Janice Allmaras, Joseph J. Rolla, Robert Viscount, Petitioners,
THE BOARD OF ADJUSTMENT OF SUSSEX COUNTY, DELAWARE, Respondent.
Submitted: October 23, 2019
J. Rolla, self represented, Janice Allmaras, self
represented, Robert Viscount, self represented, Petitioners.
P. Sharp, Esquire, Moore & Rutt, P.A., Attorney for
MEMORANDUM OPINION AND ORDER
A. KARSNITZ J.
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.
few false starts,  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. 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. But, as one Delaware Court has recently
said, "not so fast".
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.
DiFebo v. Board of Adjustment of New Castle
County 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.
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.
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
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?
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."
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. Delaware courts routinely held that the