hasn’t been the case. It has been kind of like we have these signs here, it is private property; but on any given weekend you could probably go down there and see vehicles parked and people walking into the subdivision. And so there hasn’t been an active prosecution. So it’s like it’s private, but some people have turned their heads. EXHIBIT B 8 But what this application did, it kind of triggered a reassessment. So the question has been, well, if we continue to allow this with a signage, is there eventually going to be some ripening, so to speak, of some sort of adverse or prescriptive rights? And so the Association is taking a look at that. I’m not saying they’re going to prosecute people, that’s not their intention; but there may be some periods where they’ve got to say, okay, the prescriptive period is 20 years, this weekend or that weekend we need to close it off just for that period of time. But the irony of part of this is that it’s triggered this process of saying, well, you know, how do we deal with this now that it has kind of been, that a spotlight has been shined on it? The president of the KDCA who is Harry Samuelson did sign a letter indicating that from this official standpoint -- and I’ll distribute this now maybe since it has come up, original plus some copies for the Commission -- so basically it’s the Association’s position that it is private property. When the question was asked well, how do guests of some of the owners come in, they’re given basically a code to come in through a punch card or an electronic gate system, and they’re allowed to come into the subdivision. That’s how it works. HOUSEL: But people can walk in now? YEH: They have been able to walk in, yes. HOUSEL: Okay. Where do they go, I mean, when they come in? YEH: That is an answer that maybe one of the applicants can talk about. J. BARSEL: They invade private houses. A lot of our houses in the subdivision are vacant because the owner is absentee, absent. WOODWARD: Excuse me, sir. Are there any further questions of Mr. Yeh before we get another testifier? Okay. If you’ll just give us your name and address; and then begin your testimony. J. BARSELL: John Barsell, I’m the applicant here. And I live at the subject property, 1464 Laimana Road in Kapoho Beach Lots. The people who are trespassing on the property also go into the oceanfront accesses, which we have several little trails going into the ocean which are marked residents only. It’s marked residents only, not only on our subdivision map but also there are signs on each of these little access paths. They use those. They go into Champagne Pond, which is, they have to cross private property in order to do that. And they park, you know, sometimes they’ll tailgate into the property with a vehicle and they park on our roads which there’s “No Parking,” and we’re required to call the police and they ticket them. Recently the police have arrested some individual for swimming naked in Champagne Pond. We’ve had incidents recently of a couple having sex in Champagne Pond. These are all acts committed by the trespassers. And, also, we have a big problem with garbage, human waste being deposited as there are no facilities for tourists or any other facilities in our subdivision. HOUSEL: To your knowledge has anyone ever come into your property and asked permission to visit the fishpond, I mean, for cultural purposes? J. BARSELL: Well, yes. EXHIBIT B 9 HOUSEL: Have they? J. BARSELL: On, I don’t know, maybe six or seven occasions we’ve had school kids come in with their teachers and principals and things. And they have asked if they can come on our property, you know, for various school projects, and we’ve always allowed those. HOUSEL: Okay. How do they know that? I mean, do you let people know that they can do that or do they -? J. BARSELL: Oh, yes, we encourage such use because that’s the whole purpose of having this property, is to, you know, to create something that people could use; and our purpose of restoring this fishpond is to establish a fish sanctuary. HOUSEL: In your Community Association, are there any security provisions, like security personnel or anything like that? J. BARSEL: We have had in the past and are planning in the future. HOUSEL: Okay. Okay. So that’s your primary management -? J. BARSELL: Well, the primary thing is the gate itself. HOUSEL: Right. I see. Okay. But in cases where there is abuse or, you know, unlawful activity then you have to call the police to manage that, is that correct? J. BARSELL: Oh, yeah, that was always one way. HOUSEL: Okay. Thank you very much. WOODWARD: Any further questions? Commissioner Iwashita. IWASHITA: Thank you, Mr. Chair. Just to clarify in my mind, the Director referred to these maps that we have before us. And I guess in listening to your explanation, Mr. Yeh, I guess I did not, and I’m just asking this to clarify, there has been no judicial determination as to whether or not the road represented in this 1880 and 1895 map, whether or not that is a public road or not under the Act of 1892? YEH: That’s correct. And -. IWASHITA: So that issue still remains outstanding? YEH: Very much so. IWASHITA: Okay, thank you. WOODWARD: Commissioner Bowman. EXHIBIT B 10 BOWMAN: Thank you. Again, I’m on a fence. I’m on the fence again because this, to me, this area is very, very fragile environmentally, culturally. And I’ve just returned from Molokai with the restoration of the fishponds there. So I’m, have you, just questioning. Have you worked with any local Hawaiian groups to get them involved, Kamehameha Schools or the local Hawaiian Civic Club? J. BARSELL: Yes, Ma’am. They’ve contacted us on several occasions to help us with the removal of the mangroves and working with the fishpond wall, but nothing has ever come of any of that. We’re on our own on that. BOWMAN: Well, it would seem to me as being a native Hawaiian also that that expertise would be valuable to have a group work with you, and I think also to help support your efforts. I would suggest, you know, like Kamehameha Schools. J. BARSELL: I agree it would be helpful but the actual help has not been forthcoming. YEH: That’s something, of course, that can be worked on in terms of trying to develop a little more expertise or information. ALAMEDA: I -. WOODWARD: All right. Yes, Commissioner Alameda. ALAMEDA: This is a question just based on my ignorance. Like what if somebody wanted to access that fishpond there because it’s beautiful from a boat? Like so do the applicants own the water or how much in from the land do they own or -? I mean is it trespassing with a boat? I don’t know. YEH: Okay. If you take a look at the aerial photo, you can see that submerged -. DARROW: You can use, the red, it’s the laser -. YEH: Okay, I’ve never used these things before. But, okay, got it. Right here essentially is the remnants of the wall, but part of the CDU application allowed it to be restored. And then there’s going to be a, I think John maybe you can take a look, there’s a makaha that’s going to be opened, continue to be opened here to allow, you know, ingress and egress of fish to occur. Historically, and from a legal standpoint, the wall itself once it’s done as well as inward is not really considered to be navigable waters, so to speak. But it will be, so it is private. And part of the concern about people traversing or walking on the wall from a public standpoint is that you’re going to have deterioration and crumbling. So the idea is to try to avoid an overall wholesale public entry into those areas. ALAMEDA: So if somebody would be swimming, at what point would it be trespassing if they get close? Like is the wall the trespass -? YEH: Probably the wall would be like the boundary. It is actually the boundary of the property. That’s what comprises the 16.9 acres. EXHIBIT B 11 ALAMEDA: Okay. All right, thank you. WOODWARD: Are there any other questions before we hear from Mrs. Barsell? Okay, if you’ll just state your name and address and proceed with your testimony. S. BARSELL: My name is Sandra Barsell, 14-4934 Laimana in the Kapoho Beach Lots. WOODWARD: Okay, go ahead. S. BARSELL: You want me to say something then? Any questions? WOODWARD: If you would like to testify. S. BARSELL: Oh, okay. Well, I’d like to get back to the schools that Commissioner Bowman had talked about. That kind of originated the first time that the fishpond was on the front page of the newspaper, the Hawaiian Tribune. There was a big picture and it was the first time, I think, that the public was aware that we were applying for a permit to rebuild the wall. And apparently the school children read the paper and they went to their teacher and they said could we have a project there or, I’m not sure of the exact words. But, anyway, we were contacted by the school, and we said sure, come on out. A busload of them came out. And I left my file at home but we’ve had about six different times, the recent being Monday, when one of the instructors brought up just a couple of kids. And it’s going to be an on-going project every Monday, different children and their tests, they’re doing water testing, counting fish, you know, whatever their project is. And they’re going to share that with us when they’re finished. So, you know, we really encourage that and we enjoy having them do that. It’s something that’s constructive and we can share that with the schools kids. So, yes. If there are any questions -? WOODWARD: Thank you. Any questions for Ms. Barsell? BOWMAN: I would just, you know, like to commend you on that. And I saw when I asked you about different groups you kind of laughed because, and I realize it’s very labor intensive. And you don’t have, I’ve helped to rebuild fishponds and it’s really, really hard. And I also run an after school program for kids, and to get kids or young adults to do that kind of work is very difficult. I just feel if you ever have a chance to go to Molokai or if you’ve haven’t to really look at that project and the people that are running it, because Office of Hawaiian Affairs they have money. And I think something like this is so valuable. And I also hear your concern with public access. Unfortunately a lot of our people given public access have ruined what we have, like, you know, our natural resources up in Kohala with the opihi and different things because of wanting money. So it’s a double-edged sword. You know, we want people to have that access but the fertility of the area is something really to consider. So thank you. YEH: Just one more thing, and I apologize. Basically, you know, what I would like the Commission to consider is this, as Commissioner Iwashita pointed out, you know, this issue of how you get into that subdivision really is still to me a big issue. And so I think it’s kind of possibly a two-step issue to me for purposes of today’s hearing. And the first, to me, big issue is should there be public access to this particular property under these circumstances? If the EXHIBIT B 12 answer is no, then I think we can move on. If the answer is yes, then I think it’s going to really require a really good hard look at this whole issue of how the public is going to get into this subdivision; and that’s some things that we’ve been trying to talk to Chris about that we have not yet been able to come to a clear agreement on. So that’s kind of where we’re at in this process today. WOODWARD: Any further questions for any of the testifiers? Yes, Commissioner Iwashita. IWASHITA: Thank you, Mr. Chair. I forgot to ask earlier about if there are any CC&Rs in the subdivision that would be a further impediment for, you know, for public access. YEH: You know, I haven’t looked at the CC&Rs recently. There are CC&Rs, but whether they apply to this particular road issue I’m not sure. There, and John, go ahead. J. BARSELL: As far as I know there are no CC&Rs. IWASHITA: Well, you have an Association that maintains -. J. BARSELL: We have Bylaws. We have a Declaratory Judgment from the Court which lays out how our subdivision should be administered, but we have no CC&Rs. IWASHITA: So in the Dec Action and the Bylaws there is no restriction as far as owner’s use of the subdivision roads? The question, the issue that I’m trying to raise and trying to get clarification on is I’m going to project out into the future, right, that there’s a court action and the court decides that in part based upon this 1880 map that under the Act of 1892 that the road designated on the map, you know, basically is a public road, and so the public has a right to use that road. And I guess the way, I’m looking at how that road goes.It basically shoots down pretty close to where your property is, but definitely within this subdivision. Right? Once there’s a public road from Pohoiki Road down to the shoreline, which is basically what that road shows, then the question becomes what rights there are beyond that actual road, that is all these subdivision roads now, right? Is there anything in the Dec Action Order or, you know, otherwise, the Bylaws establishing the Association that controls those road that would limit the public’s right to use those roads and, you know, to get access, to any access if we decide to provide access across this property? YEH: Okay. I see your question. Well, first of all, those Bylaws were actually recorded as covenants that applied to, and those Bylaws were recorded September of ’01. The Association in the Bylaws does have the authority to control management, maintenance of those roads. The problem with this access issue is that, yes, if -. And I don’t necessarily know, I don’t have a crystal ball, but I have my own opinions as to whether or not a Court would adopt the conclusion that there was a public road. But even assuming that it did, it would have to locate where that road goes to. And beyond that work, the public from a legal standpoint would not have a right to traverse any roads within that subdivision, that’s for sure. And then we’re going to be in a trespass situation. IWASHITA: Thank you for that clarification. That’s, you know, to use Commissioner Bowman’s fence picture, analogy, I share her concern about, one, allowing for public access on EXHIBIT B 13 the one hand which, you know, as much as possible I think we need to do, we’re legally required to do; and, two, you know, realizing that one of the historical effects of doing that is that the shoreline that had been accessed by the public gets trashed. And you’ve, in your testimony, you know, given some anecdotal examples of that. And so in my mind, you know, ideally there needs something between, you know, well, those concerns need to be addressed; and, you know, I think that, you know, something needs to be worked out to me; and it’s not something I think we can really decide today. My inclination is to, you know, ask that something be worked out, that we not be asked to move on this today. This is a significant issue. There are substantial legal questions involved. And, you know, for, I’m not inclined to go forward with this today because of that. WOODWARD: If I might ask a question and maybe get Director Yuen’s opinion also. With regard to Condition No. 12, which is the public access question, would it be conceivable from the standpoint of the Planning Department to word it in such a way that the applicants shall submit a shoreline public access plan if public access is granted through the surrounding subdivision, and then go on with the rest of the language? YUEN: Yes. In concept that’s something that we’ve talked about with the applicant; and we are willing to accept that idea. As to what granted means or obtained or, but clearly we think it would be fine to have a condition that said that any public access through this property would depend upon establishing public access to the property, because otherwise it’s just hanging there without any way to get there. We would be concerned about not having any public access condition at all because if this road is a public road it looks like it goes directly to the property and crosses their property at the northern end, very close to where the end of the fishpond wall is. Whether it’s at the inlet that’s just on the right of that fishpond wall or the inlet to the left of the fishpond wall it’s really hard to tell because of the way the, because of the scale of the map. But that would be it. So we don’t have a problem if the Commission wants to defer this and we could continue this discussion. We would also finish up our work on this question of the road itself. And, you know, our initial inquiry, we would try to initiate discussions with the Community Association We understand that in a situation like this there are a lot of management issues that come up. If, and the County, I mean, we do feel that we, we’re advocates for public access. Certainly where there’s a legal basis for public access we’re going to advocate for it. We want to make it work for the property owners as well as for the public; and there are problems and issues that come up, but I wouldn’t expect the initial contact being something like remove your gate, for example. We’d write a letter that says we have indication that this should be public, we would like to do some, we’d like to work on this. So that’s where we’re at with where this goes, in terms of this application and the bigger questions of access to the area itself. WOODWARD: I might just follow-up and ask Mr. Yeh what your thoughts are if we were to add such wordings as “a public access plan meeting with the approval of the Planning Director if and when access is granted through the surrounding subdivision?” YEH: We have had discussions with Chris about that. I think the devil is in some of the details, you know, that we have not yet been able to work out. So, cause what we were talking about was putting a possible access along the southern end of the property because, as you know, the existing residents and the proposed residents are on the northern end. So that would be one component. There are some subsidiary issues as to how the public would get there EXHIBIT B 14 because this one public access just goes down, theoretical public access I should say, goes down the Kapoho Beach Lots Road and not to that southern end. So, and now we’re talking about a long trail, so to speak, also on the, probably on the mauka side of the property. So there are some issues that still need to be hammered out, if that’s where the Commission wants to go. WOODWARD: Commissioner Bowman. BOWMAN: I have a question. And I don’t, pardon me if I was sleeping when you were talking or not listening cause -. YEH: Hey, I can lull people to sleep a lot of times. BOWMAN: No, actually it was -. Public access, where is the, and I don’t really know this area, where is the nearest public access beach? Is it like McKenzie? I’m really bad. Like how many miles away? YEH: Champagne Pond, I think -. Don’t people get there from the north side? BOWMAN: Maybe you could tell if you’ve -. YEH: Okay. S. BARSELL: Down the highway road is about a mile and a half to what’s called Hot Ponds. BOWMAN: Okay. S. BARSELL: Is that what you’re talking about, any public -? BOWMAN: Well, just any access, yeah, any access. S. BARSELL: Not into the subdivision? BOWMAN: Yeah -. S. BARSELL: Okay. BOWMAN: Any access to the ocean. S. BARSELL: There’s a beautiful park. The sign on the highway says “Hot Ponds,” and it’s like about two miles after you make the right off the Red Road. BOWMAN: Okay. S. BARSELL: They have pavilions. They have this huge pond that the water is like 90 degrees. But, yeah, it’s a big park. BOWMAN: And any others near there, within a five-mile radius? EXHIBIT B 15 YEH: Within the Vacationland Subdivision there’s the Waiopae recreational area -. BOWMAN: Okay, Waiopae. YEH: That we were at not long ago. BOWMAN: My other question -. I’m just trying to get a feel for the people who are there. Are they tourists, are they residents? And, again, I’m not trying to be racist or -. I’m just trying to figure out who are the people that go down there, would you say. S. BARSELL: Who are the people that come in? BOWMAN: Right. S. BARSELL: That don’t live there? BOWMAN: Right. S. BARSELL: We get people that are on vacation because I think on some of the tourist maps it indicates Champagne Pond, and so they come down. And we get a lot of young white people that live out, you know, in the jungle, I guess. I haven’t, you know, I -. BOWMAN: Just give me a feel of, and local families with lots of kids? S. BARSELL: Local families do not walk into the subdivision. Most of the time when local families come in they’ve rented a vacation house there, they have weekend birthday parties for their kids. But as far as pedestrians, very few locals. BOWMAN: Okay. My other question -. You know, I hear Mr. Alameda’s question about boats and things. I do know that in any kind of marine sanctuary you can’t even throw an anchor down, because we’ve got spotted by the DLNR. But you said something about wanting to turn that area into a marine sanctuary? I mean I don’t think you can do just one little park. Or some kind of historical, because it’s so historical, is there any avenue to dedicate that area for historical preservation? We had a house that was dedicated to the Historical Society, so -. S. BARSELL: Can I address the boat issue? BOWMAN: Sure. S. BASELL: The jet skis, there are no motorized vehicles allowed, let’s see, on this side of the reef in Kapoho. So we don’t get, you know, we don’t get motorized boats. We get kayakers, lot of kayakers that come in, but no motorized boats. And as far as your other question, I don’t think I’m the one that can answer that. EXHIBIT B 16 BOWMAN: Well, it could be something to look into, to dedicate it to the Historical Preservation Society; and then you can still have your residence but it would be dedicated historically. YEH: Yeah, well, a more recent vehicle for landowners has been to do these conservation, perpetual conservation easements or acquisition by like Public Land Trust. So that’s just something that from the Barsell’s standpoint that’s the landowner’s option to do that for either tax or other purposes, where you can still own the property but you dedicate it to these conservation uses. So there are vehicles that exist out there, yeah. WOODWARD: Commissioner Housel. HOUSEL: Yes. What’s the intended use for the second dwelling? S. BARSELL: We have four grown children on the mainland and ten grandchildren -. HOUSEL: Will they -? S. BARSELL: That’s the intended use, family. HOUSEL: Okay, so visiting not full time? S. BARSELL: Visiting, visiting. HOUSEL: Okay. Thank you. Not a rental then? S. BARSELL: No. We do not intend to rent. HOUSEL: Okay. WOODWARD: I saw you were, do you have anything further to say, Director Yuen? YUEN: No. The only, Tom Yeh mentioned this question of prescriptive rights and the Association would be concerned about that. Actually State law on recreational use says that if a private landowner voluntarily allows public access for a recreational use there are no prescriptive rights that come of that. Prescriptive rights are rights that the public can have o n a piece of private property from long usage. And typically, for example, and not, other landowners can acquire rights.If a public uses, say a landowner has a no trespassing sign on their property but the public uses a, but there’s a path and the public uses it for in excess of 20 years over the landowners opposition, that can create a public, a prescriptive easement to use that, to use that path. And that’s sometimes a way of, that public rights are acquired to go over private property. There is a recreational use statue in Hawaii that is mostly a statute that takes away the landowners liability for allowing public recreational use of their private property. It says that basically if you voluntarily allow private recreational use on your property that you’re immune from liability if a person gets hurt. But it also says that if you voluntarily allow the use a prescriptive easement will not arise from that. WOODWARD: All right. EXHIBIT B 17 ALAMEDA: Mr. Chair? WOODWARD: Yes, Commissioner Alameda. ALAMEDA: Well, I’d just like to say it’s a very healthy discussion. I’m actually learning a lot as we go back and forth. So what would be the next step then given the discrepancy and how to move forward? WOODWARD: Well, do we have any more questions for the applicant? Seeing none you may be seated. Thank you. YEH: Thank you. WOODWARD: For the record nobody has signed up from the public to testify. So I guess Mr. Yuen’s recommendation was that this be delayed until he can work out language particularly with regard to the public access question. YUEN: I hope and suspect that we can work out language agreeable between the Department and the applicant as to public access that would come into play only if there was established public access from, across the rest of the subdivision to the applicant’s property. WOODWARD: May I ask the Director would it appropriate to add that terminology and vote on it? YUEN: Well, we haven’t worked it out, we’ve been discussing this back and forth. I don’t, we’re not at a, unless Mr., you know -.And I don’t know where Mr. Yeh is at with it. I could work out something, but we don’t have something that’s agreeable to both the Department and the applicant right this minute. WOODWARD: Mr. Yeh? YEH: I was going to suggest, as I did hear that the Commission is going to take a lunch break, and it is possible that we could work over some conditions and attempt to do that before the Commission reconvenes after lunch. If cannot then maybe we can defer, but we can certainly give it a good try. WOODWARD: Is that acceptable to the Planning Department, Mr. Yuen? YUEN: That’s fine with me. WOODWARD: Okay. YUEN: I’ll have to, well, that’s fine with me, yeah. ALAMEDA: Mr. Chair? WOODWARD: Yes, sir. EXHIBIT B 18 ALAMEDA: Just real quick. Just as you all think about how to word it, you know, my family we do vacation in the Kapoho area and we have the code and, you know, every summer we try to make it out there to a vacation spot for just a family get together. And my kids do, I remember this area and we do kind of like navigate the area and, you know, apparently now we’re trespassing so -. But we’re allowed that vacation spot, we pay money for it. It’s big bucks but it’s worth it. It’s close to the ocean and we just waunder, you know. And that’s a real healthy experience for my family to see the natural beauty and resources and it’s an opportunity for me to educate them about it. And we do see turtles there, and there’s no other place where we can go to see turtles -- so, you know, as you craft this language -- I mean, there are lot of other areas, but that’s our area, yeah. So as you craft the language, I just would like to see some of that activity continue somehow. WOODWARD: All right, if I hear no objections, I think we’ll recess for lunch and then we’ll take this up as soon as we get back at 1:45. RECESSED The Chair recessed this meeting at this time, 12:08 p.m. RECONVENED The meeting reconvened at 1:45 p.m. WOODWARD: Will the Planning Commission meeting please come back to order. As we left before lunch Director Yuen was going to consult with the applicant to see about a revision of the language of one of the conditions regarding public access. You’re on. YUEN: Yes, I think we do have an agreement on this. And I have it, it’s partially handwritten, and so let me read it slowly. And then we do have a written, we can put it, we have enough writing to put it together, but I’ll read it for the Commission. This would replace No. 12 in its entirety and it would say “If a pedestrian or vehicular public access from the Kapoho- Kalapana Road to the applicant’s property is obtained via agreement, recognition or determination of legal right, within six months the applicant shall submit a public access plan providing for a 10-foot wide pedestrian right-of-way from a public access point to a point on the shoreline on the applicant’s property which may, at the applicant’s option, be on the southern end of the applicant’s property, and in that case shall be a direct access subject to adjustment for physical obstacles. The access shall be for non-commercial recreational pedestrian use and limited to daylight hours. The applicant may post signs indicating hours and terms of use and may prohibit entry into the fish pond and along the pond walls.” Then it would say, “This public access condition shall be deemed to satisfy the public access requirements of Chapter 34, Hawaii County Code, as to any future subdivision or multiple family dwellings consisting of six or fewer lots or six or fewer dwelling units on the property, including existing dwelling units.” And then “This access condition will supercede any previous SMA permit access condition to the property. This access condition is without prejudice to any party, including the County of Hawaii, as to any future determination that there is a public road or access leading up to the applicant’s property.” DOMINGO: Very good. DARROW: Thank you. Could you repeat that. I’m just kidding. Sorry about that. EXHIBIT B 19 YUEN: And going through this, I think there’s a, I can see that there’s a, right where we said “a public access plan providing for a 10-foot wide pedestrian right-of-way,” I think we need to say “10-foot wide walkable pedestrian right-of-way,” just so there is a clear understanding that it be, it’s not just a right-of-way, it’s something that is actually walkable. And I think that’s the only other modification that I’d make from what I just read; and I’d be happy to answer any questions; and Mr. Yeh, I think, should be invited up to discuss this. WOODWARD: Mr. Yeh. DARROW: I have a quick question for the Director. On our existing condition, the last two sentences we talk about signage and also recordation with the Bureau of Conveyances. Is that something you want to consider keeping into this current condition, this new condition? YUEN: I think we can leave those out; and that’s a matter for the plan itself. The idea is not to, here to establish all the details of it. But the Director could require signage as part of the plan; but rather than put it in the permit I would rather just leave that for a future determination in the plan. Typically there would be signage; and the same thing with the recordation because actually not all of the public accesses that are imposed by permit are done through a recorded easement. Usually that’s a good idea but there are easements, not easements but there are public accesses, for example, in the resorts where they’re just put in as a condition of the permit and there isn’t actually a formal easement created for the public access itself. So again that would be a matter for the plan and I wouldn’t necessarily put it in the permit. WOODWARD: Anybody have any other questions? HOUSEL: One question. Did I understand right that there’s a six-month period to make this determination of the access? YUEN: The six months is after it has been determined that there is access to the applicant’s property, and then they have six months to submit the public access plan. And then it needs, there isn’t a set timeframe for finalizing it and for constructing the access if construction is necessary. But that’s what the six, the six months only applies to the timeframe from when there is a determination to the applicants submitting the public access plan. HOUSEL: Okay. Is there any length of time for the determination? YUEN: No. HOUSEL: No, okay. WOODWARD: Does anybody care to make a motion? DOMINGO: Mr. Chairman? WOODWARD: Yes, Commissioner Domingo. DOMINGO: Mr. Chairman, in the matter of John and Sandra Barsell, Special Management Area Use Permit 08-000029, I move for its approval with the amended version of EXHIBIT B 20 the condition as specified by the Planning Director and in conference with the applicant’s representative. WOODWARD: Discussion? DOMINGO: Mr. Chairman, I’d just like to commend both the parties for coming up with the decision or a settlement because I was afraid that had we deferred this until, until the access was being determined to which no one, nor the applicant, has any control over it, we wouldn’t -. You know, I would hate to see them, this application be held hostage and for them wait for an undetermined length of time. I think this is something that’s acceptable to me and that will enable them to go ahead with their future plans. WOODWARD: Commissioner Iwashita? IWASHITA: Thank you, Mr. Chair. I just had one concern, and I don’t think it’s a big one. And that is the language about the option of the applicant to have the access at the south end of the property, the concerns about the use of, if that requires the use of the subdivision road and not what’s determined to be the public roadway to the property, that somehow, you know, if they make that election that it doesn’t sort of cut off the reality of actually having the accessible public access. YUEN: Right. The condition as written requires that there be public, that they have a pedestrian right-of-way from wherever the other public access ends to the shoreline. So if it’s relocated so that you have to walk along side the subdivision road that goes to the southern end of their property and there cannot be, and the County is not able to get public access over that subdivision road, then they would have to accommodate it on their property by, for example, providing a walking path along side their private subdivision road but on their property to that point. IWASHITA: That’s fine. Okay, thank you. WOODWARD: Any further comments? DARROW: I have one, Mr. Chairman. WOODWARD: Yes, sir. DARROW: Just for clarification, we also had that minor amendment to Condition No. 2, and just to confirm that that’s also included in the motion. WOODWARD: Is that satisfactory for you, Commissioner Domingo? IWASHITA: Yes. WOODWARD: And Commissioner Iwashita? DARROW: Thank you. EXHIBIT B 21 WOODWARD: Okay, very good. DARROW: With that I’ll take the roll call. Commissioner Domingo? DOMINGO: Aye. DARROW: Commissioner Iwashita? IWASHITA: Yes. DARROW: Commissioner Alameda? ALAMEDA: Aye. DARROW: Commissioner Bowman? BOWMAN: Aye. DARROW: Commissioner Housel? HOUSEL: Aye. DARROW: Commissioner Ogata? OGAWA: Aye. DARROW: Mr. Chairman? WOODWARD: Aye. DARROW: The motion passes seven to zero. YEH: Thank you very much, Commissioners, and I appreciate your consideration and patience with us today. Thank you again. WOODWARD: Thank you. I’m glad we were able to come to a solution. And you’ll be notified in writing of our decision. YEH: Thank you. The discussion ended at 1:50 p.m. Respectfully submitted, Sharon M. Nomura, Secretary EXHIBIT B 22