Summary
granting appellant leave to amend petition for writ of certiorari seeking review of a ZBA decision because the defect in the petition was technical and the ZBA would not be prejudiced by the amendment after receiving timely notice of the appeal
Summary of this case from Brown v. City of WilmingtonOpinion
Civil Action No. 00A-02-002.
Date Submitted: November 28, 2000.
Date of Decision: February 13, 2001.
Niel F. Dignon, Esq., Brown, Shiels, Beauregard, Chasanov.
Richard Berl, Esquire.
This case presents an appeal from a decision of the Sussex County Zoning Board of Adjustment ("the Board") which denied Appellant, Steven Ganski's ("Petitioner"), application for a special use exception based on medical hardship. This Court is called upon to decide whether Petitioner's notice of appeal was adequate, and if it was, to decide whether the Board's decision to deny Petitioner's application was proper.
FACTUAL STATEMENT
Petitioner is the owner of two pieces of property ("Lot 1" and "Lot 2") situated outside of Milton, Delaware, in the Collins and Russell Subdivision. Beginning in September of 1997, Petitioner agreed to rent Lot 2 to James and JoAnn Fratantoni ("the Fratantonis") as a site for their 1984, 14 x 70 foot, Skyline Mobile Home. Petitioner resides in improvements made on Lot 1.
On or about October 25, 1999, Petitioner applied to the Board for a special use exception to place a second mobile home on Lot 2, on a medical hardship basis, due to the special care needs of his ailing parents. On December 20, 1999, the Board held a full hearing, including testimony of those in favor of and opposed to Petitioner's application for special use exception.
On January 26, 2000, the Board issued its decision denying Petitioner's application. On February 24, 2000, 29 days after the Board issued its decision, Petitioner filed a "Notice of Appeal Pursuant to Superior Court Civil Rule 72", along with a Praecipe that requested the Prothonotary to obtain records relating to Petitioner, including the transcript of the December 20th hearing, from the Board.
On June 15, 2000, Petitioner filed a "Motion for Judgment Default" [sic] which alleged that the Board failed to provide Petitioner or his counsel with a copy of the record as mandated by Super.Ct.Civ.R. 72(e), and requested the Court to remand the action to the Board with instructions that Petitioner be granted the requested special use exception.
On July 21, 2000, the Board responded to Petitioner's motion with a request for dismissal due to the fact that the appeal was not timely filed according to Super.Ct.Civ.R. 72. The Board also pointed out that 9 Del. C. § 6918, not Super.Ct.Civ.R. 72, governs the procedure for a party seeking a review of a decision of the Board. That section provides for the issuance by the Superior Court of a Writ of Certiorari, which prescribes the time within which the record from the Board is to be returned to the Court. The Board stated that because no writ was issued by the Court, neither it nor any of its members were directed to prepare and file the record.
Ruling from the bench on July 21, 2000, this Court denied Petitioner's motion for default judgment and ordered a Writ of Certiorari to issue. On July 28, 2000, the Board filed with this Court its Return on Appeal and record of the December 20th proceedings. Petitioner filed his Opening Brief on November 3, 2000. The Board responded on November 14, 2000, by filing a Motion to Dismiss, or, in the Alternative to Affirm based on the failure of Petitioner to adhere to the time limits prescribed by his chosen vehicle of appeal, Super.Ct.Civ.R. 72(b). Petitioner incorrectly filed an unauthorized response to the Board's motion on November 28, 2000. See Super.Ct.Civ.R. 72.1 (2000).
As of 2001, Super.Ct.Civ.R. 72.1 has been deleted. However, it was in effect when Petitioner filed his unauthorized response and his claim will be examined in light of the then-existing rule.
DISCUSSION
I. Must Petitioner's appeal be dismissed for failure to comply with Superior Civil Rule 72(b)?
Super.Ct.Civ.R. 72(b) requires an appellant to file a notice of appeal within fifteen days of the entry of the final judgment, order, or disposition from which an appeal is permitted by law. Petitioner, however, did not file his appeal until 29 days after the Board issued its decision. The Board argues that because Petitioner filed his notice of appeal pursuant to Rule 72, as opposed to 9 Del. C. § 6918 which prescribes the procedure for Superior Court review of decisions of the Board, Petitioner's appeal should be dismissed for failure to adhere to the fifteen day limitation period imposed by Rule 72(b).
Super.Ct.Civ.R. 72(b) reads as follows:
How taken. When an appeal is permitted by law, a party may appeal by filing a notice of appeal with the Prothonotary of the appropriate county within the time prescribed by statute. If no time is prescribed by statute, the notice of appeal shall be filed within 15 days from entry of the final judgment, order, or disposition from which an appeal is permitted by law.
This Court has adopted the view that, "where possible and where there is no prejudice, appeals should not be dismissed on technicalities." Di's Inc. v. McKinney, Del.Supr., 673 A.2d 1199, 1202 (1996). It is the preference of this Court to decide appeals "on the merits and not upon nice technicalities of practice." Episcopo v. Minch, Del.Supr., 203 A.2d 273, 275 (1964).
In this instance, Petitioner filed his Notice of Appeal within the 30 day time period prescribed by 9 Del. C. § 6918, but pursued the appeal pursuant to Superior Court Civil Rule 72. In State Personnel Com. v. Howard, Del.Supr., 420 A.2d 135, 137 (1980), the Supreme Court held that an omission in a notice of appeal should not cause the appeal to be dismissed unless the omission substantially prejudices a party in interest. The Court further found that the purpose of the procedural requirements as to the form and service of a notice of appeal is to provide notice of the appeal to all litigants who may be directly affected by the matter and to provide them with the opportunity to protect their interests. Id. at 138.
In State v. Reed, Del.Supr., 567 A.2d 414, 417 (1989), the State incorrectly denominated an appeal under 10 Del. C. § 9902(b) and (c) rather than 10 Del. C. § 9902(a). The Supreme Court held that the State's erroneous recital of § 9902(b) and (c) was a technical flaw which, under Delaware law, is not grounds for dismissing a motion to amend an appeal when the defendant suffered no substantial prejudice. Also, in Di's Inc. v. McKinney, 673 A.2d at 1202, the Supreme Court noted that a Petition for Review under 9 Del. C. § 4918 is the functional equivalent of a notice of appeal.
§ 4918 governs appeals to the Kent County Board of Adjustment and is similar in every respect to § 6918.
These cases provide guidance for deciding the instant case. Petitioner filed the notice of appeal pursuant to Rule 72, but within the thirty days required by 9 Del. C. § 6918. Also, while Petitioner did not request a Writ of Certiorari as technically required under § 6918, he did instruct the Prothonotary to request the record of the Board's proceedings relating to this matter. As a result, on March 14, 2000, the Board was served with notice of Petitioner's intent to appeal the Board's decision, and therefore received notice in the timely fashion the procedures of 9 Del. C. § 6918 are designed to insure. This Court finds that the Board suffered no prejudice as a result of Petitioner filing his Notice of Appeal pursuant to Rule 72 because Petitioner although lacking the proper form, met the substance of the requirements of § 6918. Finding that the Board suffered no prejudice, I deny the Board's Motion to Dismiss, and proceed to examine Petitioner's substantive claim against the Board.
Although Petitioner asserts on p. 3 of his Opening brief that, "Petitioner timely requested a Writ of Certiori [sic] allowed pursuant to 10 Del. C. § 562 and 9 Del. C. § 6918," in fact, Petitioner did not seek a Writ, but asked the Prothonotary to request the record from the Board. This Court issued the Writ only after Petitioner filed a contested "Motion for Judgment Default" [sic] because it had not yet received the record from the Board.
II. Did the Board properly exercise its discretion when it denied Petitioner's application for a special use exception?
This Court may grant a motion to affirm a decision of the Board if the issue on appeal is factual, and clearly there is substantial evidence to support the findings of fact below. Super.Ct.Civ.R. 72.1.
As previously noted, Super.Ct.Civ.R. 72.1 is no longer in effect; however, the Board filed its motion to affirm in November of 2000, so this claim will be examined under the then-existing Rule.
The standard of review on appeal from a decision of the Board of Adjustment is limited to correction of errors of law and to determinations of whether substantial evidence exists in the record to support the Board's findings of fact and conclusions of law. Janaman v. New Castle County Bd. of Adjustment, Del.Super., 364 A.2d 1241 (1976), aff'd, Del.Supr., 379 A.2d 1118 (1977). Substantial evidence is evidence from which the Board reasonably and fairly could reach its conclusion.Miller v. Board of Adjustment of the Town of Dewey Beach, Del.Super., C.A. No. 93A-02-009, Lee, J. (February 16, 1994). The burden of persuasion is on the party seeking to reverse the Board's decision. Mellow v. New Castle County Bd. of Adjustment, Del.Super., 565 A.2d 947 (1988),aff'd, Del.Supr., 567 A.2d 422 (1989). When substantial evidence exists, the appellate court may not reweigh the evidence and substitute its own judgment for the Board's. Janaman v. New Castle County Bd. of Adjustment, 364 A.2d at 1242. In the absence of substantial evidence, the Superior Court may not remand the Board's decision for further proceedings, but rather, may only "reverse or affirm, wholly or partly, or may modify the decision brought up for review." Mellow v. New Castle County Bd. of Adjustment, 565 A.2d at 950 (citing 9 Del. C. § 1353(f), which is identical to § 6918).
The Board made the following findings of fact:
1. The manufactured home would be for the Applicant's parents, but it would be placed on a parcel not currently owned by the Applicant. Instead, the manufactured home would be placed on property which was recently sold by the Applicant to friends.
2. The property upon which the home would be placed does not have a septic system meeting current requirements, but rather an old cesspool.
3. It would appear that the Applicant would have difficulty meeting setback requirements for the new home, but there was no evidence presented as to the layout of the property which would allow the Board to make such a decision.
4. The Applicant essentially wishes to retain a rental property, which the Board believes to be the equivalent of a self-imposed hardship.
The Board denied the request for a special use exception, finding that the Applicant did not meet the burden of proving that a permit would not substantially affect adversely neighboring and surrounding properties.
Petitioner argues that the Board's decision must be reversed because there is no substantial evidence in the record to support its decision, and because the Board's decision is based upon criteria that are incorrect as a matter of law. Petitioner attacks each of the Board's findings as follows. The first finding of fact is patently false. The second finding of fact is. outside the purview of the Board and should be decided by the Department of Natural Resources and Environmental Control. The third finding of fact is not based on substantial evidence, and the fourth finding of fact is incorrect as a matter of law. I decline to address the adequacy of the Board's findings because Petitioner failed to provide the Board with all of the evidence necessary for the Board to grant Petitioner's application for a special use exception.
Petitioner failed to present evidence that his application would not substantially affect adversely the uses of neighboring and surrounding properties as required by Sussex County Code § 115-210. InRollins Broadcasting of Delaware, Inc. v. Hollingsworth, Del.Supr., 248 A.2d 143, 145 (1968), the Supreme Court found that the effect a special use exception will have on neighbors and property values must be considered, and that "[t]he burden of proof in such a request is on the applicant to produce substantial evidence to demonstrate that the proposed use complies with the standards of the Zoning Ordinance."
"The following buildings and uses are permitted as special exceptions if the board finds that, in its opinion, as a matter of fact, such exceptions will not substantially affect adversely the uses of adjacent and neighboring property:" Sussex County Code § 115-210.
A review of the record and the transcript does not reveal any evidence that the special use exception, if granted, will not substantially affect adversely the uses of neighboring and surrounding properties. In fact, Petitioner states in his Opening Brief, ". . . the Board reached a determination that Mr. Ganski failed to prove that his special exception would not substantially adversely effect [sic] the surrounding properties . . . The record shows that the only discussion of the affect [sic] on the surrounding properties arose during the Board's discussion of Mr. Ganski's petition." Petitioner's Opening Brief, p. 8. In essence, Petitioner concedes that he provided no evidence that addressed this concern. Because the burden of proving the absence of effects that might substantially, adversely impact neighboring properties belonged to Petitioner, and because he provided absolutely no evidence pertaining to this matter, the Court finds that the Board properly denied Petitioner's request for a special use exception for Lot 2.
CONCLUSION
Because Petitioner failed to provide the Board with all of the evidence necessary for the Board to approve his application for a special use exception, this Court affirms the Board's decision to deny Petitioner's application.
IT IS SO ORDERED.