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

Home

x rule-making procedures of Chapter 91, HRS, by using methods of measuring rainfall other than what is provided for in Rule 22-4. 2. The Circuit Court Did Not Err In Entering Conclusion of Law No. 15 The Circuit Court concluded in its Conclusion of Law(COL')No. 15 that: The Boards conclusion 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 discretiori'was clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. (R:CV07-1-261K Doc. 021 at 915.) Based on the evidence in the record,the Circuit Court correctly concluded in its COL No. 15 that the Board could not have concluded in its COL No. 6 that"the 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" The Circuit Court's COL No. 15 is supported by the following findings in the record: 1. Rule 22 provides in pertinent part that"all lots to be served by catchment shall have an average annual rainfall of not less than 60'. . . "and that`Tt]he annual rainfall can be proven by rainfall records at comparable rain gauges, or by the USGS rainfall map" (R:CV07-1- 261K Doc. 04 at 153.) 2. Rule 22 was adopted in accordance with Chapter 91, HRS, and became effective on February 25, 2006. (R:CV07-1-261K Doc. 004 at 102-104.) 3. When applying for a variance from the water supply requirements of the Subdivision Code, the applicants are required to show that their property receives an average annual rainfall of not less than sixty inches, as required by Rule 22, and that they otherwise meet the requirements of Section 23-15 of the Subdivision Code. (R:CV07-1-261 K Doc. 004 at 152- 153.) 23 l