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HomeMy WebLinkAbout2007-06-12 Public Access, Open Space and Natural Resources Preservation Commission Minutes (Hilo Mtg)HAWAII COUNTY PUBLIC ACCESS, OPEN SPACE AND NATURAL RESOURCES PRESERVATION COMMISSION MINUTES - REGULAR SESSION June 12, 2007 Department of Liquor Control Conference Room 101 Aupuni Street, Ste. 230 Hilo, Hawaii 96720 Present: Vice -Chair Hannah Springer Commissioner E. Kalani Flores Commissioner Benedict Yung Commissioner Kim Garcia Commissioner Paul Campbell Commissioner Laura Schuster Absent: Chair Kenneth Kaneshiro Commissioner Bill Gilmartin Others Present: Amy Self, Deputy Corporation Counsel Harry Yada, Property Manager, Finance (left 10:30 a.m.) Sharese Macomber, Clerk III Stacie Waltjen, Secretary CALL TO ORDER The meeting was called to order by Vice -Chair Hannah Springer at 10:04 a.m. STATEMENTS FROM THE PUBLIC AGENDA ITEMS None APPROVAL OF MINUTES Commissioner Campbell moved for approval of the minutes ofMay 14, 2007 regular session as amended, seconded by Commissioner Yung and carried unanimously by voice vote. Mr. Yung amended his name from those that were present. He was not present on May 14, 2007 commission meeting. Ms. Schuster amended a typo on page 4, second paragraph... "the word `one' should be `on "'. WRITTEN COMMUNICATION Mr. Flores stated for the purposes of record keeping, when the suggestion forms are received, there's a box in the back of the form to mark the date received. There is also a box next to that to check off indicating if the suggestion form included any attachments. It gives the Commissioners a quick glance to see if any of those attachments were turned in or not. Communication No. 07 -012: an e -mail to Amy Self from John Replogle re: 20th Annual National Land Conservation Conference. Ms. Springer stated whether they are able to attend or not, it's good to know that events like these were occurring across the country. This Commission could invite people like Mr. Replogle to come and speak on the proceedings of the event. DEPARTMENT OF FINANCE REPORT Mr. Yada stated he attended the meeting of the Board of Land and Natural Resources last Friday on June 8, 2007. Based on their actions, the DLNR awarded a grant to the County in the amount of $1,234,750.00 to go towards the purchase of 234.293 acres near Kawa'a Bay. The County should be getting an offer letter by the end of June, which we would have to accept to encumber that. Mr. Yada stated that would then give us two years to consummate that transaction. Mr. Yada stated he received a call from the owner of the Marcia Johnson's group and she indicated they were conducting their own appraisal. They anticipate completion of the appraisal within the next month. Mr. Yada stated she verbally indicated that she would accept whatever conclusion that appraisal will be. Mr. Yada discussed the Punalu`u hearings on Councilman Jacobson's resolution authorizing purchase at Punalu`u. Mr. Yada stated there were passionate testimonies from both sides. Mr. Yada stated he had concerns because of the discrepancies between the two sides as to what was being authorized to purchase. Mr. Yada stated the impression he got from the Commission's discussion was that it focused more on just along the ocean. Mr. Yada stated he's not sure what the interpretation of the Commission's priority recommendation was and whether there were any concerns there. Mr. Yada stated he did point out that there seemed to be different positions on what should be acquired. Mr. Campbell asked how far the SMA setback from the water was. Ms. Schuster replied that it depended on where they have drawn that line on the map and it could be as far up as the highway. 2 Mr. Flores stated he thought they also had a problem when the initial resolution went forth because there were wrong TMK's presented. Mr. Flores stated he thought it had included some of the private owner parcels. Mr. Yada stated prior to these hearings he met with Councilman Jacobson to clarify and correct some of the TMK's. Ms. Springer stated when they receive the suggestion forms but there is no clarity as to where the line should be drawn, how does this Commission get clarity when it comes time to do their recommendation? Mr. Yada suggested when the Commission enters a recommendation of priorities, if there is a reference to TMK's, they shouldn't use only a certain portion. The Commission may need to be clearer because it leaves it open for interpretation; someone may say it's the whole TMK. Ms. Springer asked if there is a TMK that is a large amount of acreage, should this Commission only suggest the SMA portion of it. Would that be sufficient? Mr. Yada replied that he doesn't think that it has to be tied to the SMA, but there should be something referencing it, i.e. distance. Mr. Flores asked if they would have to subdivide. It is possible to purchase only a portion of a TMK. Mr. Yada stated when a conservation easement is acquired, there is no need to subdivide. It would depend on what is being done. Mr. Yada stated if it were to be acquired, then it would need to be subdivided. Ms. Garcia responded that they would have to take on an individual basis. Ms. Springer asked Mr. Yada if that was the job of this Commission. Mr. Yada stated the job of this Commission is to come up with the recommended priorities. Mr. Yada stated the lesson in this is to be more specific, especially when dealing with portions of larger parcels. Ms. Schuster stated the Commission should be careful about how they make decisions on how far inland, because of cultural resource sites. She would be open to having that boundary surveyed to determine what would be appropriate for that particular area. Ms. Schuster stated it would be hard to have a flexible boundary but it would be more appropriate. Ms. Springer asked Ms. Schuster how her recommendation would be implemented. Ms. Schuster stated she wasn't sure. She wasn't sure how you could have that flexibility worked into the decision making of a particular parcel. Ms. Springer stated for this particular topic on the Kawa`a property, they have amended to include the number of specific TMK's. But, for the broader discussion, we need to keep this in mind and need to be thinking on it. Ms. Springer stated if /when this Commission makes similar recommendations; we need to be prepared to pick up the issues that have been discussed today. Ms. Self passed around the original bill. Ms. Self stated in looking at the map it shows you how far and how many TMK's they had included. It goes way beyond what this Commission recommended; it even included the golf course. Ms. Springer stated that Councilman Jacobson's measure goes beyond what this Commission had recommended and really took on a life of its own. Mr. Yada stated his concern was that a lot of the statements made in the "Whereas..." is a stating fact. It gave the impression that this represented the Commission's recommendations. Mr. Yada stated the way the facts were stated, it eluded that was the recommendation of this Commission and the reason behind the resolution, which was not exactly true because it misstated the Commission's intent. Mr. Yada stated he felt it was up to the Commission to say something because he was not here at that time this recommendation was made. Mr. Yada stated another point that bothered him was the Mayor's recommendation to the Council centered on the County Park and the resolution goes farther than that. Mr. Yada stated it starts becoming questionable when it starts stretching beyond the intent of the Commission and the Mayor. Mr. Yada stated the other part that concerned him was that the Public Access, Open Space and Natural Resources fund was intended to be an acquisition that's voluntary. Mr. Yada stated he did not think it was designed in our ordinance to be a condemnation action. So, if there was no willing seller as to areas beyond the County Park by the developer or the owner of the property, he was not sure what use the resolution was if we don't have a willing seller. Mr. Campbell stated he spoke to Mr. Jacobson and he thought Mr. Jacobson and the Council members were struggling with the same things this Commission was. We are defining new territory here, so it's a big learning curve for all of us. Ms. Garcia stated for this Commission to not take archeological consideration into what's being done was not doing a good job of preserving the land for the community. Ms. Garcia stated this Commission would need to take the whole parcel into consideration and not just half of a site. Ms. Garcia stated it would have to be on an individual basis. Mr. Yada stated we needed to be reminded that these sites are also protected under historic preservation laws. 0 Ms. Garcia stated but it was not being protected as they could be. Mr. Yada stated the laws were pretty strict and subject to fairly significant penalties. Mr. Yada sated they are protected and he didn't know if ownership necessary affects that. Ms. Garcia stated by having a County Park surrounding these sites, instead of them being in the bushes or surrounded by development, at least they would have a bit more protection. Ms. Schuster stated it's through the permit process that they are brought to the attention of the Planning Department. You can't get a permit unless you're particularly in a coastal area and that's when the coastal zone management is triggered. Ms. Garcia stated she sees sites run over all the time by development. Ms. Schuster stated that it doesn't prevent it from happening but it is the process that brings it to the attention of the State Historic Preservation office. Ms. Self stated if they don't go in for entitlement, they could do anything. They could destroy it if they want. Unless they come in for entitlement, they have to do the archeological survey. Ms. Schuster stated even that does not protect it because of private property rights and that would be the priority. Ms. Springer stated this Commission was not an enforcement agency. There are Federal and State provisions in the County Planning Process, which provide for the review of sites, like what we are discussing today. Ms. Springer asked what could be done to help this Commission and the County Council do their collective work in an organized fashion. Ms. Self replied that there is no guidance in the code. She would think that if a Council member was intending on drafting a resolution to use the 2% fund to purchase a property, they could contact the Chair of this Commission and ask. There is always that opportunity for them to contact the commission and ask however we can't force them to do that. Ms. Self stated she thought it would be a welcome suggestion to the Council. In the past they asked for some guidance from the Commission. Ms. Self stated it would be appropriate to make a suggestion such as that in this Commission's report for this coming year. Ms. Springer asked if the appropriate place to add the suggestion would be in the annual report rather then a separate letter. Ms. Self stated that it would be up to the Commission how they want to convey the suggestion. It may be more of an impact if it is in the report because that would be when they are definitely going to be focusing on this. Mr. Campbell suggested that each Commissioner should work closely with their district Councilman, in addition, to what we are saying. OFFICE OF THE CORPORATION COUNSEL'S REPORT Ms. Self asked the Commissioner's what they thought about the Land Conservation & Tools seminar they attended on May 30, 2007 at the King Kamehameha Hotel. Mr. Campbell stated he thought it was awesome. He learned so much of how the process and laws apply. He feels much more capable in conveying that to people. Ms. Self stated she thought it was awesome. Ms. Self stated it was an inexpensive and informative seminar. Ms. Springer stated she could see making suggestions to individual land owners. However, how do we use the information there for the work of this commission? Ms. Self stated that was the problem. Ms. Self stated she sees it as good information for the Commission to have however she doesn't see it as something the Commission could use because it is a private agreement between the private landowner and the government. Mr. Flores stated he thought it could be used, such as in the Kawa`a property. They could take the conservation easement federal tax credit, in lieu of, actual payment. It could be used as a tool because you don't have to buy the whole property. Ms. Self stated the problem was that the Commission couldn't be involved in the negotiations however Mr. Yada could. It is a tool that the County could use, but not the Commission. Ms. Self stated she thought the Council members would benefit from the seminar because they are the ones that are contacted by the landowners. Ms. Springer asked if they could put in an appendix on the annual report that gave a summary of this workshop. They could attach it just as an appendix so it won't detract from their list and where the Commission wants them to focus. Mr. Flores stated he hoped that the conservation law would be extended beyond 2007. Mr. Flores stated it was the Federal Conservation Easement Tax Bill. Mr. Flores stated that Ms. Garovoy previously gave them background information but this workshop explained it more in detail of how it works and how it could work for a landowner. Ms. Schuster informed the group about another federal group. She was not sure of the name of it. Ms. Schuster believed it's used to broker land or development areas. It's a federal funding that is used to help preserve corridors. 31 Ms. Springer stated maybe they could pull together, in their report, a section on ways that money and credits could be available. They could include that as another appendix. Ms. Springer stated if any of the Commissioner's has knowledge of funds or programs, they could add to this list. Ms. Springer stated part of the Ordinance says this Commission will identify other sources of funding for the benefit of the County. CHAIRPERSON'S REPORT None UNFINISHED BUSINESS • Discuss with the Commission the need to adopt a rule regarding notification of property owners on the priority list. Ms. Self stated she's been researching it and she wasn't sure if it was a case that was filed in court because she has not been able to find it in the court records. Ms. Self stated she called the DLNR office in Hilo and they didn't know what she was talking about. Ms. Self explained that attorney Mr. Vitousek either threatened a lawsuit or filed a lawsuit against DLNR because they had a list of properties which put a cloud on the title of these properties. Mr. Vitousek represented one of the landowners. The properties were not scheduled to be condemned. Ms. Self stated from the way Mr. Vitousek described the list, it was like the list that the Commission has. This Commission could send out a notice letter to the landowners prior to being put on the list and before it goes to the Mayor. Ms. Self stated for the properties they already have on their list, this Commission has no control over it because it already went to Council. Ms. Self stated once it goes to Council, the Commission has no authority to remove properties on the list. Ms. Self stated to do so would require a bill being passed by the Council to amend the County Code. Ms. Springer stated it could have been in the 80's. There was an incident with a list being withdrawn because of an issue of the individual landowners not being notified. Ms. Schuster stated this was for the State Historic Sites Division. Ms. Schuster stated that an island wide survey was done by the State Historic Sites Division back in the late 70's. Ms. Schuster stated that historic sites were identified and forms were filled out. Ms. Schuster stated many of the forms were withdrawn because the process was not followed correctly. The landowners had to be notified that their property was being considered and they needed approval from that property owner for inclusion in either the state register of historic places or the national register. Ms. Springer stated that it may be a rule that already existed; the landowner needed to be notified. Ms. Springer stated this Commission doesn't have such a rule. Ms. Schuster stated even the legislation for Historic Preservation Act does say you have to notify the owner and you need to have the owner's concurrence. 7 Ms. Springer stated when this Commission considered the process was flawed they went back and reconsidered everything. That would be the only way we could capture everything. This Commission could go back and work with the comprehensive list all over again. Ms. Self stated her concern that if they go to Council and approve an amendment to the Code to allow people to take their land off the list, this Commission may not have any list left. Ms. Self stated she didn't know if that would happen, but it could. Mr. Yung asked if there is a property on the list and they don't want to sell to the County, what happens. Ms. Self stated if they don't want to sell it then the County would not pursue it; unless the Council wanted to condemn. Ms. Self stated that's what they have been doing; once they made those resolutions, Finance contacts the owner and asks them if they are interested in selling. No one is forcing them to sell. Ms. Self stated if they don't accept the offer, the County goes down to the next property that's been in resolution by the Council. Ms. Self stated she hoped the Council doesn't get to the point where they start condemning properties. Ms. Schuster stated this Commission has no authority over the decisions. The Commission's list is sent directly to the Mayor and the Mayor is the one that makes those decisions. Ms. Schuster stated she didn't think we need to go that route because this Commission is just advisory. Ms. Schuster stated this list is comprised of the community's suggestions, and the Mayor does all the regulations. Ms. Schuster believed that it was out of the Commission's hands, if it was something that was a legal issue, then that is where Ms. Self provides her guidance. Ms. Springer stated once Ms. Self's research was finished and the Commission gets clarity on the process, if they could put a little section in the annual report or on the web to disclose that information. That way the process would be transparent. Ms. Springer stated it could be a few sentences that would indicate that this was a list and there were no encumbrances attached to it. NEW BUSINESS • Discussion of updating the commission's website. Ms. Springer asked who was responsible for updating the website. Ms. Self stated the Finance Department takes care of that. Ms. Springer asked Ms. Self if this Commission wanted to include the proceedings from the workshop or their discussion of acquisition, would it be possible to insert that. Ms. Self stated yes, they would just have to write it out and send it over to Data since they control the website. Ms. Springer stated it might be something for this Commission to consider. A subcommittee could be set up for the Commissioner's that are interested in doing this type of outreach and then something could be brought back to the table. Ms. Schuster stated she was thinking of finding links to opportunities for funding. Ms. Schuster stated that a subcommittee could do that. Ms. Springer asked Ms. Schuster if she wanted to initiate something now. Ms. Schuster stated yes. Ms. Schuster asked the commission members who would like to be involved. Mr. Campbell and Ms. Garcia both agreed to be part of this subcommittee. Ms. Self informed the subcommittee that they could meet outside of this meeting and then report their findings back at the next Commission meeting. The Commission can't vote at that meeting; it had to be at another subsequent meeting before they can adopt something. • Discussion of funds for maintenance, purchased from the Public Access, Open Space and Natural Resources Preservation Fund. Ms. Garcia stated she believed that it was important to have this fund because if we are going to give big parcels of land to anybody, they should have a maintenance fund. Or, the County should have the maintenance funds. We should talk to the County Parks director. Ms. Self stated that Ms. Patricia Engelhard will be coming to the August meeting. Ms. Self said that Parks has no money for maintaining anything that is being put under their control as a result of the Public Access, Open Space and Natural Resources Preservation funds being used to purchase park land. Ms. Self stated one of the problems was that the code itself, does not allow the money to be used for that purpose. It is only "for purchasing the property and incidental cost involved in purchase, which would be, appraisals, title reports, surveying, and other costs incidental to the acquisition of land shall be permitted to uses of this fund." Ms. Self stated the only thing that the fund could be used for was the actual purchase of land and incidental costs. Ms. Garcia stated it doesn't make sense that we are going to acquire the land, give it to the County, and then they have no money to deal with it. Ms. Self stated they could always suggest to the Council members that they amend the code to allow some of the 2% monies to be used for maintenance. M Mr. Campbell stated he did not want to see this fund being picked apart for maintenance. He suggested to trying to find other funds or create another fund. Mr. Campbell reiterated what Mr. Yuen said before that maintenance was related to the use that the land was going to be put to, for example, if it's just a conservation easement, leave the land as is. Mr. Campbell stated he thought the priority should be trying to form local groups that were willing to step up and say they'll take care of this property; that would be the most desirable. Ms. Garcia stated she agreed with Mr. Campbell and that she would be willing to work with small community groups in Kona to support and maintain their little public accesses that they have. Ms. Garcia stated since a subcommittee was formed to look for additional funding through different resources maybe we could take into consideration trying to develop maintenance funds too. Ms. Springer stated when the Suggestion forms come in, this Commission looks to see if they have identified community groups that are already established and working in that area. That is something this Commission takes into consideration in their evaluation of a site; looking at the strength of the community support and participation. Ms. Springer stated that was done previously in the Commission's evaluation of the Suggestion Forms. Ms. Garcia stated she was really concerned about maintenance; what if there was a local group taking care of a certain site but the person filling out the form did not add that piece of information in. Ms. Springer stated they hear those same comments at the public meetings they had been to and they have entered into a discussion with the public. Mr. Campbell asked Ms. Self if each council member had a discretionary fund. Could those funds be used for maintenance? Ms. Self stated yes because discretionary funds had to be used for public purposes and programs that were already in place with the Department; so it could be placed into Parks & Recreation for maintenance of a park. Ms. Garcia asked if each council member had a discretionary fund that was allotted to them every year. Ms. Self replied yes. Mr. Flores stated another alternative would be to petition the Council to include another position in the budget. Mr. Flores stated in the upcoming budget, perhaps another position or positions for half -time could be added to the budget to handle additional work hours that may be needed for maintenance purposes. 10 Ms. Self stated the Commission should wait till they talk to the Director of Parks and Recreation Pat Englehard. Ms. Self stated she told Ms. Englehard that the commission was interested in learning about "Friends of the Park" and asked Ms. Englehard to bring a sample agreement they had with a community group that helps to maintain a park. Ms. Self stated it was like the "Adopt -A- Highway" program. Mr. Campbell stated he received in the mail something from the National Parks Service. Mr. Campbell stated it was a national program that was aimed at local conservation projects, including maintenance of local parks. ANNOUCEMENTS The next meeting is scheduled for Monday, July 9, 2007, 10:00 a.m. at the Department of Liquor Control Conference Room, 75 -5722 Hanama Place, Suite 1107, Kailua -Kona, Hawaii. ADJOURNMENT Mr. Campbell moved to adjourn the meeting; Mr. Yung seconded the motion and all members voted aye. The meeting adjourned at 11:38 a.m. Respj2qtfully s bmitted, Stacie altje , Secretary 11