Opinion
C.A. No. 05A-05-014-CLS.
Submitted: February 21, 2006.
Decided: March 7, 2006.
Upon Consideration of Appellant's Motion To Alter or Amend Judgment DENIED.
Miroslaw E. Kostyshyn, Pro Se Appellant.
David J.J. Facciolo, Esq., Minster Facciolo LLC, Wilmington, Delaware, Attorney for Appellees.
ORDER
The Appellant Miroslaw E. Kostyshyn ("Kostyshyn") has filed a motion pursuant to Superior Court Civil Rule 59(d) to alter or amend the Memorandum Opinion dated January 9, 2006, which reversed a decision of the Bellefonte Board of Adjustment ("Board") granting Cindi Anker's ("Anker") request for a variance. Kostyshyn's Motion to Alter or Amend is denied because this Court cannot grant the requested remedies.
1. In the January 9, 2006, Memorandum Opinion this Court reversed a decision of the Board granting Anker's request for a variance. The Court found that the Board lacked jurisdiction to make a decision regarding the request for a variance because the Board was not composed in accordance with 22 Del. C. § 322. In addition, the meeting violated 22 Del. C. § 323 because it was held in closed session, was not open to the public, and minutes were not kept. The Court also found that the Board had yet to issue a written decision setting forth its reasons for granting the variance and had thus failed to produce a record of the proceedings below for purposes of the appeal. Therefore, the Court held that because the Board was improperly constituted and its meeting held in closed session, its decision was illegal and must be reversed. In the absence of the power of remand, the reversal vacated the Board's decision such that the applicant could proceed before the Board beginning anew.
2. Kostyshyn has now filed a Motion to Alter or Amend Judgment pursuant to Superior Court Civil Rule 59(d). Rule 59(d) states that a motion to alter or amend a judgment must be filed no later than ten days after the entry thereof. In this motion Kostyshyn seeks: 1) an order to raze said building or to prevent the occupancy of said building together with the costs of this action; 2) penalties totaling $30,500.00 as set forth in Section 15 of the Building Zone Ordinance for the Town of Bellefonte, Delaware; and 3) penalties as set forth in Section 8 of the State Enabling Act of 1923.
3. This Court cannot grant Kostyshyn's requested remedies. A review of a board of adjustment's decision is governed by 22 Del. C. § 328. The statute is clear as to the Court's powers: it may reverse, affirm or modify the Board's decision. The Court, in its January 9, 2006, decision allowed Kostyshyn to proceed with his appeal as filed but struck the requested remedies because the Superior Court's powers are limited to the above functions. Moreover, costs in connection with this appeal cannot be allowed against the Board. 22 Del. C. § 332 provides that "[c]osts shall not be allowed against the board of adjustment, unless it appears to the Court that it acted with gross negligence, in bad faith or with malice in making the decision appealed from." Kostyshyn has never alleged nor does the record and facts support that the Board acted in bad faith. It is not clear that the Board had a dishonest purpose or "a state of mind affirmatively operating with furtive design or ill will" when it approved the variance. Moreover, Kostyshyn has not shown that the Board made an extreme departure from the ordinary standard of care, such that the Board was grossly negligent, thereby, requiring an award of costs. Nor is it clear from the record that the Board acted maliciously in making the decision appealed from. Therefore, Kostyshyn's application for costs against the Board cannot be allowed.
4. Kostyshyn's Motion to Alter or Amend the Judgment is DENIED for the reasons set forth herein.
Hellings v. City of Lewes Bd. of Adjustment, 734 A.2d 641 (Del. 1999) (Table), 1999 WL 624114, at *3(citing New Castle Cty. Bd. of Adjustment v. White, 1990 WL 84693, at *2 (Del.Supr.); Miller v. Bd. of Adjustment of the Town of Dewey Beach, 1994 WL 89022, at *3 n. 2 (Del.Super.); Miller v. Bd. of Adjustment of the Town of Dewey Beach, 1995 WL 465183, at *1 n. 1 (Del.Super.); Fairwinds Shopping Ctr., Inc. v. Bd. of Adjustment of New Castle County, 1993 WL 258801, at *8-9 (Del.Super.).
Appellant Opening Br., Ex. A-11 (Section 15 reads: Whoever violates any provision of this Ordinance, or is accessory [sic] to any such violation, shall be punished by a fine not exceeding $200.00 for each offense and not exceeding the further sum of $50.00 for each and every day that willful [sic] violation shall continue. Prosecutions shall be before any Justice of the Peace in Brandywine Hundred or an adjoining Hundred.).
Id. at A-12 (Section 8 reads: In case any building or structure is erected, constructed, reconstructed, altered, repaired, converted, or maintained; or any building, structure or land is used in violation of this Act or of any ordinance or other regulation made under authority conferred thereby, the proper local authorities of the municipality, in addition to other remedies, may institute any appropriate action or proceedings to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance or use to restrain, correct or abate such violation, to prevent the occupancy of said building, structure or land or to prevent any illegal act, conduct, business or use in or about such premises.).
See Coastal Resorts Properties, Inc., v. Board of Adjustment, 558 A.2d 1105 (Del.Super.Ct. 1988) (Superior Court did not have authority to revoke stop work order or issue judgment declaring stop work order invalid).
Brittingham v. Bd. of Adjustment, 2005 WL 1653979, at *2 (Del.Super.).
Id. at 3.