COM 0045.022 2002-2004 - Laserfiche WebLink

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viable, landowners will have suffered a per se, categorical or total taking of so classified lots or parcels because they no longer have any economically beneficial use. In this category of regulatory taking, there is no defense available to the County based upon its desire to preserve agriculture or open space. Only if such total deprivation of use is for the eradication of a nuisance, or in accordance with some custom or public trust principal, could such a deprivation be justified. As for those landowners whose use of land is in some fashion useable but whose anticipated economic uses are substantially curtailed by location in either the Open Space district or in an important agricultural lands classification, they maybe frustrated in their investment-backed expectations, particularly if they have spent money in reliance on County assurances or preexisting land use classifications. They have, in other words, suffered a regulatory taking under the Fifth Amendment to the US Constitution, particularly as the character of the County governmental action appears to be primarily for the preservation of open space and open space uses rather than for health and safety reasons. Moreover, for all landowners who have invested in infrastructure and paid other land development costs, especially those who qualify for CPR treatment, if there are no further permits to be obtained beyond the non-discretionary building permits, their rights have, accordingly, vested and they are entitled to complete their plans to develop their property in accordance with the rules and regulations now in effect. Finally, to the extent that such landowners have suffered either a total or partial deprivation of their property rights in their land without compensation contrary to the Fifth Amendment to the US Constitution, they have been deprived of their civil rights under color of state law contrary to Section 1983 of the Civil Rights Act of 1870, as amended. There is no good faith defense to such a suit for the County, and should the proposed Draft General Plan become law, its application to many landowners would likely result in personal liability to any county official enforcing the law in the event that the landowners prevail in their Fifth Amendment takings lawsuit, since such enforcement would be neither legislative nor quasijudicial, the only grounds for individual immunity under Section 1983. Furthermore, should the landowners prevail, or should the litigation be settled on terms favorable to the landowners, the landowners are entitled to an award of legal fees for money expended in defense of their Fifth Amendment rights, under Section 1988 of the same Civil Rights Act . While such lawsuits have been relatively rare in Hawaii in the past, times have changed. Landowners -both large and small -are often no longer bound by traditional and cultural ties to the state or any particular county, nor do they necessarily hold several tracts or one large tract, as compared to landholding patterns in the 1980's before plantation agriculture came to an end and local companies increasingly became subsidiaries of, or sold their holdings to, outside owners and investors. Therefore, the bars to such suits which existed before -need for multiple project approvals, traditional aversion to litigation, and so forth- have largely disappeared. On the Big Island, as on other islands, off-island landowners with substantial resources and but one parcel of land are increasingly restive over state and local land use controls which are perceived as onerous and time-consuming. To the extent that they are also perceived to be illegal, such owners can be expected to take up the matter through litigation, regardless of cost and time, in 4