In Hilo Bay Marina, LLC v. State of Hawaii, (HI Cir. Ct., March 21, 2023), a Hawaii trial court dismissed a suit seeking to void a deed restriction. In 1922, the land at issue was conveyed by the Territory of Hawaii to the Church of Jesus Christ of Latter Day Saints, with a deed restriction that the land could only be used for church purposes. Under the restriction, the land would revert to Hawaii if it was used for non-church purposes. In 2000, the land was conveyed to the Hilo Bay Marina, presumably triggering the reversion. Fifteen years later it was conveyed by the Marina to Keaukaha Ministry. Now the Marina and the Ministry sue to void the deed restriction, among other things contending that it violates the Establishment Clause of the U.S. and the Hawaii Constitutions. The court rejected the claim citing the U.S. Supreme Court's decision in Kennedy v. Bremerton Schol District, and saying in part:
The Establishment Clause "must be interpreted 'by reference to historical practices and understandings.'"...
The practice of selling government lands with deed restrictions was an early form of use-zoning and is interpreted as a historical practice of zoning....
Even if Article I, §4 of the Hawai'i Constitution is not coextensive with the Establishment Clause of the First Amendment..., the deed restriction passes constitutional muster under Lemon v. Kurtzman....
The deed restriction allows for any religious organization to benefit from the property, so it does not endorse or approve one religion over another....
The surveillance and monitoring required to enforce the deed restriction do not present excessive entanglement because they are no different than that of what is required to enforce any other zoning regulation.
