Opinion
C.A. No. 06A-07-007 WCC.
Submitted: March 5, 2007.
Decided: June 29, 2007.
Appeal from Board of License and Inspection Review. AFFIRMED.
Stanley C. Lowicki, Esquire, Wilmington, Delaware, Attorney for Appellants.
Brenda James-Roberts; First Assistant City Solicitor; Louis L. Redding City/County Building, Wilmington, Delaware, Attorney for Appellees.
MEMORANDUM OPINION
Introduction
Before this Court is an appeal by Adjile, Inc; Stanley Wojciechowski; Hershey Wojciechowski; Readway, Inc. Trustee; Stanley C. Lowicki; Walter Lowicki, Trustee of Walter Lowicki Revocable Trust; and Janeve Co., Inc. ("Appellants") from a decision of the Board of License and Inspection Review of the City of Wilmington ("Board"). On July 7, 2006, the Board unanimously denied the Appellants' request to waive assessment fees on certain properties. Upon review of the briefs filed in this matter, the Board"s decision is hereby AFFIRMED
The Court notes this is the second writ of certiorari filed by these Appellants regarding similar issues. The decision in the earlier litigation can be found at Adjile, Inc. v. Wilmington, 2004 WL 2827893 (Del.Super.Ct.), aff"d 875 A.2d 632 (Del. 2005).
Facts
On November 15, 2005, the City of Wilmington ("the City"), through its Department of Licenses and Inspections, mailed vacant building registration statements to all owners of vacant buildings within the City, including the Appellants. The City claimed the Appellants owned properties that were vacant for a significant number of years, and as a result the Appellants were charged $22,500.00 in fees. Subsequently, on November 30, 2005, Stanley C. Lowicki (counsel for the Appellants and a party to this lawsuit) filed an appeal of the registration fees with the Board requesting waivers of the fees for each of their properties. On June 12, 2006, an appeal hearing was held before the Board. During that hearing, the Appellants motioned to have the Chairman of the Board (Donald L. Gouge, Jr., Esquire) recused from the hearing and the deliberation of the Appellants' waiver requests arguing that the Chairman was biased against Mr. Lowicki for two reasons: the Chairman had prosecuted him in the past for building code violations and Mr. Lowicki was opposing counsel in a claim that involved a contested will. The Chairman denied any personal bias towards Mr. Lowicki, and Mr. Lowicki was unable to provide any evidence supporting his allegations. As a result, the Board denied the Appellants' motion for recusal and the appeal hearing went forward.At the hearing, Appellants first asserted that the properties met the definition of "occupied" and not "vacant" under the Wilmington Code and therefore the properties do not qualify for vacant building registration fees. In the alternative, the Appellants argued that even if the properties were vacant, they were eligible for a waiver. Lastly, the Appellants challenged the calculation of the registration fees for all the properties.
Wilm. C. ch. 4, § 4-27, 125(b)(1)(C).
Wilm. C. ch. 4, § 4-27, 125(b)(1)(F).
According to Wilm. C. ch. 4, § 4-27, 125(b)(5), the vacancy registration fee may be waived by the Board if the owner:
(1) Demonstrates with satisfactory proof that he/she is in the process of demolition, rehabilitation, or other substantial repair of the vacant building; and (2) Objectively demonstrates the anticipated length of time for the demolition, rehabilitation, or other substantial repair of the vacant building; or (3) Provides satisfactory proof that he/she was actively attempting to sell or lease the property during the vacancy period.
Opposing the conclusion that the properties are occupied or otherwise eligible for a fee waiver, the City provided the Board testimony from numerous residents who neighbor the Appellants' various properties as well as testimony from certain city officials. In summary, the testimony included that there was no running water in many of the properties; the properties had been uninhabited for many years; no lawful business was taking place on the premises; one of the properties was infested with maggots and the selling price on the properties for sale was unreasonably high. On July 7, 2006, the Board, after hearing and weighing all of the evidence, voted to deny the Appellants' request to deem the properties occupied or for waivers of the vacant building assessment fees on all of the properties.
Tr. Bd. L I Rev. Appeal (June 12, 2006), 19-22.
Id. at 24-5.
Id. at 19-23.
Id. at 39-45.
Id. at 48-53.
Adjile, Inc. v. Wilmington, Bd. L I Rev. (July 7, 2006).
As a result, on July 20, 2006, the Appellants filed the appeal currently before this Court. Upon review of the briefs and record in this case, this is the Court's decision on the matter.
Standard of Review
This Court may review an appeal from the Board through a writ of certiorari. This Court's role regarding review on certiorari is limited to a review of the record to determine whether the lower tribunal exceeded its jurisdiction, committed errors of law, or proceeded irregularly. As the Delaware Supreme Court stated: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.
With these parameters set forth, the Court reviews the validity of Wilm. C. ch. 4, § 4-27, 125.0 and the Board's denial of Appellants' appeal.
Discussion
The Appellants are seeking certiorari review of a decision of the Board which denied their request for a waiver of the vacancy registration fees assessed on Appellants' properties and which declared the properties vacant. This appeal presents primarily four issues: (1) whether the Chairman of the Board should have recused himself from the Appellants' hearing; (2) whether Wilm. C. ch. 4, § 4-27, 125.0 is unconstitutional as an ex post facto law; (3) whether the Appellants' properties were considered vacant or occupied according to the Wilmington Code and whether the Board appropriately calculated the assessed vacancy fees and (4) whether the Board committed any procedural errors. Each of these issues will be addressed below.
I. Recusal of Chairman of the Board
The Appellants claim that the Chairman was biased against Mr. Lowicki because the Chairman prosecuted him in the past for building code violations and because the Chairman was opposing counsel in a previous legal matter. As a result, it is the Appellants' contention that the Board erred by not recusing the Chairman. However, it appears the Chairman did not prosecute Mr. Lowicki in his individual capacity, but instead was the Assistant City Solicitor in a 1986 case against Edifice Rex, Inc., who was represented by Mr. Lowicki. While this fact alone does not create a personal bias, the Court again points out that the Appellants failed to provide the Board any evidence of personal bias in support of their motion for recusal, and thus this Court has nothing of substance to review on the matter. The Court is satisfied that the record fails to affirmatively show that the Board "proceeded illegally or manifestly contrary to law when it denied the Appellants motion for recusal. As a result this Court denies the Appellants' writ regarding the Board's decision to not recuse the Chairman.
Id. (citations omitted).
Adjile, Inc. v. Wilmington, Bd. L I Rev. (October 18, 2005).
Further, while the Court is convinced the record fails to articulate any real bias, it appears to the Court that one of the problems in this case is Mr. Lowicki"s perception that he cannot get a fair hearing before the Board. To the Court, this problem is compounded by Mr. Lowicki"s insistence that he act both as counsel to the Appellants as well as a named Appellant. As such, instead of providing independent and unbiased advice untainted by an interest in the outcome of the case, Mr. Lowicki"s views of the proceedings are compromised by being a primary investor in the properties whose financial interest will be affected by the Board"s decisions. If Appellants were to obtain independent counsel, and Mr. Lowicki remained only as a named Appellant, it would allow a fresh and untainted start with respect to the properties, and it would in essence, remove any appearance of bad blood between the Chairman, the Board and Mr. Lowicki in future proceedings. The Court cannot order the Appellants to undertake this common sense approach to these disputes, but their failure to do so will likely only cause the annual filing of a certiorari writ regarding the same subject.
II. Wilmington City Code
Next, the Appellants proffer that the vacancy registration fee is unconstitutional as an ex post facto law. However, this Court rejects the Appellants' claim since both this Court and the Delaware Supreme Court have previously addressed this issue. The Superior Court previously stated:
[T]he 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.
Adjile, 875 A.2d at 632.
Adjile, Inc. v. Wilmington, 2004 WL 2827893, at *2 (Del.Super.Ct.).
Since the Delaware Supreme Court has affirmed this ruling, the Court need not again address this same issue. Therefore, based on the above, the Court affirms the City"s authority to enforce Wilm. C. ch. 4, § 4-27, 125.0, and denies the Appellants' writ for certiorari.
Adjile, 875 A.2d 632.
III. Vacancy Fees
Next, the Appellants' contend that the properties are not vacant pursuant to Wilm. C. ch. 4, § 4-27, 125(b)(1)(F), and therefore the properties should not be assessed a vacancy registration fee. As defined by the Wilmington Code, a building or structure is deemed vacant when:
[N]o 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. (emphasis added)
Wilm. C. ch. 4, § 4-27, 125(b)(1)(F).
In conjunction with that argument, the Appellants also assert that the properties are occupied, which is defined by the Wilmington Code as:
Any building or structure shall be deemed to be occupied if one or more persons actually conducts a lawful business or resides in all or any part of the building as the licensed business-occupant, or as the legal or equitable owner/occupant(s) or tenant(s) on a permanent, nontransient basis, or any combination of the same. For purposes of this section, evidence offered to prove that a building is so occupied may include, but shall not be limited to, the regular receipt of delivery of regular mail through the U.S. Postal Service; proof of continual telephone, electric, gas, heating, water and sewer services; a valid city business license, or the most recent, federal, state, or city income tax statements indicating that the subject property is the official business or residence address of the person or business claiming occupancy; or proof of pre-rental inspection. (emphasis added)
Wilm. C. ch. 4, § 4-27, 125(b)(1)(C).
Since a building or structure must be either vacant or occupied, it is crucial to determine where the line from occupied to vacant is drawn, and this line must be determined on a case by case basis. Critical to that determination is the meaning of "permanent, nontransient basis," which is referenced in each section. "Permanent" is defined as "not expected to change in status, condition or place," while "transient" is defined as a "temporary; impermanent; passing away after a short time."
The American Heritage Dictionary (2d ed. 1991).
Black"s Law Dictionary 1504 (7th ed. 2004).
The Court emphasizes that it is not the fact-finder in a review of this nature and since the claims here are simply a dispute of facts, the Court could end the inquiry without further comments. But to hopefully help in this dispute, the Court finds that, applying these definitions to the facts at hand, the record reflects that the Board did not err in deciding the properties are in fact vacant or not eligible for a waiver, and its factual determination cannot be altered by this Court. The Court firsts notes that the Board held a hearing with respect to these properties on two previous occasions to determine whether each property was occupied or vacant. At the hearing related to this appeal, the Board requested the Appellant to only present new information to the Board so that the Board could again assess the status of each property. However, the Appellants failed to present any evidence that would allow the Board to place an occupied status on any of the properties or that would allow the Board to waive the vacancy fees.
For instance, with respect to 1309 West Street, Appellants assert this is a rental property "occupied as a business location for Janeve while he"s looking for a tenant. . . . it"s a conditional property office," but further admits that Janeve"s business is nothing more than a shell created merely to sell the property. With respect to 701 N. Harrison Street, the Appellants assert the property has a "For Sale" sign posted and the property is listed with a licensed real estate agent who allegedly had serious prospective buyers. However, the property has been for sale since November of 1998, and since that time the only change in the status of the property was the increase in the asking price from $95,000 to $110,000. Similarly, 2712 North Tatnall Street also had a "For Sale" sign, though there is no water or electric in the home, and again a good faith effort to sell the property was not apparent to the Board. Lastly, with respect to 2600 West 18th Street, the Appellants argue the property is owned by Mr. Lowicki"s father, but the property has no running water or electric and the father appears to merely be a pawn used to allow the Appellants to argue, in alleged good faith, that the property is occupied per the definition in the Wilmington Code.
Bd. L I Rev. Appeal (June 12, 2006), 11.
Id. at 18.
Id. at 46.
The Appellant also argues that Adjile owns this property and is attempting to sell it, and since the property is Adjile"s inventory, business is being conducted on the property and therefore satisfies the definition of "occupied." This argument defies logic, especially considering that Adjile is a dormant company without a business license. See Id. at 53.
In fact, a licensed realtor testified that $85,000 is a more reasonable asking price.
Bd. L I Rev. Appeal (June 12, 2006), 56.
Pursuant to the definitions of occupied and vacant, the Board as the fact-finder, did not err in determining the properties are in fact vacant. The testimony and evidence presented to the Board supports that the properties may in fact be occupied by a person or business temporarily, on a transient basis, merely for the purpose of seeking an "occupied" status or a waiver simply to evade the assessments received by vacant properties. The record does not reflect that any of the properties are occupied on a "nontransient" basis. Placing a "For Sale" sign on the property, stating a property can be rented, having a business own the property solely for the purpose of selling that property or having a person come to the property a few hours a week does not constitute occupancy pursuant to the terms of the Wilmington Code, nor does it justify the waiver of vacancy fees. These actions performed merely to circumvent the status of "vacant" so as to avoid certain fees is simply not acceptable.
The Appellants have failed to produce any meaningful evidence demonstrating there was any activity on the properties which would meet the occupancy definition or to allow a waiver. Once again the Court may only determine whether the Board exceeded its jurisdiction, committed errors of law, or proceeded irregularly. The Court may not weigh the sufficiency of the evidence or review the Board"s factual findings. Therefore, having reviewed the record in this matter, this Court denies the Appellants' writ of certiorari as the record does not affirmatively show that the properties are occupied or eligible for waiver, and there are facts supporting the Board"s holding.
In addition, the Appellants argue that the vacant building registration fees assessed by the City are unreasonable because the Board failed to recalculate those fees. Again, however, the record fails to affirmatively show that the Board was not in compliance with the Wilmington Code. Specifically, Wilm. C. ch. 4, § 4-27, 125(b)(3) establishes an annual assessment fee schedule to the extent that the properties have been vacant. Here, the City assessed the registration fees for the properties pursuant to the length of time each property was deemed vacant. Since the Appellants presented no meaningful evidence to support that the properties have been occupied, and given the clear and coherent language of the fee schedule, the Board"s decision to not recalculate the assessed fees is free from legal error.
Wilm. C. ch. 4, § 4-27, 125(b)(3) states, in pertinent part:
No fee for properties that are vacant for less than one year; $500.00 for properties that are vacant for at least one year but less than two years; $1,000.00 for properties that are vacant for at least two years but less than three years; $2,000.00 for properties that are vacant for at least three years but less than five years; $3,500.00 for properties that are vacant for at least five years but less than ten years; $5,000.00 for properties that are vacant for at least ten years, plus an additional $500.00 for each year in excess of ten years.
Appellants had to show that 2712 North Tatnall Street had been occupied since September 1996; 1309 West Street had been occupied since August 2003; 2600 West 18th Street had been occupied since September 2003; and 701 North Harrison Street had been occupied since November 1998. Because the Appellants failed to provide meaningful evidence of occupancy, the City imposed registration fees according to Wilm. C. ch. 4, § 4-27, 125(b)(3).
IV. Procedural Error
The final issue this Court must address is whether the Board erred in excluding evidence that allegedly prevented the Appellants due process under the law. It is first important to note that Mr. Lowicki and the Appellants had been before the Board regarding the status of the properties just eight months prior to the hearing in question, and on at least one additional occasion regarding the same issue with respect to these properties. Thus, the Board appeared all too familiar with the evidence the Appellant attempted to present to the Board. As a result, and in an effort toward efficiency, the Board repeatedly asked the Appellants to only provide new information regarding the properties" status B that is, information regarding how each property"s status had changed from the vacant status each was awarded eight months prior. The Appellants were given numerous opportunities by the Board to produce certain documents in order to support their claim, and the Board allowed evidence of the occupancy of the properties if it was not repetitive. In fact, the Board referred to and included the previous testimony and evidence relating to the properties in rendering its decision.
Adjile, 2005 WL 1139577, at *2 (Del.). (Due process of law embodies "the right to receive notice and to be heard" at a meaningful time and in a meaningful manner, "prior to the deprivation of a protected interest.")
Previous hearings before the Board were held on January 19, 2004 and October 18, 2005.
The Board requested that the Appellants produce any of the following documents: rental agreements, certificates of occupancy, multiple listings with a realtor, offers of sale, sale agreements, business licenses to operate a lawful business on any premises, proof of continual telephone, electric, or gas services, or continual consumption of water on the properties. The Appellants failed to do so. Bd. L I Rev. Appeal (June 12, 2006), 4-8.
The Board Decision states, in pertinent part:
I want to incorporate by reference the decisions of this Board dated January 19, 2004 and October 18, 2005, as well as the decision of the Delaware Supreme Court in Adjile, et al. v. City of Wilmington, et al., C.A. No. 566, 2004 (ORDER) (May 12, 2004). These decisions dealt with 2 of the properties at issue in this decision: 701 N. Harrison Street and 2712 Tatnall Street. By and large, you presented very little new information that the Board had not already heard and considered in 2004 and 2005.Adjile, Inc. v. Wilmington, Bd. L I Rev. (July 7, 2006).
As stated earlier, the Court is limited to a review of the record to determine whether the lower tribunal exceeded its jurisdiction, committed errors of law, or proceeded irregularly. Based on the record, the Board made a proper ruling in preventing the Appellants from rehashing evidence that it already heard, and the Appellants were afforded adequate due process under the law in this matter.
Becker, 185 A. 92 (Del.Super. 1936); Rash, 76 A. 370 (Del.Super. 1910).
Pursuant to the Board of License and Inspection Review Rules and Regulations, Article 4(3), the Board is permitted to, at their own discretion, exclude any evidence that is "plainly irrelevant, immaterial, insubstantial, cumulative and privileged evidence and may limit unduly repetitive proof, rebuttal and cross-examination." See Appellant Appendix at 176-77.
Conclusion
For the foregoing reasons, the Appellants' writ of certiorari is hereby DENIED.IT IS SO ORDERED.