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A <br /> Harry Kim Lincoln S.T.Ashida <br /> Mayor Corporation Counsel <br /> Gerald Takase <br /> OF HAWAII <br /> COUN'T'Y Assistant Corporation Counsel <br /> OFFICE OF THE CORPORATION COUNSEL <br /> 101 Aupuni Street,Suite 325 • Hilo,Hawaii 96720-4262 •(808)961-8251 • Fax(808)961.8622 <br /> January 13, 2006 <br /> Fred C. Holschuh, M.D., Councilmember <br /> Hawaii County Council <br /> 25 Aupuni Street <br /> Hilo, Hawaii 96720 <br /> Dear Dr. Holschuh: <br /> RE: Pepe'ekeo Point Coal-burning Powerplant, Whether Council Action to <br /> Prevent Restart Might Be A Constitutional "Taking" Requiring Compensation <br /> (Corporation Counsel WRK No. 05-11202) <br /> This is in response to the referenced question you posed, noting that many <br /> residents of Pepe'ekeo oppose the restart of operations at the Pepe'ekeo Point <br /> powerplant. You asked whether the County Council might be in jeopardy of legal <br /> "takings claims" if the Council somehow prevented the restart. <br /> Your question did not propose any specific Council action. Hence, it is not <br /> possible for us to provide a specific answer at this time, since constitutional takings <br /> claims are highly dependent on the particular facts of each case, and indeed on the <br /> weighing of factors by judges. However, you did ask for an explanation of the general <br /> legal principles which should be considered in such a discussion, which you might share <br /> with your constituents. To that end, we attempt to provide for your information a non- <br /> privileged summary of general legal principles. Please bear in mind that this is not <br /> meant to be relied on as legal advice for any specific action that the Council (or any <br /> other persons) might take. Should the Council require such action-specific advice, <br /> please send us a detailed request. <br /> I. Constitutional Takings Claims <br /> "Takings" questions arise under the Fifth Amendment of the United States <br /> Constitution, which states in part: ". . . nor shall private property be taken for public use, <br /> without just compensation." Article I, Section 20 of the Hawaii State Constitution <br /> provides similarly. <br /> Hawai'i County is an Equal Opportunity Provider and Employer <br />