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HomeMy WebLinkAbout2012-57.2 BRPDInitiatedRevocationSPP1122Communication No. 2012 -57.2 BRMInitiated- RevocationSPPI122.jwd 04 -17 -12 COUNTY OF HAWAII PLANNING DEPARTMENT BACKGROUND AND RECOMMENDATION INITIATOR: PLANNING DIRECTOR REVOCATION OF SPECIAL PERMIT NO. 1122 The Planning Director is initiating a 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 Hawaii'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, Hawaii, TMK: 1 -2 -009: 034 and 1 -2 -038: 050. REASONS FOR INITIATION OF REVOCATION 1. Applicant's Non - Compliance of Conditions of Special Permit No. 1122: The Planning Department has received numerous complaints over the past several years alleging the applicant's non - compliance with approved conditions of Special Permit No. 1122 and alleging certain activities that were not permitted under Special Permit No. 1122 occurring on the subject property. These alleged activities included, but were not limited to, the following: a. holding public performances in which tickets were sold for a monetary fee; b. the construction of several illegal structures; C. a weekly farmer's market which resulted in unpermitted off - street parking; d. a weekly bazaar; e. family and loud parties; f. weddings. Based on investigations conducted by Planning Department staff, it was found that the applicant violated several conditions of Special Permit No. 1122, including Condition Nos. 1, 2, 4 and 5. On March 1, 2010, a Notice of Non - Compliance of Conditions of Special Permit No. 1122 was issued to Graham Ellis of Seaview Performing Arts Center for Education (S.P.A.C.E.). The Notice ordered the applicant 1 Communication No. 2012 -57.2 to comply with certain corrective action, including to "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 farmer's market, swap meet, bazaars, jazz cafe, community movie nights, drama workshops, family parties and group events, weddings, and music and public performance programs, and any other unpermitted non - agricultural business on the subject property." The Notice also ordered the applicant to cease all unpermitted activity until an amendment to Special Permit No. 1122 was applied for and approved from the Planning Commission to allow the additional uses. Lastly, the Notice stated that "Continuation of the above referenced unpermitted activities may result in the Planning Director initiating revocation proceedings before the Planning Commission to revoke Special Permit No. 1122." Since the March 1, 2010 Notice of Non - Compliance of Conditions of Special Permit No. 1122 was issued, the applicant has continued to violate conditions of Special Permit No. 1122 and has not complied with the cease and desist orders issued by the Planning Director. For clarification purposes, you will observe that there are several different entities mentioned throughout the different correspondences associated with the property. These include Seaview Performing Arts Center for Education (SPACE), Hawaii Volcano Circus (HVC), Bellyacres and Village Green Society. The original applicant for Special Permit No. 1122 is Hawaii Volcano Circus (HVC), which is represented continually by Graham Ellis. Ellis is also connected to the other entities mentioned above. Attempts have been made by the applicant (Ellis) to disassociate himself 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 for the violation. 2 Communication No. 2012 -57.2 BACKGROUND INFORMATION 2. Special Permit No. 1122: On September 21, 2001, the Planning Commission approved Special Permit No. 1122 to Hawaii's Volcano Circus (HVC) 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. (Planning Department Exhibit 1 - Special Permit No. 1122) 3. Representations of the Original Proposed Project: The establishment of the performing arts educational center approved by the Planning Commission consisted of the following components based on the representations made by the applicant in the application: a. Proposed Development: The original proposal was to construct an administrative building /pavilion approximately 7,920 square feet in size (110 feet x 72 feet) for rehearsals and training to promote the healthy development of children and the community using the skills and fun of the circus. The space was to be 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 will consist of tents in the area adjacent to the center. The applicant has stated that they will not be presenting public performances in the building. Condition No. 5 reflected this representation made by the applicant, which stated "No public performances shall be allowed on the subject property." b. Classes /Hours of Operation: 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. to 9:00 p.m. Most students would be transported in the company vans, some would arrive on foot or by bicycle and a few in cars. The maximum number of people using the facility would be during the workshops and annual winter and summer camps with about 40 student participants and ten (10) staff. 3 Communication No. 2012 -57.2 C. Existing Structures on the Subject Property at the Time of the Original Application: Within the original Special Permit application submitted in 2001, the existing structures represented by the applicant and identified on the site plan were four farm dwellings, a workshop, generator shed and outbuildings. The applicant stated 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. Condition No. 4 required the applicant to secure building permits, for all existing farm dwellings /buildings, on the remainder of the property within one (1) year from the effective date of the permit (or by September 21, 2002). The applicant did not secure building permits to legitimize the unpermitted dwellings prior to the deadline for Condition No. 4. We are attaching a copy of the original Special Permit application including Figure 3, which is the proposed site plan showing the existing dwellings /structures and the proposed performance center. We are excluding Exhibits A through G, and Figures 1 and 2. (Planning Department Exhibit 2 — Copy of Original Special Permit Application with Figure 3) 4. Administrative Time Extension for Condition No. 4 of Special Permit No. 1122: A one -year administrative time extension until October 22, 2003 was granted by the Planning Director on November 8, 2002 to comply with Condition No. 4, which required the applicant to secure building permits for all existing and unpermitted farm dwellings /buildings on the remainder of the property within one (1) year from the effective date of the permit. (Planning Department Exhibit 3 — Letter Dated October 28, 2002 from the Applicant and Letter Dated November 8, 2002 from the Planning Department) 5. Administrative Time Extension for Condition No. 3 of Special Permit No. 1122: A 5 -year administrative time extension until September 21, 2011 was granted by the Planning Director on February 27, 2006 to comply with Condition No. 3, which required the applicant to secure Final Plan Approval and establish the performing arts educational center within five (5) years from the effective date of the permit. A number of letters were exchanged between the Planning Department and the applicant 0 Communication No. 2012 -57.2 regarding compliance with outstanding conditions prior to the granting of the administrative time extension. (Planning Department Exhibit 4 — Letters Dated February 1 & 21, 2006 from the Applicant and Letters Dated February 8, February 27, and March 7, 2006 from the Planning Department) 6. Final Plan Approval Issued: Final Plan Approval was issued on May 11, 2006 to Hawaii Volcano Circus for the Performance Art Education Center. (Planning Department Exhibit 5 — Final Plan Approval Dated May 11, 2006) 7. Request Regarding Charter School: Ms. Katheryn Clayton -Shay sent a letter requesting information about existing locations that might be utilized for Waters of Life Public Charter School. The Planning Director sent a response letter dated July 28, 2008 identifying the Hawaii Volcano Circus as one location, which would allow up to 40 students and 10 staff members as long as it was associated with performing arts in some manner. (Planning Department Exhibit 6 — Letter Dated July 28, 2008 from the Planning Department) CHONOLOGICAL TIMELINE OF COMPLAINTS RECEIVED 8. Complaints Received: The Planning Department has received numerous complaints since January of 2010 until the present from several complainants. A majority of the complaints were received from one complainant. The following is a summary of the different types of complaints submitted to the Planning Department: a. January 11, 2010: Complaints submitted against SPACE regarding noise, traffic, public safety issues, on- street parking and hours of operation. Complaint was signed by seven (7) people. Also attached were an incident log for the years of 2008 and 2009, and an email with an excerpt from the January 2010 SPACE Newsletter with information about an event called Le Chic III to be held on February 5 and 6, which identified it as an adult burlesque show, containing adult humor and possible nudity. Tickets were sold for a fee to SPACE annual members. b. January 21, 2010: Two complaints submitted against SPACE alleging that unpermitted structures were not removed as represented by the applicant and that additional unpermitted structures were built on the subject property as well as the adjoining State property. Complaint also alleged that the pavilion 5 Communication No. 2012 -57.2 was approved for occupancy of 35 people but events such as the farmer's market and evening shows had over 100 people attending. C. February 6, 2010: Complaint submitted against SPACE alleging that a public performance event was held on the evening of February 5, 2010 that lasted until after 10:30 p.m. with a large bonfire with party lasting until after 1:30 a.m. Complaint alleged that there was a significant amount of noise, liquor, reckless driving, and that the street was blocked by cars parked illegally. d. April 30, 2010: Complaint submitted against SPACE stating that signs were posted on the roads of Kalapana Seaview advertising a "Party for Graham" on May 15. Complaint alleged that everyone was invited and it was open to the public. Complaint was alleging that there would be amplified live music at the party and that this was another way that Graham Ellis was usurping the Planning Department Cease and Desist Order. e. April 30, 2010: Complaint submitted against SPACE alleging they are holding "open mike" where anybody at the bazaars and farmer's market is allowed to play music, sing, yell, and scream using amplification. Attached was a letter from Ellis to Director Yuen dated July 31, 2001 stating "we do not anticipate using amplified music." f. March 39, 2011: Complaint submitted against SPACE alleging unpermitted structures blocking the property's designated fire lane. The complaint also alleged that a large yellow billboard sign was erected. g. June 9, 2011: Complaint submitted against SPACE alleging that a public ceremony was held at the subject property on June 3, 2011 with over 75 people in attendance. This was a memorial service for someone who had recently died. h. June 10, 2011: Complaint submitted against SPACE alleging that there was a performance on the subject property that included drumming, singing, loud crowd noise that included yelling and screaming. Complaint also alleged that parking overflowed into the streets. C Communication No. 2012 -57.2 i. February 12, 2012: Complaint submitted against SPACE alleging that SPACE was planning a party on the weekend of February 24 and 25, 2012 in violation of the Special Permit and the Cease and Desist Order. j. February 13, 2012" Complaint submitted against SPACE alleging that SPACE was planning a performance on February 24 and 25, 2012 in violation of the Cease and Desist Order. k. February 13, 2012: Complaint submitted against SPACE alleging that SPACE was planning an anniversary party on February 24 and 25, 2012 alleging that they were advertising the event on the internet stating that it is by invitation only and that tickets were available via Jenna (the SPACE administrator), and that more people were going to attend beyond occupancy limit for the pavilion. 1. February 17, 2012: Complaint submitted against SPACE alleging that SPACE was planning a private party on February 24 and 25, 2012 that includes entertainment, fund raising and advertising for the event. m. February 23, 2012: Email complaint submitted against SPACE regarding the events planned at SPACE for February 24 and 25, 2012. Attached to the email was an email sent out from a person affiliated with SPACE identifying that tickets were $25 -15 sliding scale for seats and $15 -5 for standing room. It identified a phone number to call to reserve your tickets. n. March 6, 2012: Email submitted by complainants documenting activities that occurred on the evenings February 24 and 25, 2012 at the SPACE property. o. March 7, 2012: Email submitted by complainant summarizing the violations that occurred on February 24 and 25, 2012 at the SPACE property in violation of violation of the Special Permit and the Cease and Desist Order. p. March 24, 2012: Email submitted by complainant informing the Planning Department that the farmer's market was held on Saturday, March 24, 2012 at SPACE in violation of the Cease and Desist Order. q. March 31, 2012: Email submitted by complainant informing the Planning Department that the farmer's market was held on Saturday, March 31, 2012 at SPACE in violation of the Cease and Desist Order. 7 Communication No. 2012 -57.2 April 7, 2012: Email submitted by complainant with five (5) pictures attached showing the farmer's market activity held on April 7, 2012 in violation of the Cease and Desist Order. April 14, 2012: Email submitted by complainant informing the Planning Department that the farmer's market was held on Saturday, April 14, 2012 at SPACE in violation of the Cease and Desist Order. Based on the requirements of the law to protect the confidentiality of complaints, the complainant's personal information have been redacted. (Planning Department Exhibit 7 — Complaints Received Regarding SPACE from January 2010 until the Present) CHONOLOGICAL TIMELINE OF ACTIONS BY PLANNING DEPARTMENT 9. March 1, 2010: A Notice of Non - Compliance of Conditions of Special Permit No. 1122 issued by the Planning Department to Graham Ellis of SPACE. This was after an investigation was conducted by Planning Department staff and violations of conditions of Special Permit No. 1122 were confirmed based on complaints received, site inspections and research. The Notice found non - compliance with 4 conditions of the Special Permit and ordered the applicant to take certain corrective action. (Planning Department Exhibit 8 — Letter Dated March 1, 2010 from the Planning Department) 10. March 9, 2010: A letter was submitted by Graham Ellis of SPACE in response to the listed corrective action in the Notice of Non - Compliance to "Provide documentation that all corrective action has been completed as stated above by March 10, 2010 to the Planning Department." (Planning Department Exhibit 9 — Letter Dated March 9, 2010 from Ellis) 11. March 12, 2010: On March 12, 2010, a meeting was conducted at the Planning Department with SPACE representatives and the Planning Director to discuss questions the applicant had regarding the cease and desist order. In summary, the Planning Director allowed the farmer's market held on Saturdays and the bazaar held on Wednesday nights to continue temporarily while SPACE representatives prepare 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 Communication No. 2012 -57.2 applicant prepared the amendment, especially in light of the economy. The Planning Director also made it clear to the applicant that there were to be no more public performances, advertised public events, or commercial weddings held on -site. 12. March 22, 2010: Letter from the applicant to the Planning Department requesting clarification of entertainment at the farmer's market and bazaar events. Ellis also stated that he could not comply fully with Number 3 of Corrective Action listed in the March 1, 2010 Order. (Planning Department Exhibit 10 — Letter Dated March 22, 2010 from Ellis) 13. March 25, 2012: Letter from the Planning Department to Ellis summarizing the meeting held on March 12, 2010. Additionally, the Planning Director requested that the amendment application be submitted no later than 30 days from the date of the letter (or by April 30, 2010) (Planning Department Exhibit 11— Letter Dated March 25, 2010 from the Planning Department to Ellis) 14. May 19, 2010: Letter from Ellis to the Planning Director requesting additional time to submit the amendment application. A notation at bottom of the letter dated May 26, 2010 that extension was allowed but to submit as soon as possible. (Planning Department Exhibit 12 — Letter Dated May 19, 2010 from Ellis to the Planning Director) 15. July 12, 2010: Ellis submitted an amendment request for Special Permit No. 1122 for Hawaii Volcano Circus and the Village Green Society to change from a performing arts educational center to a self - sustainable community arts center demonstration model and related uses. The application was accepted and distributed to agencies for comments. 16. September 7, 2010: Letter from the Ellis requesting to withdraw the amendment application to in order to include revisions, including adding a portion of the adjoining State parcel (TMK: 1 -2 -9: 15), which would require the preparation of an environmental assessment. The Planning Department acknowledged the request in a letter dated September 27, 2010 (Planning Department Exhibit 13 —Letter Dated September 7, 2010 from Ellis and Letter Dated September 27, 2010 from the Planning Department) E Communication No. 2012 -57.2 17. October 26, 2010: Letter from Jenna Way, Executive Director of SPACE, dated October 26, 2010 to the Planning Director requesting for an exception to the cease and desist order to allow SPACE to hold 6 public performances between October 2010 until April 2011. The Planning Department responded in a letter dated November 4, 2010 stating that the Planning Department cannot allow a use that was strictly prohibited as a condition by the Planning Commission. The letter stated that the Special Permit would need to be amended to allow for public performances. It was also stated that until such amendment is approved, no public performances are allowed. (Planning Department Exhibit 14 — Letter Dated October 26, 2010 from Jenna Way and Letter Dated November 4, 2010 from the Planning Department) 18. August 9, 2011: Letter dated August 9, 2011 from the Planning Department to Ellis regarding the investigation results of two (2) complaints received at the Planning Department for alleged activity on SPACE property. The Planning Department did not find that the alleged ceremony was a "public performance" prohibited under Condition No. 5 of Special Permit No. 112 and closed the matter. (Planning Department Exhibit 15 — Letter Dated August 9, 2011 to Elllis) 19. February 24, 2012: Letter dated February 24, 2012 from the Planning Director to Ellis in response to several complaints regarding a 25th Anniversary event planned for the evenings of February 24 and 25, 2012 at the SPACE Property. The Planning Director stated that it was her decision that this was not a personal party or similar allowance she had made in the March 12, 2010 meeting and that the two -day event should not be held or they would be in jeopardy of receiving a violation notice or in jeopardy of the permit. The Planning Department notified Ellis and his representatives (Attorney Ted Hong's Office) prior to the letter being sent regarding the Planning Director's decision. The Planning Director also took into consideration the information submitted by Attorney Ted Hong (next exhibit) in making her decision. (Planning Department Exhibit 16 — Letter Dated February 24, 2012 from Applicants to the Planning Department) 20. February 24, 2012: Attorney Ted Hong submitted a letter dated February 24, 2012 regarding the anniversary event along with a declaration from Graham Ellis and Jenna Way, and a letter from U.S. Senator Daniel K. Akaka regarding the 25th Anniversary 10 Communication No. 2012 -57.2 event. (Planning Department Exhibit 17 - Letter Dated February 24, 2012 from Attorney Ted Hong with attachments) 21. March 16, 2012: A Notice of Non Compliance of Conditions of Special Permit No. 1122 and Order to Show Cause Before the Windward Planning Commission was issued by the Planning Director on March 16, 2012 to Ellis after a two -day fundraising anniversary event for Belly Acres was held on the subject properties despite previous warnings not to hold the two -day event. The Notice ordered Ellis immediately cease and desist from operating all unpermitted activities including the weekly farmer's market and that all activities permitted under Special Permit No. 1122 were suspended pending the decision of the Planning Commission. (Planning Department Exhibit 18 — Notice of Non Compliance and Order to Show Cause Dated March 16, 2012) 22. April 5, 2012: A Notice of Non Compliance of Conditions of Special Permit No. 1122 and Notice to Proceed with Revocation of Special Permit No. 1122 was issued to Ellis after the Planning Department continued to receive complaints that the unpermitted weekly farmer's market, as well as other SPACE related activities has continued after the issuance of the March 16, 2012 Cease and Desist Order. (Planning Department Exhibit 19 — Notice of Non - Compliance and Notice to Proceed with Revocation Dated April 5, 2012) NON COMPLIANCE WITH CONDITIONS OF SPECIAL PERMIT NO. 1122 The Planning Department has received numerous complaints alleging unpermitted activity and non compliance with certain conditions of Special Permit No. 1122 since January 2010. 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." 11 Communication No. 2012 -57.2 Based on Condition No. 8, the Planning Director initiated investigations into the alleged complaints. The following is a summary of the conditions that were not complied with and unpermitted activities that were verified through the investigations of the Planning Department staff. The results of these investigations were provided within each of the Notice of Non Compliance With Conditions issued to the applicant and are part of the exhibits above. 23. Condition No. lof Special Permit No. 1122: Condition No. 1 of Special Permit No. 1122 states "The applicant, successor or assigns shall be responsible for complying with all stated conditions of approval." When the Special Permit was approved, Condition No. 1 requires the applicant to take the responsibility for making sure they are in compliance with all stated conditions of approval, which has not been the case based on the information provided. 24. Condition No. 2 of Special Permit No. 1122: Condition No. 2 of Special Permit states "The project shall be developed in substantial compliance with representations made by the applicant." The applicant has not complied with this condition as there have been certain activities and improvements that were not represented as part of the original Special Permit application including, but are not limited to, the weekly farmer's market, swap meet, bazaars, jazz cafe, community movie nights, family parties and group events, weddings, music and public performance programs, and the construction of unpermitted dwellings /structures on the subject property. (Refer to Exhibit No. 2, which is the original Special Permit application) 25. Condition No. 4 of Special Permit No. 1122: Condition No. 4 of Special Permit No. 1122 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." Although the applicant has received building permits for four (4) dwellings, a greenhouse, a garage /storage building and the performance art training pavilion, there have been numerous unpermitted structures built on the property. The following is evidence that documents non - compliance with this condition: a. A site inspection of the subject property was conducted on Thursday, February 11, 2010 by Zoning Inspector Scott Leonard. Inspector Leonard 12 Communication No. 2012 -57.2 also observed eleven (11) dwellings, of which only four (4) are permitted. Also observed were other structures that are for agricultural use that may be unpermitted. At this time, there should be no unpermitted structures on the subject property. b. Part of the Correction Action listed within the March 1, 2010 Notice of Non Compliance With Conditions stated the following: "Secure a licensed surveyor, licensed by the State of Hawaii, at your expense, to conduct a survey and provide a full plot plan by May 12, 2010 showing the placement of all structures and measurements depicting how far each structure is from the required setbacks, type of each structure (dwelling, pavilion, school, shed, greenhouse, catchment tank, barn, generator house, sauna bath, etc.), the year that it was built and applicable permit number. You will need to work with the Planning Department and Building Division to resolve all building violations. A site inspection will need to be scheduled to verify compliance." At this time, the unpermitted structures are still present on the property and there has been no resolution with the Building Division. We are attaching a copy of the site plan submitted at the time of the Special Permit application in 2001 and a copy of the surveyed site plan submitted in 2010 as required above. A comparison of these site plans shows a significant increase of unpermitted structures on -site since the approval of the Special Permit. (Planning Department Exhibit 20 — 2001 Site Plan and 2010 Site Plan) C. The following exhibit contains several aerial photos of the subject property identifying the permitted and unpermitted structures on the subject property from mauka to makai. The blue property line is only a reference and not considered 100% accurate on the ground. Also included is a overlay of the 2010 survey on Google Maps of the property. (Planning Department Exhibit 21 — February 2012 Aerial Photos of the Subject Property and Google Map with Overlay of Site Plan) d. The following exhibit is a record of permits that have been issued for the subject property. These include four (4) dwellings, two (2) additions to 13 Communication No. 2012 -57.2 existing dwellings, a greenhouse, a garage /storage building, a shed that was later demolished, and the performance art training pavilion. A check with the Department of Public Works - Building Division identified the occupancy for the performance art training pavilion as "less than 50." This structure is where a majority of the performances and events are held, some including as many as several hundred people. As mentioned above, Inspector Scott Leonard observed eleven (11) dwellings during the February 11, 2010 inspection. Currently, only four (4) dwellings are permitted. At this time, it is unknown which dwellings or structures are permitted versus which are unpermitted. (Planning Department Exhibit 22 — Permit Records for the Subject Property) 26. Condition No. 5 of Special Permit No. 1122: Condition No. 5 of Special Permit No. 1122 states "No public performances shall be allowed on the subject property." The Planning Department has received numerous complaints regarding public performances not permitted being held on the subject property. Some of these events were advertised and tickets were sold and some appear to be free to the public. These include, but are not limited to, concerts, performing arts performances, jazz nights, movie nights, weekly Wednesday night bazaars with entertainment and weekly Saturday farmer's market with entertainment. The Planning Department issued several notices to Ellis ordering him to cease and desist from these types of events, with the exception of allowing the weekly bazaar and weekly farmer's market to continue for a short time until he submitted an amendment application to the Special Permit to allow these types of events. The following exhibits are just some of the advertising the Planning Department has received through complaints or found advertised on the internet: The following was submitted as part of the first complaint received on January 11, 2010. This is a portion of the January 2010 SPACE Newsletter . The portion in question has been enlarged to see clearly the information in the newsletter. The event called Le Chic III was held on February 5 and 6, which was identified as an adult burlesque show, containing adult humor and possible nudity. As a result, the Planning Department issued the 14 Communication No. 2012 -57.2 March 1, 2010 Notice of Non Compliance. (Planning Department Exhibit 23 — Portion of January 2010 Newsletter) b. Additional advertising and ticket information about "The Good Medicine Show" proposed to held at SPACE . The Good Medicine Show was cancelled at SPACE after the March 1, 2010 Notice was issued. (Planning Department Exhibit 24 — Good Medicine Show Advertisements) C. Copy of the June 2008 SPACE Newsletter identifying that certain unpermitted activities had been occurring for some time prior to the Planning Department receiving complaints. These events included the movie night (donation), the jazz cafe (members -$10 and non members -$15), and rental of the facility for family parties or group events. (Planning Department Exhibit 25 — Portion of June 2008 SPACE Newsletter) d. Advertising for an event on December 31, 2009, & February 12 and 13, 2010 at SPACE called "Conference of the Birds." Tickets for these events were $20 for general admission with a no -host bar and pupus. (Planning Department Exhibit 26 — Conference of the Birds Advertisements) e. Advertising for an event on November 20 & 21, 2009 at SPACE called "Masked Ball." Tickets for the event were $25, which included a glass of wine and pupus. (Planning Department Exhibit 27 — Masked Ball Advertisements) f. Advertising for an event on December 12, 2009 and February 19, (unknown year) at SPACE called "The Groove Temple" Tickets for the events were $10. (Planning Department Exhibit 28 — The Grove Temple Advertisements) g. Copy of the January 2011 SPACE Newsletter identifying the Le Chic Show to be held at SPACE on February 11 & 12, 2011 along with the cost of the tickets to members and non - members. This event was held even with the March 1, 2010 Cease and Desist Order was in effect and which was issued as a result of the same show being held a year prior on February 5 & 6, 2010 called Le Chic III, which included an adult burlesque show, containing adult humor and possible nudity. The Planning Department did not receive a 15 Communication No. 2012 -57.2 complaint regarding this event but found the information on the SPACE website recently. (Planning Department Exhibit 29 — January 2011 SPACE Newsletter) h. A March 16, 2012 Notice of Non - Compliance was issued as a result of another Le Chic Event held at SPACE on February 24 & 25, 2012, which was referred to as the "25th Anniversary celebration of Bellyacres at SPACE Performing Arts Center ". The applicant referred to this event as a "private party" and it was by "invitation only." The invitation asked for donations to support the artistic eco- village. The Planning Department notified Ellis and their representative prior to the event and instructed them not to hold the event. Additionally, the Planning Director sent a letter dated February 24, 2012 (via email as well) to Ellis and representatives stating "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 for the facility or property (Belly Acres)." The two -day event was held even after these efforts were made by the Planning Department. Additional information obtained from the Bellyacres Facebook page stated in part "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." The previous Le Chic shows were violations of the Special Permit and tickets were sold for the event. 27. Non - Compliance with the March 16, 2012 Notice: The March 16, 2012 Notice of Non - Compliances ordered the applicant to "immediately cease and desist from 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 farmer's market, swap meet, bazaars, jazz cafe, community movie nights, drama workshops, family parties and group events, weddings, and music and public performance programs, and any other unpermitted non - agricultural business on the 1L Communication No. 2012 -57.2 subject property. This includes any activities that were allowed by the Planning Director in the March 12, 2012 letter." Additionally, the Notice stated that "All activities permitted under Special Permit No. 1122 are hereby suspended pending the decision of the Planning Commission..." After this Notice was issued, the Planning Department continued to receive complaints that the weekly farmer's market, which is not a permitted use under the Special Permit, has continued to operate on Saturdays. The SPACE calendar on the SPACE website continues to advertise SPACE related events as well as the weekly farmer's market. A complainant sent photos of the market operating on April 7, 2012. (Planning Department Exhibit 30 — Photos of Farmer's Market at SPACE on April 7, 2012)\ RECENT ARTICLE FROM ELLIS ON BIG ISLAND CHRONICLE WEBSITE 28. The following exhibit is an article written by the applicant, Graham Ellis, and displayed on the Big Island Chronicle Website on April 17, 2012. ( http:// www. bigislandchronicle .com/2012/04/17 /guest - column -re aing- space -and- the- need - for -a- new - process- for - permitting- community- service -.fps/ #more - 28009) The article clearly reveals the applicant's continued defiance to comply with the conditions of Special Permit No. 1122 and with the Cease and Desist Orders issued by the Planning Director. (Planning Department Exhibit 31 — Article by Graham Ellis Posted on Big Island Chronicle Website on April 17, 2012) LETTERS OF SUPPORT FOR SPACE 29. There have been several letters of support submitted for SPACE. (Planning Department Exhibit 32 — Several Letters of Support) RECOMMENDATION The Planning Director has requested that this matter be brought to the Planning Commission for the revocation of Special Permit No. 1122. This is based on the applicant's continual non - compliance with the conditions of Special Permit No. 1122 as well as non- compliance with several cease and desist orders that have been issued to the applicant. The Planning Department began receiving complaints in January of 2010 and has continued to receive complaints up to the present. Based on Condition No. 8 of Special Permit No. 1122, the Planning Department investigated these complaints and issued notices 17 Communication No. 2012 -57.2 that contained orders and corrective action for the applicant. Condition No. 8 of Special Permit No. 1122 states: "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." The first Notice was issued on March 1, 2010 for conducting public performances, including the Le Chic show, and for activity not permitted under Special Permit No. 1122 including a weekly farmer's market and construction of unpermitted structures. The applicant met with the Planning Director on March 12, 2010 regarding the Notice. The applicant appeared to make efforts to comply by cancelling an advertised event to be held at SPACE on March 5, 2010. The applicant requested of the Planning Director to allow the farmer's market and the weekly bazaar to continue until they submit an amendment application to the Planning Commission to permit these uses. The Planning Director agreed but with the understanding that the amendment application should be submitted shortly thereafter. The applicant submitted an amendment application in July of 2010 but then withdrew the application in September of 2010 to pursue a lease from the State for the adjoining parcel so that their Special Permit area could be expanded to include 4 acres from the adjoining State parcel. The applicant has been involved in preparing an environmental assessment for the lease of State Land and has not resubmitted the amendment application as of this date, which is over two years from when the first Notice of Non - Compliance was issued. As a result of continued complaints and non - compliance of the original Cease and Desist Order issued in 2010, another Notice was issued on March 16, 2012. This Notice ordered the applicant to immediately cease and desist from operating all unpermitted activities on the subject property that were not represented under Special Permit No. 1122, including the weekly farmer's market and weekly bazaar that was allowed by the Director Communication No. 2012 -57.2 "temporarily" so the applicant could submit the amendment application and so it "would not affect people's income while you prepare the amendment, especially in light of the economy ". Additionally, the Planning Director suspended all activities permitted under Special Permit No. 1122 based on Condition No. 8 of Special Permit No. 1122 and ordered the applicant to appear before the Planning Commission in "order to show cause" regarding the continued violations. After the March 16, 2012 Notice was issued, the Planning Department continued to receive complaints regarding the continued operation of the farmer's market at SPACE in violation of the March 16, 2012 Cease and Desist Order. As a result of continued non- compliance, the April 5, 2012 Notice was issued informing the applicant of the Planning Director's initiation of revocation procedures. In summary, a review of the record will clearly show that the Planning Department has spent a considerable amount of time and effort in dealing with the non - compliance of this applicant. It is also clear by the record that there has been no regard by the applicant to resolve these matters with the Planning Department as well as with the surrounding community. It is difficult to believe that the applicant can be trusted to comply with the conditions of Special Permit No. 1122 or amended permit given the past examples of non- compliance. Based on the record, the Planning Director recommends that this Special Permit be revoked by the Planning Commission. 19