Proposed County Easement at Waipake Falls Far Short of Beach, Expectations

posted in: Access, Development, February 2014 | 0

“We’ve negotiated lots of accesses. This is the worst I’ve ever seen,” said Kaua`i County Council Planning Committee member Tim Bynum of the proposed mauka-makai easement in Waipake offered by Falko Partners, LLC, as part of its 357-acre Kahu`aina Plantation development.

The easement is a mile long, pedestrian-only (meaning no bikes or horses), and ends at a 12-foot high bluff above a field of rocks. Falko would also have no obligation to maintain the easement.

A website for the development celebrates the project’s “extremely high barriers to entry.”

The county Planning Commission approved Falko’s subdivision request for the 80-lot luxury agricultural development years ago, but the easement, a condition of the approval, has only recently come to the County Council for acceptance.

The initial easement proposed on the western side of the ahupua`a was rejected by the state Department of Land and Natural Resources’ Office of Conservation and Coastal Lands, in part, because it came too near to areas frequented by Laysan albatross and endangered Hawaiian monk seals. At OCCL’s request, the easement was moved to the east side of the property. Also, an error in the file plan, which had the relocated easement ending 580 feet from the shore, caused some additional delay.

But even with that error corrected, the council’s Planning Committee was not pleased. When county corporation counsel Ian Jung first brought the easement to the committee in August for approval, members criticized the Planning Commission for not negotiating something better.

Bynum asked why the proposed parking area and easement couldn’t start at one of the development’s internal roads closer to the ocean. Jung replied it was because Falko does not intend to dedicate those roads to the county and the law limits the county to accepting easements that connect to public roads. And the closest county road is a mile away.

Although not a committee member, council member Gary Hooser also lamented that the county has negotiated lateral beach access for other developments, but failed to do so in this case.

When asked what the council’s options were, Jung said the committee could either accept the easement or not, but would not discuss in public what leverage the council might have to amend or add conditions to that easement.

The committee twice deferred the matter. In the meantime, a number of committee members walked the easement themselves and agreed that the matter of the 12-foot cliff needed to be resolved.

“If not for the community bringing this up, we would have an easement that ends at a rock wall that is unacceptable,” Hooser said when the committee took up the matter in November.

“Are we the county that incompetent that we would sign on something like this … telling the people, ‘Here is your gift’?” added committee member Mel Rapozo. “I am not asking for special favors of a gold plated 24 karat … walkway to the beach with amenities, water fountains and restrooms. [I’m] asking for access. … It is not access. We got duped,” he said.

After again deferring the matter, Falko Partners attorney Dennis Lombardi offered a solution at the Planning Committee’s December meeting.

Falko’s Larry Bowman, after walking the proposed easement himself, committed to giving to the county an additional path that branches off the easement about 30 feet northward to “a set of natural stairs” and to a fishermen’s trail to the beach, Lombardi told the committee.

Lombardi recommended that the committee defer any decision until its second meeting in April.

“We need some time to do the engineering, some time to survey and stake the additional path,” he said. He added that the company planned to hand-clear the new portion, which may require DLNR approval. Lombardi said the addition would likely be a gift to the county rather than be included in the proposed easement.

Bynum asked Lombardi whether the new path was part of a commitment to work with the DLNR on establishing the lateral access to this property, commonly known as the ala loa.

“Absolutely not, sir,” Lombardi replied.

“I’m very disappointed to hear that,” Bynum said.

In the end, the committee deferred action until April.


Surprising Scope

When the easement matter was first brought to the council’s Planning Committee, members believed that Kahu`aina Plantation was an 11-lot agricultural subdivision, because that’s the description they had been presented with. They were wrong.

During the course of the committee’s meeting last August, community member Tim Kallai provided council members with a printout from Kahu`aina Plantation’s website which described it as an 80-lot luxury subdivision.

When confronted by council members with this new information, Jung replied that he was aware that some 62 residential lots and a number of agricultural CPR (condominium property regime) units were being proposed. The subdivision application was approved before the county amended an ordinance governing density in open space areas a few years ago.

Under the county’s current ordinances, “a development like this would be completely different,” he said.

“This is a full-on luxury, supposed agriculture subdivision which I think changes a lot in terms of what the people’s benefits would be in terms of access, in terms of a lot of things,” Hooser said.

Because the agenda item being discussed dealt only with the easement and parking issue, the committee agreed to deal with the subdivision scope in a separate item at a future meeting.

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