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Honorable Leningrad Elarionoff, Chair and Members of the County Council HAWAII COUNTY COUNCIL Page 5 December 18, 2003 2. There is a second "test" fora "taking", based on Penn Central Transportation Co v. New York City, 438 U.S. 104 (1978): the interference with "distinct, investment- backed expectations". Because these cases tend to very fact-specific, it is difficult to formulate a general rule, but successful cases based on zoning and other Land use decisions are quite rare. Most involve a use for which the landowner actually had the zoning, but some other regulation prevented the proposed use. In Hawaii law, the landowner has no right to use property beyond that allowed by the zoning, and so the landowner cannot have enforceable investment-backed expectations to use the property in away that it has not yet been zoned for. None of the private properties in question are currently zoned for urban use, except Kohanaiki, which has essentially been settled. In fact, many of the areas in question are not even in the state land use urban district. I could give an area-by-area analysis to show why "distinct, investment-backed expectations" are not violated by the proposed General Plan map changes, but lack time. Just to give two major examples, the O'oma and Hawaiian Riviera map changes are currently in the state land use conservation district; the owners have other hurdles they must clear before they can do urban development. 3. Aland use regulation also must not interfered with "vested rights". In Hawaii, a landowner has vested rights when it has made substantial investments, in good faith, in reliance on the "final discretionary permit". One cannot have vested rights if one does not even have zoning. As mentioned in the previous section, none of these properties, except Kohanaiki, are currently zoned for urban use. For most of the properties in question, because they are in the SMA, the "final discretionary permit" for a development would be the SMA permit. None of the properties in question, except Kohanaiki, have an SMA permit to do substantial development. And even if they did, it is part of the Plarming Director's job (with advice from Corporation Counsel) to recognize when a landowner's rights have vested, and to take no action that interferes with those rights, unless the County is prepared to pay just compensation. Although the General Plan has the force and effect of law, the General Plan only applies at certain stages in the land use process, and there will usually be no chance to invoke the General Plan once a property has vested rights. To explain further: some land use approvals are called "discretionary" because they require the exercise of discretion and judgment by the body making the decision. Rezonings and SMA permits are discretionary, and must not be granted if they contradict the General Plan, because the county charter and SMA law say so. Other kinds of land use approvals are called "ministerial" because if the application meets certain set criteria, it must be approved. A