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<br /> <br /> <br /> <br /> <br /> Honorable Russell S. Kokubun, <br /> Chairman, and Members <br /> Page 2 <br /> October 3, 1989 <br /> <br /> <br /> The same section defines 'apartment' as: <br /> (A] part of the property intended for any type of use <br /> or uses, with an exit to a public street or highway <br /> and may include such appurtenances as garage and other <br /> parking space, storage room, balcony, terrace, and <br /> patio. <br /> <br /> Obviously, this definition covers the type of dwelling unit in a <br /> multiple family residential unit that most people associate with <br /> a condominium; however, it can also apply to a development with <br /> parcels of land upon which single family dwellings maybe <br /> constructed. <br /> As noted above, since a 'condominium' is a type of ownership <br /> rather than a use, a 'condominium property regime' does not <br /> involve the division of land with s transfer of interest in the <br /> divided land. Pursuant to Hawaii County Code §23-3(a)(29), <br /> 'subdivided land" is defined as: <br /> (I]mproved or unimproved land or lands divided into <br /> two or more lots, parcels, sites, or other divisions <br /> of land for the purpose, whether immediate or future, <br /> of sale, lease, rental, transfer of title to or <br /> interest in, any or all such parcels, includes <br /> re-subdivision, and when appropriate to the context, <br /> relates to the process of subdividing of the land or <br /> territory subdivided. <br /> 0 <br /> This distinction between type of ownership and use has been <br /> followed in other jurisdictions. In Maplewood Village Tenants <br /> Ass,n.•y. Maplewood Village, 116 N.J. Super 372, 282 A.2d 428 <br /> (1987), the court stated that municipal zoning and planning <br /> regulations were meant to control use rather than ownership. <br /> Therefore, where an owner wanted to convert a building from an <br /> apartment rental project to a condominium building, the <br /> municipal government could not impose requirements in the <br /> subdivision ordinance, because there was not a change in the use <br /> of the building. See also Gerber y. To Ow Qf Clarkston, 78 <br /> Misc. 2d 221, 356 N.Y.S.2d 926 (1974). While there is the <br /> distinction between 'condominium' as a type of ownership and <br /> 'subdivision' as a use of land, a municipal government must be <br /> careful to prevent 'condominium' ownership from being used as a <br /> subterfuge to create a subdivision without complying with <br /> subdivision requirements. Where the evidence shows that the <br />