Maui commission
turns down church’s
plan for a new chapel

Hale O Kaula plans to appeal,
saying current land laws are biased

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By Gary T. Kubota
gkubota@starbulletin.com

WAILUKU >> The Maui Planning Commission denied a church's request to build a chapel on agricultural land yesterday, triggering the likelihood of a legal challenge to state and county land-use laws.

Attorney Anthony Picarello Jr. said Hale O Kaula church planned to appeal the decision and go as high as the U.S. Supreme Court if necessary.

"We feel this is a very clear case of injustice," Picarello said.

Hale O Kaula church, a nondenominational Christian group, wants to build a chapel as the second story of an agricultural building at the end of Anuhea Place in Kula.

Several neighbors who opposed the permit said the church would increase traffic and noise in a quiet farm area. Picarello, who works for the Washington, D.C.-based Becket Fund representing groups in religious freedom lawsuits, alleged the decision placed a substantial burden on the church as opposed to nonreligious groups.

He said the decision violated the Religious Land Use and Institutionalized Persons Act, passed by Congress last year. Picarello said under current state law, a group could hold a polo game or rodeo with 100 people in attendance but could not hold a church assembly.

"You can assemble to cheer your favorite cowboy, but you can't assemble to worship God," Picarello said.

Picarello said the church has been subjected to "petty hostility" and "irrational" opposition. Church officials said they have 60 members, including 20 children, and a traffic study funded by the congregation shows having church activities would not create an unreasonable burden.

"This is a drop in the ocean," Picarello said.

Commissioner Randy Piltz said he felt the church failed to present the legal argument about the congressional act during a contested-case hearing.

"I don't think the applicant has presented a case," Piltz said.

Church attorneys said they were denied a continuance to prepare legal arguments about the new law and decided not to present arguments during a contested-case proceeding because they felt the hearing officer was biased.

Neighbors' attorney Glenn Kosaka said his clients were not against religions or church groups.

"In fact, they are Protestants and Catholics," Kosaka said.

Kosaka said the church members have the burden of proving the development would not be an unreasonable burden in an agricultural district and failed to make their case.

Kosaka said traffic has increased since the church established itself. He said a dog of his client John Thuro was killed by a vehicle on the road last October, and he no longer allows his son to use a Go Kart on the road.

Kosaka said the development would put unusual burden on public agencies, since the property has no county water. A couple of commissioners said they were worried about the lack of water for fire protection.

Under state and county laws, churches are required to obtain special use permits when seeking to build on land designated for agricultural, residential, conservation or rural use.

No special use permits are required for building churches on land zoned for business and country-town business. Hale O Kaula, affiliated with the Living Word Fellowship churches located mainly in the West and Midwest, bought the six acres in the early 1990s with the intent of building structures to hold religious services.

But the commission denied a special use permit to develop a church on the agricultural land in 1995.

The church has built a minister's residence and an agricultural building but has continued to hold services at its chapel in Haiku. Church members applied for a permit last year and argued the character of the neighborhood had changed since the mid-1990s, with Kamehameha Schools located downhill from church property and the Kulamalu commercial center under construction across a gulch.

Church officials said they did not present arguments during a contested-case hearing because hearing officer Judith Neustadter Fuqua expressed an opinion in favor of neighborhood residents during a settlement conference.

Fuqua yesterday said she shared with each side the opposition's point of view in an attempt to reach a settlement.

"Throughout this process I have remained impartial," Fuqua said.