Opinion
C.A. No. 03A-06-002 WLW.
Submitted: March 31, 2005.
Decided: June 20, 2005.
Upon Petitioners' Motion to File a Supplemental Petition for Writ of Certiorari. Granted.
Upon Petitioners' Application for Counsel Fees and Expenses. Denied.
Grover C. Brown, Esquire and Michael J. Maimone, Esquire of Gordon, Fournaris Mammarella, P.A., Wilmington, Delaware, attorneys for the Petitioners.
Nicholas H. Rodriguez, Esquire and William W. Pepper, Sr., Esquire of Schmittinger Rodriguez, P.A., Dover, Delaware, attorneys for City of Dover Planning Commission.
William E. Manning, Esquire and Richard A. Forsten, Esquire of Klett Rooney Lieber Schorling, Wilmington, Delaware, attorneys for Young Malmberg, P.A. and Yozima, L.L.C.
OPINION AND ORDER
Upon consideration of Petitioners' motion to file and serve a supplemental petition for writ of certiorari and Petitioners' application for counsel fees and expenses, it appears to the Court:
This case involves the construction of a three-story office building wholly within the Dover Green Historic District. A prerequisite for the new construction is the procurement of an architectural review certificate issued by the Dover Planning Commission ("Commission"). The Dover Code provides that the issuance of a architectural review certificate should be referred initially to the Historic District Commission ("HDC") for its recommendation. On January 16, 2003, the HDC voted, by a split-decision of three to two, in favor of recommending the issuance of an architectural review certificate for the new construction. On April 21, 2003, the Commission followed its recommendation and approved the issuance of an architectural review certificate. On June 18, 2003, Petitioners sought a writ of certiorari pursuant to 10 Del. C. § 562 requesting this Court to review the decision of the Commission.
Petitioners in this action are the Dover Historical Society, Henry R. Horsey, Holly Johnson and Charles Johnson. Respondents in this action are City of Dover Planning Commission, Young Malmberg, P.A. and Yozima, L.L.C. For a detailed narrative of the facts procedural history of this case, see Dover Historical Society v. City of Dover Planning Comm'n, 838 A.2d 1103, 1106-1109 (Del. 2003) and Dover Historical Society v. City of Dover Planning Comm'n, 2004 Del. Super. LEXIS 253, at *2-*16.
10 Del. C. § 562 provides: The Superior Court may frame and issue all remedial writs, including writs of habeas corpus and certiorari, or other process, necessary for bringing the actions in that Court to trial and for carrying the judgments of the Court into execution. All writs shall be granted of course and shall be in such form and returnable at such time as may be prescribed by the rules of the Court, or otherwise as the particular case may require.
On June 23, 2003, this Court entered a writ of certiorari and the following month, on July 30, 2003, reversed and remanded the decision of the Commission for further factual findings concluding that the Commission had exceeded its jurisdiction. Specifically, this Court found the proceedings utilized by the Commission in approving the issuance of an architectural review certificate were not conducted according to the law which required application and compliance with the Design Guidelines and Standards as set forth under the Dover Code.
This Court earlier dismissed Petitioners' claims for lack of standing. ( See Dover Historical Society v. City of Dover Planning Comm'n, Del. Super., C.A. No. 03A-06-002 (Aug. 25, 2003), slip op. at 11.) The Supreme Court reversed in part this Court's decision and remanded the case for further proceedings concluding that individuals who own land and/or reside in the Historic District have standing to challenge the determination of the Commission. See Dover Historical Society v. City of Dover Planning Comm'n, 838 A.2d 1103, 1106-1109 (Del. 2003).
The Commission conducted another meeting on January 18, 2005 to determine whether a building permit and architectural review certificate should be issued. The Commission once again approved the issuance of an architectural review certificate and provided a detailed analysis explaining its decision. On February 25, 2005, Petitioners filed an application for counsel fees and expenses and a motion to file and serve a supplemental petition for writ of certiorari for judicial review of the subsequent decision of the Commission.
Resp't Opp'n Ex. B. "Notice of Decision" dated January 27, 2005.
MOTION TO FILE A SUPPLEMENTAL PETITION FOR WRIT OF CERTIORARI PURSUANT TO 10 Del. C. § 562.
Petitioners contend the Commissions' failure to provide them with notice of the meeting held on January 18, 2005 violated the earlier decision of the Delaware Supreme Court which held that Petitioners had an "enforceable right" to be heard before the Commission on matters relating to the historic district. Petitioners further assert that the "Notice of Decision following Reconsideration of Site Plan Application" evidences the approval of a building permit and architectural review certificate by the Commission in clear violation of the previous remand order of this Court. Specifically, Petitioners allege that Respondents disregarded the remand order of this Court by relying upon buildings and structures located outside the historic district in approving the issuance of a building permit and architectural review certificate. Additionally, Petitioners contend that the Board erroneously relied upon the 2003 recommendation of the HDC instead of referring the matter back to the HDC following the remand order for further assessment.
Dover Historical Society, 838 A.2d at 1114.
Petitioners further argue that the Proposed Building is a "large scale" construction project and cannot be constructed in the Historic District as a matter of law.
Dover Historical Society, 2004 Del. Super. LEXIS 253, at *25 ( holding "the test is whether the newly proposed buildings conforms to the Guidelines and is in harmony with the historic buildings in the Green Historic District, not whether the building conforms to other nonconforming structures.").
Petitioners also allege that a member of the HDC has a conflict of interest which this Court earlier stated may need to be investigated on remand.
Petitioners are seeking leave to file and serve a supplemental petition for writ of certiorari based upon the conduct of the Respondents since the date of the original petition. Petitioners contend that motions to supplement are akin to motions to amend and should be liberally granted so that cases may be fully adjudicated based upon their merits. Petitioners argue that Respondents would not be prejudiced by the supplemental petition because it is based upon the conduct of Respondents since the original petition was filed and was filed within the thirty day period that another petition for a writ of certiorari could have been filed. Accordingly, Petitioners request leave to file and serve a supplemental petition or, in the event this Court concludes that a "new" petition should have been filed, Petitioners request leave to file such petition.
Respondents contend that a new petition for writ of certiorari was required to be filed if Petitioner desired to challenge the most recent decision of the Commission. Respondents contend this Court failed to retain jurisdiction either explicitly or inferentially and therefore lost jurisdiction once it reversed the decision of the Commission and remanded the action for further proceedings. Respondents contend merely supplementing the old petition directed at the original decision cannot be used as a means to challenge the new decision of the Commission.
Petitioners were required to file a new petition for writ of certiorari for this court to review the recent decision of the Commission. This Court is unpersuaded that jurisdiction is retained on all orders of remand because such decisions are interlocutory. The Delaware Supreme Court in Guy v. State stated that "Although the Superior Court did not explicitly retain jurisdiction over Guy's appeal in its March 6 order of remand, we find that the retention of Superior Court jurisdiction can be inferred from the nature of the remand in this case." Jurisdiction was inferred from the nature of the remand, not because the order was a remand. The Supreme Court noted in its conclusion that the remand order of the Superior Court did not require further factual findings; instead, the order only required that the Board state its conclusions on the record. Contrary to Petitioners' contention, Courts do not retain jurisdiction over controversies because remand orders are generally interlocutory. Jurisdiction must either be explicitly or inferentially retained by the Court.
676 A.2d 903 (Del. 1996) (ORDER).
Id.
Id.
It is uncontested that this Court did not explicitly retain jurisdiction in its earlier decision. The issue thus becomes whether retention of jurisdiction can be inferred from the nature of the remand. This Court concluded in its prior decision that the Commission exceeded its jurisdiction by approving the issuance of a architectural review certificate for a nonconforming structure without proper application of the Guidelines. Therefore, this Court reversed and remanded the proceedings to the Commission for further factual findings consistent with the Guidelines. This Court did not remand the case only for clarification of the decision; it concluded the inquiry implemented by the Commission in reaching its decision was erroneous. Although the remand order was interlocutory for purposes of appellate review, it was nevertheless the final order of this Court concerning the original decision of the Commission. Petitioners were therefore required to file a separate petition for writ of certiorari for this Court to review the subsequent decision of the Commission.
Petitioners have also requested leave to file a new petition in the event this Court deems a new petition necessary. Petitioners are seeking to challenge the decision of the Commission dated January 27, 2005. While a thirty day deadline has been adopted by the Superior Court in regulating certiorari proceedings, the deadline is not a jurisdictional requirement but rather subject to the discretionary powers of this Court. A legitimate dispute existed between the parties as to whether a new petition was necessary or whether supplementing the original petition would suffice. Although Petitioners' incorrectly assessed the need for filing a new petition, Petitioners did file their motion to supplement within thirty days of the decision. Because Petitioners filed their motion to supplement within the time period allotted for filing a new petition, Respondents were put on notice that the new decision of the Commission was contested and cannot said to be prejudiced if this Court allows Petitioners to file a new petition that is identical is substance but different in form. Accordingly, in exercising its discretion, this Court will grant Petitioners leave to file a new petition for writ of certiorari which seeks judicial review of the Commission's latest decision. Petitioners will have ten (10) days from the date of this order to file the appropriate petition for writ of certiorari.
See Dover Historical Society, 2004 Del. Super. LEXIS 253, at * 20 ( citing Elcorta v. Summit Aviation, Inc., 528 A.2d 1199, 1201 (Del.Super.Ct. 1987)).
Petitioners' motion to serve and file a supplemental petition was filed on February 25, 2005.
PETITIONERS' APPLICATION FOR COUNSEL FEES AND EXPENSES
Petitioners acknowledge that litigants are generally responsible for the costs of their representation but have requested this Court to order the Commission to pay for their counsel fees and expenses arguing that this action falls within the common benefit exception. Petitioners contend this action was meritorious when filed, an ascertainable group received a substantial benefit and a causal connection existed between this action and the benefit. Specifically, Petitioners assert that the City of Dover and the landowners/residents within the Historic District benefitted substantially from this action because it preserved the aesthetic, integrity and cohesiveness of the Historic District. Petitioners further contend that they should not be burdened by the attorney's fees and expenses that resulted from the abject failure of the City of Dover, through the Commission, to enforce its own laws, ordinances and regulations.
See Tandycrafts, Inc. v. Initio Partners, 562 A.2d 1162, 1167 (Del. 1989).
See Dover Historical Society, 2004 Del. Super. LEXIS 253, at *1-2 ( reversed and remanded the decision of the Commission for further factual findings consistent with the Design Guidelines for New Construction as required per City of Dover Zoning Ordinance, Article 3 § 21).
Respondents contend that Delaware law traditionally does not support an award for attorney's fees. Although a common benefit exception exists, Respondents argue such exception should remain limited to corporate litigation. Respondents assert that the only Delaware cases in which parties challenging land use decisions have been awarded attorney's fees were based upon Section 1988 of the federal Civil Rights Act and were products of a specific federal statute providing for an award of attorney's fees. In short, Respondents contend that attorney's fees should not be awarded absent express legislative authority to the contrary.
Delaware law is well established that, subject to limited exceptions, litigants are responsible for the costs of their representation. An exception to the general rule is the common fund doctrine which allows a litigant who confers a monetary benefit upon an ascertainable class of individuals to recover fees and expenses from the fund or property which his efforts created. Similarly, the corporate benefit doctrine allows a litigant to recover fees and expenses from the corporation when some other valuable benefit from the litigation has been realized by the corporate enterprise or the stockholders.
Tandycrafts, Inc., 562 A.2d at 1164.
In re First Interstate Bancorp S'holder Litig., 756 A.2d 353, 357-58 (Del.Ch. 1999).
Id.
Delaware Courts have historically been cautious about creating and expanding exceptions to the American rule absent express and clear legislative guidance. This Court is unpersuaded deviation from the general rule and application of the "common benefit exception" is warranted based on the facts of this case. The doctrines relied upon by Petitioners are equitable exceptions created in the corporate realm. Although this Court does not believe such doctrines are limited to corporate litigation, the equitable and practical considerations that justify fee shifting are not presently before this Court. Exceptions to the general rule have been initiated primarily under the equitable theory that individuals who have shared in the profits from the litigation should share in its costs. Fee shifting also enables a shareholder to file a class action or derivative suit to enforce the rights of the shareholders and protect against the wrongs committed by the corporation that would otherwise go unchallenged. In other words, without fee shifting, the pro rata share of any gains that a shareholder yields from a successful action would hardly compare to the costs necessary to achieve that gain. Holding a corporation liable for the litigants' fees is an easy way to divide the costs of litigation equally amongst a ascertainable class of shareholders who have benefitted from the action.
Walsh v. Hotel Corp. of America, 231 A.2d 458, 462 (Del. 1967).
Fisher v. Council of the Devon, 1999 Del. Ch. LEXIS 239, at *6-7 ( quoting Donald J. Wolfe Michael A. Pittinger, Corporate and Commercial Practice in the Delaware Court of Chancery, § 9-5(a) at 675 (1998) (citations omitted)).
Id. at *7 ( quoting Bird v. Lida, Inc., 681 A.2d 399, 403 (Del.Ch. 1996)).
These same policy considerations warranting fee shifting are not present in this action. Requiring the Commission to pay for the costs of litigation would require the citizens to pay for this action. The primary beneficiary, however, is not the citizens at large but the residents and landowners of Dover that live within or near the historic district. Thus, shifting the responsibility of counsel fees to the Commission would not equitably distribute the cost only amongst the ascertainable class of individuals who substantially benefitted from such action.
This Court recognizes that the preservation of the Historic District provides a certain aesthetic benefit to many citizens of Dover. However, the concept that all of the citizens of Dover receive a substantial benefit is only a matter of opinion.
This Court is also unpersuaded by Petitioners' contention that the failure of the Commission to enforce its rules and regulations necessitates the burden of counsel fees and expenses be shifted to the Commission. This holding would unduly burden the taxpayers with the costs of litigation each time a party is successful against any government agency. It would be difficult to draw the line and a broad exception such as the one Petitioners' desire should be left for the legislature to create. Accordingly, this action does not fall within any recognizable exception to the American rule and Petitioners' application for attorney's fees and expenses must therefore be denied.
IT IS SO ORDERED.