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A Hawaiian county is the latest to join municipalities across the country that have felt the sting of the Religious Land Use and Institutionalized Persons Act. The act puts the First Amendment protection of religious freedom into the context of zoning. It prohibits discrimination against religious institutions and assemblies in zoning decisions unless there is a compelling governmental interest. The U.S. Department of Justice (DOJ) has become involved in a number of local zoning matters, including the one in Hawaii, to help uphold the constitutionality of the act. Since the act was signed into law in 2000, it has been invoked in zoning battles ranging from a Philadelphia synagogue’s fight with a zoning board over expansion to a Grand Rapids, Mich., biblical research society battling to apply for a zoning permit. Congregation Kol Ami v. Abington Township, No. 01-1919 (E.D. Pa.); Great Lakes Society v. Georgetown Charter Township, No. 03-4599AA (Ottawa Co., Mich., Cir. Ct.). In Hawaii, what started out as a skirmish over zoning between a church and Maui County may explode into a larger legal battle now that the DOJ has ridden into town under the act’s banner. Hale O Kaula (House of the Prophets) bought six acres of agricultural land in the Kula area of Maui because it had outgrown the environs in which it had worshipped for the past four decades. In 1995, the 60-member church applied to the planning commission for a special use permit to build an 8,500-square-foot facility. The application was denied. In 1998, a smaller agricultural building was constructed. The following year, represented by Charles Hurd of Honolulu’s Hurd & Luria, the church applied for a new special use permit to add a second story for worship. That request, too, was denied. The planning commission concluded that the church would create “unacceptable levels of traffic and noise” and “would burden public agencies to provide water, police and fire protection.” In 2001, reinforcements for the church’s cause came from a Washington, D.C.-based public-interest law firm. The Becket Fund for Religious Liberty and Hurd filed suit, raising religious land use act as well as First Amendment claims. Hale O Kaula v. Maui Planning Commission, No. 01-615 SPK KSC (D. Hawaii). The Becket Fund, which immerses itself in diverse religious issues, has been involved in more than 30 actions under the law, some of which have resulted in suits. “Maui County has adopted the hostility of certain parts of the community that [do] not want this church there,” charged Roman Storzer, the fund’s director of litigation. In January 2002, the county challenged the constitutionality of the law. The Civil Division of the DOJ was allowed to intervene for the limited purpose of defending the constitutionality of the act. On Sept. 8, church members put up a tent and held services. The next day, a letter from the county attorney said those services would probably not be in violation of the law if they were not conducted regularly. In October 2002, Judge Samuel King denied the defendant’s motion to dismiss. He then set strict scrutiny as the legal standard — the most exacting — against which the county’s actions would be judged. He viewed the case in a First Amendment context, regardless of the act. On May 14, Steven Rosenbaum, chief of the Housing and Civil Enforcement Section of the DOJ’s Civil Rights Division, sent a letter to Brian Moto, Maui County’s corporation counsel. It said the filing of a complaint under the religious land use act had been authorized. It requested presuit negotiations within 10 days. It was the 12th such letter the DOJ had sent to a municipality. Neither Rosenbaum nor Moto would comment on those negotiations, but on June 10, the planning commission met in closed session with its attorneys. So far, in its other cases, the DOJ has either successfully negotiated consent decrees or the cases have remained unresolved, according to a DOJ spokesman. It has yet to sue. Trial is now set for Feb. 18.

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