2008-01-14_Agency_Appeal_-_Christopher_Yuen_vs_Board_of_Appeals

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was" served by rain catchment must have an average annual rainfall of not less than sixty inches and no more than six lots are allowed in rain catchment subdivisions. (ROA at 00062 - 00066, 00655.) Rule 22 became effective on February 25, 20061,pursuant to Chapter 91, HRS. 2. The Variance Application On December 21, 2006, Jin and Lu filed with the Planning Department in Kona an Application for Variance from the Subdivision Code seeking a variance from Section 23-84 (Water Supply) of the Hawaii County Code (hereinafter"Subdivision Code")to enable the subdivision of their 35.90-acre property into six lots: four 5-acre lots, one 6.5-acre lot, and one 7+-acre lot to be served by a private water catchment system (hereinafter"Variance Application"). (ROA at 000655.) By letter dated January 5, 2007, the Director acknowledged receipt of Jin and Lu's Variance Application and indicated that a decision would be rendered on or before February 19, 2007. (ROA at 00079.) Although the burden of proof was on Jin and Lu to affirmatively show in the Variance Application that the Property receives an average annual rainfall of not less than sixty inches as required by Rule 22 of the Planning Department Rules of Practice and Procedure (hereinafter "Rule 22") and that they otherwise met the requirements of Section 23-15 of the Subdivision Code to qualify for a variance from the water supply requirements of the Subdivision Code, Jin and Lu stated in their 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 that the Property does not meet the rainfall requirement of Rule 22. (ROA at 00048, 00666.) 1 Although Findings of Fact No. 14 states that Rule 22 was enacted on February 15,2006,that is actually the date the rule was filed with the County Clerk. Section 91-4,Hawaii Revised Statutes,states that the rule becomes effective ten days after filing with the County Clerk;therefore,Rule 22 was enacted on February 25,2006. 3