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Garber v. New Castle County Department of Land Use

Superior Court of Delaware

March 31, 2017

KEVIN GARBER, t/a CARPENTRY UNLIMITED, Petitioner,
v.
NEW CASTLE COUNTY DEPARTMENT OF LAND USE and NEW CASTLE COUNTY BOARD OF LICENSE, INSPECTION & REVIEW, Respondents.

          Submitted: December 13, 2016

         Upon Certiorari Review from the New Castle County Board of License, Inspection, and Review: AFFIRMED

          ORDER

          Abigail M. LeGrow, Judge

         1. The petitioner seeks certiorari review of a decision of the New Castle County Board of License, Inspection, and Review that affirmed a New Castle County hearing officer's decision. The bases for the petition involve alleged errors and irregularities in the Board's decision, but consideration of those alleged errors would require a searching review of the Board's decision and the underlying factual record. The true issue presented by the petition is the proper scope of the record this Court may consider for certiorari review. That issue is governed by settled Delaware law and requires affirmance of the decision below.

          BACKGROUND

         2. In August 2012, Kevin Garber, trading as Carpentry Unlimited, contracted with Deborah Wartel and Amy Podolsky (the "Homeowners") to build a home at 510 Bellevue Road, Wilmington, Delaware, 19809. The New Castle County Department of Land Use (the "Department") issued a building permit to Mr. Garber on August 21, 2012 and a certificate of occupancy to the Homeowners on July 26, 2013. On January 20, 2016, the Department issued to Mr. Garber two violation notices for various violations of New Castle County Code, Chapter 6, which is New Castle County's Building Code.[1]

         3. On February 9, 2016, New Castle County (the "County") held a rule to show cause hearing (the "RTSC Hearing") to address both violation notices. A hearing officer conducted the five-hour hearing wherein a County building inspector, Michael Fox, Mr. Garber, Mr. Garber's attorney, the Homeowners, the Homeowners' attorney, and a number of other witnesses testified.[2]

         4. On February 24, 2016, the hearing officer issued a written decision finding Mr. Garber responsible for eight of eighteen violations (the "RTSC Decision").[3] On March 7, 2016, Garber appealed the RTSC Decision to the License, Inspection, and Review Board (the "Board").

          5. The Board held a hearing on May 11, 2016, which lasted approximately eight hours. At that hearing, both parties sought to present testimony from witnesses who had not testified at the RTSC Hearing. In response to objections to that testimony, the Board precluded both witnesses from testifying and heard only from those witnesses who testified at the RTSC Hearing.[4] The Board issued a 23-page opinion (the "Board Decision) denying Mr. Garber's appeal on the basis that the hearing officer's decision was not arbitrary, capricious, or contrary to law.[5]

         6. On May 26, 2016, Mr. Garber filed a complaint in this Court for a certificate of certiorari to review the RTSC Decision and Board Decision. In support of his petition for a writ, Mr. Garber now asserts: (1) the Board failed to calculate properly the statute of limitations; (2) the Board failed to apply properly the doctrines of Spectrin[6] and equitable estoppel; and (3) the Board proceeded irregularly by (a) relying on an unqualified and unauthorized expert, (b) shifting the burden of proof to Mr. Garber, and (c) excluding evidence. The Department denies any legal errors exist on the face of the record or that Mr. Garber can show any irregularities in the proceedings and therefore requests that the writ be denied and the Board's decision affirmed.

          ANALYSIS

         7. This Court's role in reviewing a writ of certiorari is limited.[7] The Court shall review the record to determine whether the Board "exceeded its jurisdiction, proceeded illegally or manifestly contrary to law, or proceeded irregularly."[8] Certiorari is appropriate only when "an error of law is manifest on the face of the limited record."[9] That limited record includes only "the complaint initiating the proceeding, the answer or response (if required), and the docket entries."[10] Neither the evidence received by the lower tribunal, [11] nor the transcript of that proceeding, is part of the record to be reviewed.[12]

          8. Garber contends the Board misapplied the time of discovery rule and failed to make any factual findings as to when the injury occurred or as to why the Department is "blamelessly ignorant in failing to discover[] the allege[d] code violations" sooner.[13] Mr. Garber further contends the Board erred by failing to apply or make factual findings relating to the Spearin Doctrine or equitable estoppel.[14]

         9. The record here, however, does not indicate that the Board erroneously measured the statute of limitations or misapplied the Spearin Doctrine or equitable estoppel. Adhering to the necessary "disciplined and more constrained review" required on a petition for a writ of certiorari, I may not consider the "merits of the case"[15] or the "full record before the first tribunal, " or "conduct a plenary review of whether the tribunal committed an error of law."[16]To receive a writ of certiorari, a petitioner must show an error of law on the face of the record.

          10. In its decision, the Board discussed (for two pages) when the injury occurred and, specifically, why the statute of limitations had not run on the violations.[17] As to the Spearin Doctrine and equitable estoppel, the Board stated:

[T]he Applicant cited no cases where the Spearin Doctrine was applied in an administrative enforcement proceeding. . . . [The Applicant] had the responsibility of complying with the building code. A licensed contractor is presumed to know the Code and should not be heard to say that he can violate that Code because his client told him to do so.
Applicant's Spearin argument is further flawed on the facts. Applicant never proved the requisite facts necessary to demonstrate the type of reliance that Spearin requires to successfully assert that defense. Moreover, many of the Code violations had nothing to do with the building design.
This analysis regarding Applicant's Spearin argument and related discussion in this Board Decision also apply to the doctrines of equitable estoppel, promissory estoppel, and justifiable reliance. These doctrines were mentioned briefly by the Applicant in its papers and/or at the Board Hearing. The Applicant never developed the necessary factual and legal foundation for [the] application of these doctrines.[18]

         11. The Board's conclusions regarding the statute of limitations, Spearin, and estoppel were based on its consideration of the factual record. The narrow question before this Court is whether the Board proceeded illegally or in a manner manifestly contrary to the law. Mr. Garber has not made ...


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