HomeMy WebLinkAbout2012-05-03 Windward Transcript Circus
PLANNING COMMISSION
COUNTY OF HAWAI‘I
HEARING TRANSCRIPT
MAY 3, 2012
PLANNING DIRECTOR INITIATED REVOCATION OF
A regularly advertised hearing on the
SPECIAL PERMIT 1122 (HAWAI‘I’S VOLCANO CIRCUS)
was called to order at 10:41 a.m. in
the County of Hawai‘i, Aupuni Center Conference Room, 101 Pauahi Street, Hilo, Hawai‘i, with
Chairman Zendo Kern presiding.
COMMISSIONERS PRESENT: Zendo Kern, Dean Au, Ronald Gonzales, Wallace Ishibashi, and
Raylene Moses
STAFF PRESENT: Molly Lugo (Deputy Corporation Counsel), B. J. Leithead Todd (Planning
Director), Daryn Arai (Planning Program Manager), Phyllis Fujimoto (Staff Planner), Maija Cottle
(Staff Planner), Jeff Darrow (Staff Planner), Sarah Hata-Finley, (Staff Member) and Sharon Nomura
(Secretary)
And approximately 108 people from the public in attendance.
ABSENT AND EXCUSED: Stephen Ono
APPLICANT: PLANNING DIRECTOR INITIATED
Hearing regarding Non-Compliance with conditions of approval of Special Permit No. 1122 (SPP
1122) and special permit revocation proceedings pursuant to Condition No. 8 of SPP 1122. SPP 1122
was issued to Hawai‘i’s Volcano Circus to allow the establishment of a performing arts educational
center on 2.5 acres of land within a larger 10-acre site situated within the State Land Use Agricultural
District. The properties are located within and adjacent to the west side of Kalapana Sea View Estates
subdivision near the intersection of West Pohakupele Loop and Kehauopuna Street, Puna, Hawai‘i,
TMK: 1-2-009: 034 and 1-2-038: 050.
KERN: Okay, Applicant No. 4 is the Planning Director initiated hearing regarding Non-Compliance
with conditions of approval of Special Permit No. 1122 (SPP 1122) and special permit revocation
proceedings pursuant to Condition No. 8 of SPP 1122. SPP 1122 was issued to Hawai‘i’s Volcano
Circus to allow the establishment of a performing arts educational center on 2.5 acres of land within a
larger 10-acre site situated near the Kalapana Sea View Estates subdivision on TMKs: 1-2-009: 034
and 1-2-038: 050.
Before we get into it I have a disclosure to make. I checked with my Corporation Counsel and I do not
need to recuse myself. But just to alleviate any appearance of potential impropriety I would like to
disclose the fact that I do know Graham, I consider a friend. We are not like really close friends, but I
do know Graham. Graham has made a contribution to my campaign. I've been to SPACE, farmer’s
market. And actually I attended the 25th anniversary celebration, didn’t know it wasn't kosher, but I
was there. So I just wanted to disclose that. But again based on that there is no, I don't have any
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interest in it or anything else, so I don't need to recuse myself. But I'm just all about transparency and
full disclosure.
So, with that said, there are a few things I'd like to talk about briefly before we get into staff
presentation. One of those is, you know, we’re at capacity here. Obviously this was scheduled
sometime ago, you know, about a month ago almost, so we had this room scheduled. And, you know,
obviously if we would have known there was going to be this kind of a turnout we would maybe try to
get a different spot. But this is what we have right now so you have to work with this.
With that being said, the most important thing here is that we maintain respect. That’s huge for me. I
don't want to have to start pounding the hammer and start, you know, mitigating disputes or anything.
We have a forum here to go through that process. And I really, really would appreciate it if we could
stay on point and not get out of hand, and maintain mutual respect for all parties involved here.
What we are going to do is we are going to have staff presentation next. I am going to talk about some
of the potential outcomes of this hearing. And then we are going to have a presentation from the
Applicant, but from the, from SPACE and their representatives. And we’ll get into some public
testimony, I believe at some point. Probably when we are doing a presentation by the SPACE
representatives, we will have the Planning Department talk about any potential, potentials on their side
of things. The other thing I’d like to point out is that I unfortunately will have to leave little bit early
today, a little bit before three o'clock. And, I already had this in place a long time ago; otherwise, I
would've changed that and been here for as long as I needed to be.
With that being said we have five Commissioners here. We need four for quorum. So when I leave
we’ll be down to four at the quorum. I would, if you guys want to see five Commissioners here,
there’s some potential things we can do. Again, public testimony is limited to three minutes a piece.
Right now we have about 50. So considering that there might be three minutes a piece that’s 150
minutes. That’s, you know, almost, it's what 2 1/2 hours of public testimony, potentially. And
everybody has the right to sign up and give testimony. What I may suggest as a way, some ways to
bring down that timeframe is to maybe do some groupings where one person represents, you know,
three, five, ten people, just as an option. But, again, you don't have to take any of these options.
You're welcomed to give your testimony for three minutes. But for the sake of time and process I just
wanted to throw that out as an option. And again respect, respect, respect. With that we’ll move to
Jeff with the staff presentation. Thank you.
DARROW: Thank you Mr. Chairman. To begin with I want to just mention, I apologize up front that
this next presentation is lengthy. And so if you have questions just jot them down, and then after we
can take care of those. Additionally I'll be referring to certain exhibits. Those exhibits are listed
within the background report. So as I reference them, if you need to look them up, they’re listed
within the background report.
With that, we’ll begin our presentation. This next hearing is regarding non-compliance with conditions
of approval of Special Permit No. 1122 (SPP 1122) and revocation proceedings. This is initiated by
the Planning Department and the Planning Director. The location of the subject property is located in
the Puna District. More specifically we’re looking at Sea View Kalapana Estates, which is between
Kaimu and Opihikao along Highway 137 or Kalapana-Kapoho Road. Areas near this area are the
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Kehena Beach Estates, the Puna Palisades Beach Estates. The outline is the subject properties which
are located in the rear portion of the Sea View Estates Subdivision. This is a closer view. Again, we
have the subject properties identified with a black outline. The color on the map represents the zoning,
which is all identified as Agricultural - 3 Acres. Access to the property currently is from Mapuana
Avenue up to Pohakupele Place or Loop, and then access through this small portion, small parcel in
this location to the 10.3-acre property.
On September 21, 2001, Special Permit No. 1122 was approved. This was approved to Volcano,
Hawai‘i’s Volcano Circus or HVC who was represented by Graham Ellis. This was to allow the
establishment of a performing arts educational center on a 2.5-acre portion of a larger 10.3-acre site
situated within the State Land Use Agricultural District.
There were a total of nine conditions attached to the Permit. The proposed development was
represented to include: The construction of an administrative building/pavilion approximately 7,920
square feet in size for rehearsals and training to promote the healthy development of children and the
community, using the skills and fun of the circus. The facility would include an area divided into a
rehearsal and training area, two offices, costume and prop storage, workshops, lanais, certified kitchen,
bathrooms, showers, equipment storage and vehicle parking. Overnight shelter for resident
participants attending the circus camps would consist of tents in the area adjacent to the center.
The proposed development was represented that: The number of people using the facility would vary
during the year. Weekly classes, workshops and rehearsals would involve approximately 25 people,
approximately six (6) times a week between the hours of 10:00 a.m. and 9:00 p.m.
Most students would be transported in the company vans, and some would arrive on foot, by bicycle,
and a few in cars. The maximum number of people using the facility would be during the workshops
and the annual winter and summer camps with about 40 student participants and ten staff.
January 11, 2010: The Planning Department received a complaint which was signed by eleven,
correction, seven complainants. Since January of 2010 until the present, the Planning Department has
received numerous complaints from several complainants.
A summary of the different types of complaints submitted to the Planning Department are listed under
No. 8, identified as Chronological Timeline of Complaints Received, within the Background report,
and as identified as Planning Department Exhibit 7. Complaints were related to the performance of,
performances open to the public held on the subject property, loud noise, traffic, on-street parking,
public safety, unpermitted structures, hours of operation, non-compliance with conditions of the
Special Permit, and other complaints.
Condition No. 8 of Special Permit No. 1122 states the following: “If the Applicant fails to comply with
the conditions of approval or causes complaint(s) relating to any interference or nuisance and is unable
to resolve them with the surrounding community, the Planning Director shall investigate and, if
necessary, suspend the permit. The Planning Director shall then refer the matter to the Planning
Commission to revoke the permit. Upon appropriate findings by the Planning Commission, if the
Applicant fails to comply with the conditions of approval or has caused any unreasonable interference
or nuisance on the surrounding community, the permit may be revoked.”
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Planning Department Investigation: Non-compliance of Condition No. 1: Condition No. 1
states,”The Applicant, successor or assigns shall be responsible for complying with all stated
conditions of approval.”
For clarification purposes, there are several different entities mentioned throughout the different
correspondence associated with the property. These include Sea View Performing Arts Center for
Education or SPACE, Hawai‘i’s Volcano Circus or HVC, Bellyacres and Village Green Society.
The original Applicant for the Special Permit was, is Hawai‘i’s Volcano Circus who is represented by
Graham Ellis. Ellis is also connected to the other entities mentioned above. Attempts have been made
by Ellis to disassociate HVC with certain activities occurring on the subject property by stating that the
activity was conducted by another entity and not the Applicant, even though Ellis was clearly
associated with the activity. It is the Planning Department’s position that the Applicant is responsible
for complying with all conditions of approval of the Special Permit on the subject property as required
in Condition No. 1, regardless of which entity is being accused of the violation.
Non-Compliance of Condition No. 2: The project shall be developed in substantial compliance with
representations made by the Applicant. These include representations made by the Applicant in the
original Special Permit application which is identified as Exhibit No. 2, subsequent letters which are
also identified within the exhibits, and the Planning Commission hearing transcript of September 21,
2001, identified as Exhibit No. 33.
The proposed development was NOT represented to include: Holding public performances, including
events in which tickets were sold for a monetary fee to “members” as well as “non members”; the
serving of alcohol at these events; a weekly farmers market; a weekly bazaar; a swap meet; rental of
the facility for parties and group events; and the construction of additional unpermitted dwellings or
structures.
Non-compliance of Condition No. 4: Condition No. 4 states, “The Applicant shall secure building
permits, for all existing farm dwellings/buildings, on the remainder of the property within one (1) year
from the effective date of this permit.” The effective date was September 21, 2001. So this was giving
them one year. The Applicant had submitted a request for an additional administrative time extension
which was granted.
In 2001, the existing structures on the subject property represented by the Applicant were four (4) farm
dwellings, a workshop, a generator shed and outbuildings. In June of 2001, the Applicant submitted a
letter stating that there were five unpermitted structures, three of which would be removed once the
Performance Arts Educational Center was built and the other two would be permitted as two more
farm dwellings. This is the site plan that was submitted along with the special permit application in
2001. The red, the property is identified with the black outline. We’ve color-coded the different
structures just for representations. The red identifies what are called farm dwellings and the two blues
located at the makai portion of the property are identified as farm buildings. The proposed performing
arts center was identified on the lower portion of the property but was not yet constructed.
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In 2010 a site inspection was done by a zoning inspector within the Planning Department. During the
inspection it was noted there were numerous structures on the property. A request was made or an
order was made from the Planning Department to the Applicant to supply a survey of the property
done by a licensed survey and identify all existing structures and what they were. This is the survey
map that was submitted by the Applicant. Again, the different color codes identify the different types
of structures. Zooming in on this survey map, this is the mauka portion of the property. The red
structures, again, are dwelling structures. They’re identified as faculty staff housing or student bunk
housing. You have one, two, three, four, five, six, seven identified on the site plan. It’s my
understanding that this particular dwelling which is encroaching on State land adjacent to the property
has been removed.
Additionally, we have pink structures which are accessory type structures. We have a shed, carport;
the blue structure is a greenhouse. And as you’ll note there are numerous water catchment tanks on the
property as well. This is the makai portion of the property. The only structure identified from the
previous map is this particular structure. Previously we had seven identified dwellings. This would be
eight, nine, ten. Additionally we have accessory structures. This is a bathroom, workshop type
structure. This is identified as a kitchen, the storage tent, and another shed. The green is the
performing arts/educational center which is constructed at this time.
This is the building permit records for the property. It identifies that the Applicant or there were, it
identifies what structures are on the subject property.
In 1995 and in 1998 the Applicant had received building permits for four dwellings. Two in ’95, two
in ’98. Additionally, there were two additions done to these existing dwellings. There were several
other structures constructed on the property, a garage storage, a greenhouse, and a shed. Up above
you’ll notice the same identification of the shed, but it’s in parenthesis. That means that it has been
demolished. So the shed is actually not on the property or permitted. And, lastly we have the
performing arts/training pavilion. Currently four of these structures are closed. Several are still open
as far as building permits.
This is an aerial photo of the subject property. Again, it’s just identifying the different structures on
the property. This, this line right here is not completely accurate because the view of the photo is at an
angle and not overhead. We have the performing arts facility down on the makai side of the portion,
property.
Here are several photos that were taken during the site inspection done by our zoning inspector. It’s
unclear as to whether or not these are the permitted or unpermitted, although we do know this is the
performing arts educational center which is permitted. This is a side view of that structure, and
another side view. I’ll just run through these. These are all, whether they’re dwellings or, or sheds, or
structures, it’s unclear at this point. This particular photo shows one side of this structure. This is a
carport structure. This is the other side of that structure that was located behind that carport structure.
Non-compliance of Condition No. 5. Condition No. 5 states, “No public performances shall be
allowed on the subject property.” Condition No. 5 reflected the representation of the Applicant that
they would not be presenting public performances in the building, but that it would be used solely for
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educational purposes. This is an example of the public performances that have occurred on the
property. This is not complete. It’s just showing some of the examples.
This is a portion of the SPACE Performing Arts Center Newsletter from June of 2008. This identifies
that there were movie nights that were occurring on the property, they requested donations for these
movies. There was a Jazz Café that was happening monthly which included live jazz music,
additionally light dinner, and other items were available for purchase. Admission for SPACE
Members was $10, guests and non-members was $15. And since 2008, at this time it was showing that
the farmers market was in operation on Saturdays.
This is an advertisement of one of the events that was held at the SPACE facility. This was held on
November 20 and 22, 2009. It shows that there are tickets for sale. A portion that was attached to this
identified that the ticket sale was $25 which included pupus and a glass of wine. This correlates with
the first complaint within Exhibit No. 7. You’ll notice that in that complaint, which was quite
extensive, there was a four-page incident log; and as you look to that you’ll notice that some of these
dates correlate with each other.
This is an event (The Groove Temple, a community dance journey) that was held there, again, showing
$10 admission fee, identifying that it’s being held at SPACE Sea View Performing Arts Center.
This event was called “Conference of the Birds” held on December 31, 2009. It states that they will
have a no-host bar, pupus, and general admission was $20 a ticket. Contact was made with
Department of Liquor Control and it was confirmed that no liquor permit was ever approved for this
facility or event.
This was a portion of the January 2010 Newsletter from SPACE that was submitted as part of the first
complaint. It states Le Chic No. III will be held Friday, Saturday, February 5 and 6, 2010. This states
that this year the show will be an ADULT BURLESQUE show, containing adult humor and possible
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nudity, tickets on sale now limited to SPACE annual members through January 12, tickets were
$12.99. It states both shows sold-out for the past two years and “we are expecting to do so again this
year.”
March 1, 2010 is our first Notice of Non-Compliance that was issued. This is based on the
requirement put on the Planning Department from Condition No. 8. The Planning Department
investigated the complaints. It was concluded that the Applicant violated these conditions of Special
Permit No. 1122. With, a portion of the Cease and Desist Order stated a cease and desist ordered, oh,
I’m sorry, stated “Cease and desist operating all unpermitted activities on the subject property that
were not represented under Special Permit No. 1122. These include, but are not limited to, the weekly
farmers market, swap meet, bazaars, jazz cafe, community movie nights, drama workshops, family
parties, group events, weddings, and music and public performance programs, and any other
unpermitted non-agricultural business on the subject property.”
A meeting was held with the Applicant and their representatives with the Planning Director on
March 12, 2010. The reason for the meeting was to discuss questions that the Applicant had regarding
the cease and desist order.
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In summary, the Planning Director allowed the farmers market held on Saturdays and the bazaar held
on Wednesday nights to continue temporarily while the Applicant prepared an amendment to Special
Permit No. 1122. The Planning Director allowed these uses to continue temporarily so that it would
not affect people’s income while the Applicant prepare the amendment, especially in the light of the
economy at this time.
Additionally, the Planning Director made it clear that there were to be no more public performances,
advertised public events, or commercial weddings held on the site. Personal events such as a birthday
party or a personal wedding of a family member are allowed, as they are personal and not commercial.
This did not include birthdays or weddings of SPACE “members”, but of the occupant/owner of the
properties.
The Applicant submitted an amendment application on June 14, 2010.
On September 7, 2010, the Applicant requested to withdraw that amendment to pursue a lease for the
adjoining parcel from the State.
No other amendment request has been submitted to the Planning Department as of this date, this date
as being May 3, 2012.
October 26, 2010, the Executive Director of SPACE submitted a letter requesting an exemption from
the cease and desist order to allow SPACE to hold six public performances from October 2010 until
April of 2010. The request was to allow SPACE to hold fundraisers because their financial situation
had reached a crisis level.
On November 4, 2010, the Planning Director responded stating that this office cannot allow a use that
is strictly prohibited as a condition of the Special Permit that was issued by the Planning Commission.
The Special Permit will need to be amended to allow for public performances on the subject property.
Until such an amendment is approved, no public performances are allowed.
This is a copy or a portion of the SPACE Performing Arts Newsletter for February 2011. It states that
the swap meet was continuing, and this was during the time that the first cease and desist order was in
effect, as well as that last letter that we just talked about. It also identifies the Le Chic Show No. 4,
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this is the fourth year for this show, which was held on February 11 and 12. It states that members,
tickets, oh, this year, it says “This year, the show will be a Latin Theme suitable for adults and kids.”
Tickets for members were $15, non-members $18, kids $5 and $7. Both shows sold-out for the past
three years and “we are expecting to do so again this year.”
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The Planning Department began to receive complaints, several complaints, regarding a 25
Anniversary event that was to be held at SPACE. The Planning Department staff contacted the
Applicant, as well as the Applicant’s representative, and informed them that we did not feel this was
allowed, as allowed by the Director within her March 25, 2010 letter.
A letter was sent to the Applicant and their representatives by email as well as certified. The
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Applicant’s representative had submitted a letter on the same day, February 24, in response to our
contacts that we had made regarding this event. That particular letter is dated, is Exhibit 17. Our letter
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of February 24 is Exhibit 16. Within our letter a portion of it states this 25 Anniversary event “is not
a personal event but an event for an entity (Belly Acres).” It is not represented as a, I mean, “It is
being represented as an ‘invitation only’ event and that you are requesting donations for the event
and/or for the non-profit entity holding the event. One would not ask for donations for a birthday party
or personal event. I have read your submitted declaration and it does not change my feelings about this
event. It is my decision that this is not a personal party or similar allowance that I made at our
meeting. This two-day event is way beyond what I allowed. You are circumventing these allowances,
which were given to you as a courtesy while you prepare your amendment application. The Planning
Department has notified you and your representatives that this is clearly beyond the allowance afforded
you in our meeting and in my March 25, 2010 letter and that you should not hold this two-day event or
you will be in jeopardy of receiving a violation notice and/or in jeopardy of your permit. You have
been advised by my staff that you should wait until the permit is amended before holding an
anniversary event….”
This was a portion of the complaints that was submitted. This was apparently an email that was sent
out to people regarding the event to be held. Basically it does state that this is a private party. It states
that “Invitations are required for admission. Donations in support of our artistic eco-village are
welcome.” But it also has a blurb regarding ticket sales which are $25 to $15, sliding scale for seats,
and $5, $15 to $5 for standing room.
This information was received on Facebook. It was an entry put it in for Bellyacres. This states,
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”Aloha Friends,” this was done on February 24, 2012, just before the February 24 and 25 events
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were to be held for this anniversary event. “Aloha Friends, tomorrow February 24 and also Saturday
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25 at 7 p.m. Bellyacres is hosting our 25 anniversary celebration event.” It goes on to speak about
it. At the end of this, it says “We expect this event to be sold out as we have in the last four years with
Le Chic. Hope to see you there, Graham.”
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In response to this our February 24 letter is also, as well as complaints that we have received, a
second notice of non-compliance was issued because of the anniversary event. Included was the
requirement for the Applicant to, order to show cause before the Windward Planning Commission
regarding non-compliance. Again, the Applicant was ordered to immediately cease and desist all
unpermitted activities which was listed. Included on the bottom portion of this, it stated “This included
any activities that were allowed previously by the Planning Director”, which would be the farmers
market as well as the bazaar. “Additionally, all activities permitted under Special Permit No. 1122
were suspended pending the decision of the Planning Commission.” And, again, this was on
March 16, 2012.
April 5, 2012 the Planning Department continued to receive complaints that the farmers market
continued on, as well as other SPACE related activities. Third notice of non-compliance was issued.
The notice also ordered the Applicant to appear before the Planning Commission because the Planning
Director was moving for revocation proceedings.
Since the second Notice of Non-Compliance, the Planning Department has continued to receive
complaints that the farmers market, as well as other SPACE related events, has continued to operate in
violation of the Cease and Desist Order.
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As a result of continuing to operate the farmers market and other SPACE related events on SPACE
property, and continued advertising of these events, the Planning Director initiated revocation
proceedings before the Planning Commission. Again, this was in direct response to Condition H
which was a requirement to the Planning Department.
As a result of continued non-compliance with conditions of the Special Permit and non-compliance of
the three Cease and Desist Orders, it is recommended that this Special Permit be revoked.
Thank you.
KERN: Thank you, Jeff. Thank you for your detailed presentation. Any questions for staff? Seeing
none, thank you very much. Okay. So I’m going to talk briefly just about what the options are here
today. There are basically three options. One option is that the permit is revoked. The other option is
that the permit is not revoked and the original permit remains, and they’re to become compliant with
all that. The third option is that it gets continued to a specified date and the app -, the permit holder
could come in with an amendment to their existing special use permit which would then kind of
mitigate the revocation. And it would kind of come under one umbrella with getting compliant with an
amended permit. So those are the three options that we have – revoke, not revoke, or continue with the
agreement that an amendment would be coming forth. Any questions from my Fellow Commissioners
regarding that? Commissioner Au?
AU: Is there an amendment that was submitted?
KERN: Not at this time. There is no amendment. Any other questions? Oh, Jeff.
DARROW: Thank you, Commissioner Au, for bringing that to my attention. We have had, since the
background and recommendation report was submitted to the Planning Commission, there has been
numerous letters that have been received by the Planning Department. Quite a number of letters of
support, as well as several letters of opposition. The Planning Commission has received those.
Additionally, this morning we’ve received a correspondence from the Applicant’s representative,
Attorney Ted Hong, two correspondence. One is this larger document, as well as a smaller document
in regards to today’s proceedings. Thank you.
KERN: Thank you. Yes, so we do have the stack of letters here that are in the manila envelope, and
then the other correspondence from their representative. What this is not about, this is not the venue or
forum to change laws. This is not the forum to really get into that. This is really specific to the
revocation of this permit, whether to do it or not to do it or continue it. So I’d like to keep testimony
on that as well. When that time comes then I’ll talk about that a little bit more, right before public
testimony. So that’s basically where we’re at right now. And with that we’ll go to the Applicant of the
permit holder, and give me your name and area you represent. Oh, first, let me swear you in. Can I
get you all to raise your right hands, whoever is going to be speaking here. Do you swear to tell the
truth today before the Windward Planning Commission?
TESTIFIERS: Yes.
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KERN: Yes, okay. So name and, go ahead.
HONG: Good morning, Mr. Chairman and Members of the Planning Commission. My name is Ted
Hong. I represent SPACE. With me this morning is Sue Lee Loy who is a planner in my office, and
also Graham Ellis the head of SPACE. What I’d like, well, in beginning this morning, I wanted to
paraphrase a lyric from the John Lennon song, Watching The Wheels, “That there are no problems,
only solutions.” We’re here this morning to ask the Planning Commission to help my client work on
solutions to the problems identified by the Planning Director, so that they continue their mission of
educating students and supporting the community. This morning with the Chair’s permission I’d like
to make a brief statement, then have Ms. Lee Loy talk about the progress that we’re making on
submitting an amended special permit application, and then have Mr. Ellis make a statement, followed
by members of the community.
I’d like to begin with an overview. On the far board to your left, you know, there are several different
entities involved. So what I tried to do is highlight who is what and what particular role they play. So
you see that there is a Village Green Society. They actually own the property. They created a land
trust under the Bellyacres Land Trust, who is a lessor who leased it to Hawai‘i Volcano Circus, who is
a lessee who conducts or has SPACE, kind of a charter school, operate at the site, which is governed
by a local school board.
First, let me recognize the patience and cooperation of the Planning Director and the Planning
Department. We recognize and appreciate her efforts to help my client or guide my client into
compliance with the laws. We were hired in August of 2011 because Graham realized, basically he
was kind of in over his head and needed help in terms of bringing this project into compliance. We are
here this morning because of a misunderstanding. And I apologize that this misunderstanding had got
to this point. The anniversary party on February 24 and 25, 2012 was a private party, no different than
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a baby luau to celebrate the 25 Anniversary of the founding of the Village Green Society. It was a
private party open only to Village Green Society Members, their families, neighbors, and special
guests. Donations -.
PUBLIC: It had to -.
HONG: Excuse me.
KERN: Please, we don’t do that here. Thank you. Continue.
HONG: Thank you. Donations were welcomed but not required - typical of any nonprofit
organization. The Village Green Society called our office to determine whether the anniversary party
would violate any of the terms and conditions set by the Planning Department. We asked questions
about the event, who would be invited, was it open to the public, was admission going to be charged,
what the purpose of the event was? We reviewed the terms and conditions set by the Planning
Department. And the question we asked ourselves was does a landowner have a right to hold a private
function on their own property. And obviously the answer is “yes.” Whether it’s a dinner party, a
Super Bowl party, baby luau or funeral or a wake, Village Green Society, as a landowner, like any of
us are entitled to hold a private function on our property. And we told the Village Green Society it was
okay to proceed with the function. When the Planning Department told us that tickets were being sold
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to the general public, my office immediately called SPACE, the phone number at SPACE. Sue Lee
Loy, from my office, asked a woman who answered the phone some questions about tickets and the
event being open to the public. The woman who answered the phone was not a Village Green Society
representative. She did not know anything about the event, other than her own assumptions. And she
did offer tickets for sale to the general public. At that point Ms. Lee Loy identified who she was and
what office she was from and that what she was doing, what she was representing was unacceptable
and a violation of the Special Permit terms and told her to stop it. The unidentified woman admitted
she didn’t know what was going on. She said, and she said she wasn’t going to talk to Sue anymore
and hung up. We called Graham and Jena, and they were also dismayed that the wrong information
was going out and reassured us of the event. We contacted the Planning Department and told them
what we had found. Graham signed a Declaration under penalty of perjury, which is attached to the
Exhibit 16 of the Planning Department’s exhibits, regarding this misunderstanding and what the factual
circumstances were. I would note Jeff talked to you about this being posted up on Facebook. Graham
assures me that in terms of his, he did post it on his Facebook page, that was only for his friends with
respect to members of who were the Village Green Society and other special guests.
Based on what my client told me in February of 2012, we advised our client that it was still within
their right to proceed with the Anniversary Party as we understood it. If there is anyone to blame for
allowing the event to have occurred it was my office; and I apologize for the misunderstanding. Our
analysis involved a private landowner holding a private party on their property. It is my hope that the
Planning Commission does not penalize my client for our advice.
Let me highlight some other misunderstandings brought up this morning. They talk about public
performances as not being educational opportunities. But SPACE is a performing arts learning center.
Their educational opportunity is to do performances. That’s what they’re trained to do, lighting,
sound, performances, costuming, everything else. So it’s like being in a band, cause I was in a band,
the high school band. It’s like rehearsing, rehearsing, rehearsing, but then you don’t have a concert, a
spring concert. So the public performances that were going on that I think some of the, where some of
the source of misunderstanding is that they’re being trained to put on, the students are being trained to
put on these performances, they do the performances, and yet these performances are misunderstood as
violating the terms and conditions.
The other misunderstanding that came up with the Le Chic IV that morphed into some kind of Latin
theme kind of event, that did not occur on SPACE property or the area of SPACE, on which SPACE is
located. That was in Kalani Honua, so that’s another misunderstanding.
The third misunderstanding I wanted to highlight was the farmers market. After the letter we received
from the Planning Department, it said that we could not do anything that was not originally permitted.
What we took away from that was that the farmers market was part of that original permitting, so we
said that the farmers market should be able to continue. My client was very distressed and concerned
that SPACE would actually have to shut down operations, including the school. And so we discussed
that very thoroughly with our client. This meeting allows the Planning Commission to find the
solution for the community, my client and the Planning Department arising from these continuing
problems and misunderstandings. In our written material, we respectfully ask the Planning
Commission as a short term solution to allow us to amend the Special Permit when we present our
formal amended special permit application.
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This morning you will also hear from Sue Lee Loy who will talk about the progress that we’ve made
since August to bring SPACE into compliance with the general terms and conditions, and also in terms
of amending our special permit. You’ll hear from Graham Ellis, and obviously a number of interested
members of the community. I want to point out that their testimony may be passionate at times. But
forgive us if we are passionate in our testimony about the school, because the possibility that this
unique and cutting edge performing arts school could be shut down is so devastating that their
enthusiasm might be strong. We are not blaming anybody for this situation. This is a
misunderstanding. We are sorry for this misunderstanding. We hope we can continue to work with
the Planning Director and move to amend our special permit application in the next few months. And
we hope that you’ll work with us on the solution and not let this problem overshadow what the school
does, what it means to the students, faculty, staff and community. Thank you. So the next person who
I’d like to speak would be Sue Lee Loy to update you on our progress of what we’re doing.
KERN: Before that I was going to see if there were any questions for you, Mr. Hong. Commissioners,
any questions for Mr. Hong? Seeing none, Ms. Lee Loy. Thank you.
LEE LOY: Aloha, good morning. My name is Sue Lee Loy. I work with Ted Hong. In August of
2011 we met with Graham and basically went over some of his concerns and where he was at. So
basically what I did is what any planner does, is do a due diligence report. I went to the Planning
Department in August, met with Planning Department staff to understand exactly where Graham was
with his permit, what the concerns were, and just basically did the digging.
In September I floated a preliminary report to the Department of Land and Natural Resources. As Mr.
Darrow had mentioned part of the remedies was securing a lease with the adjacent landowner, the
State. So I met with them, prepared a preliminary draft environmental assessment and had them
evaluate that. Based on that meeting, I got some great feedback from DLNR, put together an amended
draft environmental assessment, and floated what we call is a preconsultation letter to various agencies
that prepare comments for a draft environmental assessment. That was done in October of 2011. That
process took a little longer than I had anticipated. Normally agencies return comments within 30 days.
Through that process we also need to engage community groups. And so the struggle was getting
various community groups to reply or respond to our preconsultation letter. We finally got the last of
it back in November of 2011. Basically took all of that information, retooled the draft EA and
transmitted that to the Department of Land and Natural Resources.
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On January 23 the draft environmental assessment was published in what’s known as the Office of
Environmental Quality Control Environmental Notice. That notice provides a 30-day comment period.
Immediately after being published in the Environmental Notice we had a stakeholders meeting down in
st
SPACE. That was held on January 31 of 2012. That was a great meeting. It provided valuable
information and comment that we could then incorporate back into the environmental assessment and
retool the special permit application based on stakeholders’ comments. Where we are right now is, I
had to wait for one more piece of information to submit the final environmental assessment. Based on
timelines available, the environmental, final environmental assessment could be published in the
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Environmental Notice as early as May 23, so about three weeks away, or the next publication date
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would be June 8.
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Concurrently with that, I am still amending the special permit application based on feedback and some
of what’s going on this morning. A lot of the concerns we believe can be remedied with the inclusion
of the State lease. There are concerns with parking, noise, times of the events. We really believe with
the amended application the adjacent parcel, the State lands, will actually be able to remedies, remedy
some of those concerns and really help Graham kind of continue the mission that, that they’re doing
down in SPACE.
Oh, the question as how long would it take for me to prepare an amended special permit -- Assuming
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that the final EA is published within, in the May 23 Environmental Notice, we normally give a 30-
day grace period for any other comments that may come out of that. But within six months from today
I could actually have the amended special permit back before the Commission.
KERN: Thank you very much. Are there any questions for Ms. Lee Loy? I got one quick question.
How sure are you that it would be six months, how confident that -?
LEE LOY: Actually part of the process with DLNR and the publication of the final EA is what’s
known as a conditional lease. We would be required, because the State is a landowner, they would
actually have to help us sign off on the amended special permit application because we would be
including their lands. So on the application form there’s a signature that’s required, and the State
would have to prepare that letter for us. So once we’re able to secure that letter, and Graham can move
forward with the lease with them, then we’d be able to complete the special permit application.
KERN: So how confident are you?
LEE LOY: I’m very confident.
KERN: Okay, thank you. Actually, Graham, you might want to use that mike cause that chord is kind
of short.
HONG: I think Sue was mentioning about a lunch being involved, but we’d let that one go.
KERN: Mr. Ellis.
GRAHAM: Okay, Members of the Commission, the first -.
KERN: State your name and area you represent.
GRAHAM: I’m Graham Ellis.
KERN: Very good.
ELLIS: And before starting my presentation, I’d just like to give an apology from our Executive
Director Jena Way who is attending to her mother -- her ill mother in Oklahoma and doing her best to
recover from the destruction of their family home there in a tornado recently -- which keeps her from
attending today. She is actually the Executive Director of Hawai‘i’s Volcano Circus, while I’m the
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Chairman of the Board. And we’ll be incorporating comments from Jena Way in my presentation. So
I apologize in advance if it’s a little lengthy.
Well, as some of you may know, I’m a lot better known for my juggling skills than for my ability to
make speeches. But today I’m going to do my very best because I’m actually representing many
people impacted by the threat of SPACE being closed down. As the people for SPACE, would the
people for SPACE please put your hands up.
SUPPORTERS: (Raise of hands of approximately 90 people).
ELLIS: Thank you. As you can see, we feel very passionate about this issue, enough to drive all the
way here. In addition to the people attending I hope you would have taken some time to look at over
250 testimonial letters that were submitted to you. In addition we have 977 people who signed a
petition when we were issued our original cease and desist order. And the petition reads “We the
undersigned are event members of SPACE,” 977 people.
SPACE serves our community by providing essential facilities for performances, and visual arts,
education, and entertainment. It includes a charter school, a farmers market, community meetings, and
family events. Puna Makai needs these neighborhood building activities, and therefore we, the
undersigned, request that the County agencies, State agencies, and funding agencies give SPACE their
full support.
We come here today to address you in the belief that you will hear us and that a way forward can be
established for the benefit of all community groups like SPACE.
There are huge costs involved in us participating in this process. And many of us present here today as
community volunteers have made significant personal sacrifices donating our time to support this
cause, while SPACE has had to commit its very limited financial resources to deal with the challenges
caused by the special permit process.
Just let me give you a couple of simple examples. A week ago, on the day my sister passed away and
my family was needing me the most, I had to answer phone calls and e-mails from concerned
community members. I had to drive to Hilo to meet the deadline for submitting these testimonials. I
had to meet with our lawyers preparing for today; and spent $340 just on photo copies. And SPACE,
while struggling financially, has been obliged to hire costly legal representation for our special permit
process.
So how did we get into this situation? Well, I’d like to tell you a little bit more about who we actually
are and what our goals are. We are best known for our Hiccup Circus program, which has provided
performance arts activities and entertainment for kids of all ages around the State of Hawai‘i for more
than 20 years. Now HICCUP stands for Hawai‘i Island Community Circus Unity Project. It’s about
community building. And our work has been praised internationally and supported by dozens of
foundations, including the National Endowment for the Arts, three times.
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Brian Schatz, the Hawai‘i State Lieutenant Governor, recently commended us for our many
outstanding accomplishments and he stated “the training and guidance provided… to young adults has
been valued around the world and is a treasure to the community of Hawai‘i.”
Hawai‘i’s Volcano Circus is a member organization and, as you see, many of our members are here
today.
The Village Green Society, who are the owners of the subject property which is also referred to as
Bellyacres, is also an IRS designated 501 c, it’s a 2, a 501 c 2 non-profit corporation, organized as a
land trust. There are currently 34 corporate members of the Village Green Society, but only a handful
of them are present today because, as professional performers, they mostly live and work out of state.
We describe ourselves as an artistic eco-village. And most of our members have been involved since
1987 and have donated their money, as well as thousands of volunteer hours, to create our self-
sustainable performance arts education center. They are not owners, no more than I am. None of us
can sell anything. We get no dividends, no paychecks, no banker’s bonuses. The homes we built, all
of the SPACE facilities, and all of the assets at Bellyacres belong to the Village Green Society in
perpetuity. And we see our obligation is to maintain and sustain these assets as stewards so that they
can be passed on to future generations.
Our experience working with the Planning Department suggests that we are actually the first eco-
village and the first land trust that has been involved in the special permit process, and there has been
considerable misunderstanding as a result of this. However, I believe it’s important to note that we are
the look of the future and our organizational structure not only reflects many of the goals of the State
of Hawai‘i 2050 Sustainability Plan and the County of Hawai‘i Sustainability Primer, but it has also
been acknowledged in recent letters from high state officials, our highest state officials.
Senator Daniel Inouye recently praised us for “providing a positive, enriching, and a safe place that
helps to motivate the whole community with a focus on self sufficiency and self improvement.”
Governor Neil Abercrombie, he commended our eco-village for serving “as the gathering place for a
community of 1200 homes and 3000 residents.”
Senator Daniel Akaka congratulated us for “a long list of public service, including the support of the
Puna Makai community and other charitable events,” and he commended us for our “many outstanding
accomplishments.”
Now obviously eco-villages, land trusts, and other innovative community organizations have a
respected and important role to play in the future of our society. And we need a means by which we
can do this legally and with the support of our county administration.
So to facilitate this, please allow me to take this opportunity to inform you regarding what is our
organizational structure at Bellyacres and SPACE and, which is similar to many emerging groups
around the island.
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All major decisions regarding the Village Green Society are made at our Annual General Meetings,
held every year since 1987 and regularly attended by over 20 members representing at least two-thirds
of our membership. And as is the custom in almost eco-villages, we make decisions by consensus.
Consensus is a lengthy and arduous process but one that gives everyone a voice. It is a process that
ensures that when we move, we move together as a group. Other less significant decisions at
Bellyacres are made at a weekly resident’s meeting, where we also use consensus decision-making in
our little village of about 20 adults and 8 children.
SPACE is managed by a Board of Directors and an Advisory Committee. It also meets monthly and
comprises of local community leaders, several of whom have been members of the Sea View
Community Association Board in the past. This group also uses a consensus decision-making process.
And it was this SPACE group that changed our current mission to creatively promote sustainable local
community; and that was in January of 2008. We’d like to share with you about our experience with
the special permit process. We actually started work on our special permit in 1998. It took us three
years to come before the Planning Commission. We completed the whole process without hiring a
lawyer. It was daunting, it was a very daunting undertaking. And that explains why, according to the
Planning Department, groups like SPACE and Kalani Honua are the only non-profit community
organizations that have actually applied for and obtained special permits, apart from churches and a
few private and charter schools. That’s understandable if you look at the problems and troubles that
we have to deal with. I believe that it took HAAS five years to get their special permit process, to get
through the special permit process. And why is this?
Well, it seems to be because special permits are not designed for community groups like us, not for
nonprofits but for businesses. I’ve been told that some organizations pay $30,000 for legal
representation to obtain a special permit. That’s a very big deal for an organization like us. Our
annual budget is only $88,000 for all the services that we provide. We have only two part time
employees. All other work is done by unpaid volunteers. The Pahoa Community Center, by way of
comparison, serves fewer residents and provides fewer services than SPACE, yet it costs the County of
Hawai‘i taxpayers $11,000 a month to operate.
Now funding for non-profits is a different and a difficult affair. And after getting our permit in 2001,
we worked with a professional fundraiser for nearly six years, applying to federal, state, and county
governments, as well as private foundations nationwide. And after all this work, we failed to get a
single grant for our community work. But we had raised $38,000 locally, it wasn’t enough, and
decided to give up. We let go of our dream. And hours after that a private donor came through with a
$250,000 challenge grant, and angle. We matched the challenge grant with volunteer, mostly with
volunteer labor and we finally built SPACE.
Now the complete SPACE facility, covering about 7,000 square feet, cost is $300,000 to build using
eight local professional builders and a whole host of community volunteers. The main pavilion we
built it in four months. To get a perspective of what a great achievement this was, compare our use of
our very limited resources and what we accomplished, with the $150,000 that the County recently paid
for the plastic kiddies playground at Isaac Hale Beach Park in Pohoiki, $150,000. And that took three
months to install.
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So when we began our special permit process, I’d like to tell the Commission here that our
neighborhood was a very different place from what it is today. At that time, there were about 50
homes in Sea View. And when we came before the Planning Commission then, both the neighbors
with nearby homes came to testify on our behalf. Well, in the decade that followed, big changes
occurred. Sea View expanded to the estimated 260 homes that exists today, and all along the Red
Road development brought hundreds of new people to our community.
When SPACE opened on November 1, 2007, we were the only community facility for 14 miles away,
apart from Kalani Honua. And our first deviation from our Special Permit was the farmers market
which, quite honestly, in our naivety we believed was a legitimately permitted activity on agricultural
land. Soon after that, we opened our facility to 36 kids from a charter school that were suddenly
evicted from a non-compliant facility. And later we were asked by residents to use SPACE for
weddings, memorials and for community and family events. So, rather than having them go to Pahoa,
we allowed them to use our SPACE facility.
Now regarding public performances, Hawai‘i’s Volcano Circus and the Hiccup Circus have hosted
private performances, weddings, memorials, graduations, and similar community events at Bellyacres
since 1987. It has always been the primary gathering place for Sea View residents and the location for
Hiccup Circus camp shows, fundraising, performances.
We never had any problems with neighbor’s complaints because they almost all attended and were
appreciative of high quality local entertainment and for what we were doing with the kids. We did not
ask for a public performance permit in 2001 because, prior to that, our performances had all been
provided without public advertising. We made the assumption, perhaps incorrectly, that unadvertised
performances for parents, friends, and neighbors did not constitute a “public performance”.
Once SPACE opened, the amount and the type of performances expanded. Some of the performances
that have been subject to complaints have been our long-standing Hiccup Circus presentations, similar
to those that all schools have on a regular basis, to my knowledge, without any special permits needs or
requirements. Others were a result of us opening our facility to community members for them to host
their own events.
And we wish to make it clear to the Commission that, as a result of neighborhood response to these
activities, and our dialogue with our neighbors, we are clear about what activities are appropriate for
our facility and which are not. This will be apparent in our amended special permit application where
we are specifically not asking permission to rent our facility to community members for performances,
and chose to limit it to HICCUP circus performances and those specifically related to our performance
arts training educational activities, and this would amount to no more than 24 in a year.
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We also are very happy to report that just this week, at the 11 hour, we received a $30,000 grant to
enable us to sound proof our SPACE pavilion and to eliminate the noise impacts which have affected
our neighbors.
And we don’t deny that during our early period there were permit violations and there were impacts on
our neighbors from activities at SPACE. But we want you to know that when neighbors came to us
and have been willing to talk to us, we’ve been able to create workable solutions for the future;
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however, this has not been the case in every situation. And the truth is that we are all here today
primarily because of a war waged upon SPACE by one particular complainant -- A man who hasn’t
lived in Sea View, not even in the State of Hawai‘i, since April 2010, a man who recently sold his
home and his only stake in our community. And through the actions of one man, SPACE has been
subjected to a campaign of frivolous, fraudulent, and many vindictive complaints.
Now the Planning Department has asked us how they can trust us to keep the terms of our conditions
in the future. And we are saying that if the conditions are fair, reasonable, and enable us to fulfill our
mission, then we can be trusted.
In 2001, in our naivety, we didn’t know without the help of a lawyer, we didn’t have a lawyer at the
time, that we could actually discuss what conditions were in our special permit, and we certainly didn’t
think that we could actually play a part in proposing conditions that work for groups like ours. We
agreed then to conditions that made it so that a few complaints could result in the Planning Director
closing us down. I mean just imagine if Puna Geothermal Ventures had been subjected to the same
conditions. And, of course they are not because the geothermal process has its own resource permit
process. We’d like something like that for communities.
We’ve come to the realization that we need a community permit process. And we hope that the
Planning Commission and our County Council will come to this same realization and create new code
in the near future.
But here today we are facing the questions, really, who is going to build community facilities and run
community programs, and how are they going to do it? We believe that SPACE has proven that we are
doing a good job of this in Puna Makai, without any financial support from our county taxpayers. All
we’re asking is that we are granted permission to operate legally so that we can work within the
government system to bring about positive change to our island.
Our farmers market, our public charter school, our performance arts programs, and related
performances at SPACE have been supported by hundreds and hundreds of people for over five years
now. This is people-driven development, not permit driven. This is the people telling the government
what services they want in their neighborhoods. And we are here today to ask you to allow us to
provide these services legally and with your blessing. Thank you.
KERN: All right. Okay. I understand everyone is passionate, we appreciate that. But let’s bring it
back to order. Thank you, thank you. Any questions for Mr. Ellis? Seeing none, thank you all. You
all may have a seat and we’ll, or you guys just want out hang out there for a minute cause there’s
probably no other seat to sit in. So with that we’ll move to Madam Director and Ms. Self? Would you
like to make any comments?
SELF: Yes. Deputy Corporation Counsel Amy Self. I’m here on behalf of the Planning Director and
the Planning Department. And I’d like to refer, you know, we’re not here to minimize what this group
has done for the community and this valuable service they provide to the community. That’s not what
is at issue today. What is at issue is I’d like to remind the Planning Commission of what a special
permit is to begin with. Because this is something that you grant. Okay? Now you have the authority
under Hawai‘i Revised Statutes, Section 205-6. And it allows you to permit certain unusual and
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reasonable uses within Agricultural and Rural Districts, other than those for which the district is
classified. So the property that SPACE is occupying, or whichever entity we’re discussing today, the
space that they occupy, the property is zoned Agricultural. So the reason they got a special permit to
begin with was to allow them to do something other than agriculture, which is what is supposed to
occur on State agricultural land. So now when the Planning Commission grants these special permits,
it’s done, they do it, the law requires you to do it under such protective restrictions as may be deemed
necessary to permit the desired uses.
Now back in September 2001 the Applicant came in for a special permit. I’m sure you’ve all reviewed
the transcript from the Planning Commission that granted the permit. It was based on representations
made by the Applicant. And I’ll remind you that one of the, this is only one representation made by
the Applicant at that time, was that “it is not our intention to hold public performances in this facility.”
Now the reason the conditions that are on the special permit are on there to begin with is because it
was based on what was represented by the Applicant when they came in for the special permit. So
when you come in for a special permit you’re expected to comply with those conditions. The reason
we’re here, the only reason we’re here today is because the Applicant has been unwilling to comply
with the conditions of the Special Permit No. 1122, even though the Planning Director has given the
Applicant numerous opportunities to do so. The Department has bent over backwards to try and help
them comply with their permit. The Planning Director even allowed them to continue with their
farmers market because she didn't want to see people laid off from work, cause they obviously are
hiring people to work as well. But the other thing you have to consider is we’re not here just about the
Applicant. This also includes the rights of surrounding neighbors. Okay? Now the reason special
con -, the reason conditions are put on special permits to begin with is to protect the surrounding area.
Now, so you cannot forget about the rights of the neighbors. And, by the way, there was more than
one person complaining. They've received numerous, numerous complaints over the years, and some
very recent ones.
Now the Planning Director understands the contributions that SPACE makes to the community. She's
not trying to discount that. She appreciates that, just like anybody would. But at the same time why
should SPACE be permitted to continuously violate the conditions of its permit when everyone else
who receives a special permit is required to do the same thing, to comply with the conditions of their
special permits? It's not fair to other the special permit holders and it’s certainly not fair to the
surrounding neighbors who depend on those conditions being enforced. The Planning Department is
charged with enforcing the conditions of the special permits. Quite honestly they've run out of ways to
do that, because every time they sent a notice it has been ignored. Even when the Planning Director
went out of her way to allow them to continue to use, to do the farmers market, they still continued all
their other activities, which is in direct violation of their permit. So the only reason, like I said, we're
here today is because what else can the Planning Director do at this point. And she cannot revoke the
permit. Only the Planning Commission can revoke the permit because the Planning Commission is the
only entity that has the authority to do so.
I'd like to also comment about some of the things that were made by the Applicant and his attorney.
The Applicant could have avoided, they were talking about the legal fees they have accrued. But the
legal fees that they spent for today could have been avoided by simply complying with their permit.
And obviously they knew how to do that because they were at the Planning Commission telling the
Planning Commission what they were agreeing to do and not do when they got their special permit.
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The special permit was based on what they presented, not what anyone else presented, not what the
neighbors presented. And I would hate to even imagine how many hours it has taken for the staff of
the Planning Department to respond to the complaints filed against what has been going on at this
particular project. So you have to consider more than just what has been presented by the Applicant.
You need to also remember there are other people involved in this. And maybe they do not want to
come forward because maybe they don't want to compete with this kind of crowd. But there are those
people that have to be considered as well. So I think you need to -.
PUBLIC: (Inaudible side comments).
KERN: Order. Same respect, please. Thank you.
SELF: I think that the Planning Commission needs to review the law and keep that in mind; and
there's no doubt that the violations have occurred. On the other hand if the Planning Commission
decides that it’s not going to revoke the permit then and give them an opportunity to come in to apply
for an amendment, which they've done before and then they withdrew the amendment, but if that's
what the Planning Commission is alternatively thinking about doing, then there should be some way to
make sure that they comply with what's there now. I mean there has been no compliance. So, you
know, the permit needs to be complied with the. It's still in place, nothing changes that. Thank you.
And she wants to talk.
KERN: Okay.
LEITHEAD TOOD: Good morning, or is it possibly afternoon already?
KERN: Just about there.
LEITHEAD TODD: All I’ve ever wanted is for SPACE to come in, seek an amendment to their
special use permit, basically list what kinds of activities that they propose to hold on the facility over
and above what they are already permitted for, and allow that to be in a process where neighbors in the
community that they live in can suggest and asked the Planning Commission to put limitations -- How
many performances? If you're going to allow performances, how many? What hours? If you look at
the current permit and the representations, the maximum number of people at any time at that facility
was supposed to be 40 students and 10 staff, 50 people. The complaints that we've received have
addressed parking issues, traffic issues, noise issues, from more than one neighbor. And we seem to be
here arguing over what the definition of a public performance is. For me it's, if it’s more than the 40
students and 10 staff members, then it has moved into public, because the representation was that that’s
the maximum number of people at any time in that special use permit. The reason that that condition is
there is because it's agricultural land, because it's in a subdivision with neighbors, you put those types
of conditions on it.
We have had other people with special use permits that have had violations and we investigate
complaints. Almost, uniformly we work with people trying to get them to comply, and we have a high
success rate. We currently will have an application from Kalani Honua which is going to the Land Use
Commission, which is a result of our working with them to try and get some of the things that we do
not feel are covered under their existing permits to become legally permitted.
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But when you have a situation where you have ongoing complaints from neighbors, the Department is
basically required to investigate those complaints. And if there's a determination made that existing
activities are in violation over and about what's permitted in the special use permit, then we have to do
something about it.
This is an unusual situation cause I don't know that in my memory we've ever really come in to seek
revocation. But basically it’s because when we saw the advertisements for the Bellyacres and Le Chic
and other things that appeared to be occurring on site, they seemed to be public performances, with
donations sought that were not in compliance with the special use permit and were resulting in an
impact. And one of the issues of the special use permit is when you allow nonagricultural uses on
agriculturally zoned land through a special use permit there’s always a representation made that it’s not
detrimental to the surrounding property owners and, in particular, the subdivision. So you have to
address parking, you have to address noise, you have to address maximum number of people at any
event. And I suspect that if I were to open my home up to events on an annual basis or more often
where people were coming in, I was soliciting donations for them to come to my house, and we had
cars all over the subdivision that my neighbors would probably be calling because I would be creating
a nuisance to my neighbors. And so you have to have some mechanism for policing activity. You
have to have some mechanism for ensuring that the neighbor’s rights are not impacted.
I happen to think this is a marvelous organization. I’ve seen many performances of the Hiccup Circus.
I think they fulfill a need in the community and an activity especially for young children that is
welcomed by the community. I think they provide a valuable service. But it still means that if you
come in for special use permit on agriculturally zoned land, if you make certain representations about
what your activities are, you have to comply with those representations.
It appears that part of this is a misunderstanding between Mr. Ellis and his Board as to what is or not is
a public performance, as well as the Department’s understanding. And that may be a function of
having to spell out more carefully in this all future special use permits what constitutes a public
performance, what is or is not a permissible use, and what type of maximum numbers of people you’re
going to expect.
On farmers markets it is a common misconception of people on agriculturally zoned land that a
farmers market is a permissible use on ag land. The only thing that’s allowed is you can have a fruit
stand, or vegetable stand, or mac nut stand that sells the produce you grow on your property. You
cannot have people come from other properties and sell what they grow on their properties on your
property. For that you have to have a special use permit. And the reasons are because of the additional
traffic, the additional parking, the additional impact on the community. But it’s a common
misperception so I can understand how Mr. Ellis would've thought that it was permissible, cause it is
happened multiple times on the island. And typically what people do is when we cite them we say,
hey, come in, get a special use permit, make it illegal. And that's typically what occurs. They come in,
come through the process, and make it legal.
My frustration is that this has been more than two years since we started and said please come and
amend the permit. And at some point you have to try and get someone to move that process along
more quickly because otherwise there's no teeth in the special use permit, there's no ability to ensure
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compliance. And so I have no opposition to giving Mr. Ellis some reasonable amount of time to get a
proposed amendment together that spells out what it is he proposes to use the property for, what types
of performances he's proposing. And then let the community, and particularly the surrounding
property owners, have an opportunity, because they are the ones most immediately impacted by the
traffic that comes in from outside of their subdivision. And so, you know, it’s up to the Commission
since this is a Commission action. But there also is going to need to be some, if there is a proposed
future amendment which Mr. Ellis is talking about and his representatives are talking about, it needs to
clearly spell out what it is they are proposing to do, what are the maximum numbers of people that
you’re proposing to have there, what kind of mitigation are you going to do about noise and impact to
the community, what provisions do you have for parking for the attendees? And all of that has to be
spelled out. So, at any rate, at this point it’s up to the Commission as to what you’re going to do,
whether you’re going to go ahead and have people testify or whether you want to, you know, propose
some other way to handle this.
SELF: I would like to add one other thing.
KERN: Ms. Self, yes.
SELF: Also, if you’re going to choose the alternative of deferring until they get their application in, I
would ask that there be a deadline set for submitting the application for amendment.
KERN: Thank you. Any questions for Ms. Self or the Planning Director?
AU: Mr. Chair?
KERN: Commissioner Au.
AU: I do have a question, but I have a question for the Applicant. Is that fine?
KERN: Let’s hold that one for just one second. Are there any questions for Ms. Self or the Planning,
Madam Director? Seeing none, it looks like you want to make a brief comment. Do you want to -?
AU: Maybe I can question -.
KERN: Okay, Commissioner Au.
AU: You know, I kind of anticipate what’s going to happen. I don’t want to get into a listening, you
know, having a pitching match here. You know, maybe what I want to find out is how many people
are part of your organization?
ELLIS: Nine hundred and seventy seven people signed a petition here.
AU: So that’s, so everybody, 900 people are part of the -?
ELLIS: It said “We the undersigned are event members of SPACE.
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AU: So how many people are on your board, or school board, or local board?
ELLIS: The Board of Hawai‘i’s Volcano Circus is nine.
AU: Okay, so there’s nine board members and then there’s yourself. You know -.
ELLIS: Well, I’m, I’m the Chairman of the Board. There’s the ex-officio, Executive Director is Jena
Way.
AU: Okay, so you guys represent 900 members. Your testimony was very passionate, very emotional.
You know, you represent a lot of people and I like to hear that. You know, one thing that I do want to
talk about is leadership. Okay? Your board, yourself, you represent 900 members. Okay, every
organization is only as strong as their leaders. So what’s happening here, what I see is for 12 years you
were in violation. So for me as my leader, you know, I trust my leader to be passionate, to be
emotional and to follow the rules and the laws. So, you know, I mean I’m not saying anything -. I’m
just saying that, you know, this is what I see right now. And that is what Ms. Self and our Director is
really looking at. So, you know, we‘re going to hear a lot of testimony, a lot of emotional testimony;
and it’s going to make us all probably cry. Okay? But the bottom line is you and the other 8 board
members are the leaders for 900 people. So just remember that.
KERN: You want to make a brief comment, Mr. Hong?
HONG: Yes, Mr. Chairman. Thank you. I think you are correct in terms of your initial assessment
that we’re not here today to try and change the laws, because I think the frustration that not only the
Planning Director has articulated but certainly from our side is, you know, you have this unique
different type of organization trying to fit itself within the current zoning laws; and it’s a difficult, you
know, fit. You know, it’s a square peg in the round hole. And, but that isn’t what we’re trying to
consider here. What the Planning Director said, and what I appreciate about her willingness to go the
extra mile, is that she is recommending that we be given more time to submit our special application.
And my pitch to the Planning Commission is, you know, hold us accountable and, you know, we’re
going to walk it like we talk it. We have started this process in August of 2011. I think we’ve pushed
it farther than Graham has been able to move it to his credit. He is, you know, not well versed in the
law or the regulations and he’s trying to move this as far as he could. Now he has our help and our
guidance, with the opportunity to sit down with the Planning Director and her staff, to precisely define
and meet those concerns that she has. We think we can meet the needs of the community and the
school, and certainly alleviate the concerns that the Commission Members would have.
So I would also echo the Planning Director’s comments that we be given the opportunity to submit an
amended special permit application, hold off on any revocation and, you know, see what we come up
with. Hopefully, well, not hopefully, more definitely within six months.
KERN: Okay, any questions?
ISHIBASHI: No question. I got -.
KERN: Commissioner Ishibashi, for, yeah?
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ISHIBASHI: I got one comment but I don’t have a question. I’m ready for shoo -.
KERN: If it’s a comment that should be done in discussion, you might want to hold that. If it’s not
then you’re more than welcome. Holding?
ISHIBASHI: Okay.
KERN: She grabbed the mike first and then you’d come -.
LEITHEAD TODD: I just wanted to clarify a couple of things. When the special use permit came in,
it was for Hiccup Circus and some workshops and stuff. It did not include a charter school. By letter
to the organization we have said that the charter school is consistent with the educational purposes of
the special use permit. So that is not in jeopardy in any way if there is a continuance. The school is
fine, the Hiccup Circus, their workshops and their classes. If it is the intent of the Commission to defer
this for six months the Department has no opposition to continuing the farmers market, and I think it
was the once a week swap meet that we had allowed in our initial determination. And that’s because
that’s consistent with what we’ve done with other areas of the island while people have been putting
their special use permit together. I think the issue is, is if there are nighttime performances where there
are tickets sold that that is where the real issue is. And I recognize that there are some people in the
subdivision that would be unhappy with continuation because they feel like they’re being impacted by
noise and traffic. And it’s a difficult balancing act to try and balance the needs of the greater
community, the impact to the neighbors, as well as trying not to impact an existing organization which
provides, I think, a very valuable service to the community. So I think we need to be real clear.
Because otherwise if we aren’t clear about what is or is not going to occur during any potential deferral
period I’m going to be getting more complaints, and it’s going to be another issue whether it’s an on-
going violation of the existing permit. Thank you.
KERN: Thank you. Is there -?
ISHIBASHI: Brother Chair, I get one question.
KERN: Yes, Commissioner Ishibashi.
ISHIBASHI: Try give me the numbers of your student body, how big?
ELLIS: Student body, there are currently 36 students in the public charter school that attend SPACE;
and we have over 80 kids of all ages attending our Hiccup Circus programs on a regular weekly basis.
ISHBASHI: Well, thank you. Cause that’s, it’s not the issue here, but that’s what it is. You guys
provide a very valuable service to the community. So it’s not in question. I’ve no doubt how valuable
and how important the service is you provide. See, I get one difficult time, and you guys are going to
have to convince me. I’m not going to listen, sit down here and listen to all the good things you guys
do because I believe already, I know you guys do all good stuff out there. It’s proven, the proof is in
the pudding; and that’s what you guys provided. The pudding is good, it tastes good. I see, I go out
there and I see it. So I no like listen to all of this good stuff because that’s not going to convince me
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how you guys when violate the permit in existence right now. That’s the problem I have, how we’re
going to overcome that. And that’s the thing, that’s the problem I have right now. Cause I know this
Planning Department, and especially under BJ’s leadership, it’s compassionate. We always come to
the community, we’re compassionate to provide the services and provide the needs to our community.
We always do that. We’re always compassionate. But when it’s going for so long it’s hard when we
have to come to this degree, this point in time, before we do anything. And Commissioner Au is
correct, it’s the leadership that I blame. You guys are supposed to protect your special use permit,
you’re supposed to protect your organization, and protect the income for you guys so you can continue
providing the good service and the deeds that you do for our community. I respect you guys, your
organization. But you guys got to respect us too cause we have parameters, laws and rules that we’ve
got to follow. And when you violate that, what else can we do? Cause I’m inclined to stop this thing,
and I hate to do that. But we have rules in place. Now let’s see how we can work around it. If we’re
going to hear testimony I want to hear testimony to help me change my mind. That’s what I want to
hear. I know you guys do good stuff. I no like listen to good stuff. I know your guys program, I know
your guys community work is good; and it’s proven. So tell me how to stop this from -. That’s what I
like hear, okay? Thank you.
KERN: Thank you, Commissioner Ishibashi. Commissioner Au?
AU: Okay, question I have is for staff and for Applicant. Are the buildings that weren’t supposed to
be there, are they permitted now? You mentioned that they’re required to have a professional survey
and there are additional buildings. And are those additional buildings permitted? You know, because
looking at those pictures, a lot of those buildings don’t even look like it would pass County right now.
And that’s another example of a strong leadership, is, you know, I mean you’re representing 900
adults, students, 80 Hiccup students, 36 students, you know, we want them to be safe, in a safe
building. And those pictures do not look safe to me. You know, we have, we have a lot of leaders
here in this crowd. We have another school here, that school is safe. They just came in for a special
permit. You know, and that facility seems like, right there, that picture. You know, there are so many
pictures over there that I don’t know, are those buildings safe?
PUBLIC: That’s not the school. That’s the school.
AU: That’s the school. Okay, okay, okay. Well, that’s the school. But are those other buildings
permitted?
PUBLIC: (Inaudible).
KERN: Well, let’s have the staff, sorry, thank you. Thank you, Jeff.
DARROW: Thank you, Commissioner Au. I’ll try to address your question
. Originally as we had mention Condition No. 4 required the Applicant to be able to bring the
buildings that were existing up to current Building Code. At the time of the applications there were
four farm dwellings and there was a generator shed, a greenhouse I believe, and some out buildings.
Unfortunately there are numerous unpermitted structures on the private, on the property currently. The
building permit, the current building permits only show four permitted farm dwellings, one
greenhouse, one garage storage building and the performing arts educational center. An argument may
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be, well, that’s not part of the permit. At the time the permit was issued the Planning Commission in
their transcripts, for half the transcripts, it like 14 or 15 pages, wrestled with this issue. They made a
condition that the Applicant address those building permit violations on the remainder of the property.
So that permit or that condition is still ongoing and not in compliance. At the time the site inspection
was conducted in February of 2010 the zoning inspector observed 11 dwellings, as well as other
structures. Again, only four are permitted. As far as the pictures, which ones are permitted, it’s
unclear.
AU: Another question, Mr. Chair?
KERN: Yes.
AU: I’ll be quick.
KERN: Sure.
AU: So who resides in these dwellings? Is it staff, I mean, are there kids that live in these dwellings
or the buildings there, or do you rent it out? Are you making rent off these guys?
ELLIS: Many of the residents of Bellyacres are here today. They are the faculty, the staff, and the
students at SPACE. They are the people who are the primary volunteers that put in their time, their
energy to make everything -.
KERN: With all due respect for the sake of the question, would you answer the question specifically
of who lives in the dwellings?
ELLIS: Yes, they are.
AU: Okay, so around the area, that’s the neighbors, the neighbors around. I was under the assumption
that there were some people on the property that live there. But I guess the people submitting the
complaints are on the outside, is the neighboring, the neighboring properties, right?
KERN: That’s right, yeah.
AU: Okay.
KERN: Yes, okay, Madam Director. And then we’ll move back to this side. And then we’ll recess
for lunch.
LEITHEAD TODD: I was going to say that I think that the issue of whether buildings are permitted or
not can be addressed between the Department and the Applicant. If it is the will of the Commission to
give them an opportunity and time to come in with an amendment, that we can address those issues
separately, and they don’t need to be taken up at the Commission. It will raise separate questions and
issues which will have to be addressed by the Applicant. And that is because under, if you have
multiple dwellings on agricultural land that have not been permitted as farm dwellings, then you run
afoul of State Land Use. Because under State Land Use Law you’re not typically allowed to have
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multiple single family dwellings, and it doesn’t allow for faculty and staff dwellings on the ag land that
service the school. So those are some things that they may need to be addressing in any amendment as
to -. Perhaps it means that they have to expand the two acres to a larger acreage to accommodate that,
or those houses in order to be legally permitted have to be additional farm dwellings. And in order to
get permits for additional farm dwellings, you have to demonstrate agricultural activity in order to
warrant those dwellings. And it’s kind of a sliding scale - you know, you have one home, there really
isn’t much activity that is required because, especially if it’s a pre-existing lot. Once you get to the
second house, the third house, the fourth farm dwelling, then the amount of agricultural activity in
order to justify the additional dwellings goes up. You have to demonstrate that it’s needed because of
the agricultural activity. If the need for those houses is faculty housing to service the school, then that
has to be dealt with in the special use permit for SPACE, in order to make those acceptable dwellings
for faculty purposes, as opposed to a farm dwelling for agricultural purposes.
KERN: Thank you, Madam Director. You have a question, Commissioner Moses?
MOSES: I do.
KERN: For the Director?
MOSES: Not for the Director, for Graham.
KERN: Go ahead.
MOSES: You know, I’m sure – I just want to make a comment before I ask my question. In 2001
when you came in for this, I’m sure you did not see or foresee the great need that you provide for your
community. With that being said, and my hat goes off to you for sticking with it and doing what
you’re doing, With that being said, I’m dumbfounded by the fact that it was a blatant disregard to, to
adhere to the special permit restrictions. You know we just had somebody come in wanting to do
something that will require these restrictions, and then we are told that whatever we say we have the
authority to make sure, to ensure that it’s going to be followed. And we could have eliminated all of
this today had it been done. Right? And what I love hearing from the Director is that she has been
more than willing to work with you and your organization to get yourselves in compliance. I want you
to know that that's what I do for a living. I am the compliant manager to make sure that people are in
compliance. And what bothers me is that those organizations in our communities will see that, hey, if
we are allowing you to do it then it sets a precedent. You understand that? I know you do. So my
question is rather than listening to everybody’s testimony, cause we know that it’s a fantastic thing, we
know that you meet the needs of your community doing what you’re doing. I’ve heard the Director,
and she said that she is willing to allow you folks to continue with the school, she is willing to allow
you folks to continue with the farmers market. What are you willing to do so that you can have this
continuance versus us revoking it and making that decision today to do so?
HONG: If I can answer the question, what we are trying to do is we are in the process of submitting an
amended special permit application to the Planning Commission. If we are allowed to do that, we are
going to do that within six months. We are going to address those specific issues that the Planning
Director has already identified. We are going to address the issues about the dwellings. I would just
point out as a side note that when Mr. Darrow shows those pictures, what he doesn't tell you is when
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those pictures were taken. What he doesn’t tell you is that since that time some of those buildings have
been permitted. What he doesn’t tell you is that some of those buildings have actually been torn down.
So we are operating, and you are operating, under the misconception that there are certain violations
that are out there. I would point out to our Exhibit B that we submitted there are no police reports
regarding noise complaints, parking complaints, or any other complaints that the Police Department
has on record regarding my client.
And one of those things I’m really concerned about is this tyranny of the minority in terms of what is
going on at SPACE. We all recognize that this is a valuable project. And we can talk and go at length.
It’s easy for me to be litigious. If anybody knows who, me and my reputation, somebody pushes, I
enjoy pushing back. Okay, and we can do this. We can talk about these vague unknown unidentified
people out there potentially who could have a problem with this. We could start talking about those
violations. But when the proof, we talk the proof is in the pudding. I don’t have any police report
violations and notices of noise and complaints. I have, and we are committed to getting this project
defined as narrowly as possible. And I think everybody in the room recognizes how different, how
special, how unique this project is. So our pitch, what we’re trying to convey to the Commission today
is give us that chance. And if we don’t make the chance, Commissioner Ishibashi, pull the trigger,
revoke the permit. But we’re here to tell you we’re going to meet those concerns, we’re going to
address those concerns, because Sue and I believe in this project. We think it’s a great one. I think I
hear the same thing from you guys, too. So give us the opportunity, you know; and if we don’t meet
that opportunity we fall short, then we understand. I think Graham and everybody else in the room
understands what the consequences are.
KERN: Very good. Thank you.
MOSES: I have a question.
KERN: Commissioner Moses.
MOSES: Well, I think it’s really not about you meeting the conditions because you will have to meet
the conditions. It’s about what are you going to give now. What is it that we can come to a happy
medium and say, okay, we’re going to allow this to continue, however, however long it’s going to take
you to submit that. But it’s what are you going to give now for those. And I don’t know who they are
in your surrounding communities that have an issue about having you have these performances at night
or whatever those concerns are. Are you going to be able to tell me that you’re not going to have these
things going on until you get that?
HONG: No, I’m sorry. We’re not going to have those performances.
MOSES: It’s not really about the buildings for me. You’re utilizing those buildings for a purpose, I
understand that. And, yeah, if you’re going to get that to be in compliance, great. But there is that
other issue regarding the, the performances.
HONG: Right, and I apologize for misunderstanding. If you look at pages 7 and 8 and 9 of our
proposal for submission to the Commission, that’s our commitment in terms of the interim. That’s
what we propose would meet the concerns brought up in the meeting this morning.
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KERN: So you’re proposing basically to continue with what the Planning Director had originally
allowed, both partially through the original special use permit as well as her considerations for the
farmers market, etc.; and everything else would cease to happen?
HONG: Right. On the issue of performances though, I mean, like a May Day performance or another
performance that the school kids, the students are getting ready for, we think we should still be allowed
to do that. But in terms of, you know, a public performance, like for example some of the things that
Mr. Darrow raised, we’re not; and you have our commitment, we’re not going to do that.
KERN: Got it. Any other questions? Commissioner Ishibashi.
ISHIBASHI: Thank you, Brother Chair. So on page 8 you’re talking about No. 5, Condition No. 5?
HONG: Yes, sir.
ISHIBASHI: We recognize and we understand the need. After you’re practicing and going to school
and learning all of these tricks, you’ve got to perform, we understand that. It’s important that, you
know, those involved have the opportunity to give performances. So we see the need. But we’re
going to have to take it off the property. So if No. 5, yeah, if you guys okay with that, then that’s a
good one, that’s a good one. So thank you.
KERN: Ms. Lee Loy, I’ve put you off long enough. You’ve got the floor.
LEE LOY: Just to help Commissioner Moses and address what I heard very clearly from our Director,
is as we move forward with the amended special permit, what I am and have already prepared in that
amended special permit are very specific guidelines. It gives hours of operation, number of people,
number of events. We really took the process with the draft environmental assessment and the
stakeholders meeting and used that as an opportunity for the community to speak to us and give us the
feedback so that we could actually add that in to the special permit application. And from that, like the
Director acknowledges, there’s a process for this. We need to present something, but we didn’t want
to present what we wanted. We wanted to present something that was kind of emerged from the
community. And that’s what the draft environmental process did for us. And now we’re taking the
next step to tool the special permit with some of those concerns and put those remedies in the amended
special permit application. And they’re very specific. And that has been so much of the
misunderstanding through this process. You know, we all have kids and we tell kids, you know, be
home by 10 and they sneak in at 10:15. You know, and they just keep bending the rules. We
understand that. And what we wanted to get to was very defined guidelines that the Applicant was
putting forward with the support of the stakeholders and the members of the community there.
So to address Ms. Moses, really, we’re getting there. We really are getting there. We’ve got some
great feedback. And we just need that six more months to get through the final EA process, retool the
special permit, and come forward with an amended special permit that then the community can take a
look at and give us more feedback about it. Thank you.
KERN: Madam Director?
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LEITHEAD TODD: If I understand the proposal correctly from SPACE, it would be consistent with
what they’re representing on pages 7, 8, and 9 of their submittal, which was basically that they would
be allowed to continue weekly farmers market to be held on Saturday from 8 to 1, that they have a
maximum of 12 charter school related performances annually, that any and all charter school related
performances shall end by 9:30 p.m., and that any and all charter school related performances shall
have a maximum of 300 attendees, inclusive of staff and performers. Given the fact that they’re saying
they have 36 students, staff, I’m assuming that you have parents, uncles, grandparents. It doesn’t seem
entirely excessive for a school performance to have potentially that many people. But what I would
ask, cause if this is the intent of the Commission to allow them that six-month period and allow these
specific activities that they’ve asked for on pages 7, 8, and 9, that the Department be given notice of
when they’re going to have any of the charter school performances so, one, when we receive a
complaint we are on notice that there is an activity going on, and also so we can keep track of the
number of activities. And this is just from having had this issue arrive with other special use permits
where, you know, we did a permit and we said you could have “x” number of activities, and then the
neighbors start calling in and saying, hey, they got something going on on a day they didn’t say they
were going to. So just we would ask that if it is the intent of the Commission to allow them the six
months to come in for an amendment and consistent with their representations on these pages that the
Department be given notice of when these events are going to be held so that when we get a phone call
from somebody we can say it’s an event related to the Charter School, and we know what we’re
dealing with. Thank you.
KERN: Thank you, Madam Director. Okay, I’m trying to let this be real, real fluid. And I think
we’ve kind of reached that point of getting to some consensus. We could probably go back and forth
hitting on low points, but I think we do need to allow for public testimony in this process. It does look
like though that the Planning Director is going to be workable with the request upon, by SPACE and
representatives. It sounds like us as Commissioners are interested in seeing that process as well, but
we do need to allow the process to go forward with public testimony. That being said we also need to
eat. I am going to ask -.
PUBLIC: Call for the question.
KERN: It doesn't quite work like that here. What I’d like to ask my Commissioners is I'd like to do
a -. We already have lunch ordered in so we are going to make it as fast as possible. Cause, again, I
have to leave right before three o'clock; and I would really love to be here for this as much as the
process as I could. I'd like to be here to the end. Do you think we could do it in half an hour or 45
minutes? Half an hour?
PUBLIC: Half an hour.
KERN: We could do it in half an hour, yeah?
MAEDO: Yes.
KERN: Okay, so we are going to take a half an hour lunch break, so, you know, you folks don’t have
to wait long. And again, I want to reiterate one more time that if you submitted letters I'd like the
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testimony to not necessarily be redundant so we can be to the point and effective and actually get to a
solution. But you are allowed your three minutes of testimony. If you want to sign up, that’s your
choice. But maybe you’d want to consolidate some of it, etc. But it is all up to you. So lunch break.
Returning at 1:10 p.m.
(Commissioner Au left the meeting at this time.)
RECESSED - The Chair recessed the meeting at 12:40 p.m.
RECONVENED – The Chair reconvened the meeting at 1:10 p.m.
(Commissioner Au was not present at this time.)
KERN: Okay, let’s reconvene. We have concluded our presentations of both the permit holder as well
as the Department. I do think it's important to take into consideration what we can do here again.
And, so, right now as it stands as a Commission, we cannot grant additions to the permit. What we can
do potentially is continue it based on the original permit application, and there can be an understanding
between the Applicant or the permit holder and the Director on what they are allowed to do, kind of as
it was in the past. But we can't take it upon ourselves as a Commission to actually give authorization
to, let's say, hold the farmers market at this point in time. We need it to come through the application.
However, though, if it’s decided that it’s continued and there is an understanding between the
Department and the Director and the permit holder, that that would be an “allowable” endeavor over
that period of time, then that should be fine. So I just want to make that clear. So we are moving into
the public testimony side of things. As I have said before, we do have, you know, 52 signed up right
now. That might have come down a little bit. And I think you guys kind of get the pulse of where
some of this might be going to, so try not to be repetitive or anything else. And since -.
PUBLIC: I know you can’t be concrete on it, but it’s like -.
ARAI: Sir?
LUGO: Oh , can’t take -.
PUBLIC: I don’t know whether I should -.
ARAI: Sir, sir.
PUBLIC: Oh, sorry.
KERN: Yeah, we can’t, can’t-. No problem. And I am actually going to ask you folks to take a seat
so we can open up the table for testimony. So thank you. So, let’s, to the best of our ability let us
make it, you know, concise and to the point. But, again, you do have every opportunity to give your
three minutes of public testimony. So that's where we are at, right?
LUGO: Correct.
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KERN: With that said, I am going to call up six people at a time. And some of you might not be
testifying any more who are on this list. So Daniel H. Cunningham, Jon Olson, Sativa Jones, R. J.
Hampton, James MacRae, and Dominic Yagong. And I will also apologize in advance for messing up
anybody's name, particularly their last name. I apologize. Okay, so we have one, two, three -. Okay,
so we got, sorry, Daniel, we have Jon Olson, just a minute, I’m just making sure we have -. And
Dominic Yagong is -?
PUBLIC: Out to lunch.
KERN: Okay. So we’ll call up Robert Kort, Kortokray -.
KORTOKRAX: Kortokrax.
KERN: Kortokrax, sorry. All right. So I’m going to swear you all in. And if you’re, you’re going to
be speaking as well, could you please raise your right hand as well, all, you all. Do you swear to tell
the truth today before the Windward Planning Commission?
TESTIFIERS: I do.
KERN: Okay, very good. We'll be doing three minutes as well, and we have the cards there. And at
which time the three minutes is up, I will cut you off swiftly, equally amongst everybody. And it is no,
nothing personal, just the way that it is. So –. What we'll do is, start with giving your name and area
in which you live and then you may begin. So we will start with Daniel.
CUNNINGHAM: Daniel I live in Volcano and I am a visitor of the Denissens (phonetic) of Sea View
and the wonderful environment that I have been so fortunate to share with these beautiful people.
There was a time before administrative agencies when any controversy was resolved by a jury and
there would be two sides. I think you, there seems to be a consensus that it's a very one-sided issue.
There's a lady yelled something and ran out the door, and there are a few anonymous complaints. But
you good people are behest with the burden as an administrative agency to “uphold the law” and how it
works. But the fact of the matter is that it has become too litigious and complicated for diversified
complex cinching human beings as we are to, to meet all of the demands and the requirements of an
administrative agency unless you have, are backed by an oil conglomerate with lots of money to pay
lawyers so that all those innuendos and small issues that people need to try to do could be resolved.
We are not the strong. We are the weak. These are all local people who live here. Their hearts are the
reason why they came, because they are good people. And I am very grateful to have such an
opportunity to speak here today with all of you.
And I sense that I think the people on the Board want to do the right thing also. It is nice to be
important, but it is more important to be nice. And if we don't be nice we won't have a nice place for
our children. And if our children grow up in an archaic society that is designed by an administrative
agency and we had no jury system, communists and fascist regimes are similar in the sense that they
are ruled by an administrative agency. They are by definition apo sames (phonetic), they are the same,
they are no different.
And as an association, an NWACP went to the same thing before there were building permits, and they
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were told by the Supreme Court that they are completely autonomous -- Education, food, whatever
they want to do, no building permits. It was a private association that nobody had any business
sticking their big fat nose in their business. And the sad part about it is we have a dysfunctional
association at Sea View that needs to be resolved. And if you as the Association with people who are
there can get this resolved with the Association and not bring your baggage and allow, in other words,
if you can -. And I have interesting information of this and case law around that. Fit if I can be, we
can bring this to a very good resolve for everybody. Thank you.
KERN: Thank you. Any questions for the testifier? Seeing none, thank you. Jon Olson, name and
area in which you live and you may begin. Use the microphone, please.
OLSON: Is this on?
KERN: Yeah.
OLSON: Yeah, okay. Name, Jon Olson. I live in Leilani Estates. Over the years I've spent a fair
amount of time in the Sea View area. What I would like to focus on in my testimony is the conditions
which are being applied to the SPACE project. The first thing that I would have you look at would be
the services that they are providing in the community in terms of services that otherwise should be
provided by government. They are providing SPACE for school. Well, given the number of lots and
the number of people that currently live in that area, the complex area of Sea View, Kahena, Palisades,
the State should have built an elementary school there. Are any of the conditions that are currently
being applied or might be applied, would they be applied to an elementary school? Would you limit
the capacity of an elementary school, hours of operation? I don't think so.
Moving on to the County's responsibility based on the population currently, the County of Hawai‘i
should be providing about 8 acres of park to that complex, those three areas. They are not. Would I
have a place to have a meeting in the pavilions on my County park? Could I holding a performance in
the County park? I certainly could. Would you limit the number of people that came to that
performance in the County park? Unlikely.
And then we get to the issue of economics. Those, some of those lots down there, some of those
subdivisions have been in existence for 40 years. The County of Hawai‘i has taken their tax dollars.
And they’re where? There’s not a square foot of complete County Park in any one of those
subdivisions. Show me the money. Where did their money go, what are the services? These people
are trying to provide services to a community that is grossly underserved in any area you wish to focus
on. So I suggest to you that in the name of fairness, if there is any condition that is going to be applied
to these people, it should be identical to what would come from a public facility, a public school or a
public park, cause that’s what they are doing. Thank you.
KERN: All right, thank you. I will ask that, I appreciate the enthusiasm, but let us just try to refrain
from applause if we can. Thank you. Any questions for the testifier? Seeing none, said Sativa Jones,
name and area in which you live, and then you may begin.
JONES: Sure. Good afternoon, Chairman, and good afternoon Commissioners. My name is Sativa
Jones. I appreciate this opportunity to speak. I am an almost 20-year resident of Sea View Kalapana
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Estates. We all remember when the SPACE market got closed down, and then we remember when the
SPACE market reopened because of the grace of the Planning Director who came in and was moved
by the community testimony and was moved by the economic incentives that SPACE provides. We
were all happy. We got our market back.
But, of course, this came with conditions. And one of the conditions was there was to be no night
events that charge money. In Feb –, I was send the link to the 300 page complaint for revocation and I
started to read it. And as I read it I could hardly believe that in February the Planning Director and the
Department had telephoned Graham, had e-mailed Graham, and had actually sent a certified letter to
Graham telling him do not have your two-day event. You say you’re not charging a dime to anyone
but there is plenty of people that say they have been charge, there’s all kinds of evidence. We got
e-mails, we have tons of evidence. You know, basically, they had them dead to rights (phonetic).
There was a time in Puna we could do things on the side, but now that time has come and gone; and so
everybody has to be above board and pono now.
So what happened was unfortunately for Graham and his staff, and his close staff, who knew that the
Planning Department had said this, they never told the community, they never told the vendors, they
never told the school. And so, I guess the school wasn't involved. And so what happened was the
vendors in the community supported that event, never knowing that that was going to cause problems
for the permit, that that was a violation of the special use permit. If the community and the vendors
had known the truth they would have never supported the event. They would've thought that their
market is more important than a two-day event.
So my whole interest in this, I love SPACE market, I wear green today to support SPACE, but I also
wear blue for true blue because I respect the truth. And the truth has to come out here. There were
warnings, several warnings. The Planning Department basically bent over backwards to serve SPACE
and Graham. And I talked to all the vendors at the market, and none of them knew that the two-day
event was going to in any way violate their permit to exist.
So I hope if you do allow SPACE I would say that there needs to be some kind of watchdog group that
involves members of Sea View community as well, so that Bobby Jean doesn't just have to call
Graham. They can call the watchdog group who can tell the vendors. Because the vendors also said
had they known, if Graham had been honest and told them, they would have blocked the entrance way
to SPACE and never, they would have policed themselves. They would have never allowed that event
to happen. But it was very quiet. And although a few people knew, I was so this morning, one person
who I didn't, I was surprised -. But, anyway, but the rest of the community -. Now even, Graham has
said I'm not involved with SPACE that's Jena Way, but even Jena Way did not call her vendors
together and explained to them what they would be facing after the two-day event. None of the
vendors knew. And these people take it very seriously because a lot of poor people in my area with
children, they depend on that market. And so I think it was just outrageous that Graham-completely -.
KERN: Thank you.
JONES: Thank you very much. Aloha.
KERN: Thank you. Any questions for the testifier? Seeing none, thank you. R. J. Hampton, name,
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and please use the microphone, and name and area in which you live and you may begin.
HAMPTON: My name is R. J. Hampton and am a resident of Sea View, Kalapana Estates, and I live
within walking distance of the venue that we are talking about. Usually deception and secrecy is for
)
evil lands (phonetic. I don't say that’s what going on here. But I will say that there are questionable
motives, and because the person seeking to deceive those and his acts and his motive became known to
us too late. So that the spectacle today of all the green has to do with nothing going to Georgia but
everything to do with the market. But the special use permit is not about the market. And as Jeff said
to me on the phone, because I'm going to make it known, uh huh, I'm not scared of anybody and the
tyranny. I'm the tyranny of the minority I guess, that everybody's talking about cause I made a
complaint. I felt that after all the years that I have been in a nonprofit person too that the one thing you
want to do is protect your nonprofit status. When you do this, this is where the leadership comes in. I
thth
had an argument my neighbor about whether or not this event of February 24 and 25 should happen.
Basically we got into, well, I'm very emotional, a screaming match. For as much as I love education,
as much as I love juggling and everything that goes with SPACE, when I see Graham Ellis I don't see
SPACE. What I see is a corporation of entertainers from Europe and America who came to the Big
Island to settle in and make their fortune. Isn’t it nice? Therein lies -.
PUBLIC: (Laughter).
HAMPTON: Therein lies your fame -.
KERN: Respect, respect.
HAMPTON: Your frame and your fortune. And I remember when Graham told me that this was a
good thing because he'd never have to take his equipment out. So what am I trying to say to you,
Commissioners? I would find it a travesty a broken trust for you to give SPACE, Village Green,
Hawai‘i’s Volcano Circus, any more time to do what they say they are going to do. I expect this
Commission to revoke the permit and make them reapply. Hopefully, put out, if the County needs
such a thing, there's a thing called RFP, somebody responds to a proposal. But nobody has proposed
this. This is a vision of an organization in my community. Are you going to, when I come, are you
going to give me the same leniency? You are opening the door, a Pandora's box, if you do not allow
the Planning Director to revoke and you don't, and it would be a travesty if you didn’t allow somebody
to come forward and put a proposal before you that will work. Education, economics, entertainment,
that entertainment got left out. It's called recitals, it's called hoike -.
KERN: Thank you.
HAMPTON: It’s called graduation.
KERN: Thank you. Thank you. Any questions for the testifier? Seeing none, thank you. James
MacRae. Give me your name and area you live, and you may begin. And please use the microphone.
MACRAE: My name is James MacRae and I live in Kalapana Sea View Estates.
PUBLIC: I can’t hear you.
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MACRAE: I live in Kalapana Sea View Estates.
MACRAE: Okay, this hearing is not about how many people that Graham Ellis’s poor decisions have
impacted, but about Graham Ellis’s irresponsible behavior -.
PUBLIC: Speak up.
MACRAE: Okay, I thought I was, behavior regarding our society's rules for behavior. Graham cannot
or will not follow the rules. His special use permit should be revoked until a responsible person takes
over the operation of the SPACE facilities. Thank you. That's all I have.
KERN: Thank you. Any questions for the testifier? Seeing none, thank you. Robert -.
KORTOKRAX: Robert Kortokrax.
KERN: And where do you live?
KORTOKRAX: Nanawale.
KERN: You may begin.
KORTOKRAX: As I look around the room there are an awful lot of my friends here that are vendors.
My wife is a vendor of SPACE. We attend many of their events. And it is a community down there.
And as in any community there are people that are against anything happening and there are people
that are, want to make this like the mainland. This isn’t about that. The economic impact of even
shutting the market down for a month for a lot of people that vend there, it's their whole income. It’s
not like they’re kind of jobs. And the whole point being if people are willing to play by the rules they
ought to be given that chance. And I think shutting the whole thing down is a super bad idea because it
serves a purpose of both a meeting place and also a place to buy your vegetables and other things
without going all the way to Pahoa or a Sunday market to do it. It's the only thing down there. And it's
a meeting place and it's just a good place to be. And the saddest part of the whole thing here is you
can't, yeah, true you can follow laws to the letter, that's always good. However, with the rapid
population increases and stuff it will be to everybody's benefit if instead of relying on older surveys
and what happened 10 years ago to focus on going forward. And I just ask that the vendors and stuff
be given a chance to make a dollar here, as opposed to not having that opportunity. Thank you.
KERN: Thank you. Any questions for the testifier? Seeing none, thank you. You may have a seat.
I'll call up six more testifiers, Dominic Yagong, Tom MacKay, Lorn Douglas, Eric Marantz, William
Newman, and Bailey Givens. And I’ll swear you all in cause you, I’ve got, 1, 2, 3, 4, 5. So got the -.
Dominic, hi. Tom -?
MACKAY: Right here.
KERN: Okay. Lorn?
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DOUGAS: It’s me.
KERN: Eric?
MARANTZ: Yes.
KERN: And William?
PUBLIC: Bailey, Bailey.
KERN: Bailey. Well, I got Bailey Givens, but I’m looking for William Newman. No? Okay. Bailey
Givens. And, you’re Bailey?
B. GIVENS: Yes.
KERN: Hi. And Herb Dorsey then? Come up. And as soon as Herb takes a seat, we’ll swear you all
in. Okay, and I'll get you all to raise your right hand, please. You all swear to tell the truth today
before the Windward Planning Commission?
TESTIFIERS: I do, yes.
KERN: All right. So Dominic Yagong. You're on the other side of the table, huh? Name and area in
which you live and you may begin.
YAGONG: Thank you, Chairman. Dominic Yagong, Chairman of the Hawai‘i County Council. I
reside in Honokaa. Let me just say, first of all, that yes, it's a little different being on the other side of
the table. Usually I am on that side. And I've got to tell you I am extremely proud of the process that I
witnessed this morning, I've got to tell you. Planning Director, Jeff, staff, comments made by the
Commissioners, and I was very proud of what I witnessed today. You see, because this is not a court
of law, this is not about who is guilty or not, and who’s not guilty. This is about a governmental body
finding solutions. And what I heard the Planning Director state today was she was willing to find
solutions. And what I heard the Commissioners say today you're willing to listen and find solutions,
and yet you are ready, stand ready to make sure you have compliance. And I was proud of that.
Because we all live within laws, we need to do that. And I think I heard some wonderful things from
the Applicant that talked about, you know, understanding that there have been some mistakes done,
and even from his attorney admitting that as well. So it seems to me what has taken place today is an
opportunity for us to take a good thing and make it better.
What I came here to speak about today was I spent some time, I went over to SPACE this past
weekend, last weekend, excuse me. And what I saw was something that communities throughout this
island are trying to obtain, and that's the spirit of community. I didn’t go over the area as Mr. Dominic
Yagong, the Chairman of the Hawai‘i County Council. I didn’t make any speeches, I didn't grab the
mike, I didn’t go shake my hand, shake hands and introduce to people who -. I just blended in and I
just observed. And what I observed was having people taking their backyard goods to the table for
sale. What I saw was people baking bread and smoothies, and having leather products. And what I
saw was people sitting across each other in a picnic setting, shaking hands and introducing themselves
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for the first time. What I observed was tourists coming into the area and saying they heard about this
wonderful secret in Sea View; and they came to Sea View to be part of this wonderful thing. And I
saw something that I’d like to see duplicated around. Now I'm not saying about not complying.
We’ve got to comply. But I'm saying what they have achieved, this community has achieved for
themselves, is something to be proud of. The school, the farmers market, it's all about people. And
I'm proud of the people of Sea View for bringing something to the community that everyone else
wants, and that is a sense of belonging, a sense of Aloha.
And to Graham, I really appreciate what you folks have done. And the Hiccup Circus by the way, they
come to Honokaa every year at the Peace Day Parade. We look forward to that performance. I had no
idea they had anything to do with SPACE, I had no idea. But when I got there too, to SPACE and saw
the classrooms and saw their, all of their equipment that they utilize, they just told me that, you know,
these -.
KERN: Thank you.
YAGONG: The folks have shared their aloha with the whole island.
KERN: Thank you.
YAGONG: They deserve aloha as well.
KERN: Thank you. All right.
YAGONG: Thank you, Mr. Chairman.
KERN: Any questions for the testifier? Thank you. You may have a seat. Tom MacKay, name and
area where you live.
MACKAY: Tom MacKay. I live in Leilani Estates. I am a vendor at SPACE. I've help build that
SPACE market for over 3 to 4 years. And if you shut it down you're taking my livelihood away from
me. I've worked really hard to build my business. I have a lot of clients. I love the people down there,
the spirit down there. Everybody is friendly, happy, nobody is fighting. It's a great place to be. And if
you close us down, I really think that's the wrong decision. And I hope you will support us and help us
keep it open. Thank you.
KERN: Thank you. Any questions for the testifier? Seeing none, thank you. Have a seat or hang out
there till they’re done. Lorn Douglas, name and where you live, and you may begin.
DOUGLAS: Lorn Douglas. I live in Sea View. I have, a resident for 30 years. I have been living in
Sea View for 22 years. I along with Graham and the two people that were here earlier, actually created
the community association years ago, wrote all the bylaws. And I have been involved with Bellyacres
as kind of a special nonmember ever since it was a jungle quite a number of years ago. I saw when the
Hiccup Circus was working with the kids that here was a place for kids to develop a passion in a poor
rural area that otherwise they would be going to drugs, and you know what else. And I personally, my
stepdaughter is now in rehearsals to be a lead aerialist at Sea View in San Diego for three months.
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And she got her inspiration and her passion for life, very proud of her, from the Hiccup Circus.
I am one of the major financial contributors and fundraisers for the SPACE market, the SPACE
building. And I just want to say when we envisioned a building back a long time ago, we didn't realize
that the community would be asking for a farmers market, that we needed a school. You know,
otherwise when we came in, I sat and talked to the Planning Commission like 20 years ago, we would
have asked for more than what we asked for. And now knowing what I know we would have been
asking for a zoning change, you know, so that we could have a commercial zoning and do the things
that our dream, that our visions have, that unfortunately were very restricted. And I am sorry we didn't
ask for more at the time. But we were 30 jugglers and clowns with no money and didn't really know
what we were doing. We have more resources now, but we're still on a very limited budget. And, and
as you can understand, our budget is being taxed by, by preparing for meetings like this. And so I just
want to commend you for the compassion that I hear and the understanding, in spite of the violations;
and especially Director, very touched. And I am proud to be part of Bellyacres and I'm also proud to
be part of this, a resident of this County. Thank you.
KERN: Thank you. Any questions for the testifier? Seeing none, thank you. Eric Marantz, name and
where you live, and you may begin.
MARANTZ: Eric Marantz, I live at Bellyacres. I’ve been a member of the organization since before
I’ve lived on the Big Island; and that was 25 years ago. I’m a resident on the Big Island 22 years. I’ve
been very active in growing the community that’s under discussion here. There's a couple of things
that I heard twice mentioned during today's presentation about, that there was no amended special use
permit on the table from SPACE; and it seemed to carry a strong criticism. I just want it clear that
we’ve been working very hard to produce that. One was initially submitted. We retracted that because
it wasn't going to be adequate enough. We chose to pull that back to pursue the State land lease to
make it really work. That State land lease is critical in it. It’s caused delays. I hope that people don't
think that that's any kind of an intentional lack of will on our part. It’s a complicated process.
I also want to address perceptions of arrogance and non-compliance. It’s a huge challenge to produce
what we've been able to produce over the last several decades on the kinds of resources that we've been
able to do that, and fully comply with the requirements that have been set out. That's been the greatest
challenge of all. Some decisions have been made, not necessarily the best decisions but it is always a
bit of a trade-off. And I just want to dispel notions that might exist of acting in arrogance to be
noncompliant. It’s simply not the case. It’s just a bit of an overwhelming challenge to meet those
requirements and to carry on the programs that we’ve being carrying on. And I think I'm finished.
Thank you very much.
KERN: Thank you. Any questions for the testifier? Seeing none, thank you. Bailey Givens. Would
you hand her the microphone, please. Give me your name and where you live, and then you may
begin.
B. GIVENS: I’m Bailey Givens. I live in Bellyacres. I'm here today because I heard that you're trying
to shut down SPACE. I don't really understand why, but I don't think that's what's important. What IS
important is how that would affect our community, our neighborhood, and kids like me.
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I want to share a little about my story. My family moved to Bellyacres last summer so that my sister
and I could be closer to SPACE so we could take the circus classes every week. We’ve been to a few
week-long circus camps and we both loved them.
When I was little, it took me a long time how to learn to swim, and how to ride a bike. I was really
scared when I was learning. But when I started circus class, I was amazed that I very quickly learned
how to walk on stilts, and even ride a unicycle! That's just one wheel, you know. I have even learned
how to write a unicycle as tall as all of you! I NEVER thought I could do that!
Ever since I was a little girl, I've dreamed of becoming an actress. But there are not many places
around here that teach kids how to perform. I am very lucky that I found SPACE, and I have been
learning from some of the best teachers ever. I was even the star of the show at the last Circus class
performance over the holidays. I have so much more confidence now. In fact, I don't think I could be
standing here talking to you today if I didn't have all the support I've had from SPACE.
When we moved to Bellyacres, I was a homeschooler. I have been my whole life. I love learning at
home with my family. But when school started SPACE in August, I discovered that I really wanted to
go to school. I've never really wanted to before. Kula Kalapana (which is my school at SPACE that is
a part of HAAS) seemed so fun and safe. I could hear kids laughing and playing all the way from my
house; and I really wanted to be a part of it. I begged my mom for weeks if I could go to school. She
finally agreed that it would be a good place to try out school, so my wish came true. On my birthday
last September, I got to go to school for the very first time. It was the best present ever!
I love my school, my teachers, and my friends. I get to learn things like Japanese, ukulele, recorder,
singing, hula, Greek mythology, English, history, and my very favorite math! We are also taught to be
kind to each other and the earth. We learn respect for all living things. The best part of school is
getting to ride there each morning on my unicycle!
Another thing that I love about SPACE is the farmers market every Saturday. My mom works there
and she buys me lots of yummy food. My favorites are Tom’s juices and smoothies, and Norm’s
potatoes, of course! We can even use EBT there. If we didn’t have SPACE, we would have to drive
all the way to Hilo to buy fresh fruits and vegetables -.
KERN: Thank you, Bailey. You did a great job, yeah. Well done, Bailey. Thank you. And that was
probably the hardest person I’ve had to cut off.
ISHIBASHI: Question, Brother Chair?
KERN: Yes.
ISHIBASHI: Try finish up your letter, Bailey. Try finish that up.
PUBLIC: Yeah, yeah.
B. GIVENS: With EBT at a farmers market. That costs a lot of money because gas is very expensive
now.
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One more thing I want to share with you before I go is that I feel very lucky to live at Bellyacres. I'm
very close to SPACE, which is one of my favorite places in the world, and we have so many nice
people that live on the land with us. I love our potlucks and times when we all get together. It’s like
having a big family. They are my o‘hana
Some days I think I must be the luckiest girl in the whole world.
Yeah, actually, I’m pretty sure that I am.
KERN: Thank you. Well done. Thank you, Commissioner Ishibashi. We needed that. Any other
questions for the Applicant, oh, excuse me, testifier? Great job. Herb Dorsey, name and where you
live, and you may begin.
DORSEY: My name is Herb Dorsey. I live in Kahena Estates about maybe a mile from where the
Hiccup Circus is and the SPACE Center. You know, about 2000 years ago the apostles of Jesus asked
him what positive commandments are there? Jesus replied there’s but two commandments: Love thy
GOD with all thy heart and understanding; Love thy neighbors as thyself. If those two laws are
complied with by the people, all the other laws are fulfilled. Laws are made by men. GOD’s laws are
eternal and lasts forever; and men’s laws can be changed. They can be changed any time when it
becomes prudent to do so.
One of the problems I hear that in the long presentation that vilified Graham about being noncompliant
was the fact that he was giving public performances. A long time ago I asked Graham, “Why did you
agree to a conditional use permit that didn’t allow public performances. Because that’s what you do.
You’re running a circus; and these are public performances.” And his explanation was, “Well, I was
bargaining with the Planning Commission, and I was kind of intimidated by them. And I was thinking
if I asked for too much they wouldn’t even grant me any permit at all.” So it was, that was his reason
why did he didn’t ask for the right to give public performances right from the get-go; and that has been
the source of a lot of problems ever since. Because asking Graham to not put on a public performance
is like asking a singing bird or a song bird to stop singing; and it’s just not in his nature. So this whole
problem can be quickly taken care of if the conditional use permit does grant him the right to do public
performances. Some people might say, well, this is a rezoning problem. Well, then get busy and
rezone the place so he can do that. And I’m asking you to try and put in maybe a tenth of the work that
Graham has put in to try to put together what he has done. And in my opinion he’s a big hero. I don’t
care how many times he has violated some petty rules that you guys come up with. These rules can be
changed. Put in the effort to change the rules so that what he can do will continue to go on and other
community centers that are trying to be built around the state can also put together things and not have
to deal with all the restrictive rules that you guys come up with. Okay, that’s all I have to say.
KERN: Thank you. Any questions for the testifier? Seeing none, gentlemen may have a seat. Thank
you. Calling up James Weatherford, Leonard Horowitz, Sherri Kane, Gail Clarke, Patrick Walsh, Eliz
Weatherford. So I have James Weatherford here. Do I have Leonard?
PUBLIC: Leonard is not here.
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KERN: Okay. Sherri, Sherri Kane? Okay, no. Gail, Elizabeth, okay. Patrick Walsh?
WALSH: Yes.
KERN: Okay. Elizabeth Weatherford. Okay, so two more, Joyce Phillips, Kristen O’Guin, come on
up.
PUBLIC: Joyce isn’t here.
KERN: Steve Hirakami. That’ll give us our six. And once you’re all there, I’ll swear you in. I’ll get
you all to raise your right hand. Do you swear to tell the truth today before the Windward Planning
Commission?
TESTIFIERS: I do.
KERN: Very good. So, you know the deal, name, where you live, and then the time starts. And we’ll
start with James Weatherford.
J. WEATHERFORD: Yeah, thank you. My name is James Weatherford. I reside in Hawaiian
Paradise Park in Puna, and I and my wife have a farm in Pahoa. On occasion over the last few years
we have sold fruit down at the SPACE farmers market. I just wanted to share with you that
government regulations like all government functions must serve the community, rather than the
community being the servant of the regulations. Government belongs to the people, not the other way
around. Many government policies use words that support community. At the same time there is
clearly a great disconnect whereby government regulations are having the effect of obstructing
community. What is being done to Bellyacres and SPACE is not just about words about community, it
is community in fact. I ask you to please support the community in fact, not just in words. Thank you.
KERN: Thank you. Any questions for the testifier? Seeing none thank you. Gail Clarke.
CLARKE: Okay.
KERN: Name and where you live and you may begin.
CLARKE: Gail Clarke. I live in Puna. And I could be here on behalf of HAAS, the charter school.
I’m a founder and employee there. But I am here on behalf of SPACE and Graham. I met Graham in
1989 at a County sponsored workshop for grant writing over in Waikoloa. I believe we were the only
two people from Puna that travelled to that at that point in time. And it began my learning curve as an
ecologist to the workings of process and government. It has been a long interesting journey. You’ll
see me on your agenda again soon.
In the early nineties, oh, at that time I was working on behalf of Recyle Hawai‘i and wrote the first
grants that got funding for Recyle Hawai‘i. And Graham was beginning to work on his vision for
Bellyacres and to facilitate the Village Green Society in their mission to have a place to gather. Since
then I’ve learned that a lot of the process that I totally respect, I so appreciate the Planning Department,
the Commission, Billy (sic) Jean, you’re making really wise strategic, cognitive decisions because
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you’re doing your homework in finding out what’s going on. It’s hard. And one of the hugest part is
Graham’s organization like us at the Charter School is not driven by dollars. We’re not developers that
are going to make a lot of money at the granting of a special permit to have a store or some facility
that’s going to be generating a lot of money. We’re driven by need. We started because we saw a
need and we’re trying to help meet it, and craft it to meet the community.
Last, one of the most amazing things I learned from the clowns was their capacity. And one of my
favorite acronyms, which education is full of for clowns, creative leaders offering wonderful new
solutions. Thank you.
KERN: Thank you. Questions for the testifier? Seeing none, thank you. Patrick Walsh, name and
where you live, and you may begin.
WALSH: Good afternoon. My name is Patrick Walsh. I live on Railroad Avenue in Keaau. I’m a
farmer. I recognize the Chairman and Members of the Planning Commission and Corp. Counsel, and
Planning Department Director. I met Graham in 1997. And I think when we listened to the testimony
today and you hear terminology that he’s noncompliant, all he has done is essentially provide or
facilitate SPACE for the community needs, the needs that weren’t being addressed by our tax dollars
and by our County. If there wasn’t a need, there wouldn’t be a SPACE there.
I spent some time when Russell Kokubun was senator and, on sustainability, and then recently at an
all-day conference on agriculture, Russell Kokubun being the director. And we broke out into groups
and they were talking about, you know, food security, and buying local, and supporting the local
farmer, and processing ag products and adding value, and creating, you know, sustainability. And at
the end the microphone passed to me; and I said “It’s all happening today in SPACE.” And people
looked to me and said “SPACE?” And I said,”There’s a place in Kalapana called SPACE and it’s all
happening right now. And they have the support of the USDA, they give much more value to food
stamps there.” The little girl testified on how safe she feels in SPACE. I mean wouldn’t it be
wonderful if every learning environment was that safe? So I don’t think Graham is noncompliant. I
think that in 2001 he never thought our economy would be in such bad shape. There are 50 vendors up
there on a regular basis. They all pay taxes. They all add value to something that they grow. Is that
stopped -?
KERN: No, it’s one minute.
LUGO: One minute.
WALSH: Okay. They all add value to what they grow. And then if the County is going to use buzz
words like buy local, you know, create sustainable community gardens, you support your schools, then
I don’t think Graham should be noncompliant. I think you folks should add another sort of department
within the Planning that addresses community needs and allows them to develop naturally according to
the community. Thanks very much for your time. Aloha.
KERN: Thank you. Any, any questions for the testifier? Seeing -.
QUEROBIN: I have.
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KERN: It’s only for the Commissioners, sorry.
QUEROBIN: Okay, I’m going to say something whether you like it or not.
KERN: Well -.
WALSH: She’s not with me.
QUEROBIN: Thanks a lot.
WALSH: That’s not how it works.
KERN: Elizabeth, Elizabeth Weatherford, name and where you live, and you may begin.
E. WEATHERFORD: My name is Elizabeth Weatherford. I live in Hawaiian Paradise Park. James
mentioned that we have a farm outside of Pahoa. And possibly the first time we went to SPACE was
to go to SPACE market. And we had produce from our farm at the time. At any rate, SPACE market
is a, that’s a wonderful resource. And I can, and I’d like to second so much of what I’ve heard that
was said already today. What, what I feel that needs to be acknowledged and recognized in the
situation in the judgments that are made today, that they should recognize and appreciate the
remoteness of that community, SeaView, how far it is from commercial centers, and how much, how
difficult it is for people to get out if they don’t have a lot of resources. And people there need to have
the necessities of survival; and a lot of those have to come from somewhere else in the form of
building materials. But a lot of the necessities of survival are being provided for members of that
community by each other, and specifically what has been done by SPACE for education, food, food
marketing, and the economy through food marketing, and recreation. Okay, these are very, very
important things. And I hope you will think in terms of the community there and how it has
developed, and the work that Bellyacres has committed to this with very, very little money and very,
very little demand on, on no demands I know of on the entire public resources. And they need to be
given credit for that in some way, like accommodation. Thank you very much for, for all that you’ve
heard from people; and I appreciate your process.
KERN: Thank you. Any questions for the testifier? Seeing none, thank you very much. Kristen
O’Guin, and give us your name and where you live, and you may begin.
O’GUIN: My name is Kristen O’Guin, I live at Bellyacres; and I’m a teacher at the school, at SPACE
in Kalapana. Can I ask a question for, cause I had wanted to speak to the Planning Director. Is she
going to-?
KERN: It doesn’t really work like that here. You give -.
O’GUIN: I mean, I mean. Is she going to hear what I have to say at any point?
KERN: It’s up to us right now.
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O’GUIN: Okay. Because I just want to offer some assurance, actually, to her and to Mr. Ishibashi.
Please forgive my disorganized thoughts. Most of the time when a vision is being created and is
coming to fruition it takes determination, perseverance and tenacity on the part of the visionary or
leader. Having an uncompromising commitment is often what it takes to make great things happen.
And I’m so grateful to the Applicant, Graham Ellis, for his unwaivering determination that he has had
all these years, because it’s because of him that we have a place for the school and we have a place for
the farmers market and the circus. At the same time, you know, we’re at a point where the vision has a
solid foundation now. And we all, even our visionary leader realized that from this point on a spirit of
cooperation and understanding and compliance is what is going to help sustain SPACE, while at the
same time hopefully working with the County to help the system evolve to work more intelligently for
we the people and also for we the County, our people, our County. Over the years Graham has done
most of the work on his own because he’s the one who has been unfailingly dedicated to the
community. And let me tell you nobody is getting rich from anything that’s happening at SPACE. It’s
clearly, definitely a real commitment to the community that fuels, that feels that -. However, now days
there are more people who are overseeing the process. And I’m here to tell you today I am personally
stepping up. I live at Bellyacres. I used to be quieter, I don’t like to be political, and just kind of like
let people do their thing. But no more, I get it. This is really important, we really have to stay on
course. And I will, I will exert my influence from now on. And, you know, I can tell you also on a
personal note that the Applicant happens to be one of my best friends and my next door neighbor; and I
want you to know actually that I, you know, they say you can’t teach a old dog new tricks, but I
actually, yeah, I’ve seen this guy learning stuff the past couple of years, I really have, and even
especially just in this process that we’re going through right now. And I think that we’re -.
KERN: Thank you, appreciate it. Any questions for the testifier? Seeing none, thank you. Steve
Hirakami, name and where you live, and you may begin.
HIRAKAMI: Steve Hirakami. I’ve been a resident of Kalapana for, since 1974. And I have all my
property there. I’m a Kalapana resident. And I’m, it’s hard to follow speakers like Bailey, but I’m
glad she’s part of our school. And, obviously, I’m here today to ask you to preserve our SPACE and
her space at SPACE. I think that, I’m urging the Planning Commission to take the sensible approach
of our Planning Director and to allow them time enough to present a comprehensible plan that will
allow them to do what they want to do. It is a valuable spot for us. And, you know, we entertain this
idea of, you know, they think so much of the music and drama, performing arts out of school, and it’s
so neat to have this connection with the Circus. So, and, you know, the circus arts can lead to a great
career, you know. Sol Lei (phonetic) in Nevada is a big thing. It’s all over the world, actually. So I
think we need more this kind of community building than less.
To give you a brief history about Kalapana, when I moved there in ’74 there was not much happening.
In the’80s there was a lot happening. There were a lot of community gatherings, lots of family picnics,
and there’s the place to do it. You know, Harry K. Brown had the big pavilion, we had basket ball
courts, we had sand volleyball courts, we had beautiful beaches, we had places to hang out. And it was
a gathering place of Kalapana. Nineteen ninety came and the big eraser came and that went, gone. So,
you know, people like Graham, and I, and Gail and, we’re building things that the community needs.
We’re taking up the void. So, yeah, we don’t know the right ways to do it. But, you know, having
identified the problems, we’re critical thinkers and we can come up with the solution. So, you know,
we need a little guidance and sometimes we have to hire legal planners and, you know, people to guide
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us through the proper process. And I think that’s what we’ve done, and that’s what Graham has done.
And I think, you know, one last thing is about, one of the reasons you revoke a permit is if you’re
unable to resolve the complaints with the complainants. And I think we need a more open process to
actually hear the complaints, and we need a mediation process or mitigation process so that we can
hear the complaints. They shouldn’t be anonymous. And we should be able to have a process that we
can address them, and address them with reason and with common sense, and to go forward. Because
we’d like to create a win-win situation, which this might end up to be, instead of a lose-lose situation,
which is a situation when you revoke the permit and the charter school doesn’t have a room to stay.
Thank you very much.
KERN: Thank you. Any questions for the testifier? Seeing none, you may all have a seat. Calling up
Joy (Chrystal) Bilyeu, Alex Paavola (submitted written statement), Eric Marantz, Andre’a Tischler,
Aileen Wilkle and Max Nada dada. And -.
PUBLIC: (Inaudible).
KERN: What’s your name?
WILKLE: Aileen Wilkle.
KERN: And -?
TISCHLER: Andre’a Tischler.
KERN: Okay, so, Joy Bilyeu is not here. Alex Paavola and Max Nada dada. How about Kiki
Dowdy? Julie Mae? If I call your name, please raise your hand so I at least see that you’re coming up.
Great. Norman, Normand Defusene, or Dufresne? Jacklyn Symonds? Jack Hash? Doctor Judy
McClenaghan? Doug Anderson? Richard Koob? Joanna Norton? Wolf Braun? Joel Hirsch? Noah
Moore? Teri Gwaak, Gwaek? Are you Noah?
MOORE: Yes.
KERN: Okay. And you’re Teri.
GWAEK: Yes.
KERN: Robert Petricci. That makes our six. And as soon as Noah takes a seat there, we’ll swear you
all in. I might have a chance to participate at the end of this, it’s very close, it’d be great. I’ll get you
all to raise your right hand. Do you swear to tell the truth today before the Windward Planning
Commission?
TESTIFIERS: I do.
KERN: Very good. So you know the process, name, where you live and then you may begin. I’ll
start with Andre’a Tischler.
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TISCHLER: Aloha, Commissioners. My name is Andre’a Tischler and I have a small 4-acre organic
farm in lower Puna. We grow citrus, mangoes, avocados, white pineapples, papayas, bananas, ulu,
coconuts and timber bamboo. We also have a vegi garden. For the life of me I cannot figure out what
it is that’s going on with ordering SPACE with a cease and desist order. We should rather be
celebrating what they are doing in lower Puna in providing a place for local farmers to sell their fresh
organic produce with plenty of aloha to people who live there and who are educating children to
respect the aina and eat healthy meals, not Happy Meals. Rather, you are chastising them for not
following your rules and they are, those rules are arbitrary and totally not necessary on this island.
Who is right? They are right. Because when the boat stops coming you will look to SPACE’s vision
as a model of what the island will need much more off. Look at it this way - at contact in the 1700’s
there were as many people living on the island as they are today. They imported zero percent and
everyone was fed. Today we import 90 percent of our food. And therefore a couple of weeks if the
ships do not come in, and add to this the 25 percent of the people on the island are food insecure, it’s a
tragic statement for the way we manage our resources and provide sustenance. What SPACE is doing
is nothing short of heroic and an inspiration to our community of how to live here sustainably and
provide for all. We need much more of it to plan for the difficult times ahead, which apparently only a
small group of people, and not our government officials, recognize. We need alternatives to the US
mandated building codes, which imprison us to a system dependent on importing all building materials
and increasing the cost of construction to unsustainable levels. Please change the way in which special
permits are granted to community nonprofits for people driven developments. Please give SPACE
some space to demonstrate another way that will be far more beneficial for our beautiful island in
building a community in Puna Makai and providing for all. Mahalo.
KERN: Thank you. Any questions for the testifier? Seeing none, Aileen Wilkle, name and where you
live, and you may begin.
WILKLE: Thank you. My name is Aileen Wilkle and I live in Bellyacres. I’ve lived there for almost
three years now. And I’d just like to state for the record that there is no corporation involved here. We
are a nonprofit organization, a land trust. No one is making money here at BGS. People may be
making money at the Farmer’s Market, the teachers I hope are getting paid. But Jena Way who’s the
executive director, even she is only on a partial wage at the moment because we don’t have money. If
we knew how to bring more money in, we would do that ad long as we were in compliance. And one
of the reasons why we haven’t been able to be in compliance is there’s no money. And we’re
performers, I’m a performer. I’m a juggler and unicyclist. I’ve performed all over the world, I’m quite
good. I’ve enjoyed the opportunity to perform for Puna, for Hawai‘i, to share my talents here; and I’ve
been proud never to be paid for that, good at my job. I also volunteer four to five hours a day doing
agricultural work at Bellyacres, tending to our bananas and picking avocados and things like that,
making sure that we make the use of our resources that we have there, even picking strawberry guava
for my neighbor to make lovely syrup. Go strawberry guava! A lot of our neighbors have issues with
traffic. And I would like to suggest that these issues will only get bigger over time, regardless of
SPACE, regardless of the events put on there.
There’s an issue with the roads down there. We have one road going to Kaimu and another road going
to Opihikao; and there’s nothing for those three massive subdivisions in between. So I would like to
say that those traffic issues aren’t so much about SPACE but about a growing population. And this is a
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wonderful opportunity for Puna to look at how to make those problems easier, shuttle buses, electric
buses, carpooling which is something that in Europe we like to do. We share our cars with our
neighbors so that we can all go to an event together safely, with a designated driver. I really appreciate
this time to speak to you all. I obviously speak with a lot of passion. I understand it has been very
difficult for the Planning Department. I understand the issues with non-compliance. Thank you very
much for speaking so positively about what we do. I for one am going to continue working my ass off
for nothing, for nothing, because I love what we’re doing there and I believe in it. And I believe that
we do serve the greater community. And I’m going to do everything I can to mend bridges between
me and the neighbors with whom we have problems with at the moment, because I want us all to get
along. This is Hawai‘i. Thank you.
KERN: Thank you. Any questions for the testifier? Seeing none, thank you. Jack Hash, name and
where you live, and you may begin.
HASH: Yes, I’m, can you hear me?
KERN: Yes.
HASH: I’m Jack Hash. I live in Kalapana Sea View Estates. I’ve probably been there, 12, 14 years. I
am a resident, I’m not in close proximity to Bellyacres. I’m couple of streets down, though not too far.
Performances don’t bother me. I hear laughter, I hear applause. It’s good things. But I cannot speak
for my neighbors that are in close proximity. And you’ve heard lots of, you know, the good things;
and you brought that up. We know all the good that goes on there and it does, it actually does. But the
thing that comes on, in 2010 when they had problems before, I got up before the thing, they were doing
a rally of support. And against the grain and probably unpopular I said I follow a lot of rules, a lot of
the rules I don’t like to follow. I follow them because I do not like to be vulnerable. And what we do
is we put this at risk every time. This is not -. I commend this Commission. I went through, I’ve read,
somebody forwarded me all the emails on the complaints, the permit process, the whole thing; and it
took two years to get in an amended permit. It’s what does it take to get that done? What is going to
convince you that they will follow through now with this plan. I love Graham as a neighbor, as a
friend. I also love him as a performer, and this might be a performance. We want to keep SPACE
going, we’ll rally, we’ll get the public support. They’ll listen to us, they’ll, we’ll outweigh them. It
doesn’t take that. This does not have to be a complicated process. It’s complicated because the rules
weren’t followed. Rules are not, this isn’t big government bossing us around. This is an agreement,
this is an agreement that is put down that you can say, yes, this is what we want to do, we’re in
agreement with this. And once we do that, that is our integrity to follow this agreement. And so
whatever it takes, get this amended permit in there. Everybody, this community, it’s about -. Whether
they trust Graham or whoever, somebody has got to be on this, this gets done. This is important. We
do not want to be back here again. We don’t want to raise money to pay attorneys to be in front of this
Commission. Thank you.
KERN: Thank you. Any questions for the testifier? Seeing none, thank you. Noah Moore, name and
where you live and you may begin.
MOORE: My name is Noah Moore. I live in Pahoa, and I’ve been teaching the Circus program at
SPACE for about 3 ½ years now. I came from running a nonprofit. Previous to living on this island I
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traveled around to special needs summer camps doing circus shows for children with diabetes, cancer,
all kinds of stuff. And I came out here originally to learn from Graham about why he’s so successful
over having this amazing impact on the community over 20 something years, and ended up staying out
here and volunteering tons of times, just like all these people, to help ensure that these kids did have
something to do and were occupied. And the impact that it has had just from coming to the point it is
at now is so visible each and every day that you have people saying this and Bailey testifying , you
know reading the note. But come down, see what is going on. It is a, it's a community thing that is
making so much difference not only in these kids’ lives now but in what they believe in and what they
can do in the future. It’s not that they are learning circus skills in particular, it's that they're learning
what it takes to work with each other, how to do so many life skills, and interact with other people
there that -. The performance aspect of it, they want to have something to do. And that's the main
thing we're bumping up against, is they practice they do all of these amazing things, they learn all the
skills, when can they exercise them? “Oh, well, we can't do a show here so we’ll wait till there’s that
one school thing in the future, and then you can do something.” It is hard to keep them motivated to
do that when they can't even exercise what they're practicing. So the definition of a public
performance is kind of something in dispute, but performance art and creating a community gathering
at a community gathering space is something that other cultures value so much. They have a central
place where the market, the shows go on, the Zocolose (phonetic). That’s something in every culture
that I think we need to put more importance on in this one. Thank you
KERN: Thank you. Any questions for the testifier? Seeing none, thank you. Teri Gwaek, name and
where you live, and you may begin.
GWAEK: I’m Teri Gwaek and I live in Kau; and I’ve never had the pleasure of being at SPACE,
although I’d heard lots about it. And I unequivocally support Graham and his endeavors. And this is
not just about SPACE, it's about more than that. And I know that this is not about changing policies,
but sometimes policies need to be changed in order to create a free community, free world, and free
people. And drastically we are not experiencing that. And I don't know, a lot of people have seen the
one-hour, I guess, show, John Stocil (phonetic) did. It’s called “Illegal Everything.” And this is the
world that we’re coming down to, everything is illegal. There are rules and regulations for everything.
And, you know, we talk here about the sustainability and about creating community, and we know for
a fact that, you know, 90% of our food is being imported, and yet, you know, we have regulations and
rules for what people are doing, food that people are growing. We can't even sell our goods on the
streets anymore without regulations and without having permits. Water is being withheld from
farmers. I mean, hello? You know, farming without water? There are a lot of atrocities that's
happening that we are not even addressing.
And, you know, we're talking about compliance. But what about common sense? Nobody has talked
about common sense. And, you know, little Bailey if she wants to open a lemonade stand now she is
going to have to pull a permit. So think about that. And it's not just here in Hawai‘i. You know over
in California, I don't know if you’ve heard about it, but there’s a group called Rossom (phonetic) and
they provide organic whole foods to people. And FBI agents came in with drawn guns and dumped
the raw milk, destroyed the raw foods, organic foods. And they call it compliance? To me it’s just
outrageous. What we're doing here is that we're telling people: “Don’t, don’t be sustainable, don't be
self-sufficient. If you are going to be then, you know, you have to follow all of these regulations and
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rules. And if you don't, then guess what? You’re going to pay the price.” And this is what it is telling
people, is to be dependent on the system, to get, go on welfare, get food stamps because the
government is not supporting your endeavors to be free people. Thank you.
KERN: Thank you. Any questions for the testifier? Seeing none, thank you. Robert, name and where
you live, and you may begin.
PETRICCI: Robert Petricci. I live in Pohoiki and I’ve lived in the area since 1981. So, you know,
what Bailey said, to me, really kind of hit home to you guys because over those years I’ve seen so
many kids come out there and turned into just the most productive people. And that's coming out of a
really challenged community. You know, we’re poorer out there, and there are a lot of other kinds of
issues and problems. So to see so many kids come out of this, from what Graham really and
Bellyacres and SPACE have done, you really need to support these guys. Because, you know, those
are the things that we’re talking about, you know, that we have these problems in our communities,
you know.
And then also then you go into the economics. I have a farm and I have partnerships with people from
my farm. And some of those people have tables at Bellyacres. And so the money that they get for that
there, and that I get from my produce, goes back into the community. And we really have economic
problems in our community. So, you know, that's, those are all positive things. And, you know, the
rules, it seems to be that the rules are more of the problem really here than SPACE. And, you know,
we need to maybe look at -. You know, cause this is what we’re talking about, sustainable
communities. And then we have Uncle Roberts down there in Kalani Honua, and those are the kinds
of things that are really working and it is saving the County money. You don't have to build the
schools, you don't have to build the parks, like some of the people have been talking about. So it’s a
really, just a real positive thing. And, you know, if 7-Eleven wanted to build a 7-Eleven down there or
Burger King you guys probably would be okay with that.
You have a geothermal plant in my neighborhood that if you want to talk about complaints why don't
you go look at how many complaints the geothermal plant has had in the last two months. I don't see
them being brought in here, and I don't see them being shut down or being held in non-compliance.
They have been in non-compliance for 20 years. And why is because they have a lot of money? Is
that why they can operate in non-compliance? It's just, it’s a double standard.
Then also then we're going to talk about, there was a lot of talk about the safety of the buildings, you
know, the residences and stuff. From what I stand the County has said, I think these guys probably
know, that 30% of the buildings in Hawai‘i are in non-compliance with the Building Code. And I
think that you probably find an even higher number of those buildings in Puna, or higher than the
average. So is the Building Code the problem? I mean, the Building Code is the problem. And we see
an affordable house is $244,000. Well, that’s, people can’t do that. It doesn't mean the houses aren't
safe, you know. I've been building houses out there for all my life and, you know, we can build a safe
house for a lot less than $244,000. And, you know, one of the things I have also is sawmills. And we
pick up trees that are bulldozed or cut down for other buildings and developments -.
KERN: Thank you. Three minutes goes fast, I know.
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PETRICCI: Okay.
KERN: Thank you. You all may have a seat. Thank you. Althena, Athena Peanut, Reverend Connie
Young, John Lazor, Mohani Matahari, Linda Howe and Dena Smith Givens. I’ll get you all, would
you all please raise your right hand. Do you swear to tell the truth today before the Windward
Planning Commission?
TESTIFIERS: I do.
KERN: Okay very good. So name and where you live, then you may begin. So Althea, Althea
Peanut.
PEANUT: Athena.
KERN: Athena, sorry. Athena.
PEANUT: Is it on?
KERN: It’s on.
PEANUT: Everyone seems to forget why we're here, and that's because the special permit protects the
people who are already there for previously unauthorized uses; and that's what we're talking about. I
appreciate 95 percent of what Graham has done. But I really don’t appreciate being close to my
neighbor. I’ve lived in, I’ve lived in Sea View, I’ve owned for over 20 years; and I’ve lived there for
about all the time I’ve been here, which is close to 22 years. And so I know Graham well. And he’s
not always candid with us. I was on the Board when he was applying for his permits originally. And it
sounded so innocent, no sound systems, you know, no performances. And, of course, everyone on the
Board always agreed. And I really, I have to resent some of the speakers, you know, typifying us as
being some kind of little terrorist group, the minority terrorists, you know, we’re causing all the
trouble.
Well, I won’t reiterate the long list, but this is what I ask -. Because I do support the work and I know
that it is a very important venue. I go there quite often myself. I love the school and I love many of
the things that they do. I’ve seen a lot of their performances and they are, it’s always a class act.
Where I’m on, I’m currently involved in several other boards and groups that Graham is involved in.
And I will tell you this, Commissioners, I have heard him say in the last six months, in the last three
months, at least six times, his favorite expression that I cannot remember the famous American it’s
attributed to, but it is “rules do not make communities, they break communities.” He always throws
that in. I heard it twice in the last month out of his mouth; and I’ve even seen it in print. So Graham is
the problem. SPACE is not the problem. It’s his influence. And this is what I would ask the
Commission, because I want SPACE to continue, I want the programs to continue, and I even want
Graham to continue but he needs breaks -. And what I’m asking for is what’s really a lot -.
KERN: Thank you.
PEANUT: Major -.
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KERN: I’m sorry, but it’s, three minutes is three minutes.
PEANUT: No sound systems.
KERN: I have to be fair to everybody. I apologize.
PEANUT: And no night activities.
KERN: Sorry, sorry.
PUBLIC: Even Bailey had to read -.
KERN: I’m sorry, please.
PEANUT: No night activities.
KERN: I’m sorry, please. Are there any questions for the testifier? Seeing none -. I apologize, I have
to make it fair again to everybody. It, when I actually say that, it’s amongst Commissioners. I
apologize. Thank you. Reverend Connie Young? No. John Lazor, name and where you live, and you
may begin?
LAZOR: My name is John Lazor. I live in Kalapana Sea View Estates about three blocks away from
SPACE in Bellyacres. I first met Graham eight years ago just as I was moving into the area of Sea
View. He’s the first person I met when I moved there, and had a big influence on my moving into that
community. And I’ve been watching SPACE growing ever since then into something very beautiful. I
see wonderful things happening there. Several of my friends have their children in the school there or
have had their children in the school there. I see them as well-rounded and good children, and learning
many things. I know several of them that are performers there that have learned tumbling, and
juggling, and these kind of things. And my eight-year old son has been watching it and he wants to get
involved and learn tumbling, and gymnastics, and unicycle, and all. And I think it’s a wonderful thing
going on. I know that it may be redundant cause you’ve heard this over and over again -- but as
someone who has been there for eight years that close and watching it happening, I think it’s a
beautiful thing that’s going on there. And whatever it takes to work together to make it continue,
whatever changes have to be made in that permit, special use permit, I believe we need to do what we
have to do so we can work together and let this continue. We need SPACE.
KERN: Thank you. Any questions for the testifier? Seeing none, thank you. Mahani Matahara?
Linda Howe?
HOWE: That’s me.
KERN: Okay, take the microphone, please. Use the microphone. Give me your name and where you
live, and you may begin.
HOWE: I’m Nadia Linda Howe. I live in Kaimu, here, yeah. I’m here, I’m a mom with a 20-year old
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son. And what SPACE did for me and my son, and I’m an outsider too, is more than any State agency,
church, doctor’s office, organization; and I’m deeply grateful. I’m also a doctor. And from the place
of the health of the community, there are studies that show, well, our island is the worst in everything
in terms of doctor stuff. There are also studies that show that for the health of the community for
people, good food, good relationships. SPACE does more for the health of the people than many
doctor’s offices.
We’re in a huge shift right now. Oh, and Jena, I know Jena personally. I don’t know Graham. Jena, I
mean she does her very, very best. So whatever you’ve construed as breaking rules, I know that’s not
been in her heart or in her frame of reference. We’re in a whole shift right now. I keep hearing that
you guys are about the teeth that makes this organization follow the rules. Just looking at the good
that, what he does, the SPACE does from an outsider’s point of view, I’m new here, would it be
possible for you to look at how can you protect this, this SPACE, and what they do for our children,
for the community, for Hawai‘i, and for actually as sort of a landmark, little spark of light for the rest
of the world? I think that’s it. Thank you very much.
KERN: Thank you. Any questions for the testifier? Seeing none, thank you. Dena Smith Givens,
name and where you live, and you may begin.
(Commissioner Au returned at this time.)
D. GIVENS: Hello. My name is Dena Smith Givens, and I live in Bellyacres. I’m also a resident. I
didn’t plan on speaking today so I have nothing prepared. I’m just merely speaking from the heart.
And I don’t even feel the need to explain why this is important to me. I think my daughter did a pretty
good job and I think that our community has done a really good job. And I think you guys have heard
why SPACE should stay in place. I’m not actually here to talk about that.
I’m sitting here today and I felt compelled to speak because I actually have heard quite a bit of
comment about Graham personally, and his name was brought up quite a bit. I would like to clarify
for all of you that Graham Ellis is not the Applicant. Hawai‘i’s Volcano Circus is the Applicant. Yes,
he represents Hawai‘i’s Volcano Circus but only because that group of people trust in him to represent
them and represent them fairly. And he has done that for many years. If there was ever a doubt in his
ability to do that, he would have been replaced. So I just want to state that, to have all of you
remember that, that he’s representing a group of people, that he himself -. You know, as a good friend
I could tell you that he’s a loving father, he’s a dedicated community member, and a man of great
integrity.
And I’ll just share a quick little story. A few months ago we went out to dinner; and it was supposed
to be, you know, just a private quiet dinner in Pahoa. And, of course, being with him is like being with
a I don’t know, like a rock star. Everybody knows Graham. Everywhere you go, people stop and -.
I’m just, I’m used to it now. But we were sitting there having our dinner, and it was at the end, a
beautiful dinner, really nice place, nice family sitting next to us that talked to us a couple of times.
And it was time to go. And so Graham went to pay and the waitress said, oh, no, no, it’s already taken
care of. And we were looking around and we looked over at the family sitting there and they said,
“Thank you so much for all that you do for our community. It’s the least that we could do.” So that’s
the kind of man that we’re talking about. You know, no one is perfect, people make mistakes. But
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let’s remember that this is a group of people he’s representing. Thank you.
KERN: Thank you. Any questions for the testifier?
AU: Mr. Chair? Mr. Chair, question.
KERN: Yes, Commissioner Au.
AU: Thank you for your testimony. You said you live in Bellyacres?
D. GIVENS: Yes, I do.
AU: Okay. Is it appropriate to ask what’s her, I guess, residence status? I mean like do you pay rent
there?
D. GIVENS: Actually I work for the farmers market, so I’m one of the farmers market managers.
Yes.
AU: Okay.
KERN: All right. Thank you all. You all may have a seat. Okay, I’m quarter of. I’ve got a little bit
of time and will stick it out as long as I can. I’m willing to entertain a motion so we can get into
discussion. Or, is there anybody else that would like to testify?
QUEROBIN: Yes.
KERN: Give me your name and where you live, and you may begin.
QUEROBIN: Good afternoon. My name is Cathleen Diane Querobin, Pacheo and Querobin. I was
raised in Kalapana. I’m 70 years old so I know the grassroots of what the people are explaining to you.
You know, before we never had any problems with anyone. Everybody was all pono, you know. So
then we wanted to expand our way of life so we invited many people to come here, you know, the
Education Department, lots of students came in. And they brought with them their bag, their opala.
We all carry something with us. And we accepted that anyway. You know, because this is what our
call is. And as a Hawaiian you must accept each and everyone equally. You as the people in the
Department of Commission, that is your greatest responsibility. Because without any of us, you will
be nothing. And there, they in Seattle, they have their own government. They took their government
back and they are running their government all by themselves. So if Seattle can do it, so can we.
Amen? Okay.
Now for these people here, what aunty is trying to tell you folks is that no more pakalolo on the land.
Cause this is what these people are concerned about. You know, we never had pakalolo but our
grandparents had pakalolo. But we had to be in the back, we had to be shut in bedrooms because it
was none of our business to cross their lines. And I think along the way that’s what happened. The
generation began to cross generation without any respect. All of us here need to go back to our value
system. Look at yourselves in the mirror and look and see deeply who you are and what you’re doing.
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Because if you know who you are and if you know what you’re doing, then we will have some pono
and peace on our land. Because I as the elder, I’m frustrated, you know. I’m frustrated because the
knowledge that we have here are not being used.
And for this reason I took the time to come here to back up my Brother Wallace Ishibashi with all my
heart and soul, because he knows where I have come from. So I beg you, if you want me beg you on
my hands and knees I will, you Commissioners. You guys look at each other, you guys go talk story
once more again, and figure out this decision, cause it’s in your hands. Otherwise, I’m going to come
back again. My husband is going to come back again. All the local boys are going to come back
again. Okay? You guys understand? Do all of you understand?
PUBLIC: I understand.
QUEROBIN: Good.
KERN: All right, thank you.
QUEROBIN: All of you out there, you understand?
KERN: Thank you.
QUEROBIN: Okay.
KERN: Thank you. Any questions for the testifier? Seeing none, thank you. You may have a seat.
Okay, I’m -. This concludes our public testimony portion of this meeting. And I’m willing to
entertain a motion.
AU: Mr. Chair?
KERN: Commissioner Au.
AU: Okay, where are we -.
KERN: Do you want me to-?
AU: No, yeah, you know what, I just got back and I just listened to a few testimonies, so I’ve just got
my bearing here. If I might Mr. Chair -. Okay, Mr. Chair I move to, how shall I word this. Yeah, I
think I might need some help in wording it cause it is -.
KERN: Continue it? Are you going to continue, are you going to, what do you want to do? I guess
you can start to talk about what you’d like to see going and we can work on wording.
AU: Okay. Well, what, the motion that I’d like to make is I’d like to see the Applicant come back, oh
no, no, not now, I meant in six months, come back in six months and submit an amended special
permit.
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KERN: Okay.
AU: And I’d like to continue it.
KERN: So I think that would be something to the extent of we’d continue and they would be allowed
to operate underneath their special use permit with the existing -.
AU: With the existing conditions.
KERN: With the existing conditions that they have, and at the Department’s or Director’s discretion?
So move to, you’d like to move to continue with -?
AU: Yes. I would just like to move to continue it.
KERN: And allow them to operate underneath their current special use permit?
AU: Yes, their existing special use permit, and have them come back, in six months, with an amended
permit.
KERN: Okay. Is there a second?
GONZALES: Second.
KERN: Discussion. Commissioner Moses.
MOSES: Thank you. So I want to be clear then. We are still continuing with the revocation
proceedings, that’s correct? Yes?
KERN: Yeah, well, we’re continuing this. I think if the, it’s a Planning Director initiated revocation.
So I think if they came in with an amended special use permit that was agreeable to the Director we’d
have some room to work, then the revocation would probably be taken away. Is that right, Madam
Director, or is that -? Corporation Counsel, Molly?
LUGO: Yeah, if the Commission continues the revocation action or perhaps defer it, postpone it is the
more appropriate language, then it would be set for an agenda at some point in the future. As the
Planning Department has initiated the action I suppose they could withdraw it if becomes moot in the
meantime. But otherwise the revocation would come up again before the Commission at the date that
we set at this point, which would be, I guess it has been moved six months from now.
KERN: Yeah. And if that were accompanied by an amended permit?
LEITHEAD TODD: Assuming that there is an application for an amended permit that came in within
six months, then I would put on at the same time that I would put that on the agenda, I would put on
under this particular agenda item a request to withdraw the revocation action. But I do need some
clarity in terms of six months. Cause under the conditions of the current permit all that is allowed
really is the performing arts facility. And because we interpreted the educational component to allow
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the charter school, that would be allowed. We have been for the last two years allowing the farmers
market to continue, because it’s how I’ve treated other farmers markets, giving them an opportunity to
come in and become legal. The farmers market is not strictly permitted under the existing permit. So I
would want clarity if the Commission’s intent in the six month deferral is that they would be allowed
to continue the farmers market and if it would be consistent with their representations on pages 7, 8
and 9 of their application, if that is permissible or not, because I need to know if the Commission is
inclined to allow them to have, you know, just related to the charter school and notification to me of
events. The other question is the existing permit requires events to stop at 9, they’re asking that their
events go to 9:30 for the school. And so I need some clarity from the Commission so that I know what
in fact I am enforcing or not enforcing over the next six months.
KERN: Well, the way, okay, thank you, Madam Director. The way I understand it is we’re not
allowed to make amendments to it right now. It is what it is. It would be up to your discretion or
decision to allow the farmers market to continue basically the way that you had been working it out
prior to this. And, we don’t have the authority to allow permitted uses as a Commission. So what we
can do as a Commission is continue this, allow the existing permit to take action, and then at your
discretion work out some of those other uses.
LEITHEAD TODD: Okay. So that there’s clarity for the Commission, as well as to the public and
SPACE who’s here, in order to treat them equally as I have with other farmers markets, they can
continue to run the farmers market, pending them coming in with an amendment to make it legal. And
this is what we’ve done with other people who have had farmers markets. We treated them a little bit
differently on ag land in the sense that I really think it’s kind of a glitch in State law that farmers
markets are not a permitted use on agriculturally classified land, but I can’t change State law. So I try
to work with people who are doing farmers markets. Because the charter school is an educational
component that we consider consistent with the existing permit, then their representations that they
would limit their activities to performances related to the charter school would also be permissible.
But the existing permit says 9 o’clock, so under the terms of the existing permit it would have to be 9.
My concern over the number that they’re listing at 300 is I’ve been informed that the official capacity
under Fire Department regulations for the building, that 300 may exceed that. So that’s a number that
I’d have to address with them. We’ll confirm with the Fire Department what the capacity of the
building is. And so that may be a number that we have to work with; and I’ll work with the Applicant
in terms of what they’re allowed to have in terms of a crowd; and that’s purely for public health and
safety issues for the people who are attending an event there.
KERN: Okay. Makes sense. Thank you, Planning Director. Commissioner Moses?
MOSES: Yes, I have one more question. When was the amendment that they submitted received?
And then it was withdrawn?
KERN: It was the beginning of 2010 if I remember correctly.
LEITHEAD TODD: Jeff, wasn’t it -? I thought we got it back in 2010 and then -.
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DARROW: June of 2010, and then it was withdrawn September of 2010. And the reason for the
withdrawal was so that they could pursue a lease on the adjoining property and come back in with an
amendment permit to increase their area using a portion of the adjoining property.
KERN: Any other discussion?
GONAZALES: I have a question to -.
KERN: Commissioner Gonzales and then Commissioner Moses.
GONZALES: Are there children living on this property too? Are there any children that -?
ELLIS: Eight on the property.
GONZALES: Eight, okay. And, you know, I just want to put in my two cents because I didn’t get to
say anything before we went to lunch. You know, I just want you people to know that, you know, I
don’t think anyone here is against educating the children or feeding the people. It’s some of these
other things that were mentioned in these complaints. You know, I went through them and I read the
stuff and, you know, I see the word nudity, bonfires, alcohol.
PUBLIC: No, no.
GONZALES: I’m just reading what’s in the complaints. I’m not saying they’re true or they’re not
true. But these are concerns of mine. It’s always going to go back to the children. I mean educate the
children, you guys are doing a great job, like Chairman, Ishibashi said. So, you know, if this goes as it
looks like it’s going to go, we’re going to see you in six months. But please comply. Thank you.
KERN: Commissioner Moses?
MOSES: Yes. I just wanted to make a few additional more comments based on the testimony that
have been shared. We listened to you and I hope that you can hear what we’re saying, is we’re not
against what it is you do but our hands are tied. You have to do what you need to do to allow us to
help you. And unless that is done, there is nothing we can do. So I think you’ve had ample time to
submit an amendment based on your needs and you have not done that. Yeah? And so if it is agreed
that we’re going to give you a continuance for six months, if at that time six months you do not have it
I will vote to revoke it. I heard comments about, oh, well, you’ve allowed so and so. Well, I’m new to
the Commission, and I want you to know that I don’t get paid, this is all volunteer for me, and not on
my watch. It will not happen, violation or non-compliance, on my watch. Thank you.
KERN: Thank you. Other -.
PUBLIC: I want -.
KERN: Doesn’t work like that, I’m sorry. Commissioner Au.
AU: I just want to clarify my motion.
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KERN: Yeah.
AU: Okay, so the motion is to continue for an amendment to the Special Permit, however long that
takes, which is what the attorney said six months. So, you know, I guess we would have to give a
timeframe, right?
LUGO: Yeah, it’s up to the Commission how long the Commission wants to continue it. So I would
set a specific date.
AU: Okay. Okay, well, let’s do it within six months because that’s what the Applicant’s attorney is
stating. And I want to not stop the process of revocation. I want to continue it. Because what might
happen, and I could be wrong, what if we go ahead and do this and within six months let’s say, I hope
not, there’s another violation? So at least we keep the proceeding going and we hold him accountable
for any future violations.
KERN: Makes sense. Any other discussion? Commission Ishibashi.
ISHIBASHI: Thank you, Brother Chair. Well, well, well. You guys had to convince me to change
my vote cause I was already to shut this place down already, just based on the violations that already
occurred. Thanks to Bailey we’re looking at that. The problem that I have is that the current special
use permit is in place and we have to maintain, as Commissioners, we’ve got to maintain that process.
So now if we’re going to change that, that’s the question I have for Corp. Counsel. How far or what
latitude if we’re going to have our Director, Planning Director, allow this to continue? So I got stuck
here because I’m willing to overturn in my mind right now and go with the six months. But where’s
the parameters as Commissioners on the current special use permit?
KERN: The way I understand it, and Corporation Counsel correct me if I’m wrong, we cannot
because it’s not in the application in here. It’s basically revoke or not revoke, or continue. So being
that they didn’t submit an application to us that we can actually work it, it’s kind of a cut and dry.
That’s why it’s, the continuance is for the existing permit on its own. And it’s up to the Planning
Director’s discretion to allow the other, you know, like the farmers market and what not to continue for
that period of time. It’s different when we actually get an application. You know what I mean? Does
that answer your question? Kind of?
ISHIBASHI: So it’s okay for us to agree with allowing the farmers market?
KERN: It’s ok -. We’ve been briefed by the Director that that’s what’s going to occur. We’re
basically, as a Commission we’re allowing the existing permit to continue, and it’s her discretion and
decision to let that other part.
ISHIBASHI: Okay, thank you. I understand.
LEITHEAD TODD: Just for clarity the reason I would be continuing the famers market is it would be
equal treatment to the other farmers markets on the islands that have operated without a permit and
we’ve given them time to come into compliance and have not shut them down while they came in to
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do the amendment. So we’d just be treating them the same way I’ve treated other famers markets.
And they’re kind of a unique situation on ag land.
ISHIBASHI: Okay, thank you for that. And for the record I’ll let you guys know that, yeah, this is not
going to be tolerated already. We’ve got to set the example, and I don’t want to use this as the
example going forward. But for future and for the record that all special use permits, they’re going to
have to follow whatever they come up with on a special use permit. Cause we try our best from the
planning to help the community as much as possible. We always try and be compassionate for the
needs of our community. That’s what we’re all about. But we, our hands are tied when we get rules
and regulations that we’ve got to follow. And when the special use permit application, applicant not
following that, then we get a hard time. We no like hurt nobody. We don’t want to hurt nobody. But
going come one time that we’re going to draw the line; and I don’t want to use this as the example.
Cause we’re compassionate here, and we see the need, and we see the necessity.
One thing I want to make clear is that you guys got to amend the fences with the minority. You guys
when jump all over sista or aunty who was talking over there; and that’s what I’m really, really
concerned about. You guys going to have to mend fences with your neighbors there even if they the
minority. But I no like see the kind of stuff that just when happen with aunty. You know, she was cut
off, she wanted to talk extra but you guys when jump all over her. That’s gotta stop, that kind stuff.
Go mend fences with your neighbor and make peace over there, make pono, cause you guys have a
very, very special program going on. Let’s carry that on, but respect your neighbors and respect the
public. And we’re here to try and protect that relationship with the public and you guys. So I
appreciate all the testimony that was shared today, especially my sister Bailey. So thank you.
KERN: Thank you, Commissioner Ishibashi. So I just want to make it clear that, you know, while
we’re continuing the revocation that, that means that you guys are going to be in compliant for it. If in
the event there’s a complaint and it’s found that you’re not in complaint the Planning Department, the
Planning Director could bring you back, even in two months. It doesn’t give you a, you know, free
range for six months. It still has to come back within that, that realm of what is being allowed, and
then with the amendments. So just to make sure that that’s clear. It’s with the condition that you’ll be
compliant to the permit and with the, you know, the discretion the Director is giving. So I just want to
make that clear. Any other discussion?
LUGO: Can we get a date? What would be the hearing date so that -?
KERN: Well, while you’re working on a date, I’ll -
LEITHEAD TODD: Let me, let me clarify.
KERN: Madam Director.
LEITHEAD TODD: Six months is to submit an application to the Department. It does not mean that
in six months it’s on the agenda. Because if they submit the application, then I need time to get
comments from the other agencies and stuff, and that’s typically at least 30 days. And then we’ve got
to meet Sunshine law requirements. So six months is they’ve got to get the application in. Showing
up on the calendar will be subsequent to the six months.
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KERN: Okay, makes sense.
LUGO: I think the revocation that’s being continued would be continued to a specific date if -. I
mean, a hearing on the amendment, right, that will come, you know, after necessary things take place.
But at this point I think that the continuance of the revocation needs to be calendared to a specific date
in six months.
KERN: That’s going to conflict, yeah, between submitting an amendment and actually having the
hearing in six months. If the hearing is in six months and it’s -.
LEITHEAD TODD: My recommendation would be either December or January. I’m looking at six
months and the two months to try get it on the calendar. Daryn, would that work, December or
January?
th
ARAI: December 6 -.
DARROW: The December hearing is December 6, 2012. January is -.
ARAI: December .
DARROW: Okay, December. The January meeting hasn’t been scheduled yet.
LEITHEAD TODD: Okay, so December.
AU: Okay, so, question.
KERN: Commissioner Au.
AU: Okay, so what would happen if the, is there a timeframe for the revocation proceedings? I mean
does it have to stop at a certain time? What if we go past and it’s not submitted and we don’t see it in
December?
KERN: We could continue it or take action.
AU: We’re setting a time for the revocation proceeding, right?
LEITHEAD TODD: You put it on the agenda -.
AU: Okay.
LEITHEAD TODD: If in the interim an application has been submitted but that application can’t meet
the December agenda, what we would have is we would have continued, you know, the request to
revoke and then there’d be a little footnote on it, you know, per Planning Director application has been
submitted, Director request that this be continued until, you know -. And by then we’d have the dates.
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That’s assuming that an application has come in for an amended special use permit. If it has not come
in by December, then I would be asking for revocation.
KERN: Commissioner Moses.
MOSES: I have a question. So why the length of six months? I can’t remember what the reason.
KERN: That’s what the Applicant and their representatives are requesting as far as time to allow them
to put together the amended special use permit so they could become compliant, and we could actually
be seeing an application instead of a revocation. So we kind of left it to give it to them to say how
much time do you need. And they said we could do it in six months.
MOSES: And so if we were to say that we want it in four months can we do that?
KERN: We can do that. I wouldn’t know how realistic that would be. And I have to like, I have to
leave basically like in five minutes so, or five minutes ago. So we could do that. I just, they’re the
ones who said -. Do you want to reply to that real quick.
HONG: Real quickly, the reason why we need six months is because we’re also applying to the
Department of Land and Natural Resources. They have to also schedule a hearing regarding the lease
for the adjacent parcel. That adjacent parcel is going to cover some of the issues that we’re discussing
now, such as parking, such as traffic, such as, you know, some of the buildings on the site. So there
are a lot of hurdles that we have to overcome. One would be the State bureaucracy before we
incorporate that all into our amended special permit application. And we think we can get that done
within six months. But earlier than that it’s highly doubtful because, you know, there’s the County
bureaucracy and there’s the State bureaucracy; and I have got to the say in working with both the State
is a lot worse.
KERN: Does that answer your question?
MOSES: Yes.
KERN: Thank you. Okay, so any other discussion? I’ll give my two cents now. I think obviously
this is a, this is a big deal. You know, I think we have laws in the place to keep us safe, to keep our
neighborhood safe. But we also have laws in place that don’t necessarily serve us. I find it, you know,
sometimes we want to be on the side of the law when it serves us; and other times we want to be on the
other side of it when it doesn’t. And that’s just how it works. You know, we, that’s how we are as
humans. But, you know, one of the beauties of a special use permit is you can define what it is that
you want to do. And I’m sure I can totally understand that ten years ago it was probably a frightening
endeavor to come in front of a Commission, and it might have been different than us where they
worked you know, worked with the Applicants. It might have been, you know, very cut and dry, it’s
either yes or no -- where we see it a little bit different now because we’re kind of a Commission that
likes to work with people and have things make sense and massage out the details so people can be
compliant. We’ve done that many a times. So this is different, this is different.
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But what we can’t do is we can’t punish the neighborhood, the community, the children over a
reforming renegade and other folks that, you know. Cause I respect that -. And I don’t necessarily
always agree with it because there’s, you know, there’s, we do have to follow the laws. But we can
also change those. Unfortunately this isn’t the platform to do that. We can change County law at the
County Council level, and we can work with that to make things better. But, unfortunately, you know,
we’re the ones who issue permits and recommendation so our hands are tied in that regard. And I just
feel that we cannot punish the children, the people who are vendors at the market, people who use that
community facility. It benefits them, it’s huge.
So I ultimately really do urge my Commissioners to, you know, pass this continuance. I feel that the
Planning Department has been very gracious in working with SPACE. I understand that it took this,
you know, basically a tipping point to get us here; and it has worked out a lot of issues. It might not
have been the most, best approach or process for everybody involved but, hey, here we are. You
know, everything happens for a reason. So what we need to do now is move forward, find a solution,
work together to get very clear on the permit that could be coming up here so we don’t run into this in
the future. And know that we as a government body we like to work with the community, we’re very
community-minded; and that’s what it’s all about. We do listen, we are people, we have children, tears
come to our eyes when we see Bailey up there. I mean, it’s great. So I really hope my Commissioners
will vote to send this forward with a, or to approve the continuation of this and actually get something
done to serve the community in perpetuity, hopefully. Thank you.
With that, we’ll take the vote.
DARROW: Thank you, Mr. Chairman. The motion before us is to continue this revocation hearing
until December 6, 2012 to allow the submittal of an amendment under the existing special permit.
Correct?
AU: Yes, correct.
DARROW: Okay. For clarification purposes mainly for staff, this document (Ted Hong’s submittal
received 5/3/12) which had additional conditions, that’s not in the play?
AU: That’s to the discretion, to the discretion of the Director.
DARROW: Okay, just so that we’re clear about that. With that, I’ll take the roll call. Commissioner
Au?
AU: Aye.
DARROW: Commissioner Gonzales?
GONZALES: Aye.
DARROW: Commissioner Ishibashi?
ISHIBASHI: Aye.
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DARROW: Commissioner Moses?
MOSES: Aye.
DARROW: And Mr. Chairman?
KERN: Aye.
DARROW: The motion passes five to zero.
KERN: All right!
The discussion ended at 3:14 p.m.
Respectfully submitted,
Sharon M. Nomura, Secretary
Windward Planning Commission
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