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

Filing 498

ORDER GRANTING DEFENDANT STATE OF HAWAII'S MOTION FOR SUMMARY JUDGMENT WITH RESPECT TO COUNT V AND DEFENDANT COUNTY OF MAUI'S JOINDER THEREIN; ORDER DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION WITH RESPECT TO COUNT V re 473 , 475 , 482 . Defendants may not apply the unconstitutional subsection 15-15-95(c)(2), given the Ninth Circuit's decision that Plaintiffs succeed on the portion of Count V challenging subsection 15-15-95(c)(2).The court grants t he State of Hawaii's motion for summary judgment with respect to the remainder of Count V and the County of Maui's joinder therein and denies Plaintiffs' motion for a preliminary injunction. Hawaii Administrative Rules subsection 15-15 -95(c)(2), which the Ninth Circuit has determined to be unconstitutional, is severable from the remainder of section 15-15-95(c). Subsection 15-15-95(c)(3) may therefore be applied in determining Plaintiffs' eligibility for the requested Special Use Permit. The Maui Planning Commission was allowed to rely on subsection 15-15-95(c)(3) in denying the requested permit. Accordingly, Defendants are entitled to summary judgment on the remaining portion of Court V that asks this court to award Pl aintiffs the requested Special Use Permit on the ground that section 15-15-95(c) is entirely unconstitutional. Because Defendants are entitled to summary judgment with respect to that part of Count V, Plaintiffs have no likelihood of success on that part of their claim and so are not entitled to the requested preliminary injunction.In light of this order, Plaintiffs and the State are directed to confer as to the procedures applicable to the State's involvement or lack of involvement as this case moves forward. Either a stipulation or position papers on this point must be submitted to this court no later than May 1, 2023. Between now and that date, the State need not participate in matters in this case unless the matters directly concern the State.Signed by JUDGE SUSAN OKI MOLLWAY on 3/31/2023. (cib)

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,
)
)
and
)
)
STATE OF HAWAII,
)
)
Intervenor-Defendant )
______________________________ )

CIVIL NO. 14-00535 SOM/RLP
ORDER GRANTING DEFENDANT
STATE OF HAWAII’S MOTION FOR
SUMMARY JUDGMENT WITH RESPECT
TO COUNT V AND DEFENDANT
COUNTY OF MAUI’S JOINDER
THEREIN; ORDER DENYING
PLAINTIFFS’ MOTION FOR
PRELIMINARY INJUNCTION WITH
RESPECT TO COUNT V

ORDER GRANTING DEFENDANT STATE OF HAWAII’S MOTION FOR
SUMMARY JUDGMENT WITH RESPECT TO COUNT V AND DEFENDANT COUNTY OF
MAUI’S JOINDER THEREIN; ORDER DENYING PLAINTIFFS’ MOTION FOR
PRELIMINARY INJUNCTION WITH RESPECT TO COUNT V
I.

INTRODUCTION.
Plaintiff Fredrick R. Honig bought agriculturally zoned

land on Maui and leased that land to his own entity, Plaintiff
Spirit of Aloha Temple.

Spirit of Aloha, among other things,

conducted a commercial wedding operation on the agricultural land
until the County of Maui told it to stop.

Plaintiffs then

applied for a Special Use Permit to build a church and hold
religious events, including weddings, uses not allowed on
agricultural land without a Special Use Permit.
Hawaii Administrative Rules section 15-15-95(c)
provides five guidelines for determining uses that may be allowed
via a Special Use Permit.

The Maui Planning Commission denied

Plaintiffs’ Special Use Permit application, relying on
subsections 15-15-95(c)(2) and (c)(3).

Specifically, the

commission determined that Plaintiffs’ proposed use “would
adversely affect the surrounding properties” such that subsection
15-15-95(c)(2) was unsatisfied.

The commission also determined

that Plaintiffs’ proposed use would increase traffic and burden
public agencies providing roads and streets, as well as police
and fire protection, such that subsection 15-15-95(c)(3) was
unsatisfied.
After the requested Special Use Permit was denied,
Plaintiffs filed this action, asserting federal and state claims
against the Maui Planning Commission and the County of Maui.

The

State of Hawaii intervened as a Defendant, as Plaintiffs were
challenging the state regulatory scheme under which the Maui
Planning Commission had denied Plaintiffs’ Special Use Permit
application.

In Count V of the Complaint, a prior restraint

claim, Plaintiffs contend that the standards governing their
Special Use Permit application violated the First Amendment by
giving county officials unbridled discretion.

Plaintiffs’

Complaint asserted that subsections 15-15-95(c)(1) to (c)(4)
violated their constitutional rights.

No challenge was asserted

to subsection 15-15-95(c)(5).
In April 2019, this court ruled that Plaintiffs lacked
standing to challenge subsections 15-15-95(c)(1) and (c)(4), as

2

the commission had not applied those subsections when denying
Plaintiffs’ Special Use Permit application.

The court then ruled

that the regulatory scheme governing Special Use Permits was
constitutional and that Hawaii Administrative Rules subsection
15-15-95(c)(3) did not provide unbridled discretion to county
planning agencies.

This court concluded that, because subsection

15-15-95(c)(3) was not an unconstitutional prior restraint,
Plaintiffs were not automatically entitled to the requested
Special Use Permit even if subsection 15-15-95(c)(2) was
defective.
Plaintiffs appealed.

They did not challenge this

court’s ruling with respect to subsection 15-15-95(c)(3).

On

appeal, the Ninth Circuit ruled that Plaintiffs were properly
asserting a facial challenge to section 15-15-95(c) and that
subsection 15-15-95(c)(2) unconstitutionally provided county
agencies unbridled discretion in deciding whether to issue a
Special Use Permit.

In remanding the case, the Ninth Circuit

left it to this court to determine whether subsection 15-1595(c)(2) was severable from the rest of section 15-15-95(c).
This court rules that it is severable.
This court has already ruled that subsection 15-1595(c)(3) is not an unconstitutional prior restraint.

The Maui

Planning Commission was therefore allowed to rely on subsection
15-15-95(c)(3) in denying Plaintiffs’ Special Use Permit

3

application.

Plaintiffs indicated at the hearing on the present

matters that they are no longer challenging the constitutionality
of subsection 15-15-95(c)(3).

Before this court are the State’s

summary judgment motion addressing what remains of Count V, and
the County of Maui’s joinder in that motion.

Also before this

court is Plaintiffs’ motion seeking injunctive relief with
respect to Count V.

The court grants Defendants’ summary

judgment motion concerning the remainder of Count V, and denies
Plaintiffs’ motion for preliminary injunction with respect to the
remainder of Count V.
II.

BACKGROUND.
The factual background for this case was set forth in

the Ninth Circuit’s Opinion of September 22, 2022.
1180, 1184-87 (9th Cir. 2022).

See 49 F.4th

That background is incorporated

by reference and is summarized in relevant part below.
Section 205-2 of Hawaii Revised Statutes describes the
four major land use districts in Hawaii--urban, rural,
agricultural, and conservation.

In relevant part, section 205-

2(c) describes the types of activities and uses that are allowed
on land zoned for agricultural use.

Section 205-4.5 of Hawaii

Revised Statutes further lists uses permitted on land zoned for
agricultural use.

Sections 205-6(a) and (c) allow a county

planning commission to “permit certain unusual and reasonable
uses within agricultural . . . districts other than those for

4

which the district is classified,” subject to protective
restrictions.
To determine whether a proposed use is an “unusual and
reasonable use,” section 15-15-95(c) of the Hawaii Administrative
Rules sets forth five guidelines for the granting of an exception
to agricultural restrictions:
(1) The use shall not be contrary to the
objectives sought to be accomplished by
chapters 205 and 205A, HRS, and the rules of
the commission;
(2) The proposed use would not adversely
affect surrounding property;
(3) The proposed use would not unreasonably
burden public agencies to provide roads and
streets, sewers, water drainage and school
improvements, and police and fire protection;
(4) Unusual conditions, trends, and needs
have arisen since the district boundaries and
rules were established; and
(5) The land upon which the proposed use is
sought is unsuited for the uses permitted
within the district.
http://luc.hawaii.gov/wp-content/uploads/2012/09/LUC-Admin-Rules_
Chapter15-15_2013.pdf) (Nov. 2, 2013).

There is no dispute that

a Special Use Permit application may be denied if any one of
those guidelines is not satisfied.

See Depo. of William Spence

at 31 (Feb. 5, 2018), ECF No. 215-18, PageID # 4649.

Maui County

Code § 19.30A.060.A.9 provides that “[c]hurches and religious
institutions” are allowed on agriculturally zoned land that is
fifteen acres or less so long as a Special Use Permit is obtained
5

pursuant to chapter 205 of Hawaii Revised Statutes and Maui
County Code § 19.30A.070.B.8, which gives the Maui Planning
Commission the job of determining whether a use complies with the
guidelines in section 15-15-95(c).
Honig purchased eleven acres of Maui land nearly thirty
years ago.
use.

That land was and is still zoned for agricultural

Id. at 1184.

Plaintiffs continue to seek authorization to

use the agriculturally zoned property for religious purposes, as
noted by the Ninth Circuit.
Honig developed the land without permits. He
cleared and graded the land, cut roads on the
property, changed the contours of coastal
conservation land, and altered the route of a
natural watercourse. He appears to have
built illegal structures, including housing
structures, and installed cesspools near
drinking water wells. Although several
Hawaiian archeological sites existed on the
property, including an agricultural terrace,
burial crypt, and irrigation ditch, Honig
failed to provide the requisite monitoring
plans for their preservation. Through a
nonprofit entity, Honig also used the
property as a venue to conduct commercial
weddings, vacation rentals, retreats, and
events--all without the requisite permits.
By late 2015, around 550 weddings were
performed on the property.
49 F.4th at 1184.
Despite having been repeatedly told that his activities
required appropriate permits, Honig continued to violate land use
regulations.

Id.

In 2007, Honig formed Spirit of Aloha Temple

and applied for a Special Use Permit for a “church,

6

church[-]operated bed and breakfast establishment, weddings,
special events, day seminars, and helicopter landing pad.”
at 1185.

Id.

The Maui Planning Commission denied that application,

reasoning that buildings on Honig’s land lacked permits, that
there were problems with the helicopter pad’s location, and that
there were potential adverse impacts to surrounding properties.
Id. at 1185.
Plaintiffs worked with local agencies to address these
concerns, and the county’s planning department recommended that
the Maui Planning Commission approve a second application subject
to certain conditions.

Id.

In 2012, Plaintiffs filed their

second application, seeking to hold weekly church services, as
well as sacred, educational, inspirational, or spiritual
programs, “including Hawaiian cultural events, and spiritual
commitment ceremonies such as weddings,” with limitations on the
number of attendees.

Id.

The Maui Planning Commission denied the second Special
Use Permit application, but rescinded that denial when it
received a letter from Plaintiffs’ attorneys warning that the
denial violated the Religious Land Use and Institutionalized
Persons Act.

Id.

The Maui Planning Commission then conducted a

hearing, before again denying the second application, making the
following finding (#68):
The Commission finds that there is evidence
of record that the proposed uses expressed in
7

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.
The Maui Planning Commission concluded that the
application ran afoul of subsections 15-15-95(c)(2) and (c)(3).1
With respect to subsection 15-15-95(c)(2), the Commission
concluded that the proposed uses “would adversely affect the
surrounding properties” given concerns about the safety of
Haumana Road, which provided access to Plaintiffs’ property.
No. 185-9, PageID # 3290.

ECF

With respect to subsection 15-15-

1

The Maui Planning Commission did not specifically discuss
subsection 15-15-95(c)(1)--whether the use was contrary to the
objectives sought to be accomplished by chapters 205 and 205A of
Hawaii Revised Statutes and the rules of the Land Use Commission.
It noted that it had received no evidence with respect to
subsection 15-15-95(c)(4)--whether there were unusual conditions,
trends, and needs that had arisen since the State Land Use
district boundaries and rules were established. It also
determined that subsection 15-15-95(c)(5) supported the issuance
of the permit in that “the land which the proposed use is sought
is suitable for the uses allowed in the Agricultural District.”
ECF No. 185-9, PageID # 3291.
8

95(c)(3), the Maui Planning Commission concluded that the
proposed uses would increase traffic and burden public agencies
providing roads and streets, as well as police and fire
protection.

The commission stated that it had “significant

concerns about the narrowness of Haumana Road and vehicle and
pedestrian safety both of potential visitors to the Property and
property owners along Haumana Road and the fact that the Property
is at the terminus of Haumana Road and therefore traffic to the
Property would negatively impact residents’ safety and use of
Haumana Road.”

Id.

On November 26, 2014, Plaintiffs filed the Complaint in
this matter.

See ECF No. 1.

Count V of the Complaint asserts a

First Amendment prior restraint claim under 42 U.S.C. § 1983.
After incorporating by reference the previous paragraphs of the
Complaint, paragraph 172 of the Complaint alleges:
The standards set forth in the County of
Maui’s zoning regulations governing special
permits for places of worship, and the
standards applied by the Commission in
reviewing and denying Spirit of Aloha Temple
and Frederick Honig’s Special Use Permit do
not provide a person of ordinary intelligence
a reasonable opportunity to understand
whether such land uses are permitted or
prohibited and, as such, constitutes an
unconstitutional prior restraint on
Plaintiff’s protected expression and
religious exercise under the First Amendment.
Such standards unconstitutionally afford the
Commission unbridled discretion in its review
of a Special Use Permit application for a
place of worship.

9

ECF No. 1, PageID # 37.

The Complaint’s Prayer for Relief seeks

(a) a declaration that the denial of Plaintiffs’ Special Use
Permit application is void, invalid, and unconstitutional; (b) a
declaration that the standards set forth in the land use
regulations and the standards governing Special Use Permit
applications and the standards applied by the Maui Planning
Commission are unconstitutional; (c) an order directing the Maui
Planning Commission to grant Plaintiffs’ Special Use Permit
application; (d) an order enjoining Defendants from applying the
alleged unconstitutional regulations and specifically requiring
Defendants to “approve all plans and applications submitted by
the Plaintiffs . . . without delay”; (e) compensatory damages;
and (f) an award of costs and attorneys’ fees.

See ECF No. 1,

PageID #s 45-46.
On April 23, 2019, this court granted summary judgment
in favor of Intervenor-Defendant State of Hawaii with respect to
the prior restraint claim asserted in Count V, as well as
Defendant County of Maui’s joinder therein.
1231, 1240 (D. Haw. 2019).

See 348 F. Supp. 3d

This court ruled that Plaintiffs

lacked standing to assert a facial challenge to subsections 1515-95(c)(1) and (c)(4) and that Plaintiffs were not challenging
subsection 15-15-95(c)(5).

Id. at 1242-45.

The court further

ruled that neither section 15-15-95(c)’s use of the word “may”
nor its reference to guidelines vested the Maui Planning

10

Commission with unbridled discretion.

Id. at 1245-47.

The court

ruled that subsection 15-15-95(c)’s lack of a time frame was not
pled in the Complaint.

Id. at 1247-48.

In the part of the order

relevant to the current motions, the court ruled that
subsection 15-15-95(c)(3) did not give the Maui Planning
Commission unbridled discretion to deny Plaintiffs’ Special Use
Permit application.

Id. at 1248-55.

Because subsection 15-15-

95(c)(3) was not an unconstitutional prior restraint, this court
ruled that Plaintiffs were not entitled to a Special Use Permit
even if subsection 15-15-95(c)(2) was constitutionally infirm.
Id. at 1253, 1255-56.
Plaintiffs argued on appeal that this court had erred
in holding that section 15-15-95(c) is not an unconstitutional
prior restraint on religious expression and argued that they
should be granted summary judgment on that claim.

See

Appellants’ Brief at 48 and 69 of 141, No. 19-16839 (Feb. 28,
2020).

Plaintiffs argued that the guidelines in section 15-15-

95(c) provide unlimited discretion to the Maui Planning
Commission by (1) providing no guidance as to how they should be
applied (id. at 51 to 54 of 141); (2) allowing the denial of a
Special Use Permit application even when all of the guidelines
are satisfied (id. at 54 to 57 of 141); (3) containing provisions
that are not narrow, objective, or definitive enough (id. at 57
to 66 of 141); and (4) lacking procedural safeguards (i.e., time
11

limits on the issuance or denial of a permit) (id. at 66 to 56 of
141).

Plaintiffs’ third argument (that the guidelines are not

sufficiently narrow, objective or definite) is relevant to the
present motions.
With respect to Plaintiffs’ third argument, they
contended on appeal that section 15-15-95(c) “is replete with
terms that provide unbridled discretion to the county Planning
Commission.”

Id. at 57 of 141.

Plaintiffs then argued that

subsection 15-15-95(c)(1) (referring to a use “not . . . contrary
to the objectives sought”), subsection 15-15-95(c)(2) (referring
to a proposed use that “would not adversely affect surrounding
property”), and subsection 15-15-95(c)(4) (referring to “Unusual
conditions, trends, and needs [that] have arisen since the
district boundaries and rules were established”) were too
subjective and did not sufficiently provide definite standards.
Id. at 58 of 141.
On appeal, while focusing on subsection 15-15-95(c)(2),
Plaintiffs did not specifically argue that subsection 15-1595(c)(3) provided too much discretion with respect to
determinations on whether to grant Special Use Permits.

That is,

Plaintiffs did not specifically challenge this court’s ruling
that subsection 15-15-95(c)(3) did not give the Maui Planning
Commission unbridled discretion to deny Plaintiffs’ Special Use
Permit application.

At the hearing on the present motions,

12

Plaintiffs clarified that they are no longer challenging the
constitutionality of subsection 15-15-95(c)(3).
In the brief they filed with the Ninth Circuit,
Plaintiffs spent several pages arguing that subsection 15-1595(c)(2) provided unbridled discretion.

Plaintiffs then argued

that, because subsection 15-15-95(c)(2) was not severable from
the rest of section 15-15-95(c), the entire regulation failed.
Id. at 64 to 66 of 141.
On September 22, 2022, the Ninth Circuit reversed this
court’s grant of summary judgment to Defendants with respect to
See 49 F.4th 1180 (9th Cir. 2022).

Count V.

The Ninth Circuit

held that Plaintiffs could proceed with their facial prior
restraint challenge to the permitting scheme governing their
Special Use Permit application, then ruled that that challenge
succeeded.

Id. at 1191.

The Ninth Circuit explained that

subsection 15-15-95(c)(2) improperly granted county planning
commissions “unbridled discretion to rely only on an arbitrary
guideline--whether ‘[t]he proposed use would not adversely affect
surrounding property’--to deny a special use permit application.
This use of ‘adversely affect’ is as general, flimsy, and
ephemeral as ‘health or welfare’ or ‘aesthetic quality.’” Id. at
1192.
In ruling that subsection 15-15-95(c)(2) improperly
granted county planning commissions unbridled discretion, the

13

Ninth Circuit majority did not expressly discuss this court’s
determination that subsection 15-15-95(c)(3) survived Plaintiffs’
prior restraint challenge.

See 348 F. Supp. 3d at 1253-54.

Nor

did the Ninth Circuit expressly discuss this court’s
determination that, “even if subsection 15-15-95(c)(2) does run
afoul of the First Amendment (something this court is expressly
not ruling on), that would not give Plaintiffs an entitlement to
receive the requested permit because subsection 15-15-95(c)(3)
would still present an impediment to such a grant.”
Supp. 3d at 1255.

See 348 F.

Instead, in Footnote 5, the majority stated:

Plaintiffs have not preserved a challenge
against the other guidelines in the Code of
Hawai‘i Rules § 15-15-95(c), and here, we do
not consider the validity of the permitting
scheme as a whole. Even if the adverse
effects guideline [in subsection
15-15-95(c)(2)] is unconstitutional, “a
federal court should not extend its
invalidation . . . further than necessary to
dispose of the case before it.” See Brockett
v. Spokane Arcades, Inc., 472 U.S. 491, 502,
105 S. Ct. 2794, 86 L. Ed.2d 394 (1985). It
is left for the district court whether
§ 15-15-95(c)(2) is severable. See Long
Beach [Area Peace Network v. City of Long
Beach], 574 F.3d [1011,] 1044 (9th Cir.
2009).
49 F.4th at 1192 n.5.
The dissent stated: “When the procedural protections
afforded by the permit scheme are properly accounted for, the
challenged guideline sufficiently fetters governmental

14

decisionmakers.”

Id., 49 F.4th at 1197 (Clifton, J.).

The

dissent then provided the following guidance:
Even if the “adverse effects” guideline
[, H.A.R. § 15-15-95(c)(2),] affords the
government with an unconstitutional degree of
discretion, the whole permitting scheme is
likely salvageable, and the plaintiffs are
not necessarily entitled to the relief they
seek. The other challenged guideline, H.A.R.
§ 15-15-95(c)(3), the “unreasonable burden”
guideline, is not unconstitutional, as the
district court correctly held. The impact on
Plaintiffs’ claims may be considered on
remand.
49 F.4th at 1197–98.
III.

LEGAL STANDARDS.
On January 18, 2023, Defendant State of Hawaii filed a

motion requesting that summary judgment be entered as follows:
1. That Hawai‘i Administrative Rule (“HAR”)
§ 15-15-95(c)(2) be deemed severable from the rest of the rule
(i.e., HAR § 15-15-95(c));
2. That HAR § 15-15-95(c)(3) be held to be
constitutional; and
3. That judgment be entered in favor of the
State as to Count V (the First Amendment
Prior Restraint claim), thereby dismissing
Count V from the case.
ECF No. 473, PageID # 11247.
Also on January 18, 2023, Defendant County of Maui
filed a substantive joinder in the state’s motion, requesting
that summary judgment be granted in its favor on Count V (the
prior restraint claim).

See ECF No. 475, PageID # 11506.

15

On February 1, 2023, Plaintiffs filed a motion for
preliminary injunction, specifically seeking an order:
1. Enjoining the Defendants, County of Maui
and Maui Planning Commission, from
application and enforcement of H.A.R.
§ 15-15-95(c) and any implementing County
laws with respect to Plaintiffs; and/or
2. Alternatively, entering an Order
compelling the County to issue the Plaintiffs
a Special Use Permit under the conditions
recommended by the County’s Planning
Department and accepted by the Plaintiffs.
ECF No. 482-1, PageID # 11615.
A.

Summary Judgment Standard.

This court set forth the summary judgment standard in
an order filed on July 20, 2018, in this case.

See ECF 200.

That standard is incorporated here by reference.
B.

Preliminary Injuction Standard.

To obtain a preliminary injunction, a party must
“establish that he is likely to succeed on the merits, that he is
likely to suffer irreparable harm in the absence of preliminary
relief, that the balance of equities tips in his favor, and that
an injunction is in the public interest.”
Def. Council, Inc., 555 U.S. 7, 20 (2008).

Winter v. Natural Res.
The Ninth Circuit has

noted that “[l]ikelihood of success on the merits is the most
important factor.”

California v. Azar, 911 F.3d 558, 575 (9th

Cir. 2018) (quotations omitted).

16

If a movant fails to meet this

“threshold inquiry,” this court need not consider the other
factors.

Id.
There is also a “sliding scale” variant of the Winter

standard.

See Fraihat v. U.S. Immigr. & Customs Enf't, 16 F.4th

613, 635 (9th Cir. 2021).

Under this variation, a preliminary

injunction may also issue when there are serious questions going
to the merits and a balance of hardships that tips sharply
towards the plaintiff “‘so long as the plaintiff also shows that
there is a likelihood of irreparable injury and that the
injunction is in the public interest.’” Id. (quoting Alliance for
the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir.
2011)).
IV.

ANALYSIS.
A.

The Unconstitutional Subsection 15-15-95(c)(2) Is
Severable From the Rest of Section 15-15-95(c).

Given Plaintiffs’ facial challenge to subsection 15-1595(c)(2) and the Ninth Circuit’s determination that it is
unconstitutional, Defendants are forbidden from applying it in
deciding whether to issue any Special Use Permit.

The motions

before this court ask for a determination as to whether
subsection 15-15-95(c)(2) is severable from the other guidelines
in section 15-15-95(c).

If subsection 15-15-95(c)(2) is

severable, then Defendants were allowed to rely on the remainder
of section 15-15-95(c) in determining whether to issue a Special

17

Use Permit.

The effect of this is that Plaintiffs would not be

entitled to the requested permit because their permit application
was properly denied under subsection 15-15-95(c)(3), a subsection
Plaintiffs are no longer challenging as unconstitutional.
However, if subsection 15-15-95(c)(2) is not severable from the
rest of section 15-15-95(c), then Defendants could not rely on
any part of section 15-15-95(c) in determining whether to issue a
Special Use Permit.
Severability is a matter of state law.
Jane L., 518 U.S. 137, 139 (1996).

See Leavitt v.

“Generally, only that part of

an ordinance that is constitutionally infirm will be invalidated,
leaving the rest intact.”

Desert Outdoor Advert., Inc. v. City

of Moreno Valley, 103 F.3d 814, 821 (9th Cir. 1996).

The Hawaii

Supreme Court has explained that, “‘if the parts are severable
and if the part which remains can be enforced when standing by
itself, and still carry out the intent of the legislature, it can
be upheld as constitutional.’”

State v. Pacquing, 139 Haw. 302,

319, 389 P.3d 897, 914 (2016) (quoting Hawaiian Trust Co. v.
Smith, 31 Haw. 196, 202 (1929)); see also Nat'l Advert. Co. v.
City of Orange, 861 F.2d 246, 250 (9th Cir. 1988) (“Whether
partial invalidation is appropriate depends on the intent of the
City in passing the ordinance and whether the balance of the
ordinance can function independently.”).

When a portion of

legislation is unconstitutional and the rest is not,
18

[t]he ordinary rule . . . is that “where the
provisions are so interdependent that one may
not operate without the other, or so related
in substance and object that it is impossible
to suppose that the legislature would have
passed the one without the other, the whole
must fall; but if, when the unconstitutional
portion is stricken out, that which remains
is complete in itself and capable of being
executed in accordance with the apparent
legislative intent, it must be sustained.”
Pacquing, 139 Haw. at 318, 389 P.3d at 913 (quoting Hawaiian
Trust Co., 31 Haw. at 202).
The court begins its analysis with a short examination
of the statutory and regulatory scheme governing agricultural
districts in Hawaii.

Section 205-1 of Hawaii Revised Statutes

establishes the Land Use Commission, charging it with
promulgating rules guiding its conduct and making it a part of
the State of Hawaii Department of Business, Economic Development,
and Tourism.

Section 205-7 of Hawaii Revised Statutes requires

Hawaii’s Land Use Commission to adopt, amend, and repeal rules
relating to matters within its jurisdiction pursuant to chapter
91 of Hawaii Revised Statutes, which governs administrative
procedures.
Section 205-2 of Hawaii Revised Statutes establishes
four major land use districts (urban, rural, agricultural, and
conservation) and charges the Land Use Commission with grouping
contiguous land areas into one of the four land use districts.
Section 205-2(d) of Hawaii Revised Statutes describes sixteen

19

types of land uses that fall within agricultural districts.
These include, for example, cultivation of crops, farming,
aquaculture, wind-generated energy, biofuel production,
agricultural tourism, and geothermal resource exploration and
development.

Section 205-4.5(a) of Hawaii Revised Statutes

expressly lists twenty-two permissible uses within agricultural
districts.

Section 205-4.5(b) of Hawaii Revised Statutes

prohibits uses not listed in section 205-4.5(a), except as
provided in sections 205-6 (Special Use Permits) and 205-8
(nonconforming uses) of the Hawaii Revised Statutes.
Section 205-6(a) allows county planning commissions
such as the Maui Planning Commission to “permit certain unusual
and reasonable uses within agricultural . . . districts other
than those for which the district is classified.”

It allows an

owner of land to petition the local county planning commission
for a Special Use Permit for “unusual and reasonable uses.”
Section 205-6(c) states that “county planning commission[s] may,
under such protective restrictions as may be deemed necessary,
permit the desired use, but only when the use would promote the
effectiveness and objective of this chapter,” Chapter 205 of
Hawaii Revised Statutes.
The Hawaii Supreme Court has explained:
a special
land to a
ordinance
facts and

permit allows the owner to put his
use expressly permitted by
or statute on proof that certain
conditions exist, without altering
20

the underlying zoning classification. Its
essential purpose, as explained by the state
Attorney General, is to provide landowners
relief in exceptional situations where the
use desired would not change the essential
character of the district nor be inconsistent
therewith.
Neighborhood Bd. No. 24 (Waianae Coast) v. State Land Use Comm'n,
64 Haw. 265, 271, 639 P.2d 1097, 1102 (1982) (citing 1963 Op.
Att’y Gen. 63-37).
As noted earlier, section 15-15-95(c) of the Hawaii
Administrative Rules sets forth five guidelines for the granting
of an exception to agricultural restrictions.

Subsection 15-15-

95(c)(2) having been found unconstitutional, the resulting
section reads:
(1) The use shall not be contrary to the
objectives sought to be accomplished by
chapters 205 and 205A, HRS, and the rules of
the commission;
(2) The proposed use would not adversely
affect surrounding property;
(3) The proposed use would not unreasonably
burden public agencies to provide roads and
streets, sewers, water drainage and school
improvements, and police and fire protection;
(4) Unusual conditions, trends, and needs
have arisen since the district boundaries and
rules were established; and
(5) The land upon which the proposed use is
sought is unsuited for the uses permitted
within the district.

21

http://luc.hawaii.gov/wp-content/uploads/2012/09/LUC-Admin-Rules_
Chapter15-15_2013.pdf) (Nov. 2, 2013) (striking out text
identified by the Ninth Circuit as unconstitutional).
The second guideline in section 15-15-95(c) is
unenforceable as unconstitutional, given the Ninth Circuit’s
ruling in this case.

This court now examines whether the Land

Use Commission would still intend the remaining guidelines to be
in effect without subsection 15-15-95(c)(2).

To determine

whether subsection 15-15-95(c)(2) is severable under Hawaii law,
this court considers whether the remaining guidelines are
complete and enforceable while carrying out their purpose.
are.

They

The remaining provisions still provide county planning

commissions with guidance as to when to grant a Special Use
Permit application for an “unusual and reasonable use” of
agricultural land that is not otherwise authorized.
Citing Neighborhood Board No. 24 (Waianae Coast), 64
Haw. at 271, 639 P.2d at 1102, Plaintiffs argue that county
planning commissions are required to examine whether a proposed
change in land use would “change the essential character of the
district” without being “inconsistent therewith.”

Plaintiffs

argue that subsection 15-15-95(c)(2) is the only subsection that
examines effects on a surrounding neighborhood and that without
it the entirety of section 15-15-95(c) is meaningless.

22

Plaintiffs nevertheless concede that subsection 15-1595(c)(3) (examining whether a proposed use would “unreasonably
burden public agencies to provide roads and streets, sewers,
water drainage and school improvements, and police and fire
protection”) addresses local impacts.
# 11661.

See ECF No. 483, PageID

Moreover, Plaintiffs’ heavy reliance on the Hawaii

Supreme Court’s explanation of the “essential purpose” of Special
Use Permits takes a narrow view without looking at the purpose of
land use regulations in general.

This court does not read the

Hawaii Supreme Court’s opinion as having invited such a narrow
view.
In Title 15, chapter 15, of the Hawaii Administrative
Rules, the State of Hawaii Land Use Commission promulgated rules
governing its practices and procedures and stated that the
chapter “shall be liberally construed to preserve, protect, and
encourage the development and preservation of lands in the State
for those uses to which they are best suited in the interest of
public health and welfare of the people of the State of Hawai`i.”
H.A.R. § 15-15-01.

Thus, while the “essential purpose” of

Special Use Permits involves an examination of a change to the
“essential character of the district,” that “essential purpose”
is not the only purpose at issue.

The regulations themselves

provide a broader purpose that the remaining guidelines were
intended to address.

23

Plaintiffs assert that the legislative history of
section 205-6 of Hawaii Revised Statutes demonstrates that the
legislature intended county planning commissions to focus on
local interests in adjudicating Special Use Permit applications.
See ECF No. 483, PageID # 11660.

This court therefore examines

that legislative history.
In 1961, the Hawaii legislature established Hawaii’s
Land Use Commission, charging it with grouping contiguous land
into three land classifications.

The legislature allowed the

State Land Use Commission to permit “certain unusual and
reasonable uses other than those for which the district is
classified.”

See Act 187, Secs. 2, 3, 8, Sess. Laws of Hawaii,

First State Legislature (Reg. Sess. 1961); Rev. Laws of Haw.
§ 98H-2, -3, and -7 (1961 Supp).

The legislature’s purpose was

“to protect and conserve through zoning the urban, agricultural,
and conservation lands within all the counties . . . .”

Senate

Journal, Standing Committee Report 1031 re. House Bill 1279 (1961
gen. sess.).

The three major land use districts were established

as part of implementing a “General Plan.”

Id.

In 1963, “experience and research” caused the
legislature to amend the land use laws to clarify the division of
authority between the State Land Use Commission and the counties,
as well to take into account the “hardship caused to land owners
who wish to develop lands included in agricultural districts but

24

where such lands are not at all suitable for agricultural uses.”
Act 205, Sec. 1, Sess. Laws. of Hawaii, Second State Legislature
(Reg. Sess. 1963).

The legislature added a rural classification

as a fourth land category.

Act 205, Sec. 2, Sess. Laws. of

Hawaii, Second State Legislature (Reg. Sess. 1963) (amending Rev.
Laws of Haw. § 98H-2).

It then allowed county planning

commissions (or the zoning board of appeals for Honolulu) “to
permit certain unusual and reasonable uses within agricultural .
. . districts other than those for which the district is
classified.”

Id. (amending Rev. Laws of Haw. § 98H-6).

The

legislature provided that a county planning commission (or the
zoning board of appeals for Honolulu) could, “under such
protective provisions as may be deemed necessary, permit such
desired use, but only when such use would promote the
effectiveness and objectives of this chapter.”

Id. (amending

Rev. Laws of Haw. § 98H-7).
In 1970, the legislature renumbered the Special Use
Permit law, codifying it at section 205-6 of Hawaii Revised
Statutes.

See Act 136, Sec. 1, Sess. Laws of Hawaii, Fifth State

Legislature (Reg. Sess. 1970).

The county planning commissions

were charged with permitting “certain unusual and reasonable uses
within agricultural . . . districts other than those for which
the district is classified.”

Id.

25

In 1976 and again in 1978, the legislature amended
section 205-6 of Hawaii Revised Statutes to change Land Use
Commission procedures.

See Act 4 (1976 Reg. Sess.) (allowing the

Land Use Commission to visit and view property subject to
applications and changing time requirements); Act 166 (1978 Reg.
Sess.) (allowing counties to establish fees for Special Use
Permit applications and changing time requirements).
In Act 221 (Reg. Sess. 1979), the legislature provided
that only Special Use Permit requests involving more than fifteen
acres of land that were approved by a county planning commission
had to also be approved by the State Land Use Commission.

Senate

Standing Committee Report No. 640 (Res. Sess. 1979) (regarding
House Bill 1232) explained that section 205-6 was being amended
to provide “that only those Special Use Permit requests involving
lands with an area greater than fifteen acres shall be subject to
the approval by the land use commission.

All other Special Use

Permits shall only be subject to approval by the appropriate
county planning commission.”

The committee explained “that land

use decisions whose impact is limited to a particular county
should be decided by that particular county.”

It noted that this

would result in a 75 percent decrease in Special Use Permit
requests that had to be examined by the Land Use Commission,
allowing it to concentrate on those applications that had “a
greater impact of a statewide nature.”

26

House Standing Committee

Report No. 572 (Reg. Sess. 1979) (regarding House Bill 1232)
mirrored its Senate counterpart.
While section 205-6 has been amended several times
since then, its current version still provides for county
planning commissions to adjudicate Special Use Permit
applications, except when land greater than fifteen acres is
involved.

See Haw. Rev. Stat. § 205-6(d).

Nevertheless, in

adjudicating Special Use Permit applications for land of fifteen
acres or less, county planning commissions are not restricted to
examining only local impacts.

Subsection 15-15-95(c)(1), for

example, directs county planning commissions to examine whether
proposed uses would be “contrary to the objectives sought to be
accomplished by chapters 205 and 205A . . . and the rules of the
commission.”

It is therefore clear that Hawaii’s Land Use

Commission did not intend section 15-15-95(c) to limit county
planning commissions to consideration of only local impacts.
The court is unpersuaded by Plaintiffs’ argument that,
in the absence of a severability provision, there is a
presumption that Hawaii’s Land Use Commission intended section
15-15-95(c) to exist only with all five guidelines intact.
Plaintiffs cite to no Hawaii law establishing such a presumption.
While there is no Hawaii Supreme Court law on such a presumption,
the Intermediate Court of Appeals for the State of Hawaii has
stated:

27

When a court determines that a provision of a
law is unconstitutional, prior to
invalidating the entirety of the law, the
court must first start with a presumption
that the unconstitutional enactment is
severable from the remainder of the section
or act. As a general rule, courts are to
refrain from invalidating more of a statute
than is necessary, because a ruling of
unconstitutionality frustrates the intent of
the elected representatives of the people.
The presumption of severability is overcome
only if something in the statute’s text or
historical context makes it evident that: the
Legislature, faced with the limitations
imposed by the Constitution, would have
preferred no statute at all to a statute with
the invalid part excised. In conducting this
inquiry, we must retain those portions of the
Act that are (1) constitutionally valid,
(2) capable of functioning independently, and
(3) consistent with the Legislature’s basic
objectives in enacting the statute.” The
Legislature’s intent serves as the basis for
this severability test
State v. Tran, 138 Haw. 298, 303–04, 378 P.3d 1014, 1019–20 (Ct.
App. 2016), as corrected (Sept. 9, 2016) (alterations, brackets,
quotation marks, and citations omitted).

Thus, the highest state

court in Hawaii to have spoken on the matter has determined that
Hawaii law has a presumption of severability, the opposite of the
presumption posited by Plaintiffs.
Plaintiffs are unpersuasive in citing Hawaii
Administrative Rules section 16-186-105 (a severability clause)
and Russellow v. United States, 464 U.S. 16, 23 (1983), for the
proposition that the Land Use Commission’s failure to have a
severability clause in its regulations demonstrates the Land Use

28

Commission’s purposeful intent to omit it.
PageID # 11633.

See ECF No. 482-1,

Section 16-186-105 was promulgated by a

different regulatory agency than the Land Use Commission.

This

court cannot infer the Land Use Commission’s intent from rules
promulgated by a different agency.
Moreover, Hawaii has a general severability statute,
section 1-23 of Hawaii Revised Statutes.

That statute provides,

“If any provision of Hawaii Revised Statutes, or the application
thereof to any person or circumstances, is held invalid, the
remainder of the Hawaii Revised Statutes, or the application of
the provision to other persons or circumstances, shall not be
affected thereby.”

Section 91-16 of Hawaii’s Administrative

Procedure Act (through which the Land Use Commission promulgated
its rules) similarly provides, “If any provision of this chapter
or the application thereof to any person or circumstance is held
invalid, the invalidity shall not affect other provisions or
applications of the chapter which can be given effect without the
invalid provision or application, and to this end the provisions
of this chapter are declared to be severable.”

The Land Use

Commission’s rules are arguably applications of sections 2051(c), 205-7, and chapter 91 of Hawaii Revised Statutes.
“[I]f, when the unconstitutional portion is stricken
out, that which remains is complete in itself and capable of
being executed in accordance with the apparent legislative

29

intent, it must be sustained.”

Pacquing, 139 Haw. at 318, 389

P.3d at 913 (quoting Hawaiian Trust Co., 31 Haw. at 202).
Subsections 15-15-95(c)(1), (3)-(5), provide guidance that any
special use not be contrary to Hawaii’s land use regulations
while taking into account local impacts such as unreasonable
burdens to public agencies providing “roads and streets, sewers,
water drainage and school improvements, and police and fire
protection.”

When subsection 15-15-95(c)(2) is stricken, the

remainder of section 15-15-95(c) can clearly still be enforced
and executed.

That remainder is (1) constitutionally valid,

(2) capable of functioning independently, and (3) consistent with
the Land Use Commission’s basic objectives in promulgating
section 15-15-95(c).

In short, striking only subsection 15-15-

95(c)(2) and leaving the remainder of section 15-15-95(c) intact
gives effect to the Land Use Commission’s intent.

See Kauai

Springs, Inc. v. Plan. Comm'n of Cnty. of Kauai, 133 Haw. 141,
163, 324 P.3d 951, 973 (2014) (noting that, when construing a
statute, the court’s foremost obligation is to give effect to
legislative intent).
The State argues that, if this court strikes the
entirety of section 15-15-95(c) because subsection 15-15-95(c)(2)
is not severable, every Special Use Permit application would have
to be granted until such time as new guidelines are implemented.
Thus, the State argues, the Land Use Commission would

30

unquestionably prefer to have the remainder of section 15-1595(c) to provide guidance with respect to Special Use Permits
over having no guidance whatsoever.
# 12098.

See ECF No. 490, PageID

It is not clear to this court that the chaos the State

envisions would actually ensue, as amendments could possibly be
adopted within a matter of months.

This court nevertheless

severs subsection 15-15-95(c)(2) for the reasons stated earlier
in this order.
This court does, of course, recognize that Plaintiffs
are bringing a facial challenge to the guidelines and that their
Complaint specifically requests that this court declare the
guidelines unconstitutional and enjoin their application.
ECF No. 1, PageID #s 45-46.

See

Any ruling that any part of the

guidelines is unconstitutional would preclude the State from
applying the unconstitutional part in all future applications of
section 15-15-95(c).

With a facial challenge, a ruling that

section 15-15-95(c) is unconstitutional would govern Defendants’
conduct in the future not only as to Plaintiffs but as to others.
Under the circumstances presented here, the court rules
that subsection 15-15-95(c)(2) is severable from the rest of
section 15-15-95(c).

There is no assertion now before this court

that subsection 15-15-95(c)(3) is unconstitutional.

This court’s

previous determination that there was no constitutional
prohibition in applying subsection 15-15-95(c)(3) to Plaintiffs’

31

Special Use Permit application means that Plaintiffs have not to
date established an entitlement to a Special Use Permit on
constitutional grounds.
B.

Plaintiffs Have Standing With Respect to Their
Prior Restraint Claim Under Section 15-15-95(c).

Plaintiffs’ Complaint seeks a declaration that the
guidelines set forth in section 15-15-95(c) are unconstitutional.
See ECF No. 1, PageID #s 45-46.

The Ninth Circuit has ruled that

subsection 15-15-95(c)(2) is unconstitutional and remanded the
case “for further proceedings consistent with our decision.”

49

F.3d at 1196.
The State argues that, if the court determines on
remand that subsection 15-15-95(c)(2) is severable from the rest
of section 15-15-95(c), this court should make no declaration
that subsection 15-15-95(c)(2) is unconstitutional.

The State

argues that, despite the unconstitutionality of subsection 15-1595(c)(2), once this court deems subsection 15-15-95(c)(2)
severable, it loses jurisdiction to issue a declaration to that
effect because Plaintiffs’ Special Use Permit application can
still be denied based on subsection 15-15-95(c)(3).

The State

says that this means Plaintiffs lack standing to seek a
declaration that subsection 15-15-(c)(2) is unconstitutional.
See ECF No. 473, PageID #s 11274-76; Get Outdoors II, LLC v. City
of San Diego, Cal., 506 F.3d 886, 895 (9th Cir. 2007) (discussing
the need for a plaintiff to have been eligible to get a permit
32

“for the asking” to challenge an allegedly unconstitutional
provision).
The Ninth Circuit has already ruled that Plaintiffs are
asserting a facial challenge to section 15-15-95(c) and that
Plaintiffs’ challenge “succeeds” with respect to subsection 1515-95(c)(2).

This court’s present determination on the merits

that subsection 15-15-95(c)(2) is severable such that the
remainder of section 15-15-95(c) remains in effect does not
foreclose this court from recognizing, consistent with the Ninth
Circuit’s decision, that subsection 15-15-95(c)(2) is
unconstitutional.
that.

Indeed, this court is certainly required to do

To say that Plaintiffs lack standing to obtain the very

declaration they won before the Ninth Circuit makes no sense.
This court declines to grant the State’s request that the court
dismiss Count V for lack of standing when the Ninth Circuit has
already determined that Plaintiffs’ facial challenge to
subsection 15-15-95(c)(2) succeeds.
While this court in this order recognizes that the Maui
Planning Commission was still allowed to rely on subsection 1515-95(c)(3) in denying Plaintiffs’ Special Use Permit
application, that only means that the unconstitutionality of
subsection 15-15-95(c)(2) does not automatically entitle
Plaintiffs to the requested remedy of a permit.

It would

conflate the concept of standing with the separate issue of

33

remedies to say that Plaintiffs therefore cannot obtain from this
court the very declaration the Ninth Circuit gave them.
V.

CONCLUSION.
Defendants may not apply the unconstitutional

subsection 15-15-95(c)(2), given the Ninth Circuit’s decision
that Plaintiffs succeed on the portion of Count V challenging
subsection 15-15-95(c)(2).
The court grants the State of Hawaii’s motion for
summary judgment with respect to the remainder of Count V and the
County of Maui’s joinder therein and denies Plaintiffs’ motion
for a preliminary injunction.

Hawaii Administrative Rules

subsection 15-15-95(c)(2), which the Ninth Circuit has determined
to be unconstitutional, is severable from the remainder of
section 15-15-95(c).

Subsection 15-15-95(c)(3) may therefore be

applied in determining Plaintiffs’ eligibility for the requested
Special Use Permit.

The Maui Planning Commission was allowed to

rely on subsection 15-15-95(c)(3) in denying the requested
permit.

Accordingly, Defendants are entitled to summary judgment

on the remaining portion of Court V that asks this court to award
Plaintiffs the requested Special Use Permit on the ground that
section 15-15-95(c) is entirely unconstitutional.

Because

Defendants are entitled to summary judgment with respect to that
part of Count V, Plaintiffs have no likelihood of success on that

34

part of their claim and so are not entitled to the requested
preliminary injunction.
In light of this order, Plaintiffs and the State are
directed to confer as to the procedures applicable to the State’s
involvement or lack of involvement as this case moves forward.
Either a stipulation or position papers on this point must be
submitted to this court no later than May 1, 2023.

Between now

and that date, the State need not participate in matters in this
case unless the matters directly concern the State.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 31, 2023.

/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 GRANTING DEFENDANT STATE OF HAWAII'S MOTION FOR SUMMARY JUDGMENT WITH
RESPECT TO COUNT V AND DEFENDANT COUNTY OF MAUI'S JOINDER THEREIN; ORDER
DENYING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION WITH RESPECT TO COUNT V

35