McCafferty v. New Castle Cnty. Bd. of License

• Decision Date: 26 April 2021
• Docket Number: C.A. No. N20A-10-001 JRJ
• Parties: JOHN P. MCCAFFERTY, Petitioner, v. NEW CASTLE COUNTY BOARD OF LICENSE, INSPECTION AND REVIEW and NEW CASTLE COUNTY CODE ENFORCEMENT OFFICER CHRISTOPHER YASIK, Respondents.
• Court: Delaware Superior Court

JOHN P. MCCAFFERTY, Petitioner, v. NEW CASTLE COUNTY BOARD OF LICENSE,INSPECTION AND REVIEWand NEW CASTLE COUNTY CODE ENFORCEMENT OFFICER CHRISTOPHER YASIK, Respondents.

C.A. No. N20A-10-001 JRJ

SUPERIOR COURT OF THE STATE OF DELAWARE

Submitted: February 15, 2021

April 26, 2021

MEMORANDUM OPINION

Upon John P. McCafferty's Writ of Certiorari from the Decision of the Board of License, Inspection and Review: AFFIRMED.

John P. McCafferty, Claymont, Delaware, Pro se.

Jordan Perry, Esquire, 87 Reads Way, New Castle, DE 19720, Attorney for Respondents.

Jurden, P.J.

I.INTRODUCTION

On two separate occasions, RespondentChristopher Yasik("Officer Yasik"), a New Castle County code enforcement officer, cited PetitionerJohn P. McCafferty for storing debris in a manner that violated the New Castle County Property Maintenance Code.The second citation is at issue here.McCafferty appealed that citation to the New Castle County Department of Land Use(the "Division").An Administrative Hearing Officer upheld the citation.McCafferty then appealed to Respondent New Castle County Board of License, Inspection & Review(the "Board"), which also upheld the citation.McCafferty's case is now before the Court on certiorari review.McCafferty asserts a host of constitutional objections to the substance and procedure of the Division's code-enforcement system.For the reasons stated below, the Board's decision is AFFIRMED.

II.FACTUAL BACKGROUND AND PROCEDURAL HISTORY

A.The First Citation

In September 2019, the Division received an anonymous complaint that there were rats on three parcels of residential property.¹One of these parcels belongs to McCafferty.²Officer Yasik arrived at McCafferty's property to investigate thecomplaint.³Although Officer Yasik did not find any rats, he did find a storage of debris on the property that violated the Property Maintenance Code.⁴

On November 12, 2019, Officer Yasik cited McCafferty for the debris violation.⁵McCafferty appealed that citation to an Administrative Hearing Officer.⁶At the December 2019 hearing, McCafferty argued that Officer Yasik's photographs were illegally obtained—and therefore inadmissible—because they appeared to have been taken from somewhere inside of the fence that surrounds McCafferty's yard.⁷The Administrative Hearing Officer could not determine from the photographs whether Officer Yasik had, in fact, been on McCafferty's property.⁸Faced with this uncertainty, the Administrative Hearing Officer dismissed the citation without prejudice on December 19, 2019.⁹

B.The Second Citation

Officer Yasik's computer system did not register the decision as a definitive ruling as to whether the debris violated the Property Maintenance Code.¹⁰For thatreason, McCafferty's case remained open.¹¹Eventually, the computer system prompted Officer Yasik to return to McCafferty's property, which he did on January 16, 2020.¹²When he arrived, Officer Yasik again noticed debris on the property.¹³Officer Yasik photographed the debris while standing in the yard of one of McCafferty's neighbors.¹⁴On January 17, 2020, Officer Yasik issued McCafferty a second citation.¹⁵

On January 30, 2020, McCafferty appealed the second citation to the Department.¹⁶On February 18, 2020, the Department held a hearing.¹⁷At the hearing, McCafferty argued that Officer Yasik did not have permission to enter his neighbor's yard, so the photographs that Officer Yasik took from that location were inadmissible.¹⁸McCafferty also argued that the first citation had been dismissed because the photographs supporting it were taken from an illegal vantage point (i.e.,on McCafferty's property).¹⁹Reasoning that the second citation was a mere continuation of the first citation, McCafferty argued that the second citation should be dismissed as well.²⁰

On February 26, 2020, the Administrative Hearing Officer issued a decision denying McCafferty's appeal.²¹The Administrative Hearing Officer noted that Officer Yasik had taken the photographs during the course of his official duties, so, pursuant to the Unified Development Code, he had a right to enter the neighbor's yard.²²The Administrative Hearing Officer also pointed out that McCafferty had not presented any evidence that his neighbor refused Officer Yasik's entry.²³Lastly, the Administrative Hearing Officer clarified that the first citation had been dismissed without prejudice because it was unclear where Officer Yasik had been standing, not because Officer Yasik had, in fact, been standing on McCafferty's property.²⁴

On March 13, 2020, McCafferty appealed the Department's decision to the Board.²⁵On March 16, 2020, the Department received a Stay of Action request from McCafferty.²⁶The request asked the Department to halt further investigations of his property until June 15, 2020 so that McCafferty could address the debris issue on hisproperty.²⁷On March 26, 2020, the Department granted McCafferty's request and informed McCafferty that his hearing with the Board would be delayed due to COVID-19.²⁸The hearing took place on August 26, 2020.²⁹On September 15, 2020, the Board affirmed the Department's decision denying McCafferty's appeal.³⁰On October 15, 2020, McCafferty filed a Petition for a Writ of Certiorari in this Court.³¹

III.STANDARD OF REVIEW

A party who is aggrieved by a Board decision does not have a right to appellate review.³²Rather, the party must file petition for a writ of certiorari with this Court.³³The Court's review in a certiorari proceeding is limited.³⁴The Court"may not weigh evidence or review the lower tribunal's factual findings."³⁵Normay the Court"consider the case on its merits."³⁶The Court may only examine the face of the record to determine whether the Board (1)"exceeded its jurisdiction"(2)"proceeded illegally or manifestly contrary to law," or (3)"proceeded irregularly."³⁷

IV.DISCUSSION

A.The Complaint-Driven System

McCafferty first argues that the complaint-driven system of code enforcement is unconstitutional because it amounts to a selective and arbitrary enforcement of the law.³⁸According to McCafferty, if no one complains about a property that contains a code violation, that violation goes overlooked.³⁹In addition, spiteful homeowners can weaponize the system by filing anonymous complaints—even if unfounded—without ever having to face confrontation.⁴⁰McCafferty suggests that code enforcement officers should be required to obtain a search warrant when responding to anonymous complaints.⁴¹

To begin, McCafferty has not identified which provision of which constitutionhe believes the complaint-driven system of code enforcement violates.As a general matter, Delaware courts do not fish for constitutional violations in legislativeschemes.⁴²Constitutional questions aside, there are sound policy reasons to enact a complaint-driven system.For example, investigations demand resources, so it would be burdensome for the Department to have to seek out violations on its own.⁴³And if the Department were to seek out violations on its own, that could bring about the very arbitrariness that McCafferty fears.As for the issue of anonymous complainants, there is no evidence that McCafferty was the target of a neighbor's grudge.The anonymous complainant cited rat problems at two addresses in addition to McCafferty's.If McCafferty nonetheless believes that the complaint-driven system needs amending, his remedy is to petition the New Castle County Council.

B.The Computer System

McCafferty argues that the Department's code-enforcement computer system violates "due process, innocent until proven guilty, double jeopardy, etc."⁴⁴He contends that Officer Yasik should not have visited his property after the first citation was dismissed.⁴⁵

First, the presumption of innocence and the protection from double jeopardy apply in the criminal context, not in the civil context.⁴⁶Next, McCafferty does not explain how the computer system violates his due process rights.If his argument is that the dismissal of his first citation precluded further action by the Department, the Board addressed that issue during the hearing.⁴⁷The Board questioned Officer Yasik, who explained that the Administrative Hearing Officer's dismissal without prejudice was not a definitive ruling on the merits, so McCafferty's case remained open on Officer Yasik's computer system.⁴⁸

C.Officer Yasik's Entry of Private Property

McCafferty argues that Officer Yasik violated his and his neighbor's right to privacy by entering their properties without a warrant.⁴⁹Hence, McCafferty maintains that Officer Yasik's photographs "should be excluded as tainted evidence."⁵⁰And without those photographs as evidence, McCafferty reasons, the second citation must be dismissed.⁵¹

As a factual matter, the record shows that the Administrative Hearing Officer did not conclude that Officer Yasik was in McCafferty's yard when he took the first round of photographs.Rather, the Administrative Hearing Officer could not determine where Officer Yasik was located.And nothing in the record shows that Officer Yasik entered McCafferty's property in connection with the second round of photographs.Officer Yasik testified that he entered the yard of McCafferty's neighbor, which the Unified Development Code permitted him to do.⁵²

Turning to McCafferty's Fourth Amendment concerns, the Court first notes that McCafferty lacks starting to assert a violation of his neighbor's Fourth Amendment rights.⁵³As for McCafferty's own Fourth Amendment rights, Officer Yasik committed no violation.Officer Yasik entered the yard of McCafferty's neighbor pursuant to the Unified Development Code.⁵⁴From that location, Officer Yasik could observe whatever was visible to him without offending the Fourth Amendment.⁵⁵

D.Vague, Ambiguous, and Subjective Terms

McCafferty argues that the Board used unconstitutionally vague, ambiguous, and subjective terms like "junk" and "debris."⁵⁶The Court assumes that McCafferty is...