2006-12-18_Planning_Department_Reply_Brief_re_Calvert

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O O overturned by the Board on appeal. The Board clearly exceeded its statutory authority by concluding that the variance application was automatically approved contrary to the clear dictates of the Hawaii County Subdivision Code. Contrary to Appellees' contention, the language of Section 23-18, Hawaii County Code, is not in conflict with HRS § 91-13.5 because HRS § 91-13.5 does not apply to the Subdivision Code. The Subdivision Code was enacted by the Council and the Council is not an"agency" for the purposes of Chapter 91. (See HRS § 91-1(1).) Furthermore,the Director does not have the authority to enact a rule that is contrary to the express language of the County's Subdivision Code. If the Director did enact a rule that is contrary to the express language of the County's Subdivision Code, such rule would be superseded by the County's Subdivision Code. Likewise, the Board does not have the authority to make a decision that is contrary to the express language of the County's Subdivision Code. D. The Legal Arguments Contained in the Director's Opening Brief Involve a Question of Great Public Import. Even if, as Appellees contend,the Director's legal argument that HRS § 91-13.5 does not apply because a variance is"otherwise provided by law"was raised for the first time on appeal and should not be considered by this Court,it involves a question of great public import and is therefore, well within this Court's discretion to hear. See Greene v. Texeira, et al., 54 Haw. 231, 235, 505 P.2d 1169, 1172 (1973). The Director's legal argument is purely a question of law and is freely reviewable to determine if the Board's decision was in violation of constitutional or statutory provisions, in excess of statutory authority or jurisdiction of Board, or affected by other error of law. See Curtis v. Board of Appeals of the County of Hawai`i, 90 Hawaii at 393, 978 P.2d at 831 (1999). 8