Opinion
No. 632, 2006.
June 26, 2007.
Court Below: Superior Court of the State of Delaware in and for New Castle County, C.A. No. 06A-08-007.
Before STEELE, Chief Justice, JACOBS and RIDGELY, Justices.
ORDER
This 26th day of June 2007, it appears to the Court that:
(1) Petitioners-appellants Al Schweizer and Sal Sedita appeal a Superior Court judge's decision to dismiss their petition for a writ of certiorari to review the Board of Adjustment of the City of Newark's decision to uphold the Building Department of the City of Newark's eviction of Pi Kappa Alpha fraternity members from a residential building on 155 South Chapel Street. Schweizer and Sedita argue that the Superior Court judge erred when she dismissed the petition for its failure "to raise a question of illegality as required by 22 Del. C. § 328." Schweitzer and Sedita contend that the petition indicated that Board's decision was illegal, specified the grounds of the illegality and, thus, complied with 22 Del. C. 328. They concede that the petition did not offer examples or evidence of why the Board's decision was illegal, but argue that it did not have to because Section 328, read together with Super. Ct. Civ. R. 72, requires a petition to set forth only that the Board of Adjustment's decision was illegal and specify the grounds of the illegality. Thus, the petition's language satisfied the statute. After consideration of the record and the applicable statutes, we hold that the petition was sufficient to survive dismissal under 22 Del. C. § 328. The petition stated that the Board's decision was illegal and specified the grounds of the illegality. It thus complied with Section 328. Similarly, the petition complied with Super. Ct. Civ. R. 72, specifying the parties taking the appeal, designating the determination from which the parties appealed, stating the grounds of the appeal, naming the Superior Court as the court to hear the appeal and by Schweitzer's and Sedita's attorney signing the appeal. Accordingly, we REVERSE.
(2) Schweizer and Sedita own real property located at 155 South Chapel Street in Newark, Delaware. They leased the property to Delta Eta Corporation, which allowed Pi Kappa Alpha, then a social fraternity at the University of Delaware, to occupy the property. PiKA used the dwelling on the property as a fraternity house.
(3) In July 2005, the University suspended PiKA until spring 2009, for violating University rules of conduct. After learning of PiKA's multi-year suspension, the Building Department of the City of Newark revoked the dwelling's status as a fraternity house and sent Schweizer a letter ordering all members associated with PiKA to vacate the property within 48 hours. Schweizer and Sedita appealed the eviction to the Board of Adjustment of the City of Newark, and the Board upheld the eviction.
Newark Municipal Code at Sec. 32-51(b) states when the University of Delaware suspends a fraternity or sorority so that it is no longer an approved organization for more than a year, the members of that fraternity or sorority must vacate the building or buildings wherein the fraternity or sorority resides.
(4) Schweizer and Sedita filed a petition for a writ of certiorari in the Superior Court pursuant to 22 Del. C. § 328. On September 19, 2006, the Superior Court judge dismissed the petition sua sponte, on the basis that "[t]he petition fail[ed] to raise a question of illegality as required by 22 Del. C. § 328." Schweizer and Sedita filed a motion for reargument. On November 8, 2006, the Superior Court judge dismissed the motion, on the ground that the "[p]etitioners vague allegations of illegality [were] insufficient."
(5) On appeal, Schweitzer's and Sedita's sole argument is that the Superior Court judge erred when she dismissed their petition for a writ of certiorari on the ground that the allegations of illegality were "vague" and "insufficient." Schweitzer and Sedita contend that the petition indicated that the Board's decision was illegal and specified the grounds of the illegality — all that 22 Del. C. § 328 and Super. Ct. Civ. R. 72 require. The Board argues that the petition did not allege specific grounds of illegality and that, therefore, the Superior Court judge correctly dismissed the petition sua sponte. We review a Superior Court judge's decision to dismiss a petition de novo.
Preston v. Bd. of Adjustment, 772 A.2d 787, 789 (Del. 2001).
(6) 22 Del. C. § 328 governs appeals to the Superior Court from decisions of municipal boards of adjustment. The statute states that "[a]ny person or persons, jointly or severally aggrieved by any decision of the board of adjustment . . . may present to the Superior Court a petition . . . setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality."
(7) Schweitzer and Sedita argue that, while the petition did not incant the words "the Board's decision was illegal," the language in the petition indicated that it was illegal. This is because, they contend, if the Superior Court judge found that the Board's decision was — as the petition alleges — "arbitrary and capricious," that the record did not support the Board's findings of fact or conclusions of law, that the Board's decision was "against the great weight of the undisputed evidence," or that the Building Department's actions were "`invalid,' `unlawful,' constitute[ed] `an unlawful delegation of the [Building Department's] zoning authority,' etc.," then the Board's decision would be illegal because the Board would have abused its discretion.
Schweizer's and Seidta's petition stated the following:
Petitioner submits that a writ of certiorari should issue in the instant matter upon the following grounds:
(A) The decision of the Board is arbitrary and capricious.
(B) The record as a whole does not contain substantial evidence to support the Board's finding of fact and conclusions of law.
(C) The decision of the Board is against the great weight of the undisputed evidence.
(D) The property is not being used as a fraternity.
(E) Even if the property were used as a fraternity, the elements of Section 32-51(b), or such other sections of the Code as may be applicable have not been satisfied.
(F) The eviction and applicable Newark code section is invalid as being in conflict [sic] the Delaware Code provisions applicable including but not limited to the Landlord-Tenant Code; violates State and Federal constitutional law including but not limited to violating and purporting to abrogate private rights of contract; exceeds this Building Department's] authority in areas where the State has clearly pre-empted legislation; and is discriminatory, arbitrary, and unreasonable on its face, and as applied, and constitutes an unlawful delegation of the [Building Department's] zoning authority to the University of Delaware, as applied.
(G) Assuming for the sake of argument that the eviction is proper as to the fraternity as an organization, it nevertheless fails as to private individual contractual rights between the owners and individual tenants.
(H) Assuming for the sake of argument that the [Building Department] is correct that the loss of status by Pi Kappa Alpha fraternity is effectual as to the fraternity, the property is nevertheless properly zoned for multi-family, boarding house, apartment, or other appropriate use pursuant to the Code of the City of Newark, such that occupancy of the property is permissible so long as no fraternal designation, insignia, etc., is displayed, and the property is used as a private residence, not a fraternity house.
(8) Schweitzer and Sedita argue that the petition sufficiently stated the grounds of the illegality. They maintain that the petition explained why the Board's decision was illegal and neither 22 Del. C. § 328, nor I Woolley's Delaware Practice § 899, nor any case law stipulates that a petition for a writ of certiorari must specify the grounds of illegality with detailed facts.
(9) The Board responds that the petition did not allege specific grounds of illegality because it did not offer examples or evidence to support its allegations that the Board's decision was illegal. Specifically, the Board contends the following: (a) the petition did not state why the Board's decision was arbitrary and capricious, (b) the petition did not specify which of the Board's findings of fact and conclusions of law the record did not support, (c) the petition did not identify which undisputed evidence opposed the Board's decision, (d) the petition did not state how Schweitzer and Sedita used the property for anything other than a fraternity house, (e) the petition did not state why the elements of Section 32-51(b) were not applicable, and (f) the petition did not state how the Board's decision violated the Landlord Tenant Code or which constitutional rights or private contractual rights the Board violated.
(10) A petition for certiorari is merely that — a petition — not a brief. There is no authority that requires a petition for a writ of certiorari to offer examples or evidence to support the stated grounds of the alleged illegality. 22 Del. C. § 328 states that a petition must assert that the board of adjustment's decision was illegal, in whole or in part, and specify the grounds of the illegality. When a statute does not provide for a specific procedure, the Superior Court should turn to its own rules. The Superior Court has adopted Superior Court Civil Rule 72, which governs appeals from certain commissions, boards and courts. According to Rule 72, "[t]he notice of appeal shall specify the parties taking the appeal, shall designate the order, award determination, or decree, or part thereof appealed from; shall state the grounds of the appeal; shall name the Court to which the appeal is taken; and shall be signed by the attorney."
See Coastal Resorts Prop., Inc. v. Bd. of Adjustment of the City of Rehoboth Beach, 558 A.2d 1105, 1107 (Del.Super. 1988) ("If an aspect of a procedure is unclear under the appeals statute, the parties may turn to the Superior Court Rules for clarification."); Poe v. Poe, 333 A.2d 403 (Del.Super. 1975), appeal dismissed, 348 A.2d 327 (applying a different statute, but finding that "[s]ince the legislature has not provided us with a complete procedural method of appeal, it is clear that the Rules of the Superior Court apply to the case at hand").
Super. Ct. Civ. R. 72.
Super. Ct. Civ. R. 72(c).
(11) In this case, Schweizer's and Sedita's petition indicated that the Board's decision was illegal and alleged reasons why it was illegal. The petition did not have to offer examples or evidence to support its reasons, because 22 Del. C. § 328 does not require a petition to support the grounds of illegality with factual evidence. The petition specified the parties taking the appeal, designated the determination from which the parties appealed, stated the grounds of the appeal, named the Superior Court as the court to hear the appeal and Schweitzer's and Sedita's attorney signed the appeal. Therefore, the petition complied with Superior Court Civil Rule 72 and was sufficient to support the grant of a writ of certiorari under Section 328. Accordingly, we reverse.
NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior Court is REVERSED.