COM 0045.022 2002-2004 - Laserfiche WebLink

Home

Hawaii County Proposed General Plan Testimony Concerning Selected Parts I, ~ FiL:C. DavidLyCallies '03 DEC 22 A(Ti 8 05 December 16, 2003 CCitJ' i I. INTRODUCTION The County of Hawaii administration has proposed a Draft (dated December 21, 2001) of a ten year comprehensive revision of the County General Plan. While comprehensive planning is a laudable, responsible and commendable exercise, parts of the proposed Draft Plan raise certain legal issues, particularly given the nature of the general plan in Hawaii County both by virtue of language in its Charter and by virtue of a recent decision by the Hawaii Supreme Court in Save Sunset Beach v. City and County of Honolulu. Together, the two (charter and case) give the general plan the force of law, giving it precedence over any contrary and less restrictive local land use control, such as the county zoning code. The practical effect is that if any provision of the General Plan is more restrictive than the applicable zoning of any specific parcel of land, the use of that parcel will be effectively governed by the stricter standard in the General Plan. Therefore, once approved by the County Council, any parts of the General Plan which could be construed so as to deprive a private landowner of all economically beneficial use of his or her property, or severely affect the economic value of the parcel ,especially to the point of frustrating a landowner's distinct, investment-backed expectations, raises regulatory taking issues under the 5`h and 14`h amendments to the U.S. Constitution. The Honolulu law firm of Ashford and Wriston asked for my review of these issues, which are of concern to certain of its clients, and in particular the Leeward Planning Council. That review, which follows in detail in parts II, III and IV, essentially makes the following points: 1. Any part of an approved General Plan which either: a. restricts the use of land to "open space" or b. restricts the use of land to agriculture where agriculture is not a viable economic use will result in a taking of property by regulation, requiring compensation under the 5`h Amendment to the U.S. Constitution. 2. Any part of an approved General Plan which drastically affects the economic use of private land so as to frustrate the distinct investment-backed expectations of the landowner will also result in a taking by regulation, requiring compensation under the 5`h Amendment to the U.S. Constitution. 3. Any part of an approved General Plan which "changes the rules" of permissible land use on private property after a landowner has changed position in reliance on such rules (such as those pertaining to zoning, subdivisions, and so forth) by spending money for land development, may not be applied to such private property because 1 Comm. No. ~5' y2' Ref. To: ~ C. _ Ref. Date' ~~~;y~,-4-Ed~-