HomeMy WebLinkAbout2008-01-14_Agency_Appeal_-_Christopher_Yuen_vs_Board_of_Appeals LINCOLN S. T. ASHIDA 4478
Corporation Counsel
AMY G. SELF 7628
KATHERINE A. GARSON 5748
Deputies Corporation Counsel
County of Hawaii
Hilo Lagoon Centre
101 Aupuni Street, Suite 325 v
Hilo, Hawaii 96720
Telephone No. 961-8251 _r
Facsimile No. 961-8622
Email: aself @co.hawaii.hi.us
Attorneys for Appellant CHRISTOPHER J. YUEN, �, N
PLANNING DIRECTOR OF THE COUNTY OF HAWAII
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
CHRISTOPHER J. YUEN, PLANNING CIVIL NO. 07-1-261K
DIRECTOR, COUNTY OF HAWAII, (Agency Appeal)
Appellant, APPELLANT CHRISTOPHER J. YUEN,
VS. PLANNING DIRECTOR, COUNTY OF
HAWAI`I'S OPENING BRIEF;
BOARD OF APPEALS OF THE COUNTY CERTIFICATE OF SERVICE
OF HAWAI`l, VALTA COOK,
in his capacity as Chairperson of the BOARD
OF APPEALS OF THE COUNTY OF
HAWAII, EDMUND JIN AND EVA Y. LU,
Appellees.
s:\lit\yuen v jin Udo6opening briefl11408\AGSjen
APPELLANT CHRISTOPHER J. YUEN, PLANNING DIRECTOR,
COUNTY OF HAWAI`I'S OPENING BRIEF
TABLE OF CONTENTS
I. STATEMENT OF THE CASE AND FACTS ................................................................ 1-8
A. Introduction..........................................................................................................1-8
1. The Property ............................................................................................1-3
2. The Variance Application .......................................................................3-5
3. The Appeal...............................................................................................5-8
B. Jurisdiction ............................................................................................................. 8
11. STATEMENT OF QUESTIONS PRESENTED FOR DECISION .................................. 8
III. STANDARD OF REVIEW...........................................................................................8-10
IV. ARGUMENT............................................................................................................... 10-16
A. Summary of Argument ................................................................................... 10-11
B. The Board of Appeals Erred By Shifting The Burden Of Proof To
The Director In Violation of State Law...........................................................11-15
C. The Board's Conclusion of Law No. 6 Exceeds The Bounds
Of Reason Because It Is Unsupported By Any Clearly Articulated
FOF And It Erroneously Place The Burden On The Director To
Prove That The Variance Application Did Not Meet The Rainfall
RequirementOf Rule 22 ................................................................................. 15-16
V. CONCLUSION ................................................................................................................ 17
TABLE OF AUTHORITIES
CASES
Alvarez v. Liberty House, Inc.,
85 Hawaii 275, 277, 942 P.2d 539, 541 (1997) ................................................................9
Brescia v. North Shore Ohana,
115 Hawai'i 477, 491-492, 168 P.3d 929, 943-944 (Hawai'i, 2007)............................ 9, 15
Bumanglag v. Oahu Sugar Co., Ltd.,
78 Hawaii 275, 279, 892 P.2d 468, 472 (1995)............................................................... 10
Curtis v. Board of Appeals, County of Hawaii,
90 Hawaii 384, 393, 978 P.2d 822, 831 (1999)........................................................... 9, 10
Dependents of Cazimero v. Kohala Sugar Co.,
54 Haw. 479, 510 P.2d 89 (Hawai'i 1973)....................................................................... 13
Hardin v. Akiba,
84 Hawaii 305, 310, 933 P.2d 1339, 1344 (1997) .......................................................... 10
In re Wai'ola O Molokai, Inc.,
103 Hawaii 401, 442, 83 P.3d 664, 705 (Hawai'i, 2004)................................................ 13
In re Water Use Permit Applications (Waiahole),
94 Hawaii 97, 136-38, 9 P.3d 409, 448-50 (2000) ......................................................... 13
Ka Pa'Akai O Ka Aina v. Land Use Comm'n,
94 Hawaii 31, 41, 7 P.3d 1068, 1078 (2000)................................................................... 10
Kimura v. Kamalo,
106 Hawaii 501, 507, 107 P.3d 430, 436 (2005)............................................................. 15
Lanai Co., Inc. v. Land Use Com'n,
105 Hawai'i 296, 308, 97 P.3d 372, 384 (Hawai'i 2004).................................................. 10
Neighborhood Bd. No. 24 (Waianae Coast) v. State Land Use Comm'n,
64 Haw. 265, 639 P.2d 1097 (1982)................................................................................. 13
Poe v. Hawaii Labor Relations Bd.,
105 Hawai'i 97, 100, 94 P.3d 652, 655 (2004) ................................................................... 9
ii
STATUTES
Hawaii Revised Statutes
Section91.................................................................................................................... 1, 3, 13, 14
Section91-10........................................................................................................................ 8, 13
Section91-10(5)...................................................................................................... 11, 12, 13, 16
Section91-14.............................................................................................................................. 8
Section91-14(a).......................................................................................................................... 8
Section91-14(g).......................................................................................................................... 9
Section91-14(g)(1)................................................................................................................... 10
Section91-14(g)(5)..................................................................................................................... 9
Section603-21.8......................................................................................................................... 8
RULES
Hawaii Rules of Civil Procedure
Rule72........................................................................................................................................ 8
OTHER
Hawaii County Code 1983 (2005 edition, as amended)
Section23-5 ........................................................................................................................ 12, 13
Section23-15 ...................................................................................................... 3, 11, 12, 14, 15
Section23-16(e)........................................................................................................................ 13
Section23-18................................................................................................................ 15, 16, 17
Section23-84...................................................................................................... 2, 3, 4, 5, 12, 13
Hawaii County Charter
Section6-10.2............................................................................................................................. 1
County of Hawaii Board of Appeals Rules of Practice and Procedure
Section8-17................................................................................................................................ 8
County of Hawaii Planning Department Rules of Practice and Procedure
Rule 22 ........................................................................... 2, 3, 4, 5, 6, 7, 8, 10, 11, 13, 14, 15, 16
Rule22-4............................................................................................................................... 4, 13
Rule22-6..................................................................................................................................... 4
iii
APPELLANT CHRISTOPHER J. YUEN, PLANNING DIRECTOR
COUNTY OF HAWAI`I'S OPENING BRIEF
Appellant CHRISTOPHER J. YUEN, PLANNING DIRECTOR, COUNTY OF
HAWAII (hereinafter "Director"), by and through his undersigned counsel, respectfully submits
his Opening Brief in accordance with the briefing schedule established by the Court and filed on
December 10, 2007.
I. STATEMENT OF THE CASE AND FACTS
A. Introduction
Appellant Christopher J. Yuen is the Planning Director of the County of Hawaii.
Appellee Board of Appeals of the County of Hawaii (hereinafter"Board") is an agency
of the County of Hawaii that has been delegated the authority to hear and determine appeals
from final decisions of the Director pursuant to Chapter 91 of the Hawaii Revised Statutes
(hereinafter"HRS") and Section 6-10.2 of the Hawaii County Charter.
Appellee Valta Cook is named herein in his official capacity as Chair of the Board of
Appeals for the County of Hawaii (hereinafter"Board Chair").
Appellees Edmund Jin and Eva Y. Lu(hereinafter"Jin and Lu") are individuals and fee
simple owners of Tax Map Key: (3) 8-7-013:011 (hereinafter"the Property") located on the east
(mauka) side of Mamalahoa Highway, being a portion of Olelomoana Homesteads, ahupua`a of
Olelomoana 2nd, District of South Kona, County and State of Hawaii. (See Record on Appeal
(hereinafter"ROA") at 00652-00653.)
1. The Property
The Property is Lot 3 of Olelomoana Homesteads, containing approximately 35.90 acres,
being the whole of Grant 10013 to Susan Eleneka and Grant S-14061 to William Eleneka Ontai,
d
et al., situate at Olelomoana 2n , District of South Kona, Hawaii. (ROA at 00654.) The
Property runs from Mamalahoa Highway mauka to approximately 1760' elevation. (ROA at
00654.) The Property is in the State agricultural district and is zoned agricultural, A-5a, by the
County of Hawaii. (ROA at 00654.) The County of Hawaii General Plan designation for the
Property is "ial" (important agricultural lands). (ROA at 00654.)
The Property is located outside the service limits of the existing County of Hawaii
Department of Water Supply water system facilities. (ROA at 00110, 00654.) The Planning
Department is not aware of any plans for the Department of Water Supply to extend County
water service to the Property. (ROA at 00654.)
Jin and Lu purchased the Property from Theodore Knowles in late September 2006.
(ROA at 00654.) Jin and Lu were aware at the time they purchased the Property that the
Property was outside the service limits of the existing County of Hawaii Department of Water
Supply water system facilities. (ROA at 00654.)
Before Jin and Lu purchased the Property, Theodore Knowles, through Chrystal T.
Yamasaki, LPLS, of Wes Thomas Associates, had submitted an Application for Subdivision
Approval (SUB 06-000409) and preliminary plat map to the Planning Department. (ROA at
00654.) By letter dated October 26, 2006,the Planning Department informed Ms. Yamasaki that
the proposed subdivision was not within the service limits of the Department of Water Supply's
existing water system facilities and that a variance from Article 6, Division 2, Section 23-84 of
Chapter 23 (Subdivision) of the Hawaii County Code must be applied for and secured from the
Planning Department. (ROA at 00062, 00655.) The Planning Department further informed
Ms. Yamasaki that the filing for the variance does not indicate a tacit approval of the request.
(ROA at 00062.) In addition, the Planning Department enclosed a copy of Rule 22 of the
Planning Department Rules of Practice and Procedure,which requires in part that lots to be
2
was"
served by rain catchment must have an average annual rainfall of not less than sixty inches and
no more than six lots are allowed in rain catchment subdivisions. (ROA at 00062 - 00066,
00655.) Rule 22 became effective on February 25, 20061,pursuant to Chapter 91, HRS.
2. The Variance Application
On December 21, 2006, Jin and Lu filed with the Planning Department in Kona an
Application for Variance from the Subdivision Code seeking a variance from Section 23-84
(Water Supply) of the Hawaii County Code (hereinafter"Subdivision Code")to enable the
subdivision of their 35.90-acre property into six lots: four 5-acre lots, one 6.5-acre lot, and
one 7+-acre lot to be served by a private water catchment system (hereinafter"Variance
Application"). (ROA at 000655.) By letter dated January 5, 2007, the Director acknowledged
receipt of Jin and Lu's Variance Application and indicated that a decision would be rendered on
or before February 19, 2007. (ROA at 00079.)
Although the burden of proof was on Jin and Lu to affirmatively show in the Variance
Application that the Property receives an average annual rainfall of not less than sixty inches as
required by Rule 22 of the Planning Department Rules of Practice and Procedure (hereinafter
"Rule 22") and that they otherwise met the requirements of Section 23-15 of the Subdivision
Code to qualify for a variance from the water supply requirements of the Subdivision Code, Jin
and Lu stated in their Variance Application that the sixty inch rainfall line utilized by the
Planning Department in reviewing variance applications is located approximately"50 feet
mauka" of the boundary of the Property, evidencing that the Property does not meet the rainfall
requirement of Rule 22. (ROA at 00048, 00666.)
1 Although Findings of Fact No. 14 states that Rule 22 was enacted on February 15,2006,that is actually the date
the rule was filed with the County Clerk. Section 91-4,Hawaii Revised Statutes,states that the rule becomes
effective ten days after filing with the County Clerk;therefore,Rule 22 was enacted on February 25,2006.
3
By memorandum dated January 29, 2007, the State of Hawaii Department of Health
provided the following comments in response to the Director's request for agency review and
comments regarding the Variance Application:
Recommend the subdivision lots be connected to an existing public water
system.
Concerns on water quality for lead, copper, algae and microbiological and
chemical contaminations in private water systems have identified the need
for self monitoring. The Department of Health does not support the use of
these private rain catchment systems for drinking purposes since the
quality may not meet potable water standards.
(ROA at 00106-00107.)
By letter dated February 12, 2007, the Director denied Jin and Lu's Water Variance
Application, which stated in part:
INTENT AND PURPOSE-WATER VARIANCE
Section 23-84 of the Subdivision Code requires that all new subdivisions have a
water system meeting with the minimum requirements of the Department of
Water Supply. The State Department of Health has no specific rules or
regulations relating to the utilization, construction or inspection of private roof or
rain catchment water systems for potable or emergency uses.
The alternative to a water system proposed by the applicant"private residential
catchment systems"by the individual lot owner(s) would not meet the intent and
purpose of the Subdivision Code; and is not allowed pursuant to Planning
Department Rule 22-Water Variance, effective February 25, 2006. Generally,
Rule 22 is both a rule and statement of criteria to be used so that consistent
decisions can be made on water variance requests.
Section 23-84 of the Subdivision Code requires a water system, and Rule 22
limits subdivisions requesting a variance from water supply to six (6) lots, and,
requires that a proposed subdivision(limited to 6 lots)requesting a variance to
allow individual rainwater catchment systems for potable and emergency needs
must receive a minimum 60 inches of annual rainfall for each lot served by
catchment. Rule 22, states in part:
"22-4 Minimum rainfall.
Except as provided in Rule 22-6, all lots to be served
by catchment shall [] have an average annual rainfall
4
of not less than 60". The annual rainfall can be proven
by rainfall records at comparable rain gauges, or by the USGS
rainfall map.
Rule 22 allows the rainfall to be proved by either the USGS rainfall map or by
rain gauge data. The analysis of the information and comparison of maps
attached to the variance application and other rainfall maps and rainfall data at the
Planning Department, etc. indicate that the entire subject TMK property is below
the 60" isohyet line and does not receive 60 inches of rainfall annually. The
elevation of the property begins at above 1280 feet and ends about 1760 feet.
Although the very top of the property is near the 60"isohyet line, most of the
proposed lots are much lower. In view of the applicant's submittals, e.g.
Exhibi(s) and other historical data published by the Hawaii State Climate Office
(HSCO), it appears that the proposed subdivision is near active rain-gauge station
"OPIHIHALE 2." This rain gauge is situated approximately 1.2 miles +/- south
of the TMK property near the Mamalahoa Highway. According to a 1996 U.S.
Geological Survey publication, Opihihale No. 2's elevation or altitude is 1270
feet. The rain guageg data indicates that the actual rainfall at the subdivision is
well under 60." Historical rainfall data published by HSCO for OPIHIHALE 2
show the mean average rainfall measured for the years 1956-2000 is 41.20 inches.
The annual rainfall at the property and the property's boundary on Mamalahoa
Highway or South Kona Belt Road is probably about 41". Therefore,the
proposed 6-lot subdivision does not receive minimum 60" annual rainfall and the
applicant's request to allow individual rainwater catchment systems for potable
and emergency is not allowed or eligible pursuant to Rule 22-Water Variance
which requires the proposed subdivision to receive minimum 60" annual rainfall.
VARIANCE DECISION
In view of the above, the proposed variance would not fulfill the intent of the
Subdivision Code and does not meet with all the requirements or Rule 22-Water
Variance. Therefore, the applicant's variance application to allow proposed 6-lot
subdivision without providing a water supply pursuant to Chapter 23,
Subdivisions,Article 6, Division 2, Improvements Required, Section 23-84,
Water Supply, (1)(2), or request to allow the proposed subdivision to be served by
private catchment systems is denied.
(ROA at 000113 —000118, 00656.)
3. The Appeal
Jin and Lu appealed the Director's decision denying the Variance Application to the
Board on March 14, 2007 (hereinafter "the Appeal"), seeking reversal of the Director's decision
and approval of the Variance Application on the grounds that the Director's decision is arbitrary,
5
capricious, an abuse of discretion, and violates law and that, among other things, the Planning
Department Rule 22 is arbitrary, capricious, in excess of statutory authority, and made on
unlawful procedure. (ROA at 00656.) The Board heard the Appeal on July 13, 2007.
(ROA at 00446, 00652.) Jin and Lu were not present at the hearing but were represented by
counsel. (ROA at 00447.)
During the contested case hearing, while under cross examination, Jin and Lu's expert
witness, Steve Bowles, testified to the following:
(1) He does not know whether the Property receives an average annual
rainfall of at least 60 inches or more per year. (ROA at 00476.)
(2) He acknowledged that rainfall has declined in the past 20 years. (ROA at 00476.)
(3) He authored a chapter in a report(Exhibit 23)that states that as a result of
this decline in rainfall in the past 20 years, "the total amount of rainfall is less
than half due to drought conditions." (ROA at 00476.)
(4) He agreed that the rainfall at Ocean View has diminished over the years,
particularly since 1983, and that it has resulted in an increase in reliance on water
hauling. (ROA at 00477.)
(5) He agreed that the lack of adequate rainfall and the cost of hauling causes
fire protection problems and other problems. (ROA at 00477.)
(6) He agreed that periods of drought will require more water hauling that will
be using the County water system. (ROA at 00479.)
(7) He acknowledged that he did not conduct a study for Jin and Lu to determine if
there would be adequate rainfall for catchment. (ROA at 00482.)
Notwithstanding the foregoing evidence,the Board voted to grant the Appeal on the
basis:
6
1)that the Director was arbitrary and capricious in that he failed to
consider other evidence regarding the amount of rainfall, 2)that
the Director's reliance on only the isohyet line and one rain gauge
was arbitrary in that the Rule contemplates that there would be
compliance on more than one rain gauge, and that the isohyet line
was within a reasonable distance from appellant's property.
(ROA at 00533, 00668.)
At the conclusion of the hearing of the Appeal,the Board Chair requested Jin and Lu's
counsel to submit proposed findings of fact, conclusions of law, and decision and order.
(ROA at 536.) On August 30, 2007, Jin and Lu's counsel submitted Proposed Findings of Fact,
Conclusions of Law, and Decision and Order Approving Variance Application(VAR 06-101)
to the Board and the Director. (ROA at 00542—00559.) On September 14, 2007, the Director
submitted objections to the Proposed Findings of Fact, Conclusions of Law, and Decision and
Order Approving Variance Application(VAR 06-101) to the Board and to Appellees.
(ROA at 00572—00577.)
At its October 12, 2007 meeting, the Board adopted the Proposed Findings of Fact,
Conclusions of Law, and Decision and Order Approving Variance Application(VAR 06-101)
with the addition of four Conclusions of Law, two of which were adopted as a result of the
Director's objections to the Proposed Findings of Fact, Conclusions of Law, and Decision and
Order Approving Variance Application(VAR 06-101). (ROA at 00645 — 00650.) In the
Board's Conclusion of Law(hereinafter"COL")No. 6, which is critical to this appeal,the Board
concluded that:
The Planning Director's interpretation and application of Rule 22
in the context of this Application represented an unwarranted
exercise of discretion and/or an abuse of discretion.
(ROA at 00667.)
7
On November 19, 2007, the Director filed a Notice of Appeal to the Circuit Court of the
Third Circuit from the decision rendered by the Board in BOA 07-000043, EDMUND JIN AND
EVA Y. LU, Appellants, v. CHRISTOPHER J. YUEN, PLANNING DIRECTOR, COUNTY OF
HAWAII,Appellee, filed on October 18, 2007,pursuant to HRS § 91-14, Rule 8-17 of the
County of Hawaii Board of Appeals Rules of Practice and Procedure, and Rule 72 of the
Hawaii Rules of Civil Procedure.
B. Jurisdiction
Jurisdiction is proper pursuant to HRS § 603-21.8, HRS § 91-14, Rule 8-17 of the
Hawaii County Board of Appeals Rules of Practice and Procedure, and Rule 72 of the Hawaii
Rules of Civil Procedure. The Director was a party to the contested case hearing before the
Board out of which the Order arose and is an aggrieved person for purposes of HRS § 91-14.
II. STATEMENT OF QUESTIONS PRESENTED FOR DECISION
1. WHETHER THE BOARD OF APPEALS DECISION WAS AFFECTED
BY AN ERROR OF LAW AND IN VIOLATION OF THE STATUTORY
PROVISIONS CONTAINED IN HRS § 91-10 IN THAT THE BOARD OF APPEALS
UNLAWFULLY SHIFTED THE BURDEN OF PROOF TO THE PLANNING
DIRECTOR WHEN IT RENDERED ITS DECISION AND ORDER.
2. WHETHER THE BOARD OF APPEALS DECISION GRANTING THE
APPEAL WAS ARBITRARY OR CAPRICIOUS OR AN ABUSE OF DISCRETION
OR CLEARLY ERRONEOUS BY CONCLUDING IN CONCLUSION OF LAW NO. 6
THAT: "THE PLANNING DIRECTOR'S INTERPRETATION AND APPLICATION
OF RULE 22 IN THE CONTEXT OF THIS APPLICATION REPRESENTED AN
UNWARRANTED EXERCISE OF DISCRETION AND/OR AN ABUSE OF
DISCRETION."
III. STANDARD OF REVIEW
Pursuant to HRS § 91-14, "[a]ny person aggrieved by a final decision and order in a
contested case . . . is entitled to judicial review thereof under this chapter[.]" HRS § 91-14(a).
For purposes of this section, the term"person aggrieved" includes "an agency that is a party to a
contested case proceeding before that agency or another agency." Id.
8
HRS § 91-14(g) enumerates the standards of review applicable to an agency appeal and
provides:
Upon review of the record the court may affirm the decision of the agency
or remand the case with instructions for further proceedings; or it may
reverse or modify the decision and order if the substantial rights of the
petitioners may have been prejudiced because the administrative findings,
conclusions, decisions or orders are:
(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 § 91-14(g).
It has been held that"[a]n agency's findings of fact are reviewable under the clearly
erroneous standard to determine if the agency decision was clearly erroneous in view of
reliable,probative, and substantial evidence on the whole record." Curtis v. Board of Appeals,
County ofHawai`i, 90 Hawaii 384, 393, 978 P.2d 822, 831 (1999) (quoting Alvarez v. Liberty
House, Inc., 85 Hawaii 275, 277, 942 P.2d 539, 541 (1997); HRS § 91-14(g)(5)). "An agency's
findings are not clearly erroneous and will be upheld if supported by reliable, probative and
substantial evidence unless the reviewing court is left with a firm and definite conviction that a
mistake has been made." Brescia v. North Shore Ohana, 115 Hawaii 477, 491-492, 168 P.3d
929, 9437944 (Hawai`i, 2007) (citing Poe v. Hawai`i Labor Relations Bd., 105 Hawaii 97, 100,
94 P.3d 652, 655 (2004) (additional citations omitted).
Where an agency's conclusion of law"presents mixed questions of fact and law,
it is reviewed under the clearly erroneous standard because the conclusion is dependent upon
the facts and circumstances of the particular case." Lanai Co., Inc. v. Land Use Com'n,
9
105 Hawaii 296, 308, 97 P.3d 372, 384 (Hawai`i 2004) (quoting In re Wai`ola O Moloka`i, Inc.,
103 Hawaii 401, 421, 83 P.3d 664, 684 (2004)). "A mixed determination of law and fact is
clearly erroneous when(1)the record lacks substantial evidence to support the finding, or(2)
despite substantial evidence to support the finding or determination, the appellate court is left
with the definite and firm conviction that a mistake has been made." Id.
On the other hand, "[a]n agency's conclusions of law 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." Curtis,
90 Hawaii at 393 (1999) (Quoting Hardin v. Akiba, 84 Hawaii 305, 310, 933 P.2d 1339, 1344
(1997)) (additional citations omitted); HRS §§ 91-14(g)(1), (2), and (4)). In this regard, "[a]
conclusion of law . . . is not binding on an appellate court and is freely reviewable for its
correctness. Thus, the court reviews [conclusions of law] de novo, under the right/wrong
standard." Bumanglag v. Oahu Sugar Co., Ltd., 78 Hawaii 275, 279, 892 P.2d 468, 472 (1995).
Similarly, "[t]he interpretation of a statute is [also] a question of law reviewable de novo."
Ka Pa Akai O Ka A ina v. Land Use Comm'n, 94 Haw. 31, 41, 7 P.3d 1068, 1078 (2000).
IV. ARGUMENT
A. Summary of Argument
The Findings of Fact, Conclusions of Law, and Decision and Order adopted by the Board
on October 12, 2007, summarize the bases of the Board's Decision and Order, which granted the
Appeal on the basis that:
a. the Denial by the Planning Director was arbitrary and capricious in that he
failed to consider other evidence regarding the amount of rainfall;
b. the Planning Director's reliance on only the isohyet line and one rain
gauge was arbitrary in that Rule 22 contemplates that there would be reliance on
more than one rain gauge, and that the isohyet line was within a reasonable
distance from Appellant's property.
10
C +
The key Findings of Fact("FOF") is FOF No. 71 where the Board found that:
Mr. Bowles testified that he does not know whether Appellants' property
receives an average annual rainfall of at least 60" or more per year and did
not conduct a study for Appellant.
Omitted from the Board's FOF, however, is critical evidence contained in the ROA at 00048
wherein Jin and Lu stated in the Variance Application that the sixty inch rainfall line utilized by
the Planning Department in reviewing variance applications is located approximately"50 feet
mauka"of the boundary of the Property.
The key COL is COL No. 6 where the Board concluded that:
The Planning Director's interpretation and application of Rule 22
in the context of this Application represented an unwarranted
exercise of discretion and/or an abuse of discretion.
In the contested case hearing, Jin and Lu had the burden of proof, including the burden of
producing evidence as well as the burden of persuasion. Jin and Lu failed to meet their burden
of proving that they met the requirements for a variance under Section 23-15 of the Subdivision
Code and Rule 22, and that the actions of the Director in denying such a variance was arbitrary,
capricious, an abuse of discretion, and violated law. The Board, on the other hand, had a duty to
hold Jin and Lu to their burden and failed to do so. Instead,the Board shifted the burden of
proof to the Director in violation of State law as is evident from the bases of the Board's
Decision and Order stated above.
Moreover, the Board's Conclusions of Law and Decision and Order were arbitrary,
characterized by abuse of discretion and clearly erroneous because they are unsupported by the
FOF and the evidence in the ROA.
B. The Board Of Appeals Erred By Shifting The Burden Of Proof To
The Director In Violation of State Law
HRS § 91-10(5)provides in pertinent part that in contested cases:
11
[T]he party initiating the proceeding shall have the burden of
proof, including the burden of producing evidence as well as the
burden of persuasion. The degree or quantum of proof shall be a
preponderance of the evidence.
HRS § 91-10(5).
When determining an appeal from a decision of the Director in the administration of the
Subdivision Code, the Board of Appeals may reverse the Director's decision only if the decision
is:
(a) In violation of[the Subdivision Code] or other applicable
law; or
(b) Clearly erroneous in view of the reliable, probative and
substantial evidence on the whole record; or
(c) Arbitrary, or capricious, or characterized by an abuse of
discretion or clearly unwarranted exercise of discretion.
Hawaii County Code 1983 (2005 edition, as amended) § 23-5.
Section 23-84 of the Subdivision Code requires that all new subdivisions have a water
system meeting with the minimum requirements of the County's Department of Water Supply.
See Hawaii County Code 1983 (2005 edition, as amended) § 23-84. A variance from the
Subdivision Code may be granted by the Director, but only if it is found that:
(a) There are special or unusual circumstances applying to the subject real
property which exist either to a degree which deprives the owner or
applicant of substantial property rights that would otherwise be available
or to a degree which obviously interferes with the best use or manner of
development of that property; and
(b) There are no other reasonable alternatives that would resolve the
difficulty; and
(c) The variance will be consistent with the general purpose of the district, the
intent and purpose of this chapter, and the County general plan and will
not be materially detrimental to the public welfare or cause substantial,
adverse impact to an area's character or to adjoining properties.
Hawaii County Code 1983 (2005 edition, as amended) § 23-15. (emphasis added.)
12
Rule 22 requires an applicant for a variance from the water supply requirements of
Section 23-84 of the Subdivision Code to prove that all lots to be served by catchment have an
average annual rainfall of not less than sixty inches either"by rainfall records at comparable rain
gauges or by the USGS rainfall map." Planning Department Rules of Practice and Procedure
§ 22-4 (2006).
A variance permits a landowner to use his property in a manner forbidden by ordinance
or statute. See Neighborhood Bd. No. 24 (Waianae Coast) v. State Land Use Comm'n,
64 Haw. 265, 639 P.2d 1097 (1982). Because a variance is an exception to what is otherwise
required by law,there is no guarantee that a variance will be granted just because an applicant
submits a variance application to the Director. When applying for a variance, the applicant has
the burden of providing all the information required by the director to show that they meet the
requirements for a variance. See Hawaii County Code 1983 (2005 edition, as amended)
§ 23-16(e). If the variance is denied by the Director, the applicant may appeal the Director's
decision to the Board within thirty days after the decision. See Hawaii County Code 1983 (2005
edition, as amended) § 23-5.
At the contested case hearing before the Board,the appellant has the burden of proof,
including the burden of producing evidence and the burden of persuasion. See HRS § 91-10(5).
The Board is an agency within the definition of Chapter 91, HRS, and is thus "duty bound to
hold an applicant to its burden during a contested-case hearing." In re Wai`ola O Moloka`i, Inc.,
103 Hawaii 401, 442, 83 P.3d 664, 705 (Hawai`i, 2004) (citing In re Water Use Permit
Applications (Waidhole), 94 Hawaii 97, 136-38, 9 P.3d 409, 448-50 (2000)). See also
Dependents of Cazimero v. Kohala Sugar Co., 54 Haw. 479, 510 P.2d 89 (Hawai`i 1973)
(explaining that a contested case heard by an agency that is within the definition of the Hawaii
Administrative Procedure Act (Chapter 91, HRS) is bound by the proscriptions of HRS § 91-10).
13
C
In the present matter, Jin and Lu initiated the appeal and therefore had the burden of
proving that they met the requirements for a variance under Section 23-15 of the Subdivision
Code and Rule 22, and that the actions of the Director in denying such a variance were arbitrary,
capricious, an abuse of discretion, and/or violated law. Jin and Lu failed to meet their burden in
that they produced no evidence during the contested case hearing to show that the lots of their
proposed subdivision receive an average annual rainfall of not less than sixty inches and that
they met the requirements of Section 23-15 of the Subdivision Code. The entire ROA is void of
such evidence. In fact, in the Board's FOF No. 71, the Board found:
Mr. Bowles [expert witness] testified that he does not know
whether Appellants' property receives an average annual rainfall of
at least 60" or more per year and did not conduct a study for
Appellant.
Moreover, the Board omitted critical evidence contained in the ROA at 00048 from its
FOF wherein Jin and Lu stated in the Variance Application that the sixty inch rainfall line
utilized by the Planning Department in reviewing variance applications is located approximately
"50 feet mauka" of the boundary of the Property, evidencing further that Jin and Lu failed to
meet their burden of affirmatively showing that the Property receives an average annual rainfall
of not less than 60".
Rather than holding Jin and Lu to their burden during the contested case hearing as it is
bound to do under Chapter 91, HRS, the Board instead shifted the burden of proof to the Director
as is evident from the grounds on which it based its Decision and Order in which it concluded
that:
a. the Denial by the Planning Director was arbitrary and
capricious in that he failed to consider other evidence
regarding the amount of rainfall;
14
.__._........_.
fir✓ �✓'
b. the Planning Director's reliance on only the isohyet line
and one rain gauge was arbitrary in that Rule 22
contemplates that there would be reliance on more than one
rain gauge, and that the isohyet line was within a
reasonable distance from Appellant's property.
There is no FOF or any evidence anywhere in the ROA to support such a Decision and
Order. The ROA reflects that the Director considered all of the information included in the
Variance Application and provided a statement of the factual findings supporting his decision
to deny the Variance Application as he is required to do pursuant to Section 23-18 of the
Subdivision Code. Jin and Lu, on the other hand, provided no information to the Director
affirmatively showing that the Property receives an average of 60" of rainfall annually by using
a comparable rain gauge pursuant to Rule 22 and that they otherwise met the requirements of
Section 23-15 of the Subdivision Code, but instead attacked the basis for the Director's denial.
The Board, in turn, shifted the burden of proof to the Director essentially requiring him to
disprove that the Property met the requirements for a variance. The Board is without authority to
shift the burden of proof and by doing so, it violated State law.
C. The Board's Conclusion Of Law No. 6 Exceeds The Bounds Of
Reason Because It Is Unsupported By Any Clearly Articulated
FOF And It Erroneously Placed The Burden On The Director
To Prove That The Variance Application Did Not Meet The Rainfall
Requirement Of Rule 22
Abuse of agency discretion"is apparent when the discretion exercised clearly exceeds
the bounds of reason or disregards rules or principles of law or practice to the substantial
detriment of a party litigant." Brescia v. North Shore Ohana, 115 Hawaii 477, 492,
168 P.3d 929, 944 (Hawai`i 2007) (quoting Kimura v. Kamalo, 106 Hawaii 501, 507,
107 P.3d 430, 436 (2005).
15
In its COL No. 6, the Board concluded that:
6. The Planning Director's interpretation and application of
Rule 22 in the context of this Application represented an
unwarranted exercise of discretion and/or an abuse of
discretion.
The foregoing COL was unsupported by a clearly articulated FOF and erroneously placed
the burden on the Director to further establish that the Property did not meet the rainfall
requirement. Just like with any other permit or approval, the applicant is responsible for
providing the required information in the Variance Application, so that the Director can make a
decision as to whether to approve or deny the Variance Application as he is required to do under
Section 23-18 of the Subdivision Code. There is no evidence in the ROA that Jin and Lu met
their burden of affirmatively showing that all the lots in their proposed subdivision meet the
requirements of Rule 22 and/or that the Variance Application should have been approved. In
fact, in the Board's FOF No. 71,the Board found that Jin and Lu's expert witness did not know
whether the Property receives an average annual rainfall of at least 60" or more per year and did
not conduct a study for Jin and Lu.
Without any evidence in the ROA that Jin and Lu met their burden of proof, the
discretion exercised by the Board in arriving at its COL No. 6 clearly exceeds the bounds of
reason because it had to shift the burden of proof to the Director to arrive at its conclusion. By
doing so, the Board disregarded the requirements of the Subdivision Code for variances, Rule 22
and HRS § 91-10(5). Moreover, the Board's decision is clearly erroneous in view of the reliable
and substantial evidence (or lack thereof) on the whole record because none of the evidence in
the ROA supported the Board's Decision and Order.
16
V. CONCLUSION
The Board's decision clearly violated State law by shifting the burden of proof to the
Director. Moreover,the Board's decision was arbitrary and characterized by abuse of discretion
and clearly erroneous because its COL and Decision and Order were not supported by the FOF
and the evidence in the ROA.
Based upon all of the foregoing, the Director respectfully requests that the Court reverse
the Board's Findings of Fact, Conclusions of Law, and Decision and Order and issue an Order
deeming the Jin and Lu Variance Application(VAR 06-101) denied as of February 12, 2007,
pursuant to Section 23-18, Hawaii County Code.
Dated: Hilo, Hawaii, January 14, 2008.
CHRISTOPHER J. YUEN, PLANNING
DIRECTOR OF THE COUNTY OF HAWAII,
Appellant
By /-o-
A SELF
Depu Corporation Counsel
His A omey
17
IN THE CIRCUIT COURT OF THE THIRD CIRCUIT
STATE OF HAWAII
CHRISTOPHER J. YUEN, PLANNING CIVIL NO. 07-1-261K
DIRECTOR, COUNTY OF HAWAII, (Agency Appeal)
Appellant, CERTIFICATE OF SERVICE
vs.
BOARD OF APPEALS OF THE COUNTY
OF HAWAII, VALTA COOK,
in his capacity as Chairperson of the BOARD
OF APPEALS OF THE COUNTY OF
HAWAII, EDMUND JIN AND EVA Y. LU,
Appellees.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that January 14, 2008,two (2) copies of the foregoing document
were served upon the following in the manner indicated below:
Hand Delivery Mail Fax
STUART H. ODA, ESQ. (X)
282 Ululani Street
Hilo, Hawaii 96720
Attorney for Appellees
EDMUND JIN AND EVA Y. LU
BROOK L. BANCROFT (X)
Deputy Corporation Counsel
Office of the Corporation Counsel
101 Aupuni Street, Suite 325
Hilo, Hawaii 96720
Attorney for Appellee
BOARD OF APPEALS OF THE COUNTY OF HAWAII
VALTA COOK, Chairperson M
Board of Appeals of the County of Hawaii
101 Pauahi Street,Suite 3
Hilo, Hawaii 96720
Appellee
/All
Y G. SELF
Depifty Corporation Counsel
County of Hawaii
2