HomeMy WebLinkAboutCOM 0493.042 2000-2002 $(LL ~o. 1 ~3
CO19~l0~dENTS ON DRAFT GENERAL PLAN
TO: CHAIR PLANNING COMMITTEE BOBBY JEAN LEITI~EAD-TODD AND
MEMBERS OF HAWAII COUNTY COUNCIL
FROM: ANN SOUTI-NUICK DATTA~
SUI3JECT: GENERAL PLAN COMMENTS; CLARIFICATION OF TAKINGS LAW ~
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DATE: 6/20/200? v~~;:~.------ BY------._.._~_~-:
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Good Evening, Chairperson, Members of the Hawaii County Council. My name is Ann
Southwick Datta, an environmental attorney, resident of Kona, and Executive Director of
the Kona Land Trust.
I would like to accomplish two things with my testimony. First, I would like to
commend the Council, Mayor Kim and Planning Director's Foresight and vision in helping
to protect our island's resources by recogniztng important agricultural areas, increasing
coastal conservation, and protecting Hawaiian cultural resources.
Second, I would like to take a moment to discuss regulatory takings law. There has been
some discussion and perhaps some confusion lately regarding takings and how changes in
the General Plan may possibly constitute a taking requiring compensation to landowners.
Hopefully I will be able to dispel some of this confusion.
Regulatoey °I°akings
As you know, the Fifth Amendment to the U.S. Constitution states that private property
may not "be taken for public use without just compensation."`
Traditionally, takings were compensated only when land was directly appropriated by the
government. The Court has since concluded, however, that land-use regulations may also
effect a compensable taking iE it interferes too severely upon ownership rights.3 The
question that remains, however, is how far the regulation has to go to constitute a taking.
t Licensed to practice in Washington, D.C.:uid Pennsylvu~ia
z U.S. Const. Amend. V.
s See Lucas v. South Carolina ~astal Council, 505 U.S. 1003, 1015 (199?); Palazzola v. Rhode Island, 121 S.Ct.
2448, 2457 (2001).
1~1~ I'do.,.,,.:~
Ref. ~o:
Ref. I~~Iie ~
Clearly, the Court has stated that if a regulation denies a landowner "aCl economically
beneficial or productive use" of the property, then a taking exists requiring just
compensation.°
Parcel As A /hole
In determining the economic impact of government action on real property, courts look
at the "parcel as a whole.i5 Therefore, if a landowner is deprived of use of part of her land,
but retatns use over the remainder, it will not be considered a taking. Thts approach was
affirmed recently by the Supreme Court in Tahoe-Sierra v. Tahoe Re,~tonal Planning
Agency,
No 00-1167 (April 23, 2002). The Court stated that an owner of a 10-acre parcel subject to a
restriction on a steep slope development affecting only two acres could not bring a taking
claim focusing only on two acres.
Legitimate Government Interest
Briefly, a land use regulation will not constitute a taking if the regulation does not deny a
landowner all vtable economic use and the regulatton substanttally advances a "legitimate
government interest."G The Supreme Court has made clear that the government has a
legitimate interest in protecting undeveloped areas from the "ill effects of urbanization."'
Clearly, the Council has a legitimate government interest in designating parts of Hawaii's
coastline as conservation areas. In the Tahoe case, the Court noted that the government
acrivity in question created "a comprehensive plan to protect the natural resources that made
[Lake Tahoe] a desirable place to invest in the first place, increasing property values for all."
This decision is important, especially in comparison with some other recent Supreme Court
decisions, because of the importance the Court assigned to the goals of land use planning
and regulation. The Court defers to the "consensus of the planning community," and
expressed its support for the objective of reining in "inefficient and ill-conceived growth."
Ripeness
Takings claims can only be brought after a governmental action has occurred that results
in a "taking." The Supreme Court has ruled that a landowner may not file a takings claim
until all administrative remedies have been exhausted. It is well settled that a takings claim is
premature where the claimant has not submitted a plan or applicarion to the governing body
whose approval is requtred.s
a Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1015 (1992) (emphasis added).
s Penn Central Tran~ortation ('o v City of New York, 438 LJ.S. 104, 130 (1978).
~ Nollw v. California Coastal Comm'n, 483 i J.S. 825, 834 (citing Agins v. Tiburon, 447 U.S. at 260).
:mains, 447 U.S. at 261; see also V11~3ge of Euclid v. Ambler Realty Co., 272 LL S. 365 (1926) (legitimate
government interest in zoning certain areas for residential use only).
s Awns v. Tiburon, 447 U.S. 255, 261 (1980).
Conclusion
In conclusion, although this is not a legal opinion, it would appear that designation of
coastal areas as conservation in the General Plan furthers a legitimate government interest
and does not deny landowners all economically viable use of their lands. Therefore, it is
unlikely to constitute a regulatory taking in the future. Please let me know if you need any
additional information.
Thank you.
?inn Southwick Datta
75-5510B Kealia St.
Holualoa III 96725
808-322-3641
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