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The Honolulu Advertiser
Posted on: Thursday, July 25, 2002

Judge to decide if Maui denied church's rights

By Curtis Lum
Advertiser Staff Writer

A federal judge is expected to rule soon on whether Maui County officials violated a federal law when they denied a church's request to build a place of worship in Upcountry Maui.

Members of Hale O Kaula yesterday asked U.S. District Judge Samuel King for a preliminary injunction to overturn the Maui Planning Commission's June 2001 decision that denied the church a special use permit. The permit was needed because county zoning laws do not allow a church on land zoned for agricultural use.

King yesterday heard about five hours of arguments from 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 for Religious Liberty, a Washington-based public interest law firm.

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 six-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.

Storzer said the latest denial was a violation of the law.

"In those instances where land use laws do substantially burden a church's religious exercise, they do have certain rights and those rights are explicit in the First Amendment of the U.S. Constitution," he said.

But Maui Deputy Corporation Counsel Victoria Takayesu said the upholding the law would have "big implications" on county land use laws. She said local governments will no longer have control over zoning regulations, and churches will have to be dealt with differently from other permit applicants.

"We would have to give churches preferential status," Takayesu said.

She also argued that the county isn't discriminating against the church because it isn't being denied the right to use the land for its permitted use. Takayesu added that the church is using county community centers to hold its services.

In May, a federal judge in Philadelphia upheld the constitutionality of the law in another case in which a church was denied the use of an office building as a place of worship. The Becket Fund for Religious Liberty also was involved in that case, which is expected to be appealed.

Correction: Curtis Lum wrote this story. A previous version had a different byline.