{"id":877,"date":"2014-08-28T23:31:30","date_gmt":"2014-08-28T23:31:30","guid":{"rendered":"http:\/\/localhost:8888\/EH\/?p=877"},"modified":"2014-08-28T23:31:30","modified_gmt":"2014-08-28T23:31:30","slug":"hawaii-county-council-finally-accepts-easement-along-north-kohala-coast","status":"publish","type":"post","link":"https:\/\/environment-hawaii.org\/?p=877","title":{"rendered":"Hawai`i County Council Finally Accepts Easement Along North Kohala Coast"},"content":{"rendered":"
\u201cI don\u2019t trust the Planning Department \u2013 even now\u201d said Hawai`i County Councilmember Margaret Wille.<\/div>\n
\nWille, whose district includes a seven-lot gated subdivision known as Kohala Kai along the coast north of Kawaihae harbor, made the comments March 7, as the council was poised to approve a shoreline path along the subdivision that had been accepted last spring by former county Planning Director B.J. Leithead-Todd.<\/p>\n

Following a council committee meeting in February, Wille had been working with representatives of the landowner to come up with language that was intended to establish a setback from and prevent further development near an alignment over which the old Hawaiian coastal trail, known as the Ala Loa, had passed. The easement proposed for acceptance by the council generally runs makai of the Ala Loa alignment.<\/p>\n

Earlier in the week, she said, she had received an email from the developer\u2019s attorney, Steve Lim, proposing language that was to be included in the grant of easement that called for any construction, landscaping, or other improvements to be set back at least 10 feet from the mauka limit of the trail alignment.<\/p>\n

But the draft easement before the council when it met on March 7 was unchanged from what was before the council in February. The only amendment, the public and council members were told, came in the attached map that located the easement across the subdivision. Although it was practically illegible, the new map was said to show the easement as being 20 feet wide, instead of the 10-foot easement shown in attachments to earlier drafts of the easement.<\/p>\n

\u201cThere are two issues,\u201d Wille told her fellow council members. \u201cOne is the status of the Ala Loa. Two is the grant of easement. At the last meeting we dealt only with the grant of easement. I asked that the developer put something in the subdivision CCRs [covenants, conditions, and restrictions] that the Ala Loa would not be blocked\u2026. Two days ago, we had language that I felt was solid.\u201d<\/p>\n

The day before the meeting, however, Wille said she learned of negotiations between Aric Arakaki, with the National Park Service\u2019s Ala Kahakai National Historic Trail program, and the developers\u2019 representatives. \u201cI got calls at 10:30 at night about what\u2019s going on here. Now it\u2019s all mixed up,\u201d Wille said.<\/p>\n

Wille was not the only one whom the talks caught by surprise. Members of the public testifying in Kohala, Kona, Waimea, and Hilo also told council members that they knew little of the recent developments.<\/p>\n

Toni Withington, who has long been active in efforts to protect and promote coastal access in North Kohala, told the council that \u201call the agreements were made behind the scenes.\u201d People wanting to testify on the agenda item \u201care talking about something we don\u2019t know anything about. Send this back to the Planning Department\u2026 Give us more time. It doesn\u2019t have to be passed today.\u201d<\/p>\n

Other testifiers also asked for deferral. Some requested as well that the process used by Leithead-Todd in accepting the proposed easement \u2013 one described by testifiers as unsafe for children and the elderly \u2013 be reviewed. Not one of those testifying urged the council to approve the easement as presented.<\/p>\n

Two Separate Issues<\/i><\/b><\/i>
\n\u201cIt\u2019s complicated,\u201d said Lim, the developer\u2019s attorney. \u201cWe do have an access plan, [identified in] the grant of easement.\u201d At its previous discussion on the easement, he said, the council vote \u201crecognized the grant of easement was separate from the Ala Loa. The GOE relates to the subdivision and SMA [special management area] requirements.\u201d In relation to the Ala Loa, he went on to say, \u201cwe are voluntarily working with the National Park Service,\u201d but approval of the easement \u201cis needed to move forward with marketing\u201d of the subdivided lots.<\/p>\n

Karen Eoff, representing the council district that includes most of North Kona, said that while she agreed that these could be seen as two separate issues, \u201cat this time they\u2019re joined\u2026. Negotiating an agreement is helpful, and exactly what we need to do. But this affects the grant of easement and changes the public access plan.\u201d<\/p>\n

\u201cI\u2019m hesitant,\u201d she said, \u201csince I haven\u2019t seen the plan. I don\u2019t know if it\u2019s a big deal to hold it off for one more meeting. It causes the public angst, and us, too.\u201d<\/p>\n

Bill Brilhante, the deputy corporation counsel attorney advising the Planning Department, said he had only that morning received a copy of the \u201cgood faith agreement,\u201d as it is being called, between the developer and the National Park Service. But the only issue before the council on this day, he said, was \u201cwhether condition 14 of the 2006 SMA permit has been satisfied. The 2006 issue of public access was specific to parking and accesses. There was nothing in it with respect to the Ala Loa. I am sympathetic, desirous of recognition of the Ala Loa. It has tremendous historic value. But that\u2019s not what we\u2019re here to discuss. We can\u2019t make the good faith agreement part of the Grant of Easement.\u201d<\/p>\n

Councilmember Brenda Ford said she was also concerned about safety and the lack of more parking. \u201cThe three-car parking lot is disturbing,\u201d she said. What\u2019s more, she said, the lot \u201cis 300 feet from the traihead,\u201d along a major highway.<\/p>\n

\u201cGood grief! Does the council have the right to change this? I\u2019m not happy with this,\u201d she added. \u201cIt\u2019s unsafe.\u201d
\nBrilhante advised that any language that would change the agreement along those lines \u201cwould be a substantial change\u201d and \u201cwould have to go back to the Planning Department.\u201d<\/p>\n

Ford then commended Wille for her efforts to tighten up the language in the easement. \u201cI\u2019m distressed that the language you worked out disappeared\u2026 The public is not privy to the negotiations regarding the trail that we\u2019re not allowed to talk about\u2026 You could call me very wary \u2013 when something is being negotiated and is not in front of us. Very wary.\u201d<\/p>\n

If the lots were sold immediately, without the protections for the Ala Loa, \u201cthat could be disastrous for the trail,\u201d she said.<\/p>\n

\u2018A Good Segue\u2019<\/i><\/b><\/i>
\nReferring to the draft language that Wille had received from Lim, Eoff asked why that could not be included in the grant of easement. \u201cIt\u2019s very good,\u201d she said. \u201cWhy not incorporate that into the grant of easement?\u201d Although Lim had said the language would be put into the CCRs, \u201cthe county has no jurisdiction\u201d over agreements between sellers and buyers, she noted.<\/p>\n

Duane Kanuha, who replaced Leithead-Todd as planning director last June, referred to paragraph 4 of the easement, which states that the county\u2019s acceptance of the easement \u201cis without prejudice to any existing rights to ownership or use of the historical Ala Loa alignment within the property.\u201d<\/p>\n

This, he said, \u201cprovides a good segue to the good faith agreement.\u201d<\/p>\n

Eoff was still concerned. \u201cI can\u2019t see where the county has any fallback if this isn\u2019t in the grant of easement,\u201d she said. \u201cThe county needs something. The Ala Loa isn\u2019t even on the map attached to the grant of easement.\u201d<\/p>\n

Wille also was wanting more. \u201cThe easement agreement with the feds \u2013 we\u2019re not part of it. We need something now.\u201d<\/p>\n

Lim was firm that the grant of easement would not be changed at this point. \u201cNew language in the grant of easement is directly counter to my client\u2019s legal interest,\u201d he said. \u201cWe won\u2019t agree to that. It\u2019s ironic that the good-faith effort with the National Park Service is now biting us in the butt.\u201d<\/p>\n

Although she could not get the language she wanted inserted into the grant of easement, Wille did extract a commitment from Lim that the same exact terms he had outlined in his email to her earlier in the week would be included in deed restrictions. To be perfectly clear, Wille read them out once more and elicited oral promises from both Lim and Kanuha that the Ala Loa would be given these same protections.<\/p>\n

\u201cOn behalf of Kohala Kai,\u201d Lim agreed, \u201cI\u2019m authorized to record a deed restriction recognizing the Ala Loa that is included in the good faith agreement.\u201d<\/p>\n

With that, the council voted seven-to-one to accept the easement. The lone holdout was Ford.<\/p>\n

The Good Faith Agreement<\/i><\/b><\/i>
\nThe Good Faith Agreement between Kohala Kai and the National Park Service is not so much a final determination of protections to be given to the Ala Loa so much as it is a declaration of the parties\u2019 intent to move forward in establishing a conservation easement over the trail in favor of the NPS.<\/p>\n

\u201cIn order to preserve the Ala Loa Trail alignment and provide protective buffers \u2026 all structures, landscaping elements, fences and\/or rock walls, constructed within any lot within the property, shall be set back a minimum of 10 feet from the east\/mauka edge\u201d of the trail, the agreement states.<\/p>\n

On the day of the council meeting, Brilhante and Lim represented to council members that the agreement did not involve the county at all. However, a draft of the agreement bearing the same date as the council meeting contained one paragraph that certainly would affect the county, were it to remain in the final agreement.<\/p>\n

Paragraph 6 of the Good Faith Agreement calls for the rescission of a memorandum of understanding that was worked out and signed in 2010 by Hawai`i County, the Hawai`i Department of Land and Natural Resources, and the National Park Service. The MOU outlines a cooperative approach between all agencies involved in attempts to establish continuous access along the coast from Upolu Point at the northern end of the Big Island all the way to the eastern boundary of Hawai`i Volcanoes National Park, a distance of some 175 miles.<\/p>\n

According to the NPS\u2019s Arakaki, \u201cthe provision calling for the cancellation of the MOU will be deleted from the agreement.\u201d In an email toEnvironment Hawai`i,<\/i>\u00a0Arakaki went on to say that the developer intended to cancel the MOU only as it applied to the Kohala Kai property. \u201cEven this was not acceptable,\u201d Arakaki said, \u201csince we would still need to work with the county on the management of the access easement.\u201d<\/p>\n

A meeting to get input from community members was held in mid-March. By press time, the final agreement was still being worked out.<\/p>\n

For Further Reading<\/b><\/i><\/b><\/p>\n

\u201cCoastal Access for Public an Issue in North Kohala Luxury Subdivision,\u201d\u00a0Environment Hawai`i,<\/i>\u00a0February 2014.<\/p>\n

This article is available online through the archives section of our website,\u00a0https:\/\/environment-hawaii.org<\/a>\u00a0Access is free to current subscribers. Others are asked to pay a $10 fee for a two-day pass.<\/div>\n

\u00a0<\/span><\/p>\n

Patricia Tummons<\/b><\/div>\n

\u00a0<\/span><\/p>\n

Volume 24, Number 10 — April 2014<\/div>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

“I don’t trust the Planning Department – even now” said Hawai`i County Councilmember Margaret Wille. Wille, whose district includes a seven-lot gated subdivision known as Kohala Kai along the coast north of Kawaihae harbor, made the comments March 7, as … Continued<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[38],"tags":[],"class_list":["post-877","post","type-post","status-publish","format-standard","hentry","category-april-2014"],"_links":{"self":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/877","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=877"}],"version-history":[{"count":0,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=\/wp\/v2\/posts\/877\/revisions"}],"wp:attachment":[{"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=877"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=877"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/environment-hawaii.org\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=877"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}