Opinion
C.A. No. 05A-08-009-JRS.
Submitted: June 6, 2006.
Decided: September 12, 2006.
Upon Consideration of the Petition for Writ of Certiorari. DENIED.
Richard L. Abbott, Esquire, ABBOTT LAW FIRM, Hockessin, Delaware. Attorney for Petitioners.
William E. Manning, Esquire, Richard A. Forsten, Esquire, KLETT ROONEY LIEBER SCHORLING, Wilmington, Delaware. Attorneys for Respondent Edgewood Village, L.L.C.
Brian J. Merritt, Esquire, Marlaine A. White, Esquire, NEW CASTLE COUNTY LAW DEPARTMENT, New Castle, Delaware. Attorneys for Respondent New Castle County Board of Adjustment.
MEMORANDUM OPINION
I.
In this opinion, the Court considers whether the New Castle County Board of Adjustment ("Board of Adjustment") had subject matter jurisdiction over an appeal of a decision of the New Castle County Department of Land Use ("Department"). The jurisdictional question turns on whether the Department's decision on an application filed by Edgewood Village, L.L.C. ("Edgewood") was a "zoning" decision or a "subdivision" decision. The distinction is important because it determines to which administrative board the Department's decision should have been appealed — the Board of Adjustment or the New Castle County Planning Board ("Planning Board").
See Docket Item ("D.I.") 8, Pet'r Br., at 1 ("The Petitioners have raised only one (1) challenge to the Board [of Adjustment's] decision: lack of subject matter jurisdiction.").
See New Castle County Unified Development Code ("UDC") § 40.31.510 ("An applicant pursuing approval of a land use application who is aggrieved by a finding, decision, or interpretation of a decision maker made in response to review of such application may appeal such action to the jurisdictionally approved agency pursuant to Table 40.30.110."). Table 40.30.110 provides that the Board of Adjustment holds hearings and renders decisions on all appeals regarding zoning matters and that the Planning Board holds hearings and renders decisions on all appeals regarding subdivision matters.
Edgewood owns real property adjacent to a residential complex known as the Paladin Club. Located on its property is a stone wall which allegedly is of historic significance. After Edgewood sought to develop the property into a townhouse community, which would require removal of a large portion of the stone wall, several Paladin Club residents objected to the development plans — specifically the removal of the wall. The Department ultimately decided that the stone wall is a historic resource and that its removal would violate the County's zoning code. Edgewood appealed the Department's decision to the Board of Adjustment. The Board of Adjustment concluded that the Department's findings were contrary to the evidence and the applicable provisions of the UDC and reversed the Department's decision. Friends of Paladin, Roy V. Jackson, John Severin, and Marie Sims (collectively "Petitioners") subsequently filed a Petition for Writ of Certiorari (the "Petition") in this Court pursuant to which they seek review of the Board of Adjustment's decision.
See D.I. 5 at 199-203; D.I. 8 at 1-10; D.I. 15 at 1-5. Friends of Paladin is an unincorporated association consisting of "most" of the 600 unit Paladin Club condominium owners. It was specifically formed to protect the interests of the Paladin Club owners from the efforts of Edgewood to remove the stone wall. Mr. Jackson, Mr. Severin, and Ms. Sims are all individual residents of the Paladin Club condominiums. D.I. 8 at 1-2.
Petitioners argue that the Board of Adjustment lacked subject matter jurisdiction to hear Edgewood's appeal. They contend that the Department made a "subdivision decision" when it determined that Edgewood's stone wall is a historic resource. Accordingly, Petitioners contend that the Planning Board was the only administrative body within County government with jurisdiction to hear Edgewood's appeal. Edgewood, not surprisingly, disagrees and argues that the Board of Adjustment properly exercised its subject matter jurisdiction in reviewing the Department's decision.
See id. at 12-20.
D.I. 15 at 7-18. The Board of Adjustment joins in Edgewood's arguments. See id. at 16-17; D.I. 19.
After reviewing the briefing, and hearing oral argument on the matter, the Court is satisfied that the Department's determination was a zoning decision. The UDC is clear in designating Article 15, entitled "Historic Resources," as a zoning regulation. Section 40.15.110, of Article 15 sets forth the 14 criteria to be considered when determining whether a resource is of historic significance. The Department referred to these criteria when it determined that the wall on Edgewood's property is a historic landmark. Therefore, given that a zoning regulation was principally the basis upon which the Department determined the historical significance of the wall, the Court is satisfied that the Department made a "zoning decision" for purposes of determining the proper course for an appeal of the decision under UDC § 40.31.510. The fact that the issue of the wall's historic value, a zoning issue, arose during a review of Edgewood's subdivision plans does not affect the Board of Adjustment's subject matter jurisdiction over the matter. Accordingly, the Petition is DENIED.
II.
Edgewood owns a 17-acre parcel of land on Paladin Drive in New Castle County, Delaware. The property is adjacent to the Paladin Club residential condominium complex. Located on Edgewood's property is a dry-laid stone retaining wall which allegedly is of historic significance.In October 2003, Edgewood sought to develop the property into a townhouse community. It filed with New Castle County (the "County") a Subdivision Land Development application ("SLD") and an Exploratory Record Major Land Development Plan ("Exploratory Plan"). To accommodate the proposed construction of the townhouses, the SLD and Exploratory Plan (collectively "the Plans") called for the removal of approximately 850 feet of the stone wall. The Plans were assigned to Department Planner Michael Bennett and Engineer Stacey McNatt for review and evaluation. As part of their review process, Mr. Bennett and Ms. McNatt were charged with evaluating whether the Plans would impact any nearby historic resources. To fulfill this aspect of the task, they forwarded the matter to the Department's Historic Preservation Section ("HPS"). HPS subsequently forwarded the matter to the Historic Review Board ("HRB") for a hearing and recommendation on whether the stone wall was a historic resource.
See D.I. 5 at 199-200; D.I. 8 at 3-4.
The HRB held its hearing in May 2004. At the hearing, Edgewood presented the testimony of its consultant, Edward Heite, a Registered Professional Archaeologist, who opined that the wall did not meet any of the UDC's criteria for historic designation under section 40.15.110. During the period for public comment, several Paladin Club residents, including Mr. Jackson, voiced their objection to the removal of the stone wall. The HRB also received a report from the HPS which stated that the original features of the wall had become so obscured over time that any historic integrity once associated with the wall had been diminished. HPS, therefore, opined that the wall no longer met any of the criteria for historic zoning.
UDC § 40.15.110: "A building, complex of buildings, structure, site, object or district may be designated for preservation as a historic zone if it can be demonstrated that it is significant to the County for its ability to meet one (1) or any combination of the following criteria. In addition, the resource must be fifty (50) years old. Buildings, structures, sites, objects, or districts less than fifty (50) years old may be recommended for designation as historic zones only if it can be demonstrated that the historic resource is exceptionally important to the County. Criteria for designation: A. Listed or determined to be eligible for the National Register of Historic Places as provided in the National Historic Preservation Act of 1966, 16 U.S.C. 470 et seq. B. Has significant character, interest, or value as an example of the development, heritage or cultural characteristics of the County, the State or the United States. C. Is the site of a significant historic event. D. Exemplifies the cultural, political, economic, social or historical heritage of the community. E. Embodies distinguishing characteristics of an architectural style or engineering specimen. F. Is the work of a designer, architect, landscape architect or engineer whose individual work has significantly influenced the development of the County, the State or the United States. G. Contains elements of design, detail, materials or craftsmanship which represent a significant innovation. H. Is the singular known example of a design or use of material or style of architecture within the County. I. Is part of the historic context of a square, park or other distinctive area which should be preserved according to a plan based on a historic, cultural or an architectural context. J. Is a landmark; that is, an established and familiar visual feature which assists in defining the character of the neighborhood, community or County due to its unique location or singular physical characteristic. K. Has yielded or is likely to yield information of importance to prehistory State's or United States' history. L. Is associated with the lives of persons important to the County's past. M. Provides the historic setting for an identified resource or historic district. N. Is part of a view into or out of an existing historic district and contributes to the integrity, understanding and appreciation of that existing historic district."
See id.; D.I. 5 at 200-201.
Notwithstanding the views of HPS, the HRB recommended that the Department reject the Plans because they called for the removal of the wall. Specifically, the HRB stated:
The stone wall is of historic significance. The [HRB] finds that the dry-laid granite retaining/haha [sic] wall is `important and unusual for the area' and is in the tradition of English landscape pioneer Capability Brown's haha walls; the [HRB] also finds the wall to be particularly skillfully constructed.
D.I. 5 at 201.
D.I. 5 at 201.
The HRB recommended that the wall be restored to its original condition (Edgewood had destroyed a portion of it) and that any further removal be forbidden.
See id. Prior to the HRB hearing, Edgewood began demolishing a portion of the wall. County inspectors were called to the scene and immediately intervened to stop the removal of the wall by issuing a violation notice and a stop work order. The Department then held a rule to show cause hearing at which it considered whether Edgewood violated any County Code provisions. The Department found that Edgewood had violated UDC §§ 12.05.003 and 40.01.110B by removing a portion of the wall prior to a final determination of whether the wall was a protected historic resource. D.I. 8 at 4-5.
In December 2004, the Department (Mr. Bennett and Ms. McNatt) issued a letter to Edgewood containing their comments on the Plans. They concluded that the Exploratory Plan was not acceptable for reasons unrelated to the wall and directed Edgewood to submit a second revised exploratory sketch plan. However, after considering HRB's finding that the wall is historic and HPS' finding that the wall is not historic, the Department concluded that the wall does not satisfy the requisite criteria to establish historic significance. Therefore, Mr. Bennett and Ms. McNatt decided that the wall did not have to be preserved.
See UDC § 40.110.15.
See D.I. 5 at 201.
In response to the Department's (Mr. Bennett's and Ms. McNatt's) letter, counsel for Edgewood wrote the Department seeking confirmation from the Department's General Manager, Charles Baker, that all outstanding issues had been resolved. Around the same time, John Cartier, County Councilman for the 8th District, also wrote the Department to express his disagreement with the Department's findings with respect to the wall. Councilman Cartier requested that Mr. Baker reconsider and retract the conclusion that the wall is not a historic resource.
See id.
In February 2005, Mr. Baker informed Edgewood via letter that he had reconsidered the Department's prior decision and had now reached the conclusion that the wall did satisfy the criteria necessary to establish historic significance and, consequently, it could not be removed. In reaching his revised decision, Mr. Baker indicated that he relied on a review of the Plans, HPS' recommendations, HRB's recommendations, and correspondence from the public and Councilman Cartier. Mr. Baker ended the letter with the following statement: "This is the final decision of the Department of Land Use. Please see UDC § 40.31.500 for rights of appeal to the Planning Board if so desired."
See id. at 201-202; D.I. 8 at 6-7.
Rather than appeal to the Planning Board, however, Edgewood appealed the Department's decision to the Board of Adjustment. The Board of Adjustment held a hearing on the matter in July 2005. At the hearing, Edgewood urged the Board of Adjustment to find that the wall is not historic. The Department attempted to justify its finding that the wall is a historic resource. Comments from the public were also received.
The Board of Adjustment determined that the Department's "findings and conclusions were not the result of an orderly and logical review of the evidence and the applicable provisions of the UDC." To support its finding, the Board considered each of the criteria, as set forth in section 40.15.110, and determined that the wall did not meet any one of them. The Board of Adjustment noted that even though the HRB ultimately concluded that the wall does have historic significance, "it [did] not explicitly support its conclusion . . . with a reference to any of [the codified] criteria." The Board of Adjustment was impressed with Mr. Heite's (Edgewood's consultant) credentials and gave his testimony great evidentiary weight. It noted that, unlike the HRB, Mr. Heite relied upon the relevant criteria under section 40.15.110 as he considered vel non the wall was a historic resource. The Board of Adjustment also supported its finding by reference to both the memorandum prepared by HPS, noting that the wall is not historic after an analysis of the relevant criteria, and the first letter prepared by Mr. Bennett and Ms. McNatt which concurred in that conclusion. Finally, and most relevant here, the Board of Adjustment concluded that it had subject matter jurisdiction over Edgewood's appeal "[s]ince the designation of a structure as a historic resource is a zoning matter[.]"
D.I. 5 at 204.
Id. at 203.
Id. at 202.
On August 29, 2005, Petitioners filed a Petition for Writ of Certiorari seeking review of the Board of Adjustment's decision. The Court allowed the Petition for Writ of Certiorari without objection from Edgewood. Briefing is now complete, the Court has received oral argument, and the matter is ripe for decision.
See D.I. 1
See D.I. 2.
III.
Petitioners argue that the Board of Adjustment only has jurisdiction to hear appeals in zoning matters. Consequently, it lacked subject matter jurisdiction to hear Edgewood's appeal since the Department's decision addressed a subdivision issue rather than a zoning issue. Petitioners aver that the Delaware Constitution and Delaware Code both provide that "zoning" determinations encompass only "uses" and "sizes" of land and/or structures. They contend that the Department's determination that the wall at issue in this case is historic does not address either the use or size of the structure. Petitioners further argue that applicable case law and provisions of the County Code dictate that Edgewood's appeal should go to the Planning Board rather than the Board of Adjustment. Specifically, Petitioners cite to the "Purpose" section of the UDC Division 40.15.000 which states that historic structures, sites, objects, and landscape features are matters of critical importance. Division 40.15.000 further states that the "Purpose" shall be accomplished "by reviewing development plans in a manner that encourages the purposes of this Article." Based on this language, Petitioners reason that because historic review is, at times, part of the review process of development/subdivision plans, it is inherently a subdivision matter, and not a zoning matter. Lastly, Petitioners contend that the Court should give deference to Mr. Baker's opinion, as stated in his letter, that Edgewood should direct its appeal to the Planning Board.
See DEL. CONST. art. II, § 25.
See DEL. CODE ANN. tit. 9, §§ 2601-2699; 3001-3012 (Chapter 26 is entitled "Zoning"; Chapter 30 is entitled "Subdivision and Land Development").
In Arbour Park Civic Ass'n, Inc. v. Bd. Of Adjustment, 1969 WL 99824 (Del.Super.Ct. Oct. 24, 1969), the Court considered "whether or not the Board of Adjustment, created to hear zoning appeals, has jurisdiction to hear an appeal from an order of the City Manager, calling for bids for the construction of sidewalks in Arbour Park [a subdivision], in the performance of his duties as enforcement officer of the Code of Subdivision Regulations." Id. at *2. The Court held that because "the construction of sidewalks is not a subject of zoning, the Board of Adjustment is without jurisdiction to hear the appeal of Arbour Park." Id. at *3. See also UDC §§ 40.15.000-40.15.240; 40.30.000-40.30.530; 40.31.112-40.31.114 (Article 15 is entitled "Historic Resources"; Article 30 is entitled "County Council and Administrative Bodies"; Article 31 is entitled "Procedures and Administration").
UDC Division 40.15.000 (emphasis added).
See D.I. 8 at 7, 12-20.
For its part, Edgewood contends that its appeal took the appropriate procedural course. According to Edgewood, the Board of Adjustment properly exercised its subject matter jurisdiction when it reviewed the Department's decision because whether a resource, such as the wall at issue here, is historic or not is a zoning matter. Edgewood makes three specific arguments: (1) the purpose and application of the historic designation provisions of the UDC demonstrate that the historic designation provisions are indeed zoning provisions; (2) the provisions in the UDC relating to historic designations have always been considered zoning regulations; and (3) the structure of the UDC and designation of the provisions within the UDC indicate that the County views them as zoning regulations. Edgewood further contends that the Board of Adjustment does not lose jurisdiction over a zoning matter merely because it arises during the review of a subdivision plan. Lastly, Edgewood argues that, if the Court is going to consider the Agencies' respective views of where the appeal should be taken (both the Department and the Board of Adjustment expressed different views), then it should defer to the Board of Adjustment's determination of the scope of its own appellate jurisdiction.
See UDC §§ 40.15.000-40.15.240.
See D.I. 5 at 202; D.I. 15 at 7-18.
IV.
"Under Delaware law, a writ of certiorari is essentially a common law writ." It "`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.'" With the writ of certiorari, the Court has "the power to quash or affirm the proceedings, . . . and to remand.""The difference between an appeal and a writ of certiorari is that the former brings up the case on its merits, and the latter merely brings the record up so that the reviewing court can look at the regularity of the proceedings." "Thus, certiorari review `is not the same as review on appeal' because it `is on the record and the reviewing court may not weigh evidence or review the lower tribunal's factual findings.'" The agency, rather than the Court, must "`weigh evidence and resolve conflicting testimony and issues of credibility.'" Accordingly, the Court is to consider the record only for purposes of determining "whether the lower tribunal exceeded its jurisdiction, committed errors of law, or proceeded irregularly." As to jurisdiction:
Jardel Co., Inc. v. Carroll, 1990 WL 18296, at *2 (Del.Super.Ct. Feb. 26, 1990).
395 Assocs., LLC v. New Castle County, 2006 WL 2021623, at *3 (Del.Super.Ct. July 19, 2006) (citations omitted).
Id.
Christiana Town Ctr., LLC v. New Castle County, 2004 WL 2921830, at *2 (Del. Dec. 16, 2004).
A decision will be reversed on jurisdiction grounds only if the record fails to show that the matter was within the lower tribunal's personal and subject matter jurisdiction. A decision will be reversed for an error of law committed by the lower tribunal when the record affirmatively shows that the lower tribunal has `proceeded illegally or manifestly contrary to law.' A decision will be reversed for irregularities of proceedings if the lower tribunal failed to create an adequate record to review.
Id.
Id.
V.
Both the Delaware Code and the County Code make clear that the Board of Adjustment has the authority to hear and decide all appeals in zoning matters. As articulated in DEL CODE ANN. tit. 9, § 1313(a)(1) ("Section 1313(a)(1)"), "[t]he Board of Adjustment shall be empowered to hear and decide . . . [a]ppeals in zoning matters[.]" The counterpart provision in the County Code, UDC § 40.30.320, is a verbatim recitation of Section 1313(a)(1). The County Code also makes clear, in the table provided under UDC § 40.30.110, that the Planning Board has the authority to hear and decide all appeals in subdivision matters. Therefore, the Court's determination of whether the Department's decision (that the wall is historic) was a zoning decision or a subdivision decision will be dispositive of the Petitioners' jurisdictional challenge.Under UDC § 40.33.300, a historic resource is any "building, structure, object, site or historic district that is important historically, architecturally or archaeologically in the history of the County, the State or the nation." Section 40.33.300 also provides that, under the UDC, "Subdivision regulations" are contained in Articles 1, 20-27, and 30-33; "Zoning regulations" are contained in Articles 1-15, and 30-33. Article 15, a designated zoning regulation under section 40.33.300, is entitled "Historic Resources," and section 40.15.110 within Article 15 contains the 14 criteria used to make the determination of whether a resource qualifies for historic designation. The UDC itself designates that issues relating to "historic resources" are zoning issues. Accordingly, based on the clear directions of the UDC, disputes involving historic resources are properly appealed to the Board of Adjustment.
See fn 7 (listing the 14 criteria for historic designation under UDC § 40.15.110).
See 1A SUTHERLAND STATUTES AND STATUTORY CONSTRUCTION, §§ 18:2, 28.11 (6th ed. 2005) (title of statute must give adequate notice of the purpose of the legislation, and the order and designation of provisions within a statutory scheme are relevant to statutory construction); 2A SUTHERLAND, supra at § 46:5 (all provisions of a statutory scheme should be considered when construing a particular statutory provision).
Petitioners dismiss any analysis that focuses on the designation of provisions within the UDC as elevating "form over substance." The Court does not agree. "`Statutes must be read as a whole and all the words must be given effect'" before a court can determine whether to engage in statutory construction. "Only where a statute is ambiguous and its meaning cannot be clearly ascertained does a court engage in the process of statutory construction and interpretation." If, however, "a statute is unambiguous, there is no need for judicial interpretation, and the plain meaning of the statutory language controls."
Rosenthalis v. Doctors for Emergency Servs., P.A., 2004 WL 692686, at *3 (Del.Super.Ct. Mar. 31, 2004) (citation omitted).
Newtowne Vill. Servs. Corp. v. Newtowne Rd., 772 A.2d 172, 176 (Del. 2001).
Eliason v. Englehart, 733 A.2d 944, 946 (Del. 1999). See also Cantinca v. Fontana, 884 A.2d 468, 471 (Del. 2005) ("This Court has held that in construing a statute, the plain meaning of the statutory language controls.").
A statute is "ambiguous when it is reasonably susceptible of different conclusions or interpretations." Ambiguity also exists "if a literal reading of the statute would lead to an unreasonable or absurd result not contemplated by the legislature." "If a statute is ambiguous, it should be construed in a way that will promote its apparent purpose and harmonize [it] with other statutes." Such an interpretation would align the statute with the goal of statutory construction — "to . . . give effect to legislative intent."
Newtowne, 772 A.2d at 176.
Id.
Eliason, 733 A.2d at 946.
Id.
Applying these standards to this case, the Court finds that section 40.33.300 is clear and unambiguous in its designation of Article 15, entitled "Historic Resources", as a zoning regulation. Section 40.33.300 is not susceptible of different conclusions or interpretations, nor does a literal reading of it lead to an unreasonable or absurd result. In fact, it could not be more clear — Article 15 is a zoning regulation. It would simply make no sense to declare Article 15 a subdivision regulation — a declaration implicit in any determination that Edgewood should have appealed to the Planning Board — when section 40.33.300 so clearly designates Article 15 as a zoning regulation.
The Court also takes note of the County's approach to historical designation prior to the enactment of the current UDC. The subject of historic preservation was a zoning matter under the previous County Code, as evidenced by County Code, Chapter 23, Article XVI (1992) entitled "Historic Zoning and Preservation." This title is entirely consistent with the consequences of a designation that a property or structure is of historic significance. Such designations directly affect the "use" to which the property or structure may be put — a matter even the Petitioners concede is a prototypical zoning issue.
See County Code § 23-86 (1992): "The purpose of this article is to protect the public health, safety and general welfare particularly the education, cultural, economic and social welfare of the present and future inhabitants of New Castle County through the identification, evaluation, registration and protection of buildings, structures, sites, objects and districts of historic, architectural and/or archaeological importance. In order to insure the identification, evaluation, registration and protection of such historically, architecturally and/or archaeologically important buildings, structures, sites, objects and districts as landmarks in the history of the county, the state, the nation, architecture or civilization, there are hereby established historic zoning districts as hereinafter set forth." See also D.I. 16, Ex. E.
D.I. 8, at 12-20.
The Court also rejects Petitioners' argument that the Board of Adjustment loses its subject matter jurisdiction merely because a zoning matter arises during the review of a subdivision plan. There are several examples in Delaware case law where appeals from the Board of Adjustment regarding zoning issues arose during the review of a property owner's development plans. For instance, in Industrial Rentals, Inc. v. New Castle County Bd. of Adjustment, the property owner sought to develop its 44-acre parcel into an auto dealership, two hotels and a restaurant, and submitted the necessary plans to the County. During the review of the development plans, an issue arose regarding the Traffic Impact Study the plaintiffs were required to submit. Traffic Impact Studies are governed under Article 11 of the UDC which, like Article 15, is designated as a zoning regulation under section 40.33.300. When the property owner was not satisfied with the Department's decision, it appropriately appealed the decision to the Board of Adjustment. This is precisely what Edgewood did here — it appealed a zoning decision that arose during a review of its subdivision plan to the Board of Adjustment.
776 A.2d 528 (Del. 2001).
See UDC § 40.33.300 (" Zoning regulations. Articles 1-15, 30-33.").
See Industrial Rentals, 776 A.2d at 528-529.
VI.
The Court is satisfied that the decision by the Department regarding the historical significance of the wall was a zoning decision. Edgewood's appeal to the Board of Adjustment was appropriate and the Board of Adjustment properly exercised its subject matter jurisdiction in reviewing the Department's decision. Accordingly, the Petition is DENIED.