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Hale O Kaula v. Maui Planning Commission

Hale O Kaula is a small congregation affiliated with the Fellowship of the Living Word that has been holding worship services in the small Hawaiian community of Haiku since 1960. But the existing facility is quite small (on less than a half-acre) and inadequate for the faith community of about 60 people. After trying unsuccessfully to buy property that would allow the church to expand in place, the congregation bought a piece of agricultural land in 1991.

The new location, in the Kula area of Maui, consists of nearly six acres, and in addition to providing adequate space for all of the congregation's activities, allows it to pursue a ministry characteristic of its denomination: agricultural activity drawn from the Old Testament of the Bible. The new location is also more central to the residences of the members, who live primarily in the Makawao, Pukalani and Kula areas of Maui.

In 1995, they applied for a special use permit to build an 8,500 square foot facility, including a sanctuary, fellowship hall, restrooms, kitchen and offices, but the request was denied. In mid-1998, an smaller agricultural building was constructed on the property. In December 1999 a new special use permit application was filed, asking permission to add a second story to the structure, and to use the facility for religious services. In the months that followed, church members held meetings with nearby residents to explain the scope of the project, and a Planning Commission hearing officer was assigned. On April 30, 2001, the hearing officer recommended denial of the special use permit application, after refusing to consider the applicability of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA).

On June 27, 2001, the Maui Planning Commission voted unanimously to turn down the church's request for a special use permit, after the county attorney told Commission members that they did not need to consider the provisions of RLUIPA in reaching a decision.

For a detailed discussion of the case, see our Memorandum in Support of Applicant's Exceptions to Hearing Officer's Report and Recommendations, filed on May 26.

On September 19, 2001, The Becket Fund filed a lawsuit on behalf of the church in U.S. District Court in Honolulu, charging the Maui Planning Commission, Maui County, and the State of Hawaii with violating multiple provisions of RLUIPA, as well as depriving the church of rights guaranteed to it under the U.S. and Hawaiian constituions. An amended complaint was filed on October 5.

The amended complaint adds the members of the Maui Planning Commission as defendants in their individual, as well as official, capacities. They were served with the complaint as they gathered for their regular meeting in Wailuku on October 9.

A motion for a preliminary injunction, and a memo in support of the motion, were filed on October 29, 2001.

At one point, the Maui government had discussed the possibility of a settlement, but several county officials resisted such a move, and the County Council decided on November 13, 2001 to delay taking such a step.

On January 30, 2002 Judge Samuel P. King granted the state defendants' motion to dismiss claims involving state officials, based on 11th Amendment immunity. He also denied the state's motion for partial judgment in the case. The case continues against the county defendants.

On February 20, 2002, attorneys for the county filed their opposition to the motion for a preliminary injunction, and included a statement contending that RLUIPA "is patently unconstitutional." On May 13, 2002, the U.S. Department of Justice asked to intervene in the case in order to defend the constitutionality of RLUIA. On May 16, Judge King granted the Justice Department's motion to intervene.

A hearing on the church's motion for a preliminary injunction was held in the court of U.S. District Judge Samuel P. King in Honolulu on July 24, 2002. The all-day hearing included appearances by Becket Fund attorneys Roman Storzer and Derek Gaubatz and Justice Department attorney Adam Szubin, who argued for the constitutionality of RLUIPA. On August 28, 2002, Judge King issued an order denying the preliminary injunction on grounds that the requested relief was "not ripe for judicial decision." He concluded, "Between now and the hearing on a permanent injunction, the parties should be able to clarify what exactly is being prohibited. If, in the meantime, the Plaintiffs request -- and Maui County officially prohibits -- all religious worship on Plaintiffs property at anytime (without assessing or examining facility expansion or new construction), then that matter would appear to be then ripe."

On August 29, 2002, Hale O Kaula attorneys Charles Hurd and Anthony Picarello sent a letter to Maui attorneys James and Victoria Takayesu, asking the county to "stipulate to the following proposition: 'Because Hale O Kaula has been denied a special use permit, Hale O Kaula is currently prohibited from merely using the Anuhea Place Property and its unmodified, existing structures as a place to gather regularly for religious worship.'

Because this appears to have been the County's consistent position on the matter, we do not expect that the County will have any difficulty agreeing to this stipulation." It asked for an immediate response. Over the following week, several follow-up letters and phone calls also sought clarification, and all met with no response from county officials.

On Sunday, September 8, church members put up a tent on the Anuhea Place property and held worship services. The event was well covered by local media (see links below).

Finally, late in the day on Monday, September 9, County Attorneys Victoria Takayesu and Madelyn D'Enbeau sent a letter responding to the Becket Fund's earlier calls and letters. It acknowledged that "your past Sunday worship would probably not violate" Hawaii law "if it is not a 'regularly conducted church service'."

The letter also noted that under Chapter 205 of the Hawaii Revised Statutes (HRS), "farming is permitted, irrespective of whether it is done for commercial, subsistence, educational, cultural, or religious reasons. Thus, your desire to pursue activities related to your 'Joseph Ministry' is unfettered by State law." And it indicated that "there is no restriction on prayer or religious instruction" as a part of "open area recreational uses." The letter asks that the church "provide the specifics" of other proposed activity, and promises that the county "will then seek the guidance of the State Attorney General's office and/or the State Land Use Commission in determining whether or not your requested use would comply" with state law.

In a related development, on Friday, September 6, 2002 U.S. Magistrate Judge Kevin S.C. Chang issued an order denying the county's motion to disqualify all of Hale O Kaula's lawyers, including those from The Becket Fund. "The Court is well aware of the need to balance the right to a fair trial and the right of free speech. In balancing the two interests, based on the record presented, the Court finds that Defendants have failed to show that the statements made on the Becket Fund's web sites have 'a substantial likelihood of materially prejudicing' this proceeding."

On September 13, 2002, attorneys for the church sent another letter to the Maui County Corporation Counsel, providing the additional detail the county had requested regarding proposed religious activities on the property.

On October 24, 2002, Judge King issued a ruling on Maui's motion to dismiss the lawsuit, granting it in part, and denying it in part. He dismissed individual defendants, but not the county itself, and said that the case would be decided using the judicial standard of strict scrutiny, the toughest, most exacting test a court may use. "Maui County may not deny a special use permit to plaintiffs to operate a church if doing so imposes a substantial burden on plaintiff's free exercise of religion, unless the county demonstrtes a compelling interest, and denying the permit would be the least restrictive means of achieving that goal," he wrote. He indicated that he will decide the case as a First Amendment free exercise question, and not under RLUIPA. "Regardless of RLUIPA," he said, "the task before the court is strict scrutiny." Judge King also ruled that Maui was not covered by 11th Amendment immunity, and therefore will be liable for damages if Hale O Kaula wins the case.

On March 19, 2003, Judge King held a hearing on Maui's motion for summary judgment. He announced from the bench that he would deny the motion, although he indicated that he regarded the RLUIPA claims as duplicative of the First Amendment Free Exercise claims. A written order was issued on March 24, 2003.

In a letter dated May 14, 2003, the U.S. Department of Justice notified Corporation Counsel Brian Moto that the Civil Rights Division had concluded an investigation of the Hale O Kaula case, and that "based on the results of that investigation, the Assistant Attorney General has authorized the filing of a Complaint against the Maui Planning Commission in the United States District Court for the District of Hawai'i. The Complaint alleges that the Maui Planning Commission violated RLUIPA by imposing or implementing a land use regulation in a manner that imposes a substantial burden on Hale O Kaula's religious exercise that is neither in furtherance of a compelling governmental interest nor the least restrictive means of furthering that compelling governmental interest." The letter, signed by Housing and Civil Enforcement Section Chief Steven H. Rosenbaum, states that DOJ is "prepared to enter into pre-suit negotiations in an effort to resolve this matter prior to the filing of the Complaint." A resulting consent decree "should provide for injunctive relief prohibiting future violations of RLUIPA," and "must also resolve the denial of the Hale O Kaula Church's special use permit violation."

The Maui County Planning Commission considered the matter in executive session on June 10, but ultimately decided not to negotiate a settlement with DOJ. On July 10, 2003, the Justice Department filed a complaint against Maui County. It notes that the County "has granted special use permits to other denominational churches in districts zoned for agricultural use," and that "other entities or activities that have greater or equal impact on the levels of traffic and noise and/or burden on public agencies are either permitted as of right or regularly granted special use permits by the [county]."

The complaint charges that Maui County's "denial of the Church's special use permit application violates Section (2)(a)(1) of RLUIPA," and "imposes a substantial burden on the religious exercise of the Hale O Kaula Church and its members." The burden "does not further a compelling government interest," and the County's action involves "individualized assessments . . . within the meaning of Section 2(a)(2) of RLUIPA," according to the complaint. Finally, it charges that the County's action "continues to discriminate against Hale O Kaula Church on the basis of religion or religious denomination in violation of . . . RLUIPA."

At a hearing on July 18, 2003, Judge King denied Maui's motion to dismiss the lawsuit filed by Hale O Kaula Church. On August 6, state Judge Shackley Raffetto granted Hale O Kaula's motion to stay state court action until after the federal trial, currently scheduled for February 2004.

On September 29, 2003, Hale O Kaula filed a Motion for Partial Summary Judgment, arguing that there is no question that the county's denial of a special use permit constitutes a "substantial burden" on the church. Moreover, neither of the county's asserted compelling interests, "preservation of agricultural land" and "fire safety," meet that high standard in this case. A hearing on the motion will be held in federal court in Honolulu on December 12, 2003.

The Becket Fund entered the case on behalf of Hale O Kaula on April 19, 2001. The church is represented locally by attorney Charles Hurd, of Hurd & Luria in Honolulu. (Hale O Kaula v. Maui Planning Commission, et al., Civil No. 01-615 SPK KSC, U.S. District Court for the District of Hawaii)

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