Hawaiʻi County and its planning director, Zendo Kern, are being sued by a rabbi and the religious organization that employs him. The lawsuit alleges that the fines the county has imposed over the use of his Kona home for religious gatherings amounts to religious discrimination, in violation of rights protected by both the state and U.S. constitutions.
“In this time of great uncertainty and fear for many members of the Jewish community,” the complaint states, “Defendants attempt to prevent Jewish residents from gathering together for prayer and celebration in accordance with their faith in the home of their rabbi.”
The house is in a residential district and for about the last five years it has been used by the Chabad Jewish Center of the Big Island and Rabbi Levi Gerlitzky to host kosher celebrations and worship services. According to the complaint, “The county’s policy of selective enforcement against the plaintiffs, if left unchecked, will effectively shutter one of the now only two orthodox Jewish gathering spaces on the Big Island.”
“Typically, about twenty guests come to Rabbi Gerlitzky’s home on Friday nights for prayers and a Shabbat meal, and about fifteen come on Saturday mornings for a morning Shabbat service and lunch,” the complaint states. “Rabbi Gerlitzky and the Center’s other small events, like Hebrew classes, usually have fewer than ten guests. The largest gatherings were for the annual Passover celebration and involved a maximum of about ninety guests. But usually twenty-five to sixty visitors attend the Center’s holiday gatherings.”
Starting in March 2023, the county began issuing notices of violation to Gerlitzky and the Chabad center, apparently in response to the complaints of neighbors along Nani Kailua Drive about the number of cars and traffic generated by people attending services.
But, the lawsuit says, the county has allowed other residences in the same area of Kona to host gatherings. One house on Nani Kailua Drive just a short distance from the Gerlitzky house has hosted large events, “sometimes with fifteen cars outside. … As another example, … a member of the community who lives two miles away, in a neighborhood with much less street parking available, received permission – sans any use permit – to host musical events and talks on spirituality in his home (known as the ‘Pyramid House’) when the Planning Department discovered that the neighbor was only accepting donations, not charging admission, for the events.”
The first notice of violation, dated March 17, 2023, asserted that Gerlitzky was operating “an unpermitted Church, Temple or Synagogue … in violation of Chapter 25 of the Hawaiʻi County (Zoning) Code.” On April 17, Gerlitzky notified the county he would apply for a use permit for a synagogue, paying the $500 filing fee on April 20.
The county rejected the application as incomplete. Also, Gerlitzky was informed that the use permit application “would be just the beginning of the required permitting process. To have religious meetings at his home, the county said, would ‘require building permits and compliance with current building, fire, health codes.’” To issue a permit for a church or synagogue, the county wrote, “might require ‘upgrading the facility to commercial type standards,’ which could include upgrading the ‘wastewater system,’ adding ‘water suppression to meet fire code,’ and making the house ADA-compliant.”
Gerlitzky, believing “that his situation should require extensive permitting because ‘we just want to have people over for meals and prayers,’ then sought a meeting with Kern. “Defendant Kern ignored this request,” the complaint says.
In early July, the Planning Department notified the Chabad Center that daily fines were accruing since June 1, at the rate of $1,000 plus a fine of $100 a day for each day the violation continued.
Gerlitzky called the Planning Department on July 11, stating that the Chabad Center had stopped operating out of his home and he was only inviting people as private individuals to his residence. “The county rejected those explanations, noting that neighbors were complaining about the vehicles of Rabbi Gerlitzky’s visitors,” the complaint says.
Later that month, the county informed the Chabad Center that it was using the property “as a church, temple, or synagogue” and ordered it not to use the property “to conduct any services/gathering at the location.” The letter also included a schedule of increasing fines: $100 a day for the first three months, $200 a day the second three months, $300 a day after the sixth month, and $500 a day after the ninth month.
Gerlitzky retained counsel, who contacted the Planning Department on September 11 and November 3, the complaint says. Counsel attempted to set up a meeting “to seek an amicable resolution of the alleged zoning violations. On both occasions, the county rebuffed Rabbi Gerlitzky’s overtures, advising the Rabbi and the Center to instead continue the futile use permit application process.”
“By fining the center while allowing comparable secular gatherings to occur in the same area, the county’s actions substantially burden the Center and Rabbi Gerlitzky’s religious free exercise … in a way that is not neutral or generally applicable,” the complaint states. The County Code allows “meeting facilities” to operate in residential districts without a permit, the complaint states, but requires churches, temples, and synagogues to obtain a use permit from the county Planning Commission. “The First Amendment prohibits such favoritism for only those meeting facilities unconnected from a religious institution,” it goes on to say.
For this, the complaint asks for a judgment declaring the County Code to be in violation of the First Amendment and enjoining the county from enforcing it. The complaint also seeks a similar declaration that the County Code violates the state Constitution as well as the federal Religious Land Use and Institutionalized Persons Act (RLUIPA).
In addition to the injunctive relief and judgments, the plaintiffs seek monetary and nominal damages as well as attorney fees and costs.
Kern was asked for comment. Jeff Darrow, deputy planning director, replied, stating, “We have been advised not to comment while there is pending litigation.”
Heavy Hitters
Unable to get the Planning Department to relent on the accruing fines, when Gerlitzky sought legal help, he turned toFirst Liberty Institute, which describes itself as “the largest legal organization in the nation dedicated exclusively to defending religious liberty for all Americans.” Representing him locally was the Kauaʻi attorney Robert Christensen.
The letter Christensen wrote to Kern and deputy corporation counsel Jean Campbell on November 3 was signed not by him alone, but also by two attorneys for First Liberty Institute and no fewer than five attorneys from the nationwide firm of Gibson, Dunn & Crutcher, which has frequently partnered with First Liberty in representing clients alleging religious discrimination.
The letter amounted to a 10-page legal brief, concluding that the county was unlikely to be able to demonstrate that its prohibition on Gerlitzky using his home for small services “is ‘in furtherance of a compelling governmental interest’ and [is] ‘the least restrictive means of furthering that compelling governmental interest,” and was therefore a double violation of RLUIPA.
Again, Gerlitzky, through his attorneys, asked for a meeting. “Otherwise, we stand prepared to take any and all legal action necessary to safeguard Rabbi Gerlitzky’s statutory and constitutional rights.”
The lawsuit was filed February 13 in federal court in Honolulu.
— Patricia Tummons
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