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<br /> Asrrfora ~ wrisson ic,i„~~~~
<br /> viable, landowners will have su9bred a per se, categorical or total taking of so classi5ed Lots or
<br /> pa:,,cls bemuse they nc longer have any eccnomically benefiaa] use. In this category of
<br /> regulatory Caging, there is rro defense avat~able to the County based upon its desire to preserve
<br /> agiculttrre or erpce space. Only if such total deprivation of use is for the eradication of a
<br /> nuisance, or in accordmrce with some txtstom en public trust principal, could such a deprivation
<br /> t+e ju-stifisd.
<br /> As for those landowners whose use of land is in some fashion useable but whose anticipated
<br /> econonvc uses are substantially curtailed by location in either the Open Space district or in an
<br /> important agricultural ]ands classification, they maybe frustrated intheirinvestment-backed
<br /> expectations, particularly if they have spent money in reliance on County assarances or
<br /> preexisting Sand use classifications. They have, in other words, suffered a regulatory taking
<br /> under the Fifth Amendment to the US Constitution, particularly as the character of the County
<br /> governmental action appears to be primazity for the preservation of open space arrd open space
<br /> uses rather than for health and safely reasor?9.
<br /> Moreover, for all landowners who have invested in infrastructure avid paid other land
<br /> development costs, especisity those who qualify for CPR treatment, if there one no Cruther
<br /> permits to be obtained beyond the Iron-discretionary building permits, their rights have,
<br /> au.u^id'u~~y, ~'~t~i 6"iau u~Ey arS Ei'~ti6d w Cvu"'Sit
<br /> iEtB tl'i0u' yisu5 tG dE'i
<br /> 0iv'y u,Zir yivt,Ei y u,
<br /> accordance with the rules and regulation now in effect.
<br /> Finally, to the extent that each landowners have suffered either s total or partial deprivation of
<br /> t~".r r.mw,t„ r ohtu in than la~~l crrthn~ ^~^.~^^^".~>:Cn ^..^..nt
<br /> »Ty tin, f5ro Fii~h Am-,
<br /> wrlryN,A ~n ti,~
<br /> r• r°v b..... ...rte
<br /> US Constitution, they have been deprived of their civil rights under color of state law contrary to
<br /> Section 1983 of the Civil Rights Act of 1870, as amended There is no good faith defense to
<br /> such a suit for the County, and should the proposed Draft Gareral Plan become taw, its
<br /> application to mmry landowners would tittely result in personal liability to any county ot5cisl
<br /> enforcing the law in the event that the landowners prevail in their Fifth Amendment taghtgs
<br /> lawsuit, since such enforcement would be neither legislative nor quasijudicial, the only grounds
<br /> for individual immunity under Section 1983. Furthermore, should the landowcers prevail, or
<br /> should the litigation be settled on teams favorable to the landowners, the landowners are entitled
<br /> to en award of legal Leas for money expended in defense of their FiRh Amendment rights, under
<br /> Section 1988 of the same Civil Rights Act .
<br /> While such lawsuits have been relatively rare in Hawaii in the past, rimes have changed.
<br /> Landowners -both large and small -are often no longer bound by traditional and cultural ties to
<br /> the s~utie or any parTicrrlnr carmry, rror do t'riey necessatily hold several hscCs or one large tract,
<br /> as compared to lazrdholdmg patterns in the t 980's before plantation agriculture came to an end
<br /> and local companies itrcreasinglybxame aubsidiarits of, or sold theirholdings to, outside
<br /> Cwn¢rn artd inY~tntx, Therefore, r~ Mars t4 stt&h shits afiiGh g.7id~1 hefore - neQr1 fur rnrrlL+ple
<br /> project approvals, traditional aversion to litigation, and so Forth- have largely disappeared. On
<br /> the Big Island, as on other islands, offiisland landowners wrth substantial resotuces and but one
<br /> parcel of land are increasingly restive oven state and IocaI land use controls which are perceived
<br /> as onerous and time-consuming. To the extent that they are also perceived to be illegal, such
<br /> owners can be expected to lake up the matter through litigation, regardless of cost and time, in
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