2006-01-13 Pepeekeo Coal Burning Power Plant Would Council be in legal jeopardy of a takings claim if tried to stop the re-opening of power plant

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Fred C. Holschuh, M.D., "ouncilmember January 13, 2006 Page -2- The obvious "paradigmatic taking requiring just compensation is direct government appropriation or physical invasion of private property." Lingle v. Chevron U.S.A. Inc., 125 S.Ct. 2074, 2081 (2005). Here, we do not understand that the Council would be considering an actual condemnation of the powerplant, or other actual taking of the property. The U.S. Supreme Court has also "recognized that government regulation of private property may, in some instances, be so onerous that its effect is tantamount to a direct appropriation or ouster— and that such `regulatory takings' may be compensable under the Fifth Amendment. . . . if regulation goes too far it will be recognized as a taking." Id. Supreme Court precedent has staked out "two categories of regulatory action that generally will be deemed per se takings for Fifth Amendment purposes." Id. They are: (1) Where government requires an owner to suffer a permanent physical invasion of the property, however minor; and (2) Where regulations completely deprive an owner of"all economically beneficial use of her property." The Supreme Court has sometimes recognized takings claims where government requires dedications of easements or the like, as conditions of permit approval. Such exactions must relate to the impacts of the proposed development. Such exactions may be "takings" where the easements do not "substantially advance" government permitting interests, and the dedication is not "roughly proportional" to mitigate the nature and extent of development impacts. Nollan v. California Coastal Commission, 483 U.S. 825 (1987); Dolan v. City of Tigard, 512 U.S. 374 (1994). Further, the U.S. Supreme Court has stated some general factors for courts to consider in deciding whether regulatory taking has occurred: (1) The economic impact of the regulation; (2) The extent to which regulation has interfered with distinct investment-backed expectations; (3) the "character of the governmental action", i.e., whether it amounts to a physical invasion, or "adjusts the benefits and burdens of economic life for the common good." Penn Central Transportation Co.. v. New York City, 438 U.S. 104 (1978), cited in Lingle at 2081. However, the Supreme Court has also "upheld land-use regulations that destroyed or adversely affected recognized real-property interests" where it could be reasonably concluded that the health, safety, morals or general welfare would be promoted by prohibiting particular contemplated uses of land. "Zoning laws are, of course, the classic example . . . which have been viewed as permissible governmental action even when prohibiting the most beneficial use of the property." Penn Central, 438 U.S. at 125. Again, bear in mind that even the U.S. Supreme Court refuses to set forth a definite "taking" formula. "[T]his Court, quite simply, has been unable to develop any "set