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Steven S.C. Lim March 25, 2008 Page 3 3. Whether the taking is physical or if "the interference arises from some public program adjusting the benefits and burdens of economic life to promote the common good." Penn Central, 438 U.S. at 124. Adjusting the benefits and the burdens - the relevant part of the third criteria - is probably of little importance after Lucas given the Court's language there excoriating regulation which merely confers a public good and for which the Court clearly states the public as a whole should pay rather than a single landowner. From some of the language which the Planning Director uses, and given some of the material he cites, one is left with the impression that this sort of "public good" is what he would prefer to accomplish if he could. That leaves the economic effect on the landowner and the character of the government's action as the primary focus of a partial regulatory taking case. In the present situation, it is difficult to avoid concluding that Kohala LLC had distinct investment-backed expectations to build at least 50 homes on 50 lots, as approved by the Planning Commission under the aforementioned SMAP. In other words, the economic effect on the landowner is substantial, and its distinct - indeed, quite reasonable under the circumstances - investment-backed expectations would be dashed should the County downzone the parcel as recommended by the Planning Director. Certainly the Court has used the investment-backed expectation standard in conjunction with the other Penn Central standards, thus holding in Hodel v. Irvin. 481 U.S. 704 (1987) that the 1983 Indian Land Consolidation Act took property without compensation even though the plaintiff had no investment-backed expectations whatsoever, because the Court deemed the economic impact on the plaintiff otherwise "substantial" and the character of the governmental action "extraordinary." Hodel. 481 U.S. at 709. The "character of the government action" standard has "morphed" into something different from the Court's original meaning in Penn Central. As the Hodel case cited in the preceding subsection indicates, it no longer means whether the taking was physical or regulatory (what the Court arguably meant in Penn Central) but rather the police power basis for the governmental action. Thus, the "extraordinary" nature of the governmental action in Hodel helped persuade the Court that a partial regulatory taking had occurred. So also a court in Maine emphasized the importance of the character of the governmental police power action in preserving sand dunes (citing Penn Central) in Fichter ex rel v. State Board of Environmental Protection, 2000 WL 33676710 (Me.Super.). In the present case, all the reasons posited by the Planning Director in favor of the downzoning of the subject parcel are related to the general welfare, rather