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Steven S.C. Lim March 25, 2008 Page 4 than health and safety, as noted in this letter's opening paragraphs. This is the weakest leg of the police power - welfare - as well as the least defensible - aesthetics/views. As the California court of appeals noted in its decision in the First Lutheran case on remand, courts are willing to balance the equities more in favor of government when the challenged regulation is for health and safety purposes rather than welfare, and in favor of the landowner when the challenged regulation is for welfare purposes rather than health and safety. For all these reasons, Kohala LLC can make a very good case for a partial regulatory taking of its property without compensation in violation of the Fifth Amendment under the Penn Central standards and criteria which govern such partial takings according to the U.S. Supreme Court in Lucas and Palazzolo. Due Process. At the heart of a claim for denial of substantive due process is protection against arbitrary and capricious governmental actions regardless of the process used to implement such actions. In other words, regardless of the "trigger" that leads the County Planning Director to seek downzoning of the subject parcel - the running of the 5-year time period for obtaining subdivision approval - rezoning is essentially a legislative act that must be done fairly, rationally and without bias. Thus, for example, if it is true that Kohala LLC stands virtually alone in the class of landowners subject to such rezonings because it is the only landowner whose property has so been downzoned over landowner objections, then the process does not appear either fair or rational. The irrationality and unfairness of the proposed downzoning is further demonstrated by the fact that it has not been preceded by any parcel-specific changes to the General Plan, despite the fact that the County of Hawaii did a wholesale amendment to the General Plan in 2005. From the materials you provided, I understand that the series of downzonings that took place in the County of Hawaii in the early 1980s was in response to such a General Plan amendment in 1979. Questions over fairness were at the heart of at least two U.S. Supreme Court cases finding government regulation unconstitutional on fairness grounds, one explicitly on substantive due process grounds, and one implicitly so. In Eastern Enterprises v. Anfel, 524 U.S. 498 (1998) the Court held that economic regulation could effect a taking of property. Justice Kennedy's concurring opinion was based on the ground that the petitioner had been deprived of its substantive right to due process because of the large financial burden placed on the petitioner. In City of Monterey v. Del Monte Dunes at Monterv. Ltd., 526 U.S. 687 (1999) the Court expressed concern about the significantly protracted manner in which the petitioner's applications for development were treated by the City, even though it ultimately decided the case on Fifth Amendment taking grounds. It is therefore reasonable to characterize the County of Hawaii's singling out of Kohala LLC as a situation which at least raises significant substantive due process issues of fairness and rationality, particularly since, as noted in the opening paragraph of this letter, virtually nothing about the parcel and its present zoning classification has