Opinion
C.A. No. 04A-02-001 WCC.
Submitted: July 16, 2004.
Decided: November 30, 2004.
Appeal from the Board of License and Inspection Review of the City of Wilmington. DENIED.
Stanley C. Lowicki, Attorney for Appellants.
Rosamaria Tassone, Assistant City Solicitor. Louis L. Redding, Attorney for Appellees.
ORDER
This 30th day of November, 2004, after consideration of the appeal of Adjile, Inc.; Stanley Wojciechowski; Hershey Wojciechowski; Readway, Inc. Trustee; and Stanley C. Lowicki ("Appellants") from the January 12, 2004 decision of the Board of Licenses and Inspections Review Board (the "Board") and upon review of the briefs and the record below, it appears that:
1. The Wilmington City Council recently amended a portion of the City Code, entitled "Annual Registration of Vacant Buildings and Registration Fees" through the passage of Ordinance No. 03-019 (the "Ordinance"). On July 25, 2003, the Department of Licenses and Inspection ("LI") sent informational letters, containing a copy of the Ordinance, to Appellants notifying them that they were required to register their respective properties located at 701 North Harrison Street, 709 W. 10th Street and 2712 Tatnall Street as vacant properties and pay the registration fees, assessed by LI, by January 1, 2004. Billing statements were sent to the Appellants, and on or about November 12, 2003, and the Appellants properly filed an administrative appeal for each of the proposed assessments. In response, a hearing before the Board occurred on January 12, 2004.
Wilm. C. c.4, § 4-27, 125.0 et seq.
Carson Aff. §§ 9, 19, 14.
Vacant Property Statement for 701 N. Harrison Street (Nov. 15, 2003); Vacant Property Statement for 709 W. 10th Street (Nov. 15, 2003); Vacant Property Statement for 2712 Tatnall Street (Nov. 15, 2003).
Vacant Registration Appeal for 701 N. Harrison Street from Stanley C. Lowicki (Nov. 12, 2003); Vacant Registration Appeal for 709 W. 10th Street from Stanley C. Lowicki (Nov. 12, 2003); Vacant Registration Appeal for 2712 Tatnall Street from Stanley C. Lowicki (Nov. 14, 2003).
2. Under the relevant portion of Chapter Four of the City Code Section 4-27, 125.0(b)(1)(F), a building is deemed vacant "if no person or persons actually, currently conducts a lawfully licensed business, or lawfully resides or lives in any part of the building as the legal or equitable owner(s) or tenant-occupant(s), or owner-occupants, or tenant(s) on a permanent, nontransient basis." While Appellants admitted at the hearing that no one resided at any of the properties, they contended that each of the properties was either for sale or "received the attention of an owner," and as a result was not subject to vacancy registration fees. Furthermore, Appellant's counsel argued that a lawful business was being conducted on the premises because, in his opinion, "owning it and having it for sale" created a lawful business. Counsel failed, however, to provide any documentation that the properties were for sale, such as sales contracts with prospective buyers, or any evidence that the properties were listed with a real estate broker. In addition, neighbors testified during the hearing that these properties were not maintained, as argued by Appellants' counsel, and worse that some of the properties had become havens for drug activity and prostitution.
Tr. LI Review Bd. Hr'g (Jan. 12, 2004).
Id.
3. After examining the evidence, the Board voted unanimously to deny the appeals for the properties located at 701 North Harrison Street, 709 W. 10th Street and 2712 Tatnall Street. Appellants subsequently filed a writ of certiorari, seeking review of the Board's decision.
The appeal relating to the property at 222 W. 14th Street was granted by the Board on January 22, 2004 as the property had been sold to new owners. However, the same letter of January 22, 2004 from Donald Gouge, Chairman of the Board of License and Inspection Review, denied the appeals of the properties which are the subject of this litigation.
4. Certiorari review is appropriate when there is a final judgment and statutory provisions for review are lacking. Here, certiorari review is proper because Appellants seek review from a quasi-judicial act and there is no statutory provision for appeal. The function of this Court on a petition for a writ of certiorari is limited to a consideration of "(I) the lower tribunal's jurisdiction; (ii) the regularity of the proceedings below; and (iii) errors of law."
Luby, 2001 WL 1729121, at *1.
Id.
Id.
5. First, Appellants contend that the Ordinance is an unlawful tax. The constitutionality of this kind of ordinance has been attacked in at least three separate cases which have all held the ordinance constitutional and a proper exercise of the authority granted by the City Charter. In City of Wilmington v. Roleta Inc. International et al., this Court held that the pre-amendment version of the Ordinance, which imposed an annual requirement to register vacant buildings and pay registration fees, was lawful. Roleta held the ordinance was "merely an exercise of the City's traditional powers to impose business excise taxes and is authorized under the City Charter as well as pursuant to the City's general police powers." Similarly, in City of Wilmington v. Ramunno, this Court found that "the Ordinance appear[s] to bear a rational relationship to the City's legitimate interest in reducing the rental housing shortage as well as the numerous health, safety, and financial costs created by vacant dwellings."
1985 Del. Super. LEXIS 1166.
Id. at *2.
1986 WL 2834 (Del.Super.).
Id. at *2.
Finally, in City of Wilmington v. Goldstein, the Delaware Supreme Court adopted Judge O'Hara's ruling in Ramunno, upholding the statute's constitutionality. The Court again found the Ordinance was an appropriate exercise of police power for the protection of the health, safety and welfare of the citizens of Wilmington.
1986 Del. LEXIS 1163, at *2-3.
Ramunno, 1986 WL 2834.
Based upon the above and now for a fourth time, the Court again affirms the City's authority to impose this fee. The purpose of this ordinance and its related fees are clearly set forth in Section 125.0
(a) Purpose. The purpose of this section requiring the registration of all vacant buildings, including dwellings that are subject to chapter 34 as referenced below, and the payment of registration fees is to assist the city government, particularly the department of licenses and inspections (DLI) in protecting the public health, safety and welfare, to monitor the number of vacant buildings in the city, particularly those that are located in the downtown business district (from Second to 16th, and Walnut to West Streets), to assess the effects of the condition of those buildings on nearby businesses and the neighborhoods in which they are located, particularly in light of fire safety hazards and unlawful, temporary occupancy by transients, including illicit drug users and traffickers, and to require of the owners of such vacant buildings their registration and the payment of related fees, and to promote substantial efforts to rehabilitate such vacant buildings.
Section 1-101 of the Home Rule Charter grants the City of Wilmington authority to enact ordinances to deal with public health, safety and welfare and as stated by Judge O'Hara "a necessary concomitant to the above powers is the authority vested in a municipality to declare, prevent, and abate a public nuisance, which is broadly defined as any behavior that unreasonably interferes with health, safety, peace, comfort or convenience of the general community."
1 Wilm. C. § 1-101 ("The city shall have the power to enact ordinances and to make rules and regulations necessary and proper for carrying into execution of any of its express or implied powers; and such ordinances, rules and regulations may be made enforceable by the imposition of fines, forfeitures, penalties and imprisonment.").
Goldstein v. City of Wilmington, 1986 Del. Super. LEXIS 1216, at *3-4.
Vacant buildings, such as those owned by the Appellants, without proper care, can be not only a nuisance and blight on the effort to vitalize the City, but a haven for crime and a community eyesore. This in turn requires the expenditure of funds for police activity and examination by the Department of License and Inspection and it is proper for property owners who are at best speculating on the future values of these properties to be assessed a fee to compensate the City for such expenditures. The City's action here is appropriate and there was no error of law in the enforcement of this statute. The Court finds the Appellant's unlawful taxation argument to be without merit.
6. Next, Appellants proffer that the Ordinance is unconstitutional as an ex post facto law. First, Appellants contend that the fee schedule set forth in the Ordinance constitutes an ex post facto law because the fees assessed are based upon the number of years the properties have been vacant, including the years before the enactment of the Ordinance. This argument fails because the prohibition against ex post facto laws applies exclusively to criminal or penal statutes. Here, the Ordinance creates a valid regulatory scheme that calls for a reasonable fee based upon the detrimental effect of property left vacant for long periods of time. This is neither criminal, nor penal. While it does assess fees for past vacancy, it does not retrospectively assess such fees. Instead, the Ordinance requires one fee for the current year which is calculated based upon the number of years a building has been vacant.
Smith v. Doe, 538 U.S. 84, 92 (2003).
See Wilm. C. c.4, § 4-27, 125.0(b)(3)(i)-(vi).
Recognizing that their initial arguments regarding ex post facto may be without merit, Appellants argue in their responsive brief that the criminal penalty section of the Ordinance fails under the ex post facto doctrine. The Appellant's are correct that Section (e)(1) of the Ordinance imposes a monetary criminal penalty. However, the Ordinance does not retroactively create fines for past failures to timely register vacant buildings. Instead, only those owners who fail to timely register their properties in the present year will be assessed the penalty set forth in section (e)(1). As a result, Appellants' second ex post facto argument fails.
Id. at 125.0(e)(1) ("The failure or refusal for any reason of any owner, or agent of an owner acting on behalf of the owner, to register a vacant building or to pay any fees required to be paid pursuant to the provisions of this section, within 30 days after they become due, shall constitute a violation punishable upon conviction thereof by a fine in the amount of not less than $100.00 nor more than $500.00 for each failure or refusal to register, or for each failure or refusal to pay a required vacant building fee, as applicable. In such cases, whenever the minimum fine of $100.00 is imposed, it shall not be subject to suspension or reduction for any reason.").
7. Appellants next argue that failure to give proper notice of the hearing is a denial of due process of law and equal protection under the law. Notice of the hearing was mailed to an allegedly incorrect address of 2600 W. 18th Street, Wilmington, Delaware, 19806-1115. The record does not reflect who resides at this address or why the notice would have been sent to that location. However, the preceding documents, including an information packet on vacant property registration with a summary and a copy of the relevant City Code provisions and a vacant property statement were correctly mailed to counsel's office. There is also no dispute that counsel became aware of the hearing days before it occurred and was willing to proceed on the date scheduled. Due process only requires that the notice inform the party of the time, place and date of the hearing and the subject matter of the proceedings. Appellants are afforded their basic due process rights when they are provided with notice of the action being taken and an opportunity to be heard. Although delayed, notice was eventually provided and a hearing occurred. Appellants' failure to challenge the adequacy of notice and their decision to proceed with the hearing constitute a waiver of any objection to notice. Appellants also contend that they were deprived copies of the prior vacant registration ordinances. Discovery, however, is not required during administrative proceedings to satisfy due process.
In re Gresick, 1988 Del. Super. LEXIS 393, at *18.
Kennedy v. Bd. of License and Inspection Review, et al., 1987 Del. Super. LEXIS 1265, at *3.
Preston v. Bd. of Adjustment of New Castle County, 2002 Del. Super. LEXIS 112, at *15.
In re Gresick, 1988 Del. Super. LEXIS 393, at *18.
8. Finally, Appellants' contention that the record on appeal is insufficient lacks merit. The scope of review on certiorari is limited and more restrictive than on appeal. As such, the role of this Court is not to review the record on its merits, nor to consider the sufficiency of the evidence, but is directed more to the legality of proceedings below. While this Court would certainly encourage that all proceedings before the Board be adequately recorded so they can be transcribed for review, the Appellants have failed to establish that their appeal to this Court has been affected by the poor quality of the transcript since there are few, if any, disputed facts.
Reise v. Bd. of Bldg. Appeals of the City of Newark, 746 A.2d 271, 272 (Del. 2000).
Goldberg v. City of Wilmington, 1992 WL 114074, at *1 (Del.Super.); Luby v. Town of Smyrna, 2001 WL 1729121, at *2 (Del.Super.).
The City of Wilmington should in no way consider the Court's decision as approval of the condition of the transcripts provided to the Court. They were an embarrassment to any fair system of justice and immediate steps should be taken to correct the situation.
9. The Board's decision, affirming the LI's assessment of vacancy registration fees for the properties, is free from legal error. As a result, the Board's decision is AFFIRMED for the reasons set forth above.
IT IS SO ORDERED.