Opinion
C.A. No. 05A-07-003 RRC.
Submitted: June 19, 2006.
Decided: July 19, 2006.
Upon Petitioners Richard Handloff H. Gibbons Young's Motion for Reargument. DENIED.
Richard H. Cross, Jr., Esquire, Erica N. Finnegan, Esquire, Cross Simon LLC, Wilmington, Delaware, Attorneys for Petitioners.
Roger A. Akin, Esquire, City Solicitor, City of Newark, Newark, Delaware, Attorney for Respondents.
Dear Counsel:
Before the Court is Petitioners Richard Handloff and H. Gibbons Young's ("Petitioners") motion for reargument of the Court's decision of June 8, 2006, which denied Petitioners' petition for writ of certiorari and affirmed a decision by the Respondents City Council of City of Newark, Delaware, et al. ("Respondents" or "City Council"). The facts and procedural history of this case are set forth in this Court's Memorandum Opinion.
Handloff, et al. v. City Council of City of Newark, et al., 2006 WL 1601098 (Del.Super.).
I. CONTENTIONS OF THE PARTIES
Petitioners argue on reargument that this Court's determination that the deed requested by the City Council in exchange for a waiver of the payment in lieu of spaces bore a "reasonable relation to public health, safety and welfare" and was "directly relate[d] to the granted use" was
based on a misapprehension of the facts in the record[, which], in fact, . . . demonstrates exactly the opposite — that the land deed demanded by the City [Council] would not in any way alleviate parking concerns or provide the City [Council] with the means to address increased parking requirements related to the Petitioners' proposed building addition.
Pet'rs.' Mot. for Rearg. ¶¶ 5-6.
Specifically, Petitioners assert that the request for the deed does not bear a reasonable relation to Newark's parking problems because "the Record does not reflect that the City Council had any plans or ability to use the demanded land to increase available parking in downtown Newark." Petitioners claim that "the demanded . . . deed does not directly relate to the Petitioners' proposed apartment building because obtaining the land would not give the City any means to offset increased parking needs by the apartment building . . ." Petitioners also argue that "[t]here is no basis in the record to conclude that $41,000 amounts to adequate consideration for the parcel of land at issue."
Id. ¶ 9.
Id. ¶ 10.
Id. ¶ 10 n. 2. This argument was first raised at oral argument before this Court and reiterated in the footnote of Petitioners' motion for reargument. However, as the issue of whether the requested deed would amount to adequate consideration was not before the Newark City Council, such an argument may not be raised for the first time either in a petition for common law writ of certiorari or in a motion for reargument, as is the case here. See 395 Associates, LLC v. New Castle County, 2006 WL 1633554, * 2 (holding that where an "issue does not appear in the record because it was raised for the first time on review and, therefore, the Court cannot properly consider it on certiorari review"); Upshur v. Justice of the Peace Court No. 17, 2005 WL 2615391, * 3 (holding that claims not raised below must fail upon petition for writ of common law certiorari).
In opposition, and as a threshold matter, Respondents point out that Petitioners did not move for reargument of that part of this Court's holding regarding the applicable "narrow" standard of review, which is "whether the Newark City Council exceeded its powers or failed to conform to the requirements of law." Respondents argue that this Court did "not misapprehend the law nor the facts of this case . . . [and that this] Court's review follows [City] Council's review and sifting of all pertinent facts." Respondents reiterate this Court's finding that it was "clear on the record" that "the Council had a right and an obligation to address [the parking problem] as it directly impacts health, safety and welfare in Newark." Respondents further assert that although "Petitioners seek another bite at the litigant's apple by rehashing the argument that conditions placed on approval of their plan are not reasonable and bear no relationship to public health, safety and welfare, the Court has exhaustively reviewed the record below and has conclusively rejected that contention."
Resp'ts.' Opp. to Pet'rs.' Mot. for Rearg. ¶ 3.
Id. ¶ 2.
Id. ¶ 4.
Id. ¶ 9.
II. DISCUSSION
A. Standard of Review
A motion for reargument is the proper vehicle for seeking reconsideration by the trial court of its findings of fact or conclusions of law or the judgment itself. A motion for reargument, however, should be denied unless the moving party can show that "the Court has overlooked a controlling precedent or legal principles, or the Court has misapprehended the law or facts such as would have changed the outcome of the underlying decision." "Motions for reargument are also denied when they are merely a rehash of arguments already made."
B. Motion For Reargument Upon Denial Of Petition For Common Law Writ Of Certiorari.
Hessler, Inc. v. Farrell, 260 A.2d 701, 702 (Del.Super.Ct. 1969) (holding that the "manifest purpose" of a motion for reargument is to allow the trial court an opportunity to correct errors before appeal).
Bd. of Managers of Del. Crim. Justice Info. Sys. v. Gannett Co., 2003 WL 1579170, *1 (Del.Super.).
Crowhorn v. Nationwide Mut. Ins. Co., 2001 WL 789649, *1 (Del.Super.) (citing St. Catherine of Sienna Catholic Church v. Hart Construction Co., 2000 WL 33301940, *2 (Del.Super.)).
The issue here is whether a motion for reargument premised upon the reviewing court's alleged misapprehension of facts may be appropriate where the underlying action is a common law writ of certiorari, in which the appellate review of facts below is based exclusively on the "face of the record." As stated in this Court's June 8, 2006, Memorandum Opinion, "[a]s a broad general rule, a writ of certiorari lies from the Superior Court to inferior tribunals, to correct errors of law, to review proceedings not conducted according to law, and to restrain an excess of jurisdiction." This Court has "no power to correct a mistake of factor an erroneous conclusion from the facts, even though the interpretation given to the facts or the law by the governmental agency . . . may have been erroneous." Instead, the review is "limited to errors which appear on the face of the record and does not embrace an evaluation of the evidence considered by the inferior tribunal."
See Handloff, 2006 WL 1601098, at * 7.
1 Victor B. Woolley, Woolley Practice in Civil Actions § 896 (1906). See also Shoemaker v. State, 375 A.2d 431, 437 (Del. 1977) (holding that where defendant does not have a right of appeal a conviction to the Superior Court, "justice requires that the proceeding be reviewable at least under the common law writ of certiorari").
Capano Investments v. Levenberg, 1988 WL 139892, *2 (Del.Super.) (denying petition for common law writ of certiorari on the grounds that a panel's incorrect interpretation does not constitute an action in excess of the panel's jurisdiction), aff'd, 564 A.2d 1130 (Del. 1989).
Mason v. Bd. of Pension Trustees, 468 A.2d 298, 299 (Del.Super.Ct. 1983) (holding that common law writ of certiorari was not appropriate where petitioner sought a review of the Board of Pension Trustee's evaluation of the evidence the Board had before it), aff'd, 473 A.2d 1258 (Del. 1983). See also Woolley at § 897.
Under those rules of law, this Court affirmed the decision of the Newark City Council for two reasons, which were based solely on the face of the record rather than on an evaluation of the facts. First, the City Council's decision to deny the Petitioners' request for the 100% parking waiver was not an error of law because the decision to do so was discretionary. Second, the City Council's request for the deed in exchange for a waiver of the payment in lieu of spaces did not exceed its jurisdiction because the condition did not go beyond the powers given to the City Council by 10 Del. C. § 301 as the City Council deemed it necessary for "the purpose of promoting health, safety, morals or the general welfare of the community[.]"
Handloff, 2006 WL 1601098, at * 9. See Santillo v. State of Delaware, Justice of the Peace Court No. 15, 1985 WL 189243 (Del.Super.) (denying a petition for common law writ of certiorari because there was no error of law where Justice of the Peace denied a request for continuance in the court's discretion, absent a finding that the request was "unreasonably or capriciously denied"). See also 14 C.J.S. Certiorari § 96 (1991) ("[I]f the inferior court or tribunal did not transcend its authority, acts done by it in the exercise of its discretion are not the subject of review, unless that discretion has been abused."). It is important to note that Respondents did not argue that Petitioners claim that the City Council's denial of the 100% parking waiver was "arbitrary and capricious" was beyond the scope of a common law writ of certiorari review. It appears that unless it is clear on the "face of the record" such a denial was an abuse of discretion, then it is not an appropriate claim upon a petition for a common law writ of certiorari.
Id. at * 10.
On reargument, Petitioners assert that this Court misapprehended the facts when it affirmed the decision of the City Council by determining that the requested land grant was reasonably related to "the public health, safety and welfare" and directly related to Petitioners' proposed use. However, under the jurisprudence regarding the applicable standard of review for a common law writ of certiorari, this Court may not re-evaluate the facts as found by the lower tribunal. Instead, this Court may only look to the "face of the record." That standard of review is different than that in a proceeding upon a statutory writ of certiorari. As such, in a common law certiorari proceeding, the "transcript of the evidence below is not part of the reviewable record and the Court cannot examine the transcript in order to evaluate the adequacy of the evidence which supports the conclusion rendered below." Essentially, review on the "face of the record" means that this Court may only look to the record certified by the lower tribunal and sent to this Court, and cannot re-evaluate the merits of the case or the evidence before the lower tribunal. Although this Court's June 8, 2006, Memorandum Opinion did set forth many pertinent facts in this case, such factual recitation was done only as background and to put the issues in context.
Christiana Town Center, LLC v. New Castle County, 2004 WL 2921830, * 2 (Del.Supr.) ("Review on certiorari is not the same as review on appeal because review on certiorari is on the record and the reviewing court may not weigh evidence or review the lower tribunal's factual findings."); Reise v. Bd. of Bldg. Appeals of City of Newark, 746 A.2d 271, 274 (Del. 2000) ("Certiorari is on the record and the Superior Court may not weigh evidence or review the lower tribunal's factual findings."); Matter of Butler, 609 A.2d 1080, 1081 (Del. 1992) (citing Castner v. State, 311 A.2d 858, 858 (Del. 1973) (holding that a determination that proof beyond a reasonable doubt was not satisfied at trial involves a weighing of the evidence and is not an appropriate ground for relief upon a common law writ of certiorari), reargment den'd (Nov. 2, 1973)). See also 395 Associates, LLC v. New Castle County, 2006 WL 1633554, * 3 (citing Christiana Town Center, 2004 WL 2921830, * 2)); Breasure v. Swartzentruber, 1988 WL 116422, * 4 (Del.Super.) (recognizing difference between appeal, which reviews the merits of a case, and common law certiorari, which looks at the regularity of the proceedings and "declin[ing] the invitation to substitute its judgment for the Board's on [a] factual issue").
Under Delaware law, the record in a certiorari proceeding constitutes the record that is certified by the lower tribunal and sent to the reviewing court upon petition for writ of certiorari and "the court can hear no evidence aliunde to show jurisdiction or regularity or the want of it." Woolley at § 897. See also Castner, 311 A.2d, at 858 ("Under principles of law well established in this State, certiorari involves a review of only such errors as appear on the face of the record being considered.").
See Rodenhiser v. Dep't of Public Safety, 137 A.2d 392, 394 (Del.Super.Ct. 1957) ("This is a common law certiorari proceeding . . . not a statutory certiorari such as has been created, for example, for the review of proceedings of the Board of Adjustment in zoning cases . . . [in which] by reason of statute, it appears that the evidence adduced before the Board may be a proper part of the record sent up on certiorari.") (citations omitted).
Green v. Sussex County, 668 A.2d 770, 773 (Del.Super.Ct. 1995) (dismissing petition for common law writ of certiorari as "the creation of subdivisions within a sewer district, each of which has a different rate of assessment, in furtherance of the county's policy of allocating costs and benefits is not, on its face, beyond the power of the county") (citing Rodenhiser, at 394 ("It is settled in this jurisdiction that the evidence before the lower tribunal is not a proper part of the record in a common law certiorari proceeding.")), aff'd 1995 WL 466586 (Del. 1995). Cf. Cave v. New Castle County Council, 850 A.2d 1128, 1132 (Del.Super.Ct. 2004) ("There is a record of the proceedings below. The documents, and the testimony received at two proceedings, form the basis for review here and is adequate for the determination which is required [upon petition for common law writ of certiorari.]"). Although the issue was not raised by the parties here, it has been held that in a common law writ of certiorari proceeding, "[i]n an unusual case the reviewing court may consider evidence outside of the record where it is necessary to complete or explain an otherwise incomplete or doubtful record." Santillo, 1985 WL 189243, at * 2 (citing Woolley at § 897).
See Handloff, 2006 WL 1601098, * 1 n. 2 ("The length of the "facts" section of this opinion is due, in large part, to this Court's desire to set forth the relevant factual background, especially in connection with Petitioners' assertion that Respondents `exceeded their powers.' However, given the limited review under a common law writ of certiorari, had this legal issue not been part of the appeal, a shorter recitation of the facts would have sufficed.").
Based on the above legal framework, any basis for reargument that relies on a misapprehension of the facts found by the lower tribunal in the context of a denial of a petition for common law writ of certiorari must fail. As the standard of review for a common law certiorari proceeding does not allow the court to weigh the evidence or re-evaluate the lower tribunal's findings of fact, reargument based on a court's "misapprehension" of the facts is not appropriate. It is not the role of a reviewing court in a common law certiorari proceeding to evaluate the evidence; instead, the court must abide by the factual findings of the lower tribunal even if the findings are erroneous. To succeed, Petitioners must instead provide this Court with any overlooked legal precedent that would show that the Newark City Council exceeded its powers or that its decision was manifestly contrary to the law.
The extent to which a reviewing court in a common law certiorari proceeding can "apprehend" facts will always depend on the particular circumstances of that case, in large part due to the review limited to the "face of the record." "Apprehend" means "[t]o grasp mentally; understand[,]" but is "often limited to perception and does not imply full understanding." The American Heritage Dictionary 121 (2d College Ed. 1991). In a common law writ of certiorari proceeding, a court must only apprehend the facts on the "face of the record" to determine whether there had been an error of law, any irregularity of proceeding, or an excess of jurisdiction.
Capano Investments v. Levenberg, 1988 WL 139892, *2 (Del.Super.) ("The Court on certiorari has no power to correct a mistake of facts or an erroneous conclusion from the facts, even though the interpretation given to the facts or the law by the governmental agency or the lower court may have been erroneous."), aff'd, 564 A.2d 1130 (Del. 1989). See also 14 Am. Jur. 2d Certiorari § 96 (2006) ("[T]he court on certiorari . . . has no power to correct a mistake of facts or an erroneous conclusion from the facts, even though the interpretation given to the facts or the law by the governmental agency or the lower court may have been erroneous.").
There are apparently very few Delaware cases that have passed through the procedural portal created by a motion for reargument after the denial of a petition for a common law writ of certiorari. One such case, Cave v. New Castle County Council, spoke to the limited review of a motion for reargument in the context of a petition for common law writ of certiorari. There, petitioners had sought a writ of certiorari to review a decision by the New Castle County Council that approved a plan recommended by the General Manager of the Department of Land Use, as is required, absent compliance issues, under the Unified Development Code of New Castle County ("U.D.C."). Although the initial action was brought upon a petition for a common law writ of certiorari, the court dismissed the case as the petitioners lacked standing. Upon a motion for reargument of the court's dismissal, petitioners argued that "the facts alleged must be taken as true and all inferences there from view in a light most favorable to the non-moving party[,]" because the court had styled the action as a motion to dismiss. Essentially, the petitioners in Cave wanted the court to "reexamine or supplement the facts."
See Cave v. New Castle County Council, 2003 WL 21804106 (Del.Super.) (denying petitioners' motion for reargument after the court had treated the dispositive issue of standing within a petition for a common law writ of certiorari as a motion to dismiss, which the court granted).
Cave v. New Castle County Council, 2003 WL 21733076 (Del.Super.) (dismissing petitioners' common law writ of certiorari for lack of standing). That decision was subsequently remanded by the Delaware Supreme Court with directions to the trial court to consider Dover Historical Society v. City of Dover Planning Commission, 838 A.2d 1103 (Del. 2003), which held in that case that petitioners properly had organizational standing. Upon review of that case, the standing issue was abandoned and the petition for writ of certiorari was then dismissed after supplemental briefing. Cave v. New Castle County Council, 850 A.2d 1128 (Del.Super.Ct. 2004) (holding that the county council did not exceed its authority when it approved the plan at issue yet also stating, perhaps incorrectly, the County Council's decision was based on "substantial evidence"). The Delaware Supreme Court later affirmed the trial court's decision that denied petitioners' motion for reargument of the trial court's initial dismissal and the later decision that dismissed petitioners' petition for certiorari. Cave v. New Castle County Council, 2004 WL 1535785 (Del.Supr.), reargument den'd, (July 30, 2004).
Cave, 2003 WL 21804106, at * 1.
Id.
The Cave court rejected that argument and held that a writ of certiorari "exists to review only errors of law, not errors of fact. The review is confined to the record, and the Court must not re-decide the merits of the case." In denying the motion for reargument, the court in Cave correctly adhered to that narrow standard, did not re-evaluate the facts as found by the lower tribunal, and held that it could not, upon a petition for a common law writ of certiorari, "substitute its judgment for the conclusion, based on competent testimony, that the Plan complied with the U.D.C." That holding underscores the distinction between the extremely limited standard of review for a common law certiorari, which does not evaluate the evidence below, and that of an appeal or statutory writ of certiorari, which does require some weighing of the evidence considered below.
Id. (quoting Mell v. New Castle County, 2003 WL 1919331, * 8 (Del.Ch.) (holding that common law writ of certiorari does not lie (1) where the error to be corrected is factual, and (2) where the state official properly does not create a record) (citing, Woolley, at § 895-97)).
Id.
This Court finds that in rendering the Memorandum Opinion of June 8, 2006, this Court did not overlook any appropriate precedents or legal principles nor did the Court misapprehend the law.
For all of the above reasons, Petitioners' Motion for Reargument is DENIED.