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Honorable Leningrad Elarionoff, Chair and Members of the County Council HAWAII COUNTY COUNCIL Page 3 December 18, 2003 not create a taking of that property, most recently in Tahoe -Sierra Preservation Council Inc. v Tahoe Regional Planning Agency, 535 U.S. (2002). One line the government cannot cross, though, is that the regulation must not deprive the owner of all economically beneficial use of the property. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)(There may be a further exception that the regulation may not be a taking if the entire parcel has severe physical constraints, but it is not necessary to look at this issue.) The Supreme Court has made it clear, most recently by the 7-2 vote in Tahoe -Sierra, that this analysis applies to the entire parcel, the "metes and bounds that describe its physical dimensions". As long as there is some economically beneficial use of a portion of the entire parcel, the restriction on a portion of the parcel is not a taking. For example, the right to build one house on an 18 -acre parcel is a substantial economic benefit, and not a taking. Palazzolo v. Rhode Island, 533 U.S. (2001). Naturally, landowners will sometimes argue that only the area that is being restricted or regulated should be considered the "parcel", but this has not been accepted by the courts. Otherwise, an ordinary building setback could be considered a "taking" of that area. While there are some odd situations where it is difficult to determine what is the "entire parcel" for takings analysis, possibly including adjacent land, generally we will be on safe ground if we use the existing lot of record. The Council should note that an "Open" designation, or even an "Open" zone, does not take away all economically beneficial uses of that area: a golf course can potentially be developed in an "Open" designation in the LUPAG, or in an "Open" zone. Turning to the specific proposed LUPAG map amendments where an "Open" designation is proposed where there is currently some urban designation, all of the private parcels include areas where significant urban uses could be allowed, outside of the proposed "Open" designation: --F-8 (area near Pu'ukohola Heiau and Spencer Park): a portion of this large parcel will be "Resort Node" if the amendment goes through. --F-9 (area near Mauna Kea Beach Hotel): most of this is "Resort Node" --F-12 (near Wailea Bay): this is state land, part of Hapuna State Park.