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HomeMy WebLinkAboutCOM 0045.023 2002-2004Harry Kim Mayor December 18. 2003 Christopher J. Yuen • .�• �' U-..1 -.. Ojre�mr '03 DEC 18 RftT�. TakjAioto Deputy D,reaar %1lonnfir of paivall PLANNING DEPARTMENT OOUNZt 101 Pauahi Street, Suite 3 • Hilo, Hawaii 96720-3043 (808)961-8288 • Fax(808)961-8742 Honorable Leningrad Elarionoff, Chair and Members of the County Council HAWAII COUNTY COUNCIL 25 Aupuni Street Hilo, HI 96720 Dear Chair Elarionoff and Members of the County Council: SUBJECT: GENERAL PLAN I am writing to respond to the testimony of David Callies, Esq., on behalf of the "Leeward Planning Council" (I presume this means the Hawaii Leeward Planning Conference), dated January 16, 2003. This reply cannot be as full as I would like; I received the letter mid-afternoon Jan. 17`h. I want to give a response because the testimony presents a selective and incomplete picture—really a lawyer's brief arguing for one side of a question-- designed to make the Council fear that certain proposed amendments to the General Plan will cause the County to be liable for taking private property. The Council needs to understand this important area of land use law. My letter gives a fuller discussion of the law of "takings" as it applies to land use regulations in general. Note that the Callies testimony does not actually discuss any specific LUPAG map amendments. My letter will briefly describe why none of the proposed amendments to the LUPAG maps that would put areas into the "Open" or "Conservation" designations would lead to an unconstitutional taking. The possible constitutional challenges to the proposed map amendments were carefully considered and analyzed before these amendments were proposed. Comm. No. W5 •7'3 Ref. To: , Ref. Dote Honorable Leningrad Elarionoff, Chair and Members of the County Council HAWAII COUNTY COUNCIL Page 2 December 18, 2003 The main points in this letter are 1. A land use regulation that keeps a portion of a parcel in open space is not a taking if it still allows an economically beneficial use of the remainder of the parcel. All of the proposed "Open" designations allow an economically beneficial use of major portions of existing parcels. 2. When the landowner does not currently have zoning to use property for certain uses, it will not be a taking to enact a General Plan amendment that prevents the landowner from getting that zoning in the future. 3. None of the proposed General Plan map changes or text changes will deny vested rights. 4. The proposed "Conservation" county zone conforms with state land use law and do not violate constitutional rights. 5. The portion of the General Plan that calls for public access to the shoreline is part of the present (1989) General Plan, follows other state and county laws, and has been applied in a constitutional manner. 6. Damages under sec. 1983 can be awarded only if there is a constitutional violation. No violation, no damages. To discuss these points in more detail: 1. Although there is a constitutional limit to a government's exercise of its zoning and other land use powers, the government can greatly limit a private owner's use of land, and greatly reduce the economic value of that land, without it being an unconstitutional taking of private property. The U.S. Supreme Court has upheld a new zoning regulation that reduced the value of property by 75%, Village of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). The 9th Circuit Court of Appeals, which has jurisdiction over Hawaii, has upheld a regulation that reduced the value of a parcel from $2,000,000 to $100,000a 95% loss in value. Wm. C. Haas & Co. v. City and County of San Francisco, 605 F.2d 1117, 1120 (91h Cir. 1979). The Supreme Court has repeatedly ruled that the fact that a land use regulation reduces the value of land—even drastically --does Honorable Leningrad Elarionoff, Chair and Members of the County Council HAWAII COUNTY COUNCIL Page 3 December 18, 2003 not create a taking of that property, most recently in Tahoe -Sierra Preservation Council Inc. v Tahoe Regional Planning Agency, 535 U.S. (2002). One line the government cannot cross, though, is that the regulation must not deprive the owner of all economically beneficial use of the property. Lucas v. South Carolina Coastal Council, 505 U.S. 1003 (1992)(There may be a further exception that the regulation may not be a taking if the entire parcel has severe physical constraints, but it is not necessary to look at this issue.) The Supreme Court has made it clear, most recently by the 7-2 vote in Tahoe -Sierra, that this analysis applies to the entire parcel, the "metes and bounds that describe its physical dimensions". As long as there is some economically beneficial use of a portion of the entire parcel, the restriction on a portion of the parcel is not a taking. For example, the right to build one house on an 18 -acre parcel is a substantial economic benefit, and not a taking. Palazzolo v. Rhode Island, 533 U.S. (2001). Naturally, landowners will sometimes argue that only the area that is being restricted or regulated should be considered the "parcel", but this has not been accepted by the courts. Otherwise, an ordinary building setback could be considered a "taking" of that area. While there are some odd situations where it is difficult to determine what is the "entire parcel" for takings analysis, possibly including adjacent land, generally we will be on safe ground if we use the existing lot of record. The Council should note that an "Open" designation, or even an "Open" zone, does not take away all economically beneficial uses of that area: a golf course can potentially be developed in an "Open" designation in the LUPAG, or in an "Open" zone. Turning to the specific proposed LUPAG map amendments where an "Open" designation is proposed where there is currently some urban designation, all of the private parcels include areas where significant urban uses could be allowed, outside of the proposed "Open" designation: --F-8 (area near Pu'ukohola Heiau and Spencer Park): a portion of this large parcel will be "Resort Node" if the amendment goes through. --F-9 (area near Mauna Kea Beach Hotel): most of this is "Resort Node" --F-12 (near Wailea Bay): this is state land, part of Hapuna State Park. Honorable Leningrad Elarionoff, Chair and Members of the County Council HAWAII COUNTY COUNCIL Page 4 December 18, 2003 --F-16 (behind Puako): this has an SMA permit for a golf course, consistent with "Open' --F-20: this designates an open space buffer along the Waikoloa Rd.; the bulk of the property is "Urban Expansion." --G-7, 8 (O'oma): this area is in the state land use conservation district; most of the parcel would be "Urban Expansion" in the LUPAG map. --G-10a, G -10b (G-9 in the "green" book)(Kohanaiki): this property is mostly "Urban Expansion"; the county administration and the landowner are in accord as to how this property should be developed (thus the proposed revision of G-9 to become G -10a and G -10b), and it has obtained all discretionary permits. --G-15: this is part of the Kaloko-Honokohau National Park. --G-17 (Honokohau): this is state land. --G-18 (Kealakehe): this is state land, EO'd to the county for a golf course. --G-29 (Keauhou): these are golf courses. --H-3,4,5 (Honaunau): the landowner (Kamehameha Schools/Bishop Estate) does not oppose these changes. There are also a number of proposed "Conservation" designations. Almost all of these are currently in the state land use conservation district, or are owned by the state or federal government. The state land use district conservation designation is the primary land use control on these properties, and the LUPAG "Conservation" designation would not reduce the uses currently allowed on private property. The exceptions—private land that is currently in the state land use agricultural district-- are portions of H-1 at Keopuka and a small area of Onouli, and H-11. Most of the Keopuka and Onouli parcels are "Extensive Agricultural" and, at Keopuka, the landowner has announced that he will create a conservation easement covering most of the same area. H-11 is in mauka Honomalino and is owned by the Nature Conservancy and in active management for conservation purposes; the LUPAG designation would not affect their ability to harvest trees in the context of forest management or potential ecotour activities. Honorable Leningrad Elarionoff, Chair and Members of the County Council HAWAII COUNTY COUNCIL Page 5 December 18, 2003 2. There is a second "test" for a "taking", based on Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978): the interference with "distinct, investment - backed expectations". Because these cases tend to very fact -specific, it is difficult to formulate a general rule, but successful cases based on zoning and other land use decisions are quite rare. Most involve a use for which the landowner actually had the zoning, but some other regulation prevented the proposed use. In Hawaii law, the landowner has no right to use property beyond that allowed by the zoning, and so the landowner cannot have enforceable investment -backed expectations to use the property in a way that it has not yet been zoned for. None of the private properties in question are currently zoned for urban use, except Kohanaiki, which has essentially been settled. In fact, many of the areas in question are not even in the state land use urban district. I could give an area -by -area analysis to show why "distinct, investment -backed expectations" are not violated by the proposed General Plan map changes, but lack time. Just to give two major examples, the O'oma and Hawaiian Riviera map changes are currently in the state land use conservation district; the owners have other hurdles they must clear before they can do urban development. 3. A land use regulation also must not interfered with "vested rights". In Hawaii, a landowner has vested rights when it has made substantial investments, in good faith, in reliance on the "final discretionary permit". One cannot have vested rights if one does not even have zoning. As mentioned in the previous section, none of these properties, except Kohanaiki, are currently zoned for urban use. For most of the properties in question, because they are in the SMA, the "final discretionary permit" for a development would be the SMA permit. None of the properties in question, except Kohanaiki, have an SMA permit to do substantial development. And even if they did, it is part of the Planning Director's job (with advice from Corporation Counsel) to recognize when a landowner's rights have vested, and to take no action that interferes with those rights, unless the County is prepared to pay just compensation. Although the General Plan has the force and effect of law, the General Plan only applies at certain stages in the land use process, and there will usually be no chance to invoke the General Plan once a property has vested rights. To explain further: some land use approvals are called "discretionary" because they require the exercise of discretion and judgment by the body making the decision. Rezonings and SMA permits are discretionary, and must not be granted if they contradict the General Plan, because the county charter and SMA law say so. Other kinds of land use approvals are called "ministerial" because if the application meets certain set criteria, it must be approved. A Honorable Leningrad Elarionoff, Chair and Members of the County Council HAWAII COUNTY COUNCIL Page 6 December 18, 2003 building permit it the classic example of a ministerial permit. If a property already has the proper zoning, the Planning Director to deny a building permit solely based upon the General Plan, because unlike rezonings and SMA permits, the laws do not give the Director or any other official the power to invoke the General Plan at that late stage. For example, if a property is zoned "Residential", but happens to be "Open" in the General Plan, the County is not empowered to deny the building permit based solely upon the General Plan. The General Plan is not applied at that stage; it is primarily to be applied at the stage of rezoning, SMA permits, use permits, and other discretionary approvals. At p. 9-10 of the letter, there is reference to landowners having vested rights to proceed with construction of additional dwellings. It is not clear to me what this is referring to. None of the proposed land use changes in the General Plan affect rights that have already been created by final subdivision approvals. As described in the previous paragraph, if a landowner has an automatic right to a building permit based upon zoning, the General Plan designation can't change that. 4. The letter contains criticism of a proposal in the draft General Plan that the zoning code be amended to include a new "Conservation" zone, which would cover land that should be kept in a largely natural state, but that "may not be in the Conservation District." This proposal is not meant to assert jurisdiction over lands in the state land use conservation district, as the text of the proposed amendment clearly states. Those lands are under the jurisdiction of the BLNR (except the county has some jurisdiction when they are also in the SMA.) The point of this proposed zoning district is that there are lands outside of the conservation district that should be kept in a largely natural state, such as some gulches, areas with very steep slopes, and historical sites, but no zoning district that really accomplishes that. The "Open" zoning district can allow considerable ground alteration. The City and County of Honolulu has the equivalent of this "Conservation" zone in its "Preservation" zones. Creating a "Conservation" zoning district will not in itself be a taking. Applying it to a particular piece of property may be a taking under the analysis described above, if it results in the loss of all economic benefit from the entire parcel, but this is an analysis that has to be made on a case-by-case basis whenever property would be rezoned to Conservation. 5. Pages 0-13 of the letter argues that the provision in the General Plan requiring public access of coastal development is unconstitutional. This provision being criticized is in the existing (1989) General Plan. Various state laws (H.R.S. sec. 46-6.5, H.R.S. sec. 205A -26(1)(A) and Chap. 34 of the Hawaii County Code require public access for Honorable Leningrad Elarionoff, Chair and Members of the County Council HAWAII COUNTY COUNCIL Page 7 December 18, 2003 various kinds of coastal development. Hawaii County, like the other county governments, has successfully required public access as a condition of development approvals for many years without constitutional challenge. In many cases this has been an affirmation of traditional and customary access that existed before the development. The potential loss of enjoyment of the public shoreline caused by coastal development is adequate nexus for requiring public access, and the degree of access has been tailored to the scope of the development. In almost all cases in this administration, we have been able to negotiate public access conditions that are mutually acceptable. 6. If the governmental regulation constitutes a taking of property, the County is potentially liable under 42 U.S.C. sec. 1983 for damages. The amount of damages depends upon the factual situation, but may be the loss in value of the property due to the regulation. If the government rescinds the regulation, the government may still owe for the temporary deprivation of use. But damages can be awarded only if there is a violation. The enactment of a General Plan amendment, in itself, will not constitute a taking of property, because the amendment itself does not regulate the property. It is important; however, to consider whether the follow-up events that will take place if the amendment is enacted would constitute a taking. That analysis has been done with respect to the proposed map amendments. Denials of rezonings based upon the General Plan amendments, as discussed above, would not be takings. The "takings" issue was specifically analyzed in making these recommendations. No amendments have been proposed that would lead to a taking under current law. I advised the Planning Commission that one amendment suggested by members of the public (and considered by the Planning Commission) should not be enacted because it might lead to a taking: a proposal to establish a wide buffer around the Keakealaniwahine historical site. This might have been a taking because it would have completely covered a number of small parcels. The Council needs to keep this in perspective: the General Plan currently has private property in "Open" and "Conservation" categories. This has been true since the first General Plan, in 1971. To date, it has not caused any successful litigation against the County. Local governments throughout the country intensively regulate private development, imposing open space requirements and density restrictions, without "takings" problems. Honorable Leningrad Elarionoff, Chair and Members of the County Council HAWAII COUNTY COUNCIL Page 8 December 18, 2003 A closing word: the County government is given a great deal of power and responsibility in the land use area to regulate land use for the benefit of all our citizens. To allow each landowner to do whatever he or she wants will, in the end, injure everyone. If we fail to use our powers to protect open space and agricultural lands, large parts of our island will look like suburbs of Los Angeles in the not -too distant future. We are already zoned for far more development than our roads, parks, and other infrastructure can handle. The General Plan is the right place to start drawing some of these lines. We must understand and respect constitutional limits, but they do not prevent us from making rational land use decisions to protect our quality of life. Sincerely, S CHRISTOPHER . YUEN Planning Director CJY:pak Wpwin60/Chris/General Plan re taking law.doc cc: Mayor Harry Kim Mr. Roy Takemoto David Callies, Esq. Mr. Norman Hayashi Mr. Daryn Arai Ms. Alice Kawaha Corporation Counsel