COM 0045.022 2002-2004 - Laserfiche WebLink

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excoriating regulation which merely confers a public good and for which the Court clearly states the public as a whole should pay rather than a single landowner. That leaves the economic effect on the landowner and the chazacter of the government's action as the primazy focus of a partial regulatory taking case. Parenthetically, as discussed below, to the extent that the County of Hawaii's apparent goal in the Draft General Plan is to preserve open space rather than agriculture, it is vulnerable under the "confers a public good" language noted above. 1. Economic Effect and in particular Frustration of Investment-Backed Expectations The US Supreme Court has so faz used the investment-backed expectation standard in conjunction with the other Penn Central standards, thus holding in Hodel v. Irving, 481 U.S. 704 (1987) that the 1983 Indian Land Consolidation Act took property without compensation even though the plaintiff had no investment-backed expectations whatsoever, because the Court deemed the economic impact on the plaintiff otherwise "substantial" and the character of the governmental action "extraordinary." Hodel, 481 U.S. at 709. Likewise in the Draft General Plan the impact on many property owners in Hawaii County will be "substantial" and the govenunent action "extraordinazy" given the nature of the Draft General Plan. 2. Character of the Governmental Action It appears from the Draft General Plan and some of its language that some of its purposes are at best mixed (protection of agriculture and open space) and at worst (primarily for the protection of open space, view planes, and the like). It is, in other words, not a health and safety measure, but a welfare measure. It is therefore more vulnerable to regulatory takings challenges than health and safety measures. The US Supreme Court in the Lucas case cited and discussed above was clearly most concerned with open space preservation via the police power, opining that such worthy goals ought not to be achieved at the expense of individual property owners, but rather such costs should be spread among the public at large (as, for example, the purchase of private land for open space preservation). Likewise, the "extraordinary" nature of the governmental action in Hodel helped persuade the Court that a partial regulatory taking had occurred. So also a court in Maine emphasized the importance of the character of the governmental police power action in preserving sand dunes (citing Penn Central) in Fichter ex rel v. State Board of Environmental Protection, 2000 WL 33676710 (Me.Super.). Applying these criteria to some of the language alluded to in Part III above, it is pretty clear that should Hawaii County apply Draft General Plan classifications to land purchased with more intense land development expectations, it runs a substantial risk of the result being a partial taking of the property. Assume, for example the investment-backed expectations of a relatively large-tract landowner, when it purchased the parcel, was to undertake residential or agricultural estate development, based on the existing zoning. Under the general criteria of economic effect on the landowner, it is cleaz that the economic effect on such a landowner is severe: under even the most positive (economically) scenarios, such a landowner will be able to construct but a few houses rather than the number previously permitted. The property will accordingly plummet in 7