395 Associates, LLC v. New Castle County, C.A. No. 05A-01-013 (JRJ) (Del. Super. 7/19/2006)
| Decision Date | 19 July 2006 |
| Docket Number | C.A. No. 05A-01-013 (JRJ). |
| Court | Delaware Superior Court |
| Parties | 395 Associates, LLC, Plaintiff, v. New Castle County, New Castle County Department of Land Use, New Castle County Board of License, Inspection & Review, Defendants. |
Richard L. Abbott, Esquire, of the Abbott Law Firm, Hockessin, Delaware, Attorney for the Plaintiff.
Brian J. Merritt, Esquire, Assistant County Attorney, New Castle, Delaware, Attorney for the Defendants.
395 Associates, LLC, the Plaintiff, filed its Complaint for a Writ of Certiorari on January 26, 2005, seeking review of two administrative decisions issued by the New Castle County Department of Land Use (the "Department") and the New Castle County Board of License, Inspection and Review ("the Board"). As explained below, the decision of the New Castle County Board of License, Inspection and Review is AFFIRMED IN PART, REVERSED IN PART and REMANDED IN PART.
395 Associates, LLC ("the Plaintiff") is a home builder. On August 26, 1998, it received a building permit to construct a new, single family home at 109 Rutledge Court ("the Home"), in the Estates of Farmington, a residential subdivision located in Newark, Delaware. The Department issued a Certificate of Occupancy ("CO") for the Home on April 30, 1999.1 Calvin and Lisa Wise purchased and moved into the Home.2
Between 2002 and 2004, the Department issued three Violation Notices3 to the Plaintiff and the parties participated in two Hearings, which gave rise to the present writ. The Department issued the first Violation Notice on April 19, 2002 ("the Window Violation"). This violation described leaking exterior covering/windows in the family, dining and living rooms and required the Plaintiff to install "exterior covering/windows as required by code to prevent water infiltration."4 The Department issued a second Violation Notice on May 28, 2002 ("the Grading Violation"). This violation described a grading and drainage problem, and required the Plaintiff to "[o]btain proper fall away from house as required by Code."5
On June 12, 2002, the Department held a Rule to Show Cause Hearing on these Violation Notices.6 Based on the evidence and testimony presented, the Department held that the Plaintiff improperly installed approximately six windows,7 had five days to respond to the Grading Violation Notice and that it communicate when it intended to address the grading issue.8 In its July 8, 2002 Rule to Show Cause Decision, the Department directed the Plaintiff to repair the windows, comply with manufacturer's installation instructions, revise the lines and grades plan, and correct the grading.9 The Plaintiff did not appeal this Decision.10
On July 25, 2002, the Department issued a third Violation Notice ("the Handrail Violation"). This violation described a staircase handrail installed below the minimum height prescribed by the Code and required installation of a "handrail as required by Code."11 The Plaintiff did not appeal this Violation Notice.12 It corrected the height problem by replacing the finished railing with an unfinished railing.13 On May 19, 2003, however, the Department notified the Plaintiff that it would not issue a "compliance letter" for the Handrail Violation until an inspection showed the railing and spindles resembled the original finished railing, in compliance with the home warranty standards.14
On January 30, 2004, the Department held another Rule to Show Cause Hearing15 to address the Window Violation, Grading Violation and Handrail Violation Notices.16 The Department issued a written Notice of Rule to Show Cause Decision on July 13, 2004.17 Based on the evidence and testimony presented, the Department found all three violations unresolved.18 Specifically, it held that the Plaintiff: (1) had not repaired or requested an inspection of the windows, which showed signs of leakage during a September 2003 Department site visit, (2) as of a September 2003 site visit, had not achieved the appropriate "fall away" grading in two areas, as required by law, and (3) had not completed the handrail installation because the handrail still lacked the appropriate paint or stain finish. With regard to the Plaintiff's statute of limitation defenses, the Department found that the Window Violation and Handrail Violation were issued within three years of the CO and not barred by the statute of limitations.19 With respect to the Grading Violation, the Department found that although this violation was not issued within the three years, the Plaintiff "had a responsibility to raise this defense at previous hearings" but failed to do so.20 Thus, the Department held that Plaintiff waived its statute of limitations defense.
The Department directed the Plaintiff to correct and have inspected all outstanding violations by August 12, 2004, or incur a fine of $500.00 per day for each day after that date on which the violations remained outstanding.21 On August 2, 2004, the Plaintiff appealed the Department's July 13, 2004 written decision (pertaining to the January 30, 2004 hearing) and its scheduling of a follow-up Rule to Show Cause Hearing.22
The Board heard this matter on December 14, 2004, and affirmed the Department's Decision.23 The Board issued a written decision on December 30, 2004.24 The Board held that the Department's actions were not arbitrary, capricious or contrary to law.25 Specifically, the Board found that: (1) the Department committed no error of law by refusing to close the Handrail Violation because repairs to the obvious Code violation were not completed in the "workmanlike and acceptable manner" required by BOCA, the new handrail remained unfinished, and the home warranty does not prevent the Department from enforcing the Code as to this violation; (2) the Department had sufficient evidence to reconcile the conflicting testimony on the Grading and Window Violations and after judging the witnesses' credibility and weighing all the evidence, the Department properly determined the violations still existed; (3) the Department issued the Handrail and Window Violation Notices prior to April 30, 2002, before the limitations period closed; and (4) as to the Grading Violation, the Plaintiff waived its Statute of Limitations argument by failing to raise the defense within a sufficient amount of time after receiving the violation notices.26
On January 26, 2005, the Plaintiff filed the present Complaint in Certiorari in this Court seeking review of the Board's decision.27 The Writ of Certiorari issued on February 7, 2005. On March 8, 2005, the Department returned the Record of the Proceedings Before the Board on Application No. 04-0003.28 Briefing has concluded and the matter is ripe for decision.
"Under Delaware law, a writ of certiorari is essentially a common law writ."29 Its purpose "is to permit a higher court to review the conduct of a lower tribunal of record."30 "Under this common law writ, this Court has the power to quash or affirm the proceedings and to remand."31 The "threshold qualifications for a Certiorari review ...[are] in particular that the judgment below is final, and that there must be no other available basis for review."32 The Court's review on certiorari "involves a review only of errors that appear on the face of the record."33 Certiorari review differs from appellate review in that an appeal "brings up the case on its merits," while a writ brings the matter before the reviewing court to "look at the regularity of the proceedings."34 Thus, certiorari review "is not the same as review on appeal" because it "is on the record and the reviewing court may not weigh evidence or review the lower tribunal's factual findings."35 To that end, the "transcript of the evidence below is not part of the reviewable record ... the Court cannot examine the transcript in order to evaluate the adequacy of the evidence which supports the conclusion rendered below."36 It is the function of "the agency, not the court, to weigh evidence and resolve conflicting testimony and issues of credibility."37 Thus, the Court does not consider the case below "on its merits" or "substitute its own judgment for [that] of the inferior tribunal."38 Instead, the Court's review is limited to considering "the record to determine whether the lower tribunal[:]" (a) exceeded its jurisdiction, (b) committed errors of law, or (c) proceeded irregularly.39 A decision "will be reversed on jurisdictional grounds only if the record fails to show that the matter was within the lower tribunal's personal and subject matter jurisdiction."40 A decision "will be reversed for an error of law ... when the record affirmatively shows that the lower tribunal has 'proceeded illegally or manifestly contrary to law.'"41 Finally, a decision "will be reversed for irregularities of proceedings if the lower tribunal failed to create an adequate record to review."42 The "burden of persuasion rests upon the party attempting to show that the Board's decision was arbitrary and unreasonable."43
The Court must address a preliminary issue before it can consider the Plaintiff's substantive arguments on review. First, the Court must address Defendants' claim that this Court lacks jurisdiction to review the Board's Decision. The Defendants did not raise this argument until now. According to the Defendants, this Court is without jurisdiction to hear the writ because the Plaintiff failed to timely appeal the July 8, 2002 Notice of Rule to Show Cause Decision, the July 25, 2002 Handrail Violation, and the May 19, 2003 Letter directing completion of the Handrail repairs in accordance with New Castle County Code § 6.10.003.44 As a result, argue Defendants, the Plaintiff lost the opportunity...
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