Spirit of Aloha Temple et al v. County of Maui et al

Filing 200

ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT re: 182 , 184 . Signed by JUDGE SUSAN OKI MOLLWAY on 7/20/2018. (afc) WRITTEN ORDER follows hearing held July 2, 2018. Minutes of hearing: ECF 199 .

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
)
)
)
)
)
)
)
)
)

SPIRIT OF ALOHA TEMPLE AND
FREDRICK R. HONIG,
Plaintiffs,
vs.
COUNTY OF MAUI,
Defendant.

CIVIL NO. 14-00535 SOM/RLP
ORDER DENYING MOTIONS FOR
SUMMARY JUDGMENT

ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT
I.

INTRODUCTION.
Plaintiff Fredrick R. Honig bought land on Maui zoned

for agricultural use.

Honig leased the land to Plaintiff Spirit

of Aloha Temple, which, in turn, applied for a Special Use Permit
to build a church and hold religious events on the land, uses not
allowed without a Special Use Permit in the agricultural zone in
which the land was located.

After the requested Special Use

Permit was denied, Plaintiffs filed this action, asserting
religious discrimination.

Counts I, II, IV, V, VI, VII, VIII,

and IX against Defendant County of Maui remain for adjudication.1
Before the court are motions for summary judgment filed
by Plaintiffs and the County of Maui.

1

Both motions are denied.

No Count III is asserted in the Complaint.

II.

BACKGROUND.
Well Being International Inc. was incorporated in

February 1993 for the purpose of “perform[ing] research and
instruction for individual and global peace, harmony, and
health.”

It specializes in “Yoga, Meditation, Stress Management,

Vegetarian Diet, and Drug Free Living.”
# 2512.

ECF No. 183-2, PageID

Honig was listed as its president and one of three

directors.

Id., PageID # 2513.
In September 1994, Honig purchased property on Haumana

Road in Haiku, Hawaii.

See ECF No. 183-2, PageID #s 2479-87.2

For State Land Use District purposes, the property was mostly
designated for agricultural use, with a portion designated for
conservation use.

With respect to the Paia-Haiku Community Plan

and County of Maui zoning, the property was designated for
agricultural use.

See ECF No. 183-3, PageID # 2584.

Honig knew

the property was designated for agricultural and conservation use
when he purchased it.

Honig Depo. at 43.

In fact, Honig had

asked his realtor to locate agricultural land for him to
purchase.

Id.
In March 2003, Honig transferred the property to the

Trustee of The Frederick R. Honig Revocable Living Trust Dated

2

The Haumana Road property has had two numerical
designations, but there is no dispute that it is the same
property. See Videotaped Deposition of Frederick R. Honig, ECF
No. 183-2, PageID # 2426.
2

October 1, 1996.

The document stated that Honig was also known

as Swami Swaroopananda.

See ECF No. 183-2, PageID #s 2503-10.

In July 2002, Honig, on behalf of Well Being
International, applied for the trade name of Maui Gay Weddings,
stating that the nature of the business was “Counseling and
commitment ceremonies.”

ECF No. 183-2, PageID # 2518.

In April

2003, Honig renewed the Maui Gay Weddings trade name on behalf of
Well Being International.

Id., PageID # 2520.

At the same time,

Honig, on behalf of Well Being International, applied for the
trade name of A Marriage Made in Heaven, again stating that the
purpose of the business was “Counseling and commitment
ceremonies.”

Id., PageID # 2522.

A little more than a month

later, Honig, on behalf of Well Being International, applied for
the trade name of Maui Wedding Planners, this time stating that
the nature of the business was “Wedding Planning & Services.”
Id., PageID # 2524.

In July 2007, Honig, on behalf of Well Being

International, renewed the trade name of A Marriage Made in
Heaven.

Id., PageID # 2525.

Honig admits that these trade names

were created so that Well Being International could advertise for
weddings or sacred unions.
PageID # 2439.

See Honig Depo. at 73, ECF No. 183-2,

Between September 8, 1996, and December 5, 2015,

over 500 weddings were performed on Honig’s property.
No. 183-16, PageID #s 3037-51.

3

See ECF

In November 2005, Honig signed a lease of the Haumana
Road property to Well Being International on behalf of himself as
lessor and as the president of the lessee.

The lease rent was

$3,400 per month and the lease ran through September 30, 2010.
The lease provided that use of the property was “To Be in
accordance with Agricultural zoning and Maui County ordinances.”
ECF No. 183-2, PageID #s 2550-56.

At the time the lease was

signed, the property was apparently owned by the Trustee of The
Frederick R. Honig Revocable Living Trust Dated October 1, 1996,
not Honig individually.

See ECF No. 183-2, PageID #s 2503-10.

In September 2007, Spirit of Aloha Temple, Inc., was
incorporated; Honig was listed as its Senior Minister.

Id.,

PageID #s 2557-72; Decl. of Frederick R. Honig ¶ 4, ECF No. 1851; PageID # 3123.

Honig and Spirit of Aloha Temple practice

“Integral Yoga,” which “integrates the eight branches of Yoga
into a holistic approach to experiencing Unitive Consciousness.”
Honig Decl. ¶ 5, ECF No. 185-1; PageID # 3123.

For purposes of

the present motions, the County of Maui does not contest the
validity of Honig’s religion or the sincerity of his beliefs.
Thus, William Spence, of the County of Maui, stated during his
deposition that the County was expressing no opinion as to the
sincerity of Plaintiffs’ religious beliefs.

See Deposition of

William Spence at 130, ECF No. 185-5, PageID # 3206.

He did

note, however, that some of the proposed uses might not be

4

religious in nature, such as a commercial wedding business or
helicopter flights.

Id. at 131-32, PageID #s 3207-08.

The

number of weddings held on the property causes the County of Maui
to characterize Plaintiffs as conducting a commercial wedding
venture on the property.
The County of Maui also believes that the Special Use
Permit was not actually sought for church functions.

For

example, the County of Maui points out that Honig’s sister,
Meenakshi Honig, who testified that she is a board member of
Spirit of Aloha Temple, has never seen the lease for the
property.

See ECF No 183-10, PageID #s 2925, 2932.

She further

testified that there are no regular congregations of church
members on the property.

Id., PageID # 2936.

She also testified

that performimg weddings is “not essential to the belief system”
of Integral Yoga.

Id., PageID # 2937.

On October 12, 2007, Spirit of Aloha Temple, through
Honig, applied for a Special Use Permit for the property to be
used for a “Church, church operated bed and breakfast
establishment, weddings, special events, day seminars, and
helicopter landing pad.”

ECF No. 183-3, PageID # 2592.

The

application stated that the property was currently being used for
a “Botanical Garden & Agriculture.”

Id.

On June 30, 2008,

Spirit of Aloha Temple amended the Special Use Permit application
to include the development of the Spirit of Aloha Temple,

5

stating, “Church activities would include a weekly service,
classes, special events, day programs and weddings.”
No. 183-3, PageID # 2593.

ECF

The court notes that, at the time of

the 2007 application, the property appears to have been leased to
Well Being International, not Spirit of Aloha Temple.

See ECF

No. 183-2.
On August 28, 2008, the County sent the Special Use
Permit application out for agency comment.

See Concise Statement

¶ 12; Plaintiff’s Concise Counter Statement, ECF No. 193, PageID
# 3799 (admitting same).
On March 30, 2010, the Planning Commission for the
County of Maui held a hearing on the Special Use Permit
application.

See Findings of Fact, Conclusions of Law and

Decision and Order of Maui Planning Commission.
3, PageID # 2583.

See ECF No. 183-

The Maui Planning Commission voted 5 to 3 to

deny the application, reasoning that a proposed heliport was not
allowed under the Maui County Code, that many of the buildings on
the property lacked permits, and that agricultural property was
not intended for commercial purposes.

Id., PageID #s 2586-87;

2590.
On May 17, 2010, Plaintiffs unsuccessfully sought
reconsideration of the denial of the Special Use Permit, arguing
that the denial violated the Religious Land Use and
Institutionalized Persons Act of 2000 and proposing that the

6

permit be amended to include only a church and related church
activities.

Id.. PageID # 2587-88; 2590.

In December 2011, Honig, as Trustee of The Frederick R.
Honig Revocable Living Trust, leased the property to Spirit of
Aloha Temple, Inc., for $5,000 per month through December 1,
2019.

ECF No. 183-2, PageID # 2575-78.

The lease stated that

the property was to be used “As a Botanical Garden[] in
accordance with Agricultural zoning and Maui county ordinances.”
Id., PageID # 2575.

Honig says that Spirit of Aloha Temple did

not look at any other properties before leasing the Haumana Road
property.

According to Honig, the property is sacred and is the

world’s “most perfect property.”

See Honig Depo. at 142-43, ECF

No. 183-2, PageID # 2456; Honig Decl. ¶ 27, ECF No. 185-1; PageID
# 3128 (“The Property itself is uniquely sacred to me and the
Spirit of Aloha Temple.”).

He says that, in the 23 years that he

has owned the property, the spiritual significance of it has
grown through the spiritual activity that has occurred on the
property.

See Honig Decl. ¶ 22, ECF No. 185-1; PageID # 3127.

This spiritual activity includes religious services, sacred
events such as weddings and baptisms, and classes on spiritual
beliefs.

Id. ¶ 31, PageID # 3129.

In addition, the founder of

Integral Yoga, Sri Swami Satchidananda, blessed the property in
1997.

Id. ¶ 23, PageID # 3127.

Honig says that Plaintiffs do

7

not own other property where they can practice their religion.
Id. ¶ 47, PageID # 3132.
In September 2012, the County of Maui issued Honig
three violation notices for building a structure without the
proper permit, conducting transient vacation rentals on property
where such rentals are not allowed, and conducting commercial
weddings on property where such weddings are not allowed.

The

County of Maui ordered Honig to cease and desist the conduct.
See ECF No. 183-8, PageID #s 2877-78.

The County of Maui and

Honig ultimately settled these matters.

See id., PageID #s 2877-

83.
On November 21, 2012, Spirit of Aloha Temple, through
Honig, submitted a second Special Use Permit application to use
the property for church activities.

ECF No. 183-6, PageID #2803.

Spirit of Aloha Temple sought to use the property for a classroom
on weekdays; a weekly church service; and educational,
inspirational, and spiritual events, including “Hawaiian Cultural
Events, such as Hula performances, Seminars on Hawaiian Plant
Based Nutrition, Cultural Music Performances, and Spiritual
commitment ceremonies including Weddings.”

Id., PageID # 2811.

The Maui Planning Department issued a report to the
Maui Planning Commission that recommended approving the 2012
Special Use Permit application with conditions.
7, PageID # 2842-62.

See ECF No. 183-

The staff report examined the applicable

8

statutes and regulations, noting that the proposed use was not
permitted in a state agricultural district.

Id., PageID # 2849.

It noted that, under section 205-6 of Hawaii Revised Statutes,
“unusual and reasonable uses” were allowed when a State Land Use
Commission Special Use Permit was approved.
and 2854.

Id., PageID #s 2849

The staff report indicated that there were

“guidelines” for determining whether there was an “unusual and
reasonable use.”

Id., PageID # 2854.

These “guidelines” were

set forth in Hawaii Administrative Rules § 15-15-95.
report examined all of the “guidelines.”

The staff

In relevant part, the

staff report indicated that the proposed use satisfied the second
and third guidelines, and that the proposed uses would not affect
surrounding properties or unreasonably burden public agencies by
requiring provision of roads, sewers, water, drainage, school
improvements, or police and fire protection.

Id., PageID

#s 2854-55.
The staff report ultimately recommended granting the
requested Special Use Permit with conditions:
Classroom
- Events permitted for a total of 24
attendees (including employees/staff) and
that classes shall be limited to four (4) per
week usually between 10 AM and 4 PM
Church Service
- Events permitted for a total of 24
attendees (including employees/staff) and
that a church service shall be limited to one

9

(1) per week usually between 10 AM and 2 PM
on Saturdays
Church Related Special Events Such as
Weddings/Inspirational Events Shall be
Limited by the following:
Maximum number of church related events per
year - 48
- 24 events out of a total of 48 events may
have a total of between 25 to 40 participants
including employees/staff
- Events permitted for a total of 25 to 40
participants are limited to two (2) per month
- The remainder of 24 church related events
shall be limited for up to 24 people,
including employees/staff
- In no case may there be more than four (4)
church related events per month
- Shuttles must be employed to transport
participants for events with 25 or more
people
- Church related events shall be held between
10 AM and 8 PM
Id., PageID # 2844.
The Maui Planning Commission then examined the 2012
Special Use Permit request, receiving testimony supporting and
opposing it.

Concerns were raised with respect to the

limitations and dangers of Haumana Road, pedestrian and child
safety, weddings, parties, and alcohol on the property.

See

Concise Statement ¶ 35; Counter Concise Statement ¶ 35 (admitting
same).
Specifically, the Maui Planning Commission’s Findings
of Facts and Minutes noted that: (1) Jessica Caudill had
expressed concern that the proposed uses would dramatically
increase traffic on Haumana Road (where cars have to pull off the

10

road to let other cars pass), would have negative effects on
pedestrian safety, and raised child safety concerns by bringing
strangers to the area; (2) Antonio Piazza had expressed concern
that Plaintiffs had been using the property for unpermitted
commercial wedding operations even after Honig’s earlier request
to conduct weddings on the property had been denied, increasing
traffic in the area and creating danger because partygoers drank
alcohol; (3) Nancy Gilgoff had expressed concern that, because
alcohol was being served at events, there was increased traffic
and an increased likelihood of vehicle and pedestrian accidents;
(4) Stephanie Gilgoff had expressed concern with respect to
increased traffic, road safety, and the impact on the quiet
neighborhood; (5) William Knowlton had recalled that earlier
cliffside weddings had blocked ocean access, and there were past
illegal commercial weddings, transient vacation rentals, and yoga
classes; and (6) Daniel Mizner had noted that the proposed uses
were inconsistent with the agricultural zoning and had expressed
concern about roadway safety because the road was only 10 feet
wide at points.
proposed permit.

Lani Starr, on the other hand, supported the
See ECF No. 185-9, PageID #s 3280-82; ECF No.

183-9, PageID #s 2905-13.
Robbie Naish, Plaintiffs’ neighbor, told the Planning
Commission in March 2010 that low-speed accidents occurred on the
road all the time, that he had had near misses, and that he had

11

personally seen two overturned cars on the narrow Haumana Road.
He complained that people drove too fast on the road and noted
that there was no place to pull off the road.

ECF No. 183-4,

PageID #s 2708-09.
Various departments also commented on Plaintiffs’
Special Use Permit application.

For example, although the Maui

Police Department did not object to the issuance of the permit,
it noted that the road to the Haumana Road property was “narrow
with no lane markings and no street lights.”

It further noted

that the road was so narrow that it “could not accommodate two
vehicles to pass through the road at the same time.”

The Police

Department recommended that the road be widened because, if cars
parked on the road, emergency vehicles would not be able to pass
them and reach the property.
lighting be installed.

It also suggested that street

ECF No. 183-9, PageID # 2894-95.

The Historic Preservation Division of the Department of
Land and Natural Resources also commented on the 2012 Special Use
Permit application, noting that its approval was needed before
any of the proposed activities began.

See ECF No. 183-9, PageID

# 2898-99.
The State of Hawaii Department of Health, Safe Drinking
Water Branch, noted that it had been dealing with Honig for
several years.

It stated that, if the average daily number of

people visiting the proposed temple over 60 days was 25 or more,

12

the temple would be required to comply with all requirements for
public water systems.

That is, such requirements would be

mandatory if the temple had more than 60 events in a year with 25
or more attendees.

ECF No. 183-9, PageID # 2900-01.

Officials

also expressed concern about the quality of the water at the
temple and recommended testing the water.

Id., PageID # 2902.

The State of Hawaii’s Office of Planning stated:
Pursuant to HRS Chapter 205, lands in the
Agricultural District are limited to
agricultural uses and activities that support
agricultural uses. The proposal calls for
non-agricultural uses. In addition, business
uses may bring additional traffic to the
property. These non-agricultural uses will
eventually impact the existing botanical
garden activities, since the school,
weddings, and other commercial performances
may be more profitable than the botanical
garden activities on-site. Other potential
impacts may result from large numbers of
people to groundwater resources related to
the need for wastewater capacity.
Id., PageID # 2903.
The Maui Planning Commission denied the 2012
application, with 3 commissioners expressing concerns about
roadway safety, as well as about the impact on health and human
safety.

See ECF No. 185-9, PageID # 3283.

Honig asked the

Commission to rescind that decision; the Spirit of Aloha Temple
then orally amended its permit application.
vacated its decision.

Id., PageID # 3286.

13

The Commission

To address the Commission’s concerns, Spirit of Aloha
Temple offered to reduce the number of special events to 8 per
month with a maximum of 10 cars per event.

Two of the 8 events

could have up to 40 people, with the remaining 6 events having up
to 24 people.

Seven of the 8 events would conclude by 4 p.m.,

with the last event concluding by 8 p.m.

Id., PageID # 3287.

Even with these amendments, the Commission once again denied the
application, stating:
The Commission finds that there is evidence
of record that the proposed uses expressed in
this Application should they be approved
would increase vehicular traffic on Haumana
Road, which is narrow, winding, one-lane in
areas, and prone to flooding in inclement
weather. The Commission finds that Haumana
Road is regularly used by pedestrians,
including children who use the road to access
the bus stop at the top of the road. The
commission finds that granting the
Application would adversely affect the health
and safety of residents who use the roadway,
including endangering human life. The
Commission finds that the health and safety
of the residents’ and public’s use of Haumana
Road is a compelling government interest and
that there is no less restrictive means of
ensuring the public’s safety while granting
the uses requested in the Application.
ECF No. 185-9, PageID # 3288-89.
Like the staff report, the Maui Planning Commission
noted that section 205-6 of Hawaii Revised Statutes allows
certain “unusual and reasonable uses” within agricultural and
rural districts, in addition to uses for which the property is
classified.

Id., PageID # 3289.
14

The Maui Planning Commission

stated that, to determine whether a proposed use is an “unusual
and reasonable use,” section 15-15-95 of Hawaii Administrative
Rules sets forth “guidelines.”

Those guidelines address whether

the proposed use “would not adversely affect surrounding
property” and “would not unreasonably burden public agencies to
provide roads and streets, sewers, water, drainage, and school
improvements, and police and fire protection.”

Id., PageID

# 3290 (quoting Haw. Admin. R. § 15-15-95(2) and (3)).
The Commission concluded that two guidelines in
section 15-15-95 were not satisfied.

Specifically, the

Commission said that the proposed uses “would adversely affect
the surrounding properties” given concerns about the safety of
Haumana Road, and that the proposed uses would increase traffic
and burden public agencies in charge of roads and streets, and in
charge of police and fire protection.

Id., PageID # 3290.

The Commission then stated:
The Religious Land Use and Institutional
Persons Act (“RLUIPA”), 42 U.S.C.
§2000cc(a)(1), requires that a state or local
government may not impose or implement a land
use regulation in a manner that imposes a
substantial burden on the religious exercise
of a person, including a religious assembly
or institution unless the government
demonstrates that the burden is in
furtherance of a compelling governmental
interest and is the “least restrictive means”
of furthering that interest. The Commission
found that the county has a compelling
interest in protecting the health, lives, and
safety of the public. The Commission further
found that Haumana Road did not meet the
15

standard requirements regarding width of
agricultural or rural roads, and additionally
that it was one lane in sections and winding,
which impaired sight distance and
accessibility. The Commission further found
that there were compelling public health and
safety issues implicated by the likely
significant increase in traffic attributable
to the uses proposed by the Application,
creating conditions that would be foreseeably
dangerous or potentially deadly to drivers
and pedestrians, including children walking
on the road to and from the bus stop at the
top, using the small rural roadway. The
Commission found that inclement weather would
increase the likelihood of accidents and
human injuries or death. The Commission
found that these compelling public health and
safety issues could not be adequately
addressed by the implementation of any permit
condition or use restriction.
ECF No. 185-9, PageID # 3291.

The Commission denied the

application, effective April 8, 2014.

ECF No. 185-9, PageID

# 3292.
On November 17, 2016, the Circuit Court of the Second
Circuit, State of Hawaii, affirmed the Maui Planning Commission’s
decision.

See ECF No. 183-14.

The state court said that it

could not “find clear error in the Maui Planning Commission’s
factual findings or error in its legal conclusions.

Moreover,

the Commission’s decision does not appear to be arbitrary,
capricious, or an abuse of discretion.”

Id., PageID # 3005.

state court further noted:
In reviewing the findings of fact, the
Commission’s decision, the record on appeal,
and applying Maui County Code § 19.510.07 and
Hawai`i Administrative Rules § 15-15-95,
16

The

there is more than sufficient basis for the
Planning Commission’s denial of the Special
Use Permit.
The Applicants-Appellants argue it was
clear error for the Commission to base its
denial on traffic and road safety concerns.
The Commission had more than enough evidence
to be concerned about traffic and road
safety. Numerous individuals expressed
concern about traffic and road safety.
Id.

The court takes judicial notice that no appeal was filed

with respect to the circuit court’s ruling.

See

http://hoohiki.courts.hawaii.gov/#/search (input case ID
2CC161000103).

Moreover, Plaintiffs admitted at the hearing that

the state-court case is now final.
Spirit of Aloha Temple says that the Maui Planning
Commission has treated other groups more favorably.

For example,

the Maui Planning Commission approved a Special Use Permit for
Ali`i Kula Lavender Farm to conduct tourism activities (including
agricultural classes and workshops), to operate a gift shop, to
conduct wedding ceremonies, and to have catered receptions and
other special events.

See ECF No. 185-13, PageID # 3402.

However, the road to that farm is about 18 feet wide.

See ECF

No. 185-14, PageID # 3412; ECF No. 185-5, PageID # 3229.

Randall

S. Okaneku, Plaintiffs’ proffered civil engineer expert, says he
measured the road at various points and determined that it ranges
from 12 feet wide to 20 feet wide.

See Decl. of Randall S.

Okaneku ¶ 27, ECF No. 185-2, PageID# 3144.
17

Haumana Road has an

average width of about 15 feet and narrows to 10 feet at many
spots.

See ECF No. 183-4, PageID # 2708; ECF No. 185-9, PageID

#s 3282.
Spirit of Aloha Temple says that Hale Akua Garden Farm
Retreat Center received a Special Use Permit on agricultural land
from the Maui Planning Commission for a well-being education
operation with overnight accommodations.
PageID #s 3470, 3484, 3494.

See ECF No. 185-16,

Spirit of Aloha Temple says that

access to that farm retreat is via Door of Faith Road, which is
approximately 20 feet wide, with short stretches that are
narrower.

Id., PageID # 3473; ECF No. 185-5, PageID # 3225.

Honig attaches three pictures of parts of Door of Faith Road to
demonstrate its narrowness at spots.
3134-35.

ECF No. 185-1, PageID #s

Again, the width of Door of Faith Road may make access

to this property distinguishable from that of Haumana Road, which
is on average 15 feet wide, narrowing to 10 feet wide at spots.
See ECF No. 183-4, PageID # 2708; ECF No. 185-9, PageID #s 3282.
III.

SUMMARY JUDGMENT STANDARD.
Under Rule 56 of the Federal Rules of Civil Procedure,

summary judgment shall be granted when “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).

Fed. R. Civ.

See Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134

(9th Cir. 2000).

The movants must support their position
18

concerning whether a material fact is genuinely disputed by
either “citing to particular parts of materials in the record,
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including
those made for the purposes of the motion only), admissions,
interrogatory answers, or other materials”; or “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.”

Fed. R. Civ. P. 56(c).

One of the principal purposes of summary judgment is to identify
and dispose of factually unsupported claims and defenses.
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
Summary judgment must be granted against a party that
fails to demonstrate facts to establish what will be an essential
element at trial.

See id. at 323.

A moving party without the

ultimate burden of persuasion at trial--usually, but not always,
the defendant--has both the initial burden of production and the
ultimate burden of persuasion on a motion for summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102
(9th Cir. 2000).
The burden initially falls on the moving party to
identify for the court those “portions of the materials on file
that it believes demonstrate the absence of any genuine issue of
material fact.”

T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors

19

Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp.,
477 U.S. at 323).

“When the moving party has carried its burden

under Rule 56(c), its opponent must do more than simply show that
there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986) (footnote omitted).
The nonmoving party may not rely on the mere
allegations in the pleadings and instead must set forth specific
facts showing that there is a genuine issue for trial.
Elec. Serv., 809 F.2d at 630.

T.W.

At least some “‘significant

probative evidence tending to support the complaint’” must be
produced.

Id. (quoting First Nat’l Bank of Ariz. v. Cities Serv.

Co., 391 U.S. 253, 290 (1968)); see also Addisu, 198 F.3d at 1134
(“A scintilla of evidence or evidence that is merely colorable or
not significantly probative does not present a genuine issue of
material fact.”).

“[I]f the factual context makes the non-moving

party’s claim implausible, that party must come forward with more
persuasive evidence than would otherwise be necessary to show
that there is a genuine issue for trial.”

Cal. Arch’l Bldg.

Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468
(9th Cir. 1987) (citing Matsushita Elec. Indus. Co., 475 U.S. at
587).

Accord Addisu, 198 F.3d at 1134 (“There must be enough

doubt for a ‘reasonable trier of fact’ to find for plaintiffs in
order to defeat the summary judgment motion.”).
20

In adjudicating a summary judgment motion, the court
must view all evidence and inferences in the light most favorable
to the nonmoving party.

T.W. Elec. Serv., 809 F.2d at 631.

Inferences may be drawn from underlying facts not in dispute, as
well as from disputed facts that the judge is required to resolve
in favor of the nonmoving party.

Id.

When “direct evidence”

produced by the moving party conflicts with “direct evidence”
produced by the party opposing summary judgment, “the judge must
assume the truth of the evidence set forth by the nonmoving party
with respect to that fact.”
IV.

Id.

ANALYSIS.
While the bulk of the legal analysis in the motions

concerns the application of the strict scrutiny or rational basis
tests, this court does not reach the application of those tests.
Instead, in several instances, the court identifies questions of
fact that must be resolved before the law is applied.

In other

instances, the parties simply fail to establish what the
applicable test is.

The result is that the court denies both

summary judgment motions.
A.

The Record and Arguments Do Not Fully Address Res
Judicata and Collateral Estoppel Issues.

The court has an overarching concern as to the effect
that should be given to the state-court judgment.

The court

raised this concern at the hearing on the motion, asking the
parties whether the jurisdictional Rooker-Feldman doctrine
21

applied.

The court now concludes that that doctrine is

inapplicable because this proceeding was filed before the state
court issued its order and judgment.

See Exxon Mobil Corp. v.

Saudi Basic Indus. Corp., 544 U.S. 280, 284 (2005) (“The
Rooker–Feldman doctrine . . . is confined to . . . cases brought
by state-court losers complaining of injuries caused by
state-court judgments rendered before the district court
proceedings commenced and inviting district court review and
rejection of those judgments.”) (emphasis added).
However, the court remains concerned that it should be
giving full effect to the state-court judgment, perhaps under the
res judicata or collateral estoppel doctrines, which are related
to the Rooker-Feldman doctrine but are not jurisdictional.
Those doctrines preclude parties or their privies from
relitigating claims or issues that were or could have been raised
in an earlier action in which there is a final judgment on the
merits.

See Allen v. McCurry, 449 U.S. 90, 94 (1980).

It

appears that the County of Maui may have been raising res
judicata or collateral estoppel when it argued that Hawaii’s
circuit court had already determined that the denial of the
permit was not arbitrary, capricious, or an abuse of discretion
and that the compelling interest test was satisfied.
182-1, PageID # 2392.

See ECF No.

While this court does not require the

incantation of “magic words” like “res judicata” or “collateral
22

estoppel,” the County of Maui may not prevail by simply raising
the issue without any analysis of the law or any discussion of
how the specific facts of this case fit within that law.

The

Maui Planning Commission denied the Special Use Permit
application, concluding that it did not violate RLUIPA.
Plaintiffs appealed that decision to Hawaii’s circuit court,
which determined that the Maui Planning Commission did not err in
its legal conclusions and did not abuse its discretion.

Without

knowing whether claims and/or issues in this case were or could
have been raised in the appeal to Hawaii’s circuit court, this
court cannot determine whether it is or is not giving full effect
to the state-court decision.

For that reason, the motions are

denied.
Even turning to the merits of the claims, the court
concludes, for reasons discussed in the present order, that no
party has demonstrated entitlement to judgment as a matter of
law.
B.

Count I--Substantial Burden Under RLUIPA.

Both parties seek summary judgment with respect to
Count I, which asserts a violation of RLUIPA.

Specifically,

Count I asserts that the County of Maui’s imposition and
implementation of land use regulations to deny a Special Use
Permit for “CHURCH ACTIVITIES” amounted to a substantial burden
on Honig’s and Spirit of Aloha Temple’s religious exercise, in

23

violation of 42 U.S.C. § 2000cc(a).

In addition to denying the

motions with respect to Count I based on the court’s concern
about giving the state-court judgment effect, the court finds
that there are other questions of fact that preclude summary
judgment with respect to Count I.
In relevant part, § 2000cc(a) states:
(1) General rule
No government shall impose or implement a
land use regulation in a manner that imposes
a substantial burden on the religious
exercise of a person, including a religious
assembly or institution, unless the
government demonstrates that imposition of
the burden on that person, assembly, or
institution–
(A) is in furtherance of a compelling
governmental interest; and
(B) is the least restrictive means of
furthering that compelling governmental
interest.
42 U.S.C.A. § 2000cc(a).
The Ninth Circuit directs that RLUIPA analysis proceed
in two sequential steps:
First, the plaintiff must demonstrate that a
government action has imposed a substantial
burden on the plaintiff’s religious exercise.
Second, once the plaintiff has shown a
substantial burden, the government must show
that its action was “the least restrictive
means” of “further[ing] a compelling
governmental interest.”
Int'l Church of Foursquare Gospel v. City of San Leandro, 673
F.3d 1059, 1066 (9th Cir. 2011).

Courts “examine the particular
24

burden imposed by the implementation of the relevant zoning code
on the claimant’s religious exercise and determine, on the facts
of each case, whether that burden is ‘substantial.’”

Id.

“RLUIPA’s ‘substantial burden’ inquiry asks whether the
government has substantially burdened religious exercise . . . ,
not whether the RLUIPA claimant is able to engage in other forms
of religious exercise.”

Holt v. Hobbs, 135 S. Ct. 853, 862

(2015).
RLUIPA itself does not define “substantial burden.”
Nance v. Miser, 700 F. App’x 629, 631 (9th Cir. 2017); San Jose
Christian Coll. v. City of Morgan Hill, 360 F.3d 1024, 1034 (9th
Cir. 2004).

The Ninth Circuit has held:

[A] substantial burden must place more than
inconvenience on religious exercise. For a
land use regulation to impose a substantial
burden, it must be oppressive to a
significantly great extent. That is, a
substantial burden on religious exercise must
impose a significantly great restriction or
onus upon such exercise. A substantial
burden exists where the governmental
authority puts substantial pressure on an
adherent to modify his behavior and to
violate his beliefs.
Int'l Church of Foursquare Gospel, 673 F.3d at 1067 (quotation
marks, alterations, and citations omitted).

When a religious

institution has no ready alternatives, or when the alternatives
require substantial delay, uncertainty, and expense, the complete
denial of a permit application “might be indicative of a
substantial burden.”

Id. at 1068.
25

In other words, a burden need

not be insuperable or insurmountable to be substantial.

Id. at

1069.
In Guru Nanak Sikh Society of Yuba City v. County of
Sutter, 456 F.3d 978, 981 (9th Cir. 2006), the Ninth Circuit
considered a substantial burden challenge under RLUIPA, holding
that the denial of a permit substantially burdened the
plaintiff’s religious exercise.

The plaintiff had applied for a

conditional use permit to allow the construction of a temple on
residential land.

Id. at 982.

The planning division recommended

to the planning commission that the conditional use permit be
granted with conditions.

The planning commission denied the

permit, citing concerns that resulting noise and traffic would
interfere with the neighborhood.

Id.

The plaintiff then acquired a different property zoned
for agricultural use and sought a conditional use permit to allow
the construction of a temple and assembly hall on the second
property.

That second property was surrounded by other

agricultural land, where the plaintiff proposed to hold worship
services and weddings.

Id.

The plaintiff agreed to various

conditions articulated by county and state departments, including
a “no development” buffer area, landscaping, and holding all
ceremonies indoors.

Id. at 983.

The planning commission

approved the permit, but neighboring property owners appealed.
The Board of Supervisors then reversed the approval, reasoning
26

that the property had been agriculture and should remain so, that
the proposed use of the property would not promote orderly
growth, and that the proposed temple would be detrimental to
surrounding agricultural uses.

Id. at 983-84.

Guru Nanak Sikh Society challenged the denial of the
permit.

The United States District Court for the Eastern

District of California invalidated the permit denial, and the
Ninth Circuit affirmed.

The Ninth Circuit determined that the

County of Sutter had imposed a substantial burden on Guru Nanak
Sikh Society.

The Ninth Circuit expressly stated that it was not

deciding whether the failure of a government to provide a
religious institution “with a land use entitlement for a new
facility for worship necessarily constitutes a substantial burden
pursuant to RLUIPA.”

However, it determined that, under the

circumstances presented, the County of Sutter had imposed a
substantial burden given two considerations:
(1) that the County’s broad reasons given for
its tandem denials could easily apply to all
future applications by [the plaintiff]; and
(2) that [the plaintiff] readily agreed to
every mitigation measure suggested by the
Planning Division, but the County, without
explanation, found such cooperation
insufficient.
Id. at 989.
Spirit of Aloha Temple contends that the denial of a
Special Use Permit allowing its church on agricultural land is
similarly a substantial burden.

The permit at issue involves its
27

second attempt and, like the plaintiff in

Guru Nanak Sikh

Society, Spirit of Aloha Temple says it is willing to comply with
all reasonable conditions to get the permit.

It thus argues that

the County of Maui has imposed a significantly great restriction
on its exercise of religion by placing substantial pressure on it
to modify its behavior, including by creating delay, uncertainty,
and expense through a complete denial of the permit.
Church of Foursquare Gospel, 673 F.3d at 1067-68.

See Int'l

Although there

do appear to be parallels to Guru Nanak Sikh Society, this case
presents questions of fact that prevent this court from
concluding on the present record that the denial of the Special
Use Permit imposes a substantial burden under RLUIPA.
Courts of appeal outside the Ninth Circuit have held
that a plaintiff’s own actions may be relevant with respect to
the substantial burden analysis.

In Livingston Christian

Schools. v. Genoa Charter Township, 858 F.3d 996, 1004 (6th Cir.
2017), the Sixth Circuit stated:
[W]hen a plaintiff has imposed a burden upon
itself, the government cannot be liable for a
RLUIPA substantial-burden violation. For
example, when an institutional plaintiff has
obtained an interest in land without a
reasonable expectation of being able to use
that land for religious purposes, the
hardship that it suffered when the land-use
regulations were enforced against it has been
deemed an insubstantial burden.
The Fourth and Seventh Circuits have similarly ruled that, when a
plaintiff obtains an interest in land without a reasonable
28

expectation that it will be allowed to build a religious
institution on the property, any burden imposed on the religious
institution is self-imposed and not a substantial burden caused
by a government entity.

See Andon, LLC v. City of Newport News,

Va., 813 F.3d 510, 515 (4th Cir. 2016) (ruling that because, when
the property was purchased, a church was not a permissible use
and a church would have violated a setback requirement, a
religious group could not have had a reasonable expectation that
a variance would be granted to allow the building of a church on
the property); Petra Presbyterian Church v. Village of
Northbrook, 489 F.3d 846, 851 (7th Cir. 2007) (the plaintiff was
not substantially burdened when it purchased property in an
industrial zone for use as a church after having been told that
its special-use application would be denied).
Honig purchased the land in issue here in September
1994, knowing that it was zoned for agricultural and conservation
use.

In 2011, after its initial Special Use Permit application

was denied, Spirit of Aloha Temple entered into an agreement to
lease the property from Honig.

It arguably knew or should have

known that it might not get a Special Use Permit for the proposed
temple.

Spirit of Aloha Temple may have reasonably believed that

it would nevertheless receive the permit because it was amenable
to any reasonable condition and it actually orally amended the
permit application to have fewer events and to end most of those

29

events during daylight hours.

But whether it was reasonable for

Spirit of Aloha Temple to expect that it would get the Special
Use Permit under these circumstance or whether it created its own
burden are questions of fact not resolvable on the present
record.
Given issues of fact, this court has no reason to rule
on whether the County of Maui satisfies the strict scrutiny test.
The court does, however, recognize that the County of Maui has
asked this court to rule that, even if it did impose a
substantial burden, it had a compelling interest in the health
and safety of its citizens and used the least restrictive means
of furthering that interest.

On the present record, the court

cannot determine that, as a matter of law, the County of Maui
used the least restrictive means in denying the permit
application.

Whether viable less restrictive means were

available is yet another question of fact.

For example, Randall

S. Okaneku posits that sight lines along Haumana Road could have
been improved by cutting back vegetation or widening the road.
See Decl. of Randall S. Okaneku ¶¶ 16-17, ECF No. 185-2,
PageID# 3141.

Okaneku also says that traffic in the area could

have been mitigated by reducing the number of events and
employing shuttles.

Id. ¶ 19, PageID # 3142.

The court therefore denies both motions for summary
judgment with respect to Count I.

30

C.

Count II--Nondiscrimination Under RLUIPA; and
Count VII--Equal Protection Violation Under
§ 1983.

Defendants move for summary judgment with respect to
Counts II and VII of the Complaint, which assert religious
discrimination.

Specifically, Count II asserts a violation of 42

U.S.C. § 2000cc(b)(2), which prohibits the imposition or
implementation of “a land use regulation that discriminates
against any assembly or institution on the basis of religion or
religious denomination.”

Count VII asserts a violation of the

Equal Protection Clause of the Fourteenth Amendment, which
commands that no State shall deny to any person within its
jurisdiction the equal protection of the laws.

This is

essentially a direction that all persons similarly situated be
treated the same.

See High Tech Gays v. Defense Indus. Sec.

Clearance Office, 895 F.2d 563, 570-71 (9th Cir. 1990).
Constitutional violations are actionable under 42 U.S.C. § 1983,
which provides:
Every person who, under color of any statute,
ordinance, regulation, custom, or usage, of
any State or Territory or the District of
Columbia, subjects, or causes to be
subjected, any citizen of the United States
or other person within the jurisdiction
thereof to the deprivation of any rights,
privileges, or immunities secured by the
Constitution and laws, shall be liable to the
party injured in an action at law, suit in
equity, or other proper proceeding for
redress, except that in any action brought
against a judicial officer for an act or
omission taken in such officer's judicial
31

capacity, injunctive relief shall not be
granted unless a declaratory decree was
violated or declaratory relief was
unavailable.
The essence of both claims involves religious
discrimination.

In addition to the res judicata and/or

collateral estoppel issue discussed earlier, there is a factual
issue as to whether the County of Maui treated secular groups
more favorably than Spirit of Aloha Temple.

The Maui Planning

Commission granted a Special Use Permit to Ali`i Kula Lavender
Farm to conduct tourism activities, including agricultural
classes and workshops, to operate a gift shop, to conduct wedding
ceremonies, and to have catered receptions and other special
events.

See ECF No. 185-13, PageID # 3402.

It also granted a

Special Use Permit to Hale Akua Garden Farm Retreat Center for a
well-being education operation with overnight accommodations.
See ECF No. 185-16, PageID #s 3470, 3484, 3494.

Interpreting the

facts in the light most favorable to the nonmoving party, the
court concludes that the County of Maui has not shown that
differences with these other businesses would preclude a
reasonable jury from finding discrimination.
All three groups sought to use agricultural land for
nonagricultural purposes.

Ali`i Kula Lavender Farm and Hale Akua

Garden Farm Retreat Center received permits for nonagricultural
activities, while Spirit of Aloha Temple did not.

But this court

cannot tell whether the reason Spirit of Aloha Temple was denied
32

the permit was because of religious discrimination.

Accordingly,

the court denies the County of Maui’s motion for summary judgment
with respect to the religious discrimination claims asserted in
Counts II and VII.
D.

Count IV--Equal Terms Under RLUIPA.

Both parties seek summary judgment with respect to
Count IV of the Complaint, which asserts a violation of 42 U.S.C.
§ 2000cc(b)(1).

That section prohibits government entities from

imposing or implementing “a land use regulation in a manner that
treats a religious assembly or institution on less than equal
terms with a nonreligious assembly or institution.”

The Ninth

Circuit has stated that the elements of a § 2000cc(b)(1)
violation are: (1) there must be an imposition or implementation
of a land-use regulation, (2) by a government, (3) on a religious
assembly or institution; (4) on less than equal terms with a
nonreligious assembly or institution.

See Centro Familiar

Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163, 1170-71
(9th Cir. 2011).
As with the religious discrimination claims discussed
earlier, there is a question of fact as to whether Spirit of
Aloha Temple was treated less favorably than nonreligious groups,
in addition to whether either the res judicata and/or collateral
estoppel doctrine applies.

Ali`i Kula Lavender Farm and Hale

Akua Garden Farm Retreat Center received permits for

33

nonagricultural activities, while Spirit of Aloha Temple did not.
The Maui Planning Commission said it was denying Spirit of Aloha
Temple’s permit because of concerns about increased traffic on
the Haumana Road.

Although Ali`i Kula Lavender Farm and Hale

Akua Garden Farm Retreat Center had access roads that were also
narrow, those roads appear to have been wider than Haumana Road.
The road to the Ali`i Kula Lavender Farm may be 18 feet wide.
See ECF No. 185-14, PageID # 3412; ECF No. 185-5, PageID # 3229.
Alternatively, it may range from from 12 to 20 feet wide.

See

Decl. of Randall S. Okaneku ¶ 27, ECF No. 185-2, PageID# 3144.
The road to Hale Akua Garden Farm Retreat Center is approximately
20 feet wide, with short stretches that are narrower.
PageID # 3473; ECF No. 185-5, PageID # 3225.

Id.,

This differs from

Haumana Road, which is on average about 15 feet wide, narrowing
to 10 feet at many spots, making it too narrow for two cars to
pass in many places.

See ECF No. 183-4, PageID # 2708; ECF

No. 185-9, PageID #s 3282.

Thus, there are differing road sizes

for the religious and secular groups.

This court cannot tell

whether the roads are sufficiently similar such that a reasonable
jury could infer religious discrimination under the
circumstances.

Accordingly, summary judgment is denied with

respect to Count IV.

34

E.

Count V--First Amendment Prior Restraint.

Count V asserts that the County of Maui’s denial of the
Special Use Permit to Spirit of Aloha Temple amounts to a prior
restraint in violation of its First Amendment rights, actionable
under 42 U.S.C. § 1983.

See Moonin v. Tice, 868 F.3d 853, 858

(9th Cir. 2017) (examining First Amendment prior restraint claim
asserted under § 1983); Outdoor Media Grp., Inc. v. City of
Beaumont, 506 F.3d 895, 903 (9th Cir. 2007) (same).
The First Amendment provides that “Congress shall make
no law . . . abridging the freedom of speech, or of the press.”
U.S. Const. amend. I.

In Shuttlesworth v. City of Birmingham,

394 U.S. 147 (1969), the Supreme Court reversed the Supreme Court
of Alabama, explaining that “a law subjecting the exercise of
First Amendment freedoms to the prior restraint of a license,
without narrow, objective, and definite standards to guide the
licensing authority, is unconstitutional.” Id. at 150–51.
The Ninth Circuit has stated that a regulation is
therefore an unconstitutional prior restraint if it “vests
unbridled discretion in a government official over whether to
permit or deny expressive activity.”

Kreisner v. City of San

Diego, 1 F.3d 775, 805 (9th Cir. 1993) (quotation marks and
citation omitted).

In other words, an ordinance or regulation

that makes the peaceful enjoyment of First Amendment rights
“contingent upon the uncontrolled will of an official--as by
35

requiring a permit or license which may be granted or withheld in
the discretion of such official--is an unconstitutional
censorship or prior restraint.”

Epona v. Cty. of Ventura, 876

F.3d 1214, 1222 (9th Cir. 2017).

“That is, absent definite and

objective guiding standards, permit requirements present a threat
of content-based, discriminatory enforcement.”
marks and citation omitted).

Id. (quotation

“While permitting guidelines need

not eliminate all official discretion, they must be sufficiently
specific and objective so as to effectively place some limits on
the authority of City officials to deny a permit.”

Id.

(quotation marks and citation omitted).
In International Church of Foursquare Gospel, 673 F.3d
at 1069, the Ninth Circuit noted:
District courts in this circuit have
recognized that for a religious institution,
having
a place of worship . . . is at the
very core of the free exercise of
religion . . . [and that]
[c]hurches and synagogues cannot
function without a physical space
adequate to their needs and
consistent with their theological
requirements. The right to build,
buy, or rent such a space is an
indispensable adjunct of the core
First Amendment right to assemble
for religious purposes.
Id. (quoting Vietnamese Buddhism Study Temple in Am. v. City of
Garden Grove, 460 F. Supp. 2d 1165, 1171 (C.D. Cal.2006)).

36

The Ninth Circuit has recognized a claim of an
impermissible First Amendment prior restraint based on a tattoo
parlor’s argument that a city had unbridled discretion to grant
or withhold a conditional use permit.

See Real v. City of Long

Beach, 852 F.3d 929, 935 (9th Cir. 2017).

The Ninth Circuit has

also stated that “permitting schemes are subject to facial
challenge if they have a close enough nexus to expression, or to
conduct commonly associated with expression, to pose a real and
substantial threat” that protected speech or conduct will be
suppressed.”

Epona, 876 F.3d at 1221 (quotation marks and

citations omitted).
Section 205-4.5(a) of Hawaii Revised Statutes sets
forth permissible uses of property located in agricultural
districts.
operations.

These uses do not include churches or wedding
With certain exceptions, section 205-4.5(b) of

Hawaii Revised Statutes prohibits uses that are not expressly
permitted under section 205-4.5(a).

The exception applicable

here is a Special Use Permit granted by a county planning
commission, as set forth in section 205-6 of Hawaii Revised
Statutes.

In considering whether to grant or deny Plaintiffs’

Special Use Permit application, the Maui Planning Commission was
guided by Maui County Code, Title 19, Article II, Chapter 19.30A.
https://library.municode.com/hi/county of maui/codes/code of ordi
nances?nodeId=TIT19ZO ARTIICOZOPR CH19.30AAGDI 19.30A.060SPUS.

37

Under section 19.30A.060.A.9, churches and religious institutions
are permitted in an agricultural district “if a special use
permit, as provided in section 19.510.070[B] of this title, is
obtained.”

Under that section, the Maui Planning Commission may

approve such a permit by “review[ing] whether the use complies
with the guidelines established in section 15-15-95 of the rules
of the land use commission of the State.”

Id. (available at

https://library.municode.com/hi/county of maui/codes/code of ordi
nances?nodeId=TIT19ZO ARTVADEN CH19.510APPR 19.510.070SPUSPE).
As clarified by their motion for summary judgment, ECF
No. 184-1, PageID # 3112, Plaintiffs assert that sections 15-1595(c)(2) and (3) of the Hawaii Administrative Rules, which the
Maui Planning Commission relied on in denying the Special Use
Permit application, improperly give unbridled discretion to the
Maui Planning Commission.

Those subsections state:

Certain “unusual and reasonable” uses within
agricultural and rural districts other than
those for which the district is classified
may be permitted. The following guidelines
are established in determining an “unusual
and reasonable use”:
. . . .
(2) The desired use would not adversely
affect surrounding property; [and]
(3) The use would not unreasonably
burden public agencies to provide roads and
streets, sewers, water drainage and school
improvements, and police and fire
protection[.]

38

Id. (Nov. 2, 2013) (available at
http://luc.hawaii.gov/wp-content/uploads/2012/09/LUC-Admin-Rules
Chapter15-15 2013.pdf).
Neither side meets the initial burden of demonstrating
entitlement to judgment of any kind with respect to Count V.

In

particular, this court is concerned about the effect, if any,
that should be given to the state court order and judgment that
determined that the Maui Planning Commission did not abuse its
discretion in denying the permit.
On November 17, 2016, the Circuit Court of the Second
Circuit, State of Hawaii, affirmed the Maui Planning Commission’s
decision.

See ECF No. 183-14.

In relevant part, the court ruled

that it “cannot find clear error in the Maui Planning
Commission’s factual findings or error in its legal conclusions.
Moreover, the Commission’s decision does not appear to be
arbitrary, capricious or an abuse of discretion.”
# 3005.

No appeal was taken.

Id., PageID

To the extent Plaintiffs are now

arguing that the Maui Planning Commission’s decision is
unconstitutional in that the Maui Planning Commission exercised
unbridled discretion, such a challenge may well be something that
could have been litigated in state court, which examined whether
the county had abused its discretion.

Because the parties did

not sufficiently address the state court administrative appeals
process in their briefs, this court cannot tell whether it should

39

give the state court judgment preclusive effect as to Count V.
At this point, this court denies the motion for summary judgment
with respect to Count V.

The court leaves Count V for later

proceedings in which the court can discern the applicability or
inapplicability of the res judicata and collateral estoppel
doctrines or the waiver of those doctrines.
In so ruling, the court recognizes that, at the
hearing, Plaintiffs pointed to their reservation of right to
bring their prior restraint argument.

However, this court cannot

tell whether that representation is correct or affects the res
judicata and/or collateral estoppel analysis, as no party briefed
what effect should be given to the state-court ruling in
connection with Count V.
The court also notes that, under Rule 5.1 of the
Federal Rules of Civil Procedure, when a party files a pleading,
written motion, or other paper that questions the
constitutionality of a state statute, the party must file a
notice of constitutional question and serve the notice on the
state attorney general.

While Plaintiffs are challenging the

constitutionality of an administrative rule promulgated by the
State of Hawaii Department of Land and Natural Resources, rather
than a state statute, the court, under the circumstances
presented here, orders Plaintiffs to file a Notice of
Constitutional Question that specifically identifies the

40

constitutional issue being raised with respect to the
administrative rule.

Plaintiffs must then serve a courtesy copy

of the notice, the Complaint, and this order on the attorney
general for the State of Hawaii, along with a cover letter that
explains why these documents are being sent to the attorney
general.
F.

Count VI--Free Exercise of Religion.

Count VI asserts that the County of Maui deprived and
is depriving Plaintiffs of their First Amendment right to freely
exercise their religion.

It asserts that the County of Maui has

substantially burdened Plaintiffs’ religious exercise by
discriminating against them on the basis of their religion.
The Free Exercise Clause of the First Amendment, which
applies to states through the Fourteenth Amendment, provides that
“Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise thereof . . . .”
has further been applied to cities enacting ordinances.

It

See

Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
U.S. 520, 531 (1993).

“[A] law that is neutral and of general

applicability need not be justified by a compelling governmental
interest even if the law has the incidental effect of burdening a
particular religious practice.”

Id.

A law that is not neutral

or is not of general applicability, on the other hand, must be

41

justified by a compelling governmental interest and must be
narrowly tailored to advance that interest.

Id. at 531-32.

The County of Maui argues that the Maui County Code and
Hawaii Administrative Rules provisions at issue are neutral and
of general applicability.

The County of Maui therefore argues

that this court need not apply the compelling interest test.
Plaintiffs, on the other hand, cite Hale O Kaula Church v. Maui
Planning Commission, 229 F. Supp. 2d 1056, 1073 (D. Haw. 2002), a
decision by another judge in this district, for the proposition
that whenever there is an individualized exemption from a general
requirement, the compelling interest test must be applied.

While

Hale O Kaula Church is factually analogous in that it involved a
denial of a Special Use Permit, this judge is bound by subsequent
Ninth Circuit precedent, specifically, San Jose Christian College
v. City of Morgan Hill, 360 F.3d 1024 (9th Cir. 2004).
San Jose Christian College involved a free exercise of
religion challenge to land use regulations.

The city had denied

a request by the Christian College to rezone a property for
educational use.

The college asserted a Free Exercise of

Religion Clause challenge.

The Ninth Circuit explained that “a

free exercise violation hinges on showing that the challenged law
is either not neutral or not generally applicable.”
1030.

360 F.3d at

The Ninth Circuit then stated that three principles of

First Amendment law may be distilled from case law:
42

If the zoning law is of general application
and is not targeted at religion, it is
subject only to rational basis scrutiny, even
though it may have an incidental effect of
burdening religion. If such a law burdens
the free exercise of religion and some other
constitutionally-protected activity, there is
a First Amendment violation unless the strict
scrutiny test is satisfied (i.e., the law is
narrowly tailored to advance a compelling
government interest). This type of First
Amendment claim is sometimes described as a
“hybrid rights” claim. Similarly, if the
zoning law is not neutral or generally
applicable, but is directed toward and
burdens the free exercise of religion, it
must meet the strict scrutiny test. Finally,
if the zoning law only incidentally burdens
the free exercise of religion, with the law
being both neutral and generally applicable,
it passes constitutional muster unless the
law is not rationally related to a legitimate
governmental interest.
Id. at 1031 (citations omitted).
Neither the County of Maui nor Plaintiffs meet the
initial movant’s burden on a motion for summary judgment of
demonstrating entitlement to judgment as a matter of law.

The

motions do not sufficiently discuss the res judicata or
collateral estoppel doctrines in the context of the Free Exercise
of Religion claim.

It may well be that this case involves

neutral zoning regulations of general application such that Count
V should be reviewed under the rational basis test, even in the
face of at least an incidental burden on Plaintiffs’ religion.
But parties must do more than spot issues and conflate arguments
to be entitled to summary judgment.

43

G.

Counts VII and VIII--State Constitutional Claims
for Violations of Free Exercise of Religion and
Equal Protection.

The County of Maui moves for summary judgment with
respect to Counts VII and VIII without any meaningful discussion
of the applicable Hawaii constitutional provisions.

Plaintiffs,

on the other hand, seek summary judgment with respect to Count
VII but not Count VIII, arguing only that strict scrutiny should
be applied.

See ECF No. 184-1, PageID # 3088.

Given the paucity

of the arguments, as well as the failure to discuss the res
judicata and collateral estoppel doctrines, neither party meets
its initial burden of demonstrating that there are no material
facts in issue and that judgment as a matter of law is
appropriate.

Summary judgment is therefore denied with respect

to Counts VII and VIII.
V.

CONCLUSION.
For the reasons set forth above, the court denies the

motions for summary judgment filed by both parties in this case.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, July 20, 2018.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Spirit of Aloha Temple, et al. v. County of Maui, Civ. No. 14 00535 SOM/RLP;
ORDER DENYING MOTIONS FOR SUMMARY JUDGMENT

44