HILO — The Windward Planning Commission is giving a community center in Kalapana Seaview Estates another chance to obey the law. HILO — The Windward Planning Commission is giving a community center in Kalapana Seaview Estates another chance to obey
HILO — The Windward Planning Commission is giving a community center in Kalapana Seaview Estates another chance to obey the law.
At a packed meeting Thursday in Hilo, the commission could have revoked the special use permit issued in 2001 to the Hawaii Volcano Circus, the parent organization of the Seaview Performing Arts Center for Education. Instead, the commission voted to defer a final decision until December.
That will allow time for HVC to submit an amendment for the permit to broaden the scope of things HVC is allowed to do.
HVC, along with its related programs — SPACE, the farmer’s market, the satellite charter school and the HICCUP Children’s Circus — was facing a shutdown for violations of the permit following numerous complaints by a handful of neighbors about noise and parking issues.
The county Planning Department had sent HVC a cease-and-desist order in March 2010, but Planning Director Bobbie Jean Leithead Todd allowed the farmer’s market and bazaar to continue temporarily while members of the nonprofit organization prepared an amendment to the 2001 permit.
The amended permit was submitted to the county in July 2010, but was withdrawn so that HVC could propose a lease of adjacent state land from the Board of Land and Natural Resources. This required an environmental assessment, which has prevented HVC from submitting the amended permit to the county for approval.
In the meantime, neighbors frustrated with the organization’s apparent disrespect for land use laws continued to file complaints with the Planning Department.
A 25th anniversary celebration for the Bellyacres Land Trust, another organization under HVC, last February was the final straw. Leithead Todd had warned Graham Ellis, HVC board chair, not to have the party, because it was not an approved use for the land. Ellis, acting on advice from his attorney, Ted Hong, that the party was allowed, held it as planned. A frustrated Leithead Todd moved to revoke the permit.
Thursday, the Hilo conference room was packed with supporters of SPACE. More than a hundred squeezed through the door and found room to sit or stand along the walls.
Planning Commission Chairman Zendo Kern disclosed that he was a friend of Ellis, that Ellis had donated to Kern’s County Council campaign and that Kern had attended the Feb. 24-25 celebration.
“I didn’t know it wasn’t kosher,” Kern said. Still, he declared he did not have a conflict of interest and did not recuse himself from the vote.
The hearing began with a presentation by county staff planner Jeff Darrow, who recounted a years-long pattern of public (by the county’s definition) performances in which tickets were sold. He documented the construction of several unpermitted structures and other unpermitted events, all in violation of a March 2010 cease-and-desist order.
But Hong, the attorney, characterized the affair as a “misunderstanding.”
“We are here this morning because of a misunderstanding, and I apologize that this misunderstanding has gotten to this point,” he said. He asked whether a landowner — in this case the Village Green Society, which established Bellyacres — had the right to hold a private party.
Hong called the Planning Department’s proposed revocation “too harsh a remedy and unnecessary” given Hawaii Volcano Circus’ efforts to file an amended special permit application.
“HVC provides important services to the surrounding community,” Hong wrote in his response to the commission. “In addition to being a charter school and a performing arts center, its farmer’s market has provided farmers, as well as residents, ready access to locally grown produce without having to travel long distances.”
Deputy Corporation Counsel Amy Self explained the county’s position.
“We’re not here just about the applicant,” she said. “This is about the rights of surrounding neighbors … You can’t forget about the rights of the neighbors.”
“The Planning Department is charged with enforcing the conditions of the special permit. Quite honestly, they’ve run out of ways to do this,” Self said. “The legal fees that (HVC) spent for today could have been avoided by simply complying with the permit.”
The permit prohibits any public performances, but Ellis and Leithead Todd disagree as to what that means. Ellis said any performance that is not advertised to the general public is private; Todd said any performance that involves more than the students and faculty of a program or school is a public performance.
“We seem to be having arguments over what the definition of a public performance is,” Leithead Todd said. She suggested the department would be open to Ellis and HVC getting “a reasonable amendment together” that would spell out the number of performances, the number of performers and the operating hours, with input from neighbors and a solution to the parking problem.
The commissioners took the opportunity to praise Ellis for what he’s doing and to scold him for flouting land use laws.
“For 12 years, you were in violation,” said Commissioner Dean Au.
“I’m inclined to stop this thing,” said Commissioner Wallace Ishibashi.
Another commissioner, Raylene Moses, called attention to Ellis’ “blatant disregard” of the permit restrictions.
“We have the authority to ensure that it (the permit) had been followed,” she said. “If we’re allowing you to do it, then it sets a precedent.”
Hong, in his response, said no police complaints were received. He described the problem as the “tyranny of the minority,” and asked for a chance to fix the situation.
Public testimony began following a lunch break at 1:20 p.m. and ran for more than an hour. Fifty-two people signed up to testify, but only about 30 of them were present to speak.
R.J. Hampton, a neighbor of the center, provided some fireworks.
“I’m the tyranny of the minority that everyone’s talking about, because I’ve made a complaint,” she said. “When I look at Graham Ellis, I don’t see SPACE.” She said she sees a corporation of Europeans and Americans coming in “to make their fortune. Isn’t it nice.”
“I expect this commission to revoke the permit and make them reapply,” she said.
Most of the other speakers were more supportive.
“There’s no corporation involved here,” said Aileen Wilkle. “We’re a land trust. Nobody’s making money here.”
The youngest testifier, Bailey Givens, a member of the circus, gave a passionate speech that moved at least one commissioner to change his vote.
“I was all ready to shut this place down,” Ishibashi said, crediting Givens for the change of heart. Ishibashi said later that, “You guys have a very, very special program going on.” But the board members vowed that the Dec. 6 meeting would be HVC’s last chance.
“I just want to say how great it is the Planning Commissioners are responsive to community needs,” Ellis said after the vote, “and I want to thank them for that.”
