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i' June 1, 2006 Board of Directors Page 9 alternatives, and that the variance would be consistent with the general purpose of the district, the code, the County general plan, and not be detrimental to the public welfare. Subdivision Code, Section 23-15. An application for the variance must be submitted and notice must be given to surrounding property owners. Subdivision Code, Sections 23-16 and 23-17. Again, as to Makalei Drive, no variance application was submitted. Rather, the developer exchanged correspondence regarding the standards for Makalei Drive. As built, Makalei Drive appears to be in violation of the Subdivision Code. Notably, the Subdivision Code provides in part: The council shall not take over, receive by dedication, do any repair or construction work upon streets or pavements, water lines, street lighting systems, sewer lines, or in any way accept as public highways any street in any subdivision opened or platted is the County after December 21, 1966, except upon full compliance with the provisions of this chapter. Subdivision Code, Section 23-9. The Coun~,y's Day To Desivn And Maintain_Safe Road-s Our understanding is that Makalei Drive is owned by Iiiluhilu and has not yet been dedicated to the County. If the road were to be dedicated, the liability for the design and maintenance of the road would pass to the County. If the road were used as collector street in its present design, the County could face liability for property damage, injury, and death for aardents caused by any negligent design of Makalei Drive. The County owes a duty to the public to design and maintain reasonably safe highways. Breed v. Shaner. 57 Haw. 656 (1977) (county and state have duty to keep their respective highways in reasonably safe condition, including duty to design highway to be safe for travel by people exercising ordinary care); ~ ,~nd~rs v_ 3ta_ te, 60 Haw. 381 (1979) (state must exercise Ordinary care in maintaining state highway in reasonably safe condition); ICienker v. Bauer. 110 Haw. 97 (2006) (state held liable for negligent design of highway). The Land Use Commission recommended in its order that vehicles with .weights of 10,000 pounds or more not be permitted to use the road. Mr. Kuba stated in his correspondence that Makalei Drive `was not designed and constructed to County collector street standards". Accordingly, there appears to be some concern at the government level that the road is not safe for use as a collector street, and the County is on notice of this concern. However, the expertise of a road design or engineering professional would be necessary to 615197.IA)54-1