COM 0045.022 2002-2004 - Laserfiche WebLink

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the landowner has acquired vested rights to proceed with the use of land under the "old" regulations. 4. That part of the Draft General Plan which requires the dedication of public parking or accessways across private land as a condition of coastal development approval results in an unconstitutional condition on land development unless the County can demonstrate that the proposed development directly and proportionately generates a need for such public parking and public access. 5. The enforcement by any County official of any of the above Draft General Plan provisions, when found to be unconstitutional, will expose the county and the enforcing County official, to liability for damages under section 1983 of the U.S. Civil Rights Act of 1870 under a series of U.S. Supreme Court cases stripping local government and its local officials of immunity from such lawsuits claiming a taking of property by regulation. II. THE PLAN AS LAW Plans in general are more than mere policy guides in Hawaii. Thus, for example, Act 100, the Hawaii State Plan, requires state agencies to act in conformance with the state plan's themes, goals, objectives, policies and priority guidelines, and counties to "further define" and "take into consideration" (but neither conform to nor be consistent with) the aforesaid in formulating their county general and development plans. HRS 226-51 et seq.,Planning Coordination and Implementation. However, the relationship of county plans to traditional land use controls like zoning and subdivision codes is far more burdensome, particulazly in Hawaii County. Thus, for example, the Charter for Hawaii County requires, at section 3-15: b. No public improvement, project, subdivision or zoning ordinances shall be initiated or adopted unless the same conforms to and implements the General Plan. While it is theoretically possible to argue over the meaning of "conformance" it would be difficult to argue, for example, that a county general plan designation in a conservation or agricultural district would permit any but those conservation or agricultural uses permitted in that planning district. Moreover, in Save Sunset Shores v. City and County of Honolulu, P.3d _(2003) the Hawaii Supreme Court earlier this year made it pretty clear that in the event of conflict between county zoning and county plans, the more restrictive of the two will govern. Therefore, the Hawaii County General Plan becomes not a guidance document for making land use decisions, but rather a document to which local zoning and subdivision decisions must conform, and in the event of conflict, the more restrictive provisions of the General Plan, if any, will control. z