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.
Earlier in the week, she said, she had received an email from the developer’s 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.
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.
“There are two issues,” Wille told her fellow council members. “One 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…. Two days ago, we had language that I felt was solid.”
The day before the meeting, however, Wille said she learned of negotiations between Aric Arakaki, with the National Park Service’s Ala Kahakai National Historic Trail program, and the developers’ representatives. “I got calls at 10:30 at night about what’s going on here. Now it’s all mixed up,” Wille said.
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.
Toni Withington, who has long been active in efforts to protect and promote coastal access in North Kohala, told the council that “all the agreements were made behind the scenes.” People wanting to testify on the agenda item “are talking about something we don’t know anything about. Send this back to the Planning Department… Give us more time. It doesn’t have to be passed today.”
Other testifiers also asked for deferral. Some requested as well that the process used by Leithead-Todd in accepting the proposed easement – one described by testifiers as unsafe for children and the elderly – be reviewed. Not one of those testifying urged the council to approve the easement as presented.
Two Separate Issues
“It’s complicated,” said Lim, the developer’s attorney. “We do have an access plan, [identified in] the grant of easement.” At its previous discussion on the easement, he said, the council vote “recognized the grant of easement was separate from the Ala Loa. The GOE relates to the subdivision and SMA [special management area] requirements.” In relation to the Ala Loa, he went on to say, “we are voluntarily working with the National Park Service,” but approval of the easement “is needed to move forward with marketing” of the subdivided lots.
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, “at this time they’re joined…. 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.”
“I’m hesitant,” she said, “since I haven’t seen the plan. I don’t know if it’s a big deal to hold it off for one more meeting. It causes the public angst, and us, too.”
Bill Brilhante, the deputy corporation counsel attorney advising the Planning Department, said he had only that morning received a copy of the “good faith agreement,” 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 “whether 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’s not what we’re here to discuss. We can’t make the good faith agreement part of the Grant of Easement.”
Councilmember Brenda Ford said she was also concerned about safety and the lack of more parking. “The three-car parking lot is disturbing,” she said. What’s more, she said, the lot “is 300 feet from the traihead,” along a major highway.
“Good grief! Does the council have the right to change this? I’m not happy with this,” she added. “It’s unsafe.”
Brilhante advised that any language that would change the agreement along those lines “would be a substantial change” and “would have to go back to the Planning Department.”
Ford then commended Wille for her efforts to tighten up the language in the easement. “I’m distressed that the language you worked out disappeared… The public is not privy to the negotiations regarding the trail that we’re not allowed to talk about… You could call me very wary – when something is being negotiated and is not in front of us. Very wary.”
If the lots were sold immediately, without the protections for the Ala Loa, “that could be disastrous for the trail,” she said.
‘A Good Segue’
Referring to the draft language that Wille had received from Lim, Eoff asked why that could not be included in the grant of easement. “It’s very good,” she said. “Why not incorporate that into the grant of easement?” Although Lim had said the language would be put into the CCRs, “the county has no jurisdiction” over agreements between sellers and buyers, she noted.
Duane Kanuha, who replaced Leithead-Todd as planning director last June, referred to paragraph 4 of the easement, which states that the county’s acceptance of the easement “is without prejudice to any existing rights to ownership or use of the historical Ala Loa alignment within the property.”
This, he said, “provides a good segue to the good faith agreement.”
Eoff was still concerned. “I can’t see where the county has any fallback if this isn’t in the grant of easement,” she said. “The county needs something. The Ala Loa isn’t even on the map attached to the grant of easement.”
Wille also was wanting more. “The easement agreement with the feds – we’re not part of it. We need something now.”
Lim was firm that the grant of easement would not be changed at this point. “New language in the grant of easement is directly counter to my client’s legal interest,” he said. “We won’t agree to that. It’s ironic that the good-faith effort with the National Park Service is now biting us in the butt.”
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.
“On behalf of Kohala Kai,” Lim agreed, “I’m authorized to record a deed restriction recognizing the Ala Loa that is included in the good faith agreement.”
With that, the council voted seven-to-one to accept the easement. The lone holdout was Ford.
The Good Faith Agreement
The 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’ intent to move forward in establishing a conservation easement over the trail in favor of the NPS.
“In order to preserve the Ala Loa Trail alignment and provide protective buffers … 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” of the trail, the agreement states.
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.
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.
According to the NPS’s Arakaki, “the provision calling for the cancellation of the MOU will be deleted from the agreement.” In an email toEnvironment Hawai`i, Arakaki went on to say that the developer intended to cancel the MOU only as it applied to the Kohala Kai property. “Even this was not acceptable,” Arakaki said, “since we would still need to work with the county on the management of the access easement.”
A meeting to get input from community members was held in mid-March. By press time, the final agreement was still being worked out.
For Further Reading
“Coastal Access for Public an Issue in North Kohala Luxury Subdivision,” Environment Hawai`i, February 2014.
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