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Hawaii County Council, Planning Committee re Proposed LUPAG designation change: H-1, May l3, 2004 3 The Administration's draft before you contemplates a radical departure from previous General Plans, in that it suggests the need for a County Zoning District that calls "for land to be preserved in its largely natural stateZ." The application of this proposed County LUPAG Conservation designation to both SLU Conservation Districts (supposedly in the State's exclusive jurisdiction under HRS 183-C) and lands with other SLU designations creates uncertainty of legal interpretation, particulazly trader the Consistency Doctrine, discussed below. Furthermore such County LUPAG designation could negatively impact BLNR deliberations, SMA exemption of a SFR and/or environmental review under HRS Chapter 343, as well as providing the grounds for appeal by third parties therefrom. The Administration's draft of the General Plan recommends that the County Zoning Code be amended "to create a category for lands that should be kept in a largely natural state, but that may not be in the Conservation District, such as important view planes, buffer azeas and very steep slopes3". This would effectively create County no-build zones which raises the issue of the "regulatory taking of property rights" protected by the 5th Amendment of the Constitution of the United States. Professor Callies memo concludes that "the Hawaii County Conservation designation appeazs to permit virtually no economically beneficial or viable use for the land, thereby meeting the [U.S. Supreme Court's] primary criterion for a regulatory taking. This is a complex and evolving azea of law, and azguments must be made on a case by case basis. Notwithstandine speculation as to just where such line is to be drawn by the Sa' Amendment I ask the County Council to respect the nrinciRle of the protection of basic property rights which is a fundamental focus of our Constitution and heritaee. I am not asking to do anything on this land which I am not presently entitled to do. I am asking that such rights not be taken away or diminished by making them legally questionable so as to invite litigation, the defense of which I would not be able to afford. I understand that there has been discussion at the County Cotmcil of the "Consistency Doctrine" recently expanded by the Hawaii Supreme Court in Save Sunset Beach Coalition et al v. City & County of Honolulu et al. which extended the "consistency doctrine" to the most restrictive of three applicable criteria: i) State Land Use Designation, ii) County General Plan, & iii) Zoning Ordinance. If H-1 were enacted and if the same LUPAG definition of the County Conservation were to remain, it is entirely likely that a court would find that a single SFR permissible in a General Subzone of the Conservation District was not permissable under the Consistency Doctrine. This would be further exasperated by the imposition of a County Conservation Zone. There is no present practical need for H-1. I understand that the Planning Director has already procured a commitment from the owners of Keopka (the northern portion of H-1; presently SLU Agricultural) to give a conservation easement over a portion of H-1. I believe the preservation of the foreshore of Keopuka was the initial motivation for H-1. The Keopuka conservation easement is to be given to a independent land trust and will absolutely baz all successive owners in perpetuity from any development on the land covered by such conservation easement. Both the Planning Director and the owners of the property aze to be commended for such volun actions. a Administration Draft of proposed General Plan: Open Space; Introduction and Analysis. ' Administration Draft of proposed General Plan: Open Space; Policies.