COM 0042.062 2004-2006 - Laserfiche WebLink

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Ashford & Wriston 12/17/2003 10:5`L t'AIiC. uuoit,iY , u.. excoriating regulation which merely confers a public good and for which the Crnat ctcaziy states the public as a wiwle should pay rather [hart a single landowner. Thai leaves the economic elTce? on the landowner and the character of the govern®wt's action as the prtmaty focus of a partisi regulatory taking case. Parenthetically, as discussed below, to the extort that rho Cotmty of Hawaii's apparent goal in the Draft General Plan is to preserve open space rather they agriculture, it is vulnerable under the "CUIIftSa a public good" language noted above. 1. Eeonomlc Effect and In plrrticl[lar Froatradon of Investment-Backed Expectations 'the US Supreme Couri has ~ far used the investrnent-bactced expectation standard in conjunction with the other Penn C standards, thus holding in Hodei v. Irvine. 481 U.S. 704 (198'1) that the 1983 Indian Land Consolidation Act took property without compensation even though the plaintiff had Ito investment-backed exportations whatsoever, because the Couri deemed the economic itapl[ei on the plaintiff otirerwiae "substsmtiat" and the chm~acter of the govtartan~t~ tts~?~ ^eXtranrdinary.^ ~t3 4Rl U.S. at ?09, t~kowleo:*t YhQ Lrzti C.o•:P1Al Plan the impact on many property owners in Hawaii County will be "substantial" and the government action "exnaardinary'° given the nalttre of the Draft General Plan. 2. Character of the Governm~tal Action It appears from the Draft Genera] Plan and some of its language that some of its purposes ate at best ,witted (priitec~o;s of rt~iCUi`Weo and open apaccj and ai worst (pdiniariiy for rho protccvon of open space, view Planes, and t>x like). It is, in other words, not a heahh and safety measure, but s welfare measure. It is therefore more •r,:Incrable to rrUtla.ory taLinBa-~tlen8«-thao---~--- - health and safety treasures. The US Supreme Court in the ~.ttggg case cited and discussed above was clearly most concerned with open space preservation via the police power, opining that such worthy goats ought not to be achieved at the expense of individual property owners, but ratber such costs should be spread among the public at largo (as, for exatrtple, the ptachase ofprivate land for open span preservation). likewise, the "exttaordinttry~' nature of die governmental action in Hodei helped persuade the Court that a partial regulatory taking had occurred. So also a court in Maine emphasized the importance of the character of the governmental police power action in preserving sand dttlres (citing Penn Cerrtral) in Fichter ac rel v State Board of . _ - Envi-^^m^ntal Protectloa 2000 WL 336767] 0 (Me.Sttper.} Applying these criteria to some of the language alluded to in Part ID above, it is pretty clear that should Hawaii County apply Draft General Plan classifications to land purchased with more intrust land development expectations, it runs a substantial risk ofthe result being a partial taking of the property. Assume, for example the investment-backed expectations of a relatively large-tract landowner, when it pttrcllased the pazcel, was to undertake residential or agricultural estate development, based on the existing zoning. Under the gdleral criteria of economic effect oa the landowner, it is cleaz that the economic efl'oct on such s landowner is severo: under even tLC moat poaitlvt (cconvmically) acviarios, such a lantlown4 will Uc able [o wnsuuu 6u[ a TcW houses rather than the number previously permitted. The property will accordingly Plummet in 1