Councilman questions legality of pedestrian/bike path decision

Kaua‘i County Councilman Mel Rapozo yesterday alleged that the Planning Commission violated a state law with its decision yesterday to allow work to continue on the second phase of a 16-mile recreational path from Nawiliwili to Anahola.

During a meeting of the council’s Public Works Committee at the Historic County Building, Rapozo said the commission did not require a current shoreline certification when it approved the administration’s request for amended permits for roofs on six rest areas and other improvements within the second phase — a 4.3-mile segment from Kapa‘a to Kealia.

The commission’s action will open the door for property owners to build oceanfront homes with outdated shoreline certifications, Rapozo said.

By state law, a certification is good for only 12 months, he stressed.

“I am not here about the path or anything,” he said. “If we allowed the shoreline certification to be ignored by the county, it sets a precedent across the county, and we end up in trouble.”

County officials have said they followed legal requirements in developing the project, and stressed that the number of rest areas and their locations would be identified during the design process.

The Planning Department said there is no state or county requirement to maintain a current certified shoreline throughout the construction period of a project.

Rapozo agreed, but insisted one should have been used before the roof work began, as required by law.

If the county requires developers and property owners to follow the law, the Planning Commission should set the example by following it, too, Rapozo said.

“It is amazing how you can justify not following the law,” he said. “There is always that argument that we didn’t ‘because (of this) or this is a unique situation.’”

Councilman Ron Kouchi said a previous council passed a resolution opposing the issuance of after-the-fact permits, and the action by the Planning Commission contradicts the will of the council.

Planning Commission Chairman Theodore Daligdig III, who recommended approving the installation of roofs for all six rest areas for the public’s benefit, said Rapozo’s challenge was news to him.

He also said it was inappropriate for him to comment because he has yet to be made aware of the full content of the councilman’s criticism.

Rapozo voiced his frustrations over the commission’s decision during a discussion on the bicycle and pedestrian pathway work.

On Tuesday, the commission approved Mayor Bryan Baptiste’s request for amended permits to put roofs on six rest areas, build a horse trail and realign some parts of the path within the second phase. Also approved was the realignment of parts of the pathway.

Councilman Tim Bynum came to the defense of the commission, saying the body showed flexibility in its actions.

“The Planning Commission has latitude about how they do things,” Bynum said. “And I think they are being educated in changing the way they can put down conditions and expectations.”

Bynum said the rest areas were publicized at past meetings, and he took issue with characterizations by some council members that permits were not issued for the rest areas.

In fact, the Public Works Department’s Building Division issued building permits to Jas Glover, the contractor, for the roof work in 2006, he said, and now the roofs are approved for installation by the Planning Commission.

But the county had no authority to ignore the law stipulating certification of the shorelines is valid for only 12 months, Rapozo said.

Rapozo found fault with explanations by county officials that recertifying the shoreline each year was futile.

The recertification, he said, considers beach erosion and protects homes and government structures such as the bicycle and pedestrian pathway from damage.

North Shore resident Caren Diamond said the county would have done a better job of preserving the pathway if it had relied on a more current shoreline certification.

“If cited for shoreline erosion in mind, cited with proper setbacks and cited from a current shoreline certification, (the pathway) probably would have a longer lifetime.” she said.

If huge waves hit the beach where the pathway is, “25 feet or 30 feet (of the shoreline) can go over a couple of days, and the bike path will be gone, just like that,” she said.

Rapozo also said when the county administration fielded an amended special management area use permit application from the county administration for the roof work and other projects within the 4.3 mile segment, it should have secured a current shoreline certification.

Rapozo also asked whether the county, in filing an amended permit application for the proposed work, supplied such information as a tax map key, a written description of the proposed work, a statement of evaluation and other information.

In most cases, the county did provide such information, Deputy Planning Director Imai Aiu said, although it did not use a current shoreline certification.

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