COM 0042.062 2004-2006 - Laserfiche WebLink

Home

AshfoYtl i~ wrisson 1L/1I/LVVO ivy,. c. c.,.... or shoreline management permit, for example) the rights of these landowners have vested as a matter of law to proceed with the construction of these units and any subsequent change of the law such as that now contemplated by the County Council in Draft General Plan should not legally prevent such construction. Sea, for authority, ('ivmty of Kauai v. Pacific Standard Life inaira*+C+~ Cmm~anv. 653 P.2d 766 (Hawaii 1982) and Life of the Land v. Citv Council. 606 P.2d 866 (Hawaii 1980). ]ndeed, if such landowners have had any official assurances fiom the County with respect to the preparation of their land for devekpment (and subdivision approval clearly constitntes such assurance) the County is also equitably estoppel from preventing the conshuction of additional units on such infrastrudurod and/or subdivided land. E. SeMion 1983 Section 1983 of the Livil Rights Act subjects any person who under color of any statute, ordinance, mgnlation, custom or usage of any area or territory, subjects any person is the United States to the deprivation of any rights, privileges or immunities secured by the Constitution and laws of the United States, to liability to the party irgured. 42 USC s. 1983. Such actions can be brought in either state or federal court, and under Monet v. New York Citv Dent. of Social Services, 436 U.S. 658 { 1978) local governments am "parsons" which are subject to such suits for liability under 5ecfion I983 for monetary, declaratory or injunctive relief "...where...the action that is alleged to be unconstitutional implmten~ or executes a policy statement, ordinance. regulation, or decision officially adopted and promulgated by that body's officers.,. (at 690). The U.S. Supreme Court has further held in Owen v. Citv of Independence. 445 U.S. 622 (1980) that local govetruneat has "no immunity from damage liability flowing from their wnstitutional violations." Moreover, individual govemmmt officials have only qualified immunity for such rights deprivation ectioffi, primarily when acting in thdr leg}slative or judicial capacities. Them is no such immunity wben acting in an administrative capacity. In further court decisomg, deprvarion of property rights through unconsti Wtiona! land use controls has beers clearly held to be such a deprivation covered by Section 1983. ~1'Letefore, if the County should pass rite Draft General Plan and its application is found to unconstitutionallytake privsteproperty under any of the grounds discussed above in preceding sections of this analysis: (1) the County has no immunity to a suit far damages under Section 1983 for the taking of property without compensation and {2) administratively enforcing such an invalid ordinance can subject individuals who enforce it W claims for damages as we11. F. Prblic Access and Parking Regniremente for Coasl9l Resort Development The Draft General Plan also appears to require Lwdowners to dedicate public aceess-ways across private lazrd as a condition to approving all coastal devetopment uses of land. Essentially, the Drat General Plan at page 318: "Coastal resort developments shall provide public access to and parking for beach and shoreline azeas."The public access-way dedication requirements imposed on coastal resource developments am clearly and unequivocally unconstitutional under the rules se! out by the U.S. Supreme Court in Nollan v. California Coastal Commission and Bolan v. City ofTigat+d. Such required dedications bear no mlationaltip to any problem caused by a proposed subdivision (no nexus, in other words, rational or otherwise). Only if a landowner proposes large to