2006-11-22_Answering_Brief_re_Calvert

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Calvert filed for a variance from the water supply requirements of Hawaii County Code ("HCC") Section 23-83 intending to supply domestic water with the use of catchment tanks. FOF 16, ROA 00496. The application was received by the Planning Department on June 9, 2005 in the Kona office and on June 16, 2005 in the Hilo office. According to Planning Department Rule 6-7 and HCC Section 23-18, the director was required to take action"within sixty days after the filing of a proper application or within a longer period as may be agreed by the applicant, deny the application or approve it subject to conditions." Sixty days from the filing of the application was either August 8, 2005 (the filing in Kona)or August 15, 2005 (the filing in Hilo). FOF 27, ROA 00498. The application was marked in the Planning Department with an action date of 8/15/05. FOF 28, ROA 00498. No request for an extension of time was made by the Planning Department. FOF 29, ROA 00498. By letter dated September 29, 2005, the Director denied the variance application. The letter was not mailed until October 5, 2005. The denial was based upon"inadequate rainfall." FOF 33, ROA 00498. Calvert filed a timely appeal from the Director's decision to the Board of Appeals which held a contested case hearing on March 10, 2006. FOF 37, ROA 00498 and FOF 38, ROA 00499. The Board found that the water variance application was automatically approved by virtue of the provisions of HRS Section 91-13.5 HRS. The Board adopted its Findings of Fact, Conclusions of Law and Decision and Order on May 12, 2006. ROA 00491-00492 and ROA 00496. Appellant filed a timely appeal on June 14, 2006,from that Board order. III. ARGUMENT A. Appellant Christopher J.Yuen, Planning Director, County of Hawai`i's ("Appellant") Failure to Object Precludes Him from Raising Issues Now Appellant now objects to certain FOF when he failed to object to their adoption before 5