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DiFebo v. Board of Adjustment of New Castle County

Superior Court of Delaware, New Castle

April 17, 2015

MARY SUE DiFEBO, Appellant,
v.
BOARD OF ADJUSTMENT OF NEW CASTLE COUNTY, RICHARD PAVERD, BRIDGET PAVERD, BRUCE OSBORNE, CYNTHIA OSBORNE, and RAMESH BATTA, Appellees.

Submitted: March 11, 2015

Upon Appellee Ramesh Batta's Corrected Motion to Dismiss GRANTED.

Lisa C. McLaughlin, Esquire and Aaron C. Baker, Esquire, Phillips, Goldman & Spence, Attorneys for Appellant.

Richard L. Abbott, Esquire, Abbott Law Firm LLC, Attorney for Appellees.

Darryl A. Parson, Esquire, Julie M. Sebring, Esquire and Wilson B. Davis, Esquire, New Castle County Office of Law, New Castle County Government Center, 87 Reads Way, New Castle, Delaware 19720, Attorney for the Board of Adjustment of New Castle County.

OPINION AND ORDER

FERRIS W. WHARTON, JUDGE

I. INTRODUCTION

Appellee, Ramesh Batta ("Appellee Batta"), filed a Corrected Motion to Dismiss ("Motion to Dismiss") in response to Appellant Mary Sue DiFebo's ("Appellant") Notice of Appeal and First Amended Notice of Appeal or Petition in Certiorari ("Amended Petition") challenging the Board of Adjustment of New Castle County's ("Board") decision. Appellee Batta contends that the Notice of Appeal is procedurally defective and that the Amended Petition is time-barred under 9 Del. C. § 1314. The Court finds that the Amended Petition is untimely pursuant to 9 Del. C. § 1314. Therefore, Appellee Batta's Motion to Dismiss is GRANTED and Appellee's First Amended Notice of Appeal or Petition in Certiorari is DISMISSED.

II. FACTUAL AND PROCEDURAL CONTEXT

On November 17, 2014, Appellant filed a Notice of Appeal[1] challenging the Board's October 20, 2014 decision. On February 3, 2015, Appellee Batta filed a Motion to Dismiss [2] alleging, inter alia, that Appellant's action was incorrectly initiated as an appeal rather than as a petition for writ of certiorari and that Appellant failed to join the record owners of the property to the action.

In response to the Motion to Dismiss, on February 5, 2015, Appellant filed the Amended Petition [3] and named the record property owners in the caption. Appellee Batta filed a Motion to Strike First Amended Notice of Appeal ("Motion to Strike")[4] on February 10, 2015. The Court heard oral argument on the Motion to Dismiss and Motion to Strike on March 11, 2015 and denied Appellee Batta's Motion to Strike.[5] Thereafter, the parties agreed on the record that Appellee Batta's Motion to Dismiss applied to the Amended Petition and requested that the Court resolve the Motion on the merits.

III. THE PARTIES' CONTENTIONS

Appellee Batta asserts that 9 Del. C. § 1314 provides that a petition for writ of certiorari is the appropriate procedural context through which to challenge a Board decision. Appellee Batta argues that the Amended Petition is deficient in the following ways: 1) the Amended Petition is time-barred because it was filed more than 30 days after the Board filed its decision;[6] 2) Appellant failed to join indispensible parties by the 30-day statutory deadline;[7] and 3) the Amended Petition fails to specify any alleged illegality in the Board's decision.[8]

Appellant concedes that the initial Notice of Appeal is the improper procedural mechanism through which to initiate the action and acknowledges that 9 Del. C. § 1314 requires that Appellant file a petition for writ of certiorari to challenge Board decisions. However, Appellant contends that the initial Notice of Appeal filed within 30 days of the Board's decision conferred jurisdiction upon the Superior Court and argues that the Court should not ...


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