2008-01-14_Agency_Appeal_-_Christopher_Yuen_vs_Board_of_Appeals

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[T]he 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. HRS § 91-10(5). When determining an appeal from a decision of the Director in the administration of the Subdivision Code, the Board of Appeals may reverse the Director's decision only if the decision is: (a) In violation of[the Subdivision Code] or other applicable law; or (b) Clearly erroneous in view of the reliable, probative and substantial evidence on the whole record; or (c) Arbitrary, or capricious, or characterized by an abuse of discretion or clearly unwarranted exercise of discretion. Hawaii County Code 1983 (2005 edition, as amended) § 23-5. Section 23-84 of the Subdivision Code requires that all new subdivisions have a water system meeting with the minimum requirements of the County's Department of Water Supply. See Hawaii County Code 1983 (2005 edition, as amended) § 23-84. A variance from the Subdivision Code may be granted by the Director, but only if 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. Hawaii County Code 1983 (2005 edition, as amended) § 23-15. (emphasis added.) 12