Schweizer v. Board of Adjustment of Newark

Decision Date21 August 2009
Docket NumberNo. 165, 2009.,165, 2009.
Citation980 A.2d 379
PartiesAl SCHWEIZER and, Sal Sedita, Petitioners Below-Appellants, v. BOARD OF ADJUSTMENT OF the CITY OF NEWARK, Delaware, Respondent Below-Appellee.
CourtUnited States State Supreme Court of Delaware

Court Below: Superior Court of the State of Delaware in and for New Castle County, C.A. No. 06A-08-007.

Upon appeal from the Superior Court. AFFIRMED.

Mark D. Sisk, Esquire, of Conaty, Curran & Sisk, Newark, DE, for appellants.

Roger A. Akin, Esquire, City Solicitor, City of Newark, DE, for appellee.

Before STEELE, Chief Justice, BERGER, and RIDGELY, Justices.

RIDGELY, Justice:

This appeal arises out of two decisions by the Board of Adjustment of the City of Newark (the "Board"). The first decision upheld the City of Newark Building Department's eviction of the Pi Kappa Alpha fraternity ("PiKA") from its off-campus fraternity house after the University of Delaware suspended the fraternity. The second decision upheld the termination of the grandfathered, nonconforming, pre-existing fraternity use of the property, so as to preclude the use of the premises as a fraternity. Petitioner-Appellants Al Schweizer and Sal Sedita, owners of the property, filed a petition for a writ of certiorari in the Superior Court seeking review of the Board's decisions. Appellants now appeal the Superior Court's denial of their petitions.

Appellants raise four arguments on appeal. First, they contend that Section 32-51(b) of the Newark Zoning Code constitutes an unlawful delegation of legislative authority by the City of Newark to the University of Delaware. Second, they contend that, as a result of the unlawful delegation, they were denied substantive and procedural due process. Third, they contend that Section 32-51(b) requires that a University of Delaware fraternity be suspended by both the University and its national organization in order for the nonconforming use to be terminated. In the alternative, Appellants contend that their lease of the property to a new fraternity within one year preserved their non-conforming use. We find no merit to their arguments and affirm.

I. Facts and Procedural History1

Appellants own real property in the City of Newark (the "City") located at 155 South Chapel Street. Prior to 2005, the property was leased to Delta Eta Corporation, which in turn allowed the local chapter of PiKA at the University of Delaware (the "University") to use the premises as a fraternity house, and leased rooms to student members of PiKA. Many, if not all, fraternities at the University possess charters from national fraternities, and PiKA is no exception. However, the possession of a charter from a national organization does not, by itself, allow a group of students to conduct itself as a fraternity. Rather the University has reserved for itself the final say as to which groups may do so.

In July 2005, the University suspended PiKA for a period of four years for violating University rules of conduct. The University conducted a hearing before suspending PiKA at which time its members were permitted to appear before the University's tribunal. It is undisputed that Appellants, who own the property occupied by PiKA, did not participate in the hearing.

The University's suspension of PiKA's privilege to operate as a fraternity has significant repercussions to the zoning of Appellants' property. Several years ago, the City revised its zoning code to prohibit fraternities and sororities in residential areas within the city limits. Existing fraternity and sorority houses, including PiKA, became non-conforming uses which were allowed under the code to continue so long as the fraternity's or sorority's privileges were not revoked by the University for more than a year. Section 32-51(b) of the Newark Zoning Code provides that a fraternity that is suspended by the University for a period of more than one year "shall vacate the building" and that building's use as a fraternity "shall be terminated immediately upon such University suspension."2

Upon receiving notice of the suspension of PiKA's privileges, the City Building Department directed PiKA to vacate the premises and advised Appellants that the use of the property as a fraternity or sorority house was now banned by the Newark Zoning Code. Appellants appealed to the Board, which, after a lengthy hearing taking place on four different dates, upheld that decision. Appellants sought a writ of certiorari from the Superior Court. Initially, the court dismissed the petition for failure to raise a question of illegality as required by 22 Del. C. § 328. We reversed that judgment and remanded.3

Meanwhile, Appellants entered into a lease with Alpha Beta Alumni Corp. which, in turn, allowed members of Kappa Delta Rho fraternity to occupy the premises. In a separate hearing, Appellants contended before the Board that the occupancy of their property by Kappa Delta Rho preserves the non-conforming use status of that premises. The Board rejected that contention, and Appellants filed a second petition for a writ of certiorari. Because both of Appellants' pending petitions involved common issues of law, they were consolidated. After reviewing the merits of the petitions, the Superior Court found that: (1) Section 32-51(b) did not delegate any legislative function to the University; (2) Appellants were not denied due process of law; (3) Section 32-51(b) did not require suspension by a national organization; and (4) the subsequent lease of the property for use of the premises by another fraternity did not preserve the non-conforming use. This appeal followed.

II. Discussion

"A writ of certiorari is not a substitute for, or the functional equivalent of, an appeal."4 Review on certiorari is on the record and the reviewing court may not weigh the evidence or review the lower tribunal's factual findings.5 "The reviewing court does not consider the case on the merits; rather it considers whether the lower tribunal exceeded its jurisdiction, committed errors of law, or proceeded irregularly." Appellants do not contend that the Board exceeded its jurisdiction or that it proceeded irregularly; therefore, the only issue for this Court to determine is whether the Board committed errors of law. This Court will reverse a decision of the Board for an error of law "when the record affirmatively shows that the lower tribunal has `proceeded illegally or manifestly contrary to law.'"6

A. Section 32-51(b) does not unlawfully delegate the City's legislative function.

Appellants contend that Section 32-51(b) of the Newark Zoning Code unlawfully delegates the City's legislative function to the University. Appellants argue that Section 32-51(b) "essentially gives the University power to decide who can and cannot operate a fraternity on property within the City of Newark," and assert that this amounts to an unlawful delegation of the City's legislative powers. Section 32-51(b) provides:

Whenever a nonconforming use has been discontinued for a period of one year, such use shall not thereafter be re-established, and any further use shall be in conformity with the provisions of this chapter, except that when such discontinuance is on account of any cause beyond the control of the owner, or tenant, the period of abandonment shall for the purpose of this chapter date from the termination of such cause.

A fraternity or sorority, however, that is suspended by the University of Delaware so that it is no longer approved and/or sanctioned to operate as a fraternity or sorority for a period of more than one year shall vacate the building and the use as a fraternity or sorority shall be terminated immediately upon such University suspension.7

In Marta v. Sullivan,8 we explained that "[a] legislative body, such as the City Council of Newark, may not lawfully delegate its legislative powers to others. This non-delegation principle is especially compelling when a zoning ordinance is involved, because such legislation regulates the right to the enjoyment of private property."9 We further explained that "[t]he non-delegation rule does not require that all details of the administration of a law be spelled out. A legislative body may establish basic policy and vest in others the power to administer the declared legislative policy."10 In order to avoid an unlawful delegation, "a statute must establish adequate standards and guidelines for the administration of the declared legislative policy and for the guidance and limitation of those in whom discretion has been vested; this to the end that there may be safeguards against arbitrary and capricious action, and to assure reasonable uniformity in the operation of the law."11

In Marta, we found an unlawful delegation of legislative function by the City of Newark when certain neighbors were permitted to exercise discretion under an ordinance, without adequate standards or guidelines as to legislative policy, by voting to approve or disapprove a proposed use for adjacent property. The ordinance in question would not permit the Board to authorize construction of an apartment building if the "immediate neighborhood" of the proposed development were 50% developed, and fewer than 75% of the residences within one-eighth of a mile of the planned development approved the construction.12 We held that the ordinance failed to provide adequate standards to the neighbors to justify denial.13 We said:

It is beyond question, however, that the Ordinance purports to delegate to neighboring residents an uncontrolled and undefined power to impose a zoning restriction and to limit the use of the property of another. The neighbors are not required to express an objection or furnish any reason for withholding assent; and the Board is without power to authorize a usage, otherwise permitted by the Ordinance, even when no reasons for withholding assent is stated or when the objections as stated are unsupportable by good and valid reasons.

As we...

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