Comm No 0044.12 - Testimony - CA-27 - PONC fund - Easements - Eminent Domain

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THE TRUST FOR PUBLIC LAND’S TESTIMONY IN OPPOSITION TO COMM. NO. 44.11 TRANSMITTING CA-27, DRAFT 2, FOR FIRST READING; PROPOSAL TO AMEND SECTION 10-15, PUBLIC ACCESS, OPEN SPACE AND NATURAL RESOURCES PRESERVATION FUND, TO ADD LANGUAGE TO PLACE AN EMPHASIS ON THE ACQUISITION OF EASEMENTS; AS SUBMITTED BY COMMISSIONER ROEHRIG HAWAII COUNTY CHARTER COMMISSION 9:30 A.M., April 25, 2019 25 Aupuni Street, Hilo, Hawai‘i 96720 Hawai‘i County Building, Room 1401, Council Chambers 1003 Bishop St. Aloha Chair Adams and Commission Members: Pauahi Tower, Ste. 740 Honolulu, HI 96813 The Trust for Public Land opposes advancing CA-27, Draft 2 through first reading. The T: 808.524.8694 Trust for Public Land was originally involved in and supported the creation of the PONC F: 808.524.8565 fund through its 501(c)(4) organization, the Conservation Campaign. The Trust for Public Land thanks the staff of the PONC 2% fund and the volunteers who serve on the PONC Commission for their hard work in advancing the wishes of the voters of Hawaii County who voted for the 2% Fund. We oppose CA-27 because (1) the amendment is unnecessary – the County already recognizes PONC may be used to acquire easements and is working with The Trust for Public Land and the Ala Kahakai Trail Association to acquire a conservation easement over land at Waikapuna, and (2) the use of the words “practicable” and “shall” may make the preference for conservation easements mandatory, and may conflict with community or County needs to acquire land in fee simple. Mahalo for deleting the prior language allowing PONC funds to be used for condemnation or eminent domain. CA-27 proposes to add the following language: “Whenever practicable, the County shall seek to acquire an easement as a preferred method to accomplish the objectives . . . .” (emphasis added). The use of the words “practicable” and “shall” may make the acquisition of a conservation easement mandatory in almost every project. “Shall” is generally construed in statutes and laws as imperative or mandatory. Black’s Law Dictionary (online 2d Ed.). “Practicable” means “able to be done.” Oxford American Dictionary 522 (1980). In almost all land conservation projects, a conservation easement is “able to be done.” In combination, these words may require the County to acquire conservation easements in ALL projects, even where the community or the County prefers to buy the property fee simple (e.g., a beach park). These changes are not necessary and create confusion. Mahalo for this opportunity to testify. Unfortunately, we will not be able to testify in person due to scheduling conflicts. Mahalo – Lea Hong State Director, Edmund C. Olson Trust Fellow