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HomeMy WebLinkAboutPedro Tama History of Violations Testimony 06.28.23 From: Pedro Tama To: W PCtesti mono Cc: Andrews,Jessica;Jackson. Maiia;Timothy Karamazov;Xanthe Lancaster;Jane Tama; Sahara;Gary Hauler; edward utyro;Amy Evans; EJ Paterson Subject: Silber, PL-SPP-2022-000016: History of violations Date: Wednesday,June 28, 2023 9:35:30 PM Attachments: ViolationAndOrder 12-05-2019.odf Inspection-CorrectiveActions 1-30-2020Silber.odf Daily Fines Letter 01.10.23.odf To: Windward Planning Commission Date: July 27, 2023 Subject: Silber, PL-SPP-2022-000016: History of violations In the Introduction to this SP application, it states: "The applicant was issued a Notice of Violation and Order on December 5, 2019 pertaining to the unpermitted operation of the holistic education center and is seeking a Special Permit in order to remedy that violation and legitimize the center." In the PD Background Report, the very first sentence states that the applicant is requesting a Special Permit "to legitimize the operation of a holistic education center." In the PD Recommendation (10/28/22) the first sentence says "...the Deputy Planning Direcor recommends that the request for a Specil Permit to legitimize the operation of a holistic education center... be approved..." Why does the center need to be `legitimized?"The PD Background Report fails to tell us this important "background" information. Attached, please find three relevant Planning Department Documents that fill in this missing background information, all being certified letters sent to Mr. Robert J. Silber: 1. December 5, 2019 Notice of Violation and Order. File No. ZCV 2017-007E. >"Immediately cease and desist the unpermitted operations and overnight accommodations on the Property." >"Correct all violations at your own expense..." >"Pay a fine in the amount of$5000, pursuant to ...State Law..." >"Pay a civil fine in the amount of$500 for the violations of County Law..." 2. January 30, 2020 Inspection/Corrective Actions. >"The permitted greenhouse was converted into an activity structure and within the structure it contains a wooden floor, raised stage, bed(s), conga drum, speakers and yoga/exercise mats. No agricultural activity was noticed within the structure" >"There are two unpermitted two-story structures with stairs leading to the upper floor. Each structure has eight (8) rooms, and ...one of the rooms...being occupied." >"Immediately cease and desist use of any unpermitted structures..." >"Immediately cease and desist any non-agricultural activities in the greenhouse. Remove all non-agricultural related items and revert to its approved use as a `greenhouse'..." >'Immediately cease and desist use of all tents as accommodations..." >Secure approval for the use of all unpermitted structures, as allowed by this Department or demolish all of the unpermitted structures." 3. January 10, 2023 Daily Fines Letter >To date you have failed to comply with the Notice of Violation (NOV) and Order dated December 5, 2019..." >As of the date of this letter, your fines have accrued to $508,500..." • Since 2019, Mr. Silber's has never paid any of his fines. They now total approximately $593,000. • Since 2019, Mr. Silber has never ceased his unpermitted operations and overnight accommodations, in defiance of the NOV. • Since 2019, he hasn't permitted any of his unpermitted buildings, nor has he ceased using any of his unpermitted buildings, in defiance of the NOV. • Nor has he ceased using his converted "greenhouse" for Lolia events, again, in defiance of the NOV. • Moreover, since January of this year he has constructed brand-new, unpermitted structures, in defiance of the PD Recommendations and Conditions. G. Pedro Tama 13-6516 Kalapana-Kapoho Beach Road, Pahoa, HI 96778 ZY OF Jr lldrr\ Kim. K(,\ Likumow Dtl.lm. Karltill I -4 �144 IlH-1 t County of Hawai6i 4 lv, ; Ill. \N N I NG 14 11 \k INI VN I SIGNATURE CONFIRNMA'l ION RESTRICTED DELIVERY CERTIFIED MAIL RESTRICTED DELIVERY 7018 0360 0000 8784 4334 December 5, 2011) Robert Jerome Silber Robert Jerome Silber 13-6554 Kaiapana-Kapoho Rd 13-2060 I-olia Place 115hoa. lil 96778-9044 Hhoa. t-11 9677X Dear Mr. Silber: Subject: Notice of Violation and Order omplaint: Conducting Unpermilled Commercial Operations and Overnight Lodging/Accommodations File No.: ZCV 2017-007E Tax Map Kel,: (3) 1-3-11412m 140, 13-2060 Lotia Plagg, Kamaili. Puna. Husvaij -]'he COLIllly of lia"id'i Plammig Department rDepartmcm-) has rcccivcd w\cral complaints that VOU are conducting unpennitted commercial operation. IIICIUdil)gL hLil H01 limited to. menlight lodging accommodations. festival eventN, and clief-prepat-CLI 11112,111 [411 SdIC (,it the All SUbject properly located in 4ic State Agricultural District (Al aril ihe Count\ Agricultural District (A-la). 13ccaLISC VOLT IIUVC dellIC(l Mir Planning hispcclor ICLCNN to your property in the past to conduct Sul IMSPCC110111. the t'01lL1%%1I1g internet links \kcre re%iewed ror information regarding the complaints received: 0 Will: 0 1\\lli -LA 0 hitps: Based on information pro\1ded III the at'Orementioncd \%cb,,Itcs for the sul�iccl there exists sufficient evidence toslimll, that puare llaNai'ilte%iced Statute (-HRS-) Section 205-4.5 (Permissible uses within the agricultural districts). HRS Sectitm 205-2, Hawaii Adininistratillle Rules ("HAR-) Secoon 15-1-5-25(h) and (b). and Hawaii County Code ("HCC-) Section 25-5-72 (penll I L tied LLSCS \A,ithin (lie agricultural district). Robert Jerome Silber December 5. 21M 9 flage 2 -Fite aforementioned violations must be corrected as stated in the Order heltm. on or h llore the stated deadline to mold the accrual of daiIN fine,. FINDINGS Based oil the ahme-mentioned websltes and County of Haccai'i record;_ Our iMe,UCOA rcur reveals the ►irilowing: The subject property, located at 13-2060 L-olia Place, Pahoa, Hawaii 96778. -I'Mt No. (3) 1- 3-002:140 (hereinafter referred to as the "Property"). is owned in fee simple by Robert Jerome Silber. The property. consisting of approximately 5.134 acres, is located within the State Agricultural Land Use District (A) and within the County Agricultural Zoning District (A-I a). The aforementioned websites show that events such as the Hawaii Tantra Festival, which was held on the Property from February 2 6, 2019 (See Exhibit A attached hereto). and the Conscious Sensuality. which was held on the Property frorn Februay 9 29, 2019 (See Exhibit B attached hereto), are events for which tuition is charged. -File tuition charged for the Hawaii Tantra Festival was S475 (See Exhibit C attached hereto) and the tuition charged for the Conscious Sensuality event was S2.100 for all three weeks (See Exhibit D attached hereto). In addition to the ticket sales for events being held on the Property, the wchsites advertise "Accommodations" provided in "Two-story Hales . . . `-with Garden and Upstairs rooms," "Glatnping Canopies ►%ith two queen bed-s per canopy." or "Bring ,your own tent and camp -- Showers/bathroorn,'hot tub use included in camping fee." (See Fxhibit l attached hereto). County records reveal that there are no huiiding pennits and no additional farm duelling permits for the two "T%ko-story Hales" depic:led in the video attached herclo as Exhibit F_ The "clamping Canopic-,' lodging/accommodation,; are depicted in a video attached hereto as Exhibit G. There's also a website advertisement tier upcoming events scheduled for 2020 and the lbunder of the event,. (See Exhibit H & I attached hereto). NOTICE OF VIOLATION Based oil the foregg4tig. oladou as follows: 1. Violations of State Law, State Agrigultural DistLigt not expressly uermitted in HRS Section 205-4.5(a) shall under HRS Section 245-6. The commercial ollerations. including the sale of f2od. 11d overnight lodging/accommodations described in the_"Findings" above are not Bled as permitted uses in HRS Sec ion 205-4.5f al and you have not obtained a Robert Jerom Silhtr Deceiliber Page 3 sMecial permit for sucli uses tiuch uses are also of listed as permitted uses wider HRS Section 205- 2(d) and HAR Section 15-15-25(bl and, thus. are not Dermitted in the Statericulrural District, Theref.Qre. you are in violation_ 11f.,,JIRS Sections 205 -4.5(al. 205-2idl.and HAR Section LNS Section _205-13(a) provides that and person who violates ani provision of HRS Section 205-4.5, or any regulation estahlkhcd relating thereto, shall be lined not more than $5,000, and an} person xvho violates any other provision of Chapter 205. or any regulation established relating thereto. shall be lined not more than 51.000. 2. Violations of County Law: HC'C Section 25-4-4 provides in pertinent part that any use not listed among the permitted uses in a zoning district is a prohibited use t,Othin that district, HCC Section 25-5-72 provides a list of uses that are permitted within ill the C'ounty's Agricultural District. The commercial opStilligUs, including the sale_of fogd._and overnight lod-gina/arcummodations_ IbHndina' above are not listed as nernutted uses in FILL Section 25- -72. Therefore. you are in violation. of HC!L &g1jon 25-5-72, Under the administration enforcemcnt provision, IICC Section �5-2-35(e:), the Planning Director niay order any person in violation elf HCC' Section 25-5.72 to do any of the follo'Lt•ing. (I) Cease and desist from the violation. (2) Correct the violation at the persons own expense bet'ore a date specified) in the order. (3) Pay a civil tine not to exceed S500 in the mannei. at the place and before tlhC date specified in the order: (4) Pay a civil tine not to exceed S500 per day for each clay in which the; violation persists, in the: manner and at the time and place specified in the order. ORDER Vou are hereby ordered to take the following corrective action(s) at your own expense. 1. Immediately cease and desist the unpermitted commercial operations and urernighl lodging, accommodations on the Property. 2. Correct all violations at your own expense: on or be Core the elate specified helwk. 3. Pay a line in the amount of 55,000.00, pursuant to HRS Section 205-13. ti3r the x iolations of State Law as stated in the "Notice of Violation" section above. Robert Jeronic Silhcr December 5 1014) Page; 4 4. Pay a elf it tint in the aniount of' S500.00, ti+r tilt: %u►lattorts (It' GIL1111V I M% a, slak d ill the"Notice of Violation- section above_ i. Pay all fines due to this office and complete corrcctive actions by the deadline date +it Januar_V 6, 2020. Paytrient may be made only by cash. cashier �, check, or inoncy of-klcr. Personal checks are not accepted. Makc eashier's check or nu►nc . order payable to County Director of finance. If you du not know the amount ye}u o.t c. please contact this office for the amount due. h. Provide evidence that your two dwellings are in compliance with the County of Hawaii regulations and codes. 7. Contact the Inspector below and arrange for an inspection of the Property. This Order shall become final thirty (30) days after your receipt of the Ncitice of Violation and Order, unless the Director's decision is appealed to the Board of Appeals within the thirty-day(30) period as described belowv. Upon satisfactory compliance with all corrective actions of the aboNe order. we rimy close the complaint with no further action. GENERAL 1NFORR]ATION What happens if you do not correct the violation? A violation that is not corrected by the "Deadline Date" will be assessed daily fines slar{rriL at (See table below-.) After 3 months the fine increases to S300 per day, after 6 months to S400 per clay, after c) months to S500 per clay until the case is resolved. It is in your lest interest to correct this problem before or on the "Deadline Date"as indicated aboN e. Dahl Fines: According to County of limy ai'i Planning Department Rules of Practice and Procedure Rule 9-5(d): When a violation is not corrected by the deadline set by the Order, the Director- may assess additional fines to a maximurn of S500 for each day that the violation remains uncorrected in accordance with the: tiTllowing. schedule: l — --.._i-...-------- (DAILY FINES FIRST A4 l I_R AFTER I AF I l~R VIOLA'I ION r 3 MOS.. "" MO. - (>>►i M0. clrn '10. Initial violation $l00 S300 S300 j S500 First Recurrence S20o $1100 S400 I S500 Second Recurrence S300 S400 S500 14 Third Recurrence S400 S500 Fourth and subsequent recurrences will be assessed S500 per day of additional daily tines from the date that the violation was to cease as set forth in the order Robert .ieromc Silher December 5. ?()ic) Page 5 Can you appeal this Notice of Violation and Order`' Yes. In accordance «itlt Section 6-y.2 (a) Of the IkM,11'i the BOAld of Appeals is authorized to hear and detciininc any appeal fi'c►trt the final decisions of the Planning1 Director. . An appeal shall be in in the fonn prescribed by the Beard of Appeals and shall specify the person's interest in the subject matter of the appeal and the Bounds of the appeal. A filing fee of S250 shall accompany any such appeal. The person appealing a decision of the Director shall provide a copy of the appeal to the Director and to the owners of the affected property and shall provide the Board of Appeals with the proof of service. ?. The appellant, landowner(,) if' not the appellant, and the Director shall be parties to an appeal. Other persons may be admitted as parties to an appeal. as permitted by the Board of Appeals. For your convenience, we ha%c enclosed the County of Hawai`i Board of Aplreals General Petition for Appeal of Decisions by Planning Director form. Address the Appeal to: Beard of Appeals 101 Pauahi Strcet, Room 3 Hilo, 111 96720 Due Date for Appeal: The appeal must he received «,]thin thirty (30) calendar days from the (late of receipt (it' this Notice of Violation and Order. An appeal to the Board of` Appeals shall trot sta} the provisions c►f the Director'~ "Under' pendinf4 the final decision of the Board of Appeals. The appeal must be made in accordance with the Board of Appeals Rules of Practice and Procedures or it may result in the dismissal of the appeal. What happens if l lose my appeal`.' The assessment and accumulation of fines does not stop "Un you fife fiar an appeal. If the Board of Appeals denies your appeal then you will he required to pay your tines from the slay the fines bean to the date the vlolation(,�) has been corrected which must he ycrified by the Planning Department. You can also take corrective action as described in this letter and stop the daily fines, while appealing. If you do not tale corrective action. daily fines will continue to accrue incrementally. Should you acquire the services of' an attorney"counscl representation then you are required to also submit it letter of consent vv ith your response letter authorizing the County to correspond and respond to the attorney/counsel representation. Rohert )eronic Sllhcr Deccn)her 5. 201 L:I Patte b i an 1 get a time extension to ha%c more lime to corrro the %iolation" 11 NOU knok% wtk cannot t1+111plcjj: thy' corleCtm. h1 dw t1c•Id1111c ,hiv. %OLI nlLI\ �k:a1kl to iuhnut 0 ' rcyutht 101' a imw cxtcw itw hcli,n• die dc.idllnc date Include all of the folim.-inL, inforni.klints kith xuur remmst: I Dcscnhc %%hat wu hake uccomhlishcd 1111-iOl- to rtclLlrstnlL! 1111- lime ��tensi��n The amount of additional tinge necessary to L OMIAe(e the correcU\c action. 3. The name and tctephonw number of the person assisting YOU in thi, cl'fikrt 4" The date in which you expect the �relation to he fully corrected. The submission of a time extensulrl request cities not Lluarantte the approval of the request 110)'does It extend your right to appeal It' your time extension k denied. daily tines %\)Il continue to accrue from the date a; described aho\e and until the Villlatiun is con-ected if approved. the Llalil\ lines "Ill bt: delaved until the new deadline date. Should _you have any yue,tlt)11s. PILa e teel free to c0111att Plalutinv In pector. `lark 1\%.unuto tit this depamnent at (8 8) Late l-K 1 �1 Sin -erely. I MICHAI E Planning Director M I:jaal ( 011;.+Pldnnu1--13UNIL k 11).1r.en1,!w I\Ih Ili"1 M 1 \t, 1 1 11 Enc.- Count} ul'I Board of Appeals General Petition Cur Appeal ol'Decl;ions h) Planning Dircttllr ec. Corporation C'omvu cl. Ronald Kilo ASV OF h, Harry Kim �o° '+� Michael Yee Mayor Director Roy Takemoto Duane Kanuha Managing Director •. ���e,:.�� Deputy Director er ' 7Tf•Qf.µ'� West Hawaii Office East Hawaii Office 74-5044 Ane Keohokalole Hwy 101 Pauahi Street,Suite 3 Kadua-Kona,Hawaii 96740 County of Hawai;i Hilo,Hawaii 96720 Phone(808)323-4770 Phone(808)961-8288 Fax(808)327-3563 PLANNING DEPARTMENT Fax(808)961-9742 CERTIFIED MAIL RESTRICTED DELIVERY SIGNATURE CONFIRMATION RESTRICTED DELIVERY 7018 0360 0000 8778 7839 January 30, 2020 Robert Jerome Silber 13-6554 Kalapana-Kapoho Rd. Pahoa, HI 96778-8044 Dear Mr. Silber: Subject: Inspection/Corrective Actions: Reference: Notice of Violation and Order (NOV) dated December 5, 2019 File No.: ZCV 2017-007E Tax Map Key: (3) 1-3-002:140, 13-2060 Lolia Place, Kamaili, Puna, Hawaii INSPECTION On January 8, 2020, Mark Iwamoto conducted an inspection of the subject property in the presence of Mr. Silber and observed the following: 1) The permitted detached garage is partitioned into several various rooms. One room was being utilized as a bedroom and was being occupied at the time of inspection. 2) The penmitted greenhouse was converted into an activity structure and within the structure, it contains a wooden floor, raised stage, bed(s), conga drum, speakers and yoga/exercise mats. No agricultural activity was noticed within the structure. 3) There is a newly constructed, unpermitted community bath house toward the rear of the property. 4) There are two (2) identical unpermitted post & pier structures in the rear of the property which appear to be designed for human occupancy. www.hiplanningdent.com Hasrai i Coim(v is an Equal Opportunit.v 1'rorider and Employer planning(a hawaiicounty.jzoc Robert Jerome Silber January 30, 2020 Page 2 5) There are two (2) identical unpermitted two-story structures with stairs leading to the upper floor. Each structure has eight (8) rooms and at the time of inspection, one of the rooms on the upper floor being occupied. 6) There are approximately 12-14 tents spread throughout the property and within several of the tents, bed(s) were noticed. You informed that agricultural crops which are grown on the premises are being sold from your property. In addition, you informed that your property is now being used as a "Hosted" Short-Term Vacation Rental (STVR). Although, this Department does not currently regulate Hosted STVR's, you are required to remain as a single- "family" use as defined in Chapter 25, CORRECTIVE ACTIONS 1) immediately cease and desist use of any unpennitted structures, including the garage as habitable 1 rentable space. Remove all beds and related items from all unpermitted structures, as described in the January 17, 2020, email. 2) Immediately cease and desist any non-agricultural activities in the greenhouse. Remove all non-agricultural related items and revert to its approved use as a "greenhouse," as described in the January 17, 2020, email. 3) Immediately cease and desist use of all tents as accommodations and disassemble the tents, as described in the January 17, 2020, email. 4) Secure approval for the "use" of all the unpennitted structures, as allowed by this Department or demolish all of the unpennitted structures. 5) Although it is a pennitted use to sell produce grown on your property, you are required to complete an Agricultural-Based Commercial Operation Certification. For your convenience, we have enclosed the foam which needs to be completed and returned to this office in order for you to continue sales of your crops grown on your premises. You indicated in your response letter that you are no longer affiliated with the Tantra Festival and the website advertisements indicate that the venue has changed to Kalani Honua. Please be reminded that no commercial accommodation shall occur on the subject property, without securing a Special Permit from this Department. In addition, there are website advertisements for a second event which is scheduled to take place on the subject property between the dates of February 8"'-26"', 2020, known as Conscious Sensuality. This event shall not be allowed to take place on your property and all advertisements must clearly indicate that you have cancelled the event or changed the venue to a pennitted area. Robert Jerome Silber January 30, 2020 Page 3 Further, no corm-nercial accommodation shall occur on the subject property, without securing a Special Permit from this Department. You are required to contact the listed Inspector and arrange an inspection prior to the scheduled February St" -26t1', 2020, Conscious Sensuality Event, to confirm that the unpermitted event and commercial accommodations did not occur on the subject property. If you fail to comply, we shall initiate our daily fines as described in the December 5, 2019, NOV and Order letter. Should you have any questions, please feel free to contact Mark Iwamoto of this Department at (808) 961-8151. Sincerely, MICHAEL YEE Planning Director MIJaa P,COH33�planning'.pt361ic`,Entbrcement`.TMK Files ZONE l Sec. 1-1 to 1-4�L-3-002-I40InspectionZCV17-007E.doc Enclosure: Agricultural-Based Commercial Operation Certification Application Mitchell D.Roth Zendo Kern Mayor = V����t%�a Director Lee E. Lord Jeffrey W. Darrow Managing Director •e�= __=f:.�� Deputy Director ,TE•or West Hawaii Office East Hawaii Office 74-5044 Ane Keohokalole Hwy • • 101 Pauahi Street,Suite 3 Kailua-Kona,Hawaii 96740 County of Hawaii Hilo,Hawaii 96720 Phone(808)323-4770 Phone(808)961-8288 Fax(808)327-3563 PLANNING DEPARTMENT Fax(808)961-8742 January 10, 2023 CERTIFIED MAIL RESTRICTED DELIVERY SIGNATURE CONFIRMATION 7019 2280 0002 0137 1911 7019 2280 0002 0137 1928 Robert Jerome Silber Robert Jerome Silber 13-6554 Kalapana-Kapoho Rd 13-2060 Lolia Place Pahoa, HI 96778-8044 Pahoa, HI 96778 Dear Mr. Silber: SUBJECT: Daily Fines Letter Complaint: Unpermitted Commercial Operations and Overnight Lodging/Accommodations Reference: Notice of Violation and Order dated December 5, 2019 File No. ZCV 2017-007E TMK: (3) 1-3-002:140, 13-2060 Lolia Place, Kamaili, Puna, Hawaii To date, you have failed to comply with the Notice of Violation (NOV) and Order dated December 5, 2019, which was sent to you by Certified Mail Restricted Delivery and received on December 11, 2019. As a result, you are being imposed daily fines as stated in the NOV and Order, which began on January 11, 2020. Further, we have not received the initial civil fine in the amount of $5,500.00 as stated in the December 5, 2019, Notice of Violation and Order. Therefore, the initial civil fine in the sum of $5,500.00 will be included with the daily fines accrued. DAILY FINES As of the date of this letter, your fines have accrued to $508,500.00, which includes the initial civil fine of$5,500.00. Fines accrued are based on the Daily Fines Schedule as shown below. Daily Fines: According to the County of Hawaii Planning Department Rules of Practice and Procedure Rule 9-5(d): When a violation is not corrected by the deadline date set by the order, the Director may assess additional fines to a maximum of$500 for each day that the violation remains uncorrected in accordance with the following schedule: www.hiplanningdent.com Hawaii County is an Equal Opportunity Provider and Employer planningga,hawaiicounty.gov Robert Jerome Silber January 10, 2023 Page 2 Daily Fines : First Three Months After Third After Sixth After Ninth for Violations (3rd) Month (6th) month (9th) Month Initial Violation $100 $200 $300 $500 First Repeated = $200 = $300 $400 = $500 Violation Second Repeated $300 $400 $500 Violation Third Repeated $400 $500 Violation Fourth (4th) and subsequent repeated violations will be assessed $500 per day of additional daily fines from the date that the violation was to cease or be corrected, as set forth in the order. RESOLUTION To resolve this matter, you must do the following or daily fines will continue to accrue as described above and Corporation Counsel may begin legal action against you: 1. Cease and desist the Unpermitted Non-Agricultural Commercial Events/ and Overnight Lodging/Accommodations immediately on the subject property and/or receive approval of a Special Permit from the Windward Planning Commission. 2. Pay all fines due to this office. Payment may be made only by cash, cashier's check, or money order. Personal checks are not accepted. Make cashier's check or money order payable to County Director of Finance. If you do not know the amount you owe,please contact this office for the amount due. What happens if you do not pay the fines? "Pursuant to Hawaii County Code, Chapter 25 (Zoning) Section 25-2-35(i), fines assessed under this Section shall constitute a lien upon the subject property upon filing of said lien with the Bureau of Conveyances. This lien shall be considered for the purpose of authority, to be the equivalent of liens that arise pursuant to the provisions of Chapter 19 of this Code." This issue may be referred to the Office of Corporation Counsel for civil remedy and/or the Prosecuting Attorney's Office for criminal prosecution. Should you have any questions,please feel free to contact Deputy Director Jeffrey Darrow at (808) 961-8158. Robert Jerome Silber January 10, 2023 Page 3 Sincerely, 7vPA& IV. OW-MV Jef�'W.Da row(Jan 10,2023 10:54 HST) ZENDO KERN Planning Director CC (via email): Jean Campbell, Corporation Counsel Robert Jerome Silber January 10, 2023 Page 4