Henry Black v. New Castle County Board of License, et al.

This case arose when Henry and Mary Lou Black and Blackball Properties, LLC

(collectively, the "Blacks”), challenged the Department of Land Use"s decision to grant a

change of use certificate to neighboring property owners, Gary Staffieri and Adria

Charles-Staffieri (the "Staffieris”), to the New Castle County Board of License,

Inspection and Review (the "Board”). The Staffieris had rented out the property for use

as office space for approximately ten years before deciding to open an automobile

detailing shop on the premises, which required them to obtain a change of use certificate

from the Department.1

When the Staffieris first received their certificate from the

Department, the Blacks successfully appealed and the Board reversed the Department"s

decision. But the Staffieris reapplied, the Department once again issued their certificate,

and this time, the Board affirmed the Department"s decision. The Blacks were unable to

appeal the Board"s decision to a reviewing court because the General Assembly has

chosen not to provide that right to parties aggrieved by a Board decision. The Blacks

therefore sought review through a petition for a writ of certiorari filed in the Superior

Court. After granting the writ to bring up the record, the Superior Court affirmed the

Board.

We review the Superior Court"s decision to affirm the Board"s ruling for legal

error.2

Under the narrow scope of review applied by the Superior Court for a writ of



1

See Opening Br., Black v. Staffieri, No. 462, 2013 (Del. Oct. 25, 2013).

2 Christiana Town Center, LLC v. New Castle County, 2004 WL 2921830, at *1 (Del. Dec.16,

2004) ("We find...the [Superior Court] committed no legal error in denying certiorari review.

We therefore affirm.”).

2

certiorari, we conclude that the Superior Court correctly held that the Board"s decision

was not manifestly contrary to law, nor was it the result of procedural irregularity.3

As

we have long held, a petition for a writ of certiorari is not a substitute for a direct appeal,

which must be authorized by the General Assembly. The Superior Court was therefore

correct to adhere to the disciplined and more constrained review involved in considering

a petition for certiorari. We therefore affirm.4

II. BACKGROUND

The long-standing nature of this dispute makes reciting the key facts succinctly

difficult. On appeal, the Blacks base their argument on what they say is the Board"s

failure to consider one of a number of legal and factual arguments they presented during

the course of a drawn-out and contentious administrative proceeding. The Blacks and

their supporters made many objections before and during the course of the proceeding.

But their primary argument was that the Staffieris did not have sufficient parking for their



3

See, e.g., Christiana Town Ctr., LLC, 2004 WL 2921830, at *2 (Del. Dec. 16, 2004) (quoting

Woolley, DELAWARE PRACTICE, VOLUME I, § 939) ("Review on certiorari is not the same as

review on appeal because review on certiorari is on the record and the reviewing court may not

weigh evidence or review the lower tribunal"s factual findings. The reviewing court does not

consider the case on its merits; rather, it considers the record to determine whether the lower

tribunal exceeded its jurisdiction, committed errors of law, or proceeded irregularly. . . . A

decision will be reversed for an error of law committed by the lower tribunal when the record

affirmatively shows that the lower tribunal has „proceeded illegally or manifestly contrary to

law."”); Matter of Butler, 609 A.2d 1080, 1081 (Del. 1992) ("[E]ven should review of the claims

raised by the petition be appropriate, this Court"s scope of review will be strictly limited. Thus,

review is generally confined to jurisdictional matters, error of law or irregularity of proceedings

which appear on the face of the record.”) (internal quotation marks omitted).

4

The Staffieris filed a brief, pro se, in this appeal, which the Blacks moved to strike. The

Blacks" motion to strike the Staffieris" answering brief is denied as moot.

3

proposed use of the property under the Uniform Development Code (the "UDC”).

5

Indeed, at the Board"s first hearing involving these parties, the Blacks succeeded in

reversing the Department"s decision to grant the Staffieris" change of use certificate,

because the Board determined that the Staffieris only had access to one parking space.6



The Blacks even took concrete action to ensure that the Staffieris would be unable to

access additional parking. To wit, the Blacks erected a concrete barrier to deny the

Staffieris access to 14 parking spaces on adjacent property (the "Shared Parking Area”).

Sometime coincident with the Blacks" initial appeal, the Staffieris went to the

Court of Chancery to obtain a ruling about their right to use the shared parking spots.

Even though the Court of Chancery issued its decision in that case while the Blacks"

appeal before the Board was pending, the Board upheld the Blacks" objection because it

found that it could only take into account facts in the record as of the time of the

Staffieris" application. The Staffieris then filed another application and put squarely

before the Department, and then the Board, the results of the Court of Chancery

litigation, which were favorable to them and not the Blacks. In the Court of Chancery,

the Staffieris obtained an injunction to remove the concrete barrier, secured a declaration

that they had an equal right to use the 14 shared spots in the Shared Parking Area under a

1946 deed, and were awarded attorneys" fees for the Blacks" bad faith conduct.7

After

the Board reversed the Department"s decision to grant their certificate, the Staffieris



5

See Black v. New Castle Cnty. Bd. of License, 2014 WL 4955183, at *4 (Del. Super. Sept. 26,

2014).

6 App. to Opening Br. at 268 (Board decision, May 9, 2013).

7

See Staffieri v. Black, No. 7439-VCL, Post-Trial Order (Del. Ch. Oct. 24, 2012), aff'd, Black v.

Staffieri, 2014 WL 814122 (Del. Feb. 27, 2014).

4

reapplied and attached the Court of Chancery"s post-trial order. The Department again

approved their application.

Despite the Court of Chancery"s unequivocal determination that the Staffieris had

equal rights to use the 14 parking spots in the Shared Parking Area,8

the Blacks continued

to argue that the Staffieris had no such rights while an appeal of the Court of Chancery

decision was pending. They also argued that even if the Court of Chancery decision was

correct, the Staffieris were still short the parking required by the UDC.

Only after another hearing, with the Court of Chancery"s judgment in the record,

did the Board affirm the Department"s decision to grant the Staffieris" certificate. The

Board concluded that it was persuaded by the Court of Chancery"s declaration of the

Staffieris" rights:

The Board finds that the October 2012 decision by the Court of Chancery

provides the Property with access to the appropriate number of parking

spaces required under the UDC. The Board will not substitute its own

interpretation of the 1946 Deed for that of the Court of Chancery in

determining the scope of the Staffieris" easement. Moreover, the Board

specifically declines to contravene any portion of the Court"s October 2012

Order.9

III. ANALYSIS

The Delaware General Assembly has not provided for any right of appellate

review from a decision by the Board under the Administrative Procedures Act10 or any

other statute. The Blacks therefore proceeded in the Superior Court under a writ of

certiorari. This Court has long made clear that a writ of certiorari is not a substitute for



8

See id. at 1-2.

9 App. to Opening Br. at 235 (Board decision, July 23, 2013).

10 See 29 Del. C. § 10101, et seq.

5

a direct appeal provided under a statute like the APA: a writ of certiorari is "not a

substitute for, or the functional equivalent of, an appeal.”11

The standard for reviewing a

petition for a writ of certiorari is "strictly limited”12: the reviewing court "may not weigh

evidence or review the lower tribunal"s factual findings.”13

Likewise, the reviewing court

may not "consider the case on its merits.”14

As this Court has observed, "[u]nder

principles of law well established in this State, certiorari involves a review of only such

errors as appear on the face of the record being considered.”15



By its nature, the extent of the record appropriate for review on a writ of certiorari

is limited: "A certiorari proceeding differs fundamentally from an appeal in that the latter

brings the case up on its merits while the . . . (former) brings up the record only so that

the reviewing court can merely look at the regularity of the proceedings.”16

The proper

record for review is "limited to the complaint initiating the proceeding, the answer or

response (if required), and the docket entries.”17

Any "evidence received in the inferior

court is not part of the record to be reviewed.”18

This Court has thus stated that the



11 Maddrey v. Justice of Peace Court 13, 956 A.2d 1204, 1213 (Del. 2008) (citing DuPont v.

Family Ct. for New Castle Cnty., 153 A.2d 189, 194 (Del. 1959)).

12 Matter of Butler, 609 A.2d 1080, 1081 (Del. 1992).

13 Reise v. Bd. of Bldg. Appeals of City of Newark, 746 A.2d 271, 274 (Del. 2000); see also 395

Assocs. v. New Castle Cnty., 2006 WL 2021623, at *8 (Del. Super. July 19, 2006) ("The Court

„may not review the substantive decisions" nor may it „correct a mistake of facts or an erroneous

conclusion from the facts, even though the [tribunal"s] interpretation of the facts or law may have

been erroneous."”) (quoting El Di, Inc. v. J.P. Ct. No. 17, 1998 WL 109823, at *4 (Del. Super.

Feb. 20, 1998)).

14 Christiana Town Ctr., LLC v. New Castle Cnty., 2004 WL 2921830, at *2 (Del. 2004) (citing

Reise, 746 A.2d at 274)).

15 Maddrey, 956 A.2d at 1215.

16 Shoemaker v. State, 375 A.2d 431, 437 (Del. 1977) (internal quotation marks omitted).

17 Maddrey v. Justice of Peace Court 13, 956 A.2d 1204, 1216 (Del. 2008).

18 DuPont v. Family Ct. for New Castle Cnty., 153 A.2d 189, 194 (Del. 1959)).

6

transcript of the proceedings is not a proper part of the record, at least in the context of

certiorari review of a Justice of the Peace Court proceeding.19

The reviewing court is

then limited to determining based on that limited record whether the lower tribunal: "(i)

exceeded its jurisdiction;” (ii) "proceeded illegally or manifestly contrary to law”; or (iii)

"proceeded irregularly.”20

Reversible procedural irregularity includes a tribunal"s failure

to create an "adequate record” for judicial review.21



The Superior Court in this case properly recognized that a writ of certiorari is a

very limited tool, and determined that the Blacks had not met their burden to show that

the Board made any legal errors manifest on the face of the record or proceeded

irregularly.

22

In so ruling, the Superior Court refused to treat the Blacks" certiorari

petition as a license to review the entire administrative record to determine if the Board

made an error of law.23





19 Maddrey, 956 A.2d at 1216 ("[T]he official record delivered by the Justice of the Peace Court

to the Superior Court in response to the issuance of a common law writ of certiorari does not

properly include a transcript of the evidentiary proceedings.”). Even though the record does not

include a transcript of the evidentiary proceedings, the reviewing court can and should consider

the hearing transcript to the extent it contains the decision of the Board. See, e.g., Matter of

Butler, 609 A.2d 1080, 1082 (Del. 1992) (holding that only the order of the court holding Butler

in contempt, not the full transcripts of the proceedings, were properly part of the record for

certiorari review).

20 Christiana Town Ctr., LLC v. New Castle Cnty., 2004 WL 2921830, at *2 (Del. Dec. 16, 2004)

(citing 1 Victor B. Woolley, WOOLLEY ON DELAWARE PRACTICE, § 896; 939 (1906)).

21 Id. ("A decision will be reversed for irregularities of proceedings if the lower tribunal failed to

create an adequate record to review.”).

22 Black v. New Castle Cnty. Bd. of License, 2014 WL 4955183, at *3 (Del. Super. Sept. 26,

2014).

23 See id., at *8 (quoting 395 Assocs., LLC v. New Castle Cnty., 2006 WL 2021623, at *8 (Del.

Super. July 19, 2006)) ("Petitioners contend that the calculation of the number of available

parking spaces mandated by the UDC is incorrect. However, even if Petitioners are correct,

upon certiorari review, the Court cannot correct miscalculations.”).

7

In their petition for a writ of certiorari, the Blacks assert that the Staffieris have no

right to use the 14 shared spots in the Shared Parking Area. This contention, a subsidiary

to their original primary contention before the Board, rests on an argument that even if

the Staffieris had legal right to the 14 spaces in the Shared Parking Area, plus one space

on their own property, these spaces would still be insufficient to support the Staffieris"

proposed use. The Blacks contend that there are not enough spaces available in the

Shared Parking Area to support their own existing parking needs, although their

deficiency has been considered grandfathered. Because the Staffieris seek to use their

property in a new way, the Blacks argue the shared spots cannot count toward their

requirement, regardless of whether the Staffieris have an equal legal right to access them,

which the Blacks took efforts to impede.

It may be that this argument, upon consideration on a direct appeal, would be

found to have merit. But this is not a direct appeal. The Blacks seek a writ of certiorari

because the General Assembly has decided that no right of direct appeal should exist

from the Board under the APA or a similar statute. In cases like these, it is always

tempting for a court, including our own, to stray from the disciplined contours governing

a petition for a writ.24

But to do so undermines the General Assembly"s authority to

determine which administrative agencies are subject to direct appeal and which are not.



24 The Blacks cite a case that has language that can be read as reflecting that temptation. In Reise

v. Board of Building Appeals of City of Newark, 746 A.2d 271 (Del. 2000), there is summative

language that suggests that typical issues of law can be reviewed on a petition for certiorari, but

that language must be read in the context of the entire case. The Court emphasized in its

decision that "[f]irst, and foremost, the petitions allege (and the record confirms) that the Board

failed to provide statements of the reasons for its decisions. It is settled law that a quasi-judicial

8

Historically, a petition for a writ of certiorari has not allowed a reviewing court to

consider the full record before the first tribunal or to conduct a plenary review of whether

the tribunal committed an error of law.25

Only if an error of law is manifest on the face of

the limited record is certiorari appropriate, because the writ exists to ensure that the

tribunal is proceeding regularly and attempting to do its job within its legal authority.26



Here, it is plain that the Board took the arguments before it seriously, held several

hearings, and received evidence from all sides.

Moreover, the dispute before the Board was contentious and factually complex, as

the briefs before us illustrate. A number of factual disputes exist between the parties,

even now, as to the number of parking spots available to the Staffieris, the Blacks, and

other neighboring property owners. These factors further caution against reversing the

Board"s written decision, which appears to have been based on a careful review of the

long and complicated background of this case. The Blacks insist that the decision by the

Board can only be rationalized as an error of law. But the only way for us to reach that

conclusion would be to delve deeply into the record, which would disregard the



tribunal must state the basis for its decision, in order to allow judicial review.” Id. at 274. The

Court ultimately granted certiorari because the Board had failed to make any record of its

proceedings or give any explanation of its decision. By contrast, in this case, the Board both

held extensive hearings on the record and issued a formal written decision. Nonetheless, to the

extent that aspects of Reise or other cases can be read as inconsistent with the constrained view

of certiorari review we take today, those cases are overruled only to that extent.

25 See, e.g., Shoemaker v. State, 375 A.2d 431, 437 (Del. 1977) ("A certiorari proceeding differs

fundamentally from an appeal in that the latter brings the case up on its merits while the . . .

(former) brings up the record only so that the reviewing court can merely look at the regularity of

the proceedings.”) (internal quotation marks omitted).

26 See Dover Historical Soc. v. City of Dover Planning Comm'n, 838 A.2d 1103, 1106 (Del.

2003) ("The purpose of certiorari is to correct errors of law, to review proceedings not

conducted according to law, and to restrain an excess of jurisdiction.”) (internal quotation marks

omitted).

9

appropriate standard of certiorari review and treat this as a direct appeal. Administrative

agencies are, of course, expected to give reasons for their decisions, as the Board did

here, but they are not to be faulted for failing to write judicial-style opinions.

After the Blacks" primary argument against the Staffieris" application was

eliminated by their decisive and expensive loss in the Court of Chancery, the Blacks

reverted to other arguments, including the one that they now highlight to us. Given that

the Court of Chancery"s ruling found that the Staffieris had equal legal right to 14 spots

with their neighbors, plus at least one spot on their own property, we find it impossible to

find any manifest error on the face of the record in the Board"s decision that the Staffieris

had access to at least four parking spaces. The UDC vests the Department with

considerable discretion, including whether to waive certain requirements when

appropriate.27

The Board on review was faced with a situation where the applicant was

required to expend substantial resources and time to prove that it had as much right to use

the Shared Parking Area as its neighbors, and had to obtain an injunction to remove

concrete barriers erected by the Blacks in what the Court of Chancery determined was

bad faith pre-litigation conduct.

28

The Board made clear that it was unwilling to ignore

the property rights of the Staffieris declared by the Court of Chancery, after appearing to

carefully consider the facts about the effect of the proposed use on the community in

evaluating whether the Staffieris" application should be granted. As the Superior Court



27 See New Castle County Code, § 40.22.610(B) ("The Department may, upon request in writing,

waive or reduce any of the requirements listed in this Division where the standard is determined

to not be applicable. . . .”).

28 See Staffieri v. Black, No. 7439-VCL, Post-Trial Order at 11 (Del. Ch. Oct. 24, 2012), aff'd,

Black v. Staffieri, 2014 WL 814122 (Del. Feb. 27, 2014).

10

pointed out, it is apparent that the Board was aware of the relevant UDC provisions and

focused on the complicated facts of the case.29



Like the Superior Court, we do not perceive any manifest error of law on the face

of the record. In fact, the Blacks" argument that an error of law occurred seeks to send us

off on the kind of deep, Cousteau-like exploration of a complicated administrative record

that is appropriate only on a direct appeal, not an application for a writ of certiorari. In

other words, the Blacks cannot point to any manifest error of law that emerges on the

surface of the record, which is what is required to obtain a writ of certiorari.

30

Like the

Superior Court, we also decline to speculate that the Board"s decision turned on an error

of law rather than a factual disagreement with the Blacks, or a determination that the

equities of the situation made it unfair to literally apply the UDC, when the Staffieris had

shown that they had as much legal right to use the 14 parking spaces in the Shared

Parking Area as those seeking to deny their application.

We therefore affirm the Superior Court"s judgment affirming the Board"s decision.



29 See Black v. New Castle Cnty. Bd. of License, 2014 WL 4955183, at *6-7 (Del. Super. Sept.

26, 2014).

30 See, e.g., Maddrey v. Justice of Peace Court 13, 956 A.2d 1204, 1215 (Del. 2008); Dover

Historical Soc. v. City of Dover Planning Comm'n, 838 A.2d 1103, 1106 (Del. 2003).

Affirmed