[59 Del. 176] Clarence W. Taylor and Arthur J. Sullivan, Wilmington, for appellant.
Ralph F. Keil and Carl Goldstein, Wilmington, for appellee.
WOLCOTT, C. J., and CAREY and HERRMANN, JJ., sitting.
WOLCOTT, Chief Justice.
Appellee, Dragon Run Terrace, Inc., has moved to dismiss the appeal of the Zoning Board of Adjustment of New Castle County on the ground that the Board is not a party aggrieved by the judgment below and, hence, has no standing to appeal.
This litigation began with the application of Dragon Run to the Board under 9 Del.C., § 2616, for a special permit for a trailer park under Article 4, § 2(8) of the New Castle County Zoning Code. The Board denied the application. Dragon Run then sought review of the Board's decision by Writ of Certiorari pursuant to 9 Del.C., § 2618. [59 Del. 177] The Board, without
objection by Dragon Run and pursuant to the Writ, appeared before the Superior Court as the sole respondent and actively defended its decision. Ultimately, the Superior Court reversed the Board's decision. Then followed this appeal.
Dragon Run argues that since the Board exercises quasi-judicial functions, it is not a party to the proceedings before it and therefore has no legal interest in maintaining its decision. This being so, it is argued, the Board may not appeal from a judgment setting its decision aside since it is not a party aggrieved. Cited in support of the argument is 4 Am.Jur.2nd, Appeal and Error, § 234; 4 C.J.S. Appeal and Error § 205; Miles v. McKinney,174 Md. 551, 199 A. 540, 117 A.L.R. 207; Lansdowne Borough Board of Adjustment, 313 Pa. 523, 170 A. 867, and numerous other cases to the same effect.
The Board is established by 9 Del.C., § 2613 and by reason of 9 Del.C., § 2616 is empowered to hear appeals brought to it by any person aggrieved by either the grant or refusal of a building permit or any decision made under the zoning regulations. The Board is granted certain powers upon appeals to it by 9 Del.C., § 2617.
By reason of § 2617 the Board is empowered to correct error in any decision made in the enforcement of the zoning regulations, to decide requests for special questions and special exceptions, and in cases of hardship to grant variances from the zoning regulation.
Appeals from decisions of the Board to the Superior Court are authorized by 9 Del.C., § 2618 to be taken by any person aggrieved by the Board's decision, by any taxpayer, or by any officer of the county. The appeal is by way of Writ of Certiorari directed to the Board requiring it to return the record upon which its decision was based.
In Nepi v. Lammot (City of Wilmington), 2 Storey 281,156 A.2d 413, on appeal to the Superior Court from a decision of the Wilmington Board of Adjustment it was held that the Board of [59 Del. 178] Adjustment was the only indispensable party to the appeal to the Superior Court from the Board's decision. Furthermore, in Auditorium, Inc. v. Board of Adjustment, 8 Terry 373,91 A.2d 528, this Court accepted and decided an appeal from the Superior Court sitting in review of a decision of the Wilmington Board of Adjustment in which the Board of Adjustment was the only appellee. The decision is implicit approval of the status of the Board as a party litigant.
The Wilmington Board of Adjustment under the Wilmington Zoning Code is to all intents and purposes a counterpart in the City of the County Zoning Board of Adjustment. 22 Del.C., § 327 confers upon it substantially the same powers which are conferred upon the County Zoning Board of Adjustment by 9 Del.C., § 2617, and appeals from the decision of the City Board of adjustment by reason of 22 Del.C., § 328 are taken in substantially the same manner as are appeals from the County Zoning Board of Adjustment under 9 Del.C., § 2618.
We think there is no practical difference between the two and that, accordingly, the Nepi and Auditorium cases are pertinent authority for the allowance of an appeal by the County Zoning Board.
Furthermore, we think Dragon Run is in error in arguing that the Board is a quasi-judicial tribunal and, as such, subject to the general rule that it has no standing as a litigant to defendant its decision. It is argued that under 9 Del.C., § 2617(1) the Board has the quasi-judicial duty of hearing appeals urging error in decisions made by Zoning officials, but at the same time § 2617(2) and (3) confer upon the Board the power to grant special exceptions and variances. We do not understand this latter function to be the exercise of a quasi-judicial function. The exercise of these powers is the discharge of an administrative
or delegated legislative function.
In point of fact, this appeal involves a decision of the Board made under its administrative function. In so functioning, the Board is more comparable to the Public Service Commission, the right of which ...