Opinion
C.A. No. 07A-06-005 ESB.
Date Submitted: April 28, 2008.
July 22, 2008.
Scott G. Wilcox, Esquire, The Bayard Firm, Wilmington, DE.
Richard E. Berl, Jr., Esquire, Smith, O'D onnell, Fein berg Berl, LLP, Assistant Sussex County Attorney, Georgetown, DE.
Dear Counsel:
This is my decision on Bestfield Homes, LLC's motion for reargument of my decision granting the Sussex County Board of Adjustment's motion to dismiss Bestfield's appeal of the Board's denial of Bestfield's application for a special use exception for an off-premises sign advertising the "Knollac Acres" residential subdivision. I granted the Board's motion to dismiss because Bestifeld did not file its appeal in time. Bestfield now argues that it did not file its appeal in time because the Board allegedly made an error in mailing its denial of Bestfield's application to Bestfield, resulting in Bestfield not learning about the filing of the denial in the office of the Board until after the time for filing an appeal had expired. 9 Del.C. § 6918(a). The post office returned to the Board the envelope containing the Board's denial that the Board had mailed to Bestfield because of an "insufficient address." I have denied Bestfield's motion for reargument because the Board mailed its denial to the address that Bestfield gave to the Board. Thus, if the address was insufficient, then the error was caused by Bestfield and not the Board.
Bestfield Homes, LLC v. Sussex County Board of Adjustment, 2008 WL 1724256 (Del.Super. April 9, 2008).
STANDARD OF REVIEW
The standard for a Rule 59(e) motion for reargument is well defined under Delaware law. A motion for reargument "will be denied unless the Court has overlooked a controlling precedent or legal principle, or the Court has misapprehended the law or facts such as would have changed the outcome of the underlying decision." Board of Managers of the Delaware Criminal Justice Information System v. Gannet Co., 2003 Del.Super. Lexis 27 at *4. A motion for reargument is not intended to rehash the arguments already decided by the Court. McElroy v. Shell Petroleum, Inc., Del.Supr., 618 A.2d 91 (Table), No. 375, 1992, Moore, J. (Nov. 24, 1992)(Order).
DISCUSSION
Bestfield filed an application with the Board for a special use exception for an off-premises sign. The application listed Bestfield's address as "200 Mary Ella Drive, Wilmington, D E 19805 ." The Board denied Bestfield's application on February 5, 2007, and filed its written denial on March 26, 2007. The Board also mailed a letter to Bestfield o n March 26, 2007, stating that its written denial had been filed. The post office returned the letter to the Board because of an "insufficient address." The Board sent the letter to the address that Bestfield gave to the Board on its application.
Bestfield had to file its appeal of the Board's denial with the Superior Court within 30 days after the Board filed its written denial. 9 Del.C. § 6918(a). This time limit is jurisdictional. 9 Del.C. § 6918(a). After 30 days this Court no longer has jurisdiction to hear the appeal. 9 Del.C. § 6918(a). The Board filed its written denial on March 26, 2007. Bestfield filed its appeal on June 21, 2007. Bestfield did not file its appeal in time.
Bestfield argues that a jurisdictional defect created by an appellant's failure to file an appeal within the statutory time frame may be excused upon a showing of unusual circumstances attributable to court personnel and not the appellant or the appellant's attorne y. Riggs v. Riggs, 539 A.2d 163, 163-164 (Del. 1988); Draper King Cole v. Malave, 743 A.2d 672, 673 (Del. 1999); Smith v. State, 812 A.2d 22 4 (Del. 2002). Bestfield has no t identified what the Board d id wrong in mailing its denial to Bestfield. Indeed, there is nothing at all in the record to indicate that the Board did anything wrong. The Board mailed its denial to the address that Bestifeld put on its application. The post office returned the letter to the Board because of an "insufficient address." If there is a problem with the address, then the problem rests with Bestfield because it provided the "insufficient address" to the Board. Therefore, there is no factual basis in the record to support Bestfield's argument that the Board made a mistake.
CONCLUSION
Bestfield's motion for reargument is denied.
IT IS SO ORDERED.