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nJ111 V14 .Y. n~.~v .r Hawau Coamty Proposed General Plan Testittrooy Concerolag Selected Parts by David I1. Caltiea December l6, 2003 I. INTRODUCTION The County of Hawaii administration has proposed a Draft (dated December 21, 2001) of a ten year comprehensive revision of the County General Plan. While comprehensive planning is a laudable, responsiole and commendable exercise, pans of the proposed Draft Plan raise certain legal issues, particularly given the nature of the general plan in Hawaii County both by virtue of language in its Charts and by virtue of a rarest decision by the Iiawaii Supreme Court in Save Swset Beach v Citv and Counri of Honolulu. Together, the two (charter a~ case) give the general plan the force of law, giving it precedence over any conhary and Ieas restrictive local land use control, such as the county zoning code. The practical effect is that if any provision of the General Plan is more restricfive than the applicable zoning of arty specific parcel of land, the use of that parcel will be effectively governed by the stricter standard in the General Plan. Therefore, once approved by the County Council, any parts of the General Plan which could be construed so as to deprive a private landowner of all economically beneficial use of his or her property, or severely affect the economic value of the parcel , especially to the point of fivslrating a landowner's distinct, investment-backed eapectationa, raises regulatory taking issues under the 3a and 14a amendments to fine U,S. Constitution. 'i he lianoiuiu law nrm of Ashford sad A'ris0ort asked for my teview of these issues, which aro of concern to certain of its clients, and in pafiicular the l.cevrmd Plamring Cowocil. That review, which follows in detail in pasts w, ~ awd Ilr, esswtially makes the folovvi^.g points: 1. ;~rYy pnPi of an appruv2ai GcTic~ai Plw'~ wi3u. c~lic% a. restricts the use of land to "open space" or b. restricts the use of land to agriculture where agriculture is not a viable economic use will result in a taking of property by regulation, requiring compensation under tbe 5'" Amendment to the U.S. Constitution. 2. Any part of an approved General Plan which drastically aff~ts the economic use of private land so as to frustrate the distinct im~estmeat-backal arpeotations of the 1®dotvner will also result in a taking by regulation, requiring compensation under the 5's Amendment to the U.S. Constitution. 3. Any pert of an approved General Plan which "changes the Hiles" of permissible laud use on private property after a landowner has changed position in reliance on such rules (such es those pertaining to zoning, subdivisions, and so forth) by spending money for land development, may not be applied to such private property because t