Crawford v. Town of Milton Planning & Zoning Commission ( 2024 )

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STEVEN CRAWFORD, )
)
)
Appellant, )
)
v. ) C.A. No: S23A-04-001 MHC
)
TOWN OF MILTON PLANNING & )
ZONING COMMISSION )
)
)
Appellee. )
ORDER
Submitted: November 14, 2023
Decided: January 23, 2024
Upon Consideration of Town of Milton Planning &
Zoning Commission’s Motion to Dismiss,
GRANTED.
Stephen Crawford, Milton, Delaware, Pro Se Appellant.
Scott G. Wilcox, Esquire, Giordano, Delcollo, Werb, & Gagne, LLC, Wilmington,
Delaware, Attorney for Appellee.
CONNER, J.
INTRODUCTION
Before the Court is the Town of Milton Planning & Zoning Commission’s
(“Commission”) Motion to Dismiss an action filed Pro Se by Steven Crawford
(“Crawford”). The appeal raises one ground for consideration: “Non-Compliance
of Due Process Required by the Town of Milton Town Charter in Section 29;
Paragraph 13 when the Land Lease Agreement was executed which will invalidate
the agreement and all subsequent decisions and approvals.”1 Crawford’s action is
untimely and is therefore DISMISSED.
FACTUAL AND PROCEDURAL HISTORY
On December 2nd, 2019, the Milton Town Council unanimously approved a
Land Lease Agreement (“Agreement”) between Cellco Partnership d/b/a Verizon
Wireless (“Verizon”) and the Town of Milton.2 The Agreement was signed by the
Town of Milton on December 4, 2019, and became effective on June 17th, 2020,
when signed by Verizon. It granted Verizon, as lessee, the right to install and
maintain a telecommunications monopole on 210 Front Street, Milton, Sussex
County, Delaware, conditioned on Verizon receiving all other necessary government
approvals for the use of the property. Verizon secured such necessary government
1
Crawford’s Notice of Appeal.
2
Tr. of Dec. 2, 2019, Town of Milton Town Council Meeting. (Unfortunately, it took several
months to transcribe the minutes).
2
approval and following a public hearing on March 21 st, 2023, the Commission
unanimously approved Verizon’s final site plan.
On April 20th, 2023, Stephen Crawford filed an appeal claiming to seek
review of the Commission’s March 21st, 2023 approval of Verizon’s final site plan.
However, when reading Crawford’s grounds for appeal and subsequent filing, it
becomes clear that he is not seeking review of the Commission’s March 21st, 2023
site plan approval, but rather the approval of the Agreement by the Milton Town
Council on December 2nd, 2019.
Crawford states that his grounds for appeal are “Non-Compliance of Due
Process Required by the Town of Milton Charter in Section 29; Paragraph 13 when
the Land Lease Agreement was executed which will invalidate the agreement and
all subsequent approvals.”3 He doubles down in his reply brief, writing “[t]he issue
and reason for appeal to Superior Court is where the cell tower is to be located.…”4
STANDARD OF REVIEW
“When reviewing a ruling on a motion to dismiss, we (1) accept all well
pleaded factual allegations as true, (2) accept even vague allegations as ‘well
pleaded’ if they give the opposing party notice of the claim, (3) draw all reasonable
3
Crawford’s Notice of Appeal.
4
Crawford’s Resp. to Def. Mot. to Dismiss at 2.
3
inferences in favor of the non-moving party, and (4) do not affirm a dismissal unless
the plaintiff would not be entitled to recover under any reasonably conceivable set
of circumstances.”5
DISCUSSION
It is unclear if this challenge to the decision of the Milton Town Council is
before the Court as a Rule 3(c) appeal de novo, a Rule 72 appeal, or as a writ of
certiorari. Crawford refers to his action as an appeal, yet he fails to provide the rule,
statute, or code section which permits or governs such an appeal.6 Alternatively, the
Commission refers to Crawford’s action as a petition for writ of certiorari. These
forms of appeal and writs of certiorari differ in many ways beyond name, however
the Court need not address all of their distinctions because under all three forms
Crawford’s action is untimely. Because the action is untimely, Crawford is not
entitled to recover under any reasonably conceivable set of circumstances and this
action must be dismissed.
5
Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Hldgs. LLC, 27 A.3d 531, 535 (Del. 2011).
6
The Court is cognizant of Crawford’s position as a pro se litigant. As such it will explain why
Crawford’s claims are untimely as a Rule 3(c) appeal, a Rule 72 appeal, and as a petition for writ
of certiorari.
4
1. Timeframe under which a party may file an appeal de novo pursuant to
Delaware Superior Court Civil Rule 3(c).
Delaware Superior Court Civil Rule 3(c) governs the commencement of
appeals de novo. “When an appeal de novo is permitted by law, an action is
commenced in the Superior Court by the appellant filing with the Prothonotary a
praecipe within the time prescribed by statute for the filing of an appeal. If no time
is prescribed by statute, the praecipe shall be filed within 15 days from the entry of
the final judgment, order, or disposition from which an appeal is permitted by law.”7
2. Timeframe under which a party may file an appeal pursuant to
Delaware Superior Court Civil Rule 72.
Delaware Superior Court Rule 72 governs appeals to the Superior Court “from
certain commissioners, boards and courts.”8 Such appeals must be permitted by
law.9 “If no time is prescribed by statute, the notice of appeal shall be filed within
15 days from entry of the final judgment, order, or disposition from which an appeal
is permitted by law.”10 “The Court may order an appeal dismissed, sua sponte, or
7
Super. Ct. Civ. R. 3(c).
8
Super. Ct. Civ. R. 72.
9
Super. Ct. Civ. R. 72(b).
10
Id.5
upon a motion to dismiss by any party. Dismissal may be ordered for untimely filing
of an appeal.…”11
3. Timeframe under which a party may file a petition for a writ of certiorari.
“Although there is no statutorily-imposed time period in which to seek review
under a writ of certiorari, [the Delaware Supreme Court has] ruled that the time for
seeking such review is analogous to the period governing direct appeals....”12
“Generally, a petition for a writ of certiorari must be filed within the time [thirty
days] set for direct appeals.”13 “Delaware courts have held that a writ of certiorari
filed later than thirty days will be excused only under exceptional circumstances.”14
CONCLUSION
Crawford’s challenge is untimely regardless of whether it is analyzed as a Rule
3 appeal de novo, a Rule 72 appeal, or a writ of certiorari. As stated above,
Crawford’s filings explain that he is challenging the location of the monopole by
attacking the process followed “when the Land Lease Agreement was executed”,15
not the March 21st, 2023 site plan approval.
11
Super. Ct. Civ. R. 72(i).
12
Petition of Fridge, 604 A.2d 417 (Del. 1991).
13
Matter of Gunn, 122 A.3d 1292 (Del. 2015). (Internal citation omitted).
14
Id.15
Crawford’s Notice of Appeal.
6
The Agreement, which ultimately determined where the monopole would be
located was unanimously passed by the Milton Town Council on December 2nd,
2019. On December 4th, 2019, the Land Lease Agreement was signed by the Mayor
on behalf of the Town of Milton. Verizon signed the Agreement on June 17th, 2020
making it effective on that date.
Crawford’s April 20th, 2023 action was filed more than two years beyond the
15-day window in which an appeal of the approval or subsequent execution of the
Agreement may have been filed under Rule 72 or Rule 3(c). Further, Crawford has
not provided the Court with any statute that would extend the window in which a
notice of appeal may be filed beyond 15 days under either rule.
Likewise, Crawford’s April 20th, 2023 action was filed more than two years
beyond the 30-day window in which a writ of certiorari challenging the approval or
subsequent execution of the Agreement should have been filed. Crawford failed to
allege any exceptional circumstances that would excuse a delay of several years in
filing the petition for writ of certiorari in this proceeding. The Court acknowledges
Crawford’s claims that the Milton Town Council’s approval of the Agreement on
December 2nd, 2019 was “done behind the curtain … to avoid public scrutiny” and
not revealed until March 2021 following a FOIA request.16 However, the Court finds
16
Crawford’s Resp. to Def. Mot. to Dismiss at 9.
7
them unavailing as Crawford “agrees the [December 2nd, 2019] meeting was
properly noticed.”17
For the foregoing reasons Crawford’s action is untimely. Therefore, he is not
entitled to recover under any reasonably conceivable set of circumstances and this
action must be DISMISSED.
/s/ Mark H. Conner
Mark H. Conner, Judge
cc: Prothonotary
17
Id. at 7.
8