2008-01-14_Agency_Appeal_-_Christopher_Yuen_vs_Board_of_Appeals

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On November 19, 2007, the Director filed a Notice of Appeal to the Circuit Court of the Third Circuit from the decision rendered by the Board in BOA 07-000043, EDMUND JIN AND EVA Y. LU, Appellants, v. CHRISTOPHER J. YUEN, PLANNING DIRECTOR, COUNTY OF HAWAII,Appellee, filed on October 18, 2007,pursuant to HRS § 91-14, Rule 8-17 of the County of Hawaii Board of Appeals Rules of Practice and Procedure, and Rule 72 of the Hawaii Rules of Civil Procedure. B. Jurisdiction Jurisdiction is proper pursuant to HRS § 603-21.8, HRS § 91-14, Rule 8-17 of the Hawaii County Board of Appeals Rules of Practice and Procedure, and Rule 72 of the Hawaii Rules of Civil Procedure. The Director was a party to the contested case hearing before the Board out of which the Order arose and is an aggrieved person for purposes of HRS § 91-14. II. STATEMENT OF QUESTIONS PRESENTED FOR DECISION 1. WHETHER THE BOARD OF APPEALS DECISION WAS AFFECTED BY AN ERROR OF LAW AND IN VIOLATION OF THE STATUTORY PROVISIONS 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 ERRONEOUS BY CONCLUDING IN CONCLUSION OF LAW 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." III. STANDARD OF REVIEW Pursuant to HRS § 91-14, "[a]ny person aggrieved by a final decision and order in a contested case . . . is entitled to judicial review thereof under this chapter[.]" HRS § 91-14(a). For purposes of this section, the term"person aggrieved" includes "an agency that is a party to a contested case proceeding before that agency or another agency." Id. 8