2008-01-14_Agency_Appeal_-_Christopher_Yuen_vs_Board_of_Appeals

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In its COL No. 6, the Board concluded that: 6. 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. The foregoing COL was unsupported by a clearly articulated FOF and erroneously placed the burden on the Director to further establish that the Property did not meet the rainfall requirement. Just like with any other permit or approval, the applicant is responsible for providing the required information in the Variance Application, so that the Director can make a decision as to whether to approve or deny the Variance Application as he is required to do under Section 23-18 of the Subdivision Code. There is no evidence in the ROA that Jin and Lu met their burden of affirmatively showing that all the lots in their proposed subdivision meet the requirements of Rule 22 and/or that the Variance Application should have been approved. In fact, in the Board's FOF No. 71,the Board found that Jin and Lu's expert witness did not know whether the Property receives an average annual rainfall of at least 60" or more per year and did not conduct a study for Jin and Lu. Without any evidence in the ROA that Jin and Lu met their burden of proof, the discretion exercised by the Board in arriving at its COL No. 6 clearly exceeds the bounds of reason because it had to shift the burden of proof to the Director to arrive at its conclusion. By doing so, the Board disregarded the requirements of the Subdivision Code for variances, Rule 22 and HRS § 91-10(5). Moreover, the Board's decision is clearly erroneous in view of the reliable and substantial evidence (or lack thereof) on the whole record because none of the evidence in the ROA supported the Board's Decision and Order. 16