(ABOVE PHOTO) Taken from the BLNR submittal, map shows TMK 3rd/1-2-09:15 and the alleged encroachment by The Village Green Society onto state lands.

NEWS BRIEFS

• Hawaii’s Volcano Circus maintains an “innocent position” regarding the state Board of Land and Natural Resources’ recent enforcement action. HVC and The Village Green Society were fined close to $50,000 for “unauthorized land clearing, construction of housing structures and removal of ohia timber” on unencumbered state lands adjacent to the Kalapana Seaview Estates Subdivision.
• Graham Ellis says the circus “did not erect or occupy any of the alleged structures nor is it responsible for any alleged encroachments on state land.” He said the ohia used in constructing SPACE (Seaview Performing Arts Center) was “sustainably harvested” on the Village Green Society TMK.
• HVC and VGS are frustrated by residents who have “repetitively waged complaints against SPACE” over the years, and are also upset with the state for the alleged information leakage to the press before they were told about the DLNR’s initial finding report.

PRIMARY SOURCES

The media release from SPACE:

Despite several attempts by staff and legal counsel of the Hawaii’s Volcano Circus (HVC) to clarify the organizational relationship between HVC and the Village Green Society (VGS), the state Board of Land and Natural Resources (BLNR) waged fines against both organizations on Friday. According to HVC Chairman, Graham Ellis, HVC did not erect or occupy any of the alleged structures nor is it responsible for any alleged encroachments on state land. He also clarified that all ohia used in constructing SPACE was sustainably harvested on the VGS TMK.

Interim Director, Dena Smith, reports feeling frustrated and disappointed at the vindictive efforts by several local residents that have repetitively waged complaints against SPACE over the last several years. She states that this pattern is destructive and counterproductive to building community connection and communication. Another source of frustration, according to Smith, is the information leakage to the press before either HVC or VGS received communication from the DLNR. It took nearly two months for the DLNR initial finding report to be sent to both organizations.

The mission statement of SPACE is “to creatively promote sustainable local community in Puna Makai.” This mission has been put into practice in recent weeks during the aftermath of Tropical Storm Iselle, when SPACE stepped in to offer assistance to local residents and neighbors by serving as a relief station; offering free ice, bathrooms, food & water distribution, and daily potluck dinners. Now with the lava threatening passage to lower Puna, SPACE is again seeking ways to serve the local community.

The focus for this colorful community arts center is on educational programs, particularly those for children and families. Besides being the home of the renowned HICCUP Circus, SPACE is also home to Seaview School, a satellite program of the Hawaii Academy of Arts and Sciences, which serves 30+ students. A new program is being launched this week called “Sacred SPACE,” offering gatherings on Sunday morning to various local spiritual groups.Seaview Performing Arts Center for Education (SPACE) media release on Oct. 3, 2014

The Department of Land and Natural Resources detailed what they say has been an ongoing problem since 2010, calling it a “blatant disregard for compliance with State laws” (submittal excerpt below, Full document here.)

BACKGROUND:

In May 1997 Mr. Graham Ellis, on behalf of the Hawaii’s Volcano Circus (HVC), a Hawaii non-profit corporation, contacted the Hawaii District Land Office (HDLO) to inquire about leasing unencumbered State land identified by TMK: (3) 1-2-Oo9: 015 (Parcel 15) for educational and recreational purposes. HVC prepared and published its Final Environmental Assessment for the proposed use of State lands in the Environmental Reporter in October 1998 with a Finding of no Significant Impact. HVC submitted its application materials to HDLO in November 1998. A memo dated December 29, 1998 transmitted a draft Land Board submittal for the proposed lease to HVC. For reasons that are not clear from the file, the request for a lease was never taken to the Board.

In 2010, HVC submitted another request for a direct lease of same parcel of State land but for a revised use. However, during the intervening years, HVC or persons acting on their behalf constructed several unpermitted structures on Parcel 15. Site inspections conducted in February and October 2010 showed these small bungalow-type structures were built along footpaths extending from property owned by The Village Green Society Ltd. (VGS), a Hawaii nonprofit corporation whose purpose is to hold title to land, collect income therefrom and turn over funds to the HVC. The roadways and foot trails within the VGS parcel, designated as Tax Map Key: (3) 1-2-009:034 (Parcel 34), loop through the abutting portion of Parcel 15, and terminate again in the VGS parcel 34. Based on materials HVC submitted to the County Planning Department in conjunction with their Special Permit Application, it appears that other structures were built in the setback area and/or encroach onto Parcel 15. At the time of the inspection, HDLO staff advised Mr. Ellis that the structures would need to be removed, and that VGS being the adjacent landowner, would be required to apply for a right-of-entry from the State before conducting any demolition activity.

On November 18, 2010, a right-of-entry authorized VGS to enter onto the adjacent unencumbered State lands for the purpose of removing all illegal structures. The right-of-entry provided VGS until December 31, 2010 to remove the buildings and structures. In January 2011, Mr. Ellis informed staff that the structures had been removed. During the subsequent inspection on January 18, 2011, Mr. Ellis pointed out several locations where structures had been removed and assured staff that all the structures on State land were gone.

In April 2014, an investigation of continued encroachment onto State lands was initiated by the Division of Conservation and Resource Enforcement (DOCARE) East Hawaii District Branch as a result of complaints of continued possible encroachment on State land adjacent to the VGS property within the Kalapana Sea View Estates Subdivision.

A more comprehensive site inspection of the property was conducted on May 19, 2014 by DOCARE and Land Division staff. This inspection confirms the report of continued unauthorized activities by the VGS/HVC. The inspection revealed at least eight (8) housing structures within the unencumbered State land (Map and Photos attached as Exhibit B). The investigation report from DOCARE indicated that the housing units were being rented out by Mr. Ellis. In addition to the housing structures, a large area of Ohia forest was cleared out for a makeshift corral.

A revised draft Environmental Assessment was submitted. However. it contained material from the previous DEA and was determined to be outdated. The drafi EA sent back to the applicant for revision. Section 13-221-28(d), Hawaii Administrative Rules (HAR), states: “No person shall destroy, dig, remove, or possess any tree, shrub or other plant, except for noxious weeds, as defined in Chapter 4-6B, HAR, within the premises.” The cutting and removal of ohia timber within the State property is considered a violation of this administrative rule.

Further, Section 13-221-462 prohibits commercial activities on State land without authorization. The alleged renting out of the housing structures is considered a violation of this administrative rule.

As a result of the initial inspection revealing the existence of unauthorized structures on State land and the ensuing right-of-entry for their removal, along with the subsequent inspection showing not only these structures still present, but possible additional structures, there appears to be a blatant disregard for compliance with State laws and regulations by the Hawaii’s Volcano Circus and Mr. Graham Ellis. As such, staff is recommending the Board issue fines in the amount of five thousand dollars ($5,000) as allowed under §17l-6 of the Hawaii Revised Statutes for each structure, roadway and the corral area on or encroaching onto State land. Also, staff is recommending the Board require HVC to reimburse the department for administrative costs and expenses incurred as allowed under 171-6(15), HRS.

In addition, staff is recommending the removal of all unauthorized structures and restoration of all State lands including structure sights, paths, roadways and corrals.DLNR submittal to BLNR

The DLNR had the support of at least three local community members. Big Island Video News received this testimony in advance of the Sept. 26 land board hearing.

For many many years the planning department has stated the violations as it pertains to unpermitted building and set backs from State Land. The Planning Department was promised by the representative parties of Hawaii Volcano Circus that the items would be corrected but as of date they have not been. Then we learn that over 7-8 years ago the State Land and Natural Resources also identified same issues but failed to follow-up until the community reported that the State Land had structures and that trees were missing from the state land to build structures on the property.

This honestly has gone on long enough and the only true resolution is to fine the maximum amount allowed in order for the state to have the funds to clear the structures and re-plant trees that have been removed. Also Hawaii Volcano Circus (and the other company names they go by, I.e. S.P.A.C.E, Volcano Circus etc) should have their Special Use Permit revoked and cease their current operation – they have failed since 2010 at their last hearing to update the special use permit and have simply been buying time all these year until the inevitable happens which is to have the County pull their Special User Permit because of non-compliance.

It is time for the State and the County to clean up this mess finally, so the good neighbor’s of the Sea View Community and surrounding areas can get on with their peaceful lives and not having to keep fighting and / or talking about this – it’s been all consuming and we rely on the State and County to do their job enforcing the laws that protects neighbors and surrounding communities. Farris Etterlee, testimony to BLNR

Aloha Commissioners,

We would like to make this letter short and sweet.

Any organization that would do the actions that the Hawaii Volcano Circus allowed Graham Ellisto do, should be used as an example to make a point that our trees and public lands are not for sale or use by anyone, at this time. They are for the future generation and their value is priceless.

Since there are laws in place that determine the penalties of such violations, we are asking you not to hesitate and fine this organization to the maximum.

Thanking you very much in advance

S.L. Sultan and RJ Hampton