2005-05-06 Answering Brief Re Ainaola Development

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(1) In violation of constitutional or statutory provisions; or (2) In excess of the statutory authority or jurisdiction of the agency; or (3) Made upon unlawful procedure; or (4) Affected by other error of law; or (5) Clearly erroneous in view of the reliable, probative, and substantial evidence on the whole record; or (6) Arbitrary, or capricious, or characterized by abuse of discretion or clearly unwarranted exercise of discretion. HRS Section 91-14(g)(1993). Conclusions of Law ("COL") are freely reviewable to determine if the agency's decision was in violation of constitutional or statutory provisions, in excess of statutory authority or jurisdiction of agency, or affected by other error of law. Hardin v. Akiba, 84 Hawaii 305, 310, 933 P.2d 1339, 1344 (1997); HRS Sections 91-14(g)(1), (2) and (4). A COL that presents mixed questions of fact and law is reviewed under the clearly erroneous standard because the conclusion is dependent upon the facts and circumstances of the case. Price v. Zoning Board ofAppeals 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. Dole Hawai`i Division-Castle & Cooke, Inc. v. Ramil, 71 Haw. 419, 424, 794 P.2d 1115, 1118 (1990). "The court should not substitute its own judgment for that of the agency." Id., citing Camara v. Agsalud, 67 Haw. 212, 216, 685 P.2d 794, 797 (1984). Igawa v. Koa House Restaurant, 97 Hawaii 402, 405-6, 38 P.3d 570, 573-4 (2001). Findings of fact will not be disturbed unless clearly erroneous. A finding of fact is clearly erroneous when, despite evidence to support the finding, the appellate court is left with the definite and firm conviction that a mistake has been committed. Kim v. Contractors License Board, 88 Hawaii 264, 269, 965 P.2d 806, 811 (1998). 7