For years, drivers on the old Red Road in lower Puna, the coastal highway running from Kalapana to Kapoho, have been treated to such unusual sights as jugglers practicing their craft on the sea cliffs and unicyclists pedaling unsteadily on the shoulder.
Most, if not all, of the performers are associated, one way or another, with the Village Green Society, Hawai`i’s Volcano Circus, or Bellyacres. The first of these is a hui put together in the 1980s by around three dozen circus performers who settled on 10 acres of undeveloped land sandwiched between the remote Kalapana Seaview Estates subdivision, to the north and east, and state owned land to the west and south. The circus is identified in filings with the state as the beneficiary of income from the Village Green Society’s land. The third, meanwhile, is the informal name for the community of performers that have settled on or near the land owned by Village Green. (Bellyacres is also claimed to be a land trust established in the late 1980s by the Village Green Society, but it is not registered with the state nor is it the owner of record for any real estate in Hawai`i.)
The circus, the society, and the community – all under the apparent (if not acknowledged) direction of self-described circus ringleader Graham Ellis – have brought controversy as well as color to the area. In addition to actions on the state land adjoining the Village Green lot that have resulted in sanctions and fines from the Board of Land and Natural Resources (described elsewhere in this issue), Ellis and his associates for years have run afoul of county rules and regulations.
Most of the recent controversy is over the use of a large administration and pavilion building called S.P.A.C.E. (for the Seaview Performing Arts Center for Education). In 2001, the county issued a special permit – needed because the land is in the state Agriculture district – to allow construction of a 7,900-square-foot facility on about 2.5 acres within the larger Village Green property. The Village Green Society and the circus executed a lease agreement, giving the circus the use of the smaller inholding for 99 years at $10 a year. However, the land leased to the circus has not been subdivided nor is not described by any metes-and-bounds survey, and the lease itself has not been recorded with the state. What’s more, all county property taxes continue to be paid by the Village Green Society.
The permit conditions state that the building is to be used for rehearsals and training “to promote the healthy development of children and the community using the skills and fun of the circus.” Public performances were specifically not allowed, and Ellis had informed the Planning Department that there would be no amplified music.
In 2008, S.P.A.C.E was completed, with a final interior area of around half of what was originally planned. Huge `ohi`a posts support the main two-story pavilion, open to the air on three sides. In addition, the building includes offices, storage areas, a janitor’s closet, and restrooms (connected to a cesspool). A commercial kitchen had been in the plans, but it was not built.
‘Too bad if we didn’t like it’
Almost as soon as the building was completed, neighbors began to express their displeasure with its operations to Ellis and others involved with the facility. When Ellis did not address their concerns, in early 2010, they drafted a memo to the Hawai`i County Council member for the district, Emily Naeole-Beason. The Planning Department had erred in issuing a permit for the facility, they wrote; no similar facility would ever be allowed in a residential district in Hilo, they said. Nor was the building designed to contain the noise it generated, since it is open on three sides with an open roof-line on all four sides. “Significant noise in the form of drums, music, and voices are amplified with electronic equipment to the point where it has been measured at over 70 dB, whereas other residents … are required to have noise no higher than 40 dB in accordance with Hawai`i Administrative Rules.”
A log submitted with the memo describes many of the incidents. One of the earliest occurred in March 2008. After a drumming event, the log states, Ellis met with complaining neighbors: “Graham [Ellis] said they were within the legal noise limits and that it was too bad if we didn’t like it. … He also said he had been here for 20 years and if we didn’t like it, we should leave.”
The Planning Department also began receiving complaints. Among other things, the complainants reported an adult burlesque show, jazz performances, and a weekly farmers’ market were all held at the venue.
Yet other complaints to the county stated that the permittee had not complied with the Special Permit condition that all other structures on the larger 10-acre parcel receive building permits or be taken down. According to the complainants, not only were the unpermitted structures not taken down, still more had been built – including structures on the adjoining state parcel.
On March 1, 2010, the Planning Department sent Ellis a notice of non-compliance with terms of the Special Permit and a cease-and-desist order. The planning inspector, wrote Planning Director B.J. Leithead-Todd, had “observed 11 dwellings, of which possibly five are permitted.” She also instructed him on actions he needed to take to address the problems. Following a meeting between Leithead-Todd and Ellis on March 12, Ellis was allowed to continue operating the Saturday farmers’ market and another Wednesday night bazaar “while S.P.A.C.E. representatives prepare an amendment” to the special permit. As to the other activities, Leithead-Todd prohibited any more public performances, commercial weddings, and advertised public events.
Ellis sought to relax the permit’s absolute ban on entertainment. Couldn’t the circus students continue “rehearsing their skills” during the markets and bazaars? he asked. Also, several of the complaints he was simply unable to address, “since they did not relate at all to S.P.A.C.E. but referred to activities on Village Green Society property over which Hawai`i’s Volcano Circus has no authority.” For that same reason, he said, HVC could not comply with the Planning Department’s requirement that it hire a surveyor to prepare a site map showing all buildings, setbacks, property lines, et cetera.
Despite Ellis’s claim to have no authority over actions on Village Green property, in earlier dealing with the Planning Department he had reported on efforts to obtain building permits for existing structures on the Village Green land. In correspondence with the Planning Department in 2006, for example, Ellis “was pleased to report on our progress” in obtaining building permits for several of the buildings on Village Green property.”
Ellis informed the Planning Department he would be seeking to amend the special permit. In June 2010, Ellis, on behalf of the HVC and Village Green Society, submitted a proposal to allow development of a “Self-Sustainable Community Arts Center Demonstration Model.” The amended permit would allow 12 public performances and 12 “circus show/dinner fundraisers” a year; a weekly farmers’ market and night bazaar; additional uses for the commercial kitchen (still to be built); other events; additional accommodations for “faculty, staff and interns/students;” and up to 72 students in the charter school using the pavilion.
The application included a list of structures on the premises – all of which, under terms of the original special permit, were to have been authorized with building permits by 2002. Structures listed in 2010 included eight “faculty/staff residences;” two “farm buildings;” two student bunkhouses; two greenhouses; two sheds; and a kitchen for staff and students. Of those, just five of the faculty residences and the two farm buildings had received building permits.
In the meantime, Ellis came up with a plan that involved using about four acres of the adjoining 59-acre parcel owned by the state. To do this, he needed a direct lease from the state, for which he prepared a draft environmental assessment. In fact, it was the second time Ellis had proposed to use the state land. Fourteen years earlier, the Office of Environmental Quality Control had published notice of availability of a draft environmental assessment to allow construction of administrative buildings on the land. Although a final EA was also published, that plan was dropped after Ellis apparently decided to apply for the county special permit.
The more recent draft EA for the use of state land stated that the circus would use about half an acre of the land for “overflow parking” for the farmers’ market. Future uses, the DEA stated, might include “enhancement of an educational, vocational, and/or industrial arts center, approximately 12 small and modest bunkhouses, bathhouse or washroom areas…” That part of the state parcel not used would be stewarded by Ellis and his organizations, he said. But, like the earlier plan to use state land, this plan, too, seems to have been dropped.
Ted Hong, attorney for Village Green and the circus, explained this in a later filing with the Planning Department. After submitting a final EA to the state in June, Hong wrote, his clients were informed of the “pending timelines for various mapping information requested by DLNR and the notification and publication process required by DLNR in addition to the request to the Attorney General Office to prepare and execute the Direct Lease in conjunction with and the deadline imposed by the Planning Commission to complete the submittal of a [sic] Amended Special Permit on or before December 2012.” In light of this, he continued, “the Applicant has chosen to direct its resources and effort to complete an Amended Special Permit at this time and pursue the Direct Lease with the DLNR at a later time.”
One unstated reason for the delay might be the fact that since 2010, Ellis and his associates had been suspected of using state land without appropriate permission – resulting in the investigations that led to the Board of Land and Natural Resources’ imposing fines and penalties against Ellis and his organizations in September of this year.
Defiance
In early 2012, the county Planning Department was prodded into action once more after S.P.A.C.E. hosted events that seemed to be in out-and-out, knowing defiance of Planning Department instructions.
Neighbors of S.P.A.C.E. learned of plans for a two-day 25th anniversary party for Bellyacres and Village Green Society on February 24 and 25 and alerted the Planning Department. Although Ellis claimed it was a “private,” invitation-only event – and thus allowed under Planning Department rules for use of the facility – notice of the party on the groups’ website and in other media seemed to contradict this, providing information on how to obtain tickets and their cost, which would be in violation of the county’s cease-and-desist order issued two years earlier.
On February 24, Leithead-Todd advised Ellis to cancel the event, which, in her opinion, would not be a “personal party” or other use of the facility allowed under the special permit. Hong replied the same day, attaching two declarations – one by Graham Ellis and the other by Jenna Way, executive director of the circus – stating that they had invited only members of the Bellyacres ohana and the Village Green Society. Any other publicity “via blogs, community posts, or the like, … was done without our consent or permission.”
The party was held. On March 12, Leithead-Todd mailed to Ellis out a “Notice of Non-Compliance” with special permit conditions and an order to show cause to the Windward Planning Commission as to why the permit should not be revoked. Three weeks later, she issued a second such notice based on S.P.A.C.E. continuing to host a weekly farmers’ market on Saturday mornings.
In May 2012, the Windward Planning Commission heard the Planning Department’s recommendation that it revoke the special permit. The outcome was a decision not to revoke the permit at this time, but to give the circus six months to come up with an acceptable application to amend the permit.
The permit amendment application, filed in November 2012, asks for the ability to hold 12 public performances and 12 evening fund-raisers a year, increase the number of students allowed at the charter school held in S.P.A.C.E., build a certified commercial kitchen, and host an unspecified number of community meetings and “family events,” among other things.
After a confused commission meeting in December 2012, however, the Planning Commission deferred further action until the Planning Department brought the matter back to the commissioners. Among other things, the Planning Department had informed Ellis that he would need to submit additional supporting information for the permit amendment, including, given the increases in traffic associated with expanded uses, a traffic impact study.
A Ho`olaule`a?
According to staff at the Planning Department, it is holding off any recommendation on Ellis’s application to amend the special permit while it awaits submission of the information it has requested. In the meantime, Ellis continues to create problems for the department, even as he has relocated the farmers’ market to “Uncle Robert’s” settlement in Kalapana, several miles away, and has curbed many of the public performances, jazz events, celebrations, and the like at S.P.A.C.E.
Still, just last May, Ellis informed Duane Kanuha, director of the Planning Department, that “our organization is planning to hold a Ho`olaule`a at SPACE on June 6th to benefit the Hiccup Circus.” He reminded Kanuha of the meeting attended by Kanuha, Mayor Billy Kenoi, and Ellis a month earlier, when Ellis “requested confirmation that organization a Ho`olaule`a at S.P.A.C.E. would not be in conflict with our existing special permit.” Ellis asked Kanuha “to confirm that this is the case.”
“I respectfully wish to remind you,” Ellis concluded, “that our organization … still has not received a hearing date before the Planning Commission” on the application to amend the special permit. “Our organization needs to fundraise or we will have to terminate certain popular community services that we now provide for lower Puna residents.”
Kanuha replied by email on May 13. First of all, he notes, Ellis had sent his original email request to County Council member Dru Kanuha (no relation to the planning director), who had then forwarded it on to Duane Kanuha.
“I certainly do recall our meeting in the Mayor’s office,” Duane Kanuha wrote, “and you did not request confirmation that organization a fundraising event at S.P.A.C.E. would not be in conflict with your existing Special Permit, nor did I confirm any such request. What you did say was that fundraising opportunities were curtailed due to the ongoing permitting issues with S.P.A.C.E.”
“You know as well as I that S.P.A.C.E. is under consideration to have your existing special permit revoked by the Planning Commission due to multiple and various violations of that permit, including but not limited to, unauthorized fundraising activities. That being the case, there is no way that I would have confirmed that your proposed fundraising event at S.P.A.C.E. could be sanctioned.”
“With regard to your amended special permit application, you know perfectly well that there are certain requirements that have to be met before the application can be scheduled for Planning Commission [consideration] and those informational requirements have not been forthcoming.”
A Way Around?
Shortly after the onset of his troubles with the Planning Department in 2010, Ellis helped to organize the Hawai`i Sustainable Community Alliance, a group that advocates for, among other things, relaxed building standards for rural dwellings on agricultural land.
In 2013, the HSCA helped develop a bill “relating to sustainable living” that would, in Ellis’s words, “allow for the permitting of ecovillages, farms that accommodate interns studying agriculture, non-commercial composting toilets, grey water systems, and other research that serves to better prepare ourselves and our children for the inevitable effects of climate change.” Last legislative session, the Senate version of the bill, SB2274, made it through both chambers but died in conference.
Although the bill would have allowed for relaxed building standards and expanded uses of parcels smaller than 15 acres in the state Agricultural and Rural land use districts, it would still have required permittees to obtain approvals from the county planning authorities.
Volume 25, Number 5 November 2014
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