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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(3) Proposed COL #8 is also an inaccurate statement of the burden of proof as it indicates that the Director did not look at more than one rain gauge, but that is something that the applicant for the entitlement to the variance must show, not the Director. (R:CV07-1-261K Doc. 004 at 682-684.) During the October 12, 2007 meeting, the Board adopted Appellants Jin and Lds Revised Proposed Findings of Fact, Conclusions of Law and Decision and Order, with the deletion of proposed COL Nos. 6, 7, and 8 and the inclusion of COLs regarding burden of proof pursuant to HRS § 91-10(5) and Rule 22. (R:CV07-1-261K Doc. 004 at 686-687, 703-704.) C. The Appeal to the Circuit Court of the Third Circuit On November 23, 2007, the Director timely appealed the Boarcrs decision to the Circuit Court of the Third Circuit. (R:CV07-1-261K Doc. 001 at 1.) An Order Setting Briefing i Deadlines and Oral Argument was entered on December 10, 2007. (R:CV07-1-261K Doc. 005 at 707.) On December 27, 2007, Stuart H. Oda, Esquire, filed a Notice of Appearance of Counsel to appear as attorney for Appellants Jin and Lu in the matter before the Court. (R:CV07-1-261K Doc. 007 at 714.) 1. Appellants Jin and Lu's Motion to Dismiss Appeal On January 2, 2008, Appellants Jin and Lu filed a Motion to Dismiss Appeal for lack of jurisdiction on the ground that the Director's appeal to circuit court was not timely filed. (R:CV07-1-261K Doc. 008 at 717.) The Director filed a memorandum in opposition to Appellants Jin and Ltfs Motion To Dismiss on January 16, 2008. (R:CV07-1-261K Doc. 011 at 757.) The Board filed a statement of no opposition to Appellants Jin and Lds Motion To I Dismiss Appeal on January 16, 2008 and Appellants Jin and Lds Reply Memorandum was filed on January 18, 2008. (R:CV07-1-261 K Doc. 010 at 754; Doc. 012 at 800.) 7