Christopher J. YUEN, Planning Director, County of Hawaii, Appellant-Appellee,
BOARD OF APPEALS OF the COUNTY OF HAWAI‘ I, Valta Cook, in his capacity as Chairperson of the Board of Appeals of the County of Hawaii, Appellee, and Edmund Jin and Eva Y. Lu, Appellees-Appellants.
This decision has been designated as "Unpublished disposition." in the Pacific Reporter. See HI R RAP RULE 35
Appeal from the Circuit Court of the Third Circuit (Civil No. 07-1-261K).
Stuart H. Oda, on the briefs, for Appellees-Appellants.
Amy G. Self, Katherine A. Garson, Deputies Corporation Counsel, on the briefs, for Appellant-Appellee.
NAKAMURA, C.J., FUJISE and GINOZA, JJ.
This secondary appeal arises from the decision of Appellant-Appellee Christopher Yuen, County of Hawaii Planning Director (Director) denying Appellees-Appellants Edmund Jin and Eva Y. Lu's (Jin and Lu) application for a water variance in order to subdivide property they own. After the Director denied Jin and Lu's water variance application, they petitioned for review by the Board of Appeals of the County of Hawaii (Board). The Board ruled in favor of Jin and Lu, approving the variance. The Director appealed to the Circuit Court for the Third Circuit (circuit court). The circuit court, in turn, reversed the Board, denied the water variance, and entered judgment in favor of the Director. Jin and Lu filed a timely notice of appeal to this court.
In their points of error raised in this appeal, Jin and Lu contend the circuit court erred by: (1) denying their motion to dismiss for lack of jurisdiction, because the Director's notice of appeal to the circuit court was untimely; (2) concluding that Rule 22-4 of the County of Hawaii Planning Department's Rules of Practice and Procedure (Planning Department Rules) was valid and enforceable; and (3) holding that the subject property did not receive sixty inches of annual rainfall and that Jin and Lu failed in their burden of proof and persuasion before the Board.
Jin and Lu are owners of a 35.9 acre lot located in South Kona, County of Hawaii. Jin and Lu want to create a six-lot subdivision and, because the property is outside the service limits of the County's water system, a variance is required from Section 23-84 of the Hawaii County Code, part of the Subdivision Code, which sets out water supply requirements for a subdivision. Section 23-84 requires:
Section 23-84. Water supply.
A subdivision to be laid out after December 21, 1996 shall be provided with water as follows:
(1) A water system meeting the minimum requirements of the County department of water supply; and
(2) Water mains and fire hydrants installed to and within the subdivision in accordance with the rules and regulations of the department of water supply, adopted in conformity with article VIII of the Charter.
Hawaii County Code (HCC) § 23-84 (2005 Edition, as amended).
In order to obtain a variance, Section 23-15 of the County Code states:
Section 23-15. Grounds for variances.
No variance will be granted unless 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.
HCC § 23-15.
Rule 22 of the Planning Department Rules, entitled " Water Variance," provides the " criteria for the granting or denial of variances from sec. 23-84 of the Subdivision Code" and " applies to requests for subdivisions that propose to rely on rain catchment for their water supply, on agriculturally-zoned property." Planning Department Rules, Rule 22-1. More specifically and the focus of this case, Rule 22-4 entitled " Minimum rainfall" provides:
[A]ll lots to be served by catchment shall have an average annual rainfall of not less than 60" . The annual rainfall can be proven by rainfall records at comparable rain gauges, or by the USGS rainfall map.
Jin and Lu propose that water for a subdivision on their property be supplied by private water catchment systems. To this end, Jin and Lu submitted an " Application for Variance from Subdivision Code" on December 21, 2006 to the County of Hawaii Planning Department (Planning Department). Jin and Lu's application for variance stated, in part:
The Property runs from Mamalahoa Highway up to approximately 1,760 feet in elevation and receives approximately 60 inches of rainfall annually and therefore qualifies for a water variance under the Planning Department's new Rule 22. As shown on the enclosed GIS map, the 60" rainfall line apparently utilized by the Planning Department in reviewing variance applications runs less than 50 feet mauka of the property boundary. Exhibit 5. The attached photographs depict the nature and extent of vegetation present on the property, demonstrating that it receives more than adequate rainfall to support private residential catchment water systems.... Given the proximity of the 60-inch isohyet line to the owners' Property, and because the location of the isohyet line is only an approximation of rainfall patterns intended to assist in large scale hydrogeological resource assessment, it is reasonable to infer that the property receives sufficient rainfall annually to allow effective use of private residential catchment systems.
On February 12, 2007, the Director issued a letter denying Jin and Lu's request for a variance. The letter explained, in part, that the proposed catchment systems " would not meet the intent and purpose of the Subdivision Code" and were " not allowed pursuant to Planning Department Rule 22-Water Variance, effective February 25, 2006." The letter further stated that 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 [needs] ...