COM 0042.079 2004-2006 - Laserfiche WebLink

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Honorable Gary Safarik, Chair and Members of the County Council February 2, 2005 Page 6 deprive the property owner of all viable economic use of his property; the primary purpose of the exaction must be related to the services provided, instead of a general revenue source (disguised tax); the degree of the exaction must be roughly proportional to the impact of the proposed development; the government should have studies which show the need for the exactions and document the nexus with the objective sought. Additionally when looking at the general plan it is important to understand that as a general rule a zoning ordinance is not invalid solely on the basis that it prohibits or fails to permit the "highest and best" or "most profitable" use of the property. Application of current takings law to I-3 and I-8 I-3, although classified in the current General Plan as "resort", is currently zoned by the county as open space and classified by the State as conservation. I-8 is classified extensive agriculture in the current general plan and zoned open by the county and classified as conservation by the state. Any SMA permit would have to be consistent with the county general plan, county zoning and the state land use classification. In this case the state land use classification controls as the state has retained jurisdiction over lands classified as conservation. Based upon the state land use classification as well as the existing county zoning, the landowners have no vested rights to "parcel development" other than what they currently have under the state's conservation classification. The owners can go to the Board of Land Natural Resources to apply for a single family dwelling and other uses consistent with the rules adopted by DLNR. It is possible that if the BLNR denied the request for the home that this could be a taking, if the owners could prove that it was the only economic use of the land. However, this is highly speculative as any such determination would depend on the facts surrounding the specific request. Given the large size of the properties involved, the BLNR could merely require that the site of the home be a substantial distance from specific sites that the BLNR wanted to protect or require that construction occur outside flood or tsunami inundation zones. Orin order to protect significant historic sites or the nesting grounds of turtles, BLNR could require that a home be constructed away from these areas.