2006-11-22_Answering_Brief_re_Calvert

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Appellate Court determined if such conclusions are right or wrong. Nakamura v. State, 98 Hawaii 263,47 P.3d 730 (2002). A COL that presents mixed questions of fact and law is reviewed under the clearly erroneous standard because the conclusion is dependant upon facts and the circumstances of the particular case. Price v. Zoning Bd. of Appeals of City and County of Honolulu, 77 Hawaii 168, 172, 883 P.2d 629, 633 (1994). When mixed questions of law and fact are presented, an appellate court must give deference to the agency's expertise and experience in the particular field. Curtis, supra. The court should not substitute its own judgment for that of the agency. Id. Because the agency's decision carries a presumption of validity,the party seeking to reverse the agency's decision"has the heavy burden of making a convincing showing the decision is invalid because it is unjust and unreasonable in the consequences. Hardin v. Akiba, 84 Hawaii 305, 310, 933 P.2d 1339, 1344 (1997). II. FACTS AND BACKGROUND The appeal concerns a denial of a variance request made by Calvert. Calvert and her husband purchased 480 acres of property located in Ka'u in 1978. FOF 1, ROA 00495. Calvert and her husband applied for and received water variances from the County in two phases of their subdivision known as Kahuku Country Estates. As a result, they were able to sell the property in three-acre lots. FOF 2, ROA 00495. The property which is the subject of this appeal is located in the Kahuku Country Estates and consists of two 21-acre lots into fourteen 3-acre lots. Calvert intends to sell the lots for market value after subdivision using funds received from her retirement. FOF 8, ROA 00495 and FOF 16 ROA 00496-00497. 4