SU-BE, LLC v. New Castle County Department of Land Use

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
SU-BE, LLC, )
)
Plaintiff/Appellant, )
v. )
) C.A. No. N22A-12-004 CEB
NEW CASTLE COUNTY )
DEPARTMENT OF LAND USE and )
NEW CASTLE COUNTY BOARD )
OF LICENSE, INSPECTION, AND )
REVIEW, )
)
Defendants/Appellees. )
Submitted: May 3, 2024
Decided: July 3, 2024
ORDER
Upon Consideration of the Appeal of the Rulings of the
New Castle County Board of License, Inspection, and Review,
AFFIRMED.
William E. Green, Jr., Esquire, and Theodore A. Kittila, Esquire, HALLORAN,
FARKAS + KITTILA, LLP, Wilmington, Delaware. Attorneys for Plaintiff/Appellant
SU-BE, LLC.
Adam Singer, Esquire, NEW CASTLE COUNTY LAW DEPARTMENT, New
Castle, Delaware. Attorney for Defendant/Appellees New Castle County Department
of Land Use.
Mary A. Jacobson, Esquire, NEW CASTLE COUNTY LAW DEPARTMENT, New
Castle, Delaware. Attorney for Defendant/Appellees New Castle County Board of
License, Inspection, and Review.
BUTLER, R.J.
BACKGROUND
This is the Court’s second trip through the saga of SU-BE, LLC (“Appellant”)
and its property located at 1010 Bohemia Mill Road in Middletown. In its last
iteration, the dispute concerned the “farmland exemption” of the state and county
codes and whether the entire 16-acre tract was exempt or whether a 5-acre portion
was excluded from the exemption because it was being used as a construction
equipment storage site. That dispute resulted in a Superior Court ruling that the 5-
acre portion of the larger tract was not appropriately designated as exempt farmland.1
At about the same time the County was investing the farmland exemption
issue, it inspected the construction equipment portion of the property and cited SU-
BE for both zoning code and Property Maintenance Code (“PMC”) violations.
These various code violations were adjudicated in a consolidated hearing
before a Hearing Officer at a Rule to Show Cause (“RTSC”) Hearing in July 2022.
After hearing the evidence, the RTSC Hearing Officer upheld the County’s violation
citations in all respects and ordered remedial action. 2
As noted, some of these violations are county zoning code violations and some
are county PMC violations. One of the issues presented in this appeal involves the
1
SU-BE, LLC v. New Castle County Dept. of Land Use, 2024 WL 3070003 (Del. Super. June 20,
2024).
2
R00017-22. A certified record of the administrative proceeding may be found in the Court’s
record at Docket No. 11. The record is stamped as “R00XXX.”
1
proper forum for administratively appealing these various issues, but for now suffice
it to say that Appellant appealed everything to the Licensing & Inspection Review
Board (“LIRB”), concededly the proper forum for appeals of PMC violations.
The LIRB rejected Appellant’s claims, much as the RTSC Hearing Officer
did, in a detailed written opinion.3 Appellant appealed to this Court, asserting that
the appropriate means of appellate review is by way of writ of certiorari. Typifying
the pitched battle fought by the parties to that point, the County moved to dismiss
the writ, arguing that Appellant could not seek certiorari in these circumstances.
Briefing was incomplete on that issue when attorney Richard Abbott withdrew as
counsel for Appellant and there followed a delay until new counsel appeared. New
counsel for Appellant was given the opportunity to adopt, rescind or modify the
briefing in place and new counsel chose to start over. The certiorari question appears
to have disappeared in the second round of briefing, and the parties have now
distilled their arguments into clearly articulated positions.
3
R00028-52.
2
STANDARD OF REVIEW
The Court is mindful that its scope of review here is quite limited. Indeed,
one of the reasons for the controversy over the propriety of certiorari review earlier
in the pleadings concerned the fact that certiorari does not permit the Court to engage
in a searching review of the record – a review Appellant felt it needed – to obtain
relief. Perhaps aware of the limited scope of review, each of Appellant’s arguments
is couched in terms of “legal error.” The County points out that the Supreme Court
has said that the lower tribunal must be affirmed unless it “proceeded illegally or
manifestly contrary to law” 4 although the County concedes that whether a given
action is only contrary to law or “manifestly” contrary to law is not well defined. 5
ANALYSIS
I. The LIRB Correctly Determined it did not have Jurisdiction to Hear the
Zoning Code Violations.
Appellant’s first argument concerns the jurisdiction of the LIRB. Recall that
all of Appellant’s citations – zoning code and PMC violations – were adjudicated in
a single hearing by a Hearing Officer at the RTSC hearing. Rather than appealing
the zoning code violations to the County Zoning Board of Adjustment and the PMC
code violations to the LIRB, Appellant appealed both sets of citations to the LIRB.
4
Christiana Town Center, LLC, v. New Castle County, 865 A.2d 521, 2004 WL 2921830, at *2
(Del. Dec. 16, 2004) (TABLE) (citing Wooley, Delaware Practice, Vol. 1, § 921)).
5
Def.’s Answering Br. at 10-11, Trans. ID 72769130 (Apr. 17, 2024).
3
The County protested that the LIRB does not have jurisdiction to hear appeals of the
zoning code citations. The LIRB heard argument and concluded it did not have
jurisdiction over zoning citations.
Appellant’s argument here primarily concerns what it believes is a tension
between state and county law. It correctly notes that state law generally prevails
over county or municipal law when the two are in conflict. 6
Appellant’s primary reliance is on 9 Del. C. §1315. Title 9 of the Delaware
Code concerns County governments. While the first “Part” of Title 9 deals with
issues common to all three counties, Parts II, III and IV deal with New Castle, Kent
and Sussex County respectively. Within Part II, there are chapters concerning
everything from the structure of county government to garbage disposal. More
relevant here, there are separate chapters dealing with zoning,7 building code,8 and
property maintenance. 9
Section 1315 is embedded within the 5 subchapters on New Castle County
Departments 10 and specifically the Department of Land Use. Various Boards are
authorized within the Department of Land Use: a Board of Building Standards, a
6
See generally State ex rel. Jennings v. City of Seaford, 278 A.3d 1149, 1153 (Del. Ch. 2022);
Walton v. Baldini, Inc., 1991 WL 35712, at *2 (Del. Super. Feb. 13, 1991).
7
9 Del. C. §§ 2601-2699.
8
Id. §§ 2501-2515.
9
Id. §§ 2901-2910.
10
Id. §§ 1301-1397.
4
Board of Assessment Review, a Board of License and Inspection Review, and a
Board of Adjustment.
It is probably important to note at this point that like many of the code
provisions in Title 9, the code “authorizes” counties to create an administrative board
and the County “may” do so. Thus, we might think of these code provisions as
enabling legislation for the counties who, should they choose to enact the authorized
board or agency, may do so, subject to any proscriptions of the enabling legislation.
So, while much is explicit, the Delaware Code is not an exhaustive catalog of the
procedures to be followed in specific cases.
Section 1315 authorizes the County to have a Board of License and Inspection
Review. That authorization says that such a Board “may be authorized” to provide
an appeal procedure for review of “the issuance, transfer, renewal, refusal,
suspension, revocation or cancellation of any County license, or by any notice, order
or other action as a result of any County inspection.”11
As to zoning disputes, 9 Del. C. §1313 authorizes a County Board of
Adjustment, which “shall be empowered to hear and decide . . . [a]ppeals in zoning
matters” where the allegation is that there was an error by “an administrative officer
or agency in the enforcement of any zoning ordinance, code, regulation or map.”12
11
Id. § 1315.
12
Id. § 1313(a)(1).
5
The County insists that the zoning code citations should be heard by the Board of
Adjustment and not the LIRB.
One supposes the LIRB could be the situs for zoning disputes, since the state
enabling legislation authorizes it to review “other action as a result of a County
inspection” 13 and presumably, many zoning citations arise from county inspections.
Likewise, the Board of Adjustment might be the situs for farmland assessments,
since that designation arises from the taxing administrator’s “code, regulation or
map.”14
But the LIRB’s enabling legislation refers to disputes over a county license.
The “other action” it is empowered to resolve is “other action” concerning a county
license. The Board of Adjustment is authorized to hear “zoning matters” that may
arise from any number of sources, including codes, regulations, or maps. The
enabling legislation says nothing about licenses.
The “well established principle of ejusdem generis instructs that, ‘where
general language follows an enumeration of persons or things, by words of a
particular and specific meaning, such general words are not to be construed in their
13
Id. § 1315.
14
Id. § 1313(a)(1).
6
widest extent, but are to be held as applying only to the persons or things of the same
general kind or class as those specifically enumerated.’”15
The Court has little difficulty concluding that the LIRB was not clearly in
error in ruling that it did not have jurisdiction over the zoning citations appeals. Not
only were these appeals outside its statutory enabling legislation, but zoning was
also a subject matter the LIRB freely acknowledged was outside its area of
expertise. 16
If Appellant’s argument to the contrary seems strained, it may be because
Appellant’s most cogent complaint is that the bifurcation of the appeals in this matter
forced Appellant to appeal to two different boards, a path Appellant feels was unfair.
Appellant argued before the LIRB that having two different boards hear the appeal
of violation notices concerning the same property “could lead to a nonsensical result
and invite chaos.”17 But whether the County chooses to consolidate appeals in one
board or another for the sake of consistency, brevity, or fairness, the Court is not in
a position to rule in favor of one policy over another. These are matters that take
this dispute well out of the realm of legal analysis and into the space reserved for
policy choices exercised by county government. Even if the statutory language
15
Delaware Bd. of Nursing v. Gillespie, 41 A.3d 423, 427-28 (Del. 2012) (quoting Aspen Advisors
LLC v. United Artists Theatre Co., 861 A.2d 1251, 1265 (Del. 2004)).
16
R00038.
17
R00036.
7
could be read to allow jurisdiction, that does not mean that it must be exercised when
there is another board more attuned to the issues. It is enough to resolve the issue
before the Court to say that the LIRB’s conclusion that it lacked jurisdiction over the
zoning appeals was not clearly erroneous.
II. The Construction Equipment Area was not Farmland. The County is
Permitted to regulate it under Relevant Delaware Law.
Appellant next argues that at the time the citations against the property were
issued, the entire 16-acre parcel was “farmland exempt” and the County has no legal
authority to regulate, much less issue a citation, to farmland exempt property. This
is a virtual rehash of arguments previously made, and rejected, in New Castle County
v. Augusiewicz,18 a case involving essentially the same parties, and the same land, in
2008.
Augusiewicz was apparently the County’s first attempt to regulate the
construction area in question here. After an inspection on November 1, 2006, the
County wrote to the owner’s attorney and demanded the property be brought into
compliance with the County code within 30 days. When it was not, the County cited
the landowner with 19 county code violations. A trial was pending in the J.P. Court
when Augusiewicz appeared and argued that the County could not enforce the
citations because the land in question was farmland and exempt from regulation by
18
2008 WL 2751305 (Del. Com. Pl. July 11, 2008), appeal dismissed, 2009 WL 2852554 (Del.
Super. Aug. 31, 2009).
8
the County. This argument was correct at the time because the entire property was
still designated farmland exempt even though part of it was dedicated to a different
use. The J.P. Court agreed and dismissed the citations.
On the County’s appeal to the Court of Common Pleas, the Court of Common
Pleas reversed the J.P. Court’s dismissal. The Court of Common Pleas accepted the
County’s argument that when part of a farmland exempt property is not being used
for farming, it is subject to regulation like all other property. Note, however, that the
County had never sought reassessment of the farm exemption via tax assessment or
any other means. Rather, the County’s position was that the court should make that
assessment in the first instance. The court said:
[W]ithout a factual inquiry, it is impossible to determine whether
Appellee's use of the Property was non-agricultural in nature. Once
land is assessed as farmland, the better procedure would be for the
County to reassess before seeking to regulate. However, it is unclear
whether this is required, because such would permit unauthorized use
without consequence. As such, the County must be allowed to put forth
facts which show the land is subject to regulation.19
Clearly, the County took the court’s words to heart. This time around, the
County first assessed the non-farm related portion of the land and announced its
intention to tax it before citing its allegedly improper uses. The factual question of
19
Id. at *4. (emphasis added).
9
whether the 5 acres is farmland exempt was finally determined by the Hearing
Officer at the RTSC hearing and affirmed by the LIRB.
The only argument here is that the citations came before the farm exemption
had been lost as to the 5 acres being used for construction storage. The argument
goes that since the land was still exempt when it was cited, it was an attempt to
regulate exempt farmland and therefore illegal under the Delaware Constitution and
9 Del. C. §2601(b)(1) (prohibiting county regulation of farm exempt property).
Ignoring for a moment the long history of Appellant’s use of the 5-acre parcel
for non-farm uses, the citations in question here were issued on March 21, 2022, and
cited 5 code violations.20 On May 24, 2022, the County Division of Assessment
formally announced that is was removing 5.45 acres from the farmland exemption.21
On June 30, 2023, the County cited the property again for the 5 code violations
identified in the March Violation Notice, plus 2 more.22 Because the County’s “tax
year” begins on July 1, the first date on which the 5 acres was taxed was July 1.
There followed a Rule to Show Cause Hearing, and disputations before the LIRB.
So, was this an attempt to regulate/cite land that was “farmland exempt?”
When did it lose its farmland exemption? The statutes are unclear, and according to
20
R00001-02.
21
Pl.’s Opening Br., App. at A-123.
22
R00005-07.
10
the Augusiewicz opinion, a fact finding, and “official” pronouncement is not
necessary, but desirable.
The LIRB discussed this issue in some detail, concluding that the relevant date
was May 24, 2022 when the tax assessor announced the decision of the Division of
Assessment.23 That decision was not clearly erroneous. Because the 5.45 acres was
no longer farmland exempt as of May 24, 2022, the County could regulate it and
could cite its owner in June, 2022 for violating the County property maintenance and
zoning codes.
III. The Citations Were Not Time-Barred.
Next, Appellant points to the 2008 litigation as evidence that the County has
known for many years that the 5 acres in question has been used as a construction
equipment storage site. Appellant then says the 3-year statute of limitations and/or
the equitable doctrine of laches bars the County’s actions against it. The Court is
unconvinced.
If Appellant brought the property into compliance with all applicable zoning
and use requirements of the County Code, and then over 3 years later the County
cited it, Appellant could invoke the statute of limitations. Statutes of limitation are
intended to “prevent[] surprises through the revival of claims that have been allowed
23
R00060-73.
11
to slumber until evidence has been lost[,] memories faded and witnesses
disappeared.”24 But when the property remains out of compliance, the statute of
limitations cannot begin, because the “wrong” continues until it stops.
The illogic of a statute of limitations to enforcement of zoning violations is
particularly stark. Appellant argues for a rule that would allow violations of the
zoning laws to persist forever, so long as the owner got away with the zoning
violation for 3 years. There may well be areas of land use in which application of a
statute of limitations makes sense. Applying one to the government’s ability to
enforce the zoning laws to a landowner whose violation of the zoning code is
ongoing is not one of them.
The Appellant was cited for having an oversized vehicle on the property in
June 2022. It does not matter how long it had been sitting there, it matters only that
it was there in June 2022. Appellant was also cited for construction equipment
parked in an area zoned residential in June 2022. Again, when or how it got there is
irrelevant to a statute of limitations analysis.
Appellant argues that even if the statute of limitations does not bar these
citations, the equitable doctrine of laches does.25
24
Dow Chemical Corp. v. Blanco, 67 A.3d 392, 395 (Del. 2013) (quoting Am. Pipe & Constr. Co.
v. Utah, 414 U.S. 538, 554 (1974)).
25
Both sides debate whether the County is guilty of laches, but neither discuss whether Superior
Court has jurisdiction over the equitable defense of laches at all. Appellant cites the case of Pike
12
Appellant’s argument presumes that the County was aware, in 2008, that
Appellant (or its predecessor) was using the land as a construction equipment storage
site and failed to take action, prejudicing Appellant. The support for this position is
found in the record of the 2008 litigation in the J.P. Court.
Some history of the 2008 litigation was recited above. It appears that after the
case was remanded from the Court of Common Pleas back to the J.P. Court, the
parties settled the matter, and the County dropped the citations. Exactly what
happened and why is not a matter of public record, but the LIRB Opinion recited
testimony of a County Code Enforcement Officer familiar with the 2008 case who
said that on inspection of the property in January, 2011, “the [p]roperty had been
brought into compliance and there was no longer evidence of construction
equipment or construction vehicles being stored on the [p]roperty.” 26
It is true that Mr. Augusiewicz testified that from 2006 to January, 2011,
“nothing changed with the use of the [p]roperty.”27 Whether this seeming conflict
in the testimony was resolved against the Appellant, or whether Appellant simply
Creek Recreational Services, LLC v. New Castle County, a case that squarely held that the Superior
Court had no jurisdiction to entertain a defense of laches. 238 A.3d 208 (Del. Super. 2020). Any
such review is limited to whether the administrative agency whose actions are under review
appropriately applied the doctrine when it considered the claim. See generally State v. Moffitt,
2000 WL 973120, at *3 (Del. Super. May 3, 2000); McGlinchey v. Phoenix Steel Corp., 293 A.2d
585, 588 (Del. Super. 1972).
26
R000046.
27
R000041.
13
did not raise laches as a defense at the LIRB, the result is the same: the LIRB did
not find laches applicable. And while Appellant believes it should have, it cites
nowhere in the record where the issue was raised. Issues not raised below cannot be
raised on appeal. Appellant has shown the Court nothing in the record before the
LIRB that suggests that the Board committed a manifest error of law requiring
reversal or remand of its findings.
IV. Appellant Failed to Introduce a Prima Facie Case of Selective
Enforcement.
Appellant claims that it believes many properties in New Castle County that
receive a farmland exemption are being used improperly for other purposes. It
claims it has been singled out selectively for enforcement of the county code. At the
LIRB hearing, Mr. Augusiewicz testified that using county software, called Parcel
View and aerial photographs, he could identify 15 other properties in the County that
had construction equipment or other miscellaneous non-farm uses and none, to his
knowledge were prosecuted.
Whether a “selective enforcement” claim is even cognizable in an
administrative proceeding is dubious. Certainly, Appellant cites no precedent
upholding such a finding in an administrative proceeding. Rather, selective
enforcement claims lie in the realm of criminal prosecutions that are “deliberately
based upon an unjustifiable standard such as race, religion or other arbitrary
14
classification.”28 It appears that this was the tack chosen by the LIRB, which ruled
it had no jurisdiction to entertain a selective enforcement claim. This is consistent
with case law holding that administrative boards have no jurisdiction over
constitutional claims.29
But even if the Board had decided to entertain the claim, Appellant’s evidence
was only that the County was persistent in pursuing its claims against him; not that
he was singled out on the basis of race, or gender, or other improper classification.
The executive authority has broad discretion in its enforcement powers and the
standard for proving discriminatory intent “is a demanding one.” 30 About the only
argument Appellant makes is that the County is “after” him because of his
“successful” defense of similar citations in 2008. Being a “repeat offender” of the
zoning and property maintenance code may explain the County’s insistence on
pressing these claims, but it does not put Appellant in a “suspect class” to meet the
threshold of a claim of selective prosecution.
Moreover, the County produced an inspector who works in code enforcement.
He testified that he researched the 15 properties cited by Appellant at the RTSC
28
Oyler v. Boles, 368 U.S. 448, 456 (1962).
29
See e.g. Tatten Partners, L.P. v. New Castle County Bd. Of Assessment Review, 642 A.2d 1251,
1261-62 (Del. Super. 1993), aff’d, 647 A.2d 382 (Del. 1994).
30
U.S. v. Armstrong, 517 U.S. 456, 463 (1996).
15
Hearing and found that either no violation existed, a violation notice was issued, or
investigation into the matter was ongoing. 31
Thus, had the LIRB ruled on the merits of the selective enforcement claim
there is no doubt but that it would have (or at least should have) denied the claim.
So, whether it declined jurisdiction on constitutional grounds or simply denied the
claim, the issue is irrelevant to the outcome here. The Board did not act manifestly
in derogation of the law.
V. The RTSC Hearing Officer had Jurisdiction Over the Citations.
Appellant’s final argument is that if the LIRB did not have jurisdiction over
the zoning citations, then the RTSC Hearing Officer didn’t either. Exactly what
Appellant wants the Court to do with that argument is not articulated in the Opening
Brief, although by the Reply Brief it asserts how perhaps the Court should decide
the zoning appeals, since the LIRB declined jurisdiction. The Court demurs.
“Delaware law strongly favors exhaustion of administrative remedies before
seeking judicial intervention.”32 By Code, an Administrative Hearing Officer with
the Department of Land Use has the responsibility to make initial determinations in
cases involving the Building, Property Maintenance, Drainage, Rental and Zoning
31
R00050-51.
32
Salem Church (Delaware) Associates v. New Castle County, 2006 WL 2873745, at *4 (Del. Ch.
Oct. 6, 2006) (relying on Levinson v. Delaware Compensation Rating Bureau, Inc., 616 A.2d 1182,
1189-90 (Del. 1992)).
16
Codes.33 There is no question here, and there was none below, that the RTSC
Hearing Officer had jurisdiction to hear both the zoning citations and the PMC
violations. Likewise, as reflected in the Court’s findings earlier, appeals from the
RTSC hearing Officer must be to the “appropriate board.” The County’s website
directs users to the LIRB or the Board of Adjustment, depending on the citation at
issue. 34
For whatever reason, Appellant did not appeal the zoning citations to the
zoning Board of Adjustment. Why not is never explained, except for the argument
that it is cumbersome, which may be a fact of life, but is not a legal argument. The
Court is not going to undo Appellant’s choices. Appellant was represented by able
counsel who elected to file but one appeal, to the LIRB. It cannot now, some 2 years
after the fact, seek review of what it waived by not appealing to the Board of
Adjustment when the time was right.
CONCLUSION
For all of the foregoing reasons, the rulings of the LIRB are AFFIRMED.
IT IS SO ORDERED.
/s/ Charles E. Butler
Charles E. Butler, Resident Judge
33
Administrative Hearings, Office of Administrative (Rule to Show Cause) Hearings,
https://www.newcastlede.gov/1872/Administrative-Hearings.
34
Id.17