2008-01-14_Agency_Appeal_-_Christopher_Yuen_vs_Board_of_Appeals

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C + The key Findings of Fact("FOF") is FOF No. 71 where the Board found that: Mr. Bowles testified that he does not know whether Appellants' property receives an average annual rainfall of at least 60" or more per year and did not conduct a study for Appellant. Omitted from the Board's FOF, however, is critical evidence contained in the ROA at 00048 wherein Jin and Lu stated in the Variance Application that the sixty inch rainfall line utilized by the Planning Department in reviewing variance applications is located approximately"50 feet mauka"of the boundary of the Property. The key COL is COL No. 6 where the Board concluded 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. In the contested case hearing, Jin and Lu had the burden of proof, including the burden of producing evidence as well as the burden of persuasion. Jin and Lu failed to meet their burden of proving that they met the requirements for a variance under Section 23-15 of the Subdivision Code and Rule 22, and that the actions of the Director in denying such a variance was arbitrary, capricious, an abuse of discretion, and violated law. The Board, on the other hand, had a duty to hold Jin and Lu to their burden and failed to do so. Instead,the Board shifted the burden of proof to the Director in violation of State law as is evident from the bases of the Board's Decision and Order stated above. Moreover, the Board's Conclusions of Law and Decision and Order were arbitrary, characterized by abuse of discretion and clearly erroneous because they are unsupported by the FOF and the evidence in the ROA. B. The Board Of Appeals Erred By Shifting The Burden Of Proof To The Director In Violation of State Law HRS § 91-10(5)provides in pertinent part that in contested cases: 11