IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

KEVIN GARBER,
t/ a CARPENTRY UNLIMITED,

Petitioner,
C.A. No. Nl 6A-05-012 Al\C
v.

NEW CASTLE COUNTY DEPARTMENT
OF LAND USE and NEW CASTLE
COUNTY BOARD OF LICENSE,
INSPECTION & REVIEW,

\/\./\./\/\/\/V\/\/\/\./\./\/

Respondents.
Submitted: December 13 , 2016
Decided: March 3 l, 2017
ORDER

Upon Certiorari Review from the New Castle County Board of License,
Inspection, and Review: AFFIRMED

l. The petitioner seeks certiorari review of a decision of the NeW Castle
County Board of License, Inspection, and Review that affirmed a New Castle
County hearing ofticer’s decision. The bases for the petition involve alleged errors
and irregularities in the Board’s decision, but consideration of those alleged errors
Would require a searching review of the Board’s decision and the underlying
factual record. The true issue presented by the petition is the proper scope of the
record this Court may consider for certiorari revieW. That issue is governed by

settled Delaware law and requires affirmance of the decision beloW.

BACKGROUND

2. In August 2012, Kevin Garber, trading as Carpentry Unlimited,
contracted With Deborah Wartel and Amy Podolsky (the “Homeowners”) to build a
home at 510 Bellevue Road, Wilmington, Delaware, 19809. The NeW Castle
County Department of Land Use (the “Department”) issued a building permit to
Mr. Garber on August 21 , 2012 and a certificate of occupancy to the Homeowners
on July 26, 2013. On January 20, 2016, the Department issued to Mr. Garber two
violation notices for various violations of NeW Castle County Code, Chapter 6,
Which is NeW Castle County’s Building Code.1

3. On February 9, 2016, New Castle County (the “County”) held a rule
to show cause hearing (the “RTSC Hearing”) to address both violation notices. A
hearing officer conducted the five-hour hearing Wherein a County building
inspector, Michael FoX, Mr. Garber, Mr. Garber’s attorney, the Homeowners, the
Homeowners’ attorney, and a number of other Witnesses testified.2

4. On February 24, 2016, the hearing officer issued a Written decision
finding Mr. Garber responsible for eight of eighteen violations (the “RTSC
Decision”).3 On March 7, 2016, Garber appealed the RTSC Decision to the

License, Inspection, and RevieW Board (the “Board”).

 

1 Compl. Exs. A, B.
2 Resp’t’s Answering Br. 31.
3 Pet’r’s Opening Br. 1.

5. The Board held a hearing on May 11, 2016, which lasted
approximately eight hours. At that hearing, both parties sought to present
testimony from witnesses who had not testified at the RTSC Hearing. In response
to objections to that testimony, the Board precluded both witnesses from testifying
and heard only from those witnesses who testified at the RTSC Hearing.4 The
Board issued a 23-page opinion (the “Board Decision) denying Mr. Garber’s
appeal on the basis that the hearing officer’s decision was not arbitrary, capricious,
or contrary to law.5

6. On May 26, 2016, Mr. Garber filed a complaint in this Court for a
certificate of certiorari to review the RTSC Decision and Board Decision. In
support of his petition for a writ, Mr. Garber now asserts: (1) the Board failed to
calculate properly the statute of limitations; (2) the Board failed to apply properly
the doctrines of Spearin6 and equitable estoppel; and (3) the Board proceeded
irregularly by (a) relying on an unqualified and unauthorized expert, (b) shifting
the burden of proof to Mr. Garber, and (c) excluding evidence. The Department
denies any legal errors exist on the face of the record or that Mr. Garber can show
any irregularities in the proceedings and therefore requests that the writ be denied

and the Board’s decision affirmed.

 

4 Pet’r’s Opening Br. App. P121 n. 6.
5 Id. at P117.
6 See United States v. Spearin, 248 U.S. 132 (1918).

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ANALYSIS

7. This Court's role in reviewing a writ of certiorari is limited.7 The
Court shall review the record to determine whether the Board “exceeded its
jurisdiction, proceeded illegally or manifestly contrary to law, or proceeded
irregularly.”8 Certiorari is appropriate only when “an error of law is manifest on
the face of the limited record.”9 That limited record includes only “the complaint
initiating the proceeding, the answer or response (if required), and the docket
entries.”10 Neither the evidence received by the lower tribunal,ll nor the transcript

of that proceeding, is part of the record to be reviewed.12

 

7 Black v. New Castle Cty. Ba’. of License, 117 A.3d 1027, 1030 (Del. 2015) (citing In re
Butler, 609 A.2d 1080, 1081 (Del. 1992)).

8 Black, 117 A.3d at 1031 (citing Christiana T own Ctr., LLC v. New Castle Cntfy., 2004 WL
2921830, at *2 (Del. Dec. 16, 2004) (citing 1 Victor B. Woolley, Woolley on Delaware Practice,
§ 896, 939 (1906))).

9 Black, 117 A.3d at 1032 (citing Dover Historical Soc ’y v. City ofDover Plarming Comm'rt, 838
A.2d 1103, 1106 (Del. 2003)); Maa'a'rey v. Justice of Peace Ct. ]3, 956 A.2d 1204, 1213 (Del.
2008) (emphasis in original) (citing Du Pont v. Family Ct. for New Castle Cnty., 153 A.2d 189,
194 (Del. 1959) (“A writ of certiorari is not a substitute for, or the functional equivalent of, an
a peal."’)).

'?Blac!c, 117 A.3d at 1030 (internal quotations omitted) (citing Mada'rey, 956 A.2d at 1216).

11 Du Pom, 153 A.2d at 194.

12 see Black, 117 A.3d at 1030 (citing Maddrey, 956 A.2d at 1216 (“[T]he Offlciai 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.”); In re Butler, 609 A.2d at 1082 (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)); Greerz v. Sussex Cty., 668 A2d 770 (Del. Super. 1995) (citing Gola’stein
v. City of Wilm., 598 A.2d 149 (Del. 1991); Shoemaker v. State, 375 A.2d 431 (Del. 1977); In re
Butler, 609 A.2d 1080; Brandywine Secs., Irzc. v. Dep’t of Licenses and Inspection, 1993 WL
18784 (Del. Super. Jan. 22, 1993); Roderthiser v. Dep’t of Public Safety, 137 A.2d 392 (Del.
Super. 1957)), ajj”d, 667 A.2d 1319 (Del. 1995) (TABLE).

4

8. Garber contends the Board misapplied the time of discovery rule and
failed to make any factual findings as to When the injury occurred or as to Why the
Department is “blamelessly ignorant in failing to discover[] the allege[d] code
violations” sooner.l3 Mr. Garber further contends the Board erred by failing to
apply or make factual findings relating to~ the Spearirt Doctrine or equitable
estoppel.14

9. The record here, however, does not indicate that the Board
erroneously measured the statute of limitations or misapplied the Spearin Doctrine
or equitable estoppel. Adhering to the necessary “disciplined and more
constrained review” required on a petition for a writ of certiorari, I may not

9915

consider the “merits of the case or the “full record before the first tribunal,” or

“conduct a plenary review of whether the tribunal committed an error of law.”16

To receive a writ of certiorari, a petitioner must show an error of law on the face

of the record.

 

13 Pet’r’s Opening Br. 11.

141d. ar 28, 31.

15 Black, 117 A.3d ar 1029; Maddrey, 956 A.2d at 1213.

16 Black, 117 A.3d at 1029, 1032-33 (citing Shoemaker, 375 A.2d at 437 (internal quotations
omitted) (“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.”)); Mada'rey, 956 A.2d at 1213.

5

10. In its decision, the Board discussed (for two pages) when the injury
occurred and, specifically, why the statute of limitations had not run on the
violations.17 As to the Speariri Doctrine and equitable estoppel, the Board stated:

[T]he Applicant cited no cases where the Spearirt
Doctrine was applied in an administrative enforcement
proceeding, . . . [The Applicant] had the responsibility of
complying with the building code. A licensed contractor
is presumed to know the Code and should not be heard to
say that he can violate that Code because his client told
him to do so.

Applicant’s Spearin argument is further flawed on the
facts. Applicant never proved the requisite facts
necessary to demonstrate the type of reliance that Spearin
requires to successfully assert that defense. Moreover,
many of the Code violations had nothing to do with the
building design.

This analysis regarding Applicant’s Spearirt argument
and related discussion in this Board Decision also apply
to the doctrines of equitable estoppel, promissory
estoppel, and justifiable reliance. These doctrines were
mentioned briefly by the Applicant in its papers and/or at
the Board Hearing. The Applicant never developed the
necessary factual and legal foundation for [the]
application of these doctrines.lx

11. The Board’s conclusions regarding the statute of limitations,
Spearin, and estoppel were based on its consideration of the factual record. The

narrow question before this Court is whether the Board proceeded illegally or in a

 

17 Pet’r’s Opening Br. App. P136-137 (“There is ample evidence in the record that each of the
doctrines of inherent unknowable injury and equitable tolling apply here. . . . First . . . . Second . .
. . Third. . . .”).

18 1a 611>135-1>136.

manner manifestly contrary to the law. Mr. Garber has not made such a showing.
Accordingly, his petition for a writ of certiorari is denied on that basis.

12. Mr. Garber also asserts that the proceedings below were conducted
with irregularity because: (1) the violation notices were based on biased,
unauthorized, and unqualified expert opinions; (2) the Board improperly excluded
a witness’s testimony; and (3) the burden of proof inappropriately was placed on
Mr. Garber.19

13. A “writ exists to ensure that the [lower] tribunal is proceeding

9,20

regularly and attempting to do its job within its legal authority. “Reversible

procedural irregularity includes a tribunal's failure to create an ‘adequate record’
for judicial review.”Z]

14. It is clear the Board took the parties’ arguments seriously; it held an
eight-hour hearing and received evidence and sustained objections from both

sides.22 As to the expert opinions, the Board stated:

The cause of the water and moisture problems correlate
in part, but not in whole, to the Code Violations. Thus,

 

19 Pet’r’s Opening Br. 14.

20 Black, 117 A.3d at 1032 (citing Dover Historical Soc ’y, 838 A.2d at 1106 (internal quotation
marks omitted) (“The purpose of certiorari is to correct errors of law, to review proceedings not
conducted according to law, and to restrain an excess ofjurisdiction.”)).

21 Black, 117 A.3d at 1032-31 (citing Christiana T own Ctr., 2004 WL 2921830, at *2 (citing l
Victor B. Woolley, Woolley on Delaware Practice, § 896, 939 (1906) (“A decision will be
reversed for irregularities of proceedings if the lower tribunal failed to create an adequate record
to review.”)).

22 See Black, 117 A.3d at 1032-33 (“Here, it is plain that the Board took the arguments before it
seriously, held several hearings, and received evidence from all sides.”).

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to a certain extent, the Board need not evaluate the
opinions of those battling litigation experts. The Board
need only determine whether there was sufficient
testimonial and/or documentary evidence for the
Department to find that the Code Violations existed, and
that therefore the RTSC Decision was not arbitrary and
capricious.23

15. Mr. Garber argues that the Department’s assertion that another
inspector verified each violation - which was to overcome this Witness’s lack of

”24 This, however, is exactly the type of

qualifications - just “cannot be true.
factual disagreement this Court cannot review. The Board was within its legal
authority to affirm the RTSC Decision if it was not arbitrary, capricious, or
contrary to law.25 Therefore Mr. Garber has failed to show a legal error on the face
of the record or a reversible irregularity.

16. The Board likewise was within its legal authority to reject additional
testimony. As the Board noted in its decision: “Appeals shall not be used to

5526

consider new or additional information. Moreover, Mr. Garber alleges his

witness Who was excluded from testifying in front of the Board “was present at the

5327

RTSC Hearing . . . and offer[ed] testimony. The Department argues Mr.
Garber’s claim that a witness provided additional evidence at the Board hearing “is

simply false” and that Mr. Garber’s proffered witness did not testify at the RTSC

 

23 Pet’r’s Opening Br. App. P122-P123 (emphasis in original).
24 Pet’r’s Opening Br. 18.

25 Pet’r’s opening Br. App. P120.

16 Id.

27 Pet’r’s Opening Br. 26.

Hearing.28 Again, the myriad factual disputes that still exist illustrate yet another
reason why this Court must give deference to the Board’s written decision.29 Mr.
Garber insists that the Board’s Decision only can be rationalized as an error of law,
but to reach that conclusion I Would be required to disregard the certiorari standard
and engage in a complete review of the record.30

17. Mr. Garber next argues the Board and the hearing officer improperly
shifted to him the burden of proving the non-existence of the code violations. This
argument fails procedurally. First, Mr. Garber argues the hearing officer’s
conclusions were not supported by substantial evidence, citing Quaker Hill Place

v. Saville.31

The standard Quaker Hill discusses, however, relates to a decision of
the State Human Relations Commission and an appeal of that decision under
Delaware’s Administrative Procedures Act.32 That standard fundamentally is
distinct from the standard applicable to certiorari review. In the procedural
posture of this case, this Court has no basis to review the Board’s Decision or the
RTSC Decision to determine whether they were supported by substantial evidence.
Rather, I am limited to determining whether an error of law is manifest on the face

of the limited record. Second and as to that “limited record,” the support Mr.

Garber cites for his contention that the burden improperly was shifted consists of

 

28 Resp’t’s Answering Br. 28, 31.
29 see Black, 117 A.3d at 1033.

30 Id

31 523 A.2d 947 (Del. super. 1987).
32 Id. 61952-53.

testimony offered at the RTSC Hearing. Testimony or evidence received by the
lower tribunal is not part of the “limited record” reviewed by this Court in
connection with a petition for a writ of certiorari .
CONCLUSION

For the foregoing reasons, the June 21, 2016 decision of the License,

Inspection, and Review Board is AFFIRMED. IT IS SO ORDERED.

iri.%&/

Abig l M"."LeGVro‘w, Jirel§e

Original to Prothonotary

cc: Scott T. Earle, Esquire
Mary M. Jacobson, Esquire
Bernard V. Pepukayi, Esquire

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