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Allmaras v. Board of Adjustment of Sussex County

Superior Court of Delaware

November 12, 2019

Janice Allmaras, Joseph J. Rolla, Robert Viscount, Petitioners,

          Submitted: October 23, 2019

          Joseph J. Rolla, self represented, Janice Allmaras, self represented, Robert Viscount, self represented, Petitioners.

          James P. Sharp, Esquire, Moore & Rutt, P.A., Attorney for Respondent.


          CRAIG A. KARSNITZ J.

         Respondent's Motion to Dismiss and Petitioners' Motion to Amend which are before me illustrate the tension between deciding cases on the merits, on the one hand, and strict adherence to what appear to be inviolable rules governing timing of appeals on the other hand. Self-represented Petitioners seek review of a decision of Respondent granting a Special Use Exception for a neighboring landowner ("'Landowner'"), allowing Landowner to operate a convalescent home.

         After a few false starts, [1] Appellants filed a petition for Writ of Certiorari naming only the Sussex County Board of Adjustment (the "Board") as Respondent. The failure to name Landowner as an additional Respondent flies in the face of longstanding precedent requiring the landowner to be a party to the appeal.[2] My view of Delaware black letter law as it has existed for years would require dismissal of an appeal if Landowner is not named as a party within thirty (30) days of the Board's decision.[3] But, as one Delaware Court has recently said, "not so fast".[4]

         Resourceful parties caught in this procedural pinch have resorted to Superior Court Civil Rule 15(c) to resuscitate an otherwise lifeless case. Anyone with a passing familiarity with Rule 15 knows that under appropriate circumstances it may be used to amend a pleading and have it "relate back" to the original filing date. The Rule has often been invoked to save claims from the fate of dismissal for failing to meet a statute of limitations time requirement.

         In DiFebo v. Board of Adjustment of New Castle County[5] our Supreme Court invited an examination of Rule 15's savings provisions in the very context at issue here.5 To me, Rule 15 was designed with the typical civil lawsuit pleadings in mind. Nevertheless, on its face Rule 15 applies to all civil proceedings, including this appeal. Rule 15 has a number of requirements which I address in this opinion. To see if Rule 15 allows for the amendment to Petitioners' petition, and if that amendment relates back to the initial filing which was within the statutorily mandated thirty days, read on.

         The facts pertinent to these motions are undisputed. Respondent granted the application for a special exception to allow operation of a convalescent home, nursing home, and/or home for the aged by decision dated February 5, 2019. On February 11, 2019, Petitioners filed a request for re-hearing before the Board. On June 4, 2019, Respondent issued its Findings of Fact in support of its denial of Petitioners' request for re-hearing. At that point, all proceedings before the Board had ended. On June 24, 2019, Petitioners filed the pending Petition for Writ of Certiorari (the "Petition") naming only the Board as a party Respondent. The Board responded by moving to dismiss that Petition.

         Petitioners initially argued they did not need to name Landowner as a party respondent because their complaints were with the Board's decision. They have now abandoned that position, and agree Landowner must be a party respondent. Observing Landowner's due process rights requires its participation.

         Thus the sole issue is: can Petitioners now amend their Petition to add Landowner as a party, and have that amendment relate back to the time of their initial filing so as not to run afoul of the thirty-day period to file their appeal?

         9 Del. C. §6918(a) governs the filing of appeals from the Board, and reads in full:

"Any persons jointly or severally aggrieved by a decision of the Board of Adjustment or any taxpayer or any officer, department, board or bureau of the County may present to the Superior Court in and for Sussex County, a petition duly verified, setting forth that such decision is illegal in whole or in part, specifying the grounds of the illegality. The petition shall be presented to the Court within 30 days after the filing of the decision in the office of the Board."

         Simply put, a person aggrieved by a decision of the Board has thirty days to perfect an appeal. All parties affected by the Board's ruling, including the landowner, must be a party to the appeal.[6] Delaware courts routinely held that the ...

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