Covey v. County Board of Adjustment of Sussex County C.A. No. 01A Date Submitted: February 28, 2002

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1 May 7, 2002 Victor L. Covey Redcoat Lane Phoenix, MD RE: Richard E. Berl, Jr., Esquire Smith, O Donnell, Procino & Berl, LLP 406 South Bedford Street P.O. Box 588 Georgetown, DE Covey v. County Board of Adjustment of Sussex County C.A. No. 01A Date Submitted: February 28, 2002 Dear Gentlemen: This is the Court s decision on Victor Covey s ( Covey ) appeal from a Sussex County Board of Adjustment ( Board ) decision approving several variance requests made by B/Z Builders, LLC ( B/Z ). FACTS The Board held a hearing on July 9, 2001 to consider B/Z s application for several variance requests for property that B/Z intended to purchase in Sussex County, Delaware. B/Z planned to replace a single-family dwelling on the property with a duplex. The property is located at the intersection of Bunting and North Carolina Avenues, near the town of Fenwick, Delaware, and is under the zoning jurisdiction of Sussex County. At the hearing, B/Z requested three variances - a

2 two-foot variance from the thirty-foot front-yard setback requirement, a five-foot variance from the fifteen foot side-yard setback requirement, and a 2260 square-foot variance from the square footage requirements for a duplex. After B/Z presented its requests, Covey addressed the Board. Covey is the owner of Unit 19 in Admiral s Bridge, a condominium complex located west of the subject property. He testified that the variances would negatively impact his ocean view and crowd the beach access easement running between the two properties. The Board voted on and approved the variance requests at the hearing. Covey filed an appeal of the Board s decision on August 8, He named only the Sussex County Board of Adjustment as appellee. He failed to name B/Z as an appellee. The Board s Findings of Fact and Decision were filed on September 10, The Board moves to dismiss the appeal on two jurisdictional grounds. First, the appeal was prematurely filed. Second, Covey failed to name B/Z, an indispensable party, as a party to the appeal. DISCUSSION A. The power of an appellate court to exercise jurisdiction over a controversy rests upon the perfecting of an appeal within the time period fixed by statute. Perfection is achieved by filing a notice of appeal with the court in the statutorily proscribed manner. Thus, failure to perfect an appeal within the applicable time period prevents an appellate court from exercising jurisdiction. Draper King Cole v. Malave, 743 A.2d 672, 673 (Del. 1999). Unless the failure to perfect is attributable to the negligence of court-related personnel, not even excusable neglect on the part of a litigant will permit the appellate court to exercise jurisdiction. PNC Bank, Delaware v. Hudson, 2

3 687 A.2d 915, 916 (Del. 1997). The procedure for Superior Court review of a Board of Adjustment decision is found in 9 Del. C. 6918, which provides that an appeal shall be presented to the Court within 30 days after the filing of the decision in the office of the Board. The Delaware Supreme Court has held that the language contemplates the Board s written decision, not the oral vote. Sowers v. Sowers, 538 A.2d 1113 (Del. 1988). Appellate jurisdiction has been denied repeatedly in cases where the appellant filed his notice of appeal prior to the Board s filing of its written decision. See McDonald s Corp. v. Zoning Board of Adjustment for the City of Wilmington, Del. Super, C.A. No. 01A , Goldstein, J. (Jan 10, 2002) (ORDER); Draper King Cole v. Malave, 743 A.2d 672 (Del. 2000); Gunzl v. Spayd, 734 A.2d 158, 158 (Del. 1999); But see Cheswold Aggregates, L.L.C. v. Board of Adjustment of the Town of Cheswold, Del. Super, C.A. No. 99A , Ridgely, P.J. (Mar. 17, 2000) (jurisdiction conferred where appellant s motion to strike, filed within thirty days of the Board s written decision, reflected appellant s intention to challenge the Board s decision). In McDonald s, this Court was confronted with facts similar to the instant case. 1 The appellant sought to appeal a decision by the Zoning Board of Adjustment for the City of Wilmington. The Board hearing was held on April 25, 2001, and the written decision was issued on July 25, The appellant filed a Petition for a Writ of Certiorari with this Court on May 25, 2001, a month before the Board issued its written decision. After finding that the statutory provision applies to written decisions, this Court dismissed the action for lack of jurisdiction. 1 Although the statute at issue in McDonald s was 22 Del. C. 328, it is identical to 9 Del. C in all pertinent aspects. 3

4 In the instant case, the applicable starting date for the statutory time period was the day the Board filed its Findings of Fact, September 10, Like the appellant in McDonald s, Covey prematurely filed his notice of appeal on August 17, 2001, preceding the Board s filing of its written decision by nearly a month. Therefore, Covey s appeal was not filed within thirty days after the Board s final decision and, consequently, it was not properly perfected. Covey s premature filing created a jurisdictional defect that is not cured by the Board s subsequent filing of its written decision on September 10, See McDonald s, Del. Super., C.A. No. 01A , Goldstein, J. (Jan 10, 2002); Gunzl at 158 (Del. 1999). The only remedy would have been to refile a notice of appeal within thirty days of the Board s final order. Covey has not done so and, unfortunately, the statutory time period for filing the notice of appeal has expired. B. The Board also argues that this Court should dismiss Covey s petition because it failed to name B/Z as a party. It is well settled that all parties to an appeal who would be directly affected by an appellate ruling should be made parties to the review proceeding. State Personnel Comm n v. Howard, 420 A.2d 135, 137 (Del. 1980). The rule is a fundamental question of jurisdiction, which cannot be waived by the parties or disregarded by the appellate court, and the latter has no power to hear and determine a case unless all the parties directly affected by the judgment... are brought before it. Sussex Medical Investors, L.P. v. Delaware Health Resources Board, Del. Super., No. 96A , Cooch, J. (April 8, 1997). Superior Court Civil Rule 19 provides that parties needed for just adjudication shall be joined as parties to the proceedings. Although technically a trial rule, Rule 19 has been extended to 4

5 appeals to this Court. See Liborio II v. Artesian Water Co., 621 A.2d 800 (Del. Super. 1992) (holding that in an appeal to Superior Court from a decision of an administrative agency involved in regulating an industry, that agency is a necessary party pursuant to Superior Court Civil Rule 19(a)); Super Ct. Civ. R. 1 ( [t]hese [r]ules shall govern the procedure in the Superior Court.. ). When confronted with an absent party, Rule 19(b) provides that the Court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person being thus regarded as indispensable. Super Ct. Civ. R. 19(b). Thus, the dispositive issue in the instant appeal is whether B/Z is an indispensable party. The Delaware Supreme Court was recently confronted with a similar factual scenario in Hackett v. Board of Adj. of the City of Rehoboth Beach, Del. Supr., No. 267, 2001 (March 21, 2002). The appellant in that case failed to name the owner of the property as a party to the proceedings. The Court held that a property owner whose interests are impacted by a ruling of a board of adjustment is an affected party and, as such, is indispensable to the appellate proceedings. Id. The Court further noted that a board of adjustment is a nominal party to the appeal that has no interest in the outcome of judicial review. Id. The Court affirmed the Superior Court s dismissal of the appeal. Covey s failure to name B/Z as a party to the appeal warrants a dismissal of his petition. B/Z, as the contract purchaser of the subject property, has a significant interest in the outcome of the appeal. It requested the disputed variances and it is relying on the variances in its plans for the property. If the Board s decision were reversed, B/Z s interests would be severely affected by this Court s action. B/Z s absence from this appeal would impair or impede its ability to protect its 5

6 interests. Therefore, this Court holds that B/Z is an indispensable party to the present appeal without whom the appeal must be dismissed. CONCLUSION It is regrettable that this appeal must turn on procedural technicalities rather than substantive issues. Nevertheless, this Court lacks the jurisdiction to consider the merits of Covey s appeal. Covey s notice of appeal was prematurely filed and failed to name an indispensable party. Accordingly, the appeal is dismissed. IT IS SO ORDERED. Very truly yours, E. Scott Bradley cc: Prothonotary 6