Di's, Inc. v. McKinney

673 A.2d 1199, 1996 Del. LEXIS 146, 1996 WL 189272
CourtSupreme Court of Delaware
DecidedApril 16, 1996
DocketNo. 70, 1995
StatusPublished
Cited by8 cases

This text of 673 A.2d 1199 (Di's, Inc. v. McKinney) is published on Counsel Stack Legal Research, covering Supreme Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Di's, Inc. v. McKinney, 673 A.2d 1199, 1996 Del. LEXIS 146, 1996 WL 189272 (Del. 1996).

Opinion

BERGER, Justice:

For the majority,

This is an appeal from a decision of the Superior Court overturning a decision of the Kent County Board of Adjustment (the “Board”) interpreting Article 9, Section 14.6 of the Kent County Zoning Ordinance. Appellant, Di’s, Inc. (“Di’s”), persuaded the Board that a retail shopping center is a permitted accessory use for a manufactured home park. Appellee, Clarence W. McKinney, Sr. (“McKinney”), appealed the Board’s decision and the Superior Court reversed. In this appeal, Di’s argues that the Board’s decision should be reinstated because: (i) McKinney did not perfect a timely appeal; (ii) McKinney lacks standing to contest the Board’s decision; and (iii) the Superior Court erred in construing the relevant zoning ordinance.

We hold that the Superior Court correctly applied the facts and the law. McKinney has standing as an adjoining landowner and his Petition for Review, although unverified, was sufficient to invoke the jurisdiction of the Superior Court. The Superior Court acted within its discretion in permitting McKinney to amend his Petition, by verifying it, after the statutory appeal period had run and in issuing a second writ of certiorari. On the merits, we conclude that the Superior Court correctly interpreted Section 14.6 of the Kent County Zoning Ordinance and that the record evidence did not support the Board’s conclusion.

I. FACTUAL BACKGROUND

The property in question consists of approximately 71 acres bordering U.S. Route 13 just north of Dover, Delaware. The property, known as Kentwood Estates Mobile Home Park (“Kentwood”), was developed in the 1960s, before zoning ordinances were enacted in Kent County. Kentwood later was zoned “Residential Manufactured Home” or “RMH.” However, since Kentwood did not meet all of the requirements of an RMH classification, it was grandfathered as a permissible non-conforming use.1

After Di’s acquired Kentwood, it sought authorization for commercial development of [1201]*1201a portion of the parcel adjoining U.S. Route 13. In August 1993, Di’s applied for an expansion of its existing non-conforming use and a series of variances. That application was denied by the Kent County Department of Planning on October 21,1993. On November 1, 1993, Di’s filed a new application, seeking a determination that “a convenience store with gas pumps, a video store, a pizza or sub shop, an insurance office, and hardware store are ... uses or structures customarily incidental to the operation of a manufactured home park.” At the hearing on Di’s application, evidence was presented that numerous other mobile home parks in lower Delaware adjoin gas stations, convenience stores and other small retail establishments. In its one-paragraph decision, the Board ruled in Di’s favor, stating that, “As long as the property is zoned B-G (General Business), a convenience store with gas pumps and all of the stores requested by the applicant go hand in hand with a development or subdivision.”

II.PROCEEDINGS ON APPEAL

On January 14, 1994, 29 days after the Board’s decision, McKinney filed an unverified Petition for Review in the Superior Court. The Prothonotary issued a writ of certiorari and the Board forwarded its record to the court. On February 28, 1994, Di’s answered the Petition for Review. Two of the affirmative defenses in Di’s answer sought dismissal because (i) the Petition was not verified and (ii) the writ of certiorari was issued by the Prothonotary, rather than the court.

McKinney did nothing to address these two defects until September 29, 1994, when he moved to amend the Petition to include the verification, and presented the court with an order for it to sign issuing the writ of certiorari. By that time, the Board had already provided its record pursuant to the original writ of certiorari executed by the Prothonotary. In addition, the parties had engaged in discovery and completed briefing on the Petition for Review. Nonetheless, on October 3, 1994, the Superior Court issued another writ of certiorari. McKinney’s motion to amend was granted in the course of Superior Court’s decision on the merits.

III.STANDING

Di’s argues that McKinney is not an aggrieved party entitled to challenge the Board’s decision. Di’s acknowledges that McKinney is an adjoining landowner. Nonetheless, it argues that McKinney’s only interest in Di’s application is economic. McKinney operates a convenience store on his neighboring property and there is evidence to suggest that McKinney is concerned about the competition from Di’s proposed shopping center, which would include a convenience store. Di’s relies upon authorities from other jurisdictions for the proposition that zoning regulations were not designed to protect citizens from competition and that a party who opposes a zoning application on that ground alone is not “aggrieved” within the meaning of 9 Del.C. § 4918.

We find this argument to be without merit. At the Board hearing, McKinney’s family expressed concerns about traffic patterns and the adverse impact Di’s convenience store would have on the entire neighborhood. Thus, the contention that McKinney was motivated solely by economic interests is not well founded. McKinney is an adjoining landowner who contends that the proposed shopping center will be detrimental to the neighborhood. As such, McKinney has standing to object to the Board’s decision, which has the effect of expanding an existing non-conforming use. See Tate v. Miles, Del.Supr., 503 A.2d 187 (1986) (owners of property 1500 feet from the rezoned land have standing where they claim that the rezoning will increase traffic and adversely affect natural resources).

IV.JURISDICTION

Di’s raises two jurisdictional issues, both related to the lack of full compliance with the terms of the governing statute, 9 Del.C. § 4918. That statute provides, in relevant part:

(a) Any persons jointly or severally aggrieved by any decision of the Board of Adjustment ... may present to the Supe[1202]*1202rior Court in and for Kent County a petition duly verified, setting forth that such decision is illegal in whole or in part, specifying the grounds of the illegality. The petition shall be presented to the Court within 30 days after the filing of the decision in the office of the Board.
(b) Upon presentation of the petition, the Court may allow a writ of certiorari, directed to the Board of Adjustment, to review the decision of the Board of Adjustment, and shall prescribe therein the time within which a return thereto must be made and served upon the petitioner’s attorney, which shall not be less than 10 days and may be extended by the Court. 9 DelC. § 4918.

McKinney filed a petition within 30 days after the filing of the Board’s decision, alleging that the Board’s decision was illegal, and stating the grounds of the purported illegality. However, the petition was not “duly verified” and McKinney did not submit a verification to the Court until well after the 30-day time limit had expired. In addition, the writ of certiorari attached to McKinney’s petition called for a signature by the Protho-notary, rather than a court order and the writ, in fact, was issued by the Prothonotary. McKinney did nothing to correct this mistake, either, for approximately eight months. Both deficiencies ultimately were corrected.

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Bluebook (online)
673 A.2d 1199, 1996 Del. LEXIS 146, 1996 WL 189272, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dis-inc-v-mckinney-del-1996.