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Honorable Leningrad Elarionoff, Chair and Members of the County Council HAWAII COUNTY COUNCIL Page 7 December 18, 2003 various kinds of coastal development. Hawaii County, like the other county governments, has successfully required public access as a condition of development approvals for many years without constitutional challenge. In many cases this has been an affirmation of traditional and customary access that existed before the development. The potential loss of enjoyment of the public shoreline caused by coastal development is adequate nexus for requiring public access, and the degree of access has been tailored to the scope of the development. In almost all cases in this administration, we have been able to negotiate public access conditions that are mutually acceptable. 6. If the governmental regulation constitutes a taking of property, the County is potentially liable under 42 U.S.C. sec. 1983 for damages. The amount of damages depends upon the factual situation, but may be the loss in value of the property due to the regulation. If the government rescinds the regulation, the government may still owe for the temporary deprivation of use. But damages can be awarded only if there is a violation. The enactment of a General Plan amendment, in itself, will not constitute a taking of property, because the amendment itself does not regulate the property. It is important; however, to consider whether the follow-up events that will take place if the amendment is enacted would constitute a taking. That analysis has been done with respect to the proposed map amendments. Denials of rezonings based upon the General Plan amendments, as discussed above, would not be takings. The "takings" issue was specifically analyzed in making these recommendations. No amendments have been proposed that would lead to a taking under current law. I advised the Planning Commission that one amendment suggested by members of the public (and considered by the Planning Commission) should not be enacted because it might lead to a taking: a proposal to establish a wide buffer around the Keakealaniwahine historical site. This might have been a taking because it would have completely covered a number of small parcels. The Council needs to keep this in perspective: the General Plan currently has private property in "Open" and "Conservation" categories. This has been true since the first General Plan, in 1971. To date, it has not caused any successful litigation against the County. Local governments throughout the country intensively regulate private development, imposing open space requirements and density restrictions, without "takings" problems.