Di's, Inc. v. McKinney, 70

CourtUnited States State Supreme Court of Delaware
Citation673 A.2d 1199
Docket NumberNo. 70,1995,70
PartiesDI'S, INC., a Delaware corporation, Defendant Below-Appellant, v. Clarence W. McKINNEY, Sr., Plaintiff Below-Appellee. . Submitted:
Decision Date07 December 1995

Upon appeal from the Superior Court. AFFIRMED.

Court Below: Superior Court of the State of Delaware in and for Kent County; C.A. No. 94-A-01-001.

George F. Gardner, III of Parkowski, Noble & Guerke, P.A., Dover, for Appellant.

Mark F. Dunkle of Prickett, Jones, Elliott, Kristol & Schnee, Dover, for Appellee.

Before VEASEY, C.J., WALSH, HOLLAND, HARTNETT and BERGER, JJ., constituting the Court en Banc.

BERGER, Justice: For the majority,

This is an appeal from a decision of the Superior Court overturning a decision of the Kent County Board of Adjustment (the "Board") interpreting Article 9, Section 14.6 of the Kent County Zoning Ordinance. Appellant, Di's, Inc. ("Di's"), persuaded the Board that a retail shopping center is a permitted accessory use for a manufactured home park. Appellee, Clarence W. McKinney, Sr. ("McKinney"), appealed the Board's decision and the Superior Court reversed. In this appeal, Di's argues that the Board's decision should be reinstated because: (i) McKinney did not perfect a timely appeal; (ii) McKinney lacks standing to contest the Board's decision; and (iii) the Superior Court erred in construing the relevant zoning ordinance.

We hold that the Superior Court correctly applied the facts and the law. McKinney has standing as an adjoining landowner and his Petition for Review, although unverified, was sufficient to invoke the jurisdiction of the Superior Court. The Superior Court acted within its discretion in permitting McKinney to amend his Petition, by verifying it, after the statutory appeal period had run and in issuing a second writ of certiorari. On the merits, we conclude that the Superior Court correctly interpreted Section 14.6 of the Kent County Zoning Ordinance and that the record evidence did not support the Board's conclusion.


The property in question consists of approximately 71 acres bordering U.S. Route 13 just north of Dover, Delaware. The property, known as Kentwood Estates Mobile Home Park ("Kentwood"), was developed in the 1960s, before zoning ordinances were enacted in Kent County. Kentwood later was zoned "Residential Manufactured Home" or "RMH." However, since Kentwood did not meet all of the requirements of an RMH classification, it was grandfathered as a permissible non-conforming use. 1

After Di's acquired Kentwood, it sought authorization for commercial development of a portion of the parcel adjoining U.S. Route 13. In August 1993, Di's applied for an expansion of its existing non-conforming use and a series of variances. That application was denied by the Kent County Department of Planning on October 21, 1993. On November 1, 1993, Di's filed a new application, seeking a determination that "a convenience store with gas pumps, a video store, a pizza or sub shop, an insurance office, and hardware store are ... uses or structures customarily incidental to the operation of a manufactured home park." At the hearing on Di's application, evidence was presented that numerous other mobile home parks in lower Delaware adjoin gas stations, convenience stores and other small retail establishments. In its one-paragraph decision, the Board ruled in Di's favor, stating that, "As long as the property is zoned B-G (General Business), a convenience store with gas pumps and all of the stores requested by the applicant go hand in hand with a development or subdivision."


On January 14, 1994, 29 days after the Board's decision, McKinney filed an unverified Petition for Review in the Superior Court. The Prothonotary issued a writ of certiorari and the Board forwarded its record to the court. On February 28, 1994, Di's answered the Petition for Review. Two of the affirmative defenses in Di's answer sought dismissal because (i) the Petition was not verified and (ii) the writ of certiorari was issued by the Prothonotary, rather than the court.

McKinney did nothing to address these two defects until September 29, 1994, when he moved to amend the Petition to include the verification, and presented the court with an order for it to sign issuing the writ of certiorari. By that time, the Board had already provided its record pursuant to the original writ of certiorari executed by the Prothonotary. In addition, the parties had engaged in discovery and completed briefing on the Petition for Review. Nonetheless, on October 3, 1994, the Superior Court issued another writ of certiorari. McKinney's motion to amend was granted in the course of Superior Court's decision on the merits.


Di's argues that McKinney is not an aggrieved party entitled to challenge the Board's decision. Di's acknowledges that McKinney is an adjoining landowner. Nonetheless, it argues that McKinney's only interest in Di's application is economic. McKinney operates a convenience store on his neighboring property and there is evidence to suggest that McKinney is concerned about the competition from Di's proposed shopping center, which would include a convenience store. Di's relies upon authorities from other jurisdictions for the proposition that zoning regulations were not designed to protect citizens from competition and that a party who opposes a zoning application on that ground alone is not "aggrieved" within the meaning of 9 Del.C. § 4918.

We find this argument to be without merit. At the Board hearing, McKinney's family expressed concerns about traffic patterns and the adverse impact Di's convenience store would have on the entire neighborhood. Thus, the contention that McKinney was motivated solely by economic interests is not well founded. McKinney is an adjoining landowner who contends that the proposed shopping center will be detrimental to the neighborhood. As such, McKinney has standing to object to the Board's decision, which has the effect of expanding an existing non-conforming use. See Tate v. Miles, Del.Supr., 503 A.2d 187 (1986) (owners of property 1500 feet from the rezoned land have standing where they claim that the rezoning will increase traffic and adversely affect natural resources).


Di's raises two jurisdictional issues, both related to the lack of full compliance with the terms of the governing statute, 9 Del.C. § 4918. That statute provides, in relevant part:

(a) Any persons jointly or severally aggrieved by any decision of the Board of Adjustment ... may present to the Superior Court in and for Kent County a petition duly verified, setting forth that such decision is illegal in whole or in part, specifying the grounds of the illegality. The petition shall be presented to the Court within 30 days after the filing of the decision in the office of the Board.

(b) Upon presentation of the petition, the Court may allow a writ of certiorari, directed to the Board of Adjustment, to review the decision of the Board of Adjustment, and shall prescribe therein the time within which a return thereto must be made and served upon the petitioner's attorney, which shall not be less than 10 days and may be extended by the Court.

9 Del.C. § 4918.

McKinney filed a petition within 30 days after the filing of the Board's decision, alleging that the Board's decision was illegal, and stating the grounds of the purported illegality. However, the petition was not "duly verified" and McKinney did not submit a verification to the Court until well after the 30-day time limit had expired. In addition, the writ of certiorari attached to McKinney's petition called for a signature by the Prothonotary, rather than a court order and the writ, in fact, was issued by the Prothonotary. McKinney did nothing to correct this mistake, either, for approximately eight months. Both deficiencies ultimately were corrected. The question thus presented is whether the Superior Court may acquire jurisdiction of an appeal under Section 4918 before the appellant has fully complied with the statute. If so, we must determine whether the court acted within its discretion in allowing McKinney to cure his defective filing eight months after the appeal was commenced.

In considering the effect of McKinney's failure to verify his Petition for Review, we note first that the § 4918 petition is the functional equivalent of a notice of appeal. Chadwick v. Janaman, Del.Supr., 349 A.2d 742, 743 (1975). The writ of certiorari, similarly, takes the place of a citation issued by the Prothonotary pursuant to Superior Court Civil Rule 72(e). "Certiorari to the Superior Court is, in effect, an appeal, differing only by being confined to the record and requiring a mere ministerial act on the part of a judge in ordering issuance of the writ." Chadwick v. Janaman, 349 A.2d at 743. Thus, it is appropriate to compare the lack of verification to other defective notices of appeal in deciding whether McKinney's defective filing was sufficient to invoke the jurisdiction of the Superior Court.

More than 30 years ago this Court adopted the "modern view" that, where possible and where there is no prejudice, appeals should not be dismissed on technicalities. In Episcopo v. Minch, Del.Supr., 203 A.2d 273, 275 (1964), this Court denied a motion to dismiss an appeal where the notice of appeal failed to identify the date or the nature of the order appealed from. This Court ruled that appeals should be "decided on the merits and not upon nice technicalities of practice."

In State Personnel Commission v. Howard, Del.Supr., 420 A.2d 135 (1980), this Court again endorsed a policy favoring substantive review. In Howard, appellant failed to join two of the original plaintiffs in its appeal. The Howard Court adopted guidelines to decide whether omissions in a notice of appeal are fatal: to avoid dismissal, the appellant must establish the absence of...

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