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

Filing 540

ORDER GRANTING PARTIAL SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS ON THE ISSUE OF WHETHER THE COUNTY OF MAUI'S DENIAL OF THE SPECIAL USE PERMIT SATISFIED STRICT SCRUTINY WITH RESPECT TO COUNTS I, VI, AND VIII, BUT DENYING SUMMARY JUDGMENT ON ALL RE MAINING ISSUES AND CLAIMS - Signed by JUDGE SUSAN OKI MOLLWAY on 8/11/2023.  For the reasons set forth above, the court denies the motions for summary judgment filed by both parties in this case. While summary judgment i s not granted on the entirety of any claim, the court grants summary judgment to Plaintiffs on one issue implicated by Counts I, VI, and VIIIthat the complete denial of the permit fails strict scrutiny analysis. In addition, only Spirit of Aloha Temp le, not Honig, may pursue Count II, the RLUIPA nondiscrimination claim. All other matters remain for trial. This order disposes of the motions filed as ECF Nos. 511 (Plaintiffs' motion for partial summary judgment), 513 (Defendant's concise statement in support of its motion for summary judgment that was incorrectly filed as a motion), 514 (Defendant's motion for summary judgment), 520 (Defendant's counter motion for summary judgment), and 521 (Defendant's counter motion for summary judgment, which does not appear to add much to its other counter motion).  The parties are ordered to immediately contact the Magistrate Judge assigned to this case to schedule a settlement conference. The court is conscious that Plaintiffs have an appeal pending in the Ninth Circuit of this court's denial of Plaintiffs' request for preliminary injunctive relief, which relates to the issue of whether the unconstitutional administrative provision is severable from o ther provisions. This appeal is not necessarily an impediment to settlement. The parties could, for example negotiate a conditional settlement, agreeing to certain terms if the pending appeal results in an affirmance, and different terms if the result is a reversal. In any event, the parties are directed to engage in settlement discussions. (jni)

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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 GRANTING PARTIAL
SUMMARY JUDGMENT IN FAVOR OF
PLAINTIFFS ON THE ISSUE OF
WHETHER THE COUNTY OF MAUI’S
DENIAL OF THE SPECIAL USE
PERMIT SATISFIED STRICT
SCRUTINY WITH RESPECT TO
COUNTS I, VI, AND VIII, BUT
DENYING SUMMARY JUDGMENT ON
ALL REMAINING ISSUES AND
CLAIMS

ORDER GRANTING PARTIAL SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS
ON THE ISSUE OF WHETHER THE COUNTY OF MAUI'S DENIAL OF
THE SPECIAL USE PERMIT SATISFIED STRICT SCRUTINY
WITH RESPECT TO COUNTS I, VI, AND VIII, BUT DENYING
SUMMARY JUDGMENT ON ALL REMAINING ISSUES AND CLAIMS
I.

INTRODUCTION
Before the court are dueling requests for summary

judgment.

This case involves claims of religious discrimination

in the denial of a Special Use Permit relating to purported
religious uses of agriculturally zoned land on Maui.

Plaintiffs

seek summary judgment on three counts–Counts I, VI, and VIII.
The County of Maui, arguing that Plaintiffs Frederick R. Honig
and Spirit of Aloha Temple are actually seeking a permit to
conduct a commercial wedding business, has filed a counter motion
for summary judgment with respect to Counts I, VI, and VIII, as
well as a separate summary judgment motion on all remaining
counts (Counts I, II, VI, VII, VIII, and IX).

The County says

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that its actions satisfy strict scrutiny such that it is not
liable on any of Plaintiffs’ claims.
This court disagrees with the County on the strict
scrutiny issue, determining that the County’s actions do not
satisfy strict scrutiny in the context of Counts I, VI, and VIII.
This court therefore grants summary judgment to Plaintiffs on
that issue for those counts, while finding that questions of fact
preclude summary judgment on other elements of Counts I, VI, and
VIII, and also preclude the granting of summary judgment to the
County on any matter the County moves on.
II.

BACKGROUND SUMMARY.
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 and supplemented only as
necessary.
In 1994, Honig bought land on Maui zoned for
agricultural use.

Honig then developed that land without having

obtained proper permits.

For years, Honig and another entity

that he controlled, Well Being International Inc., operated a
commercial business on the property.
property to Well Being International.

In 2005, Honig leased the
Honig was repeatedly

notified that he needed to obtain permits, but he continued his
unpermitted activities.

See id.

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In 2007, Honig formed Spirit of Aloha Temple, a
nonprofit organization that is a branch of the Integral Yoga
movement.

Integral Yoga is a modern branch of the ancient Hindu

yogic tradition.

Although the property was leased by Honig to

Well Being International at the time, it was Spirit of Aloha
Temple that applied for a Special Use Permit for a “church,
church[-]operated bed and breakfast establishment, weddings,
special events, day seminars, and helicopter landing pad.”

Those

uses were not permitted on the agriculturally zoned land without
a Special Use Permit.

The permit application was denied in 2010.

See id.
In December 2011, Honig leased the property to Spirit
of Aloha Temple.

In November 2012, Spirit of Aloha Temple

submitted a second application for a Special Use Permit to build
a church and hold religious events on the agriculturally zoned
land, uses not allowed without a Special Use Permit.

See id.

After the second requested Special Use Permit was denied,
Plaintiffs filed this action, asserting the following:
Count I--Substantial Burden on the exercise
of religion in violation of the Religious
Land Use and Institutionalized Persons Act of
2000 (“RLUIPA”), 42 U.S.C § 2000cc(a);
Count II--RLUIPA Nondiscrimination violation
of 42 U.S.C. § 2000cc(b)(2);
Count III--No claim asserted (a presumed
numbering error);
Count IV--Equal Terms violation of RLUIPA;
3

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Count V–-First Amendment prior restraint
violation;
Count VI--First Amendment free exercise
violation;
Count VII–-Fourteenth Amendment equal
protection violation;
Count VIII–-Hawaii state constitutional
violation of free exercise of religion clause
of article I, section 4; and
Count IX–--Hawaii state constitutional
violation of equal protection clause of
article I, section 5; and
Count X--appeal of County agency denial of
Special Use Permit.
See Complaint, ECF No. 1.
This case has a lengthy history.

On January 27, 2016,

the court dismissed Count X without prejudice to Plaintiffs’
pursuit of their appeal of the agency decision in state court.
The court stayed this case with respect to Counts I through IX
pending that appeal.

See ECF No. 109.

The stay was lifted on

February 13, 2017, after the state court affirmed the
administrative denial of the Special Use Permit.

See ECF Nos.

114, 116.
In July 2018, the court denied summary judgment motions
filed by both parties.

See 322 F. Supp. 3d 1051 (D. Haw. 2018).

In relevant part, this court ruled that, with respect to the
RLUIPA substantial burden claim asserted in Count I, a genuine
issue of material fact existed as to whether the County of Maui’s
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denial of the requested Special Use Permit imposed a substantial
burden on Plaintiffs’ exercise of their religion.

In particular,

the court ruled that there was a question of fact as to whether,
when Plaintiffs obtained an interest in the land, they did or did
not have a reasonable expectation that they could build a
religious institution there.

See id. at 1065.

The court

additionally ruled that there was a question of fact as to
whether the County of Maui used the least restrictive means in
denying Plaintiffs’ Special Use Permit application.

See id.

On April 23, 2019, the court granted partial summary
judgment with respect to Counts I, II, IV, VI, VII, VIII, and IX,
ruling that Plaintiffs were asserting only “as applied”
challenges in those counts.

The merits of those “as applied”

challenges were left for further adjudication.
3d 1231, 1234 (D. Haw. 2019).

See 384 F. Supp.

The court also granted summary

judgment against Plaintiffs with respect to Count V, rejecting
Plaintiffs’ contention that § 15-15-95(c) of the Hawaii
Administrative Rules amounted to a prior restraint.
55.

Id. at 1249-

In so ruling, this court expressly upheld the validity of

§ 15-15-95(c)(3).

Although Plaintiffs also challenged the

constitutionality of § 15-15-95(c)(2), this court declined to
address that challenge because the permit denial could rest on a
single subsection, such as § 15-15-95(c)(3), which the court
found valid.

5

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On June 22, 2019, the court granted summary judgment
against Plaintiffs with respect to all remaining claims except
for Count IV, ruling that the Maui Planning Commission’s fact
finding and decision were entitled to collateral estoppel effect.
See 409 F. Supp. 3d 889 (D. Haw. 2019).
At trial in 2019, the County of Maui prevailed on the
lone count remaining at the time, Count IV.
ECF No. 392.

See Verdict Form,

The advisory jury1 determined that Plaintiffs had

failed to prove by a preponderance of the evidence that Spirit of
Aloha Temple was a religious assembly or institution and that
Defendants had similarly failed to prove by a preponderance of
the evidence that Spirit of Aloha Temple was not a religious
assembly or institution.

The advisory jury found that Spirit of

Aloha Temple failed to show that it had been treated on less than
equal terms compared to the County’s treatment of a similarly
situated nonreligious entity, and that, in fact, the County had
shown that there was no such unequal treatment.

Id.

The court

entered final judgment in favor of the County of Maui as a
result.
Plaintiffs did not challenge the judgment in favor of
County of Maui with respect to Count IV, but they did appeal this
court’s summary judgment rulings.

1

On September 22, 2022, the

The jury was advisory because Count IV sought equitable
relief under RLUIPA. Although only Count IV was tried, a jury
had been demanded when jury-eligible claims were asserted.
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Ninth Circuit reversed in part.

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With respect to the facial

challenge to the land use ordinance asserted in Count V, the
Ninth Circuit ruled that Plaintiffs succeeded on their prior
restraint claim because part of the ordinance, § 15-15-95(c)(2),
granted unbridled discretion to the Maui Planning Commission in
allowing the commission to examine adverse effects on surrounding
See 49 F.4th 1180, 1192-93 (9th Cir. 2022).

property.

a provision that this court had declined to address.

This was
The Ninth

Circuit left it to this court to determine whether that
unconstitutional section could be severed from the rest of the
ordinance.

See id. at 1192, n.5.

The Ninth Circuit also ruled

that this court had erred in giving collateral estoppel effect to
the planning commission’s decision.

Id. at 1193-95.

On remand, this court, in light of the Ninth Circuit’s
ruling on the matter, ruled that § 15-15-95(c)(2) could not be
applied.

This court also ruled that § 15-15-95(c)(2) was

severable from the rest of § 15-15-95(c) and that the Maui
Planning Commission could rely on § 15-15-95(c)(3) in denying the
requested Special Use Permit.

Because the requested permit could

be denied if any part of § 15-15-95(c) was not satisfied, the
court granted summary judgment against Plaintiffs with respect to
the remainder of the prior restraint claim in Count V.
2752790, at *12 (D. Haw. Mar. 31, 2023).

2023 WL

Issues raised by that

grant of summary judgment are on appeal before the Ninth Circuit

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in the context of this court’s denial of Plaintiffs’ motion for
preliminary injunction raising the same issues.
In light of this procedural history, Counts I, II, VI,
VII, VIII, and IX remain for adjudication.

Before the court is a

motion for partial summary judgment filed by Plaintiffs with
respect to Counts I (RLUIPA substantial burden), VI (Free
Exercise Clause of First Amendment), and VIII (free exercise
clause under article I, section 4, of the Hawaii constitution).
Plaintiffs are not seeking partial summary judgment with respect
to the discrimination claims asserted in Counts II (RLUIPA
nondiscrimination), VII (Equal Protection Clause of the 14th
Amendment), and IX (equal protection under the Hawaii
constitution).
Also before the court is the County of Maui’s motion
for summary judgment with respect to all remaining counts (Counts
I, II, VI, VII, VIII, and IX) and a counter motion by the County
in response to Plaintiffs’ motion on Counts I, VI, and VIII.
With respect to Counts I, VI, and VIII, this court
rules that the denial of the requested Special Use Permit fails
strict scrutiny analysis because it was neither narrowly tailored
nor the least restrictive means of furthering a compelling
governmental interest.

This ruling addresses only one issue

relevant to Counts I, VI, and VIII.

As detailed later in this

order, questions of fact preclude summary judgment for either

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party with respect to other issues raised by Counts I, VI, and
VIII.

With respect to Counts II, VII, and IX, summary judgment

is denied in light of factual issues.
III.

SUMMARY JUDGMENT STANDARD.
This court set forth the summary judgment standard in

an order filed on July 20, 2018, in this case.
3d at 1065.
IV.

See 322 F. Supp.

That standard is incorporated here by reference.

ANALYSIS.
A.

Strict Scrutiny Applies to All Claims Now Before
This Court Except Count II.

Plaintiffs seek summary judgment in their favor with
respect to Counts I, VI, and VIII, arguing that the denial of the
requested permit fails to survive strict scrutiny.

The County

seeks summary judgment on those counts as well as on Counts II,
VII, and IX.
The exact contours of judicial scrutiny of government
intrusions on constitutional rights have been articulated in
different terms based on the claim asserted and the facts of the
case.

For example, in Reed v. Town of Gilbert, Arizona, 576 U.S.

155, 171 (2015), the Supreme Court examined content-based
restrictions on speech, stating that, to survive strict scrutiny,
the government must prove that the restrictions further a
compelling interest that is narrowly tailored to achieve that
interest.

Content-based regulation of constitutionally protected

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speech must use the least restrictive means of furthering the
articulated compelling interest.
146 F.3d 629, 637 (9th Cir. 1998).

See Foti v. City of Menlo Park,
When government intrusion on

speech is content-neutral, however, the analysis examines only
whether the intrusion is narrowly tailored to serve the
government’s legitimate interests, but the intrusion need not be
the least restrictive or least intrusive means of doing so.
Ward v. Rock Against Racism, 491 U.S. 781, 799 (1989).

See

These

Supreme Court cases, all involving government intrusion on
protected speech, demonstrate the need to examine the level of
scrutiny with respect to each claim asserted.

The court

therefore begins by examining what level of judicial scrutiny is
required with respect to each claim now before this court.
The three counts on which both Plaintiffs and the
County move for summary judgment–Counts I, VI, and VIII--trigger
strict scrutiny.
With respect to the RLUIPA substantial burden claim
asserted in Count I for a violation of 42 U.S.C. § 2000cc(a)(1),
Congress has placed the burden on a governmental entity to prove
that a land use regulation that imposes a substantial burden on
the religious exercise of a person “(A) is in furtherance of a
compelling governmental interest; and (B) is the least
restrictive means of furthering that compelling governmental
interest.”

10

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In requiring strict scrutiny, the RLUIPA substantial
burden claim in Count I contrasts with the RLUIPA equal terms
claim asserted in Count IV under 42 U.S.C. § 2000cc(b)(1).

Count

IV, the claim tried to an advisory jury, did not require strict
scrutiny.

The Ninth Circuit says that RLUIPA calls for an

examination of a “compelling governmental interest” and “least
restrictive means” only with respect to a RLUIPA substantial
burden claim under 42 U.S.C. § 2000cc(a)(1), such as the claim in
Count I.

See Centro Familiar Cristiano Buenas Nuevas v. City of

Yuma, 651 F.3d 1163, 1172 (9th Cir. 2011).

The RLUIPA equal

terms claim in Count IV and the RLUIPA substantial burden claim
in Count I arise under different statutory subsections.

Thus, at

trial, Count IV’s RLUIPA equal terms claim focused on equality of
treatment.

See id.
The court looks next at the alleged violation of the

Free Exercise Clause of the First Amendment asserted in Count VI.
A plaintiff bringing such a claim must show that a government
entity has burdened the plaintiff’s sincere religious practice.
Once such a showing is made, the government may escape liability
“by demonstrating its course was justified by a compelling state
interest and was narrowly tailored in pursuit of that interest.”
Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407, 2421–22 (2022).
In the context of a free exercise claim, the Supreme Court has
also stated that a government may justify an intrusion on

11

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religious liberty “by showing that it is the least restrictive
means of achieving some compelling state interest.”

Thomas v.

Rev. Bd. of Indiana Emp. Sec. Div., 450 U.S. 707, 718 (1981).
Plaintiffs’ free exercise claim asserted in Count VIII
under the Hawaii constitution, article I, section 4, applies a
similar standard.

Under Hawaii law, when the government “imposes

a burden upon the free exercise of religion . . . , the
regulation must be justified with a compelling government
interest, and the government has the burden of demonstrating that
no alternative forms of regulation would combat such abuses
without infringing First Amendment rights.”

State v. Armitage,

132 Haw. 36, 59, 319 P.3d 1044, 1067 (2014) (quotation marks and
citation omitted).
Only the County (not Plaintiffs) moves for summary
judgment on Counts II, VII, and IX.

Of those three counts,

Counts VII and IX trigger strict scrutiny, while Count II does
not.
The RLUIPA discrimination claim asserted in Count II
asserts a violation of 42 U.S.C. § 2000cc(b)(2).

That provision

is located in the same subsection that addresses a RLUIPA equal
terms claim.

Because the Ninth Circuit does not apply strict

scrutiny to a RLUIPA equal terms claim, see Centro Familiar
Cristiano Buenas Nuevas, 651 F.3d at 1172, it appears that the
Ninth Circuit would not apply strict scrutiny to a RLUIPA

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discrimination claim.

Instead, the analysis should focus on

whether a land use regulation is discriminating “against any
assembly or institution on the basis of religion or religious
denomination.”

42 U.S.C. § 2000cc(b)(2).

Of course, whether a

land use regulation is narrowly tailored to further a compelling
governmental interest may inform any decision with respect to
whether the regulation is discriminating based on the basis of
religion or religious denomination.
With respect to the alleged violation of the Equal
Protection Clause of the Fourteenth Amendment asserted in
Count VII, a government’s unequal treatment based on religion
must meet strict scrutiny.

That is, government classifications

based on religion “will be sustained only if they are suitably
tailored to serve a compelling state interest.”

City of

Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432, 440 (1985);
see also Al Saud v. Days, 50 F.4th 705, 709–10 (9th Cir. 2022)
(“The Equal Protection Clause prohibits the government from
classifying people based on suspect classes, unless the
classification is narrowly tailored to satisfy a compelling
governmental interest (i.e., the government’s action passes
strict scrutiny).”).
The equal protection claim under the Hawaii
constitution, article I, section 5, asserted in Count IX applies
a similar analysis.

See Baehr v. Lewin, 74 Haw. 530, 580, 852

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P.2d 44, 67 (1993), abrogated on other grounds by Obergefell v.
Hodges, 576 U.S. 644 (2015).

In Baehr, the Hawaii Supreme Court

ruled that, with respect to suspect classifications for purposes
of equal protection analysis under article I, section 5, of the
Hawaii constitution, strict scrutiny requires an analysis of
whether a classification is justified by compelling state
interests and narrowly drawn to avoid unnecessary abridgments of
constitutional rights.

Id.

Under any formulation of the strict scrutiny analysis,
this court agrees with Plaintiffs that, with respect to the three
counts Plaintiffs move on (Counts I, VI, and VIII), the denial of
the requested Special Use Permit does not survive strict
scrutiny.

The denial was neither narrowly tailored nor the least

restrictive means of furthering any compelling governmental
interest.

This court therefore grants partial summary judgment

in favor of Plaintiffs limited to the strict scrutiny issue
raised by those counts.

As described below, however, genuine

issues of fact with respect to other matters raised by Counts I,
VI, and VIII preclude summary judgment in Plaintiffs’ favor on
the entirety of those three counts.
In opposing Plaintiffs’ motion, the County of Maui
repeats an earlier argument that the denial of Plaintiffs’
requested Special Use permit satisfied strict scrutiny.

In 2018,

this court ruled that it could not “determine that, as a matter

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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.”
at 1065-66.

322 F.3d

In 2019, trial on those issues of fact was obviated

by this court’s determination that the Maui Planning Commission’s
factual and legal rulings with respect to the denial of the
requested Special Use Permit (ECF No. 513-6), including its
rulings with respect to strict scrutiny, had collateral estoppel
effect.

See 409 F. Supp. 3d 889, 905 (D. Haw. 2019).

The Maui

Planning Commission had determined that “there were health and
safety issues implicated by the likely significant increase in
traffic attributable to the uses proposed by the Application” and
that “inclement weather would increase the likelihood of
accidents and human injuries or death.”
# 12926.

ECF No. 513-6, PageID

The Maui Planning Commission, despite having a

recommendation by the Maui Planning Department (ECF No. 511-3) to
the contrary, ruled “that these compelling public health and
safety issues could not be adequately addressed by the
implementation of any permit condition or use restriction.”

Id.

In addition to ruling that the commission’s findings and decision
had preclusive effect, this court noted that it would not
hesitate to recognize that protecting the public was a compelling
governmental interest.

See 409 F. Supp. 4th at 905.

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On appeal, the Ninth Circuit ruled that this court had
erred in giving collateral estoppel effect to the Maui Planning
Commission’s decision.

49 F.4th 1180, 1193-95 (9th Cir. 2022).

While the County of Maui again seeks to have this court treat the
Maui Planning Commission’s factual findings as having preclusive
effect, that approach would flout the Ninth Circuit’s ruling.
The court gives no preclusive effect to those findings.

This, of

course, still allows the court to consider the underlying
undisputed facts.
The County of Maui has identified two compelling public
safety interests that it says justify the denial of Plaintiffs’
Special Use Permit application.

First, the County points to the

Maui Planning Commission’s identification of road safety as a
compelling interest justifying the denial of the requested
permit:
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
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ensuring the public’s safety while granting
the uses requested in the Application.
ECF No. 185-9, PageID # 3288-89.
Second, the County argues that the lack of sufficient
wastewater facilities and potable water also amounts to a public
health concern qualifying as a compelling interest.

Water

concerns were not cited by the Maui Planning Commission as a
basis for the second permit denial, although the lack of
wastewater facilities and potable water were raised before the
commission.

This court raised with the parties the issue of

whether, during the present litigation, the County could seek the
same result it obtained from the Maui Planning Commission but on
water safety grounds not ultimately relied on by the commission.
The matter not having been thoroughly briefed or argued by the
parties, the court is not in a position to rule on that issue in
this order.

Possibly, because the commission’s findings and

decision have no preclusive effect in this lawsuit, the County
may add water concerns.

For purposes of this order, it does not

matter, as with or without water concerns, in the context of the
claims that Plaintiffs seek summary judgment on, the County does
not satisfy strict scrutiny.
In short, even if the court deems road safety and the
lack of wastewater facilities and potable water to indeed be
compelling interests identified by the County, the undisputed
facts demonstrate that the denial of the permit application was
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not narrowly tailored or the least restrictive means of
furthering those interests.
Since this court’s earlier rulings, this case has gone
to trial on Plaintiffs’ RLUIPA equal terms claim asserted in
Count IV.

Thus, this court now has a different record than when

it earlier denied summary judgment motions with respect to strict
scrutiny.

While the trial was on a different claim, the evidence

at trial unequivocally demonstrated that the denial of the
requested Special Use Permit was not narrowly tailored or the
least restrictive means of furthering a compelling governmental
interest.

At trial, the Maui Planning Department’s

recommendation to the Maui Planning Commission was discussed at
length.

For example, Randall Okaneku, a licensed civil engineer

with a concentration in traffic engineering, testified at trial.
See ECF No. 436, PageID #s 137-38.2

The court qualified Okaneku

as an expert in the field of traffic engineering, including
traffic safety.

Id., PageID # 9609.

Okaneku testified about the Maui Planning Department’s
recommendation.

See id., PageID #s 9703-09.

In its proposed

condition No. 12, the department had stated:
That in order to reduce the amount of traffic
on Haumana Road [, where Plaintiffs’ property
was located, Plaintiffs] . . . shall use a
shuttle system (vans and limousines) to bring

2

Plaintiffs attach excerpts of this testimony as ECF No.
518-3.
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event guests to and from the property for all
events that will have more than 25 persons in
attendance. Every effort should be taken to
shuttle or carpool event guests to all
activities. Shuttles shall use privately
owned facilities, such as hotels, for their
operations such as drop-offs and pick-ups.
ECF No. 511-3, PageID # 12440.

That recommendation was received

as part of Plaintiffs’ Exhibit 8 at trial.

See ECF No. 435,

PageID # 9286-87.
The County of Maui argues that any discussion of
“reducing” traffic makes no sense because any additional people
going to the property would actually increase traffic on Haumana
Road.

See ECF No. 534, PageID # 14870-71.

The County

misconstrues the concept of “reducing” traffic as meaning
avoiding all traffic over and above existing traffic.

But the

Maui Planning Department was clearly looking at controlling the
additional traffic that would result from Plaintiffs’ proposed
activities.

The Maui Planning Department was considering

measures to limit vehicles traveling to and from Plaintiffs’
property via Haumana Road.

Rather than allowing every person

visiting the property to drive a private vehicle, the department
suggested that guests carpool and that shuttles be used.

Okaneku

opined that “these mitigation measures would minimize the amount
of traffic increase on Haumana Road” caused by granting
Plaintiffs’ requested Special Use Permit and that these
conditions were reasonable.

ECF No. 437, PageID #s 9706, 9708.

19

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In addition, Okaneku testified that he would also
recommend the installation of pullouts so that a vehicle could
pull over to let another vehicle driving in the opposite
direction pass, as well as appropriate signs saying that cars
should yield to oncoming traffic.

Id., PageID # 9709.

Installing pullouts may well be difficult; the County points out
that they would have to be installed on private property owned by
Honig’s neighbors.

See ECF No. 534, PageID # 14874.

Okeneku’s

lack of familiarity with the feasibility of his pullout
suggestion goes to his credibility and familiarity with the
conditions of the narrow road.

But Okeneku’s opinion that

mitigation measures could minimize traffic and thereby reduce the
danger arising from cars traveling on Haumana Road appears
supported by the evidence in the record.
William Spence, the County of Maui planning director,
testified at trial.

See ECF Nos. 438, 439.3

Spence also

testified about the conditions that the Maui Planning Department
was recommending with respect to the requested Special Use
Permit.

For example, the Maui Planning Department recommended in

Condition # 7 that classes be limited to 24 attendees and to 4
sessions per week between 10 a.m. and 4 p.m.

Similarly, church

services were to be limited to 24 attendees once per week between

3

Plaintiffs attach excerpts of this testimony as ECF No.
518-6.
20

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10 a.m. and 2 p.m.

Church-related events such as weddings were

to be limited to 40 attendees and 48 events per year, with no
more than 4 in any month.
had 25 or more people.

Shuttles were to be used when events

See ECF No. 511-3, PageID # 12438.

Spence testified that these conditions would limit the activity
on the property, which would, in turn, limit the volume of
vehicles on Haumana Road.

ECF No. 439, PageID #s 10105-06.

The

County’s focus on the application’s proposed number of attendees
per month disregards the possible limitations that could be
imposed as conditions of granting the Special Use Permit
application.

That is, the County focuses on the initial numbers

of attendees proposed by the application, without truly
discussing whether any conditions could be placed on those
attendees to further any identified compelling interest.
e.g., ECF No. 534, PageID #s 14867-68.

See,

Spence specifically noted

that the shuttle requirement would limit traffic on the road and
thereby lessen traffic conflicts on it.
10112.

Id., PageID #s 10107,

At trial, Honig testified that Plaintiffs had agreed to

limit the number of attendees and to require the use of shuttles
for events involving more than 25 people.

See ECF No. 435,

PageID #s 9290-93.
In addition to traffic safety concerns and conditions
to reduce those concerns, Spence testified about health concerns
and safety measures that could be implemented.

21

For example,

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PageID.15084

based on discussions with the Department of Health and the
limitations of Plaintiffs’ existing septic system, the Maui
Planning Department recommended in Condition # 8 restrictions on
the number of people attending events.

This condition was to

ensure that Plaintiffs’ wastewater system remained functional
such that it did not overflow and cause a health hazard.
No. 439, PageID # 10108.

See ECF

Honig testified at trial that

Plaintiffs had agreed to Condition # 8.

See ECF No. 435, PageID

#s 9294.
Spence also testified that, in recommended Condition
# 10, the Maui Planning Department sought to limit food
preparation on Plaintiffs’ property.

Spence testified that this

condition was based on the Department of Health’s concern that
food might be washed with water or prepared in a kitchen that was
not certified.

ECF No. 439, PageID #s 10110-11.

The State

Department of Health, Safe Drinking Water Branch, had commented
on Plaintiffs’ Special Use Permit application that, with respect
to catering events, caterers had to provide potable water for a
hand sink and could not use water from the property given the
quality of the water on the property.
# 2902.

See ECF No. 183-9, PageID

This concern may have arisen because Honig appears to

have “installed cesspools near drinking water wells.”
at 1184.

49 F.4th

Additionally, the Maui Planning Department noted that

the “availability of potable water on the site for event guests

22

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is highly restricted, requiring purified water from outside the
property to be brought on site.

Essentially no potable water for

consumption by event attendees is available from the private
water supply on property.”

ECF No. 511-3, PageID # 12410.

The

Planning Department’s recommended Condition # 11 required
Plaintiffs to test water from a well on Plaintiffs’ property to
make sure that it was safe to use.
To address concerns about public safety with respect to
traveling on Haumana Road and the cleanliness of facilities on
the property, Okaneku’s and Spence’s testimony and the Maui
Planning Department’s recommendations established that there were
conditions that could have been imposed as prerequisites for the
Special Use Permit that would have furthered the County’s
interest in public safety.

Plaintiffs have indicated that they

were and are “willing to comply with any reasonable conditions of
approval for [their] special use permit.”
No. 511-4, PageID # 12819.

Honig Decl. ¶ 44, ECF

Specifically, instead of denying the

permit application because of concerns about the number of
attendees driving on Haumana Road, the record establishes that
limits on the number of attendees, carpools, and the required use
of shuttles for events larger than 25 people, could control the
number of people driving on the road and therefore mitigate road
safety concerns.

These conditions are precisely the kind of

narrow tailoring required by strict scrutiny.

23

While not having

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any additional drivers on the road would completely eliminate any
road safety issue, the County has not established that precluding
all additional drivers is the only way of furthering road safety.
The Maui Planning Commission was clearly concerned with the
safety of pedestrians on the road.

But its conclusion that it

needed to preclude any additional cars on the road was overbroad
and unjustified by the record.
Similarly, the County fails to establish that
precluding all attendees is the only way of furthering its
concerns about the lack of wastewater facilities and potable
water.

To the contrary, the Maui Planning Department noted that

Plaintiffs’ wastewater facilities are sufficient to handle 40
people on the property for 6 hours.
# 12410.

See ECF No. 511-3, PageID

Limiting the number of attendees could ensure that

there would be no problem with the wastewater facilities.

The

Maui Planning Department also noted that potable water could be
brought on site.

Id.

Thus, even though Plaintiffs may have

resisted such a requirement, see ECF No. 183-13, PageID # 3001
(email from Honig demanding “our rights to operate as a Private
Water System and as a 501c3 Church”), requiring potable water to
be brought to the property until Plaintiffs demonstrated the
safety of their well water could have been a condition furthering
public health concerns.

24

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The narrowly tailored prong requires this court to
“verify” that the government’s action was “necessary” to achieve
its identified interest.

See generally Fisher v. Univ. of Texas

at Austin, 570 U.S. 297, 312 (2013) (stating, in examining an
equal protection claim, “Narrow tailoring also requires a
reviewing court to verify that it is ‘necessary’ for the
university to use race to achieve the educational benefits of
diversity.”).

Given the availability of conditions that would

have furthered the County’s identified interests, the County’s
outright denial of the permit was not narrowly tailored to
advance those interests, as the outright denial of the permit was
not “necessary” to achieve those interests.
Similarly, given the availability of conditions on the
Special Use Permit that would have furthered the identified
compelling interests, the outright denial of the Special Use
Permit was not the least restrictive means of furthering those
interests.

See Burwell v. Hobby Lobby Stores, Inc., 573 U.S.

682, 728 (2014) (“The least-restrictive-means standard is
exceptionally demanding,” requiring the Government to demonstrate
that it “lacks other means of achieving its desired goal without
imposing a substantial burden on the exercise of religion by the
objecting parties in these cases.”); see also Holt v. Hobbs, 574
U.S. 352, 365 (2015) (stating that, with respect to the issue of
the least restrictive means, “[i]f a less restrictive means is

25

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available for the Government to achieve its goals, the Government
must use it.” (quotation marks and citation omitted)).
The County of Maui’s mere consideration of or reference
to alternatives does not satisfy the least restrictive means
requirement.

See ECF No. 525, PageID # 14807.

Instead, the

uncontroverted facts before this court demonstrate that the
outright denial of the requested permit was neither narrowly
tailored nor the least restrictive means of furthering public
safety, even assuming that public safety qualifies as a
compelling government interest for purposes of the strict
scrutiny analysis.

Accordingly, the court grants Plaintiffs

partial summary judgment on the strict scrutiny issue in the
context of Counts I, VI, and VIII.

The court rules that, in the

context of Counts I, VI, and VIII, Plaintiffs establish that the
denial of the requested Special Use Permit fails any applicable
strict scrutiny analysis.

The court stresses that this ruling

affects only a portion of the matters Plaintiffs must prove to
prevail on Counts I, VI, and VIII, as detailed later in this
order.
B.

Count I--Substantial Burden Under RLUIPA.

Both parties seek summary judgment with respect to
Count I, which asserts that the County of Maui’s imposition and
implementation of land use regulations to deny Plaintiffs’
requested Special Use Permit for “CHURCH ACTIVITIES” amounted to

26

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a substantial burden on Honig’s and Spirit of Aloha Temple’s
religious exercise, in violation of 42 U.S.C. § 2000cc(a).

That

statutory provision 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 substantial
burden claims 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); see also New Harvest Christian
Fellowship v. City of Salinas, 29 F.4th 596, 601 (9th Cir. 2022)
(stating that only when a plaintiff proves that the denial of an
application imposed a substantial burden on its religious
27

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exercise does the burden shift to the government to show that its
denial was narrowly tailored to accomplish a compelling
governmental interest); 42 U.S.C. § 2000cc-2(b) (“If a plaintiff
produces prima facie evidence to support a claim alleging a . . .
a violation of section 2000cc of this title, the government shall
bear the burden of persuasion on any element of the claim, except
that the plaintiff shall bear the burden of persuasion on whether
the law (including a regulation) or government practice that is
challenged by the claim substantially burdens the plaintiff’s
exercise of religion.”).
While the County of Maui has failed to show that the
denial of the requested permit was narrowly tailored or was the
least restrictive means of furthering a compelling governmental
interest, that does not end the RLUIPA substantial burden
inquiry.

To succeed on their RLUIPA substantial burden claim,

Plaintiffs must still establish that the challenged land use
regulation imposed a substantial burden on their exercise of
religion.4

In adjudicating that issue, courts “examine the

particular burden imposed by the implementation of the relevant

4

The advisory verdict that determined that Spirit of Aloha
Temple had failed to prove that it was a “religious assembly or
institution” does not preclude Plaintiffs from maintaining their
RLUIPA substantial burden claim, as RLUIPA prohibits “a
substantial burden on the religious exercise of a person,
including a religious assembly or institution.” A plaintiff may
be able to establish that the plaintiff is such person, even if
the plaintiff is not a “religious assembly or institution.”
28

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zoning code on the claimant’s religious exercise and determine,
on the facts of each case, whether that burden is ‘substantial.’”
Int'l Church of Foursquare Gospel, 673 F.3d at 1066.

“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, 574 U.S. 352, 361-62 (2015).
RLUIPA requires that it “be construed in favor of a

broad protection of religious exercise, to the maximum extent
permitted by the terms of this chapter and the Constitution.”
U.S.C. § 2000cc-3(g).

42

It defines “religious exercise” as

“includ[ing] any exercise of religion, whether or not compelled
by, or central to, a system of religious belief.”

42 U.S.C.

§ 2000cc-5(7)(A).
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.
29

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Int'l Church of Foursquare Gospel, 673 F.3d at 1067 (quotation
marks, alterations, and citations omitted); see also New Harvest
Christian Fellowship, 29 F.4th at 602.

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.”
at 1068.

Int'l Church of Foursquare Gospel, 673 F.3d

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
30

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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
that the property had been agricultural 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
31

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PageID.15094

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.
Plaintiffs in the present case contend that the denial
of the requested Special Use Permit allowing their church on
agricultural land is similarly a substantial burden on their
exercise of their religion, especially because they are willing
to comply with all reasonable conditions imposed as a condition
of that permit.

Plaintiffs, however, ignore this court’s

previous summary judgment order on this issue.

In 2018, this

court ruled that, with respect to the RLUIPA substantial burden
claim asserted in Count I, a genuine issue of material fact
existed as to whether the County of Maui’s denial of the
requested Special Use Permit imposed a substantial burden on
Plaintiffs’ exercise of religion.

In particular, this court

ruled that there was a question of fact as to whether Plaintiffs
obtained an interest in the land without a reasonable expectation
of being allowed to build a religious institution on it.
F. Supp. 3d at 1065:
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:
32

See 322

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[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 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
33

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PageID.15096

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 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.
Id.
The record before this court now is not materially
different with respect to this issue of fact.

Honig did admit at

trial that, when he first leased the property to Spirit of Aloha
Temple, he knew that Spirit of Aloha’s first Special Use Permit
application had already been denied.
# 9964.

See ECF No. 438, PageID

However, that admission does not establish one way or

the other whether it was reasonable for Spirit of Aloha Temple to
expect that it would get the Special Use Permit or whether it
created its own burden by entering into a lease when it knew that
a previous Special Use Permit application had been denied.
Accordingly, Plaintiffs fail on the present motion to establish
that the undisputed facts demonstrate that the denial of their
Special Use Permit application is a substantial burden on their
exercise of religion.

For that reason, their motion is denied

with respect to Count I.

At trial, if Plaintiffs succeed in

demonstrating that the denial of the requested permit
substantially burdened their exercise of religion, Plaintiffs

34

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will succeed on their RLUIPA substantial burden claim.

As

discussed above, the denial of the permit application was not the
least restrictive means of furthering a compelling governmental
interest.
C.

Count VI--Free Exercise of Religion.

Count VI, on which both sides seek summary judgment,
asserts that the County of Maui deprived and is depriving
Plaintiffs of their First Amendment right to freely exercise
their religion, actionable under 42 U.S.C. § 1983.

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 . . . .”
extended to cities enacting ordinances.

It has been

See Church of the Lukumi

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

A

plaintiff asserting a First Amendment free exercise of religion
claim “must show that the government action in question
substantially burdens the person’s practice of her religion.”
Jones v. Williams, 791 F.3d 1023, 1031 (9th Cir. 2015); Temple of
1001 Buddhas v. City of Fremont, 588 F. Supp. 3d 1010, 1022 (N.D.
Cal. 2022) (“A state actor violates the Free Exercise Clause of
the First Amendment when it substantially burdens the person’s
practice of their religion.” (quotation marks and citation
omitted)).

For purposes of a free exercise of religion claim, a

35

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“substantial burden places more than an inconvenience on
religious exercise; it must have a tendency to coerce individuals
into acting contrary to their religious beliefs or exert
substantial pressure on an adherent to modify his behavior and to
violate his beliefs.”

Jones, 791 F.3d at (alterations, quotation

marks, and citation omitted).
To succeed on a free exercise of religion claim, a
plaintiff has the burden of establishing 1) that the claimant’s
proffered belief is sincerely held, as the First Amendment does
not extend to “religions” that are obviously shams and whose
members are patently devoid of religious sincerity; and 2) that
the claim is “rooted in religious belief, not in ‘purely secular’
philosophical concerns.”

Callahan v. Woods, 658 F.2d 679, 683

(9th Cir. 1981); see also Walker v. Beard, 789 F.3d 1125, 1138
(9th Cir. 2015).
The County of Maui claims that, even if Plaintiffs meet
their burden of demonstrating a free exercise of religion claim,
the County has no liability because its actions pass judicial
scrutiny.

When a government restricts the free exercise of

religion, the court must determine what level of scrutiny should
be applied to such a restriction.

“[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.”

36

Id.

A law that

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PageID.15099

is not neutral or is not one of general applicability, on the
other hand, must be justified by a compelling governmental
interest and must be narrowly tailored to advance that interest.
Id. at 531-32; Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S.
Ct. 63, 67 (2020) (“Because the challenged restrictions are not
‘neutral’ and of ‘general applicability,’ they must satisfy
‘strict scrutiny,’ and this means that they must be ‘narrowly
tailored’ to serve a ‘compelling’ state interest.”);
Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
U.S. 520, 546 (1993) (“A law burdening religious practice that is
not neutral or not of general application must undergo the most
rigorous of scrutiny.

To satisfy the commands of the First

Amendment, a law restrictive of religious practice must advance
interests of the highest order and must be narrowly tailored in
pursuit of those interests.” (quotation marks and citation
omitted)).
In 2021, the Supreme Court held that “[a] law is not
generally applicable if it invites the government to consider the
particular reasons for a person’s conduct by providing a
mechanism for individualized exemptions.”

Fulton v. City of

Philadelphia, PA, 141 S. Ct. 1868, 1877 (2021) (quotation marks,
alterations, and citations omitted).

Fulton explained, “The

creation of a formal mechanism for granting exceptions renders a
policy not generally applicable, regardless whether any

37

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exceptions have been given, because it invites the government to
decide which reasons for not complying with the policy are worthy
of solicitude--here, at the Commissioners sole discretion.”

Id.

at 1879 (quotation marks, alterations, and citation omitted).
The court therefore turns to examining whether the Special Use
Permit application process in this case amounts to “a formal
mechanism for granting exceptions” for land uses in
agriculturally zoned land in Hawaii.
Section 205-2 of Hawaii Revised Statutes describes the
four major land use districts in Hawaii--urban, rural,
agricultural, and conservation.

In relevant part, § 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
which the district is classified,” subject to protective
restrictions.
To determine whether a proposed use is an “unusual and
reasonable use,” § 15-15-95(c) of the Hawaii Administrative Rules
provides five “guidelines” for granting an exception to
agriculturally zoned land restrictions:
(1) The use shall not be contrary to the
objectives sought to be accomplished by
38

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PageID.15101

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).

As noted earlier in this

order, the Ninth Circuit has recently determined that the second
“adverse affect” guideline is unconstitutional.

See 49 F.4th at

1192-93.
Under § 19.30A.060.A.9 of the Maui County Code,
churches and religious institutions are expressly permitted in an
agricultural district “if a special use permit, as provided in
§ 19.510.070[B] of this title, is obtained.”
https://library.municode.com/hi/county_of_maui/codes/code_of_ordi
nances?nodeId=TIT19ZO_ARTIICOZOPR_CH19.30AAGDI_19.30A.060SPUS.
Under § 19.510.070.B.8, 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.”
39

Id. (available at

Case 1:14-cv-00535-SOM-WRP Document 540 Filed 08/11/23 Page 40 of 61
PageID.15102

https://library.municode.com/hi/county_of_maui/codes/code_of_ordi
nances?nodeId=TIT19ZO_ARTVADEN_CH19.510APPR_19.510.070SPUSPE).
Given the individualized examination of a church’s or
religious institution’s Special Use Permit application pursuant
to § 19.30A.060.A.9 of the Maui County Code, § 15-15-95(c) of the
Hawaii Administrative Rules, and § 205-6(a) and (c) of Hawaii
Revised Statutes, the application of these land use regulations
and statutes does not involve law of general applicability for
which rational review would be applied.

Instead, the

individualized examination of circumstances relating to the
granting of an exception for religious use of property in
agriculturally zoned land, under Fulton, requires application of
a strict scrutiny analysis.

See San Jose Christian Coll., 360

F.3d at 1031.
The County of Maui seeks summary judgment in its favor
with respect to Count VI, arguing that it satisfies the strict
scrutiny analysis required by that count.

Plaintiffs, on the

other hand, seek summary judgment in their favor with respect to
Count VI, arguing that strict scrutiny is not satisfied.

While

the court agrees that, as discussed above, strict scrutiny is not
satisfied in the context of Count VI, Plaintiffs are not entitled
to summary judgment with respect to the entirety of Count VI
because a question of fact remains as to whether Plaintiffs were
exercising religious rights that were substantially burdened.
40

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PageID.15103

In the deposition of the County of Maui’s witness under
Rule 30(b)(6) of the Federal Rules of Civil Procedure, the
County’s counsel stated that “the county is not arguing in this
lawsuit the Mr. Honig’s–-the sincerity of Mr. Honig’s beliefs one
way or the other.”

Thus, the court turns to whether Plaintiffs’

claim is “rooted in religious belief, not in ‘purely secular'
philosophical concerns.”

In its counter motion for summary

judgment, the County of Maui argues that it is not.5

That is,

the County claims that Plaintiffs are not operating a church
based on religious beliefs, but instead are operating a
commercial wedding and tourist destination business.

See

Founding Church of Scientology of Washington, D. C. v. United
States, 409 F.2d 1146, 1160 (D.C. Cir. 1969) (“It might be
possible to show that a self[-]proclaimed religion was merely a
commercial enterprise, without the underlying theories of man’s
nature or his place in the Universe which characterize recognized
religions.

Though litigation of the question whether a given

group or set of beliefs is or is not religious is a delicate
business, our legal system sometimes requires it so that secular

5

Plaintiffs argue that this counter motion is untimely as it
was filed after the dispositive motions cutoff. ECF No. 523,
PageID # 14688 n.1. However, counter motions are allowed
pursuant to Local Rule 7.7 (“Any motion raising the same subject
matter as an original motion may be filed by the responding party
together with the party’s opposition and may be noticed for
hearing on the same date as the original motion, provided that
the motions would otherwise be heard by the same judge.”).
41

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PageID.15104

enterprises may not unjustly enjoy the immunities granted to the
sacred.”).
There are some facts, as noted in this court’s 2018
order, tending to support the County’s contention.

Honig

purchased the Haumana Road property in September 1994.

Well

Being International Inc. was incorporated in February 1993 to
perform research and instruction for individual and global peace,
harmony, and health.

322 F.3d at 1054.

From 2002 through 2007,

Honig applied for various trade names so that Well Being
International could advertise for weddings or sacred unions on
the property.

Id. at 1054-55.

In 2005, Honig leased the Haumana

Road Property to Well Being International.

Id. at 1055.

Spirit

of Aloha Temple was formed in September 2007 and sought its first
Special Use Permit for the Haumana Road property in October 2007.
At that time, Well Being International was still leasing the
property from Honig.

Id.

By late 2015, about 550 weddings had

been performed on the property.

See 49 F.4th at 1184; ECF No.

438, PageID # 9964 (Honig testifying at trial that the first
Special Use Permit application had been denied by the time he
leased the property to Spirit of Aloha Temple).

Additionally, in

the earlier trial Plaintiffs failed to prove that Spirit of Aloha
Temple was a religious assembly or institution.
Form, ECF No. 392, PageID # 7139.

42

See Verdict

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PageID.15105

Plaintiffs, on the other hand, argue that the County
has already conceded that their claim is rooted in religious
belief, pointing to the deposition testimony of the County’s Rule
30(b)(6) representative.

William Spence testified, “I would say

that some [of Plaintiffs’ proposed uses for the land we]re
religious in nature” and that some, like the a commercial wedding
business and helicopter flights, were not religious in nature.
ECF No. 511-3, PageID #s 12369-70.

The County is not challenging

the sincerity of Plaintiffs’ religious beliefs, so the fact that
the 2012 Special Use Permit application sought to use the
property for “CHURCH ACTIVITIES,” including Sunday services,
tends to support Spence’s notation that some of the proposed uses
were religious in nature.

See Land Use Commission Special Use

Permit Application, ECF No. 183-6, PageID #s 2803-04.
With respect to Rule 30(b)(6) deponents, however, the
Ninth Circuit has stated:
“the testimony of a Rule 30(b)(6) deponent
does not absolutely bind the corporation in
the sense of a judicial admission, but rather
is evidence that, like any other deposition
testimony, can be contradicted and used for
impeachment purposes. The Rule 30(b)(6)
testimony also is not binding against the
organization in the sense that the testimony
can be corrected, explained and supplemented,
and the entity is not ‘irrevocably’ bound to
what the fairly prepared and candid
designated deponent happens to remember
during the testimony.”

43

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PageID.15106

Snapp v. United Transportation Union, 889 F.3d 1088, 1104 (9th
Cir. 2018) (quoting 7 James Wm. Moore, et al., Moore’s Federal
Practice § 30.25[3] (3d ed. 2016)).

Moreover, the Ninth Circuit

says, “[A] Rule 30(b)(6) deponent’s own interpretation of the
facts or legal conclusions do not bind the entity.”

Id.

Even if the County were bound by Spence’s statement
that he “would say some of [the proposed uses] are religious in
nature,” that does not necessarily mean that Plaintiffs were
exercising religious rights as opposed to operating a for-profit
business.

And even a for-profit business might sometimes

exercise religious rights.

See Burwell v. Hobby Lobby Stores,

Inc., 573 U.S. 682, 719 (2014) (recognizing that a for-profit
closely held corporation may assert claims under the Religious
Freedom Restoration Act of 1993).
At trial it may become clear that Plaintiffs were
exercising religious rights rather than operating a purely
commercial business.

Plaintiffs, after all, sought the permit to

hold religious services and ceremonies.

But the County raises

sufficient questions of fact such that summary judgment is denied
with respect to the free exercise of religion claim asserted in
Count VI.

That is, the trial factfinder must determine whether

Plaintiffs’ claim is “rooted in religious belief, not in ‘purely
secular' philosophical concerns.”
accord Walker, 789 F.3d at 1138.

44

Callahan, 658 F.2d at 683;

Case 1:14-cv-00535-SOM-WRP Document 540 Filed 08/11/23 Page 45 of 61
PageID.15107

Plaintiffs may be exercising sincere religious beliefs
(e.g., holding church services).

See 42 U.S.C. § 2000cc-5(7)(B)

(“The use, building, or conversion of real property for the
purpose of religious exercise shall be considered to be religious
exercise of the person or entity that uses or intends to use the
property for that purpose.”).

Even if a partial motive for

obtaining the Special Use Permit is to conduct a commercial
business, Plaintiffs might at trial satisfy the second
requirement that the claim be “rooted in religious belief, not in
‘purely secular' philosophical concerns.”

In that event,

Plaintiffs would likely meet their burden of proving their free
exercise of religion claim under the First Amendment.

Jones, 791

F.3d at 1031 (“A person asserting a free exercise claim must show
that the government action in question substantially burdens the
person’s practice of her religion.”).
If Plaintiffs are actually exercising religious rights,
then the denial of the requested Special Use Permit would likely
impose a substantial burden on Plaintiffs’ religious exercise, as
having a place to worship is at the core of the free exercise of
religion.

See Int'l Church of Foursquare Gospel, 673 F.3d at

1070 (quoting Vietnamese Buddhism Study Temple in Am. v. City of
Garden Grove, 460 F. Supp. 2d 1165, 1171 (C.D. Cal. 2006) (“[A]
place of worship . . . is at the very core of the free exercise
of religion . . . [and] [c]hurches and synagogues cannot function

45

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PageID.15108

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.”), and citing
Cottonwood Christian Ctr. v. Cypress Redevelopment Agency, 218 F.
Supp. 2d 1203, 1226 (C.D. Cal. 2002) (“Preventing a church from
building a worship site fundamentally inhibits its ability to
practice its religion.

Churches are central to the religious

exercise of most religions.

If Cottonwood could not build a

church, it could not exist.”).
D.

Summary Judgment is Denied With Respect to Count
VIII--Free Exercise of Religion Claim Under the
Hawaii Constitution.

The parties also seek summary judgment with respect to
the free exercise of religion claim asserted under article I,
section 4, of the Hawaii constitution, which states: “No law
shall be enacted respecting an establishment of religion, or
prohibiting the free exercise thereof, or abridging the freedom
of speech or of the press or the right of the people peaceably to
assemble and to petition the government for a redress of
grievances.”
In order to find an unconstitutional
infringement on Appellants’ religious
practices, it is necessary to examine whether
or not the activity interfered with by the
state was motivated by and rooted in a
legitimate and sincerely held religious
belief, whether or not the parties’ free
exercise of religion had been burdened by the
46

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PageID.15109

regulation, the extent or impact of the
regulation on the parties’ religious
practices, and whether or not the state had a
compelling interest in the regulation which
justified such a burden.
Dedman v. Bd. of Land & Nat. Res., 69 Haw. 255, 260, 740 P.2d 28,
32 (1987) (quotation marks, alterations, and citation omitted).
In State v. Armitage, 132 Haw. 36, 58-59, 319 P.3d
1044, 1066 (2014), the Hawaii Supreme Court analyzed free
exercise of religion claims under the Hawaii and the federal
Constitutions, applying the same standard to both.

It stated

that “a generally applicable law is not subject to First
Amendment attack unless (1) it interferes with the Free Exercise
Clause in conjunction with other constitutional protections, or
(2) it creates a mechanism that calls for individualized
governmental assessment of the reasons for the relevant conduct.
Id. (quotation marks, alterations, and citation omitted).

The

Hawaii Supreme Court noted that, when there is an individualized
assessment, “if a particular law imposes a burden upon the free
exercise of religion, judicial scrutiny is triggered, the
regulation must be justified with a compelling government
interest, and the government has the burden of demonstrating that
no alternative forms of regulation would combat such abuses
without infringing First Amendment rights.”
marks and citation omitted).

47

Id. (quotation

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PageID.15110

That is, when the government has burdened the free
exercise of religion through an individualized assessment, a
court applies strict scrutiny to any free exercise of religion
claim relating to that burden.

See Doe v. Doe, 116 Haw. 323,

335, 172 P.3d 1067, 1079 (2007) (“In order to survive strict
scrutiny, the statute must be justified by a compelling state
interest, and drawn sufficiently narrowly that it is the least
restrictive means for accomplishing that end.” (quotation marks
and citation omitted)).
For the reasons set forth above with respect to the
free exercise of religion claim under the First Amendment,
summary judgment is denied with respect to the free exercise of
religion claim asserted under article I, section 4, of the Hawaii
constitution.
E.

The Court Denies the County of Maui’s Motion for
Summary Judgment With Respect To the
Discrimination Claims Asserted in Counts II, VII,
and IX.

Paragraphs 152 through 157 of the Complaint assert that
the County of Maui discriminated against Plaintiffs on the basis
of their religion.

The Complaint alleges that organized wedding

services are conducted at a minimum of five botanical gardens on
Maui, presumably with appropriate approvals from the County of
Maui.

The Complaint further alleges that § 19.30A.050.B.11 of

the Maui County Code permits gatherings of many types without
size limitations in agriculturally zoned land.
48

It alleges that

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the County of Maui’s refusal to allow Plaintiffs to worship on
their Haumana Road property therefore discriminates against
Plaintiffs on the basis of their religion, as botanical gardens
are allowed to conduct wedding ceremonies and nonreligious
entities have no size limitation.

See ECF No. 1, PageID #s 33-

34.
This court turns to Counts II, VII, and IX, on which
only the County (not Plaintiffs) seeks summary judgment.

This

court denies summary judgment on Counts II, VII, and IX, noting
that issues of fact must be tried.

Two of those counts (Counts

VII and IX) implicate a strict scrutiny issue akin to the strict
scrutiny issue on which this court granted summary judgment to
Plaintiffs in the context of Counts I, VI, and VIII.

Plaintiffs

not having made any motion with respect to Counts II, VII, and
IX, and the County not having established entitlement to summary
judgment in any respect, the court entirely denies summary
judgment on those counts, and they remain for trial.6

6

Under Rule 56(f) of the Federal Rules of Civil Procedure
and Local Rule 56.1(i), a court may grant summary judgment to a
nonmoving party after giving notice and a reasonable time to
reply. No such notice was provided here.
49

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1.

Count II--RLUIPA Nondiscrimination Violation
of 42 U.S.C. § 2000cc(b)(2).

RLUIPA, 42 U.S.C. § 2000cc(b)(2), prohibits religious
discrimination against assemblies and institutions through land
use regulations.

Specifically, it prohibits a government from

imposing or implementing “a land use regulation that
discriminates against any assembly or institution on the basis of
religion or religious denomination.”
While the advisory jury from the earlier trial
determined that neither Plaintiffs nor the County had proved by a
preponderance of the evidence that Spirit of Aloha Temple was or
was not a “religious assembly or institution” in connection with
a RLUIPA equal terms claim, that advisory jury did not determine
whether Spirit of Aloha Temple was an “assembly or institution”
that was discriminated against based on religion.
Form, ECF No. 392, PageID # 7139.

See Verdict

An “assembly or institution”

may possibly assert religious rights, even when the “assembly or
institution” is not religious in nature, making it possible for a
government to discriminate against that “assembly or institution”
based on the assertion of those religious rights.

See Burwell v.

Hobby Lobby Stores, Inc., 573 U.S. 682, 719 (2014) (recognizing
that a for-profit closely held corporation may assert religious
rights); cf. 303 Creative LLC v. Elenis, 143 S. Ct. 2298, 2313
(2023) (recognizing a company’s First Amendment right to be free

50

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PageID.15113

of compulsion to create content going against its owner’s
religious belief that a marriage must unite a man and a woman).
No law provides that an entity that is not a “religious
assembly or institution” cannot be an “assembly or institution”
that has been discriminated against based on religion.
In examining a RLUIPA equal terms claim, the Eleventh
Circuit noted that RLUIPA does not define the terms “assembly” or
“institution.”

The Eleventh Circuit therefore construed those

terms in accordance with their ordinary and natural meanings:
An “assembly” is “a company of persons
collected together in one place [usually] and
usually for some common purpose (as
deliberation and legislation, worship, or
social entertainment),” WEBSTER’S 3D NEW
INT’L UNABRIDGED DICTIONARY 131 (1993); or
“[a] group of persons organized and united
for some common purpose.” BLACK'S LAW
DICTIONARY 111 (7th ed. 1999). An
institution is “an established society or
corporation: an establishment or foundation
esp. of a public character,” WEBSTER’S 3D NEW
INT'L UNABRIDGED DICTIONARY 1171 (1993); or
“[a]n established organization, esp. one of a
public character....” BLACK’S LAW DICTIONARY
801 (7th ed.1999).
Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214,
1230–31 (11th Cir. 2004) (alterations in Midrash).
In connection with the earlier trial on Count IV in
this case, only Spirit of Aloha Temple, not Honig, sought to be
deemed a “religious assembly or institution.”
PageID # 6110.

See ECF No. 298,

Similarly, because Honig is not an “assembly or

institution” under the ordinary meanings of those terms, only
51

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PageID.15114

Spirit of Aloha Temple may assert the RLUIPA discrimination claim
under 42 U.S.C. § 2000cc(b)(2) asserted in Count II.
With an exception not relevant to Spirit of Aloha
Temple’s nondiscrimination claim under RLUIPA, RLUIPA states, “If
a plaintiff produces prima facie evidence to support . . . a
violation of section 2000cc of this title, the government shall
bear the burden of persuasion on any element of the claim . . .
.”

42 U.S.C. § 2000cc-2(b).

In examining a summary judgment

motion relating to 42 U.S.C. § 2000cc-2(b), the Ninth Circuit
explained that, “[w]hen the moving party also bears the burden of
persuasion at trial, to prevail on summary judgment it must show
that the evidence is so powerful that no reasonable jury would be
free to disbelieve it.”

Shakur v. Schriro, 514 F.3d 878, 890

(9th Cir. 2008) (quotation marks and citation omitted).
The Supreme Court has referred to the “burden of
persuasion” as “specifying which party loses if the evidence is
balanced.”

See Microsoft Corp. v. I4I Ltd. P'ship, 564 U.S. 91,

100 (2011) (stating that, historically, the term “burden of
proof” encompasses “two separate burdens: the ‘burden of
persuasion’ (specifying which party loses if the evidence is
balanced), as well as the ‘burden of production’ (specifying
which party must come forward with evidence at various stages in
the litigation)”).

Thus, at trial, Spirit of Aloha Temple must

produce prima facie evidence of a violation of 42 U.S.C.

52

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PageID.15115

§ 2000cc(b)(2).

That is, Spirit of Aloha Temple must introduce

at trial sufficient evidence to survive a motion for judgment as
a matter of law following the close of its case in chief.

See F.

R. Civ. P. 50(a)(1) (allowing courts to grant a motion for
judgment as a matter of law when “a reasonable jury would not
have a legally sufficient evidentiary basis to find for the party
on that issue”).

Spirit of Aloha Temple must show that it was

treated differently from a similarly situated organization.
Additionally, because the challenged land use
regulation is neutral on its face, Spirit of Aloha Temple must
produce evidence of the County of Maui’s “discriminatory intent,”
which may be inferred from circumstantial evidence.

The evidence

may include the events leading up to the denial of the Special
Use Permit application, the context in which that decision was
made, whether the decision departed from established norms,
statements made by the commission and community members, reports
issued by the commission, whether a discriminatory impact was
foreseeable, and whether less discriminatory avenues were
available.

See Calvary Chapel Bible Fellowship v. Cnty. of

Riverside, 2017 WL 6883866, at *12 (C.D. Cal. Aug. 18, 2017),
aff'd, 948 F.3d 1172 (9th Cir. 2020) (citing Chabad Lubavitch of
Litchfield Cty., Inc. v. Litchfield Historic Dist. Comm'n, 768
F.3d 183, 198 (2d Cir. 2014) (“establishing a claim under
RLUIPA’s nondiscrimination provision, as with the Supreme Court’s

53

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PageID.15116

equal protection precedent, requires evidence of ‘discriminatory
intent’”)); see also Alive Church of the Nazarene, Inc. v. Prince
William Cnty., Virginia, 59 F.4th 92, 104 (4th Cir. 2023)
(“Unlike the equal terms or substantial burden provisions of
RLUIPA, the nondiscrimination provision requires evidence of
discriminatory intent to establish a claim” such as the direct
and circumstantial evidence discussed in Arlington Heights v.
Metro. Housing Development, 429 U.S. 252, 266-68 (1977), which
suggested courts look at the historical background, sequence of
events, departures from normal procedure, and statements of
decisionmakers); Jesus Christ Is the Answer Ministries, Inc. v.
Baltimore Cnty., Maryland, 915 F.3d 256, 263 (4th Cir. 2019) (“a
plaintiff must demonstrate that the government decision was
motivated at least in part by discriminatory intent”).
If Spirit of Aloha Temple meets its prima facie burden,
then the burden shifts to the County of Maui to prove by a
preponderance of the evidence that a violation of 42 U.S.C.
§ 2000cc(b)(2) did not occur.

That is, to prevail once the

burden has shifted, the County of Maui must show by a
preponderance of the evidence that its land use regulation did
not discriminate against Spirit of Aloha Temple on the basis of
religion or religious denomination.
In seeking summary judgment, the County of Maui argues
that it satisfies strict scrutiny with respect to Spirit of Aloha

54

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PageID.15117

Temple’s discrimination claim under 42 U.S.C. § 2000cc(b)(2).

As

noted earlier in this order, it appears that the Ninth Circuit
would not apply a strict scrutiny analysis to a RLUIPA
discrimination claim.

Instead, the analysis focuses on whether

Maui Planning Commission discriminated against Spirit of Aloha
Temple on the basis of religion when the commission denied the
requested Special Use Permit.

Possibly, the absence of narrow

tailoring or of the imposition of the least restrictive means of
furthering an identified compelling interest may affect any
finding at trial on whether the County of Maui had
“discriminatory intent” in denying the requested Special Use
Permit.

For now, there are factual issues that preclude summary

judgment.
2.

Count VII–-Equal Protection Clause of the
Fourteenth Amendment.

In Count VII, Honig and Spirit of Aloha Temple assert
that the County of Maui, in violation of 42 U.S.C. § 1983,
deprived them of “equal protection of the laws, as secured by the
Fourteenth Amendment to the United States Constitution, by
discriminating against Plaintiffs in the imposition and
implementation of their land use regulations.”
# 39.

ECF No. 1, PageID

The Equal Protection Clause of the Fourteenth Amendment

provides that no State shall “deny to any person within its
jurisdiction the equal protection of the laws.”
amend. XIV, § 1.

U.S. Const.

Pursuant to the Equal Protection Clause, the
55

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government must treat all similarly situated persons alike.
Green v. City of Tucson, 340 F.3d 891, 896 (9th Cir. 2003).
“To state a claim under 42 U.S.C. § 1983 for a
violation of the Equal Protection Clause of the Fourteenth
Amendment, a plaintiff must show that the defendants acted with
an intent or purpose to discriminate against the plaintiff based
upon membership in a protected class.”

Shooter v. Arizona, 4

F.4th 955, 960 (9th Cir. 2021) (alterations, quotation marks, and
citation omitted).

“A showing that a group was singled out for

unequal treatment on the basis of religion may support a valid
equal protection argument.”

Alpha Delta Chi–Delta Chapter v.

Reed, 648 F.3d 790, 804 (9th Cir. 2011) (quotation marks and
citation omitted).
Alternatively, Plaintiffs may assert a “class of one”
equal protection claim.

That is, rather than premising their

equal protection claim on a classification, they may premise it
on unique treatment.”

In order to demonstrate a violation of

equal protection in a “class of one” case, a plaintiff must
establish that the government intentionally, and without rational
basis, treated the plaintiff differently from other similarly
situated people or entities.

See N. Pacifica LLC v. City of

Pacifica, 526 F.3d 478, 486 (9th Cir. 2008).

In a “class of one”

claim, a plaintiff asks the factfinder to infer discrimination
based solely on a lack of any rational explanation for the
56

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differential treatment.

See Green Genie, Inc. v. City of

Detroit, Mich., 63 F.4th 521, 528 (6th Cir. 2023); Joglo
Realties, Inc. v. Seggos, 229 F. Supp. 3d 146, 153 (E.D.N.Y.
2017).
The County of Maui contends that even if it treated
Plaintiffs differently from similarly situated nonreligious
entities, it cannot be liable for a federal equal protection
violation because it satisfies strict scrutiny review.

When

conduct burdens a fundamental right or makes a distinction based
on a suspect classification, the court employs strict scrutiny
review.

See Honolulu Weekly, Inc. v. Harris, 298 F.3d 1037, 1047

(9th Cir. 2002).

When conduct that is based on religious rights

is in issue, a suspect classification is involved.
v. Rogers, 440 U.S. 1, 17 (1979).

See Friedman

The County of Maui does not

meet its burden of showing that it is entitled to summary
judgment based on strict scrutiny review.

It does not point to

narrow tailoring that furthered any compelling governmental
interest.
3.

Count IX–-Violation of the Equal Protection
Clause of Article I, Section 5, of the Hawaii
Constitution.

Count IX asserts that the County of Maui violated
Honig’s and Spirit of Aloha Temple’s rights under the equal
protection clause of the Hawaii constitution, article I, section
5, “by discriminating against Plaintiffs in the imposition and
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implementation of their land use regulations.”

ECF No. 1, PageID

# 40.
Article I, section 5, of the Hawaii constitution
provides that “[n]o person shall be deprived of life, liberty or
property without due process of law, nor be denied the equal
protection of the laws, nor be denied the enjoyment of the
person’s civil rights or be discriminated against in the exercise
thereof because of race, religion, sex or ancestry.”

Like its

federal counterpart, Hawaii’s equal protection clause mandates
that all similarly situated persons be treated alike.

See Tax

Found. of Hawai'i v. State, 144 Haw. 175, 205, 439 P.3d 127, 157
(2019); Mahiai v. Suwa, 69 Haw. 349, 360, 742 P.2d 359, 368
(1987).

Accordingly, to prove a claim of discriminatory

enforcement, Plaintiffs have the burden of demonstrating by a
preponderance of the evidence 1) that the County of Maui has
treated Plaintiffs differently from similarly situated
individuals or entities (i.e., the County granted Special Use
Permits to similarly situated individuals or entities but not to
Plaintiffs); and 2) that the differential treatment was
deliberately based on an unjustifiable standard such as religion.
See State v. Villeza, 85 Haw. 258, 267, 942 P.2d 522, 531 (1997);
Mahiai, 69 Haw. at 361, 742 P.2d at 368.

Alternatively, it

appears that the Hawaii Supreme Court would recognize a “class of
one” equal protection claim when a plaintiff demonstrates that

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the plaintiff has been intentionally treated differently from
others similarly situated and there is no rational basis for the
difference in treatment.

See DW Aina Lea Dev., LLC v. Bridge

Aina Lea, LLC., 134 Haw. 187, 220, 339 P.3d 685, 718 (2014)
(assuming that a “class of one” theory is applicable under Hawaii
law, but determining that the plaintiff had no “class of one”
claim).
The County of Maui contends that even if it treated
Plaintiffs differently from similarly situated nonreligious
entities for purposes of an equal protection claim under the
Hawaii constitution, it is not liable because it satisfies strict
scrutiny review.

See Nagle v. Bd. of Educ., 63 Haw. 389, 392,

629 P.2d 109, 111–12 (1981) (noting that Hawaii courts apply a
strict scrutiny standard “where equal protection challenges
involve ‘suspect’ classifications or fundamental rights”).

The

County of Maui does not show on its motion that it satisfies
strict scrutiny review.

It does not establish on the present

record any narrow tailoring that furthered any identified
compelling governmental interest.

Summary judgment on Count IX

is denied.
V.

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

motions for summary judgment filed by both parties in this case.
While summary judgment is not granted on the entirety of any
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claim, the court grants summary judgment to Plaintiffs on one
issue implicated by Counts I, VI, and VIII–that the complete
denial of the permit fails strict scrutiny analysis.

In

addition, only Spirit of Aloha Temple, not Honig, may pursue
Count II, the RLUIPA nondiscrimination claim.
remain for trial.

All other matters

This order disposes of the motions filed as

ECF Nos. 511 (Plaintiffs’ motion for partial summary judgment),
513 (Defendant’s concise statement in support of its motion for
summary judgment that was incorrectly filed as a motion), 514
(Defendant’s motion for summary judgment), 520 (Defendant’s
counter motion for summary judgment), and 521 (Defendant’s
counter motion for summary judgment, which does not appear to add
much to its other counter motion).
The parties are ordered to immediately contact the
Magistrate Judge assigned to this case to schedule a settlement
conference.

The court is conscious that Plaintiffs have an

appeal pending in the Ninth Circuit of this court’s denial of
Plaintiffs’ request for preliminary injunctive relief, which
relates to the issue of whether the unconstitutional
administrative provision is severable from other provisions.
This appeal is not necessarily an impediment to settlement.

The

parties could, for example negotiate a conditional settlement,
agreeing to certain terms if the pending appeal results in an
affirmance, and different terms if the result is a reversal.

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any event, the parties are directed to engage in settlement
discussions.

IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 11, 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 PARTIAL SUMMARY JUDGMENT IN FAVOR OF PLAINTIFFS ON THE ISSUE OF
WHETHER THE COUNTY OF MAUI'S DENIAL OF THE SPECIAL USE PERMIT SATISFIED STRICT
SCRUTINY WITH RESPECT TO COUNTS I, VI, AND VIII, BUT DENYING SUMMARY JUDGMENT
ON ALL REMAINING ISSUES AND CLAIMS

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