Cheng v. Department of Planning and Permitting

NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
20-MAY-2025
08:05 AM
Dkt. 51 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI‘I

TIELI WANG AND GUIJUN CHENG,
Petitioners/Appellants-Appellees,
v.
DEPARTMENT OF PLANNING AND PERMITTING,
Respondent/Appellee-Appellant; and
THE ZONING BOARD OF APPEALS, Nominal Appellee-Appellee

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CCV-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Hiraoka, Presiding Judge, McCullen and Guidry, JJ.)

Respondent/Appellee-Appellant Department of Planning

and Permitting, City and County of Honolulu (DPP) appeals from

the "Decision and Order Affirming in Part and Reversing in Part

the Findings of Fact, Conclusions of Law, and Decision and Order

of the Zoning Board of Appeals, Dated November 4, 2021" (Order),
NOT FOR PUBLICATION IN WEST'S HAWAI‘I REPORTS AND PACIFIC REPORTER

and "Appellants' Final Judgment" (Judgment), both filed on

September 28, 2022, by the Circuit Court of the First Circuit

(circuit court).1

This secondary appeal arises out of a Zoning Board of

Appeals of the City and County of Honolulu (ZBA) case concerning

Tieli Wang and Guijun Cheng's (collectively, Petitioners)

violation of Revised Ordinances of Honolulu (ROH) § 21-

5.730(d)(2)(D)2 (1990)3 for an "[u]npermitted bed and breakfast

or transient vacation unit . . . being advertised for rental

periods of less than 30 consecutive days." The DPP issued a

Notice of Violation (NOV), dated March 31, 2020, instructing the

Petitioners to comply with the NOV within seven days upon

receiving the NOV, and warning the Petitioners that

noncompliance would result in the issuance of a Notice of Order

(NOO) imposing civil fines.

The Petitioners did not comply with the NOV, and the

DPP subsequently issued an NOO, dated May 26, 2020. It appears

Petitioner Wang received the NOO by certified mail with

1 The Honorable James H. Ashford presided.

2 The Notice of Violation cites this section as § 21-5(d)(2)(D).
Ordinance 19-18 added § 21-5 to the ROH, and it now appears as § 21-5.730 in
the 1990 ROH.

3 The ROH sections quoted and cited in this summary disposition
order are from the 1990 ROH, as amended, which were in effect at the time the
Petitioners were given notice of their ordinance violation.

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restricted delivery on June 2, 2020. The NOO stated, in

relevant part,

The [DPP] inspected the above-described structure(s) and/or
premises and found a violation of one or more ordinances of
the City and County of Honolulu. As a result, [NOV] No.
2020/NOV-03-133 was issued on March 31, 2020 (copy
attached). Pursuant to the authority granted by the [ROH],
you are hereby ordered to:

1. Cease and desist immediately any bed and breakfast
and/or transient vacation unit activity, and remove
the rental solicitation listing from your website.

2. Pay a daily fine of $1,000[4] until the violation is
corrected. You are responsible for contacting the
inspector . . . to verify the corrective action.

. . . .

If the order is issued to more than one person, each person
shall be jointly and severally liable for the full amount
of any fine imposed by the order.

This order shall become final thirty (30) days after
mailing. Before such time, any person affected by this
order may file an administrative appeal of any provision in
this order. . . . The failure to appeal this order within
the specified time may result in a waiver of the right of
appeal. An appeal does not suspend any provision of the
order, including the imposition of the civil fines.

The record reflects that the DPP mailed a letter,

dated August 31, 2020, to the Petitioners. The subject line of

this letter referenced the NOV and NOO, and "Outstanding Fine."

It informed the Petitioners that "[a] daily fine of $1,000 is

4 The $1,000 per day fine was assessed pursuant to ROH § 21-
5.730(c)(2)(B) (1990), which states in relevant part,

If the [transient vacation rental] advertisement is not
removed within seven days after receipt of the [NOV], a
fine of not less than $1,000 and not more than $10,000 per
day will be levied against the owner or operator associated
with the bed and breakfast home or transient vacation unit,
for each day the advertisement is on public display beyond
seven days from the date the [NOV] is received.

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being assessed until the violation is corrected," and "[a]s of

the date of [the] letter, daily fines in the amount of $96,000

(96 days at $1,000/day) have accrued."

The Petitioners subsequently corrected the violation,

which the DPP confirmed through a second letter, dated

December 1, 2020 (Letter). The Letter stated that "the subject

NOV was corrected on September 21, 2020, when a follow-up search

revealed that the advertisements associated with the website

were removed," and "[a]lthough the violation was resolved, daily

fines in the amount of $117,000 (117 days at $1,000/day) are due

and owing."

On December 28, 2020, the Petitioners filed an appeal

of the NOO and the Letter with the ZBA. The DPP moved to

dismiss the appeal, contending that the appeal was untimely as

to the NOO, and must be dismissed for lack of jurisdiction with

regard to the Letter.

The ZBA issued its "Findings of Fact, Conclusions of

Law, and Decision and Order" on November 19, 2021, in which it

made the following findings:

D. On May 26, 2020, DPP issued [NOO] No. 2020/NOO-146 to
Petitioners by mailing the NOO, via the United States
Postal Service ("USPS") certified mail with
restricted delivery and return receipt requested, to
two addresses that DPP determined Petitioners share.

E. It is DPP's practice to mail one NOO to co-owners
that share an address. When co-owners do not share
an address, DPP's practice is to mail each owner a
separate NOO to their individual address. When co-
owners share an address, it is DPP's practice to find

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service of the NOO on one of the co-owners that share
an address adequate.

F. On June 2, 2020, Mr. Wang signed for NOO No.
2020/NOO-146.

G. NOO No. 2020/NOO-146 states that the violation must
be corrected immediately, orders Petitioners to
"[p]ay a daily fine of $1,000 until the violation is
corrected," and informs Petitioners that they "are
responsible for contacting the inspector . . . to
verify the corrective action."

H. NOO No. 2020/NOO-146 informs Petitioners that the NOO
"shall become final thirty (30) days after mailing.
Before such time, any person affected by this order
may file an administrative appeal of any provision in
this order. . . . The failure to appeal this order
within the specified time may result in a waiver of
the right to appeal."

I. By letter dated August 31, 2020 and addressed to Mr.
Wang and Ms. Cheng ("Lien Warning Letter"), DPP
informed Petitioners that the daily civil fines for
NOO No. 2020/NOO-146 totaled $96,000 and that DPP
would record a lien on their properties if they did
not take action to resolve the matter in
communication with DPP within thirty days.

. . . .

L. By letter dated December 1, 2020, DPP informed
Petitioners that the civil fines accrued for NOO No.
2020/NOO-146 totaled $117,000 because the NOO was
issued on May 26, 2020 and the violation was
corrected on September 21, 2020.

M. Fines for NOO No. 2020/NOO-146 of $1000 per day
started accruing on May 27, 2020, and accrued through
and including September 20, 2020, which is 117 days,
because fines accrue only in full-day increments.

(Citations omitted.) The ZBA concluded, inter alia, that,

G. The ZBA does not have jurisdiction over Petitioners'
appeal of NOO No. 2020/NOO-146 because Petitioners'
appeal was filed nearly seven months after Mr. Wang
signed for NOO No. 2020/NOO-146 on June 2, 2020 and
therefore is grossly untimely.

H. The ZBA does not have jurisdiction over Petitioners'
appeal of the DPP's December 1, 2020 letter notifying
Petitioners of the civil fines accrued for NOO No.
2020/NOO-146 because the letter is not an "action of

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the Director" under Section 22-1 of the ZBA Rules and
thus is not appealable to the ZBA.
(Citations omitted.)

The Petitioners appealed to the circuit court pursuant

to Hawaii Revised Statutes (HRS) § 91-14 (2012). On appeal, the

Petitioners contended that the ZBA erred in concluding that it

lacked jurisdiction over the Petitioners' case because the

Letter was an "[a]ction of the Director," and the Petitioners'

appeal was filed within thirty days of the DPP's service of the

Letter.5

In its Order, the circuit court concluded that:

3. The December 1, 2020 Letter was issued by the Deputy
Director of the DPP. While the December 1, 2020 Letter
largely restates the contents of the NOO, it adds two new
determinations by the DPP that had not been previously
determined or stated to the [Petitioners]. First, the
Deputy Director determined that the subject violation had
been corrected on September 21, 2020. Second, it
determined that, at the rate of $1,000 per day, the total
fine imposed on the [Petitioners] was $117,000. Thus,
implicitly and necessarily, the Deputy Director determined
that the [Petitioners] had been illegally advertising the
subject property for rent for 117 days, continuously and
without a single day of interruption. Thus, while some of
the contents of the December 1, 2020 Letter had already
been determined in the NOO (i.e., the fact of illegal
advertisement prior to the NOO, and the imposition of a
$1,000 daily fine), the December 1, 2020 Letter constituted
a new finding and a new order that the [Petitioners] were
in violation for 117 separate and distinct days, leading to
the imposition of a $117,000 fine. Therefore, the December
1, 2020 Letter is an "action of the director" under the ZBA
Rules, because it is necessarily an "enforcement order
pursuant to section 8.60-2 of the Land Use Ordinance"
thereunder.

4. Insofar as [Petitioners] appealed the December 1,
2020 Letter their appeal was timely. Thus, the ZBA erred,

5 Pursuant to ROH § 21-1.40 (1990), "[a]ppeals [must] be filed
within 30 days of the mailing or service" of an "[a]ction of the director" as
defined by the Rules of the Zoning Board of Appeals (ZBA Rules) § 21-1
(1997).

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as a matter of law, in granting DPP's motion to dismiss
with respect to the December 1, 2020 Letter.

. . . .

7. Accordingly, insofar as [Petitioners] appealed NOO
No. 2020/NOO-146, their appeal was untimely and the ZBA
correctly granted DPP's motion to dismiss. However,
insofar as the [Petitioners] appealed the December 1, 2020
Letter, the ZBA erred as a matter of law in concluding that
it did not have jurisdiction to hear that appeal.

This appeal followed. Upon careful review of the

record, briefs, and relevant legal authorities, and having given

due consideration to the arguments advanced and the issues

raised by the parties, we address the DPP's points of error as

follows:

On appeal, the DPP contends, inter alia, that "[t]he

[c]ircuit [c]ourt erred when it concluded that the ZBA had

jurisdiction to hear an appeal of the December 1st Letter."6

"Review of a decision made by the circuit court upon its review

of an agency's decision is a secondary appeal," in which we

"must determine whether the circuit court was right or wrong in

its decision, applying the standards set forth in HRS § 91-

14(g)[(2012)] to the agency's decision."7 Flores v. Bd. of Land

6 The parties do not challenge the circuit court's finding that the
Petitioners' ZBA appeal of the NOO was not taken within the 30-day appeal
period, and was therefore untimely pursuant to ROH § 21-1.40.

7 HRS § 91-14(g) instructs,

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
(continued . . .)

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& Nat. Res., 143 Hawaiʻi 114, 120, 424 P.3d 469, 475 (2018)

(citation omitted).

The ZBA's jurisdiction is established pursuant to

Revised Charter of the City and County of Honolulu 1973 § 6-1516

(Amended 2017 Edition), which states in relevant part:

The [ZBA] shall hear and determine appeals from the actions
of the director in the administration of the zoning
ordinances, including variances therefrom, subdivision
ordinances and any rules and regulations adopted pursuant
to either.

The term "[a]ction of the director" is defined, by ZBA Rules

§ 21-1, as one of the following expressly enumerated actions,

[A] decision rendered on an application pursuant to
the Land Use Ordinance or the Subdivision Ordinance; a
decision rendered on a request for a zoning variance; a
decision rendered on a petition for declaratory ruling; a
decision rendered on a request for reconsideration,
pursuant to part 1, chapter 4, Rules of Practice and
Procedures of the department of land utilization; and an
enforcement order pursuant to section 8.60-2 of the Land
Use Ordinance.

(Emphasis added.)

7(. . .continued)
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.

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On this record, we determine that the circuit court

was wrong in concluding that the ZBA had jurisdiction over the

Petitioners' appeal of the Letter. The Letter states, in

relevant part,

SUBJECT: Notice of Order (NOO) No. 2020/NOO-146
Notice of Violation (NOV) No. 2020/NOV-
03-133
Outstanding Fine
. . . .

The inspector has determined that the subject NOV was
corrected on September 21, 2020, when a follow-up search
revealed that the advertisements associated with the
website were removed. Although the violation was resolved,
daily fines in the amount of $117,000 (117 days at $1,000/
day) are due and owing.

Please make your check, with the NOO number noted on
it, payable to the City and County of Honolulu. . . .

. . . .

If you do not respond within 30 days from the date of
this letter, we will place the amount of the fine
($117,000) as an administrative lien on the property with
foreclosure on the lien as an option for collection of the
civil fine.

The Letter, by its plain terms, was not an

"enforcement order" or any other "[a]ction of the director" as

defined by ZBA Rules § 21-1. The director's "actions" were

taken, pursuant to ROH § 21-2.150-2 (1990),8 through its issuance

8 ROH § 21-2.150-2 was amended in 2022 and 2024. The language of
ROH § 21-2.150-2 that was in effect at the time of the NOV and NOO's
issuance, stated in pertinent part:

(a) In lieu of or in addition to enforcement pursuant to
Section 21-2.150-1, if the director determines that any
person is violating any provision of this chapter, any
rule adopted thereunder or any permit issued pursuant
thereto, the director may have the person served . . .
with a written notice of violation and order pursuant
to this section. . . .
(continued . . .)

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of the NOV and NOO. The NOV informed the Petitioners of the ROH

§ 21-5.730(d)(2)(D) violation, and ordered the Petitioners to

remedy their violation by ceasing to advertise their transient

vacation unit within seven days upon receiving the NOV. The NOO

provided the Petitioners with notice of the $1,000 per day fine,

and stated that this fine would continue to accrue until the

violation was corrected.

8(. . .continued)

(b) Contents of the Notice of Violation. The notice must
include at least the following information:
(1) Date of the notice;
(2) The name and address of the person noticed;
(3) The section number of the provision or rule, or the
number of the permit that has been violated;
(4) The nature of the violation; and
(5) The location and time of the violation.
(c) Contents of Order.
(1) The order may require the person to do any or all
of the following:
(A) Cease and desist from the violation;
(B) Correct the violation at the person's own expense
before a date specified in the order;
(C) Pay a civil fine not to exceed $1,000 in the
manner, at the place and before the date
specified in the order; and
(D) Pay a civil fine not to exceed $5,000 per day for
each day in which the violation persists beyond
the date specified in paragraph (C), in the
manner and at the time and place specified in the
order.
. . . .

(3) The order must advise the person that the order
will become final 30 days after the date of its
mailing or delivery. The order must also advise
that the director's action may be appealed to the
[ZBA].
(d) Effect of Order—Right to Appeal. The provisions of the
order issued by the director under this section will
become final 30 days after the date of the mailing or
delivery of the order. The person may appeal the order
to the [ZBA] as provided in Charter Section 6-1516.
However, an appeal to the [ZBA] will not stay any
provision of the order.

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ROH § 21-2.150-2(e) (1990) instructs that a NOO may be

judicially enforced through a civil action: "The director may

institute a civil action in any court of competent jurisdiction

for the enforcement of any order issued pursuant to this

section." (Emphasis added.) The Letter informed the

Petitioners that failure to respond to the Letter within thirty

days could result in a civil action for imposition of an

administrative lien on the property and a foreclosure action on

the lien. The Letter thus notified the Petitioners that the DPP

could initiate an enforcement action in thirty days, pursuant to

ROH § 21-2.150-2(e), "in any court of competent jurisdiction";

the Letter did not itself constitute an enforcement action.

Hoku Lele, LLC v. City and County of Honolulu,

129 Hawaiʻi 164, 296 P.3d 1072 (App. 2013), is instructive. In

Hoku Lele, this court explained that,

By expanding its definition of "actions of the director,"
the ZBA Rules could have granted the ZBA the power to
review a broader range of the director's functions, such as
the director's issuance of responses to zoning verification
requests. Instead, however, the ZBA Rules expressly limit
its jurisdiction to deciding appeals from four specifically
enumerated actions, none of which apply to the director's
letters in this case.

Id. at 169, 296 P.3d at 1077 (emphasis added).

For the foregoing reasons, we conclude on this

secondary appeal that the circuit court erred in vacating the

ZBA's dismissal of the Petitioners' appeal for lack of

jurisdiction. We therefore reverse the circuit court's Order

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and Judgment, and affirm the ZBA's November 19, 2021 "Findings

of Fact, Conclusions of Law, and Decision and Order."

DATED: Honolulu, Hawaiʻi, May 20, 2025.

On the briefs: /s/ Keith K. Hiraoka
Presiding Judge
John E. Dubiel and
Brad T. Saito, /s/ Sonja M.P. McCullen
Deputies Corporation Counsel Associate Judge
for Respondent/Appellee-
Appellant. /s/ Kimberly T. Guidry
Associate Judge
John Rapp,
for Petitioners/Appellants-
Appellees.

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