2005-10-24_Request_Change_re_Tentative_Subdivsion

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Memorandum to Chris , uen, Director Planning Department October 24, 2005 Page 2 Contrary to Mr. Bassan's belief, the Court's decision in Whitlow did not invalidate County ordinances like Section 23-76, it merely held that such ordinances are in derogation of the common-law right to sell and buy land and must, therefore, be strictly construed in their prohibitive applications, while giving due regard to the purpose of the ordinance. The purpose of County ordinances such as Section 23-76 is to protect the public and the unwary purchaser from substandard subdivisions. Therefore, the Court held that an agreement to sell that is placed in escrow with the condition that the agreement is of no force and effect until final subdivision approval is granted by the Planning Department does not violate the County ordinance because the public and the buyers are fully protected since the contract is of no force and effect until the subdivision has been approved by the Planning Department. In the case at hand, the escrow agreement provided to me by Mr. Bassan contains no language which protects the purchaser. In other words, unlike the escrow agreement in Whitlow, there is no condition in Mr. Bassan's escrow agreement that requires the seller to obtain final subdivision approval from the Planning Department before the agreement will be in full force and effect. If, under these circumstances, the Planning Department agrees not enforce Section 23-76, there is no incentive for Mr. Bassan to complete the improvements required for obtaining final subdivision approval, which goes against the whole purpose of Section 23-76. In addition, it could potentially expose the planning department to liability for failing to enforce Section 23-76 for the protection of the buyers. If, however, the sales agreements for each lot contain such a condition and are placed into escrow with instructions to the escrow agent that the agreement to sell is to be ineffectual and not delivered to the buyer until after final subdivision approval is obtained, Section 23-76 would be in derogation of Mr. Bassan's right to sell land, pursuant to Whitlow, and therefore should not be enforced against Mr. Bassan under such circumstances. Therefore, the Planning Department should require Mr. Bassan to submit a copy of the agreement to sell and instructions to escrow before determining whether to require Mr. Bassan to comply with Section 23-76. III. Discussion Section 23-76, Hawaii County Code, provides: Land shall not be offered for sale, lease or rent in any subdivision, nor shall options or agreements for the purchase, sale, leasing or rental of the land be made until approval for recordation of the final plat is granted by the director. w