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Black v. New Castle County Board of License

Superior Court of Delaware, New Castle

September 26, 2014

HENRY BLACK, MARY LOU BLACK, BLACKBALL PROPERTIES, LLC, Petitioners,
v.
NEW CASTLE COUNTY BOARD OF LICENSE, INSPECTION AND REVIEW, NEW CASTLE COUNTY DEPARTMENT OF LAND USE, a department of the New Castle County government, and GARY STAFFIERI and ADRIA CHARLES STAFFIERI Respondents.

Submitted: June 17, 2014

Upon Petitioner's Writ of Certiorari regarding the New Castle County Board of License, Inspection and Review's Decision:

Richard L. Abbott, Esquire, Abbott Law Firm, Attorney for Petitioners.

Marlaine A. White, Esquire, New Castle County Office of Law, Attorney for Respondent New Castle County Department of Land Use.

Gary Staffieri and Adria Charles-Staffieri, pro se, Respondent.

OPINION AND ORDER

Ferris W. Wharton, Judge

I. INTRODUCTION

Henry Black, Marylou Black and Blackball Properties, LLC (the "Petitioners"), filed a Complaint in Certiorari on August 22, 2013 requesting judicial review of a decision of the New Castle County Board of Licensing, Inspection and Review (the "Board") dated July 23, 2013. The Complaint was originally dismissed for lack of particularity on October 7, 2013 but allowed Petitioners to timely amend the Complaint. Petitioners submitted an Amended Complaint to the Court on October 11, 2013 and an Order allowing the writ of certiorari was granted that same day. On June 17, 2014 the case was assigned to this Judge.

In considering a writ of certiorari, the Court must determine whether the Board's decision to uphold the ruling of the New Castle County Department of Land Use (the "Department") to issue a Change of Use Certificate to Gary Staffieri and Adria Charles-Staffieri (the "Staffieris") for their property located at 1707 Concord Pike in Wilmington, Delaware (the "Property") was arbitrary and unreasonable. Upon consideration of the pleadings before the Court and the record below, the Court finds that the Board's ruling is not arbitrary and unreasonable. Accordingly, the Board's decision is AFFIRMED.

II. FACTUAL AND PROCEDURAL CONTEXT

On September 12, 2011, the Staffieris, owners of the Property, filed an application with the Department to change the use of the Property to accommodate an auto detailing business.[1] The Department issued a Change of Use Certificate (the "First Permit") on July 27, 2012.[2] The Petitioners appealed the issuance of the First Permit to the Board on August 15, 2012.[3] After a hearing held on September 5, 2012, the Board issued a written decision on May 29, 2013 that reversed the Department's decision to issue the First Permit and, as such, the First Permit was revoked.[4]

The Staffieris had also filed claims in the Delaware Court of Chancery requesting, inter alia, a declaratory judgment regarding the existence of an easement over neighboring property; specifically, the properties located at 1701, 1703 and 1705 Concord Pike (the "Triplex Property"). A three-day trial was held in October 2012 to determine the extent of the Staffieri's property interest in relation to the Triplex Property.[5] In the Post-Trial Order, dated October 24, 2012, the Chancery Court found that two express easements appurtenant to the Triplex Property were contained within the deed to the Property which was owned by the Staffieris.[6]

On May 15, 2013, the Staffieris filed with the Department a second application for a Change of Use Certificate (the "Second Permit") which was approved on May 20, 2013.[7] On May 23, 2013, Petitioners, as owners of the Triplex Property and 1709 Concord Pike, filed an appeal with the Board.[8] The Petitioners argued there were two grounds for appeal. The Petitioners first argued that the Department erred in issuing the Second Permit because of

the failure of 1707 to meet the requirements of the New Castle County Unified Development Code ("UDC") for operation of an auto detailing business, a light automobile service use, a prerequisite to Permit issuance under County Code § 6.03.016B. Specifically, 1707 lacks the requisite four (4) off-street parking spaces required…To the extent that the Department relied upon alleged rights to park on the adjacent properties identified at 1701 through 1705 Concord Pike (the "Triplex Properties"), the decision is in error based upon the fact that: 1) the Court decision granting those rights is not final; it will be appealed in the near future and may ultimately be reversed (eviscerating any easement rights); 2) the only place on the Triplex Properties where parking is legally permitted pursuant to the Court decision is in the front of the buildings where 7 parking stalls are currently striped; and 3) 1707 may not rely upon the "share parking" on the Triplex Properties under UDC § 40.22.611K. since the 7 spaces are not adequate.[9]

The Petitioners' second argument was based upon "the Change of Use Permit's contravention of UDC and the County Drainage Code provisions."[10]

A. The Board Hearing

A hearing before the Board over which Joseph Schorah, Kenneth Williams and Toren Williams presided occurred on July 8, 2013.[11] The record indicates that, at the hearing, the Board heard argument from the parties, gathered evidence and permitted members of the public to comment on the issue of parking spaces.[12]Additionally, Counsel for the Department indicated that the standard to be used by the Board was whether or not the Department's decision was "arbitrary and capricious."[13]

The record also indicates that, at the conclusion of the hearing, Mr. Schorah, Mr. Williams and Mr. Williams discussed the merits of the case; specifically, Mr. Schorah stated that "[T]he purpose of what we have to deal with is what the County made their decision on. The County used I believe in my opinion that they used, they used [the Chancery Court decision] as their way of saying that they have the right amount of spaces."[14] Mr. Williams responded

[i]f the court rules that you are allowed to do that so we can't overrule what the court says so I agree with [Mr. Schorah]. The court states that [the Staffieris] are allowed to use it as the easement that's for a parking space. So like [Mr. Schorah] ...

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