Opinion
No. 99A-12-001 HDR
Submitted: February 18, 2000.
Decided: March 17, 2000.
Upon Petitioners' Motion to Strike — DENIED
John Paradee, Esq. Walter W. Speakman, Jr., Esq. Prickett, Jones Elliott Brown, Shiels, Beauregard Chasanov 11 North State Street 108 East Water Street Dover, DE 19901 Dover, DE 19901.
Mark F. Dunkle, Esq. Parkowski, Noble Guerke, 116 West Water Street Dover, DE 19901.
Counsel:
Before the Court is Petitioners' Motion To Strike from the record below a January 3, 2000 written decision of the Board of Adjustment which followed an oral decision of the Board. The decision was filed and included in the record for the first time in response to a writ of certiorari issued by this Court.
I. BACKGROUND
The relevant factual background is as follows: Cheswold Aggregates applied for a permit to build a drum hot mix facility in the Town of Cheswold on land Cheswold Aggregates, L. L. C. v. designated M-1 Industrial Zoning. It has an equitable interest in the property under a contract of sale with the owner Central Delaware Business Park. After a public hearing on February 1, 1999, the Cheswold Town Council denied the permit because the Town of Cheswold Zoning Ordinance prohibited the manufacture of "asphalt" within the M-1 Industrial District. Cheswold Aggregates appealed the decision to the Board of Adjustment. The Board conducted its hearing upon the appeal on August 31, 1999. On September 30, 1999 the Board voted to deny the appeal. Pursuant to Rule 6.9 of the Board's Hearing Rules it was required to issue a written decision within 90 days. The Rule expressly provides:
Any oral discussion of or vote upon the application by the Board of Adjustment shall be deemed to be in the nature of preliminary deliberations to the rendering of a final decision and only the written decision, as adopted by a majority of the Board of Adjustment, shall constitute the decision of the Board of Adjustment.
No written decision was filed within the time period contemplated by the Rule. This was due to the disability of the Board's attorney who was injured in an automobile accident on October 14, 1999.
On December 1, 1999 a Verified Petition was filed with this Court by Cheswold Aggregates naming the Board as the Respondent. Cheswold Aggregates requested a writ of certiorari issue to the Board to send up the entire record of the proceedings below. In response to the writ, the Board filed the record on January 18, 2000 and included within it the January 3, 2000 written decision of the Board at issue here. On January 28, 2000, Petitioners filed their motion to strike.
II. DISCUSSION
It is undisputed that the written decision of the Board was filed after the filing of the Verified Petition and well beyond the 90 day time period contemplated by the Board's Rule. On the other hand, the Rule expressly provides that only a written decision, as adopted by a majority of the Board, shall be a decision of the Board. While there is no statutory mandate for when a decision is to be made, mandamus is available in the appropriate case to compel the Board to act.
McQuillen's Municipal Corporations § 25.270 (3rd Ed.).
Although not raised by the Respondent's counsel because of the reasons attributable to him for the late filing, the Court cannot overlook the jurisdictional issue now before it. Jurisdiction may not be conferred by consent of the parties. I note that Petitioners filed this case before the final order of the Board. As the Supreme Court has stated, "an oral decision intended to be finalized through a later written order is not appealable." And the statute contemplates that the Verified Petition "shall be presented to the Court within 30 days after the filing of the decision in the office of the board."
Sowers v. Sowers, Del. Supr., No. 398, 1987 Walsh, J. (Jan. 25, 1988).
Although the Verified Petition which was filed on December 1, 1999 was premature, I am convinced that on the record before me, the appeal can and should continue in the interests of justice. An earlier action by Cheswold Aggregates was dismissed to allow the Board to act. The Board has acted and the merits of the Board's decision have been challenged. Cheswold Aggregates and Central Delaware Business Park did file within 30 days of the January 3, 2000 written decision a motion to strike that decision. The motion clearly reflects their intention to challenge the legality of the Board's decision for the reasons stated in the Verified Petition. As such, the Court will deem this matter to be before it pursuant to a timely filed petition under 22 Del. C. § 328 (a) as of January 28, 2000.
Cheswold Aggregates, L.L. C. v. The Town of Cheswold, Del. Super., 99M-02-009, Ridgely, P.J. (July 2, 1999).
With the issue of jurisdiction having been resolved in this way, I find no lawful basis to strike the only decision of the Board from which an appeal may be taken. For this reason, the motion to strike is denied and the stay of the briefing schedule previously entered is dissolved.
IT IS SO ORDERED.
Very truly yours,
oc: Prothonotary xc: Order distribution