2005-10-24_Request_Change_re_Tentative_Subdivsion

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Memorandum to Chris ) uen, Director Planning Department October 24, 2005 Page 4 whole purpose of Section 23-76. This could potentially expose the Planning Department to lawsuits filed by the buyers of the lots. Therefore, the Planning Department should not agree to waive Section 23-76, unless Mr. Bassan provides a copy of the sales agreement and instructions to escrow containing appropriate language to protect the buyers. IV. Conclusion The Court in Whitlow makes it clear that a statute or ordinance that is in derogation of the common law right to sell and buy land, such as Section 23-76, Hawaii County Code, must be construed strictly in its prohibitive application, giving due regard to the purpose of the statute or ordinance and the evils which the legislature intended to prohibit. The purpose of Section 23-76 and other similar ordinances and statutes is to protect the public and unwary buyers from substandard subdivisions. The placing of an agreement to sell for lots in a proposed subdivision upon the express condition that the agreement to sell will be ineffectual and not delivered to the buyer until final approval by the Planning Department is granted does not violate Section 23-76 because the public and buyers are fully protected since the agreement to sell is of no force and effect until the subdivision is approved by the Planning Department. Therefore, the Planning Department should require Mr. Bassan to provide a copy of the agreement to sell and the instructions to escrow to determine whether they contain the necessary language to protect the public and the buyers. If no such language exists, the Planning Department must require Mr. Bassan to comply with Section 23-76. AGS:cm S:dept\plann\05-10863 morton bassan req tent subdiv app 10-24-05 AGScm.doc