2006-11-22_Answering_Brief_re_Calvert

Home

the FOF. All arguments upon which Appellant now bases this appeal should have been presented to the Board. Therefore, the Court should not include the objections made first before it and not to the Board, neither should it include arguments not made before the Board. 2. Failure to Raise Issue The transcript of the contested case hearing before the Board is found at ROA 00407-00452. The argument of counsel and questioning by the Board is found at ROA 00439- 00451. Argument of counsel for Appellant is found at ROA 00442-00443. In addition, a memorandum of law was filed by Appellant before the Board. The argument of Appellant was that the provisions of HRS Section 91-13.5 did not apply because a subdivision was not part of zoning under HRS Section 46-4 and that a request for a variance was not a permit required by law within the context of the statute. Appellant never raised the argument now offered on appeal that the statute does not apply because a variance is"otherwise provided by law." Therefore, this argument should not be considered by the court now. It has been held in Hawaii that a party before an administrative agency needs to raise an issue or objection before that agency in order for the court appeal to consider the matter. Ariyoshi v. Hawai`i Public Employment Relations Board, 5 Haw.App. 533, 545 704 P.2d 917 (1985). According to the court, "[t]he concept underlying the rule is that a reviewing court usurps that agency's function when it sets aside the administrative determination upon a ground not theretofore presented to the agency and deprives the agency of an opportunity to consider the matter, make its ruling and state the reasons for its action. That is substantially the law whether or not it is embodied in a statutory provision. K. Davis,Administrative Law Text §20.06 (3d ed. 1972). This principle, reflecting the policy that a party must exhaust his administrative 8