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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X A 0 0 Director and against Appellants Jin and Lu on May 2, 2008. (R:CV07-1-261K Doc. 021 at 917- 918.) As discussed below, the Court made the following conclusions, among others, in response to Appellants Jin and Lds arguments. i First, in response to Appellants Jin and Lds argument that COL No. 61 is valid and is supported by substantial evidence in the records, the Court concluded that the Boards COL No. 6 is unsupported by substantial evidence in the records and is thus clearly erroneous in view of the reliable, probative, and substantive evidence on the whole record based on the following: (1) as appellants in the contested case hearing before the Board, Appellants Jin and Lu had the burden of proof, including the burden of producing evidence as well as the burden of persuasion pursuant to HRS § 91-10(5)to affirmatively show that the Director's decision was arbitrary, capricious, an abuse of discretion, and/or violated law; (2) as applicants for a variance from the water supply requirements of the Subdivision Code, Appellants Jin and Lu were required to show that their property receives an average annual rainfall of not less than sixty inches as required by Planning Department Rule 22 and that they otherwise meet the requirements of Section 23-15 of the Subdivision Code; (3)there was no evidence in the record that Appellants Jin and Lds property receives an average annual rainfall of not less than sixty inches as required by Rule 22 and no evidence in the record that Appellants Jin and Lids Water Variance application meets the requirements for a variance under Section 23-15 of the Subdivision Code; therefore, Appellants Jin and Lu failed to meet their burden of proof pursuant to HRS § 91-10(5); (4) the Director provided a statement of factual findings supporting his decision denying Water Variance application as he is required to do under Section 23-18 of the Subdivision Code and therefore complied with the Subdivision Code in denying the Water Variance application; and ' COL No. 6 states that"[t]he 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." 10