Housekeeping measure triggers closer look at county code

LIHU‘E — The Kaua‘i County Council recently received a two-decade-old bill affecting public access.

By receiving the bill, which was left floating in limbo by previous bodies, the county closes a loose end.

County Planning Director Ka‘aina Hull explained that Bill 1993, Draft 1, was introduced in 2001. The Planning Commission at that time took no action, and then-councilmember Randal Valenciano, who introduced the measure, is a state judge no longer on the council.

“What is before you folks is one of several bills that council services and our staff found to somewhat just languish and fallen by the wayside years ago,” Hull said. “Just as a house-cleaning measure, we’re sending the bills back to you folks just to receive them. Just to put them to bed.”

But, Hull said, “that is not to say that some of these bills, this one included, have merit to them.”

Along with Councilmember Felicia Cowden, Councilmember KipuKai Kuali‘i had council staff research the bill. At the same time Bill 1993 was introduced, the council had a similar bill, which would eventually become an ordinance.

One of the distinctions within this bill is the difference between “shall” and “may.”

The drafted bill proposed the Planning Commission “shall require the dedication of adequate public access-ways for a subdivision that abuts, encompasses, or is in close proximity to cultural resources and historic or archaeological sites…”

In the existing code, the county’s Planning Commission “may also require public access to and the preservation of all significant historic and archaeological sites known or discovered on the parcel to be subdivided, as determined by the Planning Commission after seeking and receiving input from affected agencies, and community and cultural groups.”

Councilmember Billy DeCosta explained the difference rather simply: “I think there’s a big discrepancy between the word ‘shall’ and ‘may.’ If I was using it in my classroom, and I tell the children, they’ll have recess, ‘may’ (means) I make the decision and ‘shall’ (means) everybody goes to recess.”

While this bill was initially brought up for housekeeping, the discussion veered into the territory of whether or not the county is fulfilling its duties as outlined by the county code.

Looking to the latter part of the code, Cowden suggested that the Planning Commission has not been doing a diligent job at seeking and receiving input from affected agencies and cultural practitioners.

“I’m saying we don’t do that,” Cowden said. “I would give us a D (grade). That is my view. This doesn’t happen. I want to talk about why it doesn’t.”

County Attorney Matt Bracken explained this is done during the planning/permitting process, when letters are sent out to affected agencies and neighbors prior to development.

Hull further explained that commissioners are trained to “proactively engage cultural practitioners” regarding issues that need to be mitigated or addressed.

County Managing Director Michael Dahilig offered that the county is in compliance with case law and constitutional duties regarding the preservation and protection of historic properties.

During public testimony, residents Elizabeth Okinaka and Shawn Villatora spoke from two separate locations, one in Koloa and the Alakoko (Menehune) Fishpond, discussing the cultural significance of both locations.

In Koloa, Okinaka explained that the site of a former village and burial ground is in the process of being developed. In Niumalu, Villatora stood at a legendary site that’s currently up for public sale.

“It is too profound how we do not take the spirit of the law which is intended to help people to be able to hold on to their cultural access to the land,” Cowden said.

Cowden said she will be asking for an audit of the county’s boards and commissions, including the Planning Commission, in the future.

“I think we need to be moving with transparency,” Cowden said.

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Sabrina Bodon, public safety and government reporter, can be reached at 245-0441 or sbodon@thegardenisland.com.

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