COM 0042.062 2004-2006 - Laserfiche WebLink

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('1A LL14aY OL na aV bVU order to protect thew investments. Therefore, the likeh'hood of litigation is high should the (;ounty pass the Draft General Plan in its present form and seek to enforce its provisions. A. The reYtthttion of lead wheeh deprives a Isadowaer o[ all ecotaonaicat>y lS.°.S~~iwl ti4°e eia an uuTA^u~u~~u0vSl tru~ib~ ref W upcrty i i~isut iiuup2ufiauua contrary to the Flesh Amendmwt of the US CoaaHta6on. To the extent that any Hawaii landowners would be restricted to virtually no economically beneficial or viable use under the Draft General Plan, they would suffer an unconstitutional regulatory taking of their property under the Fifth Amettdztteut to the US Constitution. Under concur U.S. Supreme Court jurisprudence, a landowner must be able to make such economically beneficial use of laud or the regulating govemmentaJ agcy must pay compensation as if the ]and wen takes by eminent domain ("...nor shall private property be taken for public use, without just compenaation.'~. While arguably drafted principally to protect private landowners from physical takings without compensation, since at least l 922 and Ore decision of the U.S. Supreme Couri is Pennsvlvaoia Coal Co v Mahon. 260 U.S. 393 (1922) a regulation of land which goes "too far" is also a taking for which government must pay compensation. It is this "regulatory taking" issue which the Dnfl General Plan raises. The lend may have value. Indeed, it may evtn have some limited, "salvage" uses such as for walking or picnicking. But if it has no economically beneficial use, then the govemmmt moat pay for the land as if it had condemned it, or lift the offending regulation and potentially pay for the time during which the unconstitutional regulation affected the use of the relevant land. Thus, in Lucca v. South C2F'ClL*ia rCa4tEl CC^.tlC.l. U.S. 1003 (1992) S state c:,as"~ lw^ne y":3tec`ivn SutL't@ picJcrited David Lucas from constructing two beacbfront houses on two separate lots. The statute prevented dewekrparent forward (makar7 of a beach line in order to protect coastal habitat, plan; animal and marine species, the natural ~virornnent and tourism. Remaining legal uses included walking; limited camping and picnicking. The U.S. Supreme Court reversed the strpttxne court of South Carolina, holding that a regulation which removes all productive or economically beneficial use from a parcel of land is a regulatory taking requiring compensation under the Fifth Amendment. The court impoacd m limitations on this per se, categorical rule except for two exceptions -nuisance and background principles of a state's law of property (public trust and customary rights, neither of which eppcara to be applicable here). Observing that too often ]and use regulations having as their principal purpose the preservation of the enviromncnt have forced a single landowner to bear the burden of such public befits, the Court said: Where the State seeks to sustain regulation that deprives land of all economically beneficial use, we think it may resist compensation only if the logically antecedent inquiry into the nature of the owrter's estate shows that the proscribed use interests were not part of his title to begin with. Lucas, 505 U.S. at ]027. Closely following this reasoning in Lucas, a Maryland court held that an open space zoning category effectively foreclosed all economically viable use when applied to private property, resulting in a total taking. Steel v. C~a a Corporation 111 Md App. 1 (1996): 5