The Future of Religious Land Use Institutionalized Persons Act Enforcement
By MARCI HAMILTON

Consider an RLUIPA case in Maui, Hawaii. There, the Hale O Kaula Church had bought 5.85 acres of land that was zoned for agricultural use, and located at the end of a private, dead-end road.

The Church then applied for a special use permit -- seeking to construct several buildings, including an 8,500 square-foot chapel and 58 parking spots. While the matter was being considered, neighboring property owners intervened to persuade the county to enforce the zoning regulations (which they should have been doing without pressure from their constituents).

In the end, the county denied the church's proposal. It found that the planned use would, among other things, burden public resources (thereby increasing the need for fire protection and water), and increase traffic and noise to an unacceptable level.

The church sued. Soon, the parties were near settlement. Then the federal government entered into the picture. DOJ charged Maui with discriminating against the Hale O Kaula Church.

In fact, however, there was no actual - or pattern of - discrimination. Taxpayers' money should not be used to do the work of private litigants in such a case. Yet that was clearly what the Church's attorney, at least, wanted; he asserted that it would benefit his clients to allow DOJ to take the "laboring oar" in the case.

Eventually, the DOJ's action and the private action were separated, and the Church reached a settlement with Maui. That left DOJ's ugly charges hanging in litigation. But as soon as the Church got what it wanted, the DOJ moved to have its action dismissed.

In a gutsy move, however, Maui has refused to acquiesce in the dismissal. The County of Maui is demanding that discovery proceed: Doubtless, it wants to either clear its name in the face of the government's charges of discrimination, or else, if some discrimination did occur, to correct it.


If there is to be any justice in this arena, the federal courts will not permit DOJ to do what it seems to have done in the Maui case: to throw around charges of discrimination in order to cow a local government, apparently on behalf of private religious landowners.