COM 0045.022 2002-2004 - Laserfiche WebLink

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order to protect their investments. Therefore, the likelihood of litigation is high should the County pass the Draft General Plan in its present form and seek to enforce its provisions. A. The regulation of land which deprives a landowner of all economically beneficia? use is an unconstitutional taking of property without compensation contrary to the Fifth Amendment of the US Constitution. To the extent that any Hawaii landowners would be restricted to virtually no economically beneficial or viable use under the Draft General Plan, they would suffer an unconstitutional regulatory taking of their property under the Fifth Amendment to the US Constitution. Under can-ent U.S. Supreme Court jurisprudence, a landowner must be able to make such economically beneficial use of land or the regulating governmental agency must pay compensation as if the land were taken by eminent domain ("...nor shall private property be taken for public use, without just compensation."). While arguably drafted principally to protect private landowners from physical takings without compensation, since at least 1922 and the decision of the U.S. Supreme Court in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) a regulation of land which goes "too far" is also a taking for which government must pay compensation. It is this "regulatory taking" issue which the Draft General Plan raises. The land may have value. Indeed, it may even have some limited, "salvage" uses such as for walking or picnicking. But if it has no economically beneficial use, then the government must pay for the land as if it had condemned it, or lift the offending regulation and potentially pay for the time during which the unconstitutional regulation affected the use of the relevant land. Thus, in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) a state coastal zone protection statute prevented David Lucas from constructing two beachfront houses on two separate lots. The statute prevented development forward (makai) of a beach line in order to protect coastal habitat, plant, animal and marine species, the natural environment and tourism. Remaining legal uses included walking, limited camping and picnicking. The U.S. Supreme Court reversed the supreme court of South Carolina, holding that a regulation which removes all productive or economically beneficial use from a parcel of land is a regulatory taking requiring compensation under the Fifth Amendment. The court imposed no limitations on this per se, categorical rule except for two exceptions -nuisance and background principles of a state's law of property (public trust and customazy rights, neither of which appears to be applicable here). Observing that too often land use regulations having as their principal purpose the preservation of the environment have forced a single landowner to bear the burden of such public benefits, the Court said: Where the State seeks to sustain regulation that deprives land of all economically beneficial use, we think it may resist compensation only if the logically antecedent inquiry into the nature of the owner's estate shows that the proscribed use interests were not part of his title to begin with. Lucas, 505 U.S. at 1027. Closely following this reasoning in Lucas, a Maryland court held that an open space zoning category effectively foreclosed all economically viable use when applied to private property, resulting in a total taking. Steel v. Cane Corporation, 111 Md. App. 1 (1996): 5