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No. SCAP-23-0000310, Tuesday, June 25, 2024, 10 a.m.

No. SCAP-23-0000310, Tuesday, June 25, 2024, 10 a.m.

HILO BAY MARINA, LLC, and KEAUKAHA MINISTRY LLC, Plaintiffs-Appellants, vs. STATE OF HAWAI‘I; BOARD OF LAND AND NATURAL RESOURCES, STATE OF HAWAI‘I, Defendants-Appellees.

Listen to the audio recording in MP3 format ]

The above-captioned case has been set for oral argument on the merits at:

Supreme Court Courtroom
Ali‘iōlani Hale, 2nd Floor
417 South King Street
Honolulu, HI 96813

The oral argument will also be livestreamed for public viewing via the Judiciary’s YouTube channel at YouTube.com/hawaiicourts and ʻŌlelo Community Television.

Attorneys for Plaintiffs-Appellants HILO BAY MARINA, LLC, and KEAUKAHA MINITRY LLC:

          Kenneth R. Kupchak and Clint K. Hamada of Damon Key Leong Kupchak Hastert

Attorneys for Defendants-Appellees STATE OF HAWAI‘I and BOARD OF LAND AND NATURAL RESOURCES, STATE OF HAWAI‘I:

          Julie H. China and Miranda C. Steed, Deputy Attorneys General  

NOTEOrder granting Application for Transfer, filed 01/16/24.

NOTE:  Order granting motion to continue oral argument from 04/03/24 to 06/25/24 at 10:00 a.m., filed 02/27/24.

COURTRecktenwald, C.J., McKenna, Eddins, Ginoza, and Devens, JJ.

Brief Description:

In 1922, the Territory of Hawai‘i sold property to Heber J. Grant, trustee for the Church of Jesus Christ of Latter-Day Saints, pursuant to a Land Patent.  The Land Patent contained a restriction requiring the property be used “for Church purposes only” and a reversionary interest to the Territory if the property is “used for other than Church purposes” (Deed Restriction).

Plaintiffs-Appellants Hilo Bay Marina, LLC and Keaukaha Ministry LLC (Petitioners) are the current owners of the property.  Petitioners sued Defendants-Appellees State of Hawai‘i and Board of Land and Natural Resources, State of Hawai‘i (State) in the Circuit Court of the Third Circuit (Circuit Court) asserting the Deed Restriction is void under Hawai‘i Revised Statutes (HRS) § 515-6(b), it violates article I, section 4 and article VII, section 4 of the Hawai‘i Constitution, and it violates the Establishment Clause of the First Amendment to the United States Constitution.

The parties filed cross-motions for summary judgment and the Circuit Court granted summary judgment for the State.  Petitioners appealed and the appeal was transferred to this Court.

Petitioners assert the Circuit Court erred by concluding:

(1) 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;

(2) HRS § 515-6(b) does not void the deed restriction;

(3) the deed restriction does not violate article I, section 4 of the Hawai‘i Constitution for the same reasons that it does not violate the Establishment Clause of the First Amendment to the United States Constitution, and even if article I, section 4 of the Hawai‘i Constitution is not coextensive with the Establishment Clause in the United States Constitution, the deed restriction passes constitutional muster under Lemon v. Kurtzman, 403 U.S. 602 (1971); and

(4) the deed restriction does not violate the Establishment Clause in the United States Constitution.