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The Honolulu Advertiser
Posted on: Saturday, December 13, 2003

Arguments begin in Maui church lawsuit

By Mary Kaye Ritz
Advertiser Religion & Ethics Writer

A federal judge yesterday heard several groups' arguments in a closely watched, complex case concerning whether the Maui Planning Commission has a right to stop Hale O Kaula Church from building a chapel. No ruling is expected until after Christmas.

"I'd like to say I was enlightened, but I'm more confused than before," senior U.S. District Judge Samuel King quipped, drawing laughter from the 27 members of the church in Pukalani and others who were in attendance.

King indicated he expects the case to eventually end up at the U.S. Supreme Court.

The proceedings involved a test case of the 2000 federal Religious Land Use and Institutional Persons Act, which requires municipalities to show a compelling interest, such as public safety, before denying a religious group's zoning request.

The federal government joined in the case in support of Hale O Kaula after the church filed a religious discrimination case against the county. But the National League of Cities, the International Municipal Lawyers Association, National Association of Towns and Townships, Alabama Preservation Alliance and three municipalities have filed a "friends of the court" legal brief to support Maui's position.

Hale O Kaula wanted to build a two-story worship center on farmland in Pukalani, but the Planning Commission denied the permit, agreeing with neighbors who claimed it would lead to increased traffic and noise, added burden to county services and a deterioration of the rural atmosphere.

Yesterday's hearing dealt with the church's lawsuit against the Planning Commission in federal court, and a parallel U.S. Justice Department lawsuit. The Justice Department intervened in the case to defend the religious land-use act, and in July filed its own lawsuit against the county and the commission alleging violations of religious freedom law.

The county commission argued yesterday that the U.S. government doesn't have a right to dictate land-use principles to a municipality.

Backing the commission's position was Marci Hamilton, a nationally known attorney and law professor who represents the National League of Cities and other groups. She argued that land use is a local, not federal, issue and that the religious land-use act should be found unconstitutional.

"Land can't move," she said. "It's local by nature."

She also argued that the religious land-use act was "fundamentally unfair" and that under it, religious land owners get special privileges.

James Todd, a Justice Department lawyer, noted that Congress has approved federal intervention at the local level before, with statutes such as the Fair Housing Act. The religious land-use act "is nothing new under the sun," he said.

The church says it has a right to free exercise of religion and also is being supported by the Becket Fund for Religious Liberty, a conservative-backed public interest law firm based in Washington.

Their attorneys argued that the Planning Commission discriminated against the church, and its neighbors mistakenly believe this religious group is a "cult" or "commune." Becket attorney Roman Storzer called it a "prophetic community" modeled after the early Christians. They eat together, play together and many live along the private road leading to the disputed site, he said.

Storzer said the county allowed other churches to obtain special-use permits on agricultural land, so this case was, in effect, religious discrimination.

Madelyn D'Enbeau, Maui County deputy corporation counsel, responded that the Planning Commission did not refuse special-use permits to churches where there was not a public road or county water supply, so the argument did not show they had discriminated against Hale O Kaula.

The Associated Press contributed to this report. Reach Mary Kaye Ritz at 525-8035 or mritz@honoluluadvertiser.com.