Coastal Resorts Properties, Inc. v. Board of Adjustment of the City of Rehoboth Beach

558 A.2d 1105, 1988 Del. Super. LEXIS 416
CourtSuperior Court of Delaware
DecidedNovember 29, 1988
StatusPublished
Cited by1 cases

This text of 558 A.2d 1105 (Coastal Resorts Properties, Inc. v. Board of Adjustment of the City of Rehoboth Beach) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Coastal Resorts Properties, Inc. v. Board of Adjustment of the City of Rehoboth Beach, 558 A.2d 1105, 1988 Del. Super. LEXIS 416 (Del. Ct. App. 1988).

Opinion

OPINION

CHANDLER, Judge.

The petitioner, Coastal Resort Properties, Inc. (“Coastal”), filed this action seeking review of a decision of the Board of Adjustment of the City of Rehoboth Beach (“Board”). Respondent Board has moved to dismiss the appeal on the grounds that Coastal failed to comply with Superior Court Civil Rule 72 (“Rule 72”) in perfecting the appeal and that the appeal requests relief in the form of a declaratory judgment and a revocation of stop work order, remedies which cannot be granted oh an appeal from a board of adjustment’s decision. This is the Court’s decision on respondent Board’s motion.

In February, 1986, Coastal applied for, and received from the City of Rehoboth Beach (“City”), a building permit to renovate two buildings. In August, 1987, the City’s acting building inspector issued a stop work order, contending Coastal’s work on the buildings was in violation of the City’s zoning code and the issued building permit. Coastal appealed this action to the Board, and also requested a variance. On July 22, 1988, the Board held a hearing on Coastal’s requests, and a week later the Board affirmed the acting building inspector’s decision and denied the request for a variance.

On August 30, Coastal filed a verified petition pursuant to 22 Del. C. § 328 1, in which it sought the issuance of a writ of certiorari, a reversal of the Board’s decision, revocation of the City’s stop work order, the issuance of a declaratory judgment determining that the stop work order was invalid, and other relief. Attached to this petition was a praecipe instructing the Prothonotary to issue a summons to serve respondents Board and the City with the petition.

On September 7, the Prothonotary issued the requested summons to the Sheriff of Sussex County (“Sheriff”) and on September 8 the Sheriff served the summons and complaint on the Board and the City. On September 14, the Prothonotary prepared a citation for the record of the Board. After Coastal paid an additional fee for the is[1107]*1107suance of a writ of certiorari on or about September 23, the Prothonotary issued a writ of certiorari and a citation in certiora-ri, and the Sheriff served both on the Board and City on September 30.

The Board then moved for an order dismissing the petition, on the following grounds: (1) the petition did not comply with Rule 72, and (2) the petitioner seeks relief in the forms of a declaratory judgment and a revocation of stop work order, remedies not available pursuant to an appeal from the Board’s decision in the matter. In its letter memorandum in support of its motion, the Board argues that Coastal’s praecipe was improper to commence an appeal under Rule 72 in that it instructed issuance of a summons and not issuance of a citation. According to the Board, a prae-cipe must be filed with a notice of appeal under Rule 72, and the issuance of an incorrect praecipe causes the entire appeal to be defective.

The first question is whether Coastal followed the correct procedure in appealing the Board’s decision. Coastal’s petition complies with 22 DelC. § 328. The Board argues that Coastal should have followed Rule 72 and by failing to do so, failed to perfect its appeal. Although the designation “Notice of Appeal” did not appear anywhere on the document, the petition’s contents complied with the requisites of Rule 72(c). See generally Chadwick v. Janaman, Del.Supr., 349 A.2d 742 (1975) (where the Supreme Court notes that a petition pursuant to 9 Del. C. § 1353 2 was filed; implied in the opinion is the determination that this petition constituted a notice of appeal under Rule 72).

However, I also find that even if the petition did not comply with Rule 72(c), the petition’s compliance with 22 Del.C. § 328 is sufficient to constitute an appeal. Although a certiorari proceeding constitutes an appeal on the record, Chadwick v. Jana-man, supra, Rule 72 governs except to the extent an applicable appeal statute requires different procedures. Application of International Acceptance Co., Del.Super., 280 A.2d 733 (1971). In 22 Del.C. §§ 328-332, a specific method of procedure for appeal is set out, and if a party complies with this procedure, then the appeal is perfected. See Poe v. Poe, Del.Super., 333 A.2d 403, appeal dismissed, DeLSupr., 348 A.2d 327 (1975) (holding that because the Legislature had not provided for a specific method of procedure for an appeal from the Family Court, the Superior Court Rules applied). If an aspect of a procedure is unclear under the appeals statute, then the parties may turn to the Superior Court Rules for clarification. Board of Adjustment of New Castle Cty. v. Barone, Del.Supr., 314 A.2d 174 (1973); Landis Supply, Etc. v. Joseph A. Capaldi, Inc., Del.Super., 415 A.2d 497 (1980). '

The Board’s argument that Coastal’s praecipe was improper to commence an appeal under Rule 723 is meritless since petitioner was not required to comply with Rule 72. However, the Board’s argument raises a different question — whether Coastal should have filed with its petition a praecipe instructing the issuance of a writ of certiorari.

Because 22 Del. C. § 328 requires only the filing of a petition seeking a writ of certiorari and because the statute does not call for the issuance of a writ of certiorari until after the Court acts upon it, Coastal need not have filed a praecipe instructing the issuance of a writ of certiorari when it filed the petition pursuant to 22 Del.C. § 328. The statute is clear on this procedural issue; thus Superior Court Civil Rule 3(a) does not apply. Application of International Acceptance Co., supra. See Board of Adjustment of New Castle Cty. v. Barone, supra; Landis Supply, Etc. v. Joseph A. Capaldi, supra. I conclude that [1108]*1108Coastal followed the correct procedure m filing its appeal.

Although Coastal has initiated the appeal correctly, the facts show the existence of a procedural issue needing resolution in order for the appeal to progress. Section 328(b) of Title 22 specifies that the Court, and not the Prothonotary, executes an order instructing the issuance of a writ of certiorari. In Chadwick v. Janaman, supra, the Delaware Supreme Court determined that a corresponding provision, 9 Del.C. § 1353(b), requires judicial action before the appropriate order will issue to a board of adjustment. The writ is granted “of course” if the form of the petition is prima facie complete. Chadwick v. Janaman, supra. Thus, Coastal now should submit an order for this Court’s signature instructing the issuance of a writ of certiorari so that this appeal might progress.

The next issue is whether Coastal may seek a revocation of the City’s stop work order or the issuance of a judgment declaring the stop work order invalid. Review of a Board of Adjustment’s decision is governed by 22 DelC. § 328.

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Bluebook (online)
558 A.2d 1105, 1988 Del. Super. LEXIS 416, Counsel Stack Legal Research, https://law.counselstack.com/opinion/coastal-resorts-properties-inc-v-board-of-adjustment-of-the-city-of-delsuperct-1988.