KZ Forever, LLC v. City of Dover City Council

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
KZ FOREVER, LLC, a Delaware
limited liability company, : C.A. No. Kl 6A-02-001 WLW
Kent County
Petitioner,
v.
CITY OF DOVER CITY COUNCIL, :
Respondent.
Submitted: Septernber 6, 2016
Decided: November 9, 2016
ORDER
Upon a Petition for Writ of Certiorari to
Reverse an Order by City of Dover City Council.
Order Reversed.
Tasha Marie Stevens, Esquire of Fuqua Yori & Willard, P.A., Georgetown, Delaware;
attorney for Petitioner.
William W. Pepper, Sr., Esquire of Schmittinger and Rodriguez, P.A., Dover,
Delaware; attorney for Respondent.
WITHAM, R.J.
KZ Forever, LLC v. Dover City Council
C.A. NO. K16A-02-001 WLW
November 9, 2016
Petitioner KZ Forever, LLC (“KZ”) has filed a petition for a Writ of certiorari,
asking this Court to reverse an order by the Respondent City of Dover City Council
(the “Council”) that declared the Petitioner’s property dangerous and mandated its
demolition.
The central question in this case is Whether the City of Dover’s ordinances
permit it to order the demolition of an allegedly dangerous building Without also
issuing Written findings of fact and a Written order.
Because the Council proceeded irregularly When it failed to issue a Written
order or make Written findings of fact, the Council’s order is REVERSED.
FACTUAL BACKGROUND
This proceeding in certiorari arises from attempts by the City of Dover to repair
or demolish a property located at 2 South Queen Street in Dover, DelaWare.
The property Was purchased by the Petitioner in February 2015 and had a
checkered code enforcement history. Several months after the property Was sold, city
official condemned it because of a number of violations.
After a long string of inspections and correspondence, the code enforcement
officer sent a violation letter to the Petitioner on November 5, 2015. The violation
letter attached a list of code violations and required a follow-up inspection by
November 19. For each identified code violation, the letter provided a “corrective
action required” to bring the property to code.
Ann Marie ToWnshend, Director of Planning and Community Development for
the City of Dover, sent a separate notice to the Petitioner the next day. Attached to
KZ Forever, LLC v. Dover City Council
C.A. No. K16A-02-001 WLW
November 9, 2016
her letter was the code violation letter and the list of violations. In Ms. Townshend’s
letter, she warned the Petitioner that the property was “found to be in violation of the
Dangerous Building Ordinance of the City” and identified the grounds upon which
the building was alleged to be dangerous
Ms. Townshend’s letter notified the Petitioner that it was to complete three
items by November 19. The three required items were (l) submission of a
renovations permit application along with a structural engineer’s report and
recommendations; (2) an electrical inspection; and (3) payment of all fees, citations,
and taxes. The letter also informed the Petitioner of its right to appeal by filing a
notice of appeal within five days of receipt.
On November 17, nine days after the notice was received (and by then beyond
the five-day period for appeal), Zionna Adamolekun, a member of KZ, sent a letter
to Ms. Townshend on behalf of the Petitioner. In the letter, Ms. Adamolekun
acknowledged having received the notice and indicated that the items would not be
completed by November 19. She asked to be given ninety days to complete the tasks.
After an inspection by the City revealed that no repairs had been made, Ms.
Townshend sent a notice to the Petitioner dated November 24. The letter noted that
the matter would be presented to the Council at a hearing on December 9 and that the
Petitioner could state its case at the hearing “as to why the house should not be
declared dangerous and ordered demolished, including why an extension should be
provided to allow repairs.”l
1 Resp’t’s App. B-39.
KZ Forever, LLC v. Dover City Council
C.A. No. Kl6A-02-001 WLW
November 9, 2016
On December 9, 2015, the Council held the public hearing on the violation.
MS. Townshend spoke and presented the property’s history. Ms. Adamolekun spoke
and explained, among other things, that she had not received many of the notices sent
before November and had difficulty communicating with the city despite several
attempts She also questioned whether Ms. Townshend was qualified to perform
property inspections and asked for the city to give her “breathing room” to address
the property issues
The Council voted to give the Petitioner an additional fifteen days to provide
the staff with estimates, placing the matter on the agenda for the January ll, 2016
Council meeting. Before the next Council meeting, the Petitioner submitted a copy
of the structural engineering report, two proposals from building contractors, and a
receipt from an electrical contractor.
At the January 1 1 Council meeting, Ms Townshend discussed the Petitioner’s
submissions According to Ms. Townshend’s testimony, the City Building Inspector
reviewed the submissions and found the structural engineering report to be
incomplete because it addressed only some of the identified issues As for exterior
issues, the proposals were for repairs that would not bring the building up to code.
Ultimately, Ms. Townshend recommended:
1) Declaring the building and all accessory structures on the property
dangerous; 2) Ordering the property demolished by February l l, 2016
by the owner or equity owner at their own risk; 3) Ordering the Building
Inspector to cause the demolition of the structures if not completed by
the owners within 10 days of the date established by City Council; and
4) Ordering the City Manager . . . to cause the cost of demolition to be
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KZ Forever, LLC v. Dover City Council
C.A. No. Kl6A-02-001 WLW
November 9, 2016
charged against the land on which the buildings exist as a municipal lien
or cause such costs to be added to the tax duplicate as an assessment, or
to be levied as a special tax, or to be recovered in a suit at law against
the owners2
The Petitioner then testified, which apparently required the Council to suspend
its rules because the matter was not a public hearing. The Petitioner stated that She
intended to “cure all the defective conditions cited in the Code Enforcement Report”
and that she was prepared to complete all of the repairs3
After hearing the Petitioner’s testimony, three members of the Council voted
to amend the motion to give the Petitioner ninety days to repair or demolish the
house, but the amendment failed. lnstead, the Council voted simply to adopt the staff
recommendation
Ms. Townshend sent the Petitioner a letter on January 28 indicating that at the
hearing the Council had made a number of findings of fact. The letter related that the
Council had voted to declare the structure in violation of the City’s Dangerous
Building Ordinance and to authorize ordering the property to be demolished,
According to an email from Ms. Townshend, the letter constituted the Council’s
written findings of fact and order.
The Petitioner then requested a writ of certiorari, which this Court issued as a
matter of course.4
2 Resp’t’s App. B-84.
3 Resp’t’s App. B-84_85.
4 10 Del. C. § 562.
KZ Forever, LLC v. Dover City Council
C.A. No. Kl6A-02-001 WLW
November 9, 2016
THE PARTIES’ CONTENTIONS
The Petitioner argues that the Council committed legal error by failing to
provide substantive notice according to sections 22-3 84(5) and (6) of the Dover Code
of Ordinances, additionally implicating due process concerns lt further contends that
the Council failed to create an adequate record by omitting findings of fact or a
written order.
The Council responds that the notice complied with the ordinance and due
process, or in the alternative that the Petitioner waived the argument when it failed
to raise the claim before the Council. The Council created an adequate record, it
argues, when the Dover Director of Planning and Community Development sent a
letter containing factual findings to the Petitioner.
STANDARD OF REVIEW
The Court’s standard of review on certiorari is limited:
‘In Delaware the writ of certiorari is . . . a writ which retains the essential
characteristics of the writ at common law.’ ‘The purpose of the writ is
to permit a higher court to review the conduct of a lower tribunal of
record,’ but ‘review on certiorari is on the record and the reviewing court
may not weigh evidence or review the lower tribunal’s factual findings.’
As a result, a reviewing court ‘considers the record to determine whether
the lower tribunal exceeded its jurisdiction, committed errors of law, or
KZ Forever, LLC v. Dover City Council
C.A. No. Kl6A-02-001 WLW
November 9, 2016
proceeded irregularly [or] . . . manifestly contrary to law.’5
“A decision will be reversed for irregularities of proceedings if the lower tribunal
failed to create an adequate record to review.”6
DISCUSSION
The Court can detect no due process violation in the notice given to the
Petitioner. And the Petitioner has waived any challenge to the notice it did receive
by failing to raise its challenge below. But because the Council never issued written
findings to support a written order, the proceedings below were irregular and will be
reversed.
I. There Was No Apparent Due Process Violation.
There is no basis on which to find a due process violation here. The Petitioner’ s
arguments contain several general references to the due process guarantees of the
U.S. and Delaware Constitutions. Those general references are unsupported by any
legal analysis, and the record is clear that the Petitioner received notice of the action
and appeared at a hearing through one of its members
To the extent that the Petitioner cites due process standards without actually
applying them to the case, the Court is unable to divine its argument. It apparently
makes no challenge to the notice and hearing provisions in the Dover Code of
5 Hana'loj?"v. City Council, 935 A.2d 255 (Table), 2007 WL 2359555, at *2 (Del. 2007)
(omissions and alteration in original) (first quoting Rash v. Allen, 76 A. 370, 374 (Del. 1910); then
quoting Christiana T own Ctr., LLC v. New Castle Cty., 865 A.2d 521 (Table), 2004 WL 2921830,
at *2 (Del. 2004); and then quoting id.).
6 Christiana T own Ctr., LLC, 2004 WL 2921830, at *2 (citing l Victor B. Woolley,
Woolley’s Practice in Civil Actions § 923 (1906)).
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Ordinances. Instead, the Petitioner analyzes the Council’s actions to see whether they
complied with the Code, under the apparent assumption that the ordinances do indeed
comport with due process7
Having not been presented with any briefing on the subject, and discerning no
obvious argument that the Petitioner was deprived notice and an opportunity to be
heard, the Court finds no due process violation.
II. T he Petitioner Waived ItS Claims of lnsujj‘icient Notice.
The Petitioner waived its ordinance-based notice arguments by failing to raise
them below. On certiorari, the Court will not “decide any question that was not raised
in the tribunal below.”8
The Petitioner attempts to point to portions of the transcript to show it raised
the claims regarding notice before the Council. Such transcripts are not part of the
record in this common law certiorari proceeding9 Regardless of whether the Court
considers the transcript or the minutes of the Council’s meeting, however, the
Petitioner did not raise the notice issues below.
The record does reveal that the Petitioner argued to the Council that (l) Ms.
7 This assumption would be well-founded. See generally Goldstein v. City of Wilmington,
1986 WL 6586, at *3 (Del. Super. June 3, 1986) (noting that due process is satisfied where “the sole
notice sent to a building owner informs them of a Code violation, the necessity for repairs, and the
opportunity to appear at a hearing”).
8 Jora'an v. T own of Milton, No. S10A-12-005, 2012 WL 5494667, at *5 (Del. Super. Oct.
31, 2012) (quoting 395 Assocs., LLC v. New Castle Cty., No. 05A-01-013, 2006 WL 2021623, at *4
(Del. Super. July 19, 2006)).
9 E.g., Barbour v. Bd. ofAdjustment, No. 92A-05-006, 1992 WL 302292, at *2 (Del. Super.
Sept. 28, 1992).
KZ Forever, LLC v. Dover City Council
C.A. No. Kl6A-02-001 WLW
November 9, 2016
Townshend was not qualified to conduct building inspections, (2) some of the listed
violations were unclear, (3) cosmetic appearance is not enough to mandate
demolition, and (4) the notice did not give her enough time to make repairs But none
of these arguments are relevant to the questions of whether the notices contained a
statement of particulars as required by the ordinance or were signed by the proper
person.
The Petitioner appeared at the hearing and testified about its efforts to comply
with the three conditions on the notice letter, demonstrating its awareness of both the
action against it and its opportunity to be heard by the Council. All the while, it did
not complain of defects in the notice it received. The Petitioner thus waived any
argument that the notice did not comply with the city ordinance.
III. T he Council Acted lrregularly by Failing to lssue Written F indings of Fact.
Analyzing the Council’s actions under the Dover Code of Ordinances, the
Council’s failure to enter written findings or issue a written order resulted in an
irregularity that mandates reversal
Chapter 22 of the Dover Code of Ordinances describes the process that the City
will follow in the event it deems a building dangerous The Code lays out categories
of defect that render a building dangerous, including: “[l]eaning interior walls,”
75 66
“[d]amaged walls, [l]oads on roofs,” “[f]ire damage,” lack of fitness for habitation,
77 66 77 66
“[l]ight, air, [and] sanitation,” “[t]ire escapes, [l]oose parts, [g]eneral welfare,”
35 66
“[c]ode violations, [d]rug sales, use, etc.,” “[u]noccupied buildings,” or
KZ Forever, LLC v. Dover City Council
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“[i]ncomplete buildings.”10
A building becomes dangerous enough to warrant demolition when it “is 50
percent damaged, decayed or deteriorated from its original value or structure.”ll
Likewise, a building may be demolished where repairs will be ineffective to bring it
up to code, or when it is “existing . . . in violation of the terms of this article or any
ordinance of the city.”12
At a hearing regarding the demolition of a building, the building inspector and
interested parties must be able to offer testimony.13 At the conclusion of the hearing,
the council must make written findings of fact “as to whether or not the building in
question is a dangerous building within the terms of section 22-381.”14
In addition to the written findings of fact, the council must “[i]ssue an order
based upon [the] findings of fact . . . commanding” the interested parties “as shown
in the land records of the recorder of deeds of the county, to . . . demolish any
building found to be a dangerous building within the terms of this article, setting the
time within which said building shall be . . . demolished . . . .”15
As for findings of fact, the motion voted upon by the Council was insufficient
to meet the standard imposed by the ordinance. The Council adopted the staff
10 City of Dover Code of Ordinances § 22-381.
11 rd. § 22-382(3).
12 Id.
11 Id. § 22-385(2).
1‘1 ld. § 22-385(3).
15 Id_ § 22-385(4).
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KZ Forever, LLC v. Dover City Council
C.A. NO. Kl6A-02-001 WLW
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recommendations in their entirety, summarily declaring the property dangerous and
ordering its demolition. But it needed to make specific factual findings after the
testimony was heard regarding what made the building dangerous And those factual
findings needed to be made in writing by action of the Council, not days afterward
by unilateral action of an individual city staff member. The Council did not craft or
vote on any factual findings, much less reduce them to writing. Absent such written
factual findings by the Council, this Court does not have a sufficient record from
which to review the Council’s final action.
As for the ordinance’s requirement that the Council issue a demolition order,
the Council appears to have followed the correct voting procedure to order the
demolition by a specified date. But the Council failed to reduce the order to writing.
A later-written letter by a staff member again does not suffice as an order of the
Council. The omission of a written order also mandates reversal.
CONCLUSION
The proceedings below were irregular because the Council failed to comply
with the ordinance requiring written findings of fact to support a written order. The
Council’s order of January ll, 2016 is thus REVERSED.
IT IS SO ORDERED.
/S/ William L. Witham Jr.
Resident Judge
WLW/dmh
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