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HomeMy WebLinkAboutCOM 0042.062 2004-2006 ~ ~~~-(iittK Phone: (808) 961-8263 BOB JACOBSON • ~ ~6:r-~ Fax: (808) 961-8912 Vice-Chair i. E-Mail: Jacobs@hgea.org 'i+i o~•wriM HAWAII COUNTY COUNCIL County ofHawai'i Hawai `i Cwenly building , 25 Aupuni Street, Suite 109 r_ Hilo, Hawaii 96710 ~ ~ - January 1 I, 2005 To all council members, I am forwarding this letter from Chris Yuen on "takings" for your information. The letter is in response to Mr. David Callies. I think it is important to familiarize yourselves with this opinion. I believe Chris Yuens' position is well founded and supported by case law. Aloha, Bob Jacobson Comm. No. 2 • Z. Ref. To: District 6 -Upper Puna, Kau, and South Kona Ref. Care JAN Hawaii County /s An Equal Opportunity Provider And Employer ,,~YY of ~y,~ ~4~. ~ 4r ' Harry Kim Christopher 3. Yuen Mayor ~1 DirrcMr .~r • ~L:.t i :i ~:IJ ~rF p~~M~~' '03 DEC 18 912opDt~~TOkemoto CLIIIYYC~'~1 YT;~~tt~U2TCT CGUf~ L;LCi.:~: PLANNINGDFPARTI'.iENT COUNT ~ : ~i= H~^-v~lAil 101 Pauahi Street, Suite 3 Hilo, Flawaii 96720-3043 (808)961-8288 Fax(808)961-8742 December 18, 2003 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 Collies, 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 Collies 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. 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 5 December 18, 2003 2. There is a second "test" fora "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 away 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. Aland 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 Plarming 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 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 maybe 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 ofproperty, because the amendment itselfdoes 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 ofrezonings 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 Keakea]aniwahine 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. n~lii vi d a rill `o Lt+ii ii.i i r r cvv.+ Ashford & Wriston A LINNTED LIABILITY lAW PARTNERSHIP LLP Street Address: Mailing Address: Tale: (808) 539.0000 1099 Alakea 8tred 14th Floor Post Office Box 131 www.ashfordwraton.cam Honolulu, Hawaii 96813 Honolulu, Hawaii 96810 14 PAGES (Including This Fax Cover Page) Date/Time: Wednesday, December 17, 2003 10:51:40 AIvI To: Councilman James Y. Arakaki !"ompany: !Ia:?'an CCl1^ly CCllnCtl Phone Number: {808)961-8255 Fax Number: 1-808-961-8912 Froth Michael ~'V. Gibson, Esq. Phone Number: (808) 539-0400 Fax Number; (808) 533-4945 Matter ID# 1 ] 45-0103 Message: Attached please fmd the Testimony of David L. Callies regarding the Hawaii County Proposed General Plan IXJ r ~l H _ E (J ''-l= ly w L.7 CJ O c-~ U 0 CONFIDENTIALTTY NOTIFICATION The information contained in this facsinule message is attorney privileged or otherwise confidential irdorrna[ion intended only for use by the individual or eNity named above. If the reader of this message is not the intended recipient, or employee or agetn responsible to deliver it to the inended recipient, you are hereby notified that dissemination, distribution or copying of tlils communication is strictly prohibited. If you have received this ctxiununiration in error, please immediately notif} us by telephone, and return the original message to us at the above address via [he U.S. Postal Service. Thank you. ASh£OYd & WYYStOn icil rrcvvo 1V .VL the landowner has acquired vested rights to proceed with the use of land under the "old" regulations. 4'. ihat ir3iivf tiiE vi•-a° Ger~Ei"ai Bari VilSii:'fi TE4,;isa the dfx'iiceGGii Gfpiibiic parking or accessways across private ]and as a co~itioa of wastal developmeni approval results in an unconstitutional condition on land devebpment unless the County can demGnshaie that the proposed developmeni directly and praportionaieiy gtncraies a need for such gablic parking and public access. 5. The enforcement by any County official of any of the above Draft General Plan provisions, when found to be nnconstitutioaal, will expose the county acrd Ure eaiorcirrg County official, to liabiBty for darrnages wrda section 1983 of the U.S. Civil Rights Aet of 1870 under a series of U.S. Supreme Court cases shipping local government and its local officials of imrmmity from such lawsuits claiming a taking ~prep~rty by regulation. Q. THE PLAN AS LAW pleas ut general are more than mere policy guides in Hawaii. Thus, for example, Act 100, the lzawrul State Pia-ii. r~j'~irw 5•iata aSwii.18S i0 rwi III ,U'ru°GairiauGa Critii the 5'ifite plan's u'lAnA, goals, objectives, policies and priority guidelines, and cormties to °fuAher define" and "take into consideration" (but neither conform bo nor be consistent with) the aforesaid in formulating their county general and development plans. HRS 226-5 l et seq.,Planning Coordination and IIIlDletnentatl0n. However, the relationship of county plans to traditional land use controls like zoning and subdivision codes is far [Wore burdensome, particularly in Hawaii County. Thus, far example, the Charier for Hawaii County requires, at section 3-15: b. No public improvement, project, subdivision or zoning ordinances shall be initiated or adopted rmless tbe same conforms to and implements the General Plan. While it is theoretically possible to argue over the meaning of"conformance° it would be difficult ro argue, for example, that a county general plan designation in a conservation or agricultural district would pemrit any but those conservation or agricultural uses permitted in that planning district. Moreover, is 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 calmly zoning and county clans; tha more restrictive of the two wit! ¢gvem, Therefore; i7ie Hawaii County General Plan becomes not a guidance document for malong ]and 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. 2 Asrrfora ~ wrisson ic,i„~~~~ viable, landowners will have su9bred a per se, categorical or total taking of so classi5ed Lots or pa:,,cls bemuse they nc longer have any eccnomically benefiaa] use. In this category of regulatory Caging, there is rro defense avat~able to the County based upon its desire to preserve agiculttrre or erpce space. Only if such total deprivation of use is for the eradication of a nuisance, or in accordmrce with some txtstom en public trust principal, could such a deprivation t+e ju-stifisd. As for those landowners whose use of land is in some fashion useable but whose anticipated econonvc uses are substantially curtailed by location in either the Open Space district or in an important agricultural ]ands classification, they maybe frustrated intheirinvestment-backed expectations, particularly if they have spent money in reliance on County assarances or preexisting Sand 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 primazity for the preservation of open space arrd open space uses rather than for health and safely reasor?9. Moreover, for all landowners who have invested in infrastructure avid paid other land development costs, especisity those who qualify for CPR treatment, if there one no Cruther permits to be obtained beyond the Iron-discretionary building permits, their rights have, au.u^id'u~~y, ~'~t~i 6"iau u~Ey arS Ei'~ti6d w Cvu"'Sit iEtB tl'i0u' yisu5 tG dE'i 0iv'y u,Zir yivt,Ei y u, accordance with the rules and regulation now in effect. Finally, to the extent that each landowners have suffered either s total or partial deprivation of t~".r r.mw,t„ r ohtu in than la~~l crrthn~ ^~^.~^^^".~>:Cn ^..^..nt »Ty tin, f5ro Fii~h Am-, wrlryN,A ~n ti,~ r• r°v b..... ...rte 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 Gareral Plan become taw, its application to mmry landowners would tittely result in personal liability to any county ot5cisl enforcing the law in the event that the landowners prevail in their Fifth Amendment taghtgs lawsuit, since such enforcement would be neither legislative nor quasijudicial, the only grounds for individual immunity under Section 1983. Furthermore, should the landowcers prevail, or should the litigation be settled on teams favorable to the landowners, the landowners are entitled to en award of legal Leas for money expended in defense of their FiRh Amendment rights, under Section 1988 of the same Civil Rights Act . While such lawsuits have been relatively rare in Hawaii in the past, rimes have changed. Landowners -both large and small -are often no longer bound by traditional and cultural ties to the s~utie or any parTicrrlnr carmry, rror do t'riey necessatily hold several hscCs or one large tract, as compared to lazrdholdmg patterns in the t 980's before plantation agriculture came to an end and local companies itrcreasinglybxame aubsidiarits of, or sold theirholdings to, outside Cwn¢rn artd inY~tntx, Therefore, r~ Mars t4 stt&h shits afiiGh g.7id~1 hefore - neQr1 fur rnrrlL+ple project approvals, traditional aversion to litigation, and so Forth- have largely disappeared. On the Big Island, as on other islands, offiisland landowners wrth substantial resotuces and but one parcel of land are increasingly restive oven state and IocaI 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 lake up the matter through litigation, regardless of cost and time, in 4 Ashford & Wriston 12/17/20U:i 1u:az rnvn v~rav,= While a strong argument can be made that the statutory scheme here at issue...is for the totmoorn good, that argnmem, if resolved favorably to the County, does nol, under Lucas, resolve the matter. Even if it were for the common good, it still tnay cause an uncorrstim- tional taking if it, as it does in the case sub judiee, results in ille loss of an viable economic uses. 111 Md. App. 1, at 36-37. B. Aland use regttlatlon also takes land contrary to the FSfth Amendmwt to the US Constitution rhea its economic effect on the landowner is severe, partlcularly if It frustrates the distinct iuvestment-backed expectations of the landowner and the e3tuscter of the governmental action is weak. A partial taking by regulation ocarcs when a land use regulation deprives a landowner of use d d value bV j""+d Lrie nerm&1 r0'.au~.ticn, ia° u:,y, Caii.~+ uy ti2 II~u cry CREt~'l58 Oi th8 Fivi1CZ power for the health, safety and welfare of We people, but stops short of depriving the owner of all aonornicallybeaeficial use. The govwnment's rationale for the regulation and ilte economic effect of the regrlation on the landowner are critical factors which a reviewing covet weighs in deciding whether a landowner has suffered a partial talang of prnpa ty. Partial takings are more common than totes takings, but tbe standard is clear. As thus case suggested in footnote e'i~a Cf it's GNuuGry iva Gwuct vr3tG has allueiod lca8 tltari a tuts di'~tlVattbn 6f Cu' 7nOnilCaliy beneficial use "...might not be able to claim the benefit of olv categorical formulation, but, as we have aclmowledged time atld again, `[tjhe economic impact of the regulation and...the exirnt to which the regulation interfered with the disthrct investment-backed expectations' are keenly relevant to the takings analysis generally." The ease which the Court cites altd from which it quotes above is Perm Central 'transportation Co. v. New York City. 438 U.S. 104 (1978), in which the Court sd out the 5amework for deciding partial regulatory taking cases. The Court there upheld New York City's Landmark Preservation Law, which effectively prohbited Penn Central from tonstructing afifty-Sue story office building in the a'lr rights above Grand Central Station. Penn Central claimed both the desi m+~ 'on of ~e st_r'so^. m< a his!etic !--at~.atk and the prohibidor. of its dwelopm~t plars conatitutod applied and facie] takings of its property under the Fifth and Fourtccnilr Amendments i0 the U.S. CCin3~titutt66 Before reaching the merits ofthe case, the Courl suggested "severa"l factors" which Gave `parficular significance" when it engages in "these essentially ad hoc, fachral inquiries": 1. Th^ GS^^^e.m2L llnp°..C.t Of ~1iv rBp.rlof....:....... vn tw Gl2iu..ii. oiad, Niu,iCuld'iiy, wL Cx'wali w which the regulation has interfered with the distinct, investment-backed expectations; 2. The cbaractar of the governmental action; 3. Whether rho taking is physical of if"du interference arises from some public programo adjusting the benefits and burdens of oconomic life to promote the cornnwn 8~•" Penn Central. 438 U.S. at ]2d. Adjusting the benefits and the burdens -the relevant part of the third criteria - is probably of little importance efts Lucas given the Court's language there 6 Ashford >y. WrlSton 1Lil~iww _ value, and value is a key indicator in tams of economic effect. There are no continuing mitigating uses here ea there were with respect to the fully-operational (complete with commercial tenants] L3rand Central Station in Perm Central- As the California court of appeals noted in its decision in the Pirst Lutheran case on tetnand, courts ate willing to balance the equities more in favor of gover®tent 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 haahh and safety. 3. Legltlmate Stah Interest Some courts continue to decide regulatory takings cases under flee "legitmrate state interest" pmno Qf the tT C, Cunrrmg f'.rairt a ~ cirm is Agi;ns V. City of Tiban±a.447 Vim. 255 (IOR~), T.~- ' Thus, in State ex rel Shemo v City ofMayfield Heights. 75 N.E.2d 345 (Ohio 2002), Ure Ohio supreme court held that the city lacked any legitimate governmental health, safety or welfare concerns in support of a planned development reclassification of realtot's land which reshicted it to single-Family uses, and therefore the classification did not substantially advance any legikmtate city police power itterest. Also in ~liooleraR Pg4 Inc v Schookcrafi Township 2000 WL 33409627 (Mich. App.), a Michigan sppeala court remsaded for trial a regulatory taking attack on an ordinance directed at stopping the expansion of plaintiff a egg business on the ground that the govemmeat had pttsented ao proof that placing a limit on the facility had any reasonable relationship to a legitimate governmental intueat. To the same effect is Cwvaar v. City & County of San Francisco. 709 Ca1.Rph.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 Iandlo~rd's personal use or residence, might constitute a taking depending upon the evidence adduced at trial on the legitimacy of die goverrunent's interest in passing the ortnance. C. Relevant Parcel for Landowners Under the Draft General Plan Is, For Takings Porposes, flee Remnant Parcels WhicL Are Eitlier Undevelopabke or llrs~chf~alhr A...^~.Stw t~ V~lnn Carving out undevelopable parcels raises substantial regulatory taionga problems under regulatory takings jurisprudence. The critical question, of coarse, is, what is that relevant parcel, or, a4 apgy phrased by the Lucas opinion: When, for cxatnple, a regulation roquires a developer to leave 90% of a Waal tract in its nahual state, ii is unclear whether we would analyze the situation u 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 ofthe New York state court decision in Pena Central which suggested that nearby property of the owns could be combined with that portion he claimed was unusable in deciding whether there had been a regulatory taling]...The answer to this difficult question may liken trove the owtroer's reasonable expectations have 8 AshfoYtl i~ wrisson 1L/1I/LVVO ivy,. c. c.,.... 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. Sea, for authority, ('ivmty of Kauai v. Pacific Standard Life inaira*+C+~ Cmm~anv. 653 P.2d 766 (Hawaii 1982) and Life of the Land v. Citv Council. 606 P.2d 866 (Hawaii 1980). ]ndeed, if such landowners have had any official assurances fiom the County with respect to the preparation of their land for devekpment (and subdivision approval clearly constitntes such assurance) the County is also equitably estoppel from preventing the conshuction of additional units on such infrastrudurod and/or subdivided land. E. SeMion 1983 Section 1983 of the Livil Rights Act subjects any person who under color of any statute, ordinance, mgnlation, custom or usage of any area or territory, subjects any person is 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 irgured. 42 USC s. 1983. Such actions can be brought in either state or federal court, and under Monet v. New York Citv Dent. of Social Services, 436 U.S. 658 { 1978) local governments am "parsons" which are subject to such suits for liability under 5ecfion I983 for monetary, declaratory or injunctive relief "...where...the action that is alleged to be unconstitutional implmten~ 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. Citv of Independence. 445 U.S. 622 (1980) that local govetruneat has "no immunity from damage liability flowing from their wnstitutional violations." Moreover, individual govemmmt officials have only qualified immunity for such rights deprivation ectioffi, primarily when acting in thdr leg}slative or judicial capacities. Them is no such immunity wben acting in an administrative capacity. In further court decisomg, deprvarion of property rights through unconsti Wtiona! land use controls has beers clearly held to be such a deprivation covered by Section 1983. ~1'Letefore, if the County should pass rite Draft General Plan and its application is found to unconstitutionallytake privsteproperty under any of the grounds discussed above in preceding sections of this analysis: (1) the County has no immunity to a suit far 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 W claims for damages as we11. F. Prblic Access and Parking Regniremente for Coasl9l Resort Development The Draft General Plan also appears to require Lwdowners to dedicate public aceess-ways across private lazrd as a condition to approving all coastal devetopment uses of land. Essentially, the Drat General Plan at page 318: "Coastal resort developments shall provide public access to and parking for beach and shoreline azeas."The public access-way dedication requirements imposed on coastal resource developments am clearly and unequivocally unconstitutional under the rules se! out by the U.S. Supreme Court in Nollan v. California Coastal Commission and Bolan v. City ofTigat+d. Such required dedications bear no mlationaltip to any problem caused by a proposed subdivision (no nexus, in other words, rational or otherwise). Only if a landowner proposes large to nsniora N WI'15LUn i~.~+,~~~~~ The Court fogowed the Nollan case with Dolan v. City of Tieard in 1994.There,the Court struck down a municipal bmlding permit condition that the landowner dedicate bike path and grewway/floodway casements to the citybefore the enlargement of a hardware store adjacent to a local stream. The purpox, according to the City, was to alleviate traffic problems and flooding which the expanded store wu expected to generate. The Couri agreed with the City that alleviating such problems was a legitimate state interest, and that bike lanes and goodway easements were appropriate means for ameliorating die problems, thus finding a required `hexes." However, the Court held that "the degree of the exactions d..:,.a~~ by d:e cit;~s p~s;.it caaditiaas [did aat]',,,,ar the trrture.^' rela:iarship to p^,,,jcetev impact ofpetitioner'a proposed development" (1 l4 S. Ct. at 2318). The Court thus imposed a rough proportionality test as well as a nexus test: "[TJhe 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 pnsdtutiaca2 problem in both ittstzttees, said the Court, is "the loss of [their] ability to exclude" which the Corot reminds us is one of the arose essential sticks in the burxile of rights which characterize private property. Sce Collies and 13teenrer, The Right to Exclude Others From Private Property: A Frmdamerrtal Coastimtional Right, 3 Wash. I. Law and Property 39 (2000). Together, these two cases requve that to pass constitutional muster, hard development conditions imposed by governmrnt: i. must seek to promote a legitimate state interest; ii. moat be related to the land development pmjcet 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 finat standard, legitimate state interest, an agexicy tray only require a landowner to dedicate land (or inurests in land) or contribute money for public projects and purposes, such es streets, roads and other public facilities and, presumably, for access to a public asset in Hawaii, lr7re a beach. Under the second standazd, essential nexus, an agency must find s close connection between the need or problem generated by the proposed development and the land or other exaction or fee regttircd from the landowner/developer. Thus, for exatuple, a modest coastal resort development could not poasbly justify a requirarrwt that a landowner dedicate an easement to a public beach. t2 Ash=ord & Wriston 12/17/2003 10:28 PAGE 014/014 Fax Server Under the third standard, proportionality, aresort development o)y 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 world need to be public, as opposed to "residents only" is faz less certain Z. The Constltutlooal Standard Applied Following Nollan, many courts have smock down land development conditions for lack of nexus and/orproperLonality. Por ega*_+!pte, in Art picule(L Group v, Cl?ckattias Cotmty, 912 P.241227 (Ore. App. 1996), an Oregon peals court stnrck down a road dedication requirement fox a 19- lot subdivision even though the county had demonstrated that the county needed the road: "W e do not imply that a development cannot have impacts drat could warrant improvtmetrt conditions that are system wide is scope. Hawever...the detenninaiive factor must be the relationship between the impacts ojthe development and the approval ojthe conditions, and not the extent of the public's need jor road or other improvements that happen to exist at the rime the parNeular development is approved." {at 1236) In /~mncn Oil Co. v Villaee of SchaumburE, 661 N.E.2d 380 (I1L App. Ct. 1995), the court smock down a road widening dedication, holding that We taking of 20'/0 of Amoco's lend for roadway widening purposes on the basis of a .4% increase in traffic caused by the proposed riwvelnpmen; "dn~.a not 00!rS.~Mnd tvi+~ t~ slte3t IIn;innR ofrC~ttgl! propordonaL+ty." 661 N.E2d at 391. Vther examples: Schultz v. Cit~f Grants rase. 884 P.id 56v (vre.App. i 9v4j, saiking down a road dedication; ~i+ot>erty Grouo Inc v Plannin¢ & Zonin¢ Com'n of the Town of Tolland 628 A.2d 1277 {Conn. 1993) atn7cing down road widening dedication; Lexineton-Faverie Urban Count~Gov't v. Schneider. 849 S. W. Zd 557 txy. Ct. App. 1992), striking down bridge dedication requirement; Cobb v. Snohomish Countv, 829P.2d 169 (Wash. Ct. App. 1991), striking down a road improvement fee; Dellinger v. City of Charlotte, 44i S.fi.2d 626 (N.C. Ct. App. i994j striking down a road dedication requirement; Castle Homes tic Dey. v City of Brier. 882 P.2d 1172 (Wash. Ct. App. 1994) striking down a pex-lol road impact fee. There are literally dozens of additional post-Nollan/Dolan cases striking down various impact fees and exactions for parks, schools, sowers, wator and housing where govemmcnt fails to meet the nexis and proportionality standards imposed by the U.S. Supreme Court. However, the foregoing analysis, which draws only upon toadlaccess 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 coasts] resort development and either public parking or beach access. Such a r~°.S.^.rt ,ixiPl~rnnPnf ,rove nni rin~r~ the It~ f^.r 9t:Ch r~lriYnap a~n„1 a..m:e$ ?~Cr°-.n~~~r, ~:~~n :f :t did, the requirement would sorely tack proportionality. The requirement is unconstitutional on its Face. 13 AShfOY'd & MPiStan 12/1'7/LVVJ lU;OG rrvi: vac.iviz residential or resort developments whose residents would arguably use such access to selector public resources or facilities could such a dedication be considered remotely reasonable. 1. Unconstitationai Land Development Regniatlons as Takings: the Constitutional Standards Judges and commentators have long suggested that conditions, exactions and dedications attached to Iand development permits must bear some proportiaaate relation to the land development upon which they are levied. See, e.g., Heyman and Gilhool, "The Constitutionality ofImposing hrtereased Community Costs on New Suburban Residents Through Subdivision Exactions" 73 Yale L.J. t i t9 {1964). As the following analysis makes clear, such land development conditions (impact, mitigation and "in-Heu^ fees anfl other exactions, and land dedication regtutemeats) are deveiopmart driven. It is the contemplated land devetopmart project that generates the need for the public facility or other infrastructure improvement which justifies ~e dedication or exaction It follows that it is always inappropriate to levy or charge such exactions and dedications on the rezoning process. Zoning generaiw rro such needs. Ii also follows that the fee collected or the interest in land acquued by goveimnexrt must be spent or used -and soon -for the public facility or itnpmvematt for which it was collected. Failrtre to spend err use iix fear or land renders the basis for charging it invaiia. $o does failm~e to use ar spend it reasonably quictcly , or to spend it for a general or different purpose (i.e., a road fee for school purposes). However most Sitigation over land dxrvdoprneot conditions arises because of questions about the relationship of the condition oa a land development pemut to problems or needs generated by the contemplated development. The U.S. Supreme Court addressed this issue in two landmark t:ases:I~.41lan v. Ati[omia Coan~ Com+_++ission. 483 U.S. 825 (1987) and Dolan v. City of Tieard. 512 U.S. 374 (1994), both of which etruek down government land dedication conditions upon the it:saance of land development permits (coastal zone and building permits, respectively) as unconstitutional takings of private property by regulation. In Pollan v. California Coasts( Commission, the Suprarre 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 pennrssion to rebtdld a beach IIotrse. Tire Commission saki ttud the problem it sought W address was the blocling of views from the beach road to the beach by the expanded house, thus malting it difl5cult for the public to ate that these was pubfic beach below. tls the Court said: It is quitennpossiblc to understand how a requirement that people already on the public beaches be able to wall: across the Nollans' property reduces any obstacles to viewing the beach created by the new house. It is also impossible to understand how it towers any "psyctnlogicai barrier" to using the public beaches, or how it helps to remody any additianai congestion on them caused ly construction ofthe Nollans' new house...The lack ofnezus between the condition and the original ptnpose vfthe buikting nxC'ictiaa converts that purpose to something other than what it was. The purpose then becomes, quite simply, the obtaining ofan easement to serve some valid gavernmentai purpose, but without payment of compensation. W/wtever may be the Darer limits of "Iegitimate state interests " in the takings and land-use context, this is not one of them. 483 U.S. 836-834 (emphasis added). it AShlora wriscou aa,i„~~~~ - been shaped by the Stele's law of properly - i.e., whemer and to what degree the state's law has accorded legal recognition and protection to the particular interest in land wnh respect to which the takings ciaimmtt alleges a dtmintrtion in (or elimination oil value. 505 U.S. at 1016, n.7. Several lower federal and state courts have dealt with the issue. 'Thus, bout Florida Rack Industries. Inc, v. Unital States. 18 F.3d 1560 (Fed. Cir. 1994) and v 'es Harbor. htc. v. United States. 28 F.3d 117] (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 Lovefadies. the court considered only 12.5 of plaintifFs 250 acres, hpldmv L imal~ly t ~aF H,E Cnmc ~_ff_rrr;Y~ly d,n+!~ tM nndL'9Pn^ Ell ~^nQP?ICEIly t`•..C.G~i'..l use and so was liable for the difference in vahte with (52.7 million) and without (512,500) 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 is East Cabe Mav Associates v. State. 693 A.2d 114 {N.7. Super. Ct. App. Div.1997) the cauri held that the denominator would not include adjacent pttrprxty subdivided and sold many years prior to dte enactment of dte present reguiadams dwying use. To the same effect, Animas Valley Sand and Gravel Inc. v. Board of County Cotnm'ra. 8 P.3d 522 (Col Ct. App. 2000), where We court accepted as the relevour parcel only landowne'o 33 awa+ Jcai~altxl in a river corridur'distrtc ; TatfierTlrur atYOT-._ - - - - ~ ~ - - - piaintin's adjoining Property as wail D. It h Possible That Varions landowners in the Csanty have changed positions based epos eaisting wnhrt:, pnttiag in infrastrnctare and subdividing tlleir land In tltelnvestment-backed expectations generated by eriatinE County land nse regalntions and therefore have vested rights to proceed wim construction of additional dwcitiags. The doctrine of vested rights is designed to protect property owners from a change in the law which would otherwise render a land developm~t project ar consntrction illegal, which was otherwise legal when cotmnenced. 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 ar construction is commenced. Virtually any governmental action approving the cotnmenceatent 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 orplan vests such rights. See, ag., You gblood v. Board of 5uoervisora of yen Die¢o County, 586 P.2d 556 {California 1978). It may well be that many landowners have span money in reliance on their existing zoning classifications to install infiastructure necessary for the construction of dwelling units on their land. ~thtrs may have expended funds for the subdivision of their lands in similar reliance on existing zoning. These owners need only a building permit under existing zoning to conshuct houses on their infrastructured and subdivided land in order to construct additional dwelling units. i3nder Hawaii law, with no additional disctctionary permits (preliminary subdivision plat 9 Ashford & Wriston 12/17/2003 10:5`L t'AIiC. uuoit,iY , u.. excoriating regulation which merely confers a public good and for which the Crnat ctcaziy states the public as a wiwle should pay rather [hart a single landowner. Thai leaves the economic elTce? on the landowner and the character of the govern®wt's action as the prtmaty focus of a partisi regulatory taking case. Parenthetically, as discussed below, to the extort that rho Cotmty of Hawaii's apparent goal in the Draft General Plan is to preserve open space rather they agriculture, it is vulnerable under the "CUIIftSa a public good" language noted above. 1. Eeonomlc Effect and In plrrticl[lar Froatradon of Investment-Backed Expectations 'the US Supreme Couri has ~ far used the investrnent-bactced expectation standard in conjunction with the other Penn C standards, thus holding in Hodei v. Irvine. 481 U.S. 704 (198'1) that the 1983 Indian Land Consolidation Act took property without compensation even though the plaintiff had Ito investment-backed exportations whatsoever, because the Couri deemed the economic itapl[ei on the plaintiff otirerwiae "substsmtiat" and the chm~acter of the govtartan~t~ tts~?~ ^eXtranrdinary.^ ~t3 4Rl U.S. at ?09, t~kowleo:*t YhQ Lrzti C.o•:P1Al Plan the impact on many property owners in Hawaii County will be "substantial" and the government action "exnaardinary'° given the nalttre of the Draft General Plan. 2. Character of the Governm~tal Action It appears from the Draft Genera] Plan and some of its language that some of its purposes ate at best ,witted (priitec~o;s of rt~iCUi`Weo and open apaccj and ai worst (pdiniariiy for rho protccvon of open space, view Planes, and t>x like). It is, in other words, not a heahh and safety measure, but s welfare measure. It is therefore more •r,:Incrable to rrUtla.ory taLinBa-~tlen8«-thao---~--- - health and safety treasures. The US Supreme Court in the ~.ttggg case cited and discussed above was clearly most concerned with open space preservation via the police power, opining that such worthy goats ought not to be achieved at the expense of individual property owners, but ratber such costs should be spread among the public at largo (as, for exatrtple, the ptachase ofprivate land for open span preservation). likewise, the "exttaordinttry~' nature of die governmental action in Hodei 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 dttlres (citing Penn Cerrtral) in Fichter ac rel v State Board of . _ - Envi-^^m^ntal Protectloa 2000 WL 336767] 0 (Me.Sttper.} Applying these criteria to some of the language alluded to in Part ID above, it is pretty clear that should Hawaii County apply Draft General Plan classifications to land purchased with more intrust land development expectations, it runs a substantial risk ofthe result being a partial taking of the property. Assume, for example the investment-backed expectations of a relatively large-tract landowner, when it pttrcllased the pazcel, was to undertake residential or agricultural estate development, based on the existing zoning. Under the gdleral criteria of economic effect oa the landowner, it is cleaz that the economic efl'oct on such s landowner is severo: under even tLC moat poaitlvt (cconvmically) acviarios, such a lantlown4 will Uc able [o wnsuuu 6u[ a TcW houses rather than the number previously permitted. The property will accordingly Plummet in 1 ('1A LL14aY OL na aV bVU order to protect thew investments. Therefore, the likeh'hood of litigation is high should the (;ounty pass the Draft General Plan in its present form and seek to enforce its provisions. A. The reYtthttion of lead wheeh deprives a Isadowaer o[ all ecotaonaicat>y lS.°.S~~iwl ti4°e eia an uuTA^u~u~~u0vSl tru~ib~ ref W upcrty i i~isut iiuup2ufiauua contrary to the Flesh Amendmwt of the US CoaaHta6on. 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 Amettdztteut to the US Constitution. Under concur U.S. Supreme Court jurisprudence, a landowner must be able to make such economically beneficial use of laud or the regulating govemmentaJ agcy must pay compensation as if the ]and wen takes by eminent domain ("...nor shall private property be taken for public use, without just compenaation.'~. While arguably drafted principally to protect private landowners from physical takings without compensation, since at least l 922 and Ore decision of the U.S. Supreme Couri is Pennsvlvaoia 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 Dnfl General Plan raises. The lend may have value. Indeed, it may evtn have some limited, "salvage" uses such as for walking or picnicking. But if it has no economically beneficial use, then the govemmmt moat 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 Lucca v. South C2F'ClL*ia rCa4tEl CC^.tlC.l. U.S. 1003 (1992) S state c:,as"~ lw^ne y":3tec`ivn SutL't@ picJcrited David Lucas from constructing two beacbfront houses on two separate lots. The statute prevented dewekrparent forward (makar7 of a beach line in order to protect coastal habitat, plan; animal and marine species, the natural ~virornnent and tourism. Remaining legal uses included walking; limited camping and picnicking. The U.S. Supreme Court reversed the strpttxne 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 impoacd m 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 customary rights, neither of which eppcara to be applicable here). Observing that too often ]and use regulations having as their principal purpose the preservation of the enviromncnt have forced a single landowner to bear the burden of such public befits, 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 owrter's estate shows that the proscribed use interests were not part of his title to begin with. Lucas, 505 U.S. at ]027. 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. C~a a Corporation 111 Md App. 1 (1996): 5 t~anx~ta a naia~wi III. WAAT THE PLAN I2EQU[RES: SELECTIIVE 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, 4? - under "Policies" at pages 276 and 277, and in particuhtr the following language: "Designate, protect and maintain important agricultural lands from urban enaoachment' ; "Eason that development of important agricultural land be primarily for agricultural use' ; "Important agricultural lands shalt not be rezoned to parcels too smaQ to suppoR economically viable farming units" - under "Courses of Action" at page 282, and in particuhn• "Protect important agriculnasl lands within the Kona Coffee Belt from urban encroachment through the use of zoning and other mxhsaisns" 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 lazgely natural state, but that may not be in the [slate, presumably] Conservation Dis+*ict,:°~" as ccrtarin'tmportat viewplattcs, bu8'cs ~ras,_^..~ very s~_cp slopes." 'There follows on the same page a series of "Standards" stating that the aforesaid Open Space designations "shall includes" Forest areas, water areas, potential natural hazard areas, Natrtral Ands and Reserves, Open S~aee Recreation Aneas, Scwric Yutas and View planes, and t.reueral Use Conservation Sub-Zones with Compatible Uses. To the cxtcnt that this new Open Space zoning designation or classification attempts to rcgulatc nay use whatsoever in the State Conservation District, the County is almost certainly exceeding its authority under the Scats Land Use Law (HILS 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 rho state and its Department ofI,and and Natural Resources. Thus, for example, to the extent the DLNR permits, through its conservation dishict use permits (CDUA) single-family residences m its general sub- zone, the County may not forbid such use because it lacks the authority to do so. Jt would also almost certainlybe a violation of the U.S. Constitution as more fully descnbed below. IV. THE APPLICABLE LAW More importantly, as intimated above, the language so far noted above appears to restrict uses on important agriculiural land to agricultural use orily, and to prohibit most uses altogether in flue proposed new Open Space district. To the extent agricultural or other permitted uses are not 3 nJ111 V14 .Y. n~.~v .r Hawau Coamty Proposed General Plan Testittrooy Concerolag Selected Parts by David I1. Caltiea December l6, 2003 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, responsiole and commendable exercise, pans 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 Charts and by virtue of a rarest decision by the Iiawaii Supreme Court in Save Swset Beach v Citv and Counri of Honolulu. Together, the two (charter a~ case) give the general plan the force of law, giving it precedence over any conhary and Ieas 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 restricfive than the applicable zoning of arty 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 fivslrating a landowner's distinct, investment-backed eapectationa, raises regulatory taking issues under the 3a and 14a amendments to fine U,S. Constitution. 'i he lianoiuiu law nrm of Ashford sad A'ris0ort asked for my teview of these issues, which aro of concern to certain of its clients, and in pafiicular the l.cevrmd Plamring Cowocil. That review, which follows in detail in pasts w, ~ awd Ilr, esswtially makes the folovvi^.g points: 1. ;~rYy pnPi of an appruv2ai GcTic~ai Plw'~ wi3u. c~lic% 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 tbe 5'" Amendment to the U.S. Constitution. 2. Any part of an approved General Plan which drastically aff~ts the economic use of private land so as to frustrate the distinct im~estmeat-backal arpeotations of the 1®dotvner will also result in a taking by regulation, requiring compensation under the 5's Amendment to the U.S. Constitution. 3. Any pert of an approved General Plan which "changes the Hiles" of permissible laud use on private property after a landowner has changed position in reliance on such rules (such es those pertaining to zoning, subdivisions, and so forth) by spending money for land development, may not be applied to such private property because t 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 ]ands, large parts of our island will look like suburbs of Los Angeles in the not-too distant future. We are already zoned for faz 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 faking law.doc cc: Mayor Harry Kim Mr. Roy Takemoto David Callies, Esq. Mr. Norman Hayashi Mr. Daryn Arai Ms. Alice Kawaha Corporation Counsel 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 maybe 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 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-1 Oa, G-1 Ob (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-l0a and G-1 Ob), and it has obtained all discretionary permits. --G-15: this is pazt 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 (Kaznehameha Schools/Bishop Estate) does not oppose these changes. There are also a number of proposed "Conservation" designations. Almost all of these are can-ently in the state land use conservation district, or aze owned by the state or federal government. The state land use district conservation designation is the primazy 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-- aze 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 2 December 18, 2003 The main points in this letter are: 1. Aland 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 Genera] 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%, Vi]laQe of Euclid v. Ambler Realty Co., 272 U.S. 365 (1926). The 9`h 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 $100,000-a 95% loss in value. Wm. C. Haas & Co. v. City and County of San Francisco, 605 F.2d 1117, 1120 (9`h Cir. 1979). The Supreme Court has repeatedly ruled that the fact that a land use regulation reduces the value ofland-even drastically--does