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C <br /> i <br /> producing evidence as well as the burden of persuasion pursuant to section 91-10(5) of the <br /> Hawaii Revised Statutes ( -IRS),to affirmatively show that the Director's decision was arbitrary, <br /> capricious, in excess of statutory authority, and made on unlawful procedure. <br /> (R:CV07-1-261K Doc. 004 at 703; Doc. 021 at 901, 908.) <br /> During the contested case hearing before the Board, while under cross examination, <br /> Appellants Jin and Lifs expert witness, Steve Bowles, testified to the following: <br /> (1) He does not know whether the Property receives an average annual <br /> rainfall of at least 60 inches or more per year. <br /> (2) Rainfall has declined in the past 20 years. <br /> (3) He authored a chapter in a report that states that as a result of this decline in <br /> rainfall in the past 20 years,"the total amount of rainfall is less than half due to <br /> drought conditions" <br /> (4) The rainfall at Ocean View has diminished over the years, particularly since <br /> 1983, and that it has resulted in an increase in reliance on water hauling. <br /> (5) The lack of adequate rainfall and the cost of hauling causes fire <br /> protection problems and other problems. <br /> (6)Periods of drought will require more water hauling that will be <br /> using the County water system. <br /> (7) He has conducted studies in South Kona for various clients, but he did not <br /> conduct a study for Appellants Jin and Lu to determine if there would be adequate <br /> rainfall for catchment. <br /> (R:CV07-1-261K Doc. 004 at 513-514, 516, 519; Doc. 021 at 901-902.) <br /> Notwithstanding the foregoing evidence, the Board voted to grant Appellants Jin and Lus <br /> Appeal on the basis: <br /> 1) that the Director was arbitrary and capricious in that he failed to <br /> consider other evidence regarding the amount of rainfall, and <br /> 2) that the Director's reliance on only the isohyet line and one rain <br /> gauge was arbitrary in that the Rule contemplates that there would <br /> be compliance on more than one rain gauge, and that the isohyet <br /> line was within a reasonable distance from Appellants Jin and Lds <br /> property. <br /> 5 <br />