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Home My WebLink About2008-10-06_Chris Yuen_v_Board_of_Appeals_and_Edmund_Jin_and_Eva_Lu_-_Answering brief-Civil_No_07-1-261K O NO. 29192 IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII CHRISTOPHER J. YUEN, PLANNING CIVIL NO. 07-1-261K DIRECTOR, COUNTY OF HAWAII, Appellant-Appellee APPEAL FROM FINAL JUDGMENT FILED HEREIN ON MAY 2, 2008 VS. BOARD OF APPEALS OF THE COUNTY OF HAWAII,VALTA COOK, in his capacity as Chairperson of the BOARD OF APPEALS OF THE COUNTY OF HAWAII, Appellees. C') ; CD and THIRD CIRCUIT COURT EDMUND JIN and EVA Y. LU, HONORABLE RONALD IBARRA, Appellees-Appellants. CIRCUIT COURT JUDGE slit\yuen Din/lu]29192\doc\answering brief 9/30/08 AGSjen APPELLANT-APPELLEE CHRISTOPHER J. YUEN, PLANNING DIRECTOR, COUNTY OF HAWAI`I'S ANSWERING BRIEF APPENDIX"A" STATEMENT OF RELATED CASES CERTIFICATE OF SERVICE LINCOLN S.T. ASHIDA 4478 Corporation Counsel AMY G. SELF 7628 KATHERINE A. GARSON 5748 Deputies Corporation Counsel Hilo Lagoon Centre 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Telephone No. 961-8251 Facsimile No. 961-8622 Email: ase1f((—vco.hawa11.h1.us Attorneys for APPELLANT-APPELLEE CHRISTOPHER J. YUEN, PLANNING DIRECTOR, COUNTY OF HAWAII D D. 0 0 TABLE OF CONTENTS I. STATEMENT OF THE CASE ..................................................................................... 1-12 A. The Water Variance Application ........................................................................2-4 B. The Appeal to the Board of Appeals ...................................................................4-7 C. The Appeal to the Circuit Court of the Third Circuit .......................................7-12 1. Appellants Jin and Lds Motion to Dismiss Appeal ................................7-8 2. The Director's Appeal at Circuit Court 8-9 3. Circuit Courfs Reversal of the Boards Decision ...................................9-12 D. The Appeal to the Intermediate Court of Appeals.......................:........................ 12 II. STANDARD OF REVIEW ....................................................................................... 12-13 A. Motion to Dismiss ................................................................................................ 12 B. Secondary Appeals........................................................................................... 12-13 III. ARGUMENTS ............................................................................................................ 13-29 a A. Motion to Dismiss Appeal was Properly Denied............................................. 13-20 1. Applicable Statutes and Rules .................................................................. 14 2. Notice of Appeal Was Filed Upon Receipt By the i Clerk of Court Even If Not File-Stamped Until TwoDays Later ................................................................................... 14-16 3. The Circuit Court Properly Exercised Its Inherent Power to Correct The Record to Reflect the Timely Filing of the Notice of Appeal ............................................................ 16-19 4. Appellanfs Jin and Lds Argument that"Excusable Neglect Does Not Appl}'is Misplaced................................................. 19-20 B. The Circuit Court Correctly Concluded That Planning Department Rule 22-4 is Valid and Enforceable and the County Planners Did Not Change the Standards For Approving A Water Variance in Violation Of Chapter 91 HRS 20-26 i Q R 0 0 1. The Circuit Court Did Not Err In Entering Conclusion of Law No. 13 ..................................................................................................20-23 2. The Circuit Court Did Not Err In Entering Conclusion of Law No. 15..................................................................................................23- 25 3. Appellants Jin and Luis Argument That Reliable Rainfall Data Was Not And Could Not Be Obtained From A Single Rainfall Gauge And Isohyet Line And Supporting Evidence Was Not Raised and Properly Preserved In the Lower Court and Therefore Cannot Be Reviewed On Appeal .................................25-26 C. The Circuit Court Did Not Err When It Concluded That Appellants Jin and Lds Property Does Not Receive Sixty Inches Or More Rainfall Annually ..........................................................................................................26-29 IV. RELEVANT STATUTORY, CODE AND RULE PROVISIONS ................................. 30 V. CONCLUSION ................................................................................................................ 30 ii � 4 0 O TABLE OF AUTHORITIES CASES Aldabe v. Aldabe, 616 F.2d 1089, 1091 (C.A.9, 1980) ................................................................................ 15 Bremner v. City & County of Honolulu, 96 Hawaii 134, 28 P.3d 350 (2001) ................................................................................ 12 Citizens Against Reckless Dev. v. Zoning Bd. of Appeals of City and County of Honolulu, 114 Hawaii 184, 193, 159 P.3d 143, 152 (2007) ...................................................... 12, 13 Colony Surf, Ltd. v. Director of the Department of Planning and Permitting, 116 Hawaii 510, 514, 174 P.3d 349, 353 (2007) ............................................................ 12 DuPonte v. DuPonte, 53 Haw. 123, 488 P.2d 537 (1971) ................................................................................. 17 Fisher v. Minor, 66 N.W.2d 557, 560 (Neb. 1954) .................................................................................... 18 Haney v. Mizell Memorial Hospital, 744 F.2d 1467, 1472 (C.A.11, 1984) .............................................................................. 15 Hatchell v. Heckler, 708 F.2d 578, 579 (C.A.I 1, 1983) .................................................................................. 15 Houston v. Lack, 487 U.S. 266, 273, 108 S.Ct. 2379, 2383 (1988) ...................................................... 15, 16 Kawamoto v. Yasutake, 49 Haw. 24, 45, 410 P.2d 976, 978 (1966) .....................................................................25 Keahole Defense Coalition, Inc. v. Bd. of Land and Natural Resources, 110 Hawaii 419, 430, 134 P.3d 585, 596 (2006) ............................................................ 17 Korean Buddhist Dae Won Sa Temple of Hawai`i, Inc. v. Zoning Board of Appeals, 9 Haw. App. 298, 305, 837 P.2d 311, 314 (1992) .......................................................... 19 Makainai v. Lalakea, 24 Haw. 518, 522 (1918) ................................................................................................ 18 Munoz v. Yuen, 66 Haw. 603, 606, 670 P.2d 825, 827 (1983) .................................................................26 iii r �} o. o Orso v. City and County of Honolulu, 55 Haw. 37, 38, 514 P.2d 859, 860 (1973) .....................................................................26 Parissi v. Telechron, Inc., 349 U.S. 46, 47, 75 S.Ct. 577, 577, 99 L.Ed. 867 (1955) ............................................... 15 Pattiz v. Schwartz, 386 F.2d 300, 302 (C.A.Mo. 1968) ................................................................................. 17 Poe v. Hawai`i Labor Relations Bd., 98 Hawaii 416, 423, 49 P.3d 382, 389 (2002) ) ......................................................... 17, 18 Rivera v. Dept. of Labor and Industrial Relations, 100 Hawaii 348, 350, 60 P.3d 298, 300 (2002) .............................................................. 19 Ruffin v. Dept. of Transportation, 428 N.E.2d 628, 732 (I11.App. 198 1) ............................................................................... 17 Sanders v. Point After, Inc., 2 Haw.App. 65, 73, 626 P.2d 193, 199 (1981) ...............................................................26 Setala v. J.C. Penney Co., 97 Hawaii 484, 487, 40 P.3d 886, 889 (2002) .......................................................... 15, 16 Tanaka v. Dept. of Hawaiian Home Lands, 106 Hawaii 246, 248, 103 P.3d 406, 408 (2004) ............................................................ 19 The City and County of Honolulu v. Caetano, 30 Haw. 1, 5 (1927) ........................................................................................................ 17 United States v. Solly, 545 F.2d 874, 876 (C.A.3, 1976) .................................................................................... 15 STATUTES Hawaii Revised Statutes Section91.................................................................................................................. 9, 11, 20, 23 Section91-10.............................................................................................................................. 8 Section91-10(5).................................................................................................................passim Section91-14(b).................................................................................................................. 14, 19 Section91-14(g)............................................................................................................ 12, 13, 20 iv G 0 RULES Hawaii Rules of the Circuit Courts Rule2.1 ..................................................................................................................................... 14 Hawaii Rules of Civil Procedure Rule5(b)(3) .............................................................................................................................. 14 Rule5(e) .................................................................................................................................... 14 Rule6(e) ............................................................................................................................. 14, 16 Rule60(a) ........................................................................................................................... 16, 17 Hawaii Rules of Appellate Procedure Rule4(a)(4)(B).......................................................................................................................... 19 OTHER Hawaii County Code 1983 (2005 edition, as amended) Chapter 23, Article 6, Division 2 ......................................................................................... 4, 29 Section23-15 ...................................................................................................................... 10, 23 Section23-18............................................................................................................ 1, 10, 24, 29 Section23-84.......................................................................................................... 2, 3, 4, 28, 29 Hawaii County Charter Section6-4.2.(h)........................................................................................................................ 24 Planning Department Rules of Practice and Procedure Rule22...............................................................................................................................passim Rule22-4............................................................................................................................passim Rule22-6............................................................................................................................... 3, 28 46 Am. Jur. 2d Judgments § 130 (November 2007) .................................................................... 17 v a i n �J NO. 29192 IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII CHRISTOPHER J. YUEN, PLANNING CIVIL NO. 07-1-261K DIRECTOR, COUNTY OF HAWAII, Appellant-Appellee APPEAL FROM FINAL JUDGMENT FILED HEREIN ON MAY 2, 2008 vs. BOARD OF APPEALS OF THE COUNTY OF HAWAII,VALTA COOK, in his capacity as Chairperson of the BOARD OF APPEALS OF THE COUNTY OF HAWAII, Appellees. and THIRD CIRCUIT COURT EDMUND JIN and EVA Y. LU, HONORABLE RONALD IBARRA, Appellees-Appellants. CIRCUIT COURT JUDGE APPELLANT-APPELLEE CHRISTOPHER J. YUEN, PLANNING DIRECTOR. COUNTY OF HAWAVI'S ANSWERING BRIEF COMES NOW, APPELLANT-APPELLEE CHRISTOPHER J. YUEN, PLANNING DIRECTOR, COUNTY OF HAWAII(hereinafter`Directof), by and through his undersigned counsel, hereby submits his Answering Brief as follows: I. STATEMENT OF THE CASE This is an appeal from the Circuit Court of the Third Circuit, Kona Division, which reversed the Board of Appeals of the County of Hawakis(hereinafter`Board) decision and order granting Water Variance application (VAR 06-101) and ordered Water Variance application (VAR 06-101) denied as of February 12, 2007, pursuant to Section 23-18 of the Hawaii County Code. (R:CV07-1-261K Doc. 021 at 916; Doc. 022 at 917-918.) r g 0 O A. The Water Variance Application Appellees-Appellants Edmund Jin and Eva Y. Lu (hereinafter"Appellants Jin and Lei) filed an application for a variance from the water supply requirements of Section 23-84 of the Hawaii County Code (Subdivision Codd)on December 21, 2006 at the Planning Department in Kona to enable the subdivision of their 35.90-acre property (hereinafter"the Property)into six lots: four 5-acre lots, one 6.5-acre lot, and one 7+-acre.lot to be served by private water catchment systems (hereinafter"Water Variancd). (R:CV07-1-261K Doc. 004 at 84.) By letter dated January 5, 2007, the Director acknowledged receipt of Appellants Jin and Lds Water Variance application and indicated that a decision would be rendered on or before February 19, 2007. (R:CV07-1-261K Doc. 004 at 116.) By memorandum dated January 29, 2007, the State of Hawaii Department of Health provided the following comments in response to the Director's request for agency review and comments regarding the Water Variance application: Recommend the subdivision lots be connected to an existing public water system. Concerns on water quality for lead, copper, algae and microbiological and chemical contaminations in private water systems have identified the need for self monitoring. The Department of Health does not support the use of these private rain catchment systems for drinking purposes since the quality may not meet potable water standards. (R:CV07-1-261K Doc. 004 at 143-144.) By letter dated February 12, 2007, the Director denied Appellants Jin and Luis Water Variance application, which provided the following statement of factual findings supporting his decision: INTENT AND PURPOSE-WATER VARIANCE Section 23-84 of the Subdivision Code requires that all new subdivisions have a water system meeting with the minimum requirements of the Department of Water Supply. The State Department of Health has no specific rules or 2 i r p' O regulations relating to the utilization, construction or inspection of private roof or rain catchment water systems for potable or emergency uses. The alternative to a water system proposed by the applicant`�rivate residential catchment systemg'by the individual lot owner(s) would not meet the intent and purpose of the Subdivision Code; and is not allowed pursuant to Planning Department Rule 22-Water Variance, effective February 25, 2006. Generally, Rule 22 is both a rule and statement of criteria to be used so that consistent decisions can be made on water variance requests. Section 23-84 of the Subdivision Code requires a water system, and Rule 22 limits subdivisions requesting a variance from water supply to six (6) lots, and, requires that a proposed subdivision(limited to 6 lots)requesting a variance to allow individual rainwater catchment systems for potable and emergency needs must receive a minimum 60 inches of annual rainfall for each lot served by catchment. Rule 22, states in part: `22-4 Minimum rainfall. Except as provided in Rule 22-6, all lots to be served by catchment shall [] have an average annual rainfall of not less than 60'. The annual rainfall can be proven by rainfall records at comparable rain gauges, or by the USGS rainfall map. Rule 22 allows the rainfall to be proved by either the USGS rainfall map or by rain gauge data. The analysis of the information and comparison of maps attached to the variance application and other rainfall maps and rainfall data at the Planning Department, etc. indicate that the entire subject TMK property is below the 60'isohyet line and does not receive 60 inches of rainfall annually. The elevation of the property begins at above 1280 feet and ends about 1760 feet. Although the very top of the property is near the 60'isohyet line, most of the proposed lots are much lower. In view of the applicanfs submittals, e.g. Exhibit(s) and other historical data published by the Hawaii State Climate Office (HSCO), it appears that the proposed subdivision is near active rain-gauge station 'OPMHALE 2" This rain gauge is situated approximately 1.2 miles +/- south of the TMK property near the Mamalahoa Highway. According to a 1996 U.S. Geological Survey publication, Opihihale No. 2's elevation or altitude is 1270 feet. The rain gauge data indicates that the actual rainfall at the subdivision is well under 60" Historical rainfall data published by HSCO for OPIHIHALE 2 show the mean average rainfall measured for the years 1956-2000 is 41.20 inches. ii The annual rainfall at the property and the property's boundary on Mamalahoa Highway or South Kona Belt Road is probably about 4r, Therefore, the proposed 6-lot subdivision does not receive minimum 60'annual rainfall and the applicanfs request to allow individual rainwater catchment systems for potable and emergency is not allowed or eligible pursuant to Rule 22-Water Variance which requires the proposed subdivision to receive minirnuir,60'ar mal rainfall. i 3 s 0 O I VARIANCE DECISION In view of the above, the proposed variance would not fulfill the intent of the Subdivision Code and does not meet with all the requirements or Rule 22-Water Variance. Therefore, the applicanfs variance application to allow proposed 6-lot subdivision without providing a water supply pursuant to Chapter 23, Subdivisions, Article 6, Division 2, Improvements Required, Section 23-84, Water Supply, (1)(2), or request to allow the proposed subdivision to be served by private catchment systems is denied. (R:CV07-1-261K Doc. 004 at 150-154.) Appellants Jin and Lds Water Variance application stated that the sixty inch rainfall (or isohyet) line utilized by the Planning Department in reviewing water variance applications is located approximately"50 feet maukd'of the boundary of the Property, evidencing that the Property does not meet the rainfall requirement of Rule 22. (R:CV07-1-261K Doc. 004 at 44, 86.) B. The Appeal to the Board of Appeals On March 14, 2007, Appellants Jin and Lu filed a timely appeal from the Director's decision denying the Water Variance application to the Board (BOA No. 07-000043) seeking reversal of the Director's decision and approval of the Water Variance application on the grounds that the Director's decision was arbitrary, capricious, an abuse of discretion, and violated law and that, among other things, the Planning Department Rule 22 was arbitrary, capricious, in excess of statutory authority, and made on unlawful procedure. (R:CV07-1-261K Doc. 004 at 40,43-48.) The Board heard the Appeal on July 13, 2007. (R:CV07-1-261K Doc. 004 at 483.) At the contested case hearing before the Board, Appellants Jin and Lu were not present but were represented by Roy A. Vitousek 111, Esquire, and the Director was not present but was represented by Amy G. Self, Deputy Corporation Counsel. (R:CV07-1-261K Doc. 004 at 483- 484; Doc. 21 at 901.) Appellants Jin and Lu had the burden of proof, including the burden of 4 C i producing evidence as well as the burden of persuasion pursuant to section 91-10(5) of the Hawaii Revised Statutes ( -IRS),to affirmatively show that the Director's decision was arbitrary, capricious, in excess of statutory authority, and made on unlawful procedure. (R:CV07-1-261K Doc. 004 at 703; Doc. 021 at 901, 908.) During the contested case hearing before the Board, while under cross examination, Appellants Jin and Lifs expert witness, Steve Bowles, testified to the following: (1) He does not know whether the Property receives an average annual rainfall of at least 60 inches or more per year. (2) Rainfall has declined in the past 20 years. (3) He authored a chapter in a report that states that as a result of this decline in rainfall in the past 20 years,"the total amount of rainfall is less than half due to drought conditions" (4) The rainfall at Ocean View has diminished over the years, particularly since 1983, and that it has resulted in an increase in reliance on water hauling. (5) The lack of adequate rainfall and the cost of hauling causes fire protection problems and other problems. (6)Periods of drought will require more water hauling that will be using the County water system. (7) He has conducted studies in South Kona for various clients, but he did not conduct a study for Appellants Jin and Lu to determine if there would be adequate rainfall for catchment. (R:CV07-1-261K Doc. 004 at 513-514, 516, 519; Doc. 021 at 901-902.) Notwithstanding the foregoing evidence, the Board voted to grant Appellants Jin and Lus Appeal on the basis: 1) that the Director was arbitrary and capricious in that he failed to consider other evidence regarding the amount of rainfall, and 2) that the Director's reliance on only the isohyet line and one rain gauge was arbitrary in that the Rule contemplates that there would be compliance on more than one rain gauge, and that the isohyet line was within a reasonable distance from Appellants Jin and Lds property. 5 C `D (R:CV07-1-261K Doc. 004 at 570, 573, 705; Doc. 21 at 901-902.) At the conclusion of the contested case hearing, the Board Chair requested Appellants Jin and Lu's counsel to submit proposed findings of fact, conclusions of law, and decision and order. (R:CV07-1-261K Doc. 004 at 573.) On August 30, 2007, Appellants Jin and Lifs counsel submitted Proposed Findings of Fact, Conclusions of Law, and Decision and Order Approving Variance application(VAR 06-101)to the Board and the Director. (R:CV07-1-261K Doc. 004 at 580.) On September 14, 2007, the Director submitted objections to the Proposed Findings of Fact, Conclusions of Law, and Decision and Order Approving Variance application (VAR 06- 101) to the Board and to Appellants Jin and Lu. (R:CV07-1-261 K Doc. 004 at 609.) The Director objected to the proposed Conclusions of Law(COL')in part because 1)there was no conclusion that Jin and Lu, as the appellants, had the burden of proof, including the burden of producing evidence as well as the burden of persuasion, and the degree or quantum of proof shall be by a preponderance of the evidence pursuant to HRS § 91-10(5); and 2)there was no conclusion that Rule 22 requires in part that all lots to be served by catchment shall have an average annual rainfall of not less than 60'and that the annual rainfall can be proven by rainfall records at comparable rain gauges, or by the USGS rainfall map. (R:CV07-1-261K Doc. 004 at 612.) At the Boards October 12, 2007 meeting, the Director objected to the revised proposed COL Nos. 6, 7 and 8 for the following reasons: (1) Proposed COL #6 is not an accurate statement of the burden of proof in that it implies that the Director had the burden to show that Appellants Jin and Lu did not meet the 60'of rain required under Rule 22. (2) Proposed COL #7 attacks the validity of Rule 22 itself in that it says the isohyet lines on the rainfall maps are not sufficiently specific or accurate to be used as a sole source of a regulatory standard and it goes beyond the Boards jurisdiction to opine as to the validity of the rule. 6 (3) Proposed COL #8 is also an inaccurate statement of the burden of proof as it indicates that the Director did not look at more than one rain gauge, but that is something that the applicant for the entitlement to the variance must show, not the Director. (R:CV07-1-261K Doc. 004 at 682-684.) During the October 12, 2007 meeting, the Board adopted Appellants Jin and Lds Revised Proposed Findings of Fact, Conclusions of Law and Decision and Order, with the deletion of proposed COL Nos. 6, 7, and 8 and the inclusion of COLs regarding burden of proof pursuant to HRS § 91-10(5) and Rule 22. (R:CV07-1-261K Doc. 004 at 686-687, 703-704.) C. The Appeal to the Circuit Court of the Third Circuit On November 23, 2007, the Director timely appealed the Boarcrs decision to the Circuit Court of the Third Circuit. (R:CV07-1-261K Doc. 001 at 1.) An Order Setting Briefing i Deadlines and Oral Argument was entered on December 10, 2007. (R:CV07-1-261K Doc. 005 at 707.) On December 27, 2007, Stuart H. Oda, Esquire, filed a Notice of Appearance of Counsel to appear as attorney for Appellants Jin and Lu in the matter before the Court. (R:CV07-1-261K Doc. 007 at 714.) 1. Appellants Jin and Lu's Motion to Dismiss Appeal On January 2, 2008, Appellants Jin and Lu filed a Motion to Dismiss Appeal for lack of jurisdiction on the ground that the Director's appeal to circuit court was not timely filed. (R:CV07-1-261K Doc. 008 at 717.) The Director filed a memorandum in opposition to Appellants Jin and Ltfs Motion To Dismiss on January 16, 2008. (R:CV07-1-261K Doc. 011 at 757.) The Board filed a statement of no opposition to Appellants Jin and Lds Motion To I Dismiss Appeal on January 16, 2008 and Appellants Jin and Lds Reply Memorandum was filed on January 18, 2008. (R:CV07-1-261 K Doc. 010 at 754; Doc. 012 at 800.) 7 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 0 0 (2)The Board's Conclusion of Law No. 6 exceeds the bounds of reason because it is unsupported by any clearly articulated Findings of Fact and it erroneously placed the burden on the Director to prove that the variance application did not meet the rainfall requirement of Rule 22. (R:CV07-1-261K Doc. 009 at 745-750.). Appellants Jin and Lds Answering Brief was timely filed with the Court on February 20, 2008, which presented the following arguments: I (1)Conclusion of Law No. 6 is valid and is supported by substantial evidence in the records. (2)The Board did not shift the burden of proof to the Director. (3)Rule 22-4 is invalid and unenforceable because the Director did not comply with the rule making procedures of Chapter 91, Hawaii Revised Statutes, when it deviated from the rule. (R:CV07-1-261K Doc. 014 at 810, 815-823.) The Boards Answering Brief was timely filed with the Court on February 25, 2008, which presented the following arguments: (1) Appellant did not properly preserve for appeal either of the issues presented. (2) The Board did not shift the burden of proof to the Director. (3) The Boards decision was not arbitrary and capricious, an abuse of discretion, or clearly erroneous due to the inclusion of Conclusion of Law No. 6 in the Boards Decision and Order. (R:CV07-1-261K Doc. 015 at 828, 837-842.) 3. Circuit Court's Reversal of the Board's Decision Oral arguments were heard by the Court on this matter on March 6, 2008, and on I April 14, 2008, the Court entered its Findings of Fact, Conclusions of Law and Decision and Order Reversing the Board of Appeals Decision and Order Dated October 18, 2007. I (R:CV07-1-261K Doc. 021 at 906, 896.) The Court entered final judgment in favor of the i 9 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 (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 rainfall records or any other evidence to show that they meet the rainfall requirement of Rule 22-4 when they submitted their Water Variance application for consideration by the Director; (2) Rule 22-4 provides methods for applicants to show that they meet the rainfall requirement provided in Rule 22-4, but it does not prohibit other methods of showing that they meet the rainfall requirement; and (3)while Appellants Jin and Lifs expert witness provided criteria for catchment systems in general, he did not provide evidence that the property meets the rainfall requirement provided in Rule 22-4. (R:CV07-1-261K Doc. 021 at 914.) D. The Appeal to Intermediate Court of Appeals On May 30, 2008, Appellants Jin and Lu filed a Notice of Appeal to appeal the Circuit Courts decision to the Intermediate Court of Appeals (2CA). (R:CV07-1-261K Doc. 024.) II. STANDARD OF REVIEW A. Motion to Dismiss Review of a decision made by the circuit court on a motion to dismiss is a matter of law and is reviewed de novo under the right/wrong standard of review. Bremner v. City & County of Honolulu, 96 Hawafi 134, 28 P.3d 350 (2001). B. Secondary Appeals `Review of a decision made by the circuit court upon its review of an agenc} s decision is a secondary appeal" Colony Surf, Ltd. v. Director of the Department of Planning and Permitting, 116 Hawaii 510, 514, 174 P.3d 349, 353 (2007) (citing Citizens Against Reckless Dev. v. Zoning Bd. of Appeals of City and County of Honolulu, 114 Hawaii 184, 193, 159 P.3d 143, 153 (2007)). The standard of review in a secondary appeal is``vhether the circuit court was right or wrong in its decision, applying the standards set forth in HRS § 91-14(g) (1993) to the agenc} s decision" See id. 12 0 o HRS § 91-14(g) enumerates the standards of review applicable to an agency appeal and provides: Upon review of the record the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions or orders are: (1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedure; or (4) Affected by other error of law; or (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion. HRS § 91-14(g). `Under HRS § 91-14(g), conclusions of law are reviewable under subsections (1), (2), and (4); questions regarding procedural defects under subsection(3); findings of fact under subsection(5); and an agenc�s exercise of discretion under subsection (6)" Citizens Against Reckless Dev. V. Zoning Bd. of Appeals of City and County of Honolulu, 114 Hawaii 184, 193, 159 P.3d 143, 152 (2007) (citations omitted). III. ARGUMENTS A. Motion to Dismiss Appeal was Properly Denied As discussed below, the circuit court properly denied the Motion to Dismiss Appeal for lack of jurisdiction and properly exercised its inherent power to correct the record to reflect the timely filing of the Notice of Appeal. As such,jurisdiction over the appeal remained with the Circuit Court. I 13 I 0 0 1. Applicable Statutes and Rules Section 91-14(b), HRS, provides that proceedings for judicial review of a final decision in a contested case must be instituted'fn the circuit court within thirty days after the preliminary ruling or within thirty days after service of the certified copy of the final decision and order of the agency pursuant to rule of court. . . :' Rule 5(b)(3), Hawaii Rules of Civil Procedure ('FRCP),states that"[s]ervice by mail is complete upon mailing" When service of the certified copy of the final decision and order of the agency is mailed to the parties, two additional days are added to the prescribed period (i.e., thirty-two days) within which to file an appeal in circuit court,pursuant to Rule 6(e), HRCP. Rule 2.1 of the Rules of the Circuit Courts of the State of Hawaii provides in pertinent part that: The respective clerks of the circuit courts shall be ex officio clerks of all the courts of record and as such may accept for filing complaints, notices of appeal and appellate briefs . . . in all such courts. Rule 5(e), HRCP, defines"filing with the court'as follows: (e)Filing with the court defined. The filing of pleadings and other papers with the court as required by these rules shall be made by filing them with the clerk of the court, except that the judge may permit the papers to be filed with him or her, in which event the judge shall note thereon the filing date and forthwith transmit them to the office of the clerk. Any other rule to the contrary notwithstanding, the clerk shall not refuse to accept for filing any paper presented for that purpose solely because it is not presented in proper form as required by these rules. 2. Notice of Appeal Was Filed Upon Receipt By the Clerk of Court Even If Not File-Stamped Until Two Days Later. While HRCP Rule 5(e) does not expressly define what constitutes actual filing of a notice on appeal and there is no Hawaii case directly on point, the general rule stated by the U. S. Supreme Court for civil appeals is that'Yeceipt of a notice of appeal by the clerk of the [ ] court suffices to meet the'filing requirement under [the rules] even though the notice has 14 not yet been formally 'filed' by the clerk of the court." Houston v. Lack, 487 U.S. 266, 273, 108 S.Ct. 2379, 2383 (1988) (citing Parissi v. Telechron, Inc., 349 U.S. 46, 47, 75 S.Ct. 577, 577, 99 L.Ed. 867 (1955)). The Hawaii Supreme Court, along with a large body of other courts, a has observed the general rule stated in Houston and Parissi. See Setala v. J.C. Penney Co., 97 Hawaii 484, 487, 40 P.3d 886, 889 (2002) (citing to Houston in observing that"receipt by the court clerk is required by the declared deadline"); Hatchell v. Heckler, 708 F.2d 578, 579 (C.A.11, 1983) (holding that notice of appeal is timely where received within the specified time period though not marked as filed until after the time period and upon payment of the filing fee);Aldabe v. Aldabe, 616 F.2d 1089, 1091 (C.A.9, 1980) (holding that notice of appeal is timely filed if received by the court within the applicable period specified in the rule, even if not formally file-stamped until after the applicable period); Haney v. Mizell Memorial Hospital, 744 F.2d 1467, 1472 (C.A.11, 1984) (holding that actual receipt of notice of appeal by court within period allowed by rule, even though not formally filed within that period, suffices to confer appellate jurisdiction); United States v. Solly, 545 F.2d 874, 876 (C.A.3, 1976) (holding that "'whenever a notice of appeal is filed in a district court, it is filed as of the time it is actually received in the clerk's office even though it is designated as filed by the clerk's office at a later date"). In the present matter,the following facts are undisputed: (1) The Board's decision and order was mailed to the parties on October 19, 2007 (R:CV07-1-261K Doc. 008 at 722; SR: CV07-1-261K T001 at 9); (2) The Notice of Appeal was received by the office of the clerk of the circuit court in Hilo on November 19, 2007 (R:CV07-1-261K Doc. 011 at 766, 797); i 15 1 C (3) The deadline for filing the Notice of Appeal, including two additional days for mailing, pursuant to Rule 6(e), HRCP, was November 21, 2007 (R:CV07-1-261K Doc. 008 at 722; SR: CV07-1-261K T001 at 9); and . (4) The Notice of Appeal was not file-stamped by the office of the clerk of the circuit court until four days after receipt by the clerk of the circuit court on November 23, 2007, (R:CV07-1-261K Doc. 008 at 722; SR: CV07-1-261K T001 at 9). Applying the general rule stated in Houston, and observed by the Hawaii Supreme Court in Setala, to the foregoing facts,the Notice of Appeal was timely filed on November 19, 2007 when it was received by the office of the clerk of the circuit court, which was two days prior to the date it was actually due. Although the Circuit Court was hesitant to make such a determination, the Circuit Court did unequivocally find that the Notice of Appeal was timely filed because the clerk had two days prior to the expiration of the deadline to file-stamp the Notice of Appeal and did not do so until November 23, 2007. (SR: CV07-1-261K T001 at 20.) The court considered the Director's right to appeal and the time under which the Notice of Appeal was provided to the clerles office and determined that but for the"omission or unintended act of the Courts clerk;'the Notice of Appeal would have been"clearly valid" (SR: CV07-1-261K T001 at 20.) Because the Circuit Court found that the Notice of Appeal was timely filed, it properly dismissed Appellants Jin and Lds Motion to Dismiss Appeal. 3. The Circuit Court Properly Exercised Its Inherent Power to Correct The Record to Reflect the Timely Filing of the Notice of Appeal Rule 60(a), HRCP, allows the court to correct clerical errors, which provides in pertinent part that: Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. 16 1 C The errors envisioned by Rule 60(a) cover such things as'inisprisons, oversights and omissions, unintended acts or failures to act" Pattiz v. Schwartz, 386 F.2d 300, 302 (C.A.Mo. 1968) (concluding that"the omission and failure to have the amended complaint formally entered on the clerks docket (when that amended complaint had been accepted by the court and had lain in the file in the clerks possession continuously since 1962)was, despite the clerk's lack of awareness thereof, a mistake on the part of the clerk)(citation omitted).Z See also Ruffin v. Dept. of Transportation, 428 N.E.2d 628, 732 (III.App. 1981) (concluding that`ho one has authority to file documents as of any other date than that on which they are received'where it was evident from the record that plaintiffs attorney caused the complaint to be delivered to the clerk's office, along with the appropriate fees, on the date it was due, but the clerk delayed file stamping the document until a check for the proper amount of the sheriffs fees was received). Moreover, the court has an inherent power to make an entry nunc pro tunc in order to correct its records at any time so that they speak the truth. See DuPonte v. DuPonte, 53 Haw. 123, 488 P.2d 537 (1971). See also The City and County of Honolulu v. Caetano, 30 Haw. 1, 5 (1927) (finding that"[c]lerical misprisons can be corrected at any time by an order of the court. . . '). See also 46 Am. Jur. 2d Judgments § 130 (November 2007) (Nunc pro tunc is merely descriptive of the inherent power of the court to make its records speak the truth, to record that which was actually done, but omitted to be recorded'). A`nunc pro tunc order relates back to the original date of the matter it affects'' Keahole Defense Coalition, Inc. v. Bd. of Land and Natural Resources, 110 Hawaii 419, 430, 134 P.3d 585, 596 (2006) (quoting Poe v. Hawaii Labor Relations Bd., 98 Hawa'i'i 416, 423, ''Although this case involves Rule 60(a)of the Federal Rules of Civil Procedure,the language of the federal rule and Rule 60(a)of the Hawaii Rules of Civil Procedure is verbatim. 17 49 P.3d 382, 389 (2002). The term'Swnc pro tunc signifies or means'now for then'or that a thing is done now that shall have the same legal force and effect as if done at the time it ought to have been done" Id. The doctrine applies'lw]here through no fault of the complaining party some act which the court must perform is not done at the time it ought to be done,the court, in the interest of justice, may and should presently do or perform that act as of the date it should have been done" Id. (citing Makainai v. Lalakea, 24 Haw. 518, 522 (1918)). "The order nunc pro tunc may be supported by the judge's notes, court files, or other entries of record'or it may be based upon"other evidence, oral or written, which is sufficient to satisfy the court that the order is required to make the record reflect the truth" Fisher v. Minor, 66 N.W.2d 557, 560 (Neb. 1954). In the case at hand, the circuit court found that but for the"omission or unintended act'by the court's clerk not file-stamping the Notice of Appeal within two days of receiving it, the Notice of Appeal would have been timely filed. (SR: CV07-1-261K T001 at 20.) Because of the omission of the court's clerk, the circuit court exercised it inherent power to correct the record to show that the Notice of Appeal was timely filed. (SR: CV07-1-261K T001 at 20.) Such action was supported by the courts files containing the Notice of Appeal reflecting the date it was received by the clerk as November 19, 2007 and the file-stamp date of November 23, 2007. (R:CV07-1-261K Doc. 011 at 766, 797.) Therefore, the circuit court properly exercised its inherent power to correct the record to show that the Notice of Appeal was timely filed. Although Appellants Jin and Lu do not dispute that the deadline for filing the Notice of Appeal in Circuit Court was November 21, 2007, they still contend that even though the Notice of Appeal was received by the clerks office on November 19, 2007, it was not filed within the November 21, 2007 deadline because it was not actually file-stamped by the clerk until November 23, 2007. The cases cited by Appellants Jin and Lu to support such a contention 18 T C C� are distinguishable from the case at hand because the appellants in those cases did not file their appeals until after the deadline for doing so had already passed. For example, the appellant in Korean Buddhist Dae Won Sa Temple of Hawai .Inc. v. Zoning Board of Appeals, 9 Haw. App. 298, 305, 837 P.2d 311, 314 (1992) and the appellant in Rivera v. Dept. ofLahor and Industrial Relations, 100 Hawaii 348, 350, 60 P.3d 298, 300 (2002) waited until two days after the expiration of the deadline to file their appeals. Likewise, the appellant in Tanaka v. Dept. of Hawaiian Home Lands, 106 Hawaii 246, 248, 103 P.3d 406, 408 (2004) waited until sixteen months after the expiration of the deadline to file his appeal. Unlike the appellants in the cases cited by Appellants Jin and Lu,the Director filed the Notice of Appeal as it was physically submitted to the office of the clerk of the court in the Circuit Court of the Third Circuit within the deadline provided in Section 91-14(b), HRS, which is supported by evidence in the record. (R:CV07-1-261K Doc. 011 at 766, 797.) But for a delay by the office of clerk of the court, the Notice of Appeal would have been stamped"Filed'on November 19, 2007, rather than on November 23, 2007, or at the very least on November 21, 2007. Appellants Jin and Lu suffered no prejudice as a result of the delay in file stamping the document as service of the Notice of Appeal was prompt and proper. Therefore, in the interest of justice, the Circuit Court properly exercised its inherent power by entering an order nunc pro tunc to correct the coures record to reflect the timely filing of the Notice of Appeal and thereby retained jurisdiction over the appeal. 4. Appellants Jin and Lu's Argument that"Excusable Neglect Does Not Apply" is Misplaced Appellants Jin and Lu argue at length in their Opening Brief at 12-15 as to why Rule 4(a)(4)(B), Hawaii Rules of Appellate Procedure, cannot be used to justify any excusable neglect for the Director to obtain an extension of time for filing the Notice of Appeal. This argument is 19 both misplaced and superfluous because the Director neither requested an extension of time nor did he need an extension of time within which to file the Notice of Appeal. The Director maintains that the Notice of Appeal was received by the office of the clerk of the Circuit Court on November 19, 2007 (R:CV07-1-261K Doc. 011 at 766, 797), and therefore, the Notice of Appeal was timely filed for the reasons stated herein above. B. The Circuit Court Correctly Concluded That Planning Department Rule 22-4 is Valid and Enforceable and the County Planners Did Not Change the Standards For Approving A Water Variance in Violation Of Chapter 91, HRS Appellants Jin and Lu contend that Rule 22-4 is invalid and unenforceable and that the Circuit Court erred in entering COL Nos. 13 and 15 because (1) the Planning Department employees used standards that deviated from Rule 22-4 to measure rainfall amounts in violation of Chapter 91, HRS, and (2)the single rain gauge and isohyet line used by County planners were inadequate and/or unreliable measurement devices that resulted in an invalid rainfall reading under accepted hydrological standards, making Rule 22-4 unenforceable. As discussed below, the circuit court was correct in its decision, applying the standards set forth in HRS § 91-14(g) (1993)to the Boards decision. 1. The Circuit Court Did Not Err In Entering Conclusion of Law No. 13 The Circuit Court concluded in its Conclusion of Law(COL)No. 13 that: Based on the foregoing, 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. (R:CV07-1-261K Doc. 021 at 914.) The Circuit Court correctly concluded this in response to Appellants Jin and Lds argument that Rule 22-4 is invalid and unenforceable because the Director departed from Rule 22-4 in contravention of the rule-making procedures of Chapter 91, HRS, by using methods of 20 measuring rainfall other than what is provided for in Rule 22-4. Appellants Jin and Leis argument was based on the following excerpts from the testimony of Daryn Arai, an employee of the Planning Department, as provided in their Opening Brief at 16-17: 1) Only a single rain gauge was used to measure rainfall averages when the rule called for comparable rain gauges. (R:CV07-1-261K Doc. 004 at 541). 2) No USGS rainfall map was used either since they did not possess such a map (R:CV07-1-261 K Doc. 004 at 541). The rule called for use of a USGS rainfall [map] as an alternate form of measurement. 3) The department also used what has been referred to as an isohyet line, (a line on a map or chart connecting areas of equal rainfall)to determine how much rainfall the subject property received. [ ] The isohyet line running north-south dividing the two rainfall areas was relied upon to determine whether the subject property received 60 inches of annual rainfall or not. If the subject property was left or makai of the line, it resulted in a denial of the water variance since it assumed the property received only 50 to 60 inches of rainfall. If the property was to the right. or mauka of the line, the variance would be approved since it was presumed that the property received 60 to 80 inches of annual rainfall (R:CV07-1-261K Doc. 004 at 536). Isohyet lines as rainfall measurements are not part of Rule 22-4 either. 4) Finally, the department's witness stated that they consider only long-term rainfall records as well, something not part of Rule 22-4 either(R:CV07- 1-261 K Doc. 004 at 555). However, based on the record, the Circuit Court correctly found that excerpts 1 through 3 above were mentioned in Appellants Jin and Lds Revised Proposed COL Nos. 6, 7, and 8 (R:CV07-1-261K Doc. 004 at 686-687), which were specifically deleted by the Board for the following reasons: Revised Proposed COL No. 6 was deleted by the Board because it found as follows: `[It] is refuted by the precise language of Rule 22-4 which says that the annual rainfall can be proven by rainfall record at comparable rain gauges or by the USGS rainfall map. It doesn't say [the Director] will utilize a USGS rainfall map" (R:CV07-1-261 K Doc. 004 at 686.) 21 } b \ 1 Revised Proposed COL No. 7 (R:CV07-1-261K Doc. 004 at 686) was deleted by the Board because it found that there was no FOF or COL indicating`that the isohyet lines are not sufficiently specific or accurate to be used as a sole source of a regulatory standard" (R:CV07-1-261K Doc. 004 at 686.) Revised Proposed COL No. 8 (R:CV07-1-261K Doc. 004 at 686) was deleted by the Board because of the reference to comparable rain gauges requires that other rain gauges besides the one used also be comparable. The Board found that"[i]t is quite possible that the Director finds that this is the only comparable rain gauge" (R:CV07-1-261K Doc. 004 at 686.) Excerpt 4 above, was never considered by the Board in its FOF, COL and Decision and Order and was not the basis for the Director's decision denying the Water Variance application. (R:CV07-1-261K Doc. 004 at 555, 686, 688-706.) Furthermore, Jin and Lu failed to provide any rainfall records or any other evidence to show that they meet the rainfall requirement of Rule 22-4 when they submitted their Water Variance application for consideration by the Director. (R:CV07-1-261K Doc. 004 at 84-90.) Rule 22-4 provides methods for applicants to show that they meet the rainfall requirement provided in Rule 22-4,but it does not prohibit other methods of showing that they meet the rainfall requirement. (SR:CV07-1-261K T001 at 47.) While Jin and Lifs expert witness provided criteria for catchment systems in general, he did not provide evidence that the Property meets the rainfall requirement provided in Rule 22-4. (R:CV07-1- 261K Doc. 004 at 513-514, 516, 519; Doc. 021 at 901-902.) Based on the foregoing, the Circuit Courfs COL No. 13 is supported by evidence in the record. Therefore, the Circuit Court did not err in concluding in its COL No. 13 that Rule 22-4 is valid and enforceable and the Director did not depart from Rule 22-4 in contravention of the 22 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 a 4. Jin and Lds Water Variance application stated that the sixty inch rainfall (or isohyet) line utilized by the Planning Department in reviewing water variance applications is located approximately'50 feet maukd'of the boundary of the Property, evidencing that the Property does not meet the rainfall requirement of Rule 22. (R:CV07-1-261K Doc. 004 at 44 and 86.) 5. The Planning Director has jurisdiction to render a decision on Water Variance applications pursuant to Section 6-4.2.(h) of the Hawaii County Charter and Section 23-18 of the Subdivision Code. (R:CV07-1-261K Doc. 004 at 703.) 6. The Director provided a statement of factual findings supporting his decision denying Appellants Jin and Lds Water Variance application as he is required to do under Section 23-18 of the Subdivsion Code. (R:CV07-1-261K Doc. 004 at 150-154.) The Director considered information provided in the Water Variance application, USGS rainfall data, and rain data from the active rain-gauge station OPIHIHALE 2 and determined that the actual rainfall at the proposed subdivision is well under sixty inches, which he fully explained in his denial letter to Appellants Jin and Lu. (R:CV07-1-261K Doc. 004 at 150-154.) In doing so, the Director complied with Section 23-18 of the Subdivision Code in denying Appellants Jin and Lifs Water Variance application. 7. During the contested case hearing before the Board, while under cross examination, Appellants Jin and Lifs expert witness, Steve Bowles, testified to the following: (1) He does not know whether the Property receives an average annual rainfall of at least 60 inches or more per year. (R:CV07-1-261K Doc. 004 at 513.) (2) Rainfall has declined in the past 20 years. (R:CV07-1-261K Doc. 004 at 513.) (3) He authored a chapter in a report(Exhibit 23) that states that as a result of this decline in rainfall in the past 20 years,`the total amount of rainfall is less than half due to drought conditions" (R:CV07-1-261K Doc. 004 at 513.) 24 (4) The rainfall at Ocean View has diminished over the years, particularly since 1983, and that it has resulted in an increase in reliance on water hauling. (RCV07-1-261K Doc. 004 at 514.) 8. At 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 section 91-10(5), HRS, to affirmatively show that the Director's decision was arbitrary, capricious, an abuse of discretion, and violated law and that, among other things, that Rule 22 was arbitrary, capricious, in excess of statutory authority, and made on unlawful procedure. (R:CV07-1-261K Doc. 004 at 703.) Based on the foregoing, the Circuit Court correctly concluded that Appellants Jin and Lu failed to meet their 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, and therefore, the Board's COL No. 6 was unsupported by substantial evidence in the records and is thus clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record. 3. Appellants Jin and Lu's Argument That Reliable Rainfall Data Was Not And Could Not Be Obtained From A Single Rainfall Gauge And Isohyet Line And Supporting Evidence Was Not Raised and Properly Preserved In the Lower Court and Therefore Cannot Be Reviewed On Appeal Appellants Jin and Lu raise for the first time on appeal the argument that"reliable data was not and could not be obtained from a single rainfall gauge and isohyet line" Appellants Jin and Lds Opening Brief at 21-23. Because Appellants Jin and Lds argument raises an issue which was not raised and properly preserved in the Circuit Court, it cannot now be considered by this Court. See Kawamoto v. Yasutake, 49 Haw. 24, 45, 410 P.2d 976, 978 (1966) (1t]his court will not consider a question which was not raised and properly preserved in the lower court) 25 (citations and internal quotation marks omitted); Orso v. City and County of Honolulu, 55 Haw. 37, 38, 514 P.2d 859, 860 (1973) ("[m]atters not appearing in the record will not be considered by the court of appeals") (citations omitted). In addition, Appellants Jin and Lu rely on evidence that is not in the record to support their argument. An appellate court "can only consider those materials in the record that were considered by the trial court in its determination" of the matter. Munoz v. Yuen, 66 Haw. 603, 606, 670 P.2d 825, 827 (1983). See also Orso, 55 Haw. at 38, 514 P.2d at 860 ("we must review the circuit court judgment upon the evidence contained in the record, not upon matters outside of the record which were improperly presented to this court"); Sanders v. Point After, Inc., 2 Haw.App. 65, 73, 626 P.2d 193, 199 (1981) ("[t]his court cannot consider matters that are not a part of the record") (citations omitted). Therefore, the Court should not consider Appellants Jin and Lu's argument that"reliable data was not and could not be obtained from a single rainfall gauge and isohyet line." C. The Circuit Court Did Not Err When It Concluded That Appellants An and Lu's Property Does Not Receive Sixty Inches Or More Rainfall Annually Appellants Jin and Lu's argument that their property receives sixty inches or more rainfall annually is unsupported by the evidence in the record. Based on the whole record,the Circuit Court concluded the following: COL No. 4 states in part: 4. There is no evidence in the record that Jin and Lu's property receives an average annual rainfall of not less than sixty inches as required by Rule 22. (R:CV07-1-261K Doc. 021 at 908.) COL No. 6. states: Based on the foregoing, Jin and Lu failed to meet their 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. 26 (R:CV07-1-261K Doc. 021 at 909.) The Circuit Courfs COL Nos. 4 and 6 are supported by the following findings in the record: I 1. Jin and Lds Water Variance application stated that the sixty inch rainfall (or isohyet)line utilized by the Planning Department in reviewing water variance applications is located approximately`50 feet maukd'of the boundary of the Property, evidencing that the Property does not meet the rainfall requirement of Rule 22. (R:CV07-1-261K Doc. 004 at 44 and 86.) 2. During the contested case hearing before the Board, while under cross examination, Appellants Jin and Lds expert witness, Steve Bowles, testified to the following: (1) He does not know whether the Property receives an average annual rainfall of at least 60 inches or more per year. (R:CV07-1-261K Doc. 004 at 513.) (2) Rainfall has declined in the past 20 years. (R:CV07-1-261K Doc. 004 at 513.) (3) He authored a chapter in a report [ ] that states that as a result of this decline in rainfall in the past 20 years,"the total amount of rainfall is less than half due to drought conditions" (R:CV07-1-261K Doc. 004 at 513.) (4) The rainfall at Ocean View has diminished over the years, particularly since 1983, and that it has resulted in an increase in reliance on water hauling. (R:CV07-1-261K Doc. 004 at 514.) (5) He has conducted studies in South Kona for various clients, but he did not conduct a study for Appellants Jin and Lu to determine if there would be adequate rainfall for,catchment. (R:CV07-1-261K Doc. 004 at 519.) 3. By letter dated February 12, 2007, the Director denied Appellants Jin and Lds Water Variance application, which provided the following statement of factual findings supporting his decision: 27 INTENT AND PURPOSE-WATER VARIANCE ' Section 23-84 of the Subdivision Code requires that all new subdivisions have a water system meeting with the minimum requirements of the Department of Water Supply. The State Department of Health has no specific rules or regulations relating to the utilization, construction or inspection of private roof or rain catchment water systems for potable or emergency uses. The alternative to a water system proposed by the applicant`�rivate residential catchment systems'by the individual lot owner(s) would not meet the intent and purpose of the Subdivision Code; and is not allowed pursuant to Planning Department Rule 22-Water Variance, effective February 25, 2006. Generally, Rule 22 is both a rule and statement of criteria to be used so that consistent decisions can be made on water variance requests. Section 23-84 of the Subdivision Code requires a water system, and Rule 22 limits subdivisions requesting a variance from water supply to six (6) lots, and, requires that a proposed subdivision(limited to 6 lots) requesting a variance to allow individual rainwater catchment systems for potable and emergency needs must receive a minimum 60 inches of annual rainfall for each lot served by catchment. Rule 22, states in part: `22-4 Minimum rainfall. Except as provided in Rule 22-6, all lots to be served by catchment shall [] have an average annual rainfall of not less than 60'. The annual rainfall can be proven by rainfall records at comparable rain gauges, or by the USGS rainfall map. Rule 22 allows the rainfall to be proved by either the USGS rainfall map or by rain gauge data. The analysis of the information and comparison of maps attached to the variance application and other rainfall maps and rainfall data at the Planning Department, etc. indicate that the entire subject TMK property is below the 60'isohyet line and does not receive 60 inches of rainfall annually. The elevation of the property begins at above 1280 feet and ends about 1760 feet. Although the very top of the property is near the 60'isohyet line, most of the proposed lots are much lower. In view of the applicants submittals, e.g. Exhibit(s) and other historical data published by the Hawaii State Climate Office (HSCO), it appears that the proposed subdivision is near active rain-gauge station 40PIHIHALE 2" This rain gauge is situated approximately 1.2 miles +/- south of the TMK property near the Mamalahoa Highway. According to a 1996 U.S. Geological Survey publication, Opihihale No. 2's elevation or altitude is 1270 feet. The rain gauge data indicates that the actual rainfall at the subdivision is well under 60" Historical rainfall data published by HSCO for OPIHIHALE 2 show the mean average rainfall measured for the years 1956-2000 is 41.20 inches. 28 The annual rainfall at the property and the property's boundary on Mamalahoa Highway or South Kona Belt Road is probably about 4 P'. Therefore, the proposed 6-lot subdivision does not receive minimum 60'annual rainfall and the applicanfs request to allow individual rainwater catchment systems for potable and emergency is not allowed or eligible pursuant to Rule 22-Water Variance which requires the proposed subdivision to receive minimum 60'annual rainfall. VARIANCE DECISION In view of the above, the proposed variance would not fulfill the intent of the Subdivision Code and does not meet with all the requirements or Rule 22-Water Variance. Therefore, the applicanfs variance application to allow proposed 6-lot subdivision without providing a water supply pursuant to Chapter 23, Subdivisions, Article 6, Division 2, Improvements Required, Section 23-84, Water Supply, (1)(2), or request to allow the proposed subdivision to be served by private catchment systems is denied. 4. The Director provided a statement of factual findings supporting his decision denying Jin and Lds Water Variance application as he is required to do under Section 23-18 of the Subdivision Code. (R:CV07-1-261K Doc. 004 at 150-154.) The Director considered information provided in the Water Variance application, USGS rainfall data, and rain data from the active rain-gauge station OPIHIHALE 2 and determined that the actual rainfall at the proposed subdivision is well under sixty inches, which he fully explained in his denial letter to Appellants Jin and Lu. (R:CV07-1-261K Doc. 004 at 150-154.) In doing so, the Director complied with Section 23-18 of the Subdivision Code in denying Appellants Jin and Lifs Water Variance application. Based on the foregoing findings, the Circuit Court correctly concluded that there is no evidence in the record that Appellants Jin and Ltfs property receives an average annual rainfall of not less than sixty inches as required by Rule 22 and therefore, Appellants Jin and Lu failed to meet their burden of proof pursuant to section 91-10(5), HRS,to show that the Director's decision was arbitrary, capricious, an abuse of discretion and/or violated law. 29 IV. RELEVANT STATUTORY, CODE AND RULE PROVISIONS Relevant parts of the statutes, code and rules are provided verbatim in Appendix"A" V. CONCLUSION Based on the foregoing, the Director respectfully requests that this Court.strike Appellants Jin and Lds argument and supporting evidence that`Yeliable rainfall data was not and could not be obtained from a single rainfall gauge and isohyet lind'and affirm the May 1, 2008 Circuit Court of the Third Circuifs Final Judgment resolving all claims against all the parties, including the Circuit Courfs Order Denying Appellants Jin and Lds Motion to Dismiss Appeal filed on March 7, 2008. Dated: Hilo, Hawaii, October 6, 2008. CHRISTOPHER J. YUEN, PLANNING DIRECTOR, COUNTY OF HAWAI=I �f B r Y -- AMY G, S LF Deputy Corporation Counsel His Attorney 30 a C HAWAI`I RULES OF CIVIL PROCEDURE APPENDIX "A" HAWAIJ RULES OF CIVIL PROCEDURE Adopted and Promulgated by the Supreme Court of the State of Hawaii As amended April 7, 1980 Effective April 7, 1980 With Amendments as Noted The Judiciary State of Hawaii Rule 4 HAWAII RULES OF CIVIL PROCEDURE then as provided by order ofthe court,and(B)unless made under the circumstances and in the manner the court otherwise orders, also to the incompetent prescribed by the statute or order. person. (f) Territorial limits of effective service. All (3) Upon a domestic or foreign corporation or process may be served anywhere within the State upon a partnership or other unincorporated and,when a statute or order so provides,beyond the association which is subject to suit under a common limits of the State. name, by delivering a copy of the summons and of (g) Return.The person servingthe process shall the complaint to an officer, a managing or general make proof of service thereof to the court promptly agent, or to any other agent authorized by and in any event within the time during which the appointment or by law to receive service of process person served must respond toprocess.When service and, if the agent is one authorized by statute to is made by any person specially appointed by the receive service and the statute so requires, by also court, that person shall make affidavit of such mailing a copy to the defendant. service. (4) Upon the State by delivering a copy of the (h) Amendment. At any time in its discretion summons and of the complaint to the attorney and upon such terms as it deems just,the court may general of the State or to the assistant attorney allow any process or proof of service thereof to be general or to any deputy attorney general who has amended unless it clearly appears that material been appointed by the attorney general. prejudice would result to the substantial rights of the (5) Upon an officer or agency of the State by party against whom the process issued. serving the State and by delivering a copy of the (Amended May 15, 1972, effective July 1, 1972; summons and,of the complaint to such officer or further amended September 14, 1993, effective agency. If the agency is a corporation, the copies September 14, 1993,-further amended May 12, 1995, shall be delivered as provided in paragraph(3)of this effective June 1, 1995;further amended December 7, subdivision of this rule. 1999, effective January 1, 2000;finrther amended (6) Upon a county,as provided by statute or the April 25, 2003, effective July 1, 2003.) county charter, or by delivering a copy of the summons and of the complaint to the corporation Rule5. SERVICE AND FILING OF PLEAD- counsel or county attorney or any of his or her INGS AND OTHER PAPERS. deputies. (a) Service: When required. Every order (7) Upon an officer or agency of a county, by required by its terms to be served, every pleading serving the county and by delivering a copy of the subsequent to the original complaint unless the court summons and of the complaint to such officer or otherwise orders because of numerous defendants, agency. If the agency is a corporation the copies shall every paper relating to discovery required to be be delivered as provided in paragraph (3) of this served upon a party unless the court otherwise subdivision of this rule. orders, every written motion other than one which (8) Upon a defendant of any class referred to in may be heard ex parte, and every written notice, paragraph(1)or(3)of this subdivision of this rule,it appearance, demand, brief or memorandum of law, is also sufficient if the summons and complaint are offer of judgment,bill of costs,designation of record served in the manner prescribed by any statute. on appeal, and similar paper shall be served upon (e) Same:Other service.Whenever a statute or each of the parties, but no service need be made on an order of court provides for service upon a party parties in default for failure to appear, except that not an inhabitant of or found within the State, of a pleadings asserting new or additional claims for summons, or of a notice, or of an order in lieu of relief against them shall be served upon them in the summons, service shall be made under the manner provided for service of summons in Rule 4. circumstances and in the manner prescribed by the (b) Same: How made. Whenever under these statute or order. Whenever a statute or an order of rules service is required or permitted to be made court requires or permits service by publication of upon a party represented by an attorney the service summons, or of a notice, or of an order in lieu of shall be made upon the attorney unless service upon summons,any publication pursuant thereto shall be the party is ordered by the court. HRCP--2 (Release:06/04) HAWAII RULES OF CIVIL PROCEDURE Rule 5 (1) Service upon the attorney or upon a party (d) Filing.Except as provided in subdivision(f) shall be made(a)by delivering a copy to the attorney of this rule,all papers after the complaint required to or party; or(b)by mailing it to the attorney or party be served upon a party,together with a certificate of at the attorney's or party's last known address; or(c) service, shall be tiled with the court either before if no address is known,by leavingit with the clerk of service or within a reasonable time after service. All the court;or(d) if service is to be upon the attorney, documents filed with the court shall be previously or by facsimile transmission to the attorney's business contemporaneously served on all parties to the facsimile receiver. action,except as permitted in subdivision(a)above. (2) Delivery of a copy within this rule means: (e) Filing with the court defined.The filing of handing it to the attorney or to the party; or leaving pleadings and other papers with the court as required it at the attorney's or party's office with a clerk or by these rules shall be made by filing them with the other person in charge thereof,or, if there is no one clerk of the court, except that the judge may permit in charge, leaving it in a conspicuous place therein; the papers to be filed with him or her,in which event or, if the office is closed or the person to be served the judge shall note thereon the filing date and has no office, leaving it at the person's dwelling forthwith transmit them to the office of the clerk. house or usual place of abode with some person of Any other rule to the contrary notwithstanding, the suitable age and discretion then residing therein. clerk shall not refuse to accept for tiling any paper Facsimile transmission means transmission and presented for that purpose solely because it is not receipt of the entire document without error with a presented in proper form as required by these rules. cover sheet which states the attorney(s)to whom it is Proposed findings,conclusions,orders,or judgments directed, the case name and court case number, and submitted for signature shall be dated and stamped the title and number of pages of the document. "lodged"or "received" by the clerk and transmitted (3) Service by mail is complete upon mailing. to the court for consideration. Service by facsimile transmission is complete upon (f) Nonfiling of discovery materials. A receipt of the entire document by the intended deposition, interrogatory, request for discovery recipient and between the hours of 8:00 a.m. and production or inspection, request for documents, 5:00 p.m. on a court day. Service by facsimile request for admissions, and answers and responses transmission that occurs after 5:00 p.m. shall be thereto shall not be filed automatically with the deemed to have occurred on the next court day. court;provided that on a motion or at trial any such (4) Service by facsimile transmission shall be document shall be filed when offered in evidence or confirmed by a certificate of service which declares submitted as an exhibit;and further provided that a that service was accomplished by facsimile deposition taken outside this state or a deposition transmission to a specific phone number, on a taken by an officer who is discontinuing the specific date, at a specific time. occupation of taking depositions shall be promptly (c) Same:Numerous defendants.In any action filed pursuant to Rule 30(f)(1).In addition the court in which there are unusually large numbers of may at any time, on ex parte request or sua sponte, defendants, the court, upon motion or of its own order the filing of any discovery material. initiative, may order that service of the pleadings of (Amended May 15, 1972, effectAv July 1, 1972; the defendants and replies thereto need not be made further amended March 16, 1984, partly effective as between the defendants and that any cross-claim, March 16, 1984;frdly effective May 1, 1984;further counterclaim, or matter constituting an avoidance or amended June 23, 1997 and July 2, 1997, effective affirmative defense contained therein shall be August 1, 1997;fru-theramended December 7, 1999, deemed to be denied or avoided by all other parties effective January 1, 2000.) and that the filing of any such pleading and service thereof upon the plaintiff constitutes due notice of it to the parties. A copy of every such order shall be served upon the parties in such manner and form as the court directs. i (Release:06/04) HRCP-3 C n Rule 6 HAWAII RULES OF CIVIL PROCEDURE Rule 6. TIMES. prescribed period after the service of a notice or (a) Computation. In computing any period of other paper upon him and the notice or paper is time prescribed or allowed by these rules,by orderof served upon him by mail,2 days shall be addedto the court,or by any applicable statute,the day of the act, prescribed period. event,or default after which the designated period of (Amended May 15, 1972, effective July 1, 1972, time begins to run shall not be included.The last day f iirther amended June 29, 1973, effective July 2, of the period so computed shall be included unless it 1973,further amended June 22, 1983, effective July is a Saturday,a Sunday or holiday, in which event 1, 1983,further amended April 23, 1985, effective the period runs until the end of the next day which is April 23, 1985; jUrther amended July 26, 1990, i not a Saturday, a Sunday or a holiday. When the effective September 1, 1990; fiirther amended period of time prescribed or allowed is less than 7 September 11, 1996, effective January 1, 1997; days, intermediate Saturdays, Sundays and holidays further amended May 15, 1997, effective June 2, shall be excluded in the computation.As used in this 1997;further amended December 7, 1999, effective rule, "holiday" includes any day designated as such January 1, 2000.) pursuant to section 8-1 of the Hawai'i Revised Statutes. (b) Enlargement. When by these rules or by a III. PLEADINGS AND MOTIONS notice given thereunder or by order of court an act is required or allowed to be done at or within a Rule 7. PLEADINGS ALLOWED; FORM specified time,the court for cause shown may at any OF MOTIONS. time in its discretion (1) with or without motion or (a) Pleadings.There shall be a complaint and an notice order the period enlarged if request therefor is answer; a reply to a counterclaim denominated as made before the expiration of the period originally such; an answer to a cross-claim, if the answer prescribed or as extended by a previous order or(2) contains a cross-claim; a third-party complaint, if a upon motion made after the expiration of the person who was not an original party is summoned specified period permit the act to be done where the under the provisions of Rule 14; and a third-party failure to act was the result of excusable neglect;but answer,if a third-party complaint is served.No other it may not extend the time for taking any action pleading shall be allowed,except that the court may under Rules 50(b)52(b), 59(b),(d)and(e)and 60(b) order a reply to an answer or a third-party answer. I of these rules and Rule 4(a)of the Hawai'i Rules of (b) Motions and other papers. Appellate Procedure, except to the extent and under (1) An application to the court for an order shall the conditions stated in them. be by motion which,unless made during a hearing or (c) Deleted. trial, shall be made in writing, shall state with (d) For motions; affidavits. A written motion, particularity the grounds therefor,and shall set forth other than one that may be heard ex parte,and notice the relief or order sought.The requirement of writing of the hearing thereof, shall be served not less than is fulfilled if the motion is stated in a written notice 18 days before the date fixed for the hearing, unless of the hearing of the motion. a different period is fixed by these rules or by order (2) The rules applicable to captions,signing,and of the court. Such an order may for cause shown be other matters of form of pleadings apply to all made on ex pane application. When a motion is motions and other papers provided for by these rules. supported by affidavit, the affidavit shall be served (3) All motions shall be signed in accordance with the motion; and, except as otherwise provided with Rule 11. in Rule 59(c),opposing affidavits may be served not (c) Demurrers, pleas, etc., abolished. less than 8 days before the date set for the hearing, Demurrers,pleas,and exceptions for insufficiency of unless the court permits them to be served at some a pleading shall not be used. other time. (Amended May 15, 1972, effective July 1, 1972; (e) Additional time after service by mail f urther amended December 7, 1999, effective Whenever a party has the right or is required to do January 1, 2000.) some act or take some proceedings within a HRCP-4 (Release:06/04) HAWAII RULES OF CIVIL PROCEDURE Rule 60 law or make new findings and conclusions, and discovered in time to move for a new trial under Rule direct the entry of a new judgment. 59(b); (3) fraud (whether heretofore denominated (b) Time for motion. A motion for a new trial intrinsic or extrinsic), misrepresentation, or other shall be filed no later than 10 days after entry of the misconduct of an adverse party; (4)the judgment is judgment. void;(5)the judgment has been satisfied,released,or (c) Time for serving affidavits.When a motion discharged, or a prior judgment upon which it is for new trial is based on affidavits,they shall be filed based has been reversed or otherwise vacated,or it is with the motion. The opposing party has 10 days no longer equitable that the judgment should have after service to file opposing affidavits, but that prospective application; or (6) any other reason period may be extended for up to 20 days, either by justifying relief from the operation of the judgment. the court for good cause or by the parties' written The motion shall be made within a reasonable time, stipulation. The court may permit reply affidavits. and for reasons (1), (2), and(3) not more than one (d) On court's initiative; notice; specifying year after the judgment, order, or proceeding was grounds. No later than 10 days after entry of entered or taken.A motion under this subdivision(b) judgment the court,on its own,may order a new trial does not affect the finality of a judgment or suspend for any reason that would justify granting one on a its operation.This rule does not limit the power of a party's motion.After giving the parties notice and an court to entertain an independent action to relieve a opportunity to be heard,the court may grant a timely party from a j udgment,order,or proceeding,or to set motion for a new trial, for a reason not stated in the aside a judgment for fraud upon the court. Writs of motion. When granting a new trial on its own coram nobis,coram vobis,audita querela,and bills of initiative or for a reason not stated in a motion, the review and bills in the nature of a bill of review, are court shall specify the grounds in its order. abolished,and the procedure for obtaining any relief (e) Motion to alter or amend judgment. Any from a judgment shall be by motion as prescribed in motion to alter or amend a judgment shall be filed no these rules or by an independent action. later than 10 days after entry of the judgment. (Amended December 7, 1999, effective January (Amended May 15, 1972, effective July 1, 1972; 1, 2000;further amended May 30, 2006, effective further amended December 7, 1999, effective July 1, 2006.) January 1, 2000) Rule 60. RELIEF FROM JUDGMENT OR ORDER. (a) Clerical mistakes. Clerical mistakes in judgments, orders or other parts of the record and errors therein arising from oversight or omission may be corrected by the court at any time of its own initiative or on the motion of any party and after such notice, if any, as the court orders. During the pendency of an appeal, such mistakes may be so corrected before the appeal is docketed, and thereafter while the appeal is pending may be so corrected with leave of the appellate court. (b) Mistakes;inadvertence;excusable neglect; newly discovered evidence; fraud,etc. On motion and upon such terms as are j ust,the court may relieve a party or a party's legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been (Release: 06/06) HRCP--45 O RULES OF THE CIRCUIT COURTS OF THE STATE OF HAWAII RULES OF THE CIRCUIT COURTS OF THE STATE OF HAWAII Adopted and Promulgated by the Supreme Court of the State of Hawaii As adopted February 11, 1971 With Amendments as Noted The Judiciary State of Hawaii 4 C RULES OF THE CIRCUIT COURTS Rule 2.2 RULES OF THE CIRCUIT COURTS original summons to the clerk. OF THE STATE OF HAWAII (2) SERVICE AND FILING OF INTERROGATORIES AND OTHER DISCOVERY PAPERS. The filing of Rule 1. CLASSIFICATION O F interrogatories and other discovery papers shall be PROCEEDINGS. governed by Rule 5 of the Hawaii Rules of Civil All proceedings shall be divided into classes, Procedure or Hawaii Family Court Rules. A party viz.: CIVIL; CRIMINAL; CONSERVATORSHIP; seeking admissions or answers to interrogatories CONSERVATORSHIP-GUARDIANSHIP;SMALL shall serve two copies of the request for admissions CON S E R V A T O R S H I P; PROBATE; or interrogatories upon the party from whom the GUARDIANSHIP; SMALL ESTATE; SMALL admissions or answers are sought. GUARDIANSHIP; TRUST; SPECIAL (e) Wills. In domiciliary probate cases, the PROCEEDINGS; MECHANIC'S AND original and a certified copy of the will shall be filed, MATERIALMAN'S LIEN;AND FAiMILY COURT. together with the initial petition. Proceedings in mandamus, habeas corpus, quo (f) Place of riling. Pleadings and papers for j warranto,prohibition and any other proceedings not filing shall be presented to the Office of the Clerk specifically included herein shall be classified under except as otherwise directed by the court. The clerk special proceedings. shall furnish certified copies of all papers filed if so (:Amended May 31, 2005,effective July 1, 2005.) requested at the time of filing. (Amended March 6, 1980, effective March 6, Rule 2. FILING PROCEDURE. 1980, further amended March 16, 1984, partly (a) Classification. Upon the filing of the initial effective March 16, 1984, fully effiective May 1, pleading or other papers, and before the issuance of 1984.) process,the clerk shall classify and assign a number to such proceeding. All subsequent pleadings and Rule 2.1. EX OFFICIO FILING. papers to be filed shall bear the number assigned to The respective clerks of the circuit courts shall the initial papers, which shall appear on the first be ex officio clerks of all the courts of record and as page. such may accept for filing complaints, notices of (b) Stamp by clerk. The clerk shall promptly appeal and appellate briefs and may issue summons stamp the time and date upon all papers filed. returnable in all such courts. (c) Docket entry and filing. Upon the tiling of (Added July 26, 1990, effective September 1, any papers, an appropriate entry shall be made in a 1990.) docket sheet kept for each case. Each case shall be filed separately and its file shall contain an index Rule 2.2. COSTS AND FEES TO BE sheet identifying particularly each paper in such file COLLECTED BY THE CLERK. and stating the date of filing. The clerk shall collect costs and fees provided by (d) Service of pleadings and other papers. Chapter 607 of the Hawaii Revised Statutes except (1) FILING:ORIGINAL KEPT ON FILE;COPIES FOR that the clerk shall collect the amounts specified SERVICE.Subject to subsection(2)of this subsection herein as follows: (d),pertaining to interrogatories and other discovery 1. For copies of any document in any public papers, when a pleading or other paper requiring record maintained by the clerk: service is presented for tiling, the original shall be a. in the clerk's office: accompanied with a sufficient number of copies for I. S 1.00 for the first page service. The original shall be kept on file by the ii. S.50 for each additional page clerk,provided,however,the original summons may b. in an off-site storage location: be withdrawn by the serving officer. Service may be 55.00 plus usual copying charge made with the certified copy or copies of the papers together with the certified copy or copies of the summons,and the serving officer shall make proof of service to the court promptly by returning the (Release: 12105) RCCH--1 L o m O \J HAWAII REVISED STATUTES § 91-10 �+ 4 CI §91-10 Rules of evidence; official notice. -' In contested cases : (1) Except as provided in section 91-8 . 5, any oral or documentary evidence may be received, but every agency shall as a matter of policy provide for the exclusion of irrelevant, Immaterial, or unduly repetitious evidence and no sanction shall be imposed or rule or order be issued except upon consideration of the whole record or such portions thereof as may be cited by any party and as supported by and in accordance with the reliable, probative, and substantial evidence. The agencies shall give effect to the rules of privilege recognized by law; (2 ) Documentary evidence may be received in the form of copies or excerpts, if the original is not readily available; provided that upon request parties shall be given an opportunity to compare the copy with the original; ( 3) Every party shall have the right to conduct such cross- examination as may be required for a full and true disclosure of the facts, and shall have the right to submit rebuttal evidence; (4 ) Agencies may take notice of judicially recognizable facts . In addition, they may take notice of generally recognized technical or scientific facts within their specialized knowledge; but parties shall be notified either before or during the hearing, or by reference in preliminary reports j or otherwise, of the material so noticed, and they shall be afforded an opportunity to contest the facts so noticed; and (5) Except as otherwise provided by law, the party initiating the proceeding shall have the burden of proof, including the burden of producing evidence as well as the burden of persuasion. The degree or quantum of proof shall be a preponderance of the evidence. [L 1961, c 103, §10; Supp, §6C-10; HRS §91-10; am L 1978, c 76, §1; am L 2003, c 76, §31 I http://www.capitol.hawaii.gov/hrscurrent/Vo]02 Ch0046-0115/HRS0091/HRS 0091-001... 101212008 L G p O HAWAII REVISED STATUTES § 91-14 F §91-14 Judicial review of contested cases . (a) Any person aggrieved by a final decision and order in a contested case or by a preliminary ruling of the nature that deferral of review pending entry of a subsequent final decision would deprive appellant of adequate relief is entitled to judicial review thereof under this chapter; but nothing in this section shall be deemed to prevent resort to other means of review, redress, relief, or trial de novo, including the right of trial by jury, provided by law. Notwithstanding any other provision of this chapter to the contrary, for the purposes of this section, the term "person aggrieved" shall include an agency that is a party to a contested case proceeding before that agency or another agency. (b) [2004 amendment repealed June 30, 2010. L 2006, c 94, §1 . ] Except as otherwise provided herein, proceedings for review shall be instituted in the circuit court within thirty days after the preliminary ruling or within thirty days after service of the certified copy of the final decision and order of the agency pursuant to rule of court, except where a statute provides for a direct appeal to the intermediate appellate court, subject to chapter 602 . In such cases, the appeal shall be treated in the same manner as an appeal from the circuit court to the intermediate appellate court, including payment of the fee prescribed by section 607-5 for filing the notice of appeal (except in cases appealed under sections 11-51 and 40-91) . The court in its discretion may permit other interested persons to intervene . (c) The proceedings for review shall not stay enforcement of the agency decisions or the confirmation of any fine as a judgment pursuant to section 92-17 (g) ; but the reviewing court may order a stay if the following criteria have been met: ° ( 1) There is likelihood that the subject person will prevail on the merits of an appeal from the administrative proceeding to the court; (2) Irreparable damage to the subject person will result if a stay is not ordered; ( 3) No irreparable damage to the public will result from the stay order; and (4 ) Public interest will be served by the stay order. (d) Within twenty days after the determination of the contents of the record on appeal in the manner provided by the rules of court, or within such further time as the court may allow, the agency shall transmit to the reviewing court the record of the proceeding under review. The court may require or permit subsequent corrections or additions to the record when deemed desirable. (e) If, before the date set for hearing, application is made to the court for leave to present additional evidence material to the issue in the case, and it is shown to the satisfaction of the court that the additional evidence is material and that there, were good reasons for failure to present it in the proceeding before the agency, the court may order that the additional evidence be taken before the actencv upon such conditions as the court deems proper. http://www.capitol.hawaii._,ov/hrscurrent/Vo102_Ch0046-0115/HRS009I/FIRS_0091-001... 10/2/2008 C j The agency may modify its findings, decision, and order by reason of the additional evidence and shall file with the reviewing court, to become a part of the record, the additional evidence, together with any modifications or new findings or decision. ( f) The review shall be conducted by the appropriate court without a jury and shall be confined to the record, except that in the cases where a trial de novo, including trial by jury, is provided by law and also in cases of alleged irregularities in procedure before the agency not shown in the record, testimony thereon may be taken in court . The court shall, upon request by any party, hear oral arguments and receive written briefs . (g) Upon review of the record the court may affirm the decision of the agency or remand the case with instructions for further proceedings; or it may reverse or modify the decision and order if the substantial rights of the petitioners may have been prejudiced because the administrative findings, conclusions, decisions, or orders are: ( 1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or ( 3) Made upon unlawful procedure; or ( 4 ) Affected by other error of law; or ( 5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or ( 6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion. (h) Upon a trial de novo, including a trial by jury as provided by law, the court shall transmit to the agency its decision and order with instructions to comply with the order. [L 1961, c 103, §14 ; Supp, §6C-14 ; HRS §91-14 ; am L 1973, c 31, §5; am L 1974, c 145, §1; am L 1979, c 111, §9; am L 1980, c 130, §2; am L 1983, c 160, §1; am L 1986, c 274, §1; am L 1993, c 115, §1; am L 2004, c 202, §8 ] http://tivck-xv.capito1.hawai1.gov//hrscurrent/Vo102 Ch0046-011i/[TWA nW/uRC woi-nni tintIJI)nn4 o o CHARTER COUNTY OF HAWAII 2000 (2006 EDITION) Charter ��of k,�w, 4•• i�; r •;i • • • • r 040 tr�TE�ort COUNTY OF HAWAII 2000 (2006 Edition) Section 6-3.4. Pension Board. There shall be a pension board consisting of five members who shall be appointed by the mayor and confirmed by the council in the manner prescribed in section 13-4. The pension board shall assume the duties and functions of the pension board of the county and the board of trustees of the policeman, firemen, and bandsmen as provided by law and shall be attached to the department of finance. The county clerk and the director of finance shall ex-officio be the secretary and treasurer, respectively, of the pension board. (Ed. note: Amended Gen. Elec. 1980, moved and renumbered pursuant to 2000 Charter Amend. 2) CHAPTER 4 PLANNING DEPARTMENT (Ed. notes: 1) This chapter was previously Article V, Chapter 4. 2000 Ballot Question 7, relating to Department Head Qualifications,proposed "stronger qualifications"for five department heads and the managing director. Section 2 of the full text of the amendment prepared by the Charter Commission, in displaying the second sentence of Section 5-4.2(as it existed prior to the 2000 amendment) inadvertently omitted language added by the voters in 1998 to the effect that the planning director is "the chief planning officer of the county." it was retained in this edition. 2) This chapter originally included a section 5-4.4, entitled, "Board of Appeals, "which was moved in 1980 and became section 5-6 3. Pursuant to 2000 Charter Amend 2 it has been renumbered as section 6-10.2.) Section 6-4.1. Organization. There shall be a planning department consisting of a planning director, a planning commission and the necessary staff. (Ed. note: Amended Gen. Elec. 1980, moved and renumbered pursuant to 2000 Charter Amend. 2) Section 6-4.2. Planning Director. The planning director shall be appointed by the mayor, confirmed by the council and may be removed by the mayor. The planning director shall have had a minimum of five years'training and experience in a responsible planning position, or a degree in planning, engineering, architecture, geography or another planning-related field and three years' experience in a responsible planning position. No less than three years' experience shall have been in an administrative capacity. The director shall be the chief planning officer of the county and the administrative head of the department and shall: (a) Advise the mayor, planning commission and council on all planning and land use matters. (b) Prepare a general plan, implementation plans and any amendments thereto in accordance with section 3-15. (c) Prepare proposed zoning and subdivision ordinances, zoning maps and regulations and any amendments thereto. (d) Review the lists of proposed capital improvements contemplated by agencies of the county and recommend the order of their priority. (e) Administer the subdivision and zoning ordinances and regulations adopted thereunder. (t) Render decisions on proposed subdivision plans pursuant to law. 17 0 C, (g) Make recommendations on rezoning applications, special exceptions and other similar requests. (h) Render decisions on proposed variances pursuant to law, except that, if any written objections are made to the planning director's actions under this section, said actions shall be subject to review by the board of appeals in accordance with section [6-10.2], unless otherwise provided by law or this charter. 0) Perform such other related duties and functions as may be necessary or required pursuant to law and this charter. (Ed. notes: 1)Section amended Gen. Elec. 1980, 1998 and 2000 Charter Amend. 7; moved and renumbered pursuant to 2000 Charter Amend 2, and 2)Paragraph(h)amended Gen. Elec. 1998, cross-reference changed to reflect renumbering of section 5-6.3.pursuant to 2000 Charter,Amend. 2) Section 6-4.3. Planning Commission. The planning commission shall consist of nine members, one from each council district, who shall be appointed by the mayor and confirmed by the council in the manner prescribed in section 13-4. Each member shall be a legal resident and registered voter of the district which the member represents. In addition, the director of public works and the manager of the department of water supply, or their designated representatives, shall serve as ex-officio members of the commission without power to vote. The commission shall establish its rules of procedure and shall: (a) Advise the mayor, council and the planning director on planning and land use matters pursuant to law and this charter. (b) Review the general plan, its amendments and other plans and modifications thereof and transmit such plans with recommendations thereon through the mayor to the council for consideration and action. (c) Review proposed subdivision and zoning ordinances and amendments thereto and transmit such ordinances with recommendations thereon through the mayor to the council for consideration and action. (d) Conduct public hearings in every case prior to action on any matter upon which the commission is required by law or this charter to act. Notice of the time and place of the hearing shall be published at least ten days prior to such hearing in at least two daily newspapers of general circulation in the county. Perform such other related duties and functions as may be necessary or required pursuant to law and this charter. (Ed note: Amended Gen. Elec. 1980, 1990, 1998 and 2000 Charter.1 mend. 7; moved and remembered pursuant to 2000 Charter Amend. 2) Intentionally left blank. 18 a o O O THE HAWAI I COUN TY CO DE 1983 (2005 EDITION, AS AMENDED) Y C 0 - THE HAWAII COUNTY CODE 1983 (2005 Edition, as amended) Updated to include:° Supvlement 8 (1-2008 = Contains.ordinances.effective through: 12-31-07 -cV OF see be* 1 t �_ _— •�� ,TE*O�•M�'� A CODIFICATION OF THE GENERAL ORDINANCES OF THE COUNTY OF HAWAII STATE OF HAWAII Office of the County Clerk County of Hawaii 25 Aupuni Street Hilo, Hawaii 96720 (808) 961-8255 Volume 2 SUBDIVISIONS §23-15 Section 23-15. Grounds for variances. No variance will be granted unless it is found that: (a) There are special or unusual circumstances applying to the subject real property which exist either to a degree which deprives the owner or applicant of substantial property rights that would otherwise be available or to a degree which obviously interferes with the best use or manner of development of that property; and (b) There are no other reasonable alternatives that would resolve the difficulty; and (c) The variance will be consistent with the general purpose of the district, the intent and purpose of this chapter, and the County general plan and will not be materially detrimental to the public welfare or cause substantial, adverse impact to an area's character or to adjoining properties. (1982, Ord.No. 763, sec. 2.) Section 23-16. Applications for variances. Application for a variance shall be on a form prescribed for this purpose by the director and shall be accompanied by: (a) A tiling fee of$100; (b) A description of the property in sufficient detail to determine the precise location of the property involved; (c) A plot plan of the property,drawn to scale,with all proposed structures shown thereon; (d) A list of the names and addresses of all owners and all others with property interests in property within three hundred feet of the perimeter boundary of the applicant's property; and (e) Any other plans or information required by the director. (1982, Ord.No. 763, sec. 3.) Section 23-17. Procedures for variances. (a) Notice to Owners of Property Interests. Upon receipt and acceptance of a properly filed and completed application,the department shall fix a date for the director's consideration of the application. Within three working days after receiving notice of such date, the applicant shall serve notice of the application on owners of interests in properties within three hundred feet of the perimeter boundary of the applicant's property and to owners of interests in other properties which the director may find to be directly affected by the variance sought. Such notice shall state: (1) The name of the applicant; (2) The precise location of the property involved; (3) The nature of the use sought and the proposed accompanying structures, if any; (4) The date on which the director will consider the application; and (5) That such date is the deadline for the director's actual receipt of written comments on the application. Prior to the deadline for written comment, the applicant shall submit to the director proof of service or of good faith efforts to serve notice of the application on the designated property owners. Such proof may consist of certified mail, receipts, affidavits, or the like. (b) Notice by Publication. At least ten calendar days prior to the date of the director's consideration of the application, the director shall publish, in a newspaper of general circulation, notice of the application and the date by which written comments must be in the actual receipt of the director. 23-5 SUPP. 1 (1-2006) c ID 23-17 HAWAII COUNTY CODE (c) Notice by Posting of Signs. Within ten days of filing the application for a variance, the applicant shall post a sign on the subject property notifying the public of the nature of the variance, the proposed number of lots, the size of the property, the tax map key or keys of the property and that they may contact the planning department for additional information. The sign shall give the address and telephone number of the planning department. (1) The sign shall remain posted until final approval, or until the application has been rejected or withdrawn. The applicant shall remove the sign promptly after such action. (2) Notwithstanding any other provisions of law, the sign shall be not less than nine square feet and not more than twelve square feet in area, with letters not less than one inch high. No pictures, drawings, or promotional materials shall be permitted on the sign. The sign shall be posted at or near the property boundary adjacent to a public road bordering the property and shall be readable from said public road. If more than one public road borders the property the applicant shall post the sign to be visible from the more heavily traveled public road. The sign shall, in all other respects, be in compliance with chapter 3, Hawai'i County Code 1983 (2005 edition). (3) The applicant shall file an affidavit with the planning department not more than five days after posting the sign stating that a sign has been posted in compliance with this section, and that the applicant and its agents will not remove the sign until the application has been approved, rejected or withdrawn. The affidavit shall be accompanied by a photograph of the sign in place. (1982, Ord.No. 763, sec.4; Am. 2005, Ord. No. 05-135, sec. 3.) Section 23-18. Actions on variances. The director shall, within sixty days after the filing of a proper application or within a longer period as may be agreed to by the applicant, deny the application or approve it subject to conditions. The conditions imposed by the director shall bear a reasonable relationship to the variance granted. All actions shall contain a statement of the factual findings supporting the decision. If the director fails to act within the prescribed period, the application shall be considered as having been denied. Such denial is appealable pursuant to section 23-20* of this division. (1982, Ord. No. 763, sec. 5.) * Editor's Note:Section 23-20 has been reserved. General provisions regarding appeals are set forth in section 23-5. Section 23-19. Reserved. (1982, Ord.No. 763, sec. 6; Am. 1999, Ord. No. 99-111, sec 3.) Section 23-20. Reserved. (1982, Ord.No. 763, sec. 7; Am. 1984, Ord.No. 84-5,sec. 1; Am. 1999, Ord. No. 99-111,sec 4.) Section 23-21. Reserved. (1982, Ord. No. 763, sec. 8; Am. 1984, Ord.No. 84-5, sec. 2; Am. 1999, Ord. No. 99-111, sec. 5.) Intentionally left blank. SUPP. ' (1-2006) 23-5.i e C SUBDIVISIONS §23-82 (1) If the subdivider fails to complete: (A) The required improvements within the time specified; and (B) Any additional conditions imposed for the granting of an extension to complete the required improvements and additional conditions with the extended time period; (2) If the subdivider fails to timely complete or abandons the subdivision prior to final approval;or (3) If the agreement is terminated for any of the grounds stated in the agreement; the department of public works and when appropriate, the department of water supply may complete the improvements and recover the full cost and expense thereof from the subdivider. (1975 C.C., c. 9, art. 2, sec. 7.03; Am.2001, Ord. No. 01-108, sec. 1.) Section 23-83. Bond. (a) The agreement as specified in section 23-82 shall be secured by a good and sufficient surety bond (other than personal surety), certified check or other security acceptable to the director and approved by the corporation counsel; in the sum equal to the cost of all the work required to be done by the subdivider as estimated by the director of public works and the manager, if the subdivision is within the scope of the department of water supply requirements. The surety bond shall be payable to the County and when appropriate to the department of water supply. The bond shall be conditioned upon the faithful performance of any and.all work required to be done by the subdivider. (b) The security shall be filed with the director and deposited with the County treasurer as a realization in whole or part for the completion of work, or correction of any defective or improper work called for in the original plan. (1975 C.C., c. 9, art. 2, sec. 7.04; Am. 2001, Ord. No. 01-108, sec. 1.) Division 2. Improvements Required. Section 23-84. Water supply. A subdivision to be laid out after December 21, 1966 shall be provided with water as follows: (1) A water system meeting the minimum requirements of the County department of water supply; and (2) Water mains and fire hydrants installed to and within the subdivision in accordance with the rules and regulations of the department of water supply, adopted in conformity with article VIII of the Charter. (1975 C.C.,c. 9, art. 2, sec. 5.01.) Section 23-85. Sewage disposal systems. (a) In a subdivision to be laid out after December 21, 1966 sewer lines shall be installed where the subdivision is within three hundred lineal feet of the existing sewer system. These lines shall conform to the minimum requirements of the department of public works. (b) In subdivisions where sewer connections cannot be made to an existing sewer system under the requirements of this chapter, the subdivider shall meet the minimum requirements of the State health department relating to sewage disposal. (1975 C.C.,c. 9, art. 2, sec. 5.02.) Section 23-86. Requirements for dedicable streets. (a) The subdivider shall grade, drain, and surface all streets constructed after December 21, 1966 as shown on his plat, except reserved dedication for future street purposes, so as to provide access for vehicular traffic to each lot of the subdivision. (b) A street shall be constructed in accordance with the specifications in this section and those on file with the department of public works. A street shall be installed under the supervision of the director of public works and to permanent grades approved by him. '13-21 O O COUNTY OF HAWAII PLANNING DEPARTMENT'S RULES OF PRACTICE AND PROCEDURE PLANNING DEPART IFrNT COL NL Y Or F i:X'.A l l ANclENDMEITrS TO THE COG'NTY OF HAWAII PI,AN NLING D EPA RTNfEN F'S R(if.ES OF ?RikCTICE AND PROCEDURE, TAT PI.ANN NG I)TRECfOR OF THE COUNTY OF HAWM ADOPTS TKE FOLLGWM AbtENDMENt'S TO THE PLANING DEPARTMENT'S RUl_.FS OF PRACTICE AND PROCEDURE SECE"101441. The County of Hatwad Planning Dcpartment's Rules of?mAice and Procedure is amcndyi by indudiug the following Rule 22 relating to Water Variance. "HULL 22. WATER VARIANCE 22-1 Purpose aml Authority. `ac purpose of kiiis rata is to provide criteria for tl=granting or&nial of van races front six.23.84 of the Subdivisiurt Code;which roquires a water systmn rnecting with the requirmmcnts or the DepwIrn"d of WUer SaRly(UWS). It applies to rcqucsts far subdivisions that Irr01xs50 to rt;ly on LIM catcfM1c tl for their wain su1sPIY, an ngriudturally-ioned property. it does not apply to subdivisions that propose to rely art privatie,Ton-catchment water systcnts that do not meet DWS standards. This rule provides tuorc specific criteria to supplement Hawaii County Code(KC.C)sce.23-15, and is authorized tender Hawaii County C.Urter,sec.6-4.2(c)and(c). 'no variance =aquest trust also med the gtxtcral requirements of ti.C.C- sec.23-15. 22-2 fiiuting9. The Plwning l7irc0vr finds that it is in the public inters;sl to establish criteria for vruiences from the waw supply requirernerrts for subdivisions to use catchmart as tiu:s`r water source. *1*6c Subdivision Code has required a public water system since t 967,;tnd the Ckncrd Plan has contairrod a stantlard that water systems inert the re quiremcuts of (fie Dep.artrrent of Water Supply and the Subdivision (mete. Ncverthetm, many variances for catchment have been granted over the years. Such va iarxe requests have nary issues in coma-A-t that should be hatt<lled consistmify. ne water supply rcqutrcmcnt exists to ensure that new lots, which ultitwitcly may include harries, liavc ;a te water for drinking and Fite protection. The Deparunent of Heatth cautions that cW- -ruiut systcrtu have h©d problems with microbial contamination, and with (cochittg orn etals from roofing materials. In w me =as,dissatisf Ltiun with wchatent Systems 3 ns led to requests that public furls vc spent for wells. Public fonds are currently u:,ed to l ruvide water from roadside spigots,mostly because of subdivisions eat citchmmt. (n tow rainfall areas especially,calchnicnt systems ntay run out of wMer 2nd owners may 4vo to resort to trucking water, Oa the other hand, .atchini-lyt vlTiarccs allow property owners a way to subdividc pyoperty when there is no public water systmi in the vicUrity, and when it would b�:prohibaivcly axpcosive to constmot s private water 3,-�icrn. A' tic farniily:status of the su°adiviucr cannot be:a fort: at consideration in a vuricuira ppticati�in, a]low�itig snmll,numbers.of lots to be created with w�atcr Va6ances facitilatcs transfer of prepWy to family!members. Mote arc st:Wi ceded to a nnuch lover dcnally a nd to largc lot_sizcs.:-4�o€etc of the i oncem over the tack of water for firo protcclion is roduced. When a subdivision involves largo tnu tabcrs of lots,however, the subdivide&hould put in a water±ystere because it is possib'c to gprezd the cost. TLC Plana ng Director fii ds 11i4t this rule m!arding variances is necessary to unsure that :ubdivisious created with cats huicnt water are not niVetially detrimental to the public wclfarc and do itot c aisc substantial adverse impact to an area's character or to adjoining pmpcttics. 22-3 Eligibility_ No property shall be granted a'viriance fmin sec.23-$4 to alrlow subdivision using catchniettt if them is a public walet System un tlas vicinity of the property, with available capacity.or if the Department of Water Supply has definite plan$to extend the public water system or increase the capacity in a way that will allow subdi vision of the propwy with c4Nnty water,or if it was the subject of a rezoning ordbianc,e thaa requires a wager syltei x 22-4 Minimum rainfall. Except as providtd in Rute 22-6, aff loll to be served by catchment shalt have an av=go annual rainfall of not less than 64". Vie aiminat rainfall can beprovent by rainfall records at comparable taia gauges.or by the USGS rainfall map. 22-5 Maximtua Number of Lou. Except as pioviided in Rule 22-6, no more thew six lots shell be allowed in a catchment subdivision, 22-6 Fxceplicns r(w Uvge f4t.Subdivisiorn. Exceptions to the minirnum rainfall rcquirctnctnt and the maximum number of lots(tip to in absolute ruaximiain of twenty lots)may be gtantud if the subdivision results in tots averaging at least twenty acres in size and averaging at least four themes the Olinunum lot sirx a]towed by i_onitip. 22.7 `14 Funccr Subdivisiciv by Watcr Variance Allowed. Thcm shall be no ;Further varimice from the water supply requircnie nts to allow later subdivision of lots in a�ubdivisioit c:catLA rrith a variance under this mile- T!!e,:eels to all Rich lots shatl irnclwic a covMant running with the feud acknowledging that the lot is suitable for the owner or 6,raatec`s deeds in its present condition sand prohibiting,fiuihel, subdivision of the tot by varimcc finam tliewatcr System rNuireincnts. 2 _7 `2-8 •tlatr-, Tanks Rcq trrcd. Any dwcllino on a tat in it subdivision cT"led with a variance under Lh s rule Shall]lave a watkxr tatik with at least 6000 capacity,and a separate taiik tos fire fighting pitrposCS with at least 3t'r1 O gallons capitc:ity. Both [an;c$shall Irc supplied by drainage ft-out the a1wolling's roof or cquivalcat catchment area. This mquircmcnt;hall be car,[ained in a covenant running with tttc land. J�U[aport 1'or l'uEUn i��[G°Y�CCi pro Y°CYtti�3tS�?K�I1�rCC1 All lots in a subdivision created by a vstionce antler this rule shall contain a requirerrma tPtat if an itnprovcment district is propmW for a public water;}+stem that*,ould;erne the E wperty, the owner will suppcxrt tkro in3pmveMP-Td district, acid if water from a public systcin Nx-cans available to the property, the owner will p;rrdla5a a connection to:he ;ystern. This rcc tdNmcat shall be contained in a covenant running with The land," SEC TIUN 2. In the cvcut that tiny portion of this rule is declave4 invalid,such invalidity 'Stial I not affect_other patty of the m1c. SECTION 3, This rule shall take of oct tTon its approval. MANNING DEPARTMENT VPROVED: _ FEB ) 5 �QQ6 C13R) OPHER J )EN Date IJARRY Date_ planning DirGCtor Mayor D? IC OF PUBUC HrIARt. C3S: Novembcr 29, 1405(Kilo), and November 3t1,2005 (Kona) APPROVED AS TO FORM AMT)I.FGALfI'Y: �'1�-~_"�.• AFC 2 t �OQ� LINCOLN ASHIDA Corporation Coun-scl I hem-by certify that.be ;riregoing rube was rcceived and filed in illy ufrice this 15th day of z gyre ZQt15,. C or,st.7nco R. K1,1u, Cot ty Ctct'k 3 CL NO. 29192 IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAH CHRISTOPHER J. YUEN, PLANNING CIVIL NO. 07-1-261K DIRECTOR, COUNTY OF HAWAI=I, Appellant-Appellee APPEAL FROM FINAL JUDGMENT FILED HEREIN ON MAY 2, 2008 vs. BOARD OF APPEALS OF THE COUNTY OF HAWAI=I,VALTA COOK, in his capacity as Chairperson of the BOARD OF APPEALS OF THE COUNTY OF HAWAN, Appellees. and THIRD CIRCUIT COURT EDMUND JIN and EVA Y. LU, HONORABLE RONALD IBARRA, Appellees-Appellants. CIRCUIT COURT JUDGE STATEMENT OF RELATED CASES APPELLANT-APPELLEE CHRISTOPHER J. YUEN, PLANNING DIRECTOR, COUNTY OF HAWAFI is unaware of any related cases known to be pending in the Hawai'i Courts or agencies. NO. 29192 IN THE INTERMEDIATE COURT OF APPEALS OF THE STATE OF HAWAII CHRISTOPHER J. YUEN, PLANNING CIVIL NO. 07-1-261K DIRECTOR, COUNTY OF HAWAII, Appellant-Appellee APPEAL FROM FINAL JUDGMENT FILED HEREIN ON MAY 2, 2008 vs. BOARD OF APPEALS OF THE COUNTY OF HAWAII, VALTA COOK, in his capacity as Chairperson of the BOARD OF APPEALS OF THE COUNTY OF HAWAII, Appellees. and THIRD CIRCUIT COURT EDMUND JIN and EVA Y. LU, HONORABLE RONALD IBARRA, Appellees-Appellants. CIRCUIT COURT JUDGE CERTIFICATE OF SERVICE I HEREBY CERTIFY that on October 6, 2008,two (2) copies of the foregoing document were served upon the following in the manner indicated below: Hand Delivery Mail Fax STUART H. ODA, ESQ. (X) 282 Ululani Street Hilo, Hawaii 96720 Attorney for Appellees-Appellants EDMUND JIN AND EVA Y. LU Hand Delivery Mail Fax BROOKS L. BANCROFT N RENEE N.C. SCHOEN Deputies Corporation Counsel Office of the Corporation Counsel 101 Aupuni Street, Suite 325 Hilo, Hawaii 96720 Attorney for Appellees BOARD OF APPEALS OF THE COUNTY OF HAWAII AND VALTA COOK, in his capacity as Chairperson of the BOARD OF APPEALS OF THE COUNTY OF HAWAII AMY G SELF !` Deputy gorporation Counsel County of Hawaii 2