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FMC Corp. v. Special Services Department

Superior Court of Delaware

May 31, 2017


          Submitted: February 23, 2017

         Appellee's Motion to Dismiss for Lack of Subject Matter Jurisdiction: GRANTED, WITH LEAVE TO FILE A PETITION FOR A WRIT OF CERTIORARI


          Abigail M. LeGrow, Judge

         1. The appellant, a business utilizing the county sewer system, seeks appellate review of an order of a county agency. The agency alleges the appellant violated its sewer permit and the county code, causing blockages and overflow in the sewer. After an evidentiary hearing, the hearing officer for the agency ordered the appellant to pay substantial costs and take action to remediate the damage it allegedly caused. The appellant filed a notice of appeal to this Court, citing a provision in the county code authorizing an appeal from a hearing officer's order, The agency, however, argues the appeal must be dismissed for lack of subject matter jurisdiction. The pending motion requires this Court to determine whether the county code confers jurisdiction on this Court to hear the appeal and, if not, whether the appellant should be permitted to file a petition for a writ of certiorari outside the 30-day time period in which such a petition typically must be filed. I conclude the code does not confer jurisdiction on this Court, but the appellant may seek certiorari review because the compelling circumstances of this case justify extending the 30-day deadline. My reasoning follows.


         2. FMC Corporation owns the FMC Health and Nutrition facility (the "Facility"), a manufacturing plant in Newark, Delaware. The Facility has a permit to discharge wastewater into the New Castle County public sanitary sewer system (the "County Sewer"). According to the New Castle County Code (the "Code"), any permitted user must ensure its discharge will not impair the County Sewer. The appellee, the New Castle County Special Services Department (the "Department"), manages and operates the County Sewer.

         3. Between January and April 2016, the Department issued seven Notices of Violation (individually, an "NOV") to FMC for allegedly violating the Code by permitting its wastewater discharge to cause a blockage in the County Sewer. Two of those blockages purportedly caused "significant sewer overflow." A "Show Cause" evidentiary hearing was held before the Department's General Manager (the "Hearing Officer") on April 21, 2016. The record was held open after that hearing for additional investigation and submissions by the parties. The Hearing Officer issued his final order on October 13, 2016 (the "Final Order").[1] In the Final Order, the Hearing Officer found that the Department "had reasonable cause to believe that FMC violated the Code and its permit."[2] The Hearing Officer therefore upheld the seven.NOVs and ordered FMC to (1) pay fines and costs in excess of $100, 000.00; (2) develop a plan to prevent further obstruction of the County Sewer; and (3) pay all future costs incurred by the Department to monitor, repair, or clear obstructions in the County Sewer related to FMC's operations.[3]

         4. FMC filed its Notice of Appeal of the Final Order on October 27, 2016 (the "Appeal"). Shortly thereafter, FMC filed a motion in this Court to stay enforcement of the Final Order while the Appeal is pending. This Court granted the motion to stay on November 15, 2016. The Department then filed its Motion to Dismiss the Appeal for Lack of Subject Matter Jurisdiction (the "Motion"). The parties fully briefed and argued the Motion.

         5. In the Motion, the Department contends this Court lacks jurisdiction over the Appeal for three reasons: (1) the Delaware Code does not authorize this Court to hear an appeal from a decision of a Department Hearing Officer; (2) although FMC could have filed a petition for a writ of certiorari, it did not do so and the time to file such a petition now has passed; and (3) even if there was a statutory appeal right, FMC failed to perfect its appeal because it did not name the correct party. FMC resists all three arguments, contending its Appeal is proper because the Code expressly authorizes an appeal from a decision of a Department Hearing Officer and the Department was the proper party to be named in this appeal. FMC also argues that, even if it had no statutory appeal right, the exceptional circumstances of this case support converting the appeal to a petition for certiorari review.


         6. An action must be dismissed under Superior Court Civil Rule 12(b)(1) where it appears from the record that this Court does not have jurisdiction over the claim. The burden of establishing jurisdiction lies with the appellant.[4] Here, there are no disputed factual issues relating to the question of this Court's jurisdiction.

         A. Only the General Assembly may confer statutory jurisdiction on this Court.

         7. FMC contends New Castle County (the "County") expressly granted aggrieved parties the right to appeal a decision of the Department to this Court in Section 38.03.004 of the Code. That Section, titled "Means of Appeals, " provides, in pertinent part, that "[a]ny person aggrieved by any decision ... by the General Manager of the Department of Special Services . . . may appeal such decision in any manner provided by law."[5] FMC argues the County had the authority to confer appellate jurisdiction on this Court because the General Assembly expressly authorized the County Council to enact ordinances carrying the force of law and further granted the County "broad statutory authority to enact policies and procedures that the General Assembly could have authorized by specific enumeration."[6] Specifically, FMC relies on 9 Del. C § 1101 and a decision issued by the Court of Chancery, Salem Church (Delaware) Associates v. New Castle County.[7]

         8. Section 1101 provides, pertinently, that the County shall "have all powers which, under the Constitution of this State, it would be competent for the General Assembly to grant by specific enumeration, and which are not denied by statute."[8] That Section is the County's "home rule" statute, under which the General Assembly granted the County authority to address local issues without oversight or specific authorization by the state legislature.[9] In Salem Church, the Court of Chancery concluded that the County could create a right to appeal to the County Planning Board from a decision of the Department of Land Use without the General Assembly enacting a statute to that effect. The Court reasoned that "under the State's 'home rule' statutes, the County is given great flexibility to discharge its functions, except as otherwise limited by the State's Constitution or its statutes, " and nothing in the ...

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