Restriction In Gov't-Granted Deed Limiting Uses To "Church purposes" Can't Be Enforced

by Robert Thomas, InverseCondemnation, Sept 16, 2025

Here's a case that isn't about takings and our usual fare, but is nonetheless an example of how dirt law can be fascinating. 

In Hilo Bay Marina, LLC v. State of Hawaii, No. SCAP-23-0000310 (Sep. 12, 2025), the Hawaii Supreme Court held that a restriction in a land patent issued by the State of Hawaii's predecessor-in-interest (the Territory of Hawaii) in 1922, that limited the uses of the land to "Church purposes only" cannot be enforced under the state constitution's establishment clause. 

As the court put it:

This appeal arises from a 1922 Land Patent issued by the Territory of Hawaii (Territory) to the trustee of a religious organization for certain lands located on Hawaii Island (the Property). The Land Patent contains a deed restriction that the Property must be used “for Church purposes only” and that, if the Property is used for other purposes, the land grant is voided and the Property reverts to the Territory (Deed Restriction).

Following the initial 1922 conveyance, the Property was transferred to different owners via private land transactions that occurred in 1988, 2000, and 2015, each referencing the original Land Patent. There is no dispute that the Deed Restriction and reversionary interest carried over with each transaction.

Plaintiffs-Appellants Hilo Bay Marina, LLC (Hilo Bay) and Keaukaha Ministry, LLC (Keaukaha Ministry) (collectively, Appellants) are the current owners of the Property. Appellants filed this action against Defendants-Appellees State of Hawaii and the State of Hawaii Board of Land and Natural Resources (collectively, the State) in the Circuit Court of the Third Circuit (Circuit Court), asserting that the State refuses to remove the Deed Restriction and continues to assert that it is enforceable. Appellants contend that the Deed Restriction is void under Hawaii Revised Statutes (HRS) § 515-6(b) (2018); violates the Hawaii Establishment Clause in article I, section 4 of the Hawaii Constitution; and violates the Federal Establishment Clause in the First Amendment to the United States Constitution.

The parties filed cross-motions for summary judgment (MSJ) in the Circuit Court. The Circuit Court entered summary judgment for the State, concluding that the Territory’s sale of government lands with deed restrictions was an early form of use-zoning; and that the Deed Restriction in this case did not violate any of the laws asserted by Appellants.

Appellants appealed to the Intermediate Court of Appeals (ICA). We granted transfer to this court.

We conclude that the State’s enforcement of the Deed Restriction violates the Hawaii Establishment Clause in article I, section 4 of the Hawaii Constitution. We therefore reverse the Circuit Court’s Final Judgment on those grounds. Slip op. at 1-4 (footnotes omitted).  

There's also a good practice reminder from the court: to be considered in a summary judgment proceeding, the stuff you submit must be admissible at trial. Here's the court chiding the Hawaii Attorney General's office for attesting with "personal knowledge" century-old land patents and maps:

All of the State’s exhibits were submitted pursuant to the declaration of the State’s counsel, who attested that counsel had “personal knowledge of the facts contained in this declaration and [I] am competent to testify to them.” Counsel’s declaration then stated that each exhibit was a true and correct copy of the listed land patent or territorial map. No other information was provided. Given that each exhibit is a land patent or territorial map from about a hundred years ago, and neither counsel nor any other witness provides any basis to establish personal knowledge or that counsel was competent to testify to the matters in the declaration, it is doubtful that the exhibits were admissible under Rule 56(e) of the Hawaii Rules of Civil Procedure (HRCP) Slip op. at 29 (footnote omitted). 

Worth checking out. 

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PDF: Hilo Bay Marina, LLC v. State of Hawaii, No. SCAP-23-0000310 (Haw. Sep. 12, 2025)

S: The most withering indictment of the Supreme Court ever by a sitting judge.