2008-01-14_Agency_Appeal_-_Christopher_Yuen_vs_Board_of_Appeals

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C In the present matter, Jin and Lu initiated the appeal and therefore had the 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 were arbitrary, capricious, an abuse of discretion, and/or violated law. Jin and Lu failed to meet their burden in that they produced no evidence during the contested case hearing to show that the lots of their proposed subdivision receive an average annual rainfall of not less than sixty inches and that they met the requirements of Section 23-15 of the Subdivision Code. The entire ROA is void of such evidence. In fact, in the Board's FOF No. 71, the Board found: Mr. Bowles [expert witness] 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. Moreover, the Board omitted critical evidence contained in the ROA at 00048 from its FOF 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, evidencing further that Jin and Lu failed to meet their burden of affirmatively showing that the Property receives an average annual rainfall of not less than 60". Rather than holding Jin and Lu to their burden during the contested case hearing as it is bound to do under Chapter 91, HRS, the Board instead shifted the burden of proof to the Director as is evident from the grounds on which it based its Decision and Order in which it concluded that: a. the Denial by the Planning Director was arbitrary and capricious in that he failed to consider other evidence regarding the amount of rainfall; 14