2008-10-06_Chris Yuen_v_Board_of_Appeals_and_Edmund_Jin_and_Eva_Lu_-_Answering brief-Civil_No_07-1-261K

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C `D (R:CV07-1-261K Doc. 004 at 570, 573, 705; Doc. 21 at 901-902.) At the conclusion of the contested case hearing, the Board Chair requested Appellants Jin and Lu's counsel to submit proposed findings of fact, conclusions of law, and decision and order. (R:CV07-1-261K Doc. 004 at 573.) On August 30, 2007, Appellants Jin and Lifs counsel submitted Proposed Findings of Fact, Conclusions of Law, and Decision and Order Approving Variance application(VAR 06-101)to the Board and the Director. (R:CV07-1-261K Doc. 004 at 580.) On September 14, 2007, the Director submitted objections to the Proposed Findings of Fact, Conclusions of Law, and Decision and Order Approving Variance application (VAR 06- 101) to the Board and to Appellants Jin and Lu. (R:CV07-1-261 K Doc. 004 at 609.) The Director objected to the proposed Conclusions of Law(COL')in part because 1)there was no conclusion that Jin and Lu, as the appellants, had the burden of proof, including the burden of producing evidence as well as the burden of persuasion, and the degree or quantum of proof shall be by a preponderance of the evidence pursuant to HRS § 91-10(5); and 2)there was no conclusion that Rule 22 requires in part that all lots to be served by catchment shall have an average annual rainfall of not less than 60'and that the annual rainfall can be proven by rainfall records at comparable rain gauges, or by the USGS rainfall map. (R:CV07-1-261K Doc. 004 at 612.) At the Boards October 12, 2007 meeting, the Director objected to the revised proposed COL Nos. 6, 7 and 8 for the following reasons: (1) Proposed COL #6 is not an accurate statement of the burden of proof in that it implies that the Director had the burden to show that Appellants Jin and Lu did not meet the 60'of rain required under Rule 22. (2) Proposed COL #7 attacks the validity of Rule 22 itself in that it says the isohyet lines on the rainfall maps are not sufficiently specific or accurate to be used as a sole source of a regulatory standard and it goes beyond the Boards jurisdiction to opine as to the validity of the rule. 6