COM 0998.003 2006-2008 - Laserfiche WebLink

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Honorable Angel Pilago, Chair And Members of the Committee on Planning COMMITTEE ON PLANNING Page 4 March 5, 2008 discretionary approvals to proceed: the Council's extension of time on its RS-15 zoning, the SMA permit time extension from the Planning Commission, and tentative subdivision approval. There is specific case law holding that whether or not to grant a time extension to a rezoning is a discretionary decision by a legislative body, and that the court will uphold the refusal to extend time if it has any reasonable basis in fact, which can include general land use considerations. Court House Plaza Co. v. City of Palo Alto, 117 Cal. App. 3d 871 173 Cal. Rptr. 161(1981). Takings. The Supreme Court has upheld the basic concept of zoning restrictions that limit the use, and often the market value, of private property, including restrictions that greatly diminish the value of property. If this were not so, the entire system of zoning and other land use regulations would be impossible. Courts have upheld land use regulations that reduce the value of property by as much as 95%. Decisions of this type go back as far as the U.S. Supreme Court's decision in Euclid v. Ambler Realty, 272 U.S. 365 (1926). Courts have also repeatedly sustained downzonings that reduce the value of the property to the landowner. In a limited number of circumstances, though, the Supreme Court says that such regulations can go too far, however, and constitute a "taking" of private property for public use. In that case, the public must pay just compensation to the landowner, similar to the actual taking of property by eminent domain. The law of "takings" can be complex, but in the typical situation, a zoning ordinance will not be a takings on the grounds that it limits the density of development allowed on a property, unless it does not leave the owner with some beneficial economic use of the property. The ability to build one home on a lot, for example, is enough of a beneficial economic use to defeat a "takings" claim. Palazzolo v. Rhode Island, 533 U.S. 606 (2001). Applying this to proposed Kohala LLC rezoning, the RA-5a zoning, if later accompanied by an SMA permit for the same density, and a subdivision approval, would allow the 37.8 acre property to be subdivided into seven lots of five acres, and on each lot, a home could be built. This is a significant economic use, and the property, with that level of entitlement, is very valuable. To compare, the 63 acre property immediately to the southeast, also along the shoreline, was purchased in 2004 for $16.5 million. That