2008-01-14_Agency_Appeal_-_Christopher_Yuen_vs_Board_of_Appeals

Home

.__._........_. fir✓ �✓' b. 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 that the isohyet line was within a reasonable distance from Appellant's property. There is no FOF or any evidence anywhere in the ROA to support such a Decision and Order. The ROA reflects that the Director considered all of the information included in the Variance Application and provided a statement of the factual findings supporting his decision to deny the Variance Application as he is required to do pursuant to Section 23-18 of the Subdivision Code. Jin and Lu, on the other hand, provided no information to the Director affirmatively showing that the Property receives an average of 60" of rainfall annually by using a comparable rain gauge pursuant to Rule 22 and that they otherwise met the requirements of Section 23-15 of the Subdivision Code, but instead attacked the basis for the Director's denial. The Board, in turn, shifted the burden of proof to the Director essentially requiring him to disprove that the Property met the requirements for a variance. The Board is without authority to shift the burden of proof and by doing so, it violated State law. C. The Board's Conclusion Of Law No. 6 Exceeds The Bounds Of Reason Because It Is Unsupported By Any Clearly Articulated FOF And It Erroneously Placed The Burden On The Director To Prove That The Variance Application Did Not Meet The Rainfall Requirement Of Rule 22 Abuse of agency discretion"is apparent when the discretion exercised clearly exceeds the bounds of reason or disregards rules or principles of law or practice to the substantial detriment of a party litigant." Brescia v. North Shore Ohana, 115 Hawaii 477, 492, 168 P.3d 929, 944 (Hawai`i 2007) (quoting Kimura v. Kamalo, 106 Hawaii 501, 507, 107 P.3d 430, 436 (2005). 15