Opinion
C.A. No 98A-08-004-1AP-RSG.
Submitted: November 28, 1998.
Decided: February 25, 1999. Writ of Certiorari Denied: February 8, 2000
ORDER
This 25th day of February 1999, upon consideration of the papers filed by the parties and the record in this case, it appears that:
1. On November 28, 1998, Plaintiff in Error, Shazmin Khan ("Plaintiff'), filed an Amended Petition for a Writ of Certiorari, seeking review of a decision rendered by Defendant in Error, the Board of Building Appeals of the City of Newark ("Board"), revoking Plaintiff's rental permit for 39 Prospect Avenue, Newark, Delaware.
2. Plaintiff was charged in the Alderman's Court in the City of Newark with a violation of the Zoning Code of the City of Newark, § 32-10(a)(6.1)(d). Plaintiff appealed the charge to the Court of Common Pleas, which dismissed the charge on March 10, 1998. On November 4, 1997, the City of Newark revoked the rental permit for the property at Prospect Avenue because Plaintiff had rented the property to tenants in excess of the maximum occupancy limit for the property. Plaintiff appealed the decision to the Board. The Board upheld the decision to revoke Plaintiff's rental permit. Plaintiff has requested that this Court issue a Writ of Certiorari to the Board to review the action of the Board.
3. "In certain situations, this Court may have jurisdiction to review an administrative decision via certiorari." A writ of certiorari is "issued by a superior court to an inferior court of record, requiring the latter to send to the former . . . the record and proceedings in some cause already terminated. . . . Authority to address and resolve writs of certiorari is vested in the Superior Court pursuant to 10 Del. C. § 562."
4. Furthermore, "[t]he Superior Court shall have jurisdiction as the Constitution and laws of this State confer upon it." "In view of the comprehensive nature of the Administrative Procedures Act and the legislative practice of providing appellate review from certain State agencies and commissions, it is clear that the Superior Court has no jurisdiction to treat a matter as an appeal unless it has specific statutory authority to do so."
5. "Agency means any authority, department, instrumentality, commission, officer, board or other unit of state government authorized by law to make regulations, decide cases or issue licenses. Agency does not include the . . . municipalities . . . and other political subdivisions . . . or intermunicipal authorities and their agencies."
6. The statute states that agency, as referred to in Title 29 of the Delaware Code, does not include agencies formed by municipalities.
7. The procedures for the Board of Building Appeals are set out generally in The BOCA National Building Code ("the BOCA code"), adopted by reference in Chapter 7, § 7-1 in the Newark Code. The BOCA code provides that a writ of certiorari lie to "the appropriate court."
8. The Superior Court's authority to entertain appeals from administrative agencies must be statutorily conferred. There being no such authorization with regard to the Board of Building Appeals of the City of Newark, the Court cannot hear the case on appeal.
9. Further, inasmuch as the City of Newark Board of Building Appeals is created by the municipality of the City of Newark, this Court does not have jurisdiction to hear an appeal from that Board.
10. Because BOCA was integrated into the Newark Code by ordinance, there is no authority conferred on this Court to grant a writ of certiorari and review a decision of the Board of Building Appeals.
11. This Court may dismiss a petition, sua sponte, "where the Court concludes, in the exercise of its discretion . . . that any response would be of no avail." In the case at bar, it would be against the interests of judicial economy to grant the requested petition because this Court lacks subject matter jurisdiction over a decision from the Board of Building Appeals of the City of Newark.
12. For the foregoing reasons, Plaintiff's Amended Petition for a Writ of Certiorari is DISMISSED and the request that this Court issue a Writ of Certiorari is DENIED.IT IS SO ORDERED.
Council 81 v. New Castle County, Del. Super., C.A. No. 86A-JN-11, Bifferato, J. (Nov., 25, 1986) (Letter Opinion).
Brandywine Sec., Inc. v. Dept. of Licenses, Del. Super., C.A. No. 92A-05-012, Toliver, J. (Jan. 22, 1993) (additional citations omitted).
10 Del. C. § 541 (1975). In Council 81, C.A. No. 86A-JN-11 at 2, this Court stated that there was no express constitutional or statutory right of appeal from a decision of the Department of Labor, an administrative agency. Therefore, the Court determined that it did not have subject matter jurisdiction to hear an appeal from a decision of the Secretary of Labor. Moreover, this Court determined that it would not "imply" such jurisdiction. This Court proceeded to deny the petition for a writ of certiorari.
Sinha v. Board of Trustees of Del. Tech. Com. College, Del. Super. 585 A.2d 1310, 1313 (1990).
29 Del. C. § 10102(1) (emphasis added); See Reise v. Bd. Bldg. Appeals, Del. Super., C.A. No. 98A-02-007, Gebelein, J., (Jan. 13, 1999) (ORDER).
See 29 Del. C. § 10142; See Reise, C.A. No. 98A-02-007.
Newark, Del., Ordinance 87-29, enacted September 14, 1987; See Reise, C.A. No. 98A-02-007.
Del. Super. Ct. Civ. R. 41(f).