§171-63  Waiver of restrictions.  (a) Use.  Upon application by the owner and consent therefor having been given byeach holder of record having a security interest, and after a finding that thepublic interest will be served thereby, the board of land and natural resourcesmay amend or waive the conditions restricting the use of land contained in anyagreement of sale, deed, or patent upon the condition that the grantee orpatentee pay to the board the difference between the fair market value of theland based upon its restricted use and the fair market value with therestrictive condition amended or waived.  The foregoing authority granted tothe board shall not be construed to authorize the board to waive the conditioncontained in any agreement of sale, deed, or patent which provides that uponchange in use or breach of a condition, the title automatically reverts back tothe State, or the State shall have power of termination.

(b)  Residential lots.  In case of aresidential lot, the board, subject to the consent of each holder of recordhaving a security interest, may waive strict adherence to the use thereof forresidential purposes, if the owner or lessee desires to utilize part of theland for agricultural purposes together with the owner's or lessee's residence,provided that the agricultural use is not inconsistent or contrary to localapplicable health or zoning ordinances and upon the condition that the granteeor patentee pay to the board the difference between the fair market value ofthe land based upon its restricted use and the fair market value with therestrictive condition amended or waived.  The foregoing authority granted tothe board shall not be construed to authorize the board to waive the conditioncontained in any agreement of sale, deed, or patent which provides that uponchange in use or breach of a condition, the title automatically reverts back tothe State, or the State shall have power of termination.  Anything in thischapter to the contrary notwithstanding, in case of a residential lot sold infee simple:

(1)  All restrictions relating to the use thereofshall expire ten years after the date of the issuance of the patent or deed bythe State or fifteen years after the date of the sale by the State, whicheveris sooner, provided that any change in use of the lot after the ten or fifteenyears, as the case may be, shall be in accordance with applicable state andcounty zoning requirements; and

(2)  Upon an application signed by all land owners inthe subdivision, the board may waive any restrictive covenant upon the land, aslong as the waiver shall not cause a violation of any state or county zoningrequirements. [L 1962, c 32, pt of §2; Supp, §103A-59; am L 1967, c 234, §13;HRS §171-63; gen ch 1985; am L 1992, c 168, §1]

 

Case Notes

 

  Restrictive covenant pertaining to height did not expire;term "use" refers to the use of the property for residentialpurposes.  70 H. 321, 770 P.2d 414.