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HomeMy WebLinkAboutCOM 0045.022 2002-2004 Hawaii County Proposed General Plan Testimony Concerning Selected Parts I, ~ FiL:C. DavidLyCallies '03 DEC 22 A(Ti 8 05 December 16, 2003 CCitJ' i I. INTRODUCTION The County of Hawaii administration has proposed a Draft (dated December 21, 2001) of a ten year comprehensive revision of the County General Plan. While comprehensive planning is a laudable, responsible and commendable exercise, parts of the proposed Draft Plan raise certain legal issues, particularly given the nature of the general plan in Hawaii County both by virtue of language in its Charter and by virtue of a recent decision by the Hawaii Supreme Court in Save Sunset Beach v. City and County of Honolulu. Together, the two (charter and case) give the general plan the force of law, giving it precedence over any contrary and less restrictive local land use control, such as the county zoning code. The practical effect is that if any provision of the General Plan is more restrictive than the applicable zoning of any specific parcel of land, the use of that parcel will be effectively governed by the stricter standard in the General Plan. Therefore, once approved by the County Council, any parts of the General Plan which could be construed so as to deprive a private landowner of all economically beneficial use of his or her property, or severely affect the economic value of the parcel ,especially to the point of frustrating a landowner's distinct, investment-backed expectations, raises regulatory taking issues under the 5`h and 14`h amendments to the U.S. Constitution. The Honolulu law firm of Ashford and Wriston asked for my review of these issues, which are of concern to certain of its clients, and in particular the Leeward Planning Council. That review, which follows in detail in parts II, III and IV, essentially makes the following points: 1. Any part of an approved General Plan which either: a. restricts the use of land to "open space" or b. restricts the use of land to agriculture where agriculture is not a viable economic use will result in a taking of property by regulation, requiring compensation under the 5`h Amendment to the U.S. Constitution. 2. Any part of an approved General Plan which drastically affects the economic use of private land so as to frustrate the distinct investment-backed expectations of the landowner will also result in a taking by regulation, requiring compensation under the 5`h Amendment to the U.S. Constitution. 3. Any part of an approved General Plan which "changes the rules" of permissible land use on private property after a landowner has changed position in reliance on such rules (such as those pertaining to zoning, subdivisions, and so forth) by spending money for land development, may not be applied to such private property because 1 Comm. No. ~5' y2' Ref. To: ~ C. _ Ref. Date' ~~~;y~,-4-Ed~- the landowner has acquired vested rights to proceed with the use of land under the "old" regulations. 4. That part of the Draft General Plan which requires the dedication of public parking or accessways across private land as a condition of coastal development approval results in an unconstitutional condition on land development unless the County can demonstrate that the proposed development directly and proportionately generates a need for such public parking and public access. 5. The enforcement by any County official of any of the above Draft General Plan provisions, when found to be unconstitutional, will expose the county and the enforcing County official, to liability for damages under section 1983 of the U.S. Civil Rights Act of 1870 under a series of U.S. Supreme Court cases stripping local government and its local officials of immunity from such lawsuits claiming a taking of property by regulation. II. THE PLAN AS LAW Plans in general are more than mere policy guides in Hawaii. Thus, for example, Act 100, the Hawaii State Plan, requires state agencies to act in conformance with the state plan's themes, goals, objectives, policies and priority guidelines, and counties to "further define" and "take into consideration" (but neither conform to nor be consistent with) the aforesaid in formulating their county general and development plans. HRS 226-51 et seq.,Planning Coordination and Implementation. However, the relationship of county plans to traditional land use controls like zoning and subdivision codes is far more burdensome, particulazly in Hawaii County. Thus, for example, the Charter for Hawaii County requires, at section 3-15: b. No public improvement, project, subdivision or zoning ordinances shall be initiated or adopted unless the same conforms to and implements the General Plan. While it is theoretically possible to argue over the meaning of "conformance" it would be difficult to argue, for example, that a county general plan designation in a conservation or agricultural district would permit any but those conservation or agricultural uses permitted in that planning district. Moreover, in Save Sunset Shores v. City and County of Honolulu, P.3d _(2003) the Hawaii Supreme Court earlier this year made it pretty clear that in the event of conflict between county zoning and county plans, the more restrictive of the two will govern. Therefore, the Hawaii County General Plan becomes not a guidance document for making land use decisions, but rather a document to which local zoning and subdivision decisions must conform, and in the event of conflict, the more restrictive provisions of the General Plan, if any, will control. z III. WHAT THE PLAN REQUIRES: SELECTIVE EXAMPLES The Draft Plan makes many references to the preservation and protection of important agricultural lands, as in the following: - under "Policies" at page 31 and 32 - under "Courses of Action" at page 43, 47 - under "Policies" at pages 276 and 277, and in particular the following language: "Designate, protect and maintain important agricultural lands from urban encroachment"; "Ensure that development of important agricultural land be primarily for agricultural use"; "Important agricultural lands shall not be rezoned to parcels too small to support economically viable farming units" - under "Courses of Action" at page 282, and in particular "Protect important agricultural lands within the Kona Coffee Belt from urban encroachment through the use of zoning and other mechanisms" The Draft Plan also provides for the creation of a county conservation lands category at page 327 under "Policies": "Amend the Zoning Code to create a category for lands that should be kept in a largely natural state, but that may not be in the [state, presumably] Conservation District, such as certain important viewplanes, buffer areas, and very steep slopes." There follows on the same page a series of "Standards" stating that the aforesaid Open Space designations "shall include:" Forest areas, water areas, potential natural hazard areas, Natural Areas and Reserves, Open Space Recreation Areas, Scenic l/istas and View planes, and General Use Conservation Sub-Zones with Compatible Uses. To the extent that this new Open Space zoning designation or classification attempts to regulate any use whatsoever in the State Conservation District, the County is almost certainly exceeding its authority under the State Land Use Law (HRS 205 et seq.) which leaves the control of land use in any and all sub- zones in such Conservation District solely in the hands of the state and its Department of Land and Natural Resources. Thus, for example, to the extent the DLNR permits, through its conservation district use permits (CDUA) single-family residences in its general sub- zone, the County may not forbid such use because it lacks the authority to do so. It would also almost certainly be a violation of the U.S. Constitution as more fully described below. IV. THE APPLICABLE LAW More importantly, as intimated above, the language so far noted above appears to restrict uses on important agricultural land to agricultural use only, and to prohibit most uses altogether in the proposed new Open Space district. To the extent agricultural or other permitted uses are not 3 viable, landowners will have suffered a per se, categorical or total taking of so classified lots or parcels because they no longer have any economically beneficial use. In this category of regulatory taking, there is no defense available to the County based upon its desire to preserve agriculture or open space. Only if such total deprivation of use is for the eradication of a nuisance, or in accordance with some custom or public trust principal, could such a deprivation be justified. As for those landowners whose use of land is in some fashion useable but whose anticipated economic uses are substantially curtailed by location in either the Open Space district or in an important agricultural lands classification, they maybe frustrated in their investment-backed expectations, particularly if they have spent money in reliance on County assurances or preexisting land use classifications. They have, in other words, suffered a regulatory taking under the Fifth Amendment to the US Constitution, particularly as the character of the County governmental action appears to be primarily for the preservation of open space and open space uses rather than for health and safety reasons. Moreover, for all landowners who have invested in infrastructure and paid other land development costs, especially those who qualify for CPR treatment, if there are no further permits to be obtained beyond the non-discretionary building permits, their rights have, accordingly, vested and they are entitled to complete their plans to develop their property in accordance with the rules and regulations now in effect. Finally, to the extent that such landowners have suffered either a total or partial deprivation of their property rights in their land without compensation contrary to the Fifth Amendment to the US Constitution, they have been deprived of their civil rights under color of state law contrary to Section 1983 of the Civil Rights Act of 1870, as amended. There is no good faith defense to such a suit for the County, and should the proposed Draft General Plan become law, its application to many landowners would likely result in personal liability to any county official enforcing the law in the event that the landowners prevail in their Fifth Amendment takings lawsuit, since such enforcement would be neither legislative nor quasijudicial, the only grounds for individual immunity under Section 1983. Furthermore, should the landowners prevail, or should the litigation be settled on terms favorable to the landowners, the landowners are entitled to an award of legal fees for money expended in defense of their Fifth Amendment rights, under Section 1988 of the same Civil Rights Act . While such lawsuits have been relatively rare in Hawaii in the past, times have changed. Landowners -both large and small -are often no longer bound by traditional and cultural ties to the state or any particular county, nor do they necessarily hold several tracts or one large tract, as compared to landholding patterns in the 1980's before plantation agriculture came to an end and local companies increasingly became subsidiaries of, or sold their holdings to, outside owners and investors. Therefore, the bars to such suits which existed before -need for multiple project approvals, traditional aversion to litigation, and so forth- have largely disappeared. On the Big Island, as on other islands, off-island landowners with substantial resources and but one parcel of land are increasingly restive over state and local land use controls which are perceived as onerous and time-consuming. To the extent that they are also perceived to be illegal, such owners can be expected to take up the matter through litigation, regardless of cost and time, in 4 order to protect their investments. Therefore, the likelihood of litigation is high should the County pass the Draft General Plan in its present form and seek to enforce its provisions. A. The regulation of land which deprives a landowner of all economically beneficia? use is an unconstitutional taking of property without compensation contrary to the Fifth Amendment of the US Constitution. To the extent that any Hawaii landowners would be restricted to virtually no economically beneficial or viable use under the Draft General Plan, they would suffer an unconstitutional regulatory taking of their property under the Fifth Amendment to the US Constitution. Under can-ent U.S. Supreme Court jurisprudence, a landowner must be able to make such economically beneficial use of land or the regulating governmental agency must pay compensation as if the land were taken by eminent domain ("...nor shall private property be taken for public use, without just compensation."). While arguably drafted principally to protect private landowners from physical takings without compensation, since at least 1922 and the decision of the U.S. Supreme Court in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922) a regulation of land which goes "too far" is also a taking for which government must pay compensation. It is this "regulatory taking" issue which the Draft General Plan raises. The land may have value. Indeed, it may even have some limited, "salvage" uses such as for walking or picnicking. But if it has no economically beneficial use, then the government must pay for the land as if it had condemned it, or lift the offending regulation and potentially pay for the time during which the unconstitutional regulation affected the use of the relevant land. Thus, in Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992) a state coastal zone protection statute prevented David Lucas from constructing two beachfront houses on two separate lots. The statute prevented development forward (makai) of a beach line in order to protect coastal habitat, plant, animal and marine species, the natural environment and tourism. Remaining legal uses included walking, limited camping and picnicking. The U.S. Supreme Court reversed the supreme court of South Carolina, holding that a regulation which removes all productive or economically beneficial use from a parcel of land is a regulatory taking requiring compensation under the Fifth Amendment. The court imposed no limitations on this per se, categorical rule except for two exceptions -nuisance and background principles of a state's law of property (public trust and customazy rights, neither of which appears to be applicable here). Observing that too often land use regulations having as their principal purpose the preservation of the environment have forced a single landowner to bear the burden of such public benefits, the Court said: Where the State seeks to sustain regulation that deprives land of all economically beneficial use, we think it may resist compensation only if the logically antecedent inquiry into the nature of the owner's estate shows that the proscribed use interests were not part of his title to begin with. Lucas, 505 U.S. at 1027. Closely following this reasoning in Lucas, a Maryland court held that an open space zoning category effectively foreclosed all economically viable use when applied to private property, resulting in a total taking. Steel v. Cane Corporation, 111 Md. App. 1 (1996): 5 While a strong argument can be made that the statutory scheme here at issue...is for the common good, that argument, if resolved favorably to the County, does not, under Lucas, resolve the matter. Even if it were for the common good, it still may cause an unconstitu- tional taking if it, as it does in the case sub judice, results in the loss of all viable economic uses. 111 Md. App. 1, at 36-37. B. Aland use regulatiou also takes land contrary to the Fifth Amendment to the US Constitution when its economic effect ou the landowner is severe, particularly if it frustrates the distinct investment-backed expectations of the landowner and the character of the governmental action is weak. A partial taking by regulation occurs when a land use regulation deprives a landowner of use and value beyond the normal reduction, if any, caused by the necessary exercise of the police power for the health, safety and welfare of the people, but stops short of depriving the owner of all economically beneficial use. The government's rationale for the regulation and the economic effect of the regulation on the landowner are critical factors which a reviewing court weighs in deciding whether a landowner has suffered a partial taking of property. Partial takings are more common than total takings, but the standard is clear. As the Lucas case suggested in footnote eight of its opinion, an owner who has suffered less than a full deprivation of economically beneficial use "...might not be able to claim the benefit of our categorical formulation, but, as we have acknowledged time and again, `[t]he economic impact of the regulation and...the extent to which the regulation interfered with the distinct investment-backed expectations' are keenly relevant to the takings analysis generally." The case which the Court cites and from which it quotes above is Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978), in which the Court set out the framework for deciding partial regulatory taking cases. The Court there upheld New York City's Landmark Preservation Law, which effectively prohibited Penn Central from constructing a fifty-five story office building in the air rights above Grand Central Station. Penn Central claimed both the designation of the station as a historic landmark and the prohibition of its development plans constituted applied and facial takings of its property under the Fifth and Fourteenth Amendments to the U.S. Constitution. Before reaching the merits of the case, the Court suggested "several factors" which have "particular significance" when it engages in "these essentially ad hoc, factual inquiries": 1. The economic impact of the regulation on the claimant and, particularly, the extent to which the regulation has interfered with the distinct, investment-backed expectations; 2. The chazacter of the governmental action; 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 6 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. That leaves the economic effect on the landowner and the chazacter of the government's action as the primazy focus of a partial regulatory taking case. Parenthetically, as discussed below, to the extent that the County of Hawaii's apparent goal in the Draft General Plan is to preserve open space rather than agriculture, it is vulnerable under the "confers a public good" language noted above. 1. Economic Effect and in particular Frustration of Investment-Backed Expectations The US Supreme Court has so faz used the investment-backed expectation standard in conjunction with the other Penn Central standards, thus holding in Hodel v. Irving, 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. Likewise in the Draft General Plan the impact on many property owners in Hawaii County will be "substantial" and the govenunent action "extraordinazy" given the nature of the Draft General Plan. 2. Character of the Governmental Action It appears from the Draft General Plan and some of its language that some of its purposes are at best mixed (protection of agriculture and open space) and at worst (primarily for the protection of open space, view planes, and the like). It is, in other words, not a health and safety measure, but a welfare measure. It is therefore more vulnerable to regulatory takings challenges than health and safety measures. The US Supreme Court in the Lucas case cited and discussed above was clearly most concerned with open space preservation via the police power, opining that such worthy goals ought not to be achieved at the expense of individual property owners, but rather such costs should be spread among the public at large (as, for example, the purchase of private land for open space preservation). Likewise, 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.). Applying these criteria to some of the language alluded to in Part III above, it is pretty clear that should Hawaii County apply Draft General Plan classifications to land purchased with more intense land development expectations, it runs a substantial risk of the result being a partial taking of the property. Assume, for example the investment-backed expectations of a relatively large-tract landowner, when it purchased the parcel, was to undertake residential or agricultural estate development, based on the existing zoning. Under the general criteria of economic effect on the landowner, it is cleaz that the economic effect on such a landowner is severe: under even the most positive (economically) scenarios, such a landowner will be able to construct but a few houses rather than the number previously permitted. The property will accordingly plummet in 7 value, and value is a key indicator in terms of economic effect. There are no continuing mitigating uses here as there were with respect to the fully-operational (complete with commercial tenants) Grand Central Station in Penn Central. 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. 3. Legitimate State Interest Some courts continue to decide regulatory takings cases under the "legitimate state interest" prong of the U.S. Supreme Court's decision in Agins v. City of Tiburon, 447 U.S. 255 (1980). Thus, in State ex rel. Shemo v. Cit o~yfield Heights, 75 N.E.2d 345 (Ohio 2002), the Ohio supreme court held that the city lacked any legitimate governmental health, safety or welfare concerns in support of a planned development reclassification of realtor's land which restricted it to single-family uses, and therefore the classification did not substantially advance any legitimate city police power interest. Also in Schoolcraft Eug, Inc. v. Schoolcraft Township, 2000 WL 33409627 (Mich. App.), a Michigan appeals court remanded for trial a regulatory taking attack on an ordinance directed at stopping the expansion of plaintiff s egg business on the ground that the government had presented no proof that placing a limit on the facility had any reasonable relationship to a legitimate governmental interest. To the same effect is Cwynar v. City & County of San Francisco, 109 Ca1.Rptr.2d 233 (Cal. App. 1 Dist. 2001), in which the court held that an ordinance restricting a landlord's ability to evict a tenant, particularly if the landlord wished to take possession for the landlord's personal use or residence, might constitute a taking depending upon the evidence adduced at trial on the legitimacy of the government's interest in passing the ordinance. C. Relevant Parcel for Landowners Under the Draft General Plan Is, For Takings Purposes, the Remnant Parcels Which Are Either Undevelopable or Drastically Reduced In Value. Carving out undevelopable parcels raises substantial regulatory takings problems under regulatory takings jurisprudence. The critical question, of course, is, what is that relevant parcel, or, as aptly phrased by the Lucas opinion: When, for example, a regulation requires a developer to leave 90% of a rural tract in its natural state, it is uncleaz whether we would analyze the situation as one in which the owner has been deprived of all economically beneficial use of the burdened portion of the tract, or as one in which the owner has suffered a mere diminution in value of the tract as a whole... [there follows criticism of that portion of the New York state court decision in Penn Central which suggested that nearby property of the owner could be combined with that portion he claimed was unusable in deciding whether there had been a regulatory taking]...The answer to this difficult question may liken how the owner's reasonable expectations have 8 been shaped by the State's law of property - i.e., whether and to what degree the state's law has accorded legal recognition and protection to the particular interest in land with respect to which the takings claimant alleges a diminution in (or elimination of) value. 505 U.S. at 1016, n.7. Several lower federal and state courts have dealt with the issue. Thus, both Florida Rock Industries, Inc. v. United States, 18 F.3d 1560 (Fed. Cir. 1994) and Loveladies Hazbor, Inc. v. United States, 28 F.3d 1171 (Fed. Cir. 1994) discuss the denominator issue in the context of denials of section 404 (Clean Water Act) dredge and fill permits issued by the Army Corps of Engineers. In Loveladies, the court considered only 12.5 of plaintiff's 250 acres, holding ultimately that the Corps effectively denied the landowner all economically beneficial use and so was liable for the difference in value with ($2.7 million) and without ($12,500) the permit. To the same effect is Palm Beach Isles Assoc. v. United States, 208 F.3d 1374 (Fed. Cir. 2000) in which the court held the relevant parcel for regulatory takings analysis was 50.7 acres rather than 311 acres owned by the plaintiff landowner. Similarly in East Cane May Associates v. State, 693 A.2d 114 (N.J. Super. Ct. App. Div. 1997) the court held that the denominator would not include adjacent property subdivided and sold many years prior to the enactment of the present regulations denying use. To the same effect, Animas Valley Sand and Gravel Inc. v. Board of County Commis, 8 P.3d 522 (Col. Ct. App. 2000), where the court accepted as the relevant parcel only landowner's 33 acres designated in a river corridor district, rather than all of plaintiff's adjoining property as well. D. It is Possible That Various landowners in the County have changed positions based upon existing zoning, putting in infrastructure and subdividing their land in the investment-backed expectations generated by existing County land use regulations and therefore have vested rights to proceed with construction of additional dwellings. The doctrine of vested rights is designed to protect property owners from a change in the law which would otherwise render a land development project or construction illegal, which was otherwise legal when commenced. The landowner has a vested right to continue such a project if the landowner has expended money in reliance on the existing land use controls in effect at the time the project or construction is commenced. Virtually any governmental action approving the commencement of a project will do, except that in Hawaii if there is still a discretionary permit outstanding -such as a shoreline management permit -the landowner's right to proceed does not vest until that last discretionary permit is issued. Most courts having considered the matter agree that approval of a subdivision plat or plan vests such rights. See, e.g., Youngblood v. Board of Supervisors of San Diego County, 586 P.2d 556 (California 1978). It may well be that many landowners have spent money in reliance on their existing zoning classifications to install infrastructure necessary for the construction of dwelling units on their land. Others may have expended funds for the subdivision of their lands in similaz reliance on existing zoning. These owners need only a building permit under existing zoning to construct houses on their infrastructured and subdivided land in order to construct additional dwelling units. Under Hawaii law, with no additional discretionazy permits (preliminary subdivision plat 9 or shoreline management permit, for example) the rights of these landowners have vested as a matter of law to proceed with the construction of these units and any subsequent change of the law such as that now contemplated by the County Council in Draft General Plan should not legally prevent such construction. See, for authority, County of Kauai v. Pacific Standard Life Insurance Company, 653 P.2d 766 (Hawaii 1982) and Life of the Land v. City Council, 606 P.2d 866 (Hawaii 1980). Indeed, if such landowners have had any official assurances from the County with respect to the preparation of their land for development (and subdivision approval clearly constitutes such assurance) the County is also equitably estopped from preventing the construction of additional units on such infrastructured and/or subdivided land. E. Section 1983 Section 1983 of the Civil Rights Act subjects any person who under color of any statute, ordinance, regulation, custom or usage of any state or territory, subjects any person in the United States to the deprivation of any rights, privileges or immunities secured by the Constitution and laws of the United States, to liability to the party injured. 42 USC s. 1983. Such actions can be brought in either state or federal court, and under Monell v. New York Citv Dept. of Social Services, 436 U.S. 658 (1978) local governments are "persons" which are subject to such suits for liability under Section 1983 for monetary, declaratory or injunctive relief "...where...the action that is alleged to be unconstitutional implements or executes a policy statement, ordinance, regulation, or decision officially adopted and promulgated by that body's officers." (at 690). The U.S. Supreme Court has further held in Owen v. City of Independence, 445 U.S. 622 (1980) that local government has "no immunity from damage liability flowing from their constitutional violations." Moreover, individual government officials have only qualified immunity for such rights deprivation actions, primarily when acting in their legislative orjudicial capacities. There is no such immunity when acting in an administrative capacity. In further court decisions, deprivation of property rights through unconstitutional land use controls has been clearly held to be such a deprivation covered by Section 1983. Therefore, if the County should pass the Draft General Plan and its application is found to unconstitutionally take private property under any of the grounds discussed above in preceding sections of this analysis: (1) the County has no immunity to a suit for damages under Section 1983 For the taking of property without compensation and (2) administratively enforcing such an invalid ordinance can subject individuals who enforce it to claims for damages as well. F. Public Access and Parking Requirements for Coastal Resort Development The Draft General Plan also appears to require landowners to dedicate public access-ways across private land as a condition to approving all coastal development uses of land. Essentially, the Draft General Plan at page 318: "Coastal resort developments shall provide public access to and parking for beach and shoreline areas." The public access-way dedication requirements imposed on coastal resource developments are clearly and unequivocally unconstitutional under the rules set out by the U.S. Supreme Court in Nollan v. California Coastal Commission and Dolan v. City of Tigard. Such required dedications bear no relationship to any problem caused by a proposed subdivision (no nexus, in other words, rational or otherwise). Only if a landowner proposes large 10 residential or resort developments whose residents would arguably use such access to selected public resources or facilities could such a dedication be considered remotely reasonable. 1. Unconstitutional Land Development Regulations as Takings: the Constitutional Standards Judges and commentators have long suggested that conditions, exactions and dedications attached to land development permits must bear some proportionate relation to the land development upon which they are levied. See, e.g., Heyman and Gilhool, "The Constitutionality ofImposing Increased Community Costs on New Suburban Residents Through Subdivision Exactions" 73 Yale L.J. 1119 (1964). As the following analysis makes clear, such land development conditions (impact, mitigation and "in-lieu" fees and other exactions, and land dedication requirements) are development driven. It is the contemplated land development project that generates the need for the public facility or other infrastructure improvement which justifies the dedication or exaction. It follows that it is always inappropriate to levy or charge such exactions and dedications on the rezoning process. Zoning generates no such needs. It also follows that the fee collected or the interest in land acquired by government must be spent or used -and soon -for the public facility or improvement for which it was collected. Failure to spend or use the fee or land renders the basis for charging it invalid. So does failure to use or spend it reasonably quickly , or to spend it for a general or different purpose (i.e., a road fee for school purposes). However most litigation over land development conditions arises because of questions about the relationship of the condition on a land development permit to problems or needs generated by the contemplated development. The U.S. Supreme Court addressed this issue in two landmark cases: Nollan v. California Coastal Commission, 483 U.S. 825 (1987) and Dolan v. City of Tigard, 512 U.S. 374 (1994), both of which struck down government land dedication conditions upon the issuance of land development permits (coastal zone and building permits, respectively) as unconstitutional takings of private property by regulation. In Nollan v. California Coastal Commission, the Supreme Court struck down a Coastal Commission requirement that a landowner dedicate an easement across the back portion of his lot and parallel to the public beach as a condition for permission to rebuild a beach house. The Commission said that the problem it sought to address was the blocking of views from the beach road to the beach by the expanded house, thus making it difficult for the public to see that there was public beach below. As the Court said: It is quite impossible to understand how a requirement that people already on the public beaches be able to walk across the Nollans' property reduces any obstacles to viewing the beach created by the new house. It is also impossible to understand how it lowers any "psychological barrier" to using the public beaches, or how it helps to remedy any additional congestion on them caused by construction of the Nollans' new house...The lack of nexus between the condition and the original purpose of the building restriction converts that purpose to something other than what it was. The purpose then becomes, quite simply, the obtaining of an easement to serve some valid governmental purpose, but without payment of compensation. Whatever may be the outer linuts of "legitimate state interests" in the takings and land-use context, this is not one of them. 483 U.S. 836-839 (emphasis added). 11 The Court followed the Nollan case with Dolan v. City of Tigard in 1994.There,the Court struck down a municipal building permit condition that the landowner dedicate bike path and greenway/floodway easements to the city before the enlargement of a hardware store adjacent to a local stream. The purpose, according to the City, was to alleviate traffic problems and flooding which the expanded store was expected to generate. The Court agreed with the City that alleviating such problems was a legitimate state interest, and that bike lanes and floodway easements were appropriate means for ameliorating the problems, thus finding a required "nexus." However, the Court held that "the degree of the exactions demanded by the city's permit conditions [did not]bear the required relationship to the projected impact of petitioner's proposed development." (114 S. Ct. at 2318). The Court thus imposed a rough proportionality test as well as a nexus test: "[T]he city must make some sort of individualized determination that the required dedication is related both in nature and extent to the impact of the proposed development." (at 2319-2320) The constitutional problem in both instances, said the Court, is "the loss of [their] ability to exclude" which the Court reminds us is one of the most essential sticks in the bundle of rights which characterize private property. See Callies and Breemer, The Right to Exclude Others From Private Property: A Fundamental Constitutional Right, 3 Wash. J. Law and Property 39 (2000). Together, these two cases require that to pass constitutional muster, land development conditions imposed by government: i. must seek to promote a legitimate state interest; ii. must be related to the land development project upon which they are being levied by means of a rational or essential nexus; iii. must be proportional to the need or problem which the land development project is expected to cause, and the project must accordingly benefit from the condition imposed. Under the first standard, legitimate state interest, an agency may only require a landowner to dedicate land (or interests in land) or contribute money for public projects and purposes, such as streets, roads and other public facilities and, presumably, for access to a public asset in Hawaii, like a beach. Under the second standard, essential nexus, an agency must find a close connection between the need or problem generated by the proposed development and the land or other exaction or fee required from the landowner/developer. Thus, for example, a modest coastal resort development could not possibly justify a requirement that a landowner dedicate an easement to a public beach. 12 Under the third standard, proportionality, aresort development of, say, three hundred units may well generate a need for beach access across the land so developed because of the population increase, but whether such an access would need to be public, as opposed to "residents only" is Far less certain. 2. The Constitutional Standard Applied Following Nollan, many courts have struck down land development conditions for lack of nexus and/or proportionality. For example, in Art Piculell Group v. Clackamas County, 922 P.2d 1227 (Ore. App. 1996), an Oregon appeals court struck down a road dedication requirement fora 19- lot subdivision even though the county had demonstrated that the county needed the road: "We do not imply that a development cannot have impacts that could warrant improvement conditions that are system wide in scope. However...the determinative factor must be the relationship between the impacts of the development and the approval of the conditions, and not the extent of the public's need for road or other improvements that happen to exist at the time the particular development is approved." (at 1236) In Amoco Oil Co. v Village of Schaumburg, 661 N.E.2d 380 (Ill. App. Ct. 1995), the court struck down a road widening dedication, holding that the taking of 20% of Amoco's land for roadway widening purposes on the basis of a .4% increase in traffic caused by the proposed development "does not correspond with the slightest notions of rough proportionality." 661 N.E.2d at 391. Other examples: Schultz v. City of Grants Pass, 884 P.2d 569 (Ore.App. 1994), striking down a road dedication; Property Group, Inc. v. Planning & Zoning Com'n of the Town of Tolland, 628 A.2d 1277 (Conn. 1993) striking down road widening dedication; Lexington-Fayette Urban County Gov't v. Schneider, 849 S.W. 2d 557 (Ky. Ct. App. 1992), striking down bridge dedication requirement; Cobb v. Snohomish County, 829 P.2d 169 (Wash. Ct. App. 1991), striking down a road improvement fee; Dellinger v. City of Charlotte, 441 S.E.2d 626 (N.C. Ct. App. 1994) striking down a road dedication requirement; Castle Homes & Dev. v City of Brier, 882 P.2d 1172 (Wash. Ct. App. 1994) striking down aper-lot road impact fee. There are literally dozens of additional post-Nollan/Dolan cases striking down various impact fees and exactions for parks, schools, sewers, water and housing where government fails to meet the nexis and proportionality standards imposed by the U.S. Supreme Court. However, the foregoing analysis, which draws only upon road/access cases, should be sufficient to demonstrate the inadequate basis of the Draft General Plan in exacting free access to the beach ,let alone parking, as a condition for coastal resort development approval. There is no connection or nexus between such a coastal resort development and either public parking or beach access. Such a resort development does not drive the need for such parking and access. Moreover, even if it did, the requirement would sorely lack proportionality. The requirement is unconstitutional on its face. 13