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The Honolulu Advertiser

Updated at 10:34 a.m., Friday, August 30, 2002

Maui church loses bout in expansion bid

By David Waite
Advertiser Courts Writer

A federal judge has declined to order the Maui Planning Commission to issue a permit needed by a church to expand its facilities on agricultural land in Kula.

In a written decision issued Wednesday in Honolulu, senior U.S. District Judge Samuel King rejected Hale O Kaula's request for a court order that would have prohibited the county commission from denying a permit sought by the church.

Church officials had sought a preliminary injunction to overturn the commission's June 2001 decision that denied the church a special-use permit. The permit is needed because county laws do not readily allow a church on land classified for agricultural use.

Attorney Pat Corten of the Washington, D.C.-based Becket Fund for Religious Liberty, a church ally involved in the case, said a letter was mailed late yesterday to the Maui Corporation Counsel asking the county for a written statement on what is being prohibited.

Hale O Kaula pastor David Jenkins said today the church has been clearly told in the past "we cannot build a structure or hold regular services there" but the letter sent yesterday addresses the recent special-use application.

"I think the judge is looking for a current position, something in writing, that says we can't worship there before he rules on the merits of this case," Jenkins said. "At this point, we're happy with the way he's looking at the case."

On July 24, King heard arguments by attorneys for Maui County and Hale O Kaula. Joining the church in fighting the county were the U.S. Justice Department, which intervened in the case, and the Becket Fund, a Washington-based public interest law firm that assists churches with religious freedom cases.

Roman Storzer, Becket's director of litigation, argued that the county violated a new federal law that prohibits discrimination against churches in zoning and land-use cases and bars local governments from imposing a "substantial burden" on the free exercise of religion. The Religious Land Use and Institutionalized Persons Act of 2000 was cited by church officials during the permit process, but rejected by the planning commission, he said.

Hale O Kaula operates out of a small building in Ha'iku and purchased a 6-acre parcel in Kula in 1990 with hopes of expanding. But the county twice denied the church's request for a special-use permit, citing neighbors' concerns of increased traffic and noise, as well as the county's ability to provide fire protection and water service.

Maui Deputy Corporation Counsel Victoria Takayesu said that forcing the county to grant a permit to the church would have "big implications" on county land-use laws. She said local governments would no longer have control over zoning regulations, and churches would have to be dealt with differently from other permit applicants to the point that they receive "preferential treatment."

In his ruling, King said the issue wasn't "ripe" for the court's intervention. "It is not clear that Maui County ever officially prohibited the members of Hale O Kaula only from meeting on the church's property to engage in religious activities," King said. But if county officials try to ban "all religious worship on the (church's) property at any time," King will reconsider the matter.