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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0 Appellants Jin and Ltfs Motion To Dismiss Appeal came on for hearing before the Honorable Ronald Ibarra on January 24, 2008, during which the Court exercised its administrative power to correct the record and ruled that the Notice of Appeal was timely filed. (R:CV07-1-261K Doc. 018 at 858-859.) In so ruling, the Court found that there was`bo dispute that the document was provided to the clerk's office two days prior to the running of the period for the notice of appeal to be filed'and, had the clerk`f'ormally file-stamped the document within the two days, the notice of appeal would have been valid, clearly valid" (Supplemental Record (SR):CV07-1-26 1 K Doc. T001 at 20.) On February 26, 2008, the Director filed a Notice of Submission of Order Denying Appellees'Motion to Dismiss Appeal. (R:CV07-1-261K Doc. 017 at 852.) 2. The Director's Appeal at Circuit Court In accordance with the Courfs Order Setting Briefing Deadlines and Oral Argument, the I I Director's Opening Brief was timely filed with the Court on January 14, 2008, which presented the following legal issues: (1) Whether the Board of Appeals Decision was affected by an error of law and in violation of the statutory provision contained in HRS § 91-10 in that the Board of Appeals unlawfully shifted the burden of proof to the Planning Director when it rendered its decision and order. (2) Whether the Board of Appeals Decision granting the appeal was arbitrary or capricious or an abuse of discretion or clearly j erroneous by concluding in Conclusion of Law No. 6 that:`rIhe Planning Director's interpretation and application of Rule 22 in the context of this application represented an unwarranted exercise of discretion and/or an abuse of discretion" (R:CV07-1-261K Doc. 009 at 731, 742.) The following arguments were presented in the Director's Opening Brief: (1) The Board erred by shifting the burden of proof to the Director in violation of state law. 8