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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(5) Appellants Jin and Lu failed to meet their burden of proof 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. (R:CV07-1-261K Doc. 021 at 908-910.) Second, in response to Appellants Jin and Lifs argument that the Board did not shift the burden of proof to the Director, the Court concluded that the Board did in fact shift the burden of proof to the Director when it stated in its Decision and Order that"the Denial by the Planning Director was arbitrary and capricious in that he failed to consider other evidence regarding the amount of rainfall" (R:CV07-1-261K Doc. 021 at 911.) The Court explained that it is the applicant for a water variance, not the Director, who is required to show that he or she meets the requirements of Rule 22-4, and moreover, that there was no COL adopted by the Board to support such a decision. (R:CV07-1-261K Doc. 021 at 911-912.) Likewise, the Court concluded that the Board shifted the burden to the Director when it stated in its Decision and Order that"the Planning Director's reliance on only the isohyet line and one rain gauge was arbitrary in that Rule 22 contemplates that there would be reliance on more than one rain gauge, and the isohyet line was within a reasonable distance from Appellanfsproperty" (R:CV07-1-261K Doc. 021 at 912.) Again, as the Court explained, there was no COL adopted by the Board to support such a decision. (R:CV07-1-261K Doc. 021 at 912.) Third, in response to Appellants Jin and Lifs argument that Rule 22-4 is invalid and unenforceable because the Director did not comply with the rule making procedures of Chapter 91, HRS, when he deviated from the rule by using methods of measuring rainfall other than what is provided for in Rule 22-4, the Court concluded that Rule 22-4 is valid and enforceable and the Director did not depart from Rule 22-4 in contravention of the rule-making procedures of Chapter 91, HRS, by using methods of measuring rainfall other than what is provided for in Rule 22-4 based on the following: (1) Appellants Jin and Lu failed to provide any 11