Maui congregation looks to law for new church

By Susan Roth
Advertiser Washington Bureau

WASHINGTON — When Maui's Hale O Kaula congregation bought land in rural Kula in 1990 — for recreational activities, an organic garden and, eventually, to build a place of worship — churchgoers had no clue they could end up at the heart of a Supreme Court case.

The nondenominational Christian group, which numbers about 60, first ran into trouble in 1994 when it sought a special use permit for a six-acre parcel at the end of a private cul-de-sac on the lower slopes of Haleakala.

Neighbors objected to plans for a church, parsonage, caretaker's cottage and fellowship hall, citing a lack of infrastructure and the threat to their peace and quiet. The Maui Planning Commission denied its permit application in 1995, saying the surrounding properties would be adversely affected.

Hale O Kaula ("House of Prophets") scaled back its plans and filed a new application for a special use permit in 1999, but neighbors again objected, adding traffic and fire safety to their concerns.

A month ago, a hearing officer recommended denial of the proposal, and the planning commission is to hear the case June 27.

Meanwhile, church members heard about a new law, one that could be tested in the high court in what could be a landmark case for religious expression.

The Religious Land Use and Institutionalized Persons Act of 2000 was passed by Congress last summer and signed by President Clinton in September. Researching the law on the Internet, Hale O Kaula members found the Becket Fund for Religious Liberty, a Washington-based, conservative-backed public interest law firm specializing in religion cases.

The measure prohibits zoning regulations that impose a "substantial burden" on religious expression, unless government can prove the regulations are the least restrictive way to aid a "compelling governmental interest."

"The act will provide protection for one of our country's greatest liberties — the exercise of religion — while carefully preserving the civil rights of all Americans," Clinton said when signing the law.

Four days later, the Becket Fund amended a federal lawsuit on behalf of a small Michigan church, charging that zoning officials had violated the new law.

The church wanted to move into a shopping center where zoning regulations permitted "places of public assembly," but zoning officials said that did not allow religious meetings. The city agreed to settle the case in December, acknowledging that the zoning decision would not stand under the new religious land use law, known as RLUIPA. Since then, the Becket Fund has cited the law in similar cases involving a Reform Jewish congregation in suburban Philadelphia, a Unitarian Universalist church in Akron, Ohio, and a black church in Atlanta, among others.

"In each case, we have claims under both the constitution and RLUIPA," said Roman Storzer, Becket's litigation director. "We believe it serves to codify and interpret the First Amendment."

The firm gets two or three calls every day from religious groups seeking pro bono help on zoning issues, he said.

"We have been strategizing to get a few select cases centering around different aspects of the statute," Storzer said. "Since it's brand new, nobody really knows what it means." He expects one of their cases to wind up in the Supreme Court, and the Becket Fund is trying to establish case law that could be referenced by the court.

Becket Fund lawyers were especially interested in the Maui case because they had not yet handled anything involving agricultural zoning and uses.

Named for Thomas a Becket, the 12th century Archbishop of Canterbury who was killed for defending separation between church and state, the fund bills itself as bipartisan and ecumenical, protecting "the free expression of all religious traditions."

Financed by private donations and foundation grants, it is headed by Kevin Hasson, who advised the Reagan administration on church/state issues and backs school voucher programs that would allow parents to use government financing for parochial school tuition. The firm's advisory board includes Sen. Orrin Hatch, R-Utah; Rep. Henry Hyde, R-Ill.; and University of Utah law professor Michael McConnell, a controversial federal appeals court nominee because of his arguments against the separation of church and state. The board also includes Eunice Kennedy Shriver, sister of Sen. Ted Kennedy, D-Mass., and Rabbi Ronald Sobel of New York's Congregation Emanu-El.

Most members of Hale O Kaula live near the contested parcel of land. They say their current church, Ha'iku Chapel, about 10 miles away, has become inconvenient and too small after 35 years. After an unsuccessful attempt to expand the Ha'iku property, they bought one of about 14 lots on Anuhea Place in Kula.

About the half the lots have homes; the others are used for horse and cattle pastures.

David Jenkins, a church director who has his own lot on Anuhea Place, said the planning commission told church members in 1995 that their situation could change if urban uses come into the rural area. Since then, Kamehameha Schools has developed a campus on 170 acres adjacent to their property, with further building yet to come. On the other side, across a gulch, local developer Everett Dowling is building the Kulamalu commercial center.

"What drove our decision to reapply was that we had all the infrastructure we lacked the first time, and we are surrounded now by urban uses," Jenkins said.

Government agencies, including the water and fire departments, have not registered opposition to the church's latest plan, which would entail adding a 1,888-square-foot second story to an existing building used for church socials. The expanded space would accommodate church services, an office, a library and storage.

Neighbors still oppose the church's plans, calling it yet another threat to Maui's diminishing small-scale agricultural lands. Opponents, including their attorney, Glenn Kosaka, declined to be interviewed, but in letters to the planning commission, they said church activities would disturb and disrupt their rural lifestyle. Rural preservation is a strongly held sentiment of many Upcountry Maui residents opposed to virtually any new development.

Anuhea Place property owner Jon Thuro told the commission that on several occasions, 40 to 50 cars have been up and down the street for evening events that included live music and lasted until 10:30 p.m.

Traffic also is a concern of Frank Caravalho Jr., who said: "Anything drawing the public should not be located at the end of a cul-de-sac on a private road."

In her recommendation to deny the permit request, hearing officer Judith Neustadter Fuqua pointed out that state and county zoning laws allow "unusual or reasonable uses" within agricultural districts if surrounding properties are not adversely affected. Churches are not specifically listed as an exception, and in this case, the hearing officer found Hale O Kaula would "create unacceptable levels of traffic and noise in the isolated agricultural neighborhood and place a burden on public agencies that provide water, police and fire protection."

Jenkins said the church's plans are reasonable considering the recent development in the area and that church buildings are not visible from the other lots.

"To be able to worship on property you own, you shouldn't have to go through an arbitrary process," Jenkins said. "There should be some laws that address that. You shouldn't go before a board and have them say no based on nothing or a few angry neighbors."

Although their public opposition to church plans has focused on protecting the rural nature of their subdivision, privately the other Anuhea Place landowners have accused Hale O Kaula of being a cult. In a letter to the planning commission, Caravalho said he was "intimidated" by "constant monitoring ..." by Hale O Kaula members, and another lot owner, Barbara Luke, said she has limited her visits to her property because she is being "watched" and finds the situation "intimidating and unsettling."

Hale O Kaula is part of the Living Word Fellowship, with nondenominational Christian churches mostly in the West and Midwest. Jenkins said the congregation does not hold any unusual practices or beliefs, except perhaps an interest in healthful foods, restoring agricultural lands to productivity and "taking care of the land."