COM 0045.023 2002-2004 - Laserfiche WebLink

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Honorable Leningrad Elarionoff, Chair and Members of the County Council HAWAII COUNTY COUNCIL Page 2 December 18, 2003 The main points in this letter are 1. A land use regulation that keeps a portion of a parcel in open space is not a taking if it still allows an economically beneficial use of the remainder of the parcel. All of the proposed "Open" designations allow an economically beneficial use of major portions of existing parcels. 2. When the landowner does not currently have zoning to use property for certain uses, it will not be a taking to enact a General Plan amendment that prevents the landowner from getting that zoning in the future. 3. None of the proposed General Plan map changes or text changes will deny vested rights. 4. The proposed "Conservation" county zone conforms with state land use law and do not violate constitutional rights. 5. The portion of the General Plan that calls for public access to the shoreline is part of the present (1989) General Plan, follows other state and county laws, and has been applied in a constitutional manner. 6. Damages under sec. 1983 can be awarded only if there is a constitutional violation. No violation, no damages. To discuss these points in more detail: 1. Although there is a constitutional limit to a government's exercise of its zoning and other land use powers, the government can greatly limit a private owner's use of land, and greatly reduce the economic value of that land, without it being an unconstitutional taking of private property. The U.S. Supreme Court has upheld a new zoning regulation that reduced the value of property by 75%, Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). The 9th Circuit Court of Appeals, which has jurisdiction over Hawaii, has upheld a regulation that reduced the value of a parcel from $2,000,000 to $100,000a 95% loss in value. Wm. C. Haas & Co. v. City and County of San Francisco, 605 F.2d 1117, 1120 (91h Cir. 1979). The Supreme Court has repeatedly ruled that the fact that a land use regulation reduces the value of land—even drastically --does