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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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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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(4) The rainfall at Ocean View has diminished over the years, particularly <br /> since 1983, and that it has resulted in an increase in reliance on water hauling. <br /> (RCV07-1-261K Doc. 004 at 514.) <br /> 8. At the contested case hearing before the Board, Appellants Jin and Lu had the <br /> burden of proof, including the burden of producing evidence as well as the burden of persuasion <br /> pursuant to section 91-10(5), HRS, to affirmatively show that the Director's decision was <br /> arbitrary, capricious, an abuse of discretion, and violated law and that, among other things, that <br /> Rule 22 was arbitrary, capricious, in excess of statutory authority, and made on unlawful <br /> procedure. (R:CV07-1-261K Doc. 004 at 703.) <br /> Based on the foregoing, the Circuit Court correctly concluded that Appellants Jin and <br /> Lu failed to meet their burden of proof, including the burden of producing evidence as well as <br /> the burden of persuasion pursuant to HRS § 91-10(5), to affirmatively show that the Director's <br /> decision was arbitrary, capricious, an abuse of discretion, and/or violated law, and therefore, the <br /> Board's COL No. 6 was unsupported by substantial evidence in the records and is thus clearly <br /> erroneous in view of the reliable, probative, and substantial evidence on the whole record. <br /> 3. Appellants Jin and Lu's Argument That Reliable <br /> Rainfall Data Was Not And Could Not Be Obtained <br /> From A Single Rainfall Gauge And Isohyet Line And <br /> Supporting Evidence Was Not Raised and Properly <br /> Preserved In the Lower Court and Therefore Cannot <br /> Be Reviewed On Appeal <br /> Appellants Jin and Lu raise for the first time on appeal the argument that"reliable data <br /> was not and could not be obtained from a single rainfall gauge and isohyet line" Appellants Jin <br /> and Lds Opening Brief at 21-23. Because Appellants Jin and Lds argument raises an issue which <br /> was not raised and properly preserved in the Circuit Court, it cannot now be considered by this <br /> Court. See Kawamoto v. Yasutake, 49 Haw. 24, 45, 410 P.2d 976, 978 (1966) (1t]his court will <br /> not consider a question which was not raised and properly preserved in the lower court) <br /> 25 <br />
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