Black , 117 A.3d 1027 ( 2015 )

IN THE SUPREME COURT OF THE STATE OF DELAWARE
HENRY BLACK, MARY LOU BLACK, §
BLACKBALL PROPERTIES, LLC, § No. 600, 2014
§
Petitioners Below/Appellants, § Court Below: Superior Court
§ of the State of Delaware,
v. § in and for New Castle County
§
NEW CASTLE COUNTY BOARD OF § C.A. No. N13A-08-012 FWW
LICENSE, INSPECTION AND REVIEW, §
NEW CASTLE COUNTY DEPARTMENT §
OF LAND USE, and GARY STAFFIERI §
and ADRIA CHARLES-STAFFIERI §
§
Respondents Below/Appellees. §
§
Submitted: May 20, 2015
Decided: June 29, 2015
Before STRINE, Chief Justice; HOLLAND, VAUGHN, and SEITZ, Justices; and
BOUCHARD,  Chancellor, constituting the Court en banc.
Upon appeal from the Superior Court. AFFIRMED.
Richard L. Abbott, Esquire, Abbott Law Firm, LLC, Hockessin, Delaware, for
Appellants.
Marlaine A. White, Assistant County Attorney, New Castle County Office of Law, New
Castle, Delaware, for Appellee Department of Land Use.
Gary Staffieri and Adria Charles Staffieri, Appellees, Pro Se.
STRINE, Chief Justice:

Sitting by designation under Del. Const. art. IV, § 12.
I. INTRODUCTION
This case arose when Henry and Mary Lou Black and Blackball Properties, LLC
(collectively, the “Blacks”), challenged the Department of Land Use‟s decision to grant a
change of use certificate to neighboring property owners, Gary Staffieri and Adria
Charles-Staffieri (the “Staffieris”), to the New Castle County Board of License,
Inspection and Review (the “Board”). The Staffieris had rented out the property for use
as office space for approximately ten years before deciding to open an automobile
detailing shop on the premises, which required them to obtain a change of use certificate
from the Department.1 When the Staffieris first received their certificate from the
Department, the Blacks successfully appealed and the Board reversed the Department‟s
decision. But the Staffieris reapplied, the Department once again issued their certificate,
and this time, the Board affirmed the Department‟s decision. The Blacks were unable to
appeal the Board‟s decision to a reviewing court because the General Assembly has
chosen not to provide that right to parties aggrieved by a Board decision. The Blacks
therefore sought review through a petition for a writ of certiorari filed in the Superior
Court. After granting the writ to bring up the record, the Superior Court affirmed the
Board.
We review the Superior Court‟s decision to affirm the Board‟s ruling for legal
error.2 Under the narrow scope of review applied by the Superior Court for a writ of
1
See Opening Br., Black v. Staffieri, No. 462, 2013 (Del. Oct. 25, 2013).
2
Christiana Town Center, LLC v. New Castle County, 2004 WL 2921830, at *1 (Del. Dec.16,
2004) (“We find…the [Superior Court] committed no legal error in denying certiorari review.
We therefore affirm.”).
1
certiorari, we conclude that the Superior Court correctly held that the Board‟s decision
was not manifestly contrary to law, nor was it the result of procedural irregularity. 3 As
we have long held, a petition for a writ of certiorari is not a substitute for a direct appeal,
which must be authorized by the General Assembly. The Superior Court was therefore
correct to adhere to the disciplined and more constrained review involved in considering
a petition for certiorari. We therefore affirm.4
II. BACKGROUND
The long-standing nature of this dispute makes reciting the key facts succinctly
difficult. On appeal, the Blacks base their argument on what they say is the Board‟s
failure to consider one of a number of legal and factual arguments they presented during
the course of a drawn-out and contentious administrative proceeding. The Blacks and
their supporters made many objections before and during the course of the proceeding.
But their primary argument was that the Staffieris did not have sufficient parking for their
3
See, e.g., Christiana Town Ctr., LLC, 2004 WL 2921830, at *2 (Del. Dec. 16, 2004) (quoting
Woolley, DELAWARE PRACTICE, VOLUME I, § 939) (“Review on certiorari is not the same as
review on appeal because review on certiorari is on the record and the reviewing court may not
weigh evidence or review the lower tribunal‟s factual findings. The reviewing court does not
consider the case on its merits; rather, it considers the record to determine whether the lower
tribunal exceeded its jurisdiction, committed errors of law, or proceeded irregularly. . . . 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.‟”); Matter of Butler, 609 A.2d 1080, 1081 (Del. 1992) (“[E]ven should review of the claims
raised by the petition be appropriate, this Court‟s scope of review will be strictly limited. Thus,
review is generally confined to jurisdictional matters, error of law or irregularity of proceedings
which appear on the face of the record.”) (internal quotation marks omitted).
4
The Staffieris filed a brief, pro se, in this appeal, which the Blacks moved to strike. The
Blacks‟ motion to strike the Staffieris‟ answering brief is denied as moot.
2
proposed use of the property under the Uniform Development Code (the “UDC”).5
Indeed, at the Board‟s first hearing involving these parties, the Blacks succeeded in
reversing the Department‟s decision to grant the Staffieris‟ change of use certificate,
because the Board determined that the Staffieris only had access to one parking space. 6
The Blacks even took concrete action to ensure that the Staffieris would be unable to
access additional parking. To wit, the Blacks erected a concrete barrier to deny the
Staffieris access to 14 parking spaces on adjacent property (the “Shared Parking Area”).
Sometime coincident with the Blacks‟ initial appeal, the Staffieris went to the
Court of Chancery to obtain a ruling about their right to use the shared parking spots.
Even though the Court of Chancery issued its decision in that case while the Blacks‟
appeal before the Board was pending, the Board upheld the Blacks‟ objection because it
found that it could only take into account facts in the record as of the time of the
Staffieris‟ application. The Staffieris then filed another application and put squarely
before the Department, and then the Board, the results of the Court of Chancery
litigation, which were favorable to them and not the Blacks. In the Court of Chancery,
the Staffieris obtained an injunction to remove the concrete barrier, secured a declaration
that they had an equal right to use the 14 shared spots in the Shared Parking Area under a
1946 deed, and were awarded attorneys‟ fees for the Blacks‟ bad faith conduct. 7 After
the Board reversed the Department‟s decision to grant their certificate, the Staffieris
5
See Black v. New Castle Cnty. Bd. of License, 2014 WL 4955183, at *4 (Del. Super. Sept. 26,
2014).
6
App. to Opening Br. at 268 (Board decision, May 9, 2013).
7
See Staffieri v. Black, No. 7439-VCL, Post-Trial Order (Del. Ch. Oct. 24, 2012), aff’d, Black v.
Staffieri, 2014 WL 814122 (Del. Feb. 27, 2014).
3
reapplied and attached the Court of Chancery‟s post-trial order. The Department again
approved their application.
Despite the Court of Chancery‟s unequivocal determination that the Staffieris had
equal rights to use the 14 parking spots in the Shared Parking Area,8 the Blacks continued
to argue that the Staffieris had no such rights while an appeal of the Court of Chancery
decision was pending. They also argued that even if the Court of Chancery decision was
correct, the Staffieris were still short the parking required by the UDC.
Only after another hearing, with the Court of Chancery‟s judgment in the record,
did the Board affirm the Department‟s decision to grant the Staffieris‟ certificate. The
Board concluded that it was persuaded by the Court of Chancery‟s declaration of the
Staffieris‟ rights:
The Board finds that the October 2012 decision by the Court of Chancery
provides the Property with access to the appropriate number of parking
spaces required under the UDC. The Board will not substitute its own
interpretation of the 1946 Deed for that of the Court of Chancery in
determining the scope of the Staffieris‟ easement. Moreover, the Board
specifically declines to contravene any portion of the Court‟s October 2012
Order.9
III. ANALYSIS
The Delaware General Assembly has not provided for any right of appellate
review from a decision by the Board under the Administrative Procedures Act10 or any
other statute. The Blacks therefore proceeded in the Superior Court under a writ of
certiorari. This Court has long made clear that a writ of certiorari is not a substitute for
8
See id. at 1-2.
9
App. to Opening Br. at 235 (Board decision, July 23, 2013).
10
See 29 Del. C. § 10101, et seq.
4
a direct appeal provided under a statute like the APA: a writ of certiorari is “not a
substitute for, or the functional equivalent of, an appeal.”11 The standard for reviewing a
petition for a writ of certiorari is “strictly limited”12: the reviewing court “may not weigh
evidence or review the lower tribunal‟s factual findings.”13 Likewise, the reviewing court
may not “consider the case on its merits.”14 As this Court has observed, “[u]nder
principles of law well established in this State, certiorari involves a review of only such
errors as appear on the face of the record being considered.”15
By its nature, the extent of the record appropriate for review on a writ of certiorari
is limited: “A certiorari proceeding differs fundamentally from an appeal in that the latter
brings the case up on its merits while the . . . (former) brings up the record only so that
the reviewing court can merely look at the regularity of the proceedings.” 16 The proper
record for review is “limited to the complaint initiating the proceeding, the answer or
response (if required), and the docket entries.”17 Any “evidence received in the inferior
court is not part of the record to be reviewed.”18 This Court has thus stated that the
11
Maddrey v. Justice of Peace Court 13, 956 A.2d 1204, 1213 (Del. 2008) (citing DuPont v.
Family Ct. for New Castle Cnty., 153 A.2d 189, 194 (Del. 1959)).
12
Matter of Butler, 609 A.2d 1080, 1081 (Del. 1992).
13
Reise v. Bd. of Bldg. Appeals of City of Newark, 746 A.2d 271, 274 (Del. 2000); see also 395
Assocs. v. New Castle Cnty., 2006 WL 2021623, at *8 (Del. Super. July 19, 2006) (“The Court
„may not review the substantive decisions‟ nor may it „correct a mistake of facts or an erroneous
conclusion from the facts, even though the [tribunal‟s] interpretation of the facts or law may have
been erroneous.‟”) (quoting El Di, Inc. v. J.P. Ct. No. 17, 1998 WL 109823, at *4 (Del. Super.
Feb. 20, 1998)).
14
Christiana Town Ctr., LLC v. New Castle Cnty., 2004 WL 2921830, at *2 (Del. 2004) (citing
Reise, 746 A.2d at 274)).
15
Maddrey, 956 A.2d at 1215.
16
Shoemaker v. State, 375 A.2d 431, 437 (Del. 1977) (internal quotation marks omitted).
17
Maddrey v. Justice of Peace Court 13, 956 A.2d 1204, 1216 (Del. 2008).
18
DuPont v. Family Ct. for New Castle Cnty., 153 A.2d 189, 194 (Del. 1959)).
5
transcript of the proceedings is not a proper part of the record, at least in the context of
certiorari review of a Justice of the Peace Court proceeding.19 The reviewing court is
then limited to determining based on that limited record whether the lower tribunal: “(i)
exceeded its jurisdiction;” (ii) “proceeded illegally or manifestly contrary to law”; or (iii)
“proceeded irregularly.”20 Reversible procedural irregularity includes a tribunal‟s failure
to create an “adequate record” for judicial review.21
The Superior Court in this case properly recognized that a writ of certiorari is a
very limited tool, and determined that the Blacks had not met their burden to show that
the Board made any legal errors manifest on the face of the record or proceeded
irregularly.22 In so ruling, the Superior Court refused to treat the Blacks‟ certiorari
petition as a license to review the entire administrative record to determine if the Board
made an error of law.23
19
Maddrey, 956 A.2d at 1216 (“[T]he official record delivered by the Justice of the Peace Court
to the Superior Court in response to the issuance of a common law writ of certiorari does not
properly include a transcript of the evidentiary proceedings.”). Even though the record does not
include a transcript of the evidentiary proceedings, the reviewing court can and should consider
the hearing transcript to the extent it contains the decision of the Board. See, e.g., Matter of
Butler, 609 A.2d 1080, 1082 (Del. 1992) (holding that only the order of the court holding Butler
in contempt, not the full transcripts of the proceedings, were properly part of the record for
certiorari review).
20
Christiana Town Ctr., LLC v. New Castle Cnty., 2004 WL 2921830, at *2 (Del. Dec. 16, 2004)
(citing 1 Victor B. Woolley, WOOLLEY ON DELAWARE PRACTICE, § 896; 939 (1906)).
21
Id. (“A decision will be reversed for irregularities of proceedings if the lower tribunal failed to
create an adequate record to review.”).
22
Black v. New Castle Cnty. Bd. of License, 2014 WL 4955183, at *3 (Del. Super. Sept. 26,
2014).
23
See id., at *8 (quoting 395 Assocs., LLC v. New Castle Cnty., 2006 WL 2021623, at *8 (Del.
Super. July 19, 2006)) (“Petitioners contend that the calculation of the number of available
parking spaces mandated by the UDC is incorrect. However, even if Petitioners are correct,
upon certiorari review, the Court cannot correct miscalculations.”).
6
In their petition for a writ of certiorari, the Blacks assert that the Staffieris have no
right to use the 14 shared spots in the Shared Parking Area. This contention, a subsidiary
to their original primary contention before the Board, rests on an argument that even if
the Staffieris had legal right to the 14 spaces in the Shared Parking Area, plus one space
on their own property, these spaces would still be insufficient to support the Staffieris‟
proposed use. The Blacks contend that there are not enough spaces available in the
Shared Parking Area to support their own existing parking needs, although their
deficiency has been considered grandfathered. Because the Staffieris seek to use their
property in a new way, the Blacks argue the shared spots cannot count toward their
requirement, regardless of whether the Staffieris have an equal legal right to access them,
which the Blacks took efforts to impede.
It may be that this argument, upon consideration on a direct appeal, would be
found to have merit. But this is not a direct appeal. The Blacks seek a writ of certiorari
because the General Assembly has decided that no right of direct appeal should exist
from the Board under the APA or a similar statute. In cases like these, it is always
tempting for a court, including our own, to stray from the disciplined contours governing
a petition for a writ.24 But to do so undermines the General Assembly‟s authority to
determine which administrative agencies are subject to direct appeal and which are not.
24
The Blacks cite a case that has language that can be read as reflecting that temptation. In Reise
v. Board of Building Appeals of City of Newark, 746 A.2d 271 (Del. 2000), there is summative
language that suggests that typical issues of law can be reviewed on a petition for certiorari, but
that language must be read in the context of the entire case. The Court emphasized in its
decision that “[f]irst, and foremost, the petitions allege (and the record confirms) that the Board
failed to provide statements of the reasons for its decisions. It is settled law that a quasi-judicial
7
Historically, a petition for a writ of certiorari has not allowed a reviewing court to
consider the full record before the first tribunal or to conduct a plenary review of whether
the tribunal committed an error of law.25 Only if an error of law is manifest on the face of
the limited record is certiorari appropriate, because the writ exists to ensure that the
tribunal is proceeding regularly and attempting to do its job within its legal authority.26
Here, it is plain that the Board took the arguments before it seriously, held several
hearings, and received evidence from all sides.
Moreover, the dispute before the Board was contentious and factually complex, as
the briefs before us illustrate. A number of factual disputes exist between the parties,
even now, as to the number of parking spots available to the Staffieris, the Blacks, and
other neighboring property owners. These factors further caution against reversing the
Board‟s written decision, which appears to have been based on a careful review of the
long and complicated background of this case. The Blacks insist that the decision by the
Board can only be rationalized as an error of law. But the only way for us to reach that
conclusion would be to delve deeply into the record, which would disregard the
tribunal must state the basis for its decision, in order to allow judicial review.” Id. at 274. The
Court ultimately granted certiorari because the Board had failed to make any record of its
proceedings or give any explanation of its decision. By contrast, in this case, the Board both
held extensive hearings on the record and issued a formal written decision. Nonetheless, to the
extent that aspects of Reise or other cases can be read as inconsistent with the constrained view
of certiorari review we take today, those cases are overruled only to that extent.
25
See, e.g., Shoemaker v. State, 375 A.2d 431, 437 (Del. 1977) (“A certiorari proceeding differs
fundamentally from an appeal in that the latter brings the case up on its merits while the . . .
(former) brings up the record only so that the reviewing court can merely look at the regularity of
the proceedings.”) (internal quotation marks omitted).
26
See Dover Historical Soc. v. City of Dover Planning Comm’n, 838 A.2d 1103, 1106 (Del.
2003) (“The purpose of certiorari is to correct errors of law, to review proceedings not
conducted according to law, and to restrain an excess of jurisdiction.”) (internal quotation marks
omitted).
8
appropriate standard of certiorari review and treat this as a direct appeal. Administrative
agencies are, of course, expected to give reasons for their decisions, as the Board did
here, but they are not to be faulted for failing to write judicial-style opinions.
After the Blacks‟ primary argument against the Staffieris‟ application was
eliminated by their decisive and expensive loss in the Court of Chancery, the Blacks
reverted to other arguments, including the one that they now highlight to us. Given that
the Court of Chancery‟s ruling found that the Staffieris had equal legal right to 14 spots
with their neighbors, plus at least one spot on their own property, we find it impossible to
find any manifest error on the face of the record in the Board‟s decision that the Staffieris
had access to at least four parking spaces. The UDC vests the Department with
considerable discretion, including whether to waive certain requirements when
appropriate.27 The Board on review was faced with a situation where the applicant was
required to expend substantial resources and time to prove that it had as much right to use
the Shared Parking Area as its neighbors, and had to obtain an injunction to remove
concrete barriers erected by the Blacks in what the Court of Chancery determined was
bad faith pre-litigation conduct.28 The Board made clear that it was unwilling to ignore
the property rights of the Staffieris declared by the Court of Chancery, after appearing to
carefully consider the facts about the effect of the proposed use on the community in
evaluating whether the Staffieris‟ application should be granted. As the Superior Court
27
See New Castle County Code, § 40.22.610(B) (“The Department may, upon request in writing,
waive or reduce any of the requirements listed in this Division where the standard is determined
to not be applicable. . . .”).
28
See Staffieri v. Black, No. 7439-VCL, Post-Trial Order at 11 (Del. Ch. Oct. 24, 2012), aff’d,
Black v. Staffieri, 2014 WL 814122 (Del. Feb. 27, 2014).
9
pointed out, it is apparent that the Board was aware of the relevant UDC provisions and
focused on the complicated facts of the case.29
Like the Superior Court, we do not perceive any manifest error of law on the face
of the record. In fact, the Blacks‟ argument that an error of law occurred seeks to send us
off on the kind of deep, Cousteau-like exploration of a complicated administrative record
that is appropriate only on a direct appeal, not an application for a writ of certiorari. In
other words, the Blacks cannot point to any manifest error of law that emerges on the
surface of the record, which is what is required to obtain a writ of certiorari.30 Like the
Superior Court, we also decline to speculate that the Board‟s decision turned on an error
of law rather than a factual disagreement with the Blacks, or a determination that the
equities of the situation made it unfair to literally apply the UDC, when the Staffieris had
shown that they had as much legal right to use the 14 parking spaces in the Shared
Parking Area as those seeking to deny their application.
We therefore affirm the Superior Court‟s judgment affirming the Board‟s decision.
29
See Black v. New Castle Cnty. Bd. of License, 2014 WL 4955183, at *6-7 (Del. Super. Sept.
26, 2014).
30
See, e.g., Maddrey v. Justice of Peace Court 13, 956 A.2d 1204, 1215 (Del. 2008); Dover
Historical Soc. v. City of Dover Planning Comm’n, 838 A.2d 1103, 1106 (Del. 2003).
10