Opinion
C.A. No. 09A-02-002 WLW.
Submitted: March 6, 2009.
Decided: March 11, 2009.
Upon Appellee's Motion to Dismiss the Appeal. Denied. Upon Appellant's Motion to Amend. Granted.
David N. Rutt, Esquire of Moore Rutt, P.A., Georgetown, Delaware; attorneys for the Appellant.
Timothy G. Willard, Esquire of Fuqua and Yori, P.A., Georgetown, Delaware; attorneys for the Appellee.
ORDER
FACTS
On September 16, 2008, the Milford Planning Committee ("the Planning Committee") denied a preliminary site plan application submitted by Kent Sussex Auto Care, Inc. ("Appellant"). Appellant appealed the decision to the Board of Adjustment for the City of Milford ("the Board"), and on January 4, 2009, the Board found in favor of the Planning Committee.
On February 2, 2009, Appellant filed its appeal of the Board's decision in this Court. On February 17, 2009, the City of Milford ("the City") filed a motion to dismiss the appeal. Appellant filed its answer to the City's motion on March 3, 2009, and filed a motion to amend the appeal with a verified version.
Appellee's Arguments
The City argues that Appellant's appeal was not filed by a "petition duly verified," as required by 22 Del. C. § 328, and should therefore be dismissed. Furthermore, the City argues that the Board of Adjustment lacked the jurisdiction to hear the appeal from the Planning Commission because Appellant's appeal was based on a theory of estoppel. Because the Board of Adjustment does not have jurisdiction over equitable issues, the City maintains that this Court should not consider the appeal.
Appellant's Arguments
Appellant argues that the verification was inadvertently omitted, but that the purpose of the filing is to place the other party on notice that an appeal has been filed, and in this case, the City was notified. Appellant maintains that Delaware case law supports the proposition that omitting the verification is not a basis to dismiss an appeal where no party has been substantially prejudiced.
Appellant also argues that it filed its appeal of the Planning Commission to the Board of Adjustment at the City's direction, and filed its appeal of the Board's decision in this Court because of the specific requirements of 22 Del. C. § 328.
DISCUSSION Verified Petition for Appeal
Section 328 of Title 22 of the Delaware Code requires that appeals to the Superior Court from a Municipal Board of Adjustment be by "petition, duly verified." Appellant's appeal was not noticed by a verified petition. However, the Supreme Court, in Di's, Inc. v. McKinney, held that the Superior Court has jurisdiction to hear an appeal of a Board of Adjustment before the appellant has fully complied with the statutory requirements for filing the appeal. "It is appropriate the compare the lack of verification to other defective notices of appeal . . . and where there is no prejudice, appeals should not be dismissed on technicalities."
22 Del. C. § 328 (2009).
673 A.2d 1199 (Del. 1996).
Id. at 1202. In Di's Inc., the appellant failed to follow the verified notice requirement in 9 Del. C. § 4918. In this case, Appellant failed to follow an almost identical verification notice requirement in 22 Del. C. § 328.
Id.
In the case sub judice, the amended appeal with proper verification was filed within one month of the initial filing, and the Court finds no prejudice to the City. Therefore, the appeal with not be dismissed for lack of proper notice, and Appellant's motion to amend the appeal with a petition duly verified, as required by 22 Del. C. § 328 is granted.
Estoppel Claims
Normally, administrative remedies must be exhausted before an appellant can appeal to the courts. The rationale behind this rule is that a board has expertise in the administrative matter and is competent to resolve the issue. However, equitable estoppel claims are not within a county board of adjustment's primary subject matter jurisdiction. Therefore, administrative remedies do not have to be exhausted before appealing an equitable estoppel claim to the Chancery Court.
Eastern Shore Environ., Inc. v. Kent County Dept. of Planning, 2002 WL 244690, at *5 (Del.Ch. Feb. 1, 2002).
Id. at *6.
Id.
Id.
In instances such as this one, where the Court lacks jurisdiction to hear an appeal, it may be transferred to the appropriate court for hearing and determination. "No civil action, suit or other proceeding brought in any court of this State shall be dismissed solely on the ground that such court is without jurisdiction of the subject matter, either in the original proceeding or on appeal." Transfers of proceedings between the courts are permitted in the interests of justice.
10 Del. C. § 1902.
Id.
Id.
In the case sub judice, Appellant appealed the Planning Committee's decision to the Board, although it did not have jurisdiction to hear the equitable estoppel claim. This Court also lacks jurisdiction to hear the equitable estoppel claim raised by Appellant. Therefore, in accordance with 10 Del. C. § 1902, this matter shall be transferred to the Court of Chancery for hearing and determination of the equitable estoppel claim.
CONCLUSION
For the foregoing reasons, Appellee's Motion to Dismiss is DENIED and Appellant's Motion to Amend is GRANTED. This matter shall be transferred to the Court of Chancery for hearing and determination of the equitable estoppel claim.
IT IS SO ORDERED.