HomeMy WebLinkAboutPD Background and Recommendation Report PL-PDI-2025-000014-1-
BR-PDInitiated-MeetingFacilitiesCommunityBuildingsChurches.doc 2/21/2025
COUNTY OF HAWAI‘I PLANNING DEPARTMENT BACKGROUND AND RECOMMENDATION
PLANNING DIRECTOR INITIATED (PL-PDI-2025-000014) AMENDMENT TO CHAPTER 25, ARTICLE 1, ARTICLE 2, ARTICLE 4, ARTICLE 5,
AND ARTICLE 7 OF THE HAWAI‘I COUNTY CODE 1983 (2016 EDITION, AS AMENDED), RELATING TO ZONING DISTRICT REGULATIONS FOR MEETING FACILITIES, CHURCHES, TEMPLES, SYNAGOGUES, AND COMMUNITY BUILDINGS. The Planning Director has initiated an ordinance to amend Chapter 25 (Zoning), Article 1,
Article 2, Article 4, Article 5, and Article 7 of the Hawaiʻi County Code 1983 (2016 Edition, as
amended) relating to zoning district regulations for meeting facilities, community buildings, and
churches, temples, and synagogues. The purpose of this bill is to remove the definitions and
references to community buildings, churches, temples, and synagogues, consolidate these uses
under meeting facilities, and establish standards for their development to ensure equitable
treatment in the Zoning Code.
PURPOSE OF THE BILL
This bill aims to correct zoning inconsistencies and ensure religious institutions receive
equitable treatment under Hawai‘i County’s Zoning Code. Currently, churches, temples, and
synagogues, and meeting facilities for churches, temples, and synagogues “and other such
institutions” require a use permit in certain zoning districts, while non-religious meeting facilities
are permitted outright in some of those zoning districts. This ordinance consolidates religious
institutions under "meeting facilities," ensuring equal treatment in zoning regulations.
Additionally, "meeting facilities" and "community buildings" have historically been
similar in definition and use. To streamline zoning regulations, the Planning Director (Director)
is removing all references to "community buildings" and incorporating them into the broader
definition of "meeting facilities" through this ordinance. This change simplifies the zoning code
by creating a standardized definition with consistent requirements.
To further clarify zoning distinctions, this ordinance introduces the term "Event" to
differentiate routine meeting facility activities from larger gatherings and/or commercial
gatherings that may require separate zoning, permits, or operational oversight. This distinction
ensures that commercial activities—such as weddings, receptions, promotional events, and
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concerts—are appropriately regulated and do not automatically qualify as permitted meeting
facility uses.
The proposed ordinance includes the following key revisions to the Zoning Code:
• Deletes the “Community Building” definition and removes it from all zoning code
references.
• Revises the definition of “Meeting Facility” to include secular and religious uses like
places of worship.
• Adds a new definition for “Event” (e.g., weddings, concerts, promotional events) to
distinguish between regular meetings and commercial activities.
• Removes churches, temples, and synagogues from all zoning districts as individual
permitted uses and consolidates them under the definition of meeting facilities.
• Establishes operating standards for meeting facilities, including hours of operation and
attendance thresholds.
• Clarifies that all meeting facilities will require a technical review by various county and
state agencies, such as the County Department of Public Works, State Department of
Health, County Fire, and County Water.
• Religious institutions, which previously required a use permit in the Single-Family
Residential (RS), Double-Family Residential (RD), and Multiple-Family Residential
(RM) zoning districts, are now permitted outright as meeting facilities.
• In addition to residential districts, meeting facilities remain allowed in the following
zoning districts: Residential-Commercial Mixed Use (RCX), Resort-Hotel (V),
Neighborhood Commercial (CN), General Commercial (CG), Village Commercial (CV),
Industrial-Commercial Mixed (MCX), and Downtown Hilo Commercial (CDH). These
districts, excluding the RCX, also allow meeting facilities to include events.
• Meeting facilities with events are now allowed in the Limited Industrial (ML) district,
whereas meeting facilities will be allowed in the General Industrial (MG) district, but
events are not.
• In the Residential-Agricultural (RA), Family Agricultural (FA), and Agricultural (A)
zoning districts, meeting facilities with events require either a use permit or a special
permit, depending on the State Land Use designation. In the Intensive Agricultural (IA)
district, only meeting facilities with a special permit are allowed.
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Chapter 25 (Zoning) of the Hawaiʻi County Code 1983 (2016 Edition, as amended) is
proposed to be amended as shown in the attached bill as Planning Department Exhibit 1.
(Material to be deleted is bracketed and struck through; material to be added is
underscored).
CHRONOLOGICAL BACKGROUND
The federal government enacted the Religious Land Use and Institutionalized Persons
Act of 2000 (RLUIPA) in part to protect religious organizations and individuals from
discriminatory land use regulations. The law prevents zoning ordinances from unfairly burdening
religious institutions unless the government can demonstrate a compelling interest. Over the
years, RLUIPA has led to numerous legal challenges against zoning laws that disproportionately
impact religious organizations.
In February 2024, the Chabad Jewish Center of the Big Island and its Rabbi, Levi
Gerlitzky, filed a lawsuit against the County of Hawai’i and the Director, alleging that the
County’s zoning code discriminates based on religion. The lawsuit contends that while secular
gathering places, such as meeting facilities, can operate by right, religious institutions must
obtain a use permit to operate in residential zones, violating the equal terms provision of the
RLUIPA. The U.S. Department of Justice (DOJ) supported this position by filing a Statement of
Interest on March 29, 2024 (Planning Department Exhibit 2 – Statement of Interest in
Support of the Plaintiff’s Motion for Preliminary Injunction), asserting that the Hawaiʻi
County zoning code treats religious uses less favorably than comparable secular uses like
meeting facilities, making it discriminatory under RLUIPA.
In response to the lawsuit, the Director is introducing amendments to the Hawaiʻi County
Code (HCC) to classify religious institutions under the same zoning category as meeting
facilities. These amendments eliminate disparities, seek compliance with RLUIPA, reinforce the
Director's commitment to fair land use regulations, and establish clear standards.
PROPOSED AMENDMENTS HCC CHAPTER 25 (ZONING)
This bill is initiated by the Director to amend the Zoning Code as follows (sections to be deleted
are bracketed and struck-through and sections to be added are underlined):
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Relating to the Definitions:
Section 25-1-5(b) is proposed to be amended by removing the definition of "Community
Building" as follows:
[“Community building” means a public or privately owned building for civic, social,
educational, cultural, and recreational activities which is not operated primarily for
financial gain.]
Reasons for the Amendment: Removing the community building definition simplifies the
zoning code by eliminating redundancy. Since the revised meeting facility definition already
includes nonprofit, social, cultural, and recreational uses, maintaining both terms are
unnecessary.
Section 25-1-5(b) is proposed to be amended by adding a new definition to read as follows:
““Event” means an assembly, generally by invitation or ticket purchase, that extends
beyond the typical meeting facility use, including but not limited to commercial
weddings, wedding receptions, promotional events, and concerts.”
Reasons for the Amendment: The addition of an event definition clarifies the distinction
between routine meeting facility activities and larger commercial gatherings and ensures that
commercial activities such as weddings, receptions, promotional events, and concerts are
appropriately regulated and do not automatically fall under the permitted use of a meeting
facility.
Section 25-1-5(b) is proposed to be amended by amending the definition of “Meeting Facility”
to read as follows:
““Meeting facility” [means a permanent facility for nonprofit recreational, social or
multi-purpose use, which has no overnight accommodations, and which may be for
organizations operating on a membership basis for the promotion of members’ mutual
interests or may be primarily intended for community purposes. Typical uses include
private clubs, union halls, community centers, and student centers.] means a facility or
building site that is used for recreational, social, or multipurpose use, and may include a
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kitchen but has no transient accommodations. Typical uses include private clubs, union
halls, cultural, community and association centers, religious facilities such as places of
worship, and student centers. This does not include schools or events.”
Reasons for the Amendment: This amendment expands and clarifies the definition of meeting
facility to ensure equal treatment of religious and secular gathering spaces while maintaining
clear zoning regulations. Additionally, the amendment removes outdated language and
streamlines zoning classifications by consolidating the definition of community buildings under
the definition of meeting facility. It also clarifies what is excluded from this category, such as
schools and events, ensuring proper land use regulation and alignment with zoning districts.
Relating to the Use Regulations of Meeting Facilities:
Section 25-2-61(a) is proposed to be amended as follows:
[(3) Churches, temples and synagogues, including meeting facilities for churches,
temples, synagogues and other such institutions, in RS, RD, RM, RA, FA and A districts;
provided that a minimum building site area of ten thousand square feet is required within
the RS, RD, RM, and RA districts.]
(9) Meeting facilities with events in RA, FA, and A districts.
Reasons for the Amendment: This amendment clarifies zoning regulations for meeting
facilities with events in the RA (Residential-Agricultural), FA (Family-Agricultural), and A
(Agricultural) zoning districts. Because events may generate impacts such as traffic and noise,
requiring a use permit in these districts allows the County to assess and mitigate potential effects
through appropriate conditions. This helps protect the surrounding residential and agricultural
character and ensures compatibility with neighboring land uses.
Section 25-2-61(d) is proposed to be added as follows:
(d) A use permit shall not be required for meeting facilities and/or events operated in
partnership with State or County agencies or conducted at State or County venues or
facilities.
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Reasons for the Amendment: This amendment, developed in consultation with the Department
of Parks and Recreation, ensures consistency across County regulations and avoids duplicating
existing permitting processes. The Department of Parks and Recreation already regulates
meeting facilities and events at State or County venues and facilities, so requiring a separate use
permit would be redundant.
Relating to Plan Approval:
To establish specific procedures for the director’s review and decision-making on plan approval
applications, Section 25-2-71(c) is amended to read as follows:
(c) Plan approval shall be required in all applicable districts prior to the construction or
establishment of the following improvements and uses:
(1) Meeting facilities, as permitted under Section 25-4-17 (Meeting Facilities).
(6) Events, as permitted under section 25-5-42.”
Reasons for the Amendment: This amendment clarifies that plan approval is required before
meeting facilities and events are established, ensuring proper land use oversight and compliance
with zoning regulations.
Relating to Public Buildings and Community Buildings:
Section 25-4-11(c) is amended to read as follows:
(c) Public uses, structures and buildings [and community buildings] are permitted uses in any
district, provided that the director has issued plan approval for such use.”
Reasons for the Amendment: This amendment removes all references within the zoning code
relating to community buildings. In addition, removing the reference to community buildings in
the public buildings section ensures a clear distinction between public and non-governmental
uses, buildings, and structures.
Relating to Plan Approval application requirements for Meeting Facilities:
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Section 25-4-17 is proposed to be added as follows:
“Section 25-4-17 Meeting Facilities.
(a) A meeting facility can be established within a new or existing structure, or on a building
site for recreational, social, cultural, or multipurpose use. The facility may include a
kitchen.
(b) A meeting facility may be used for organizations operating on a membership basis for the
promotion of members’ mutual interests or may be primarily intended for community
purposes.
(c) A meeting facility only applies on building sites that have gatherings more than two
times per week with more than 25 attendees.
(d) The hours of operation for meeting facilities shall start no earlier than 8:00 am and end no
later than 9:00 pm.
(e) A meeting facility can be established in a zoning district that permits such use, provided
that the Director has issued plan approval.
(f) A meeting facility shall be subject to technical review by the County Department of
Public Works, County Fire Department, County Water Department and/or the State
Department of Health for compliance with current code and rule requirements.”
Reasons for the Amendment: This amendment establishes clear zoning regulations and plan
approval requirements for meeting facilities. It sets standards based on frequency and size,
mitigates community impacts through operating hour limits and requires technical review by
relevant County and State agencies. Additionally, it streamlines the permitting process, ensuring
that meeting facilities operate safely and in accordance with zoning and public health
regulations.
Relating to Permitted Uses in the Single-Family Residential (RS), Double-Family
Residential (RD), Multiple-Family Residential (RM) Zoning Districts
Section 25-5-3. Permitted uses (in the RS District):
(a) The following uses shall be permitted in the RS district:
[(4) Community buildings, as permitted under section 25-4-11.]
[(10)](9) Meeting facilities[.], as permitted under section 25-4-17.
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(b) In addition to those uses permitted under subsection (a) above, the following uses may be
permitted in the RS district, provided that a use permit is issued for each use:
[(3) Churches, temples and synagogues.]
Section 25-5-22. Permitted uses (in the RD District):
(a) The following uses shall be permitted in the RD district:
[(5) Community buildings, as permitted under section 25-4-11.]
[(12)](11) Meeting facilities[.], as permitted under section 25-4-17.
(b) In addition to those uses permitted under subsection (a) above, the following uses may be
permitted in the RD district, provided that a use permit is issued for each use:
[(2) Churches, temples and synagogues.]
Section 25-5-32. Permitted uses (in the RM District):
(a) The following uses shall be permitted in the RM district:
[(7) Community buildings, as permitted under section 25-4-11.]
[(15)](14) Meeting facilities[.], as permitted under section 25-4-17.
(b) In addition to those uses permitted under subsection (a) above, the following uses may be
permitted in the RM district, provided that a use permit is issued for each use:
[(2) Churches, temples and synagogues.]
Reasons for the Amendment: This amendment removes references to community buildings
from the permitted uses section and churches, temples, and synagogues from the use permit
section in the RS, RD, and RM zoning districts. Meeting facilities remain permitted in the RS,
RD, and RM zoning districts but must comply with the standards outlined in HCC Section 25-4-
17. These changes ensure that zoning regulations are applied equitably, avoiding preferential
treatment or potential religious discrimination.
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Relating to Permitted Uses in the Residential-Commercial Mixed Use (RCX) Zoning
District:
Section 25-5-42. Permitted uses (in the RCX Zoning District):
(a) The following uses shall be permitted in the RCX district:
[(6) Churches, temples and synagogues.]
[(8) Community buildings, as permitted under section 25-4-11.]
[(19)](17) Meeting facilities[.], as permitted under section 25-4-17.
Reasons for the Amendment: This amendment removes references to community buildings,
churches, temples, and synagogues from the permitted uses in the RCX zoning district to ensure
the consistent application of zoning regulations. It also clarifies that meeting facilities remain a
permitted use but must comply with the standards outlined in HCC Section 25-4-17.
Relating to Permitted Uses in the Residential and Agricultural (RA) Zoning District:
Section 25-5-52. Permitted uses (in the RA Zoning District):
(c) The following uses may be permitted in the RA district, provided that if a building site is
located within the State land use rural district, the following uses may be permitted if a special
permit is obtained for such use:
[(2) Community buildings, as permitted under section 25-4-11.]
[(8) Meeting facilities.]
(d) The following uses may be permitted in the RA district, provided that either a use permit is
issued for each use if the building site is within the State land use urban district or a special
permit is issued for each use if the building site is within the State land use rural district:
[(3) Churches, temples and synagogues.]
(7) Meeting facilities, including events, as permitted under section 25-4-17.
Reasons for the Amendment: This amendment reorganizes zoning regulations in the RA
district by consolidating meeting facilities under subsection (d) and removing references to
community buildings and religious institutions, which the ordinance now classifies under the
broader meeting facility definition. These changes ensure consistency with HCC Section 25-4-17
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and clarify that meeting facilities require a special permit in the state land use agricultural or
rural districts or a use permit in state land use urban districts.
Relating to Permitted Uses in the Family Agricultural (FA) and Agricultural (A) Zoning
District:
Section 25-5-62. Permitted uses (in the FA Zoning District):
“(c) The following uses may be permitted in the FA district, provided that a special
permit is obtained for such use if the building site is located within the State land
use agricultural district:
[(3) Community buildings, as permitted under section 25-4-11.]
[(6) Meeting facilities.]
(d) The following uses may be permitted in the FA district, provided that either a use
permit is issued for each use if the building site is outside of the State land use
agricultural district or a special permit is issued for each use if the building site is
within the State land use agricultural district:
[(2) Churches, temples and synagogues.]
(7) Meeting Facilities, including events, as permitted under section 25-4-17.”
Section 25-5-72. Permitted uses (in the A Zoning District):
“(c) The following uses may be permitted in the A district, provided that a special permit
is obtained for such use if the building site is located within the State land use
agricultural district:
[(4) Community buildings, as permitted under section 25-4-11.]
[(10) Meeting facilities.]
(d) The following uses may be permitted in the A district, provided that either a use
permit is issued for each use if the building site is outside of the State land use
agricultural district or a special permit is issued for each use if the building site is
within the State land use agricultural district:
[(3) Churches, temples and synagogues.]
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(7) Meeting Facilities, including events, as permitted under section 25-4-17.”
Reasons for the Amendment: This amendment removes community buildings and meeting
facilities from subsection (c) and churches, temples, and synagogues from subsection (d) in the
FA and A zoning districts. Meeting facilities now be allowed in subsection (d) and must comply
with the standards outlined in HCC Section 25-4-17. Under these changes, meeting facilities in
subsection (d) will require a special permit if the building site is located within the state land use
agricultural district and a use permit if the site is outside that district. This revision ensures
consistency with the applicable zoning districts and accurately reflects the permitting
requirements for sites within or outside the state land use agricultural district.
Relating to Permitted Uses in the Intensive Agricultural (IA) Zoning District:
Section 25-5-82. Permitted uses (in the IA Zoning District):
(c) The following uses may be permitted in the IA districts, provided that a special permit is
obtained for such use:
[(2) Churches, temples, or synagogues.
(3) Community buildings as permitted under section 25-4-11.]
(4) Meeting Facilities, including events, as permitted under section 25-4-17.
Reasons for the Amendment: The changes in subsection (c) of the IA zoning district reflect the
Director's initiative to remove references to community buildings, churches, temples, and
synagogues and replace them with meeting facilities. Under the amendment, meeting facilities—
including events—will require a Special Permit in the IA zoning district.
Relating to Permitted Uses in the Resort-Hotel (V), Neighborhood Commercial (CN),
General Commercial (CG), Village Commercial (CV), Industrial-Commercial Mixed
(MCX), Zoning District:
Section 25-5-92. Permitted uses (in the V Zoning District):
(a) The following uses shall be permitted in the V district:
[(10) Churches, temples, and synagogues.]
[(12) Community buildings, as permitted under section 25-4-11.]
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[(24)](22) Meeting facilities[.]including events, as permitted under section 25-4-17.
Section 25-5-102. Permitted uses (in the CN Zoning District):
(a) The following uses shall be permitted in the CN district:
[(9) Churches, temples and synagogues.
(10) Community buildings, as permitted under section 25-4-11.]
[(24)](22) Meeting facilities[.]including events, as permitted under section 25-4-17.
Section 25-5-112. Permitted uses (in the CG Zoning District):
(a) The following uses shall be permitted uses in the CG district:
[(16) Churches, temples and synagogues.]
[(19) Community buildings, as permitted under section 25-4-11.]
[(41)](39) Meeting facilities[.]including events, as permitted under section 25-4-17.
Section 25-5-122. Permitted uses (in the CV Zoning District):
(a) The following uses shall be permitted in the CV district:
[(12) Churches, temples and synagogues.]
[(14) Community buildings, as permitted under section 25-4-11.]
[(33)](31) Meeting facilities[.]including events, as permitted under section 25-4-17.
Section 25-5-132. Permitted uses (in the MCX Zoning District)
(a) The following uses shall be permitted in the MCX district:
[(14) Churches, temples and synagogues.]
[(17) Community buildings, as permitted under section 25-4-11.]
[(33)](31) Meeting facilities[.]including events, as permitted under section 25-4-17.
Reasons for the Amendment: This amendment clarifies and updates the permitted uses in the
V, CN, CG, CV, and MCX zoning districts, by removing references to community buildings and
churches, temples, and synagogues. Meeting facilities will remain a permitted use, with the
inclusion of events, and must comply with the standards outlined in HCC Section 25-4-17.
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Relating to Permitted Uses in the Limited Industrial (ML), General Industrial (MG)
Zoning District:
Section 25-5-142. Permitted uses (in the ML Zoning District)
(a) The following uses shall be permitted in the ML district:
[(18) Churches, temples and synagogues.]
[(21) Community buildings, as permitted under section 25-4-11.]
(33) Meeting facilities including events, as permitted under section 25-4-17.
Section 25-5-152. Permitted uses (in the MG Zoning District)
(a) The following uses shall be permitted in the MG district:
[(20) Churches, temples and synagogues.]
[(23) Community buildings, as permitted under section 25-4-11.]
(45) Meeting facilities, as permitted under section 25-4-17.
Reasons for the Amendment: This amendment clarifies and updates the permitted uses in the
ML and MG zoning districts by explicitly permitting meeting facilities. It also removes
references to community buildings, churches, temples, and synagogues to streamline zoning
classifications. Previously, meeting facilities were not explicitly listed as permitted uses in these
districts, even though similar uses—such as community buildings and religious institutions—
were allowed.
Relating to Community Building in the Open (O) Zoning District:
Section 25-5-162. Permitted uses (in the O Zoning District)
(a) The following uses shall be permitted in the O district:
[(4) Community buildings, as permitted under section 25-4-11.]
Reasons for the Amendment: This amendment removes references to community buildings to
streamline zoning classifications and to align with current land use policies in the Open zoning
district and ensure consistency in zoning regulations. Additionally, meeting facilities will not be
permitted within the Open zoning district, reinforcing the district’s intended purpose and land
use restrictions.
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Relating to Meeting Facilities and Community Building in the Downtown Hilo Commercial
(CDH) Zoning District:
Section 25-7-22. Permitted uses (in the CDH Zoning District)
(a) The following uses shall be permitted uses in the CDH district:
[(14) Community buildings, as permitted under section 25-4-11.]
[(30)](29) Meeting facilities[.], including events, as permitted under section 25-4-17.
Reasons for the Amendment: This amendment updates the CDH zoning district by explicitly
recognizing meeting facilities, including events, as permitted under HCC Section 25-4-17 and
removing community building references to streamline zoning regulations. Previously, this
district did not permit churches, temples, and synagogues. By incorporating them under the
meeting facilities use category, they are formally recognized as permitted uses.
AGENCY COMMENTS – NO COMMENTS/CONCERNS
1) Police Department (Planning Department Exhibit 3 – March 4, 2025 Email)
2) Department of Water Supply (Planning Department Exhibit 4 – March 18, 2025 Memo)
AGENCY COMMENTS – NO COMMENTS/CONCERNS
3) Department of Public Works - Building Division; State Department of Health.
AGENCY COMMENTS – NO RESPONSE PROVIDED
4) Department of Public Works - Engineering Division; Department of Public Works Traffic
Division; Department of Environmental Management; Civil Defense; Department of Parks
and Recreation; Fire Department.
PLANNING DIRECTOR’S RECOMMENDATION
For the reasons cited above, the Planning Director recommends that the Leeward and
Windward Planning Commission send a favorable recommendation of this bill to the Hawaiʻi
County Council for the amendment to Chapter 25 (Zoning) of the Hawaiʻi County Code
1983 (2016 edition, as amended) relating to zoning district regulations for meeting facilities,
churches, temples, synagogues and community buildings in an effort to ensure equitable
treatment, enhance legal compliance, streamline zoning classifications and provide regulatory
oversight. These changes will establish a fair, neutral, and well-defined framework that ensures
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consistency across zoning districts, protects community interests, and aligns with federal legal
requirements.
Case 1:24-cv-00068-DKW-WRP Document 37 Filed 03/29/24 Page 1 of 32 PageID.388
KRISTEN CLARKE, Assistant Attorney General CARRIE PAGNUCCO, Chief NOAH SACKS, Trial Attorney ADAM M. WESOLOWSKI, Trial Attorney United States Department of Justice, Civil Rights Division Housing and Civil Enforcement Section
950 Pennsylvania Avenue, N.W. – 4 CON
Washington, DC 20530
Tel.: (202) 718-8821; Fax: (202) 514-1116
Noah.Sacks@usdoj.gov
Adam.M.Wesolowski@usdoj.gov
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CHABAD JEWISH CENTER OF
THE BIG ISLAND;
RABBI LEVI GERLITZKY,
Plaintiffs, v.
COUNTY OF HAWAII;
HAWAII COUNTY PLANNING
DIRECTOR, ZENDO KERN
Defendants.
Civil Action No. 1:24-cv-68-DKW-WRP
UNITED STATES’ STATEMENT OF
INTEREST IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION (ECF 14); CERTIFICATE OF COMPLIANCE; CERTIFICATE OF SERVICE
Motion Hearing
Date: April 12, 2024
Judge: The Hon. Derrick K. Watson
ii
III.
Case 1:24-cv-00068-DKW-WRP Document 37 Filed 03/29/24 Page 2 of 32 PageID.389
TABLE OF CONTENTS
I. BACKGROUND ....................................................................................................2
A.Hawaii County Zoning Code .............................................................................2
B. The County Prohibits Plaintiffs’ Chabad House................................................4
II.ARGUMENT ........................................................................................................7
A. Defendants’ Ripeness Arguments Are Without Merit. .....................................9
B. Defendants’ Standing Arguments are Likewise Without Merit. .....................11
C. On Its Face, Hawaii County’s Zoning Code Violates RLUIPA Because It
Treats Religious Assemblies On Less Than Equal Terms With Secular
Assemblies. ...........................................................................................................15
D. Defendants Cannot Justify The “Less Than Equal” Treatment of Religious Assemblies. ...........................................................................................................18
CONCLUSION..................................................................................................23
iii
2020).....................................................................................................................10
Case 1:24-cv-00068-DKW-WRP Document 37 Filed 03/29/24 Page 3 of 32 PageID.390
TABLE OF AUTHORITIES
Pages
Cases
Calvary Chapel Bible Fellowship v. County of Riverside, 948 F.3d 1172 (9th Cir.
Calvary Chapel Bible Fellowship v. County of Riverside, No. CV16-259 PSG (DTBx), 2017 WL 6883866 (C.D. Cal. Aug. 18, 2017) ............................... 10, 12
Centro Familiar Cristiano Buenas Nuevas v. City of Yuma, 651 F.3d 1163 (9th Cir. 2011)............................................................................................................. passim
Chabad of Nova, Inc. v. City of Cooper City, 533 F. Supp. 2d 1220 (S.D. Fla. 2008).....................................................................................................................17
Christian Fellowship Centers of New York, Inc. v. Village of Canton, 377 F. Supp. 3d 146)....................................................................................................................1
Congregation Etz Chaim v. City of Los Angeles, No. CV10-1587 CAS EX, 2011 WL 12472550 (C.D. Cal. July 11, 2011) .................................................. 1, 14, 20
Corp. of the Cath. Archbishop of Seattle v. City of Seattle, 28 F. Supp. 3d 1163, 1167-71 (W.D. Wash. 2014); ...........................................................................8, 20
Digrugillers v. City of Indianapolis, 506 F.3d 612 (7th Cir. 2007)...........................8
Elijah Grp., Inc. v. City of Leon Valley, 643 F.3d 419 (5th Cir. 2011).....................8
Elrod v. Burns, 427 U.S. 347 (1976) .......................................................................12
Guru Nanak Sikh Soc’y of Yuba City v. Cnty. of Sutter, 456 F.3d 978 (9th Cir.
2006).......................................................................................................................1
Hacienda Valley Mobile Ests. v. City of Morgan Hill, 353 F.3d 651 (9th Cir. 2003)
..............................................................................................................................11
Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253 (3d Cir.
2007)...................................................................................................................1, 8
iv
Case 1:24-cv-00068-DKW-WRP Document 37 Filed 03/29/24 Page 4 of 32 PageID.391
Lujan v. Defs. of Wildlife, 504 U.S. 555 (1992) ......................................................12
Micah’s Way v. City of Santa Ana, No. 8:23-cv-00183-DOC-KES, 2023 WL
4680804 (C.D. Cal. June 8, 2023)..........................................................................1
Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004)......1, 8
New Harvest Christian Fellowship v. City of Salinas, 29 F.4th 596 (9th Cir. 2022),
cert. denied, 143 S. Ct. 567 (2023)............................................................... passim
New Life Ministries v. Charter Twp. of Mt. Morris, No. 05-cv-74339, 2006 WL
2583254 (E.D. Mich. Sept. 7, 2006) ....................................................................20
Opulent Life Church v. City of Holly Springs, 697 F.3d 279 (5th Cir. 2012) . passim
Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward Cnty., 450 F.3d
1295 (11th Cir. 2006) ...........................................................................................12
St. Timothy’s Episcopal Church v. City of Brookings, No. 1:22-cv-00156-CL, 2024
WL 1303123 (D. Or. Mar. 27, 2024) .....................................................................1
United States v. City of Troy, 592 F. Supp. 3d 591, 606 (E.D. Mich. 2022).... 17, 21
United States v. City of Walnut, No. CV 10-6774-GW FMOX, 2011 WL 12464619
(C.D. Cal. Jan. 13, 2011)......................................................................................11
Vietnamese Buddhism Study Temple In Am. v. City of Garden Grove, 460 F. Supp.
2d 1165, 1174-75 (C.D. Cal. 2006)..................................................... 8, 14, 17, 22
Williamson County Regional Planning Commission v. Hamilton Bank, 473 U.S.
172 (1985), overruled in non-relevant part by Knick v. Township of Scott, 588
U.S. 180 (2019) ....................................................................................................10
Yee v. City of Escondido, 503 U.S. 519 (1992) .......................................................10
Statutes
28 U.S.C. § 517..........................................................................................................1
42 U.S.C. § 2000cc(b)(1)...........................................................................................7
42 U.S.C. § 2000cc-2(a)...........................................................................................11
v
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42 U.S.C. § 2000cc-2(b) ............................................................................................9
42 U.S.C. § 2000cc-2(f).............................................................................................1
42 U.S.C. § 2000cc-3(g) ............................................................................................7
Haw. Cnty. Code § 19-77 ........................................................................................22
Haw. Cnty. Code § 19-77(b)(3) ...............................................................................22
Haw. Cnty. Code § 19-77(b)(6) ...............................................................................22
Haw. Cnty. Code § 19-77(c)(3). ..............................................................................23
Haw. Cnty. Code § 25-1-5(b) ................................................................. 4, 15, 16,22
Haw. Cnty. Code § 25-2-60 .......................................................................................3
Haw. Cnty. Code § 25-2-61 .......................................................................................3
Haw. Cnty. Code § 25-2-61(a)(3)........................................................................3,15
Haw. Cnty. Code § 25-2-62 .......................................................................................3
Haw. Cnty. Code § 25-2-63 .......................................................................................3
Haw. Cnty. Code § 25-2-64 .......................................................................................3
Haw. Cnty. Code § 25-2-65 .......................................................................................3
Haw. Cnty. Code § 25-2-66 .......................................................................................3
Haw. Cnty. Code § 25-2-67 .......................................................................................3
Haw. Cnty. Code § 25-4-51(a)(16)..........................................................................23
Haw. Cnty. Code § 25-5-1 .......................................................................................20
Haw. Cnty. Code § 25-5-3 ...................................................................................8,13
Haw. Cnty. Code § 25-5-3(a)(3)..............................................................................22
vi
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Haw. Cnty. Code § 25-5-3(a)(9)................................................................... 4, 15,20
Haw. Cnty. Code § 25-5-3(a)(11)............................................................................22
Haw. Cnty. Code § 25-5-3(a)(12)............................................................................22
Haw. Cnty. Code § 25-5-3(b)(3)..........................................................................3, 15
Other Authorities
General Plan for the County of Hawaii, § 14.6.2(d)................................................21
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UNITED STATES’ STATEMENT OF INTEREST IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
The United States respectfully submits this Statement of Interest pursuant to
28 U.S.C. § 517, which authorizes the Attorney General “to attend to the interests
of the United States in a suit pending in a court of the United States.” The United
States is responsible for enforcing the Religious Land Use and Institutionalized
Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc-2(f), and accordingly has an
interest in how courts apply and interpret the statute. To help ensure the correct and
consistent interpretation of RLUIPA, the United States has filed many statements
of interest in RLUIPA cases with district courts, as well as amicus briefs with the
courts of appeal.1
1 See, e.g., St. Timothy’s Episcopal Church v. City of Brookings, No. 1:22-cv-00156-CL, ECF 73 (D. Or. Nov. 21, 2023) (decision at 2024 WL 1303123 (D. Or.
Mar. 27, 2024)); Micah’s Way v. City of Santa Ana, No. 8:23-cv-00183-DOC-
KES, ECF 25 (C.D. Cal. May 9, 2023) (decision at 2023 WL 4680804 (C.D. Cal.
June 8, 2023)); Christian Fellowship Centers of New York, Inc. v. Village of
Canton, No. 8:19-cv-00191-LEK-DJS, ECF 27 (N.D.N.Y. Mar. 26, 2019)
(decision at 377 F. Supp. 3d 146); Hope Lutheran Church v. City of St. Ignace, No.
2:18-cv-0155-PLM-TLG, ECF 34 (W.D. Mich. Mar. 19, 2019); Ramapough Mountain Indians, Inc. v. Township of Mahwah, No. 2:18-cv-9228 (CCC) (JBC), ECF 82 (D.N.J. Mar. 18, 2019); Congregation Etz Chaim v. City of Los Angeles, No. CV10-1587 CAS EX, ECF 134 (C.D. Cal. Apr. 28, 2011) (decision at 2011 WL 12472550 (C.D. Cal. July 11, 2011)); Opulent Life Church v. City of Holly
Springs, 697 F.3d 279 (5th Cir. 2012); Centro Familiar Cristiano Buenas Nuevas
v. City of Yuma, 651 F.3d 1163 (9th Cir. 2011); Lighthouse Inst. for Evangelism,
Inc. v. City of Long Branch, 510 F.3d 253 (3d Cir. 2007); Guru Nanak Sikh Soc’y
of Yuba City v. Cnty. of Sutter, 456 F.3d 978 (9th Cir. 2006); Midrash Sephardi,
Inc. v. Town of Surfside, 366 F.3d 1214 (11th Cir. 2004).
2
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The County of Hawaii’s zoning code (“Zoning Code”) violates RLUIPA’s
equal terms provision on its face. Section § 25-5-3 of the Zoning Code requires
religious assemblies in residential districts to obtain a use permit—a long and
potentially costly discretionary review process including a public hearing before
the County Planning Commission—while permitting comparable secular
assemblies by right without such a permit. The County offers no legally
permissible justification for this unequal treatment. Citing this provision of the
Zoning Code, the County ordered Plaintiffs, a Chabad Jewish Center and its Rabbi,
to cease holding religious services at the Rabbi’s home. Because the County’s
Zoning Code violates RLUIPA on its face, Plaintiffs have established a likelihood
of success on the merits for their RLUIPA equal terms claim.2
I. BACKGROUND
A. Hawaii County Zoning Code
The Zoning Code prescribes several kinds of zoning districts, such as
residential, commercial, and agricultural, and what sorts of uses are allowed in
each zoning district. Some uses are permitted as of right. Others, like
2 In this Statement of Interest, the United States does not address the other elements of a preliminary injunction or the other claims for relief brought by
Plaintiffs. If Defendants wish to respond to the arguments raised in this Statement
of Interest, and request leave from the Court to file a sur-reply to do so, Plaintiffs’
counsel has represented to the United States that they will not oppose that request,
provided that the schedule for the preliminary injunction hearing remains in place.
3
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crematoriums, houses of worship, hospitals, and golf courses, require a “use
permit” to operate in certain zoning districts. Haw. Cnty. Code § 25-2-61. “Use
permits” are intended to provide the County with the opportunity to pay “special
attention to insure [sic] that the uses will neither unduly burden public agencies to
provide public services nor cause substantial adverse impacts upon the surrounding
community.” Id. § 25-2-60.
To apply for a use permit, an applicant must submit $500 and a detailed
application to the Planning Department addressing several objective and subjective
factors, including that the “proposed use shall not be materially detrimental to the
public welfare nor cause substantial, adverse impact to the community’s character
[or] to surrounding properties.” Id. §§ 25-2-62 and 25-2-65. The Planning
Commission decides use permit applications at a public hearing, and, in its
discretion, can “either deny or approve the application.” Id. §§ 25-2-63 and 25-2-
64. The process can take months or longer. Id. §§ 25-2-63 and 25-2-64. Use
permits can be appealed by “any person aggrieved by the decision” or revoked by
the Planning Commission. Id. §§ 25-2-66 and 25-2-67.
In the residential (“RS”) zoning district—where Plaintiffs reside—
“churches, temples, and synagogues” and “meeting facilities” for “churches,
temples, synagogues and other such institutions” require a use permit. Id. §§ 25-2-
61(a)(3) and 25-5-3(b)(3). Secular “meeting facilities” are, however, permitted as
4
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of right, without such a permit. Id. § 25-5-3(a)(9). “Meeting facilities” are defined
as facilities “for nonprofit recreational, social or multi-purpose use . . . which may
be for organizations operating on a membership basis for the promotion of
members’ mutual interests or may be primarily intended for community purposes.”
Id. § 25-1-5(b) (further listing “typical uses” as “private clubs, union halls,
community centers, and student centers”). Accordingly, religious facilities require
a use permit while secular meeting facilities do not.
B. The County Prohibits Plaintiffs’ Chabad House.
Plaintiffs have owned and operated a “Chabad House” in Kailua Kona,
Hawaii for several years. See Decl. of Rabbi Levi Gerlitzky (“Gerlitzky Decl.”),
ECF 14-2, ¶¶ 3, 8, 10, 13-14. Chabad is an Orthodox Jewish Hasidic movement
that prioritizes outreach activities. Id. ¶ 4. Chabad rabbis focus their ministry on
fostering Jewish community, which involves opening their own homes for
meetings, prayers, and other community-building events. Id. ¶ 4. Similar to other
Chabad houses, Plaintiffs host Shabbat and religious holiday celebrations that
include meals at their Chabad House. Id. ¶¶ 27-29, 33-34. At Plaintiffs’ Chabad
House, guests can participate in religious life and observe Orthodox practices. See
id. ¶¶ 23, 29, 33. And like other Chabad houses, Plaintiffs’ Chabad House also
serves as the residence of the Chabad Rabbi— here, Plaintiff Rabbi Levi Gerlitzky.
Id. ¶¶ 4, 13-14 & Exh. A (ECF 14-4) (noting property tax exemption for the
5
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property as a “parsonage—housing for clergy”). Plaintiffs’ Chabad House is in a
“Single-Family Residential” (“RS-10”) zoning district. Feb. 1, 2023, Planning
Dept. Letter at 1, ECF 14-5.
Since 2019, Plaintiffs have held Shabbat and other religious celebrations
involving meals at their home. Gerlitzky Decl. ¶¶ 14, 27-34. In February 2023,
however, Hawaii County’s Planning Department sent a Notice of Complaint to
Plaintiffs stating that “[t]he Planning Department received a complaint alleging
that you are use [sic] your property as a church, temple, or synagogue without a
use permit,” citing Section 25-5-3(b)(3) of the Zoning Code. Id. ¶ 37; see also Feb.
1, 2023, Planning Dept. Letter at 1-2. One month later, the Planning Department
sent a “Findings” letter to Plaintiffs, stating that the “Planning Director affirms that
you are operating an unpermitted ‘Church, Temple or Synagogue’ (Chabad Jewish
Center Big Island),” that Plaintiffs were violating Sections 25-4-4 and 25-5-3 of
the Zoning Code and that they must “Immediately cease and desist from
operating the Chabad Jewish Center Big Island on the subject property.”
Gerlitzky Decl. ¶ 39; March 17, 2023, Planning Dept. Letter at 3, ECF 14-7 (bold
in original). The letter added that the Planning Department had fined Plaintiffs
$1,000 and that fines would continue to accrue at $100 per day. March 17, 2023,
Planning Dept. Letter at 3.
6
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Plaintiffs applied for a use permit with a detailed application and paid the
application fee to satisfy Defendants’ demands. Gerlitzky Decl. ¶¶ 43-44 & Exhs. I
(ECF 14-12) & J (ECF 14-13). The County denied the application and returned the
application fee, stating that Plaintiffs needed to submit “more detailed, accurate
information,” and to “thoroughly research the permitting requirements to convert
your dwelling into the proposed use,” noting that the “Use Permit is just the first
step in permitting such a change of use” and that Plaintiffs may need to “upgrad[e]
the facility to commercial type standards.” Id. ¶ 45 & Exh. K (ECF 14-14). On
June 1, 2023, the County began to assess daily fines. Id. ¶¶ 45, 49, 52 & Exh. M
(ECF 14-16). The County has assessed thousands of dollars in fines against
Plaintiffs. Id. Exhs. M & O (ECF 14-18).3
On February 13, 2024, after informal resolution attempts proved
unsuccessful, Plaintiffs filed a seven count Complaint alleging violations of the
United States and Hawaii Constitutions and RLUIPA, ECF 1, as well as a Motion
for Preliminary Injunction, ECF 14.
3 The County states in its Opposition brief that “[b]eginning on February 29, 2024, the Planning Department has stayed accrual of fines arising from the Notice of
Violation” and that “[t]hese fines will not accrue during the pendency of Plaintiffs'
Motion for a Preliminary Injunction Pursuant to Federal Rule of Civil Procedure
65.” See Decl. of Elizabeth Gillis at ¶ 34, ECF 35-1 (emphasis added); Defs’ Br. at
5, ECF 35.
7
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II. ARGUMENT
The equal terms provision of RLUIPA prohibits governments from
“impos[ing] or implement[ing] a land use regulation in a manner that treats a
religious assembly or institution on less than equal terms with a nonreligious
assembly or institution.” 42 U.S.C. § 2000cc(b)(1). The protections of RLUIPA,
including the equal terms provision, are construed broadly to protect religious
exercise. 42 U.S.C. § 2000cc-3(g).
A facial equal terms RLUIPA claim—like the kind brought by Plaintiffs—
challenges whether a land use regulation, on its face, treats religious assembly uses
less favorably than secular assembly uses. New Harvest Christian Fellowship v.
City of Salinas, 29 F.4th 596, 604-05 (9th Cir. 2022), cert. denied, 143 S. Ct. 567
(2023). Facial claims require no “final decision” by the local land use authority.
Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 287 (5th Cir. 2012).
Plaintiffs’ facial equal terms claim is therefore ripe. Plaintiffs also have standing to
bring their claim because the Zoning Code prevents them from engaging in
religious exercise and a favorable decision from the Court would redress that harm.
As the County is a government that is “impos[ing]” its Zoning Code on a
“religious assembly or institution,” the only element of Plaintiffs’ RLUIPA equal
terms claim that is in dispute is whether the County’s Zoning Code treats religious
assemblies or institutions “on less than equal terms” with secular ones. New
8
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Harvest, 29 F.4th at 604 (quoting Centro Familiar Cristiano Buenas Nuevas v.
City of Yuma, 651 F.3d 1163, 1170-71 (9th Cir. 2011)).4 Here, the Zoning Code
undeniably treats religious use less favorably than comparable secular assembly
use by requiring “churches, temples, and synagogues” to obtain a use permit while
nonreligious assemblies, such as “meeting facilities,” do not. Haw. Cnty. Code §
25-5-3. Courts in the Ninth Circuit—and nationwide—have consistently held that
this type of express distinction between comparable religious and nonreligious use
in a zoning ordinance violates RLUIPA.5
To establish a prima facie RLUIPA equal terms claim in the Ninth Circuit, a
plaintiff must show “that the challenged regulation makes an express distinction
between religious and nonreligious assemblies, regardless of whether those
assemblies are similarly situated.” New Harvest, 29 F.4th at 606 n.10 (citing
4 The Ninth Circuit has “identified four elements of an equal terms claim: ‘(1) there
must be an imposition or implementation of a land-use regulation, (2) by a
government, (3) on a religious assembly or institution,’ and (4) the imposition or
implementation must be ‘on less than equal terms with a nonreligious assembly or
institution.’” New Harvest, 29 F.4th at 604 (quoting Centro Familiar, 651 F.3d at
1170–71). The County does not appear to contest the first three elements.
5 See, e.g., New Harvest, 29 F.4th at 605-09; Centro Familiar, 651 F.3d at 1171-75; Elijah Grp., Inc. v. City of Leon Valley, 643 F.3d 419, 424 (5th Cir. 2011);
Lighthouse Inst. for Evangelism, Inc. v. City of Long Branch, 510 F.3d 253, 272-73 (3d Cir. 2007); Digrugillers v. City of Indianapolis, 506 F.3d 612, 616-18 (7th Cir.
2007); Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1231-35 (11th
Cir. 2004); Corp. of the Cath. Archbishop of Seattle v. City of Seattle, 28 F. Supp.
3d 1163, 1167-71 (W.D. Wash. 2014); Vietnamese Buddhism Study Temple In Am.
v. City of Garden Grove, 460 F. Supp. 2d 1165, 1174-75 (C.D. Cal. 2006).
9
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Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 291-93 (5th Cir.
2012)). Once that showing is made, the burden shifts to the local government to
establish that there is a justifiable reason for treating religious assemblies less
favorably than nonreligious ones based on “an accepted zoning criterion.” New
Harvest, 29 F.4th at 607; see also 42 U.S.C. § 2000cc-2(b) (“If a plaintiff produces
prima facie evidence to support a claim alleging a violation of . . . [RLUIPA’s
equal terms provision], the government shall bear the burden of persuasion on any
element of the claim.”). Given the stated purpose of the RS district; the uses
permitted by right; and accepted, identifiable zoning criteria in the Zoning Code,
Defendants have not satisfied and cannot satisfy this burden. Thus, Plaintiffs have
established a likelihood of success on the merits for their RLUIPA equal terms
claim.
A. Defendants’ Ripeness Arguments Are Without Merit.
Defendants argue that Plaintiffs’ RLUIPA claims are not ripe because they
did not appeal the notice of violation or submit a use permit application, and that
therefore they have no probability of success on the merits. Defs.’ Br. at 7-11. This
argument fails as a matter of law. Plaintiffs’ facial RLUIPA equal terms claim
asserts that the zoning code, by requiring religious assembly uses to obtain a use
permit, but not nonreligious assembly uses, treats religious assembly uses less
favorably than secular assembly uses, on its face. New Harvest, 29 F.4th at 604-
10
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05.6 Facial challenges to land use statutes are not subject to the “finality”
considerations set out in Williamson County Regional Planning Commission v.
Hamilton Bank, 473 U.S. 172 (1985), overruled in non-relevant part by Knick v.
Township of Scott, 588 U.S. 180 (2019); see Yee v. City of Escondido, 503 U.S.
519, 533–34 (1992) (“While . . . a claim that the ordinance effects a regulatory
taking as applied to petitioners’ property would be unripe for [failure to satisfy
Williamson County], petitioners mount a facial challenge to the ordinance.”
(citation omitted)).
A facial equal terms claim under RLUIPA, therefore, does not implicate the
“final decision” ripeness concerns discussed in Williamson County. See Opulent
Life, 697 F.3d at 287 (citing Yee, 503 U.S. at 533-34) (holding in RLUIPA case
that “Williamson County’s final-decision rule . . . presents no barrier to our
adjudicating Opulent Life's facial challenges to the ordinance” because “[t]he
Supreme Court has held Williamson County to be inapplicable to facial
challenges.”); Calvary Chapel Bible Fellowship v. County of Riverside, No. CV16-
259 PSG (DTBx), 2017 WL 6883866, at *6 (C.D. Cal. Aug. 18, 2017) (citing
Hacienda Valley Mobile Ests. v. City of Morgan Hill, 353 F.3d 651, 655 (9th Cir.
6 In a facial equal terms challenge, courts “consider only the text of the zoning
ordinance, not its application.” New Harvest, 29 F. 4th at 605 (quoting Calvary
Chapel Bible Fellowship v. County of Riverside, 948 F.3d 1172, 1176 (9th Cir.
2020)).
11
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2003)) (holding in RLUIPA equal terms case that “[T]he final-decision rule does
not present a barrier to adjudicating CCBF’s causes of action, all of which assert
facial challenges to the ordinances in question”).7
B. Defendants’ Standing Arguments are Likewise Without Merit.
Defendants also argue that Plaintiffs cannot show a probability of success on
the merits because they lack standing to bring an Equal Terms challenge. See
Defs.’ Br. at 11-14. Specifically, and citing no authority, Defendants assert
Plaintiffs lack standing to bring RLUIPA claims challenging whether religious
assembly uses are treated less favorably than “meeting facilities” because Plaintiffs
were not cited for violating the specific “meeting facility” clause in the Zoning
Code. See id.
Defendants misunderstand the concept of standing and the nature of
Plaintiffs’ RLUIPA equal terms claim. Standing to bring a claim under RLUIPA is
“governed by the general rules of standing under article III of the Constitution.” 42
U.S.C. § 2000cc-2(a). Standing requires that Plaintiffs have been “injured in fact,”
7 Defendants’ argument that Plaintiffs must have appealed the Notice of Violation is similarly unavailing. See Defs.’ Br. at 9-10. RLUIPA does not require exhaustion of administrative remedies as a prerequisite to bringing a claim. See,
e.g., United States v. City of Walnut, No. CV 10-6774-GW FMOX, 2011 WL
12464619, at *3 (C.D. Cal. Jan. 13, 2011) (“RLUIPA's land-use provisions contain
no express requirement that administrative remedies be exhausted before a plaintiff
may file suit . . . . Accordingly, RLUIPA does not require plaintiffs in land use
cases to exhaust administrative remedies.”).
12
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that the injury is “fairly traceable” to the defendant’s conduct, and the injury be
redressable by a favorable decision. Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-
61 (1992). Each element is met here.
There is no dispute that Plaintiffs have been injured in fact. The County has
ordered Plaintiffs to stop engaging in religious exercise and assessed thousands of
dollars of fines against them. See supra Section I.B. As a result of Defendants’
cease and desist order, Plaintiffs have “stopped inviting folks into [their] home in
the Center’s information materials” which caused their “ability to connect with
other Jewish individuals and welcome them into a familial setting for Jewish
celebration” to suffer. Gerlitzky Decl. ¶ 55. That is sufficient injury to confer
standing. See, e.g., Calvary Chapel, 2017 WL 6883866, at *7 (finding the plaintiff
“asserts an injury in fact because it cannot use its property for religious use” (citing
Primera Iglesia Bautista Hispana of Boca Raton, Inc. v. Broward Cnty., 450 F.3d
1295, 1304 (11th Cir. 2006))); Opulent Life, 697 F.3d at 295 (“The loss of First
Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.” (quoting Elrod v. Burns, 427 U.S. 347, 373
(1976))).8
8 That the County has offered to stop assessing fines during the pendency of this
motion does not alter Plaintiffs’ injury. The County has not retracted its cease-and-
desist order nor agreed to abate the thousands of dollars in fines it claims to have
already assessed against Plaintiffs.
13
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Second, Plaintiffs’ injury is traceable to the conduct of Defendants.
Plaintiffs’ injury arises from Defendants’ “findings” that Plaintiffs violated section
25-5-3 of the Zoning Code and Defendants’ later efforts to shut the Chabad House
down and fine them thousands of dollars. See March 17, 2023 Planning Dept.
Letter at 3. Although not stated as much, Defendants appear to be arguing, without
any legal support, that because they did not charge Plaintiffs with violating the
“meeting facility” portion of section 25-5-3 of the Zoning Code, Plaintiffs cannot
assert an equal terms claim based on that portion of the code. See Defs.’ Br. at 12.
This is false. RLUIPA’s equal terms provision prohibits the County from treating
religious assembly uses less favorably than nonreligious assembly uses. New
Harvest, 29 F.4th at 604-06. A prima facie violation occurs when the County’s
Zoning Code “makes an express distinction between religious and nonreligious
assemblies, regardless of whether those assemblies are similarly situated.” Id. at
606 n.10. Plaintiffs need not demonstrate that they were subject to portions of the
Zoning Code pertaining to nonreligious assembles. Id.9 That the County never
cited Plaintiffs for violating the nonreligious assembly portions of its Zoning Code
is therefore irrelevant.
9 Such a requirement contradicts the facts and holdings of Centro Familiar and
New Harvest. In both cases, the plaintiffs alleged facial equal terms claims, which
were sustained by the Ninth Circuit. New Harvest, 29 F.4th at 608; Centro
Familiar, 651 F.3d at 1173-75. Neither plaintiff alleged that they had been subject
to the zoning code sections pertaining to nonreligious assembles.
14
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Finally, Plaintiffs’ injury would be redressable by a favorable decision from
the Court. If the Court found an equal terms violation, it could enjoin the County
from applying the “use permit” requirements in section 25-5-3 of the Zoning Code
and enjoin it from interfering with Plaintiffs’ religious exercise at their residence.
See, e.g,, Vietnamese Buddhism Study Temple In Am. v. City of Garden Grove, 460
F. Supp. 2d 1165, 1174-75 (C.D. Cal. 2006) (finding the City’s zoning code “on its
face, treats churches and religious centers on less than equal terms than it treats
private clubs and other secular assemblies,” granting preliminary injunction
enjoining provisions of the zoning code requiring religious assemblies to obtain a
conditional use permit, and ordering that Plaintiff could use its temple for religious
purposes); see also Congregation Etz Chaim v. City of Los Angeles, No. CV10-
1587 CAS EX, 2011 WL 12472550, at *9-10 (C.D. Cal. July 11, 2011) (finding
“plaintiffs have sufficiently made out a prima facie case of unequal treatment” and
enjoining “any enforcement actions by the City that would prevent the
Congregation from continuing the use of the property”). Defendants’ argument that
Plaintiffs have no probability of success because they lack standing is therefore
without merit.
15
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C. On Its Face, Hawaii County’s Zoning Code Violates RLUIPA Because It Treats Religious Assemblies On Less Than Equal Terms With Secular Assemblies.
Plaintiffs have established a prima facie RLUIPA equal terms violation by
identifying unequal zoning requirements in the language of the Zoning Code.
Centro Familiar, 651 F.3d at 1171 (“[T]he express distinction drawn by the
ordinance establishes a prima facie case for unequal treatment.”). For RS districts,
“churches, temples, and synagogues” “may be permitted . . . provided that a use
permit is issued,” Haw. Cnty. Code § 25-5-3(b)(3) (emphasis added). But
analogous secular “meeting facilities,” which include “private clubs, union halls,
community centers, and student centers,” see id. § 25-1-5(b), “shall be permitted”
in RS districts. Id. § 25-5-3(a)(9).10 No use permit—subject to an application fee
and lengthy and discretionary approval process—is required.
The Ninth Circuit has repeatedly found this same type of express distinction
to constitute a “prima facie case of facially unequal treatment.” New Harvest, 29
F.4th at 605. For example, in Centro Familiar, the Ninth Circuit found that the
City of Yuma violated RLUIPA when it permitted “membership organizations,”
while specifically excluding “religious organizations,” to operate in the City’s
downtown business district without a conditional use permit, but required churches
10 “Meeting facilities” for churches, temples, and synagogues, however, do require
a use permit. Haw. Cnty. Code § 25-2-61(a)(3).
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and other religious organizations to get a permit. Centro Familiar, 651 F.3d at
1171 (“It is hard to see how an express exclusion of ‘religious organizations’ from
uses permitted as of right by other ‘membership organizations’ could be other than
‘less than equal terms’ for religious organizations.”). Crucially, in Centro
Familiar, the City of Yuma’s zoning code defined “membership organizations” to
include “professional membership organizations, labor unions, civic associations,
social associations, fraternal associations, political organizations, and others,” see
Centro Familiar, 651 F.3d at 1171 n.35, which is virtually indistinguishable from
the Hawaii County Zoning Code’s definition of “meeting facilities.” See Haw.
Cnty. Code § 25-1-5(b) (“meeting facilities” includes “organizations operating on a
membership basis for the promotion of members’ mutual interests or may be
primarily intended for community purposes. Typical uses include private clubs,
union halls, community centers, and student centers.”).11
Similarly, in New Harvest, the Ninth Circuit found the plaintiff, a church
seeking to operate on the ground floor of a building in the downtown core area of
11 Defendants repeated citation to Chabad of Prospect, Inc. v. Louisville Metro
Board of Zoning Adjustment, 623 F. Supp. 3d 791 (W.D. Ky. 2022), an out-of-circuit district court decision, is misplaced. Unlike the Hawaii County’s Zoning Code, the Louisville zoning code prohibited all institutional uses—secular or
religious—from residential zones, and only allowed them with a conditional use
permit. Id. at 804. Moreover, the plaintiff in that case “argue[d] only that the
ordinance is unequally applied,” and did not bring a facial unequal terms case like
Plaintiffs here. Id.
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the City of Salinas, successfully established a prima facie equal terms violation by
pointing to the City’s “express distinction between ‘[c]lubs, lodges, and places of
religious assembly, and similar assembly uses’ on the one hand, and all other
nonreligious assemblies, on the other hand.” New Harvest, 29 F.4th at 605. While
certain nonreligious assemblies could operate on the first floor of buildings in the
downtown area as of right, religious assemblies were completely prohibited from
operating at all on the first floor. Id. When confronted with similar factual
scenarios, many other courts have ruled the same as the Ninth Circuit.12
Plaintiffs have thus established their prima facie case of a RLUIPA equal
terms violation.
12 See, e.g., Opulent Life, 697 F.3d at 293 (requirement that churches “obtain discretionary approval from the mayor and Board of Aldermen” but not nonreligious institutions like libraries, museums, and art galleries “plainly violated the Equal Terms Clause” and “were unlawful under RLUIPA.”); United States v.
City of Troy, 592 F. Supp. 3d 591, 606 (E.D. Mich. 2022) (prima facie case
established because of “requirement that places of worship apply for and obtain a
special permit to operate in the City's Community Facilities district” while
“institutions such as fine and performing arts facilities, recreational facilities, and
primary, secondary, and post-secondary schools” are “permitted by right”);
Chabad of Nova, Inc. v. City of Cooper City, 533 F. Supp. 2d 1220, 1221-23 (S.D. Fla. 2008) (awarding judgment on the pleadings because city land use code on its face permitted “other land uses that met the definition of an ‘ assembly’ or ‘institution’” such as “places where people may gather for meetings and/or business related to trade associations or unions,” but banned “religious assemblies or institutions”); Vietnamese Buddhism Study Temple, 460 F. Supp. 2d at 1174 (“The GGZO, on its face, treats churches and religious centers on less than equal
terms than it treats private clubs and other secular assemblies. It allows private
clubs to operate without a CUP in the office professional zone, while religious
assemblies are banned from that zone entirely.”).
18
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D. Defendants Cannot Justify The “Less Than Equal” Treatment of Religious Assemblies.
Because Plaintiffs have established their prima facie case, the burden shifts
to Defendants to rebut it by showing that preferentially treated nonreligious
assemblies are “not similarly situated to a religious assembly with respect to an
accepted zoning criterion.” New Harvest, 29 F.4th at 607. In other words,
Defendants must establish that there is a legitimate reason, with respect to
traditionally accepted criteria in the Zoning Code, that can justify the “less-than-
equal-terms . . . [and] not the fact that the institution is religious in nature.” Centro
Familiar, 651 F.3d at 1172. Defendants cannot do so because nothing in the
Zoning Code can justify—or even try to explain—why religious assemblies should
be made to obtain a use permit, but similar nonreligious assemblies like meeting
facilities are not.
When assessing an equal terms claim under RLUIPA, courts in the Ninth
Circuit, as elsewhere, look to the text of zoning codes to identify whether there is
any legitimate zoning reason to treat religious uses different than secular assembly
uses. See, e.g., Centro Familiar, 651 F.3d at 1172-73; New Harvest, 29 F.4th at
607. For example, in Centro Familiar the court considered the proffered purpose
of the “Old Town Main Street” zoning district—to create an entertainment-
oriented environment “with a ‘mixture of commercial, cultural, governmental, and
residential uses that will help to ensure a lively pedestrian-oriented district’”—and
19
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assessed “accepted zoning criteria” such as “parking, vehicular traffic, and
generation of tax revenue.” Centro Familiar, 651 F.3d at 1165, 1173. The court
found that the zoning code did not even address certain zoning criteria at all, like
parking and traffic. Id. at 1173. The zoning code also permitted other uses as of
right, such as other tax-exempt entities like post offices, as well as jails and
prisons, that weren’t in accordance with the generation of tax revenue or the
overall purpose of the district. Id. As a result, the court found that there was no
valid justification for requiring religious organizations to obtain a use permit but
permit nonreligious membership organizations to operate by right. Id. at 1173-75.
Similarly, in New Harvest, the Ninth Circuit found that the City of Salinas
failed to explain how a church would have a different impact than nonreligious
assembly uses, like theaters, on the stated purpose of the district of encouraging a
pedestrian-friendly, vibrant downtown district. New Harvest, 29 F.4th at 607-08.
The court noted that “[l]ike many religious assemblies, including New Harvest,
theatres are open only on certain days of the week and for certain portions of the
day; they attract sporadic foot traffic around their opening hours; and while they
have some regular patrons, they are also open to newcomers.” Id. at 608.
As in Centro Familiar and New Harvest, the Zoning Code here
impermissibly imposes a higher standard on religious assemblies—requiring them
to obtain a use permit—than nonreligious ones untethered to the purpose of the
20
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zoning district. The stated purpose of the RS single-family residential district is to
“provide for lower or low and medium density residential use, for urban and
suburban family life.” Haw. Cnty. Code § 25-5-1. There is no zoning criteria-based
reason to require that religious assemblies, but not secular meeting facilities, obtain
a use permit. “Urban and suburban family life” are not harmed any more by
religious assemblies than by nonreligious places of assembly like meeting
facilities, which do not require a use permit. Haw. Cnty. Code § 25-5-3(a)(9); see
Corp. of the Cath. Archbishop of Seattle v. City of Seattle, 28 F. Supp. 3d 1163,
1168-69 (W.D. Wash. 2014) (similar effects on residential zone from lighted
athletic facility at a secular high school as a religious one); Congregation Etz
Chaim, 2011 WL 12472550, at *7-9 (claim that “residential nature of the
neighborhood” would be harmed by religious congregation meeting at a house
“undercut by the number of sites in the R-1 zone that are used for nonresidential
purposes,” such as nonreligious places of assembly); New Life Ministries v.
Charter Twp. of Mt. Morris, No. 05-cv-74339, 2006 WL 2583254, at *5 (E.D.
Mich. Sept. 7, 2006) (finding private clubs, civic and fraternal organizations, lodge
halls, theaters, assembly halls, and public and private educational facilities and
institutions “gather and meet with similar frequency” as religious assemblies).
Indeed, engaging in religious practice is important to many families’ lives,
and so having a nearby place to worship is congruent with the stated purpose of the
21
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RS district and the stated goals of the County’s overall general Land Use Plan. See
General Plan for the County of Hawaii, § 14.6.2(d) (among the goals of the
“single-family residential district” is “[t]o provide single-family residential areas
conveniently located to public and private services, shopping, other community
activities and convenient access to employment centers that takes natural beauty
into consideration”) (emphasis added).13
Nor can the unequal treatment be justified by any accepted zoning criteria,
like traffic, parking, or the generation of tax revenue. The type of nonreligious
places of assembly permitted in RS districts are similar to religious assemblies in
terms of impact on these concerns. As with churches or synagogue or other places
of religious assembly, people visit nonreligious meeting halls, neighborhood parks,
playgrounds, and community buildings on a sporadic or regular basis. New
Harvest, 29 F.4th at 608. Activity is not 24/7, but more typically tied to particular
events and days and times of the week. Id.; see also Troy, 592 F. Supp. 3d at 605.14
13 Available at
https://www.planning.hawaiicounty.gov/home/showpublisheddocument/301643/63 7204664141830000 (last visited March 22, 2024).
14 Defendants’ contentions about “overnight accommodations” for meeting facilities misses the mark. See Defs.’ Br. at 12-14. Defendants do not explain why it is relevant whether meeting facilities allow overnight accommodations. See
Haw. Cnty. Code § 25-1-5(b). The “overnight accommodations” clause is meant to
limit whether members or guests of the meeting facility can stay overnight, not
whether residents who live there can. For example, the same “overnight
accommodations” language is used in defining “adult day care home.” See id. § 25-
22
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There is no more “burden” on “public services” or “substantial adverse impacts on
the surrounding community” from a church or synagogue than there would be from
a union hall or a political club hosting meetings. See New Harvest, 29 F.4th at 608;
Vietnamese Buddhism Study Temple, 460 F. Supp. 2d at 1174-75.
The Zoning Code also does not identify the generation of tax revenue as a
goal for residential districts, but even if it did, the Zoning Code allows in the
residential district a host of other non-tax producing uses like “community
buildings . . . neighborhood parks [and] playgrounds . . . public uses and
structures,” see Haw. Cnty. Code § 25-5-3(a)(3), (11), (12), and “nonprofit
recreational, social, or multipurpose use.” See id. § 25-1-5(b) (definition of
“meeting facility”).15
1-5(b) (“’Adult day care home’” means a private residence, approved by the state, providing supportive and protective care, without overnight accommodations, to a
limited number of adult disabled or aged persons.” (emphasis added)). Thus, the
owners of the “private residence” may sleep in their own home, while the “adult
disabled or aged persons” may not. In any event, religious “meeting facilities”
must obtain a use permit in the RS zoning district, see id. § 25-2-61(a)(3), while
nonreligious “meeting facilities” need not, id.§ 25-5-3(a)(9), even though both are
presumably subject to the same “overnight accommodations” clause. The County offers no explanation to justify this facially unequal treatment.
15 For this same reason, Defendants’ invocation of Hawaii County Code § 19-77 and reference to Plaintiffs’ tax-exempt status undermines any justifiable reason to treat meeting facilities differently than religious assemblies. Section 19-77 allows a
tax exemption for “property used for church purposes” but also for essentially any
use permitted in “meeting facilities,” including “labor unions,” and for
organizations “for charitable purposes which are of a community character
building, social service, or educational nature.” Id. § 19-77(b)(3), (b)(6), and
23
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Furthermore, regarding parking requirements, the County equates
nonreligious meeting facilities and religious assemblies. Haw. Cnty. Code § 25-4-
51(a)(16) (addressing parking requirements for “[m]eeting facilities, including
churches”). In any case, if the County was truly concerned about traffic and
parking, it could have enacted “neutral restriction[s] on the size” of both
nonreligious meeting facilities and religious assemblies in the Zoning Code. See
Centro Familiar, 651 F.3d at 1173. That it did not underscores the Code’s unequal
treatment of religious assemblies. Id. at 1175. Thus, Defendants fail to carry their
burden to demonstrate how permitted nonreligious assemblies are distinct from
religious assemblies with respect to accepted zoning criteria in the RS district.
III. CONCLUSION
For all these reasons, the Court should find that Plaintiffs have established a
likelihood of success on the merits of their RLUIPA facial equal terms claim
(Count V of the Complaint).
(c)(3). That the County tax code treats religious assembly and nonreligious
assembly uses the same highlights the unjustifiable unequal treatment of them in
the Zoning Code.
24
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Dated: March 29, 2024 Respectfully submitted,
KRISTEN CLARKE Assistant Attorney General Civil Rights Division
/s/ Adam M. Wesolowski
CARRIE PAGNUCCO
Chief
NOAH SACKS ADAM M. WESOLOWSKI Trial Attorneys Housing and Civil Enforcement Section Civil Rights Division U.S. Department of Justice
950 Pennsylvania Avenue, N.W.–4
CON
Washington, DC 20530
Tel.: (202) 718-8821
Fax: (202) 514-1116 Noah.Sacks@usdoj.gov Adam.M.Wesolowski@usdoj.gov
Attorneys for United States of America
25
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CERTIFICATE OF COMPLIANCE
I hereby certify that the foregoing UNITED STATES’ STATEMENT OF INTEREST IN SUPPORT OF PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION complies with Local Rule 7.4(b) and contains 5,850 words, as calculated by the word processing system used to prepare this
document.
Dated: March 29, 2024
/s/ Adam M. Wesolowski
ADAM M. WESOLOWSKI
26
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CERTIFICATE OF SERVICE
I hereby certify that on the date and by the method of service noted below, a true and correct copy of this document was served by the following at their last known address:
Served Electronically through CM/ECF: March 29, 2024
Robert Christensen rjc.esq@outlook.com
Attorney at Law
David J. Hacker DHacker@firstliberty.org Jeremiah G. Dys JDys@firstliberty.org Ryan Gardner RGardner@firstliberty.org First Liberty Institute
Prerak Shah PShah@gibsondunn.com
Elizabeth A. Kiernan EKiernan@gibsondunn.com
Brian Sanders BSanders@gibsondunn.com
Zachary Carstens ZCarstens@gibsondunn.com
Nicholas B. Venable NVenable@gibsondunn.com Lael Weinberger LWeinberger@gibsondunn.com Gibson, Dunn & Crutcher LLP
Attorneys for Plaintiffs Chabad Jewish Center of the Big Island and Rabbi Levi Gerlitzky
E. Britt Bailey elizabethb.bailey@hawaiicounty.gov
County of Hawaii
Office of the Corporation Counsel
Attorney for Defendants County of Hawaii and Hawaii County Planning Director, Zendo Kern
DATED: March 29, 2024
/s/ Adam M. Wesolowski
ADAM M. WESOLOWSKI
From:Quiocho, Kenneth
To:Dacayanan, Melissa
Subject:RE: Request for Comments on Planning Director Initiated (PL-PDI-2025-000014) Relating to Meeting Facilities,
Churches, Temples, Synagogues, and Community Buildings (25HQ0203)
Date:Tuesday, March 4, 2025 9:19:04 AM
The Hawaii Police Department is not opposed to the revisions, changes, and clarification todefining Hawaii County Code Chapter 25, Zoning, as it relates to regulations for meetingfacilities, churches, temples, synagogues, and community buildings.
Thank you for allowing us the opportunity to provide comments on the proposed revisions.
Mahalo,
Kenneth A. K. QuiochoAssistant Police ChiefField Operations Area-I (East Hawaii)Hawaii Police Department349 Kapiolani StreetHilo, Hawaii 96720808-961-2341
RE: 25HQ0203
From: Dacayanan, Melissa <Melissa.Dacayanan@hawaiicounty.gov>
Sent: Friday, February 28, 2025 1:55 PM
To: DPW Traffic <dpwtrf@hawaiicounty.gov>; DWS <dwsengineeringreview@hawaiidws.org>;
cohdem <cohdem@hawaiicounty.gov>; Civil Defense Distribution Group
<civildefense@hawaiicounty.gov>; Komata, James <James.Komata@hawaiicounty.gov>; HPD ONE
<HCPDONE@hawaiicounty.gov>; Morrison, Bethany J <Bethany.J.Morrison@hawaiicounty.gov>;
Palma, Maryam <Maryam.Palma@hawaiicounty.gov>; Rathje, Joel T.
<Joel.Rathje@hawaiicounty.gov>; Buehler, Tion <Tion.Buehler@hawaiicounty.gov>; Uribe, Amelia
<Amelia.Uribe@hawaiicounty.gov>; Kato, Norren <Norren.Kato@hawaiicounty.gov>; Santiago, Hans
<Hans.Santiago@hawaiicounty.gov>; Building Division Internet Email <cohbuild@hawaiicounty.gov>;
Spielman, Aaron <Aaron.Spielman@hawaiicounty.gov>; Baybayan, Clinton
<Clinton.Baybayan@hawaiicounty.gov>; Henderson, Royd <Royd.Henderson@hawaiicounty.gov>;
Kawasaki, Edward <Edward.Kawasaki@hawaiicounty.gov>; Chintan Poudel -DOH Wastewater
<Chintan.Poudel@doh.hawaii.gov>; Dane Hiromasa (dane.hiromasa@doh.hawaii.gov)
<dane.hiromasa@doh.hawaii.gov>; Honda, Eric <Eric.Honda@doh.hawaii.gov>; DOH - Wastewater
Branch <doh.wwb@doh.hawaii.gov>; DOH-Epic <michael.une@doh.hawaii.gov>
Cc: Camero, Tracie-Lee <Tracie-Lee.Camero@hawaiicounty.gov>
Subject: Request for Comments on Planning Director Initiated (PL-PDI-2025-000014) Relating to
Meeting Facilities, Churches, Temples, Synagogues, and Community Buildings
Importance: High
Good afternoon,
Please see the attached memo with ordinance requesting your review and comments on the
subject matter. Please note that no hard copy will be sent.
We kindly ask that you submit your comments to planning@hawaiicounty.gov no later than
March 18, 2025.
If you have any questions, please feel free to contact Planner Tracie Camero at (808) 961-
8166.
Thank you.
Melissa Dacayanan-Salvador
Windward Planning Commission
County of Hawaiʻi Planning Department
101 Pauahi Street, Suite 3
Hilo, Hawaiʻi 96720
Direct: (808) 961-8156 Main: (808)961-8288
Email: melissa.dacayanan@hawaiicounty.gov