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Pete Hoffman, Chairman Hawaii County Council Angel, Pilago, Chairman Committee on Planning February 27 2008 Page 2 which are still with the Commission. The development parameters for the Subject Property are dictated by both Ord. No. 97-102 and SMA Permit No. 379. Because two-thirds of the proposed amendments related to the Subject Property are still with the Commission, any final decision by the Council at this time would necessarily be made out of context and in a vacuum. It is Kohala's wish that the Council defer action on the proposed downzoning so that the entire matter (the three zoning amendments and the two SMA amendments) can be thoroughly and comprehensively considered by the Commission, and then forwarded to the Council for an informed final action. Premature action by the Council in favor of the Planning Director's proposed amendments will result in an uncompensated taking of Kohala's property rights. Ord. 97-102, effective July 14, 1997, rezoned the Subject Property to RS-15. SMA Permit No. 379 was approved by the Commission on August 8, 1997, and made effective as of July 14, 1997. Both SMA Permit No. 379 and Ord. 97-102 included a condition requiring Final Subdivision Approval to be obtained within five years. For a variety of business-related reasons Kohala has not yet obtained Final Subdivision Approval. Without any warning, the Planning Director, by letter dated May 31, 2007, notified Kohala that he intended to downzone the Subject Property and revoke SMA Permit No. 379. Kohala has been assiduously defending its property rights since that time. This is the first and only time the Planning Director sought to downzone property against a landowner's wishes. In response to a Subpoena Duces Tecum to the Planning Department, Kohala reviewed files related to other downzoning actions taken by the Planning Director from December 1, 2000 to present. During that time period there were five Planning Director-initiated downzonings, four of which had landowner consent; Kohala is the fifth. This proposed downzoning is an arbitrary and unreasonable action that, if successful, will constitute a violation of equal protection and substantive due process under the U.S. and Hawaii Constitutions. Deprivation of such federally protected rights by actions under the color of state law may expose the County, the Director and members of the Council to liability under 42 U.S.C. § 1983, and therefore claims for damages, including punitive damages, just compensation and attorneys' fees. See Laki Kaahumanu v. County of Maui, 315 F.3d 1215 (9th Cir. 2003);1 see also Crown Point Development, Inc., v. City of Sun Valley, 506 F.3d 851 (9th Cir. 2007) (upholding developer's right to bring action against City Council under 42 U.S.C. § 1983 for substantive due process violation based on denial of developer's subdivision application). It is unclear why Kohala is being singled out and treated differently from other landowners in the County of Hawaii. The irregularity of this sudden and unreasonable ' While County legislators are immune from liability for actions taken in the sphere of legitimate legislative activity, "not all governmental acts by a local legislature [ 1 are necessarily legislative in nature." Laki Kaahumanu, 315 F.3d at 1219 (citations omitted). For instance, legislative immunity is not available for actions involving ad hoc decision making, or that apply to a few individuals rather than the public at large. Id. at 1220 (holding that despite the formally legislative character of the denial of a condition use permit, Maui County Council members were not entitled to legislative immunity from 42 USC § 1983 claim).