Kona rabbi’s lawsuit against county appears headed for settlement

Significant progress is being made toward settling a federal lawsuit filed by a Kailua-Kona rabbi and the religious organization he represents against Hawaii County and Planning Director Zendo Kern, according to court records.

The suit, filed on behalf Chabad Jewish Center of the Big Island and Rabbi Levi Gerlitzky, claims that fines levied by the county at Gerlitzky for using his Nani Kailua Drive home for religious gatherings are discriminatory and violate rights guaranteed by both the U.S. and state constitutions.

The lawyers behind the litigation are from First Liberty Institute in Plano, Texas — a nonprofit legal organization dedicated to religious liberty — which also enlisted attorneys from the Houston and Dallas firm Gibson, Dunn &Crutcher. Chabad Jewish Center’s and Gerlitzky’s Hawaii attorney is Robert Christensen of Kauai.

“Rabbi Gerlitzky has a constitutional right to engage in religious activities in his home with family or friends in the Jewish community, free from government burden and interference,” Jeremy Dys, senior counsel for First Liberty Institute, said in a statement. “By levying fines on religious gatherings while allowing similar secular in-home gatherings like Super Bowl parties and book clubs to continue without penalty, the county violates both the U.S. Constitution and federal law.”

Added Christensen: “Americans of all faiths meet in homes for prayer meetings everyday. It is chilling that Hawaii County officials have resorted to serving fines to this small group of Jewish residents for doing just that.”

A private settlement conference before U.S. Magistrate Judge Kenneth Mansfield is set for Friday.

“Given the parties’ settlement progress, the court administratively terminates plaintiffs’ motion for a preliminary injunction … which was held in abeyance pending the outcome of the parties’ settlement conference,” said a docket item filed by U.S. Magistrate Judge Wes Reber Porter.

According to the document, if a settlement isn’t reached, Gerlitzky and the Chabad Jewish Center “may file a notice to reopen the motion,” which originally was filed Feb. 13 in U.S. District Court in Honolulu.

The plaintiffs’ motion acknowledges the rabbi “has held gatherings at his home to celebrate Shabbat and other Jewish religious observances.”

“Hawaii County, however, treats religious gatherings differently from non-religious ones in areas zoned ‘residential,” the motion states. ‘The county has informed Rabbi Gerlitzky that it considers his gatherings to constitute operation of a synagogue and has prohibited Rabbi Gerlitzky from hosting religious gatherings at his own home unless he undergoes a time-consuming and costly process to apply for and obtain a use permit.

“In the meantime, it has assessed fines against Rabbi Gerlitzky for gatherings that, if they were only non-religious, would have been permitted.”

The filing states that Gerlitzky “hosted gatherings undisturbed” in his home for almost four years before the county sent him and the center a “notice of complaint” in February 2023, which alleged that he was using his home “as a church, temple or synagogue without a use permit” in violation of the county’s zoning laws.

The complaint was reportedly about cars parked on the street outside the rabbi’s home.

Gerlitzky applied for the use permit and paid a fee of $500 on April 23, 2023, the lawsuit states, but the application was denied, and the rabbi was told the county needed “more detailed information” and that he should start by “obtaining building permits and ‘compliance with … building, fire, health codes” — including upgrading his home to “commercial” standards on everything from its water system to federal Americans With Disabilities Act compliance.

Under those conditions, the county would consider a use permit with no guarantees it would be granted, according to the lawsuit.

Gerlitzky emailed the county on May 16, 2023, requesting a meeting in the hope he wouldn’t need “extensive permitting” to “have people over for meals and prayers” in his own home, as others do for nonreligious purposes.

According to the filing, the county initially fined the Chabad Jewish Center $1,000, with additional fines of $100 per day for the first three months, increasing to $200 a day after three months, $300 a day after sixth months, and $500 a day after nine months. On July 3, 2023, the center was notified it owed $4,300 at that point, with fines continuing to accrue on a daily basis.

Fines had increased to $17,100 last November.

According to the lawsuit, the zoning code and the fines are in violation of the federal Religious Land Use and Institutionalized Persons Act, alleging the only difference between the rabbi’s use of his home and what’s allowed by the county “is its religious nature — and neither federal law nor the Constitution tolerate such blatant distinctions between religious and secular activities.”

The complaint states Gerlitzky’s “only way out” is “to either cease having religious meetings, prayers, or celebrations, or else to spend tens of thousands of dollars to essentially convert his residential home into a commercial facility.”

Assistant Corporation Counsel J Yoshimoto told the Tribune-Herald the county doesn’t comment on ongoing litigation.

Email John Burnett at jburnett@hawaiitribune-herald.com.