C.A. No. 05A-01-013 (JRJ).Superior Court of Delaware for New Castle County.Submitted: December 1, 2005.
Decided: June 12, 2006.
Upon Writ of Certiorari: Affirmed in Part, Reversed in Part, Remanded in Part
Richard L. Abbott, Esquire, of the Abbott Law Firm, 724 Yorklyn Road, Hockessin, Delaware, 19707, Attorney for the Plaintiff.
Brian J. Merritt, Esquire, Assistant County Attorney, 87 Reads Way, New Castle, Delaware, 19720, Attorneys for the Defendants.
395 Associates, LLC, the Plaintiff filed its Complaint for Writ of Certiorari on January 26, 2005, seeking review of two administrative decisions issued by the New Castle County Department of Land Use (the “Department”) and the New Castle County Board of License, Inspection and Review (“the Board”). As explained below, the decision of the New Castle County Board of License, Inspection and Review is AFFIRMED IN PART, REVERSED INPART, and REMANDED IN PART.
I. Factual and Procedural Background
395 Associates, LLC, the Plaintiff (“the Plaintiff”), is a home builder. On August 26, 1998, it received a building permit to construct a new, single family home at 109 Rutledge Court (“the Home”), in the Estates of Farmington, a residential subdivision located in Newark, Delaware. The Department issued a Certificate of Occupancy (“CO”) for the home on April 30, 1999.
Calvin and Linda Wise purchased and moved into the Home.
Between 2002 and 2004, the Department issued three Violation Notices to the Plaintiff and the parties participated in two Hearings, which give rise to the present writ. The Department issued the first Violation Notice on April 19, 2002 (“the Window Violation”). This violation described leaking exterior covering/windows in the family, dining and living rooms and required the Plaintiff to install “exterior covering/windows as required by code to prevent water infiltration.” The Department issued a second Violation Notice on May 28, 2002 (“the Grading Violation”). This violation described a grading and drainage problem, and required the Plaintiff to “obtain proper fall away from house as required by Code.”
On June 12, 2002, the Department held a Rule to Show Cause Hearing on these Violation Notices. Based on the evidence and testimony presented, the Department held that the Plaintiff improperly installed approximately six windows, and had five days to respond to the Grading Violation Notice and the Department’s request that it communicate how it intended to address the grading issue. In its July 8, 2002 Rule to Show Cause Decision, the Department directed the Plaintiff to repair the windows and comply with manufacturer’s installation instructions, and revise the lines and grades plan and correct the grading. The Plaintiff did not appeal this decision.
On July 25, 2002, the Department issued a third Violation Notice (“the Handrail Violation”). This violation described a staircase handrail installed below the minimum height prescribed by the Code and required installation of a “handrail as required by Code.” The Plaintiff did not appeal this Violation Notice. It corrected the height problem by replacing the finished railing with an unfinished railing. On May 19, 2003, however, the Department notified the Plaintiff that it would issue a “No Compliance Letter” for the Handrail Violation until an inspection showed the railing and spindles resembled the original finished railing, in compliance with the home warranty standards.
On January 30, 2004, the Department held another Rule to Show Cause Hearing to address the Window Violation, Grading Violation and Handrail Violation Notices. The Department issued a written Notice of Rule to Show Cause Decision on July 13, 2004. Based on the evidence and testimony presented, the Department found all three violations unresolved. Specifically, it held that the Plaintiff: (1) had not repaired or requested an inspection of the windows, which showed signs of leakage during a September 2003 Department site visit, (2) as of a September 2003 site visit, had not achieved the appropriate “fall away” grading in two areas, as required by law, and (3) had not completed the handrail installation because the handrail still lacked the appropriate paint or stain finish. With regard to the Plaintiff’s statute of limitation defenses, the Department found that the Window Violation and Handrail Violation were issued within three years of the CO and not barred by the statute of limitations.
With respect to the Grading Violation, the Department found that although this violation was not issued within the three years, the Plaintiff “had a responsibility to raise this defense at previous hearings” but failed to do so. Thus, the Department held that Plaintiff waived its statute of limitations defense.
The Department directed the Plaintiff to correct and have inspected all outstanding violations by August 12, 2004, or incur a fine of $500.00 per day for each day after that date on which the violations remained outstanding. On August 2, 2004, the Plaintiff appealed the Department’s July 13, 2004 written decision (pertaining to the January 30, 2004 hearing) and its scheduling of a follow-up Rule to Show Cause Hearing.
The Board heard this matter on December 14, 2004 and affirmed the Department’s Decision. The Board issued a written decision on December 30, 2004. The Board held that the Department’s actions were not arbitrary, capricious or contrary to law. Specifically, the Board found that: (1) the Department committed no error of law by refusing to close the Handrail Violation because repairs to the obvious Code violation were not completed in the “workmanlike and acceptable manner” required by BOCA, the new handrail remained unfinished, and the home warranty does not prevent the Department from enforcing the Code as to this violation; (2) the Department had sufficient evidence to reconcile the conflicting testimony on the Grading and Window Violations and after judging the witnesses’ credibility and weighing all the evidence, the Department properly determined the violations still existed; (3) the Department issued the Handrail and Window Violation Notices prior to April 30, 2002, before the limitations period closed; and (4), as to the Grading Violation, the Plaintiff waived its Statute of Limitations argument by failing to raise the defense within a sufficient amount of time after receiving the violation notices.
On January 26, 2005, the Plaintiff filed the Complaint in Certiorari in this Court seeking review of the Board’s decision. The Writ of Certiorari issued on February 7, 2005. On March 8, 2005, the Department returned the record of the proceedings before the Board on Application No. 04-0003. Briefing is concluded and the matter is ripe for decision.
II. Standard of Review
Under Delaware law, a writ of certiorari is essentially a common law writ.” Its purpose “is to permit a higher court to review the conduct of a lower tribunal of record.” “Under this common law writ, this Court has the power to quash or affirm the proceedings and to remand.” The “threshold qualifications for a Certiorari review . . . [are] in particular that the judgment below is final, and that there must be no other available basis for review.” The Court’s review on certiorari “involves a review only of errors that appear on the face of the record.” Certiorari review differs from appellate review in that an appeal “brings up the case on its merits,” while a writ brings the matter before the reviewing court to “look at the regularity of the proceedings.” Thus certiorari review “is not the same as review on appeal” because it “is on the record and the reviewing court may not weigh evidence or review the lower tribunal’s factual findings.” To that end, the “transcript of the evidence below is not part of the reviewable record . . . the Court cannot examine the transcript in order to evaluate the adequacy of the evidence which supports the conclusion rendered below.”
It is the function of “the agency, not the court, to weigh evidence and resolve conflicting testimony and issues of credibility.” Thus, the Court does not consider the case below “on its merits” or “substitute its own judgment for [that] of the inferior tribunal.” Instead, the Court’s review is limited to “considering the record to determine whether the lower tribunal[:]” (a) exceeded its jurisdiction, (b) committed errors of law, or (c) proceeded irregularly.
A decision “will be reversed on jurisdictional grounds only if the record fails to show that the matter was within the lower tribunal’s personal and subject matter jurisdiction.” A decision will be reversed for an error of law when the record affirmatively shows that the lower tribunal has “proceeded illegally or manifestly contrary to law.” Finally, a Board decision will be reversed for irregularities of proceedings “if the lower tribunal failed to create an adequate record to review.” “The burden of persuasion rests upon the party attempting to show that the Board’s decision was arbitrary and unreasonable.”
III. DiscussionA. Preliminary Issue — The Scope of This Review
The Court must address a preliminary issue before it can consider the Plaintiff’s substantive arguments on review. First, the Court must address Defendants’ claim that this Court lacks jurisdiction to review the Board’s decision. The Defendant did not raise this argument until now. According to the Defendants, this Court is without jurisdiction to hear the writ because the Plaintiff failed to timely appeal the July 8, 2002 Notice of Rule to Show Cause Decision, the July 25, 2002 Handrail Violation, and the May 19, 2003 Letter directing completion of the Handrail repairs in accordance with New Castle County Code § 6.10.003. As a result, argue Defendants, the Plaintiff lost the opportunity to challenge the Department’s enforcement actions before the Board. According to the Defendants, the Plaintiff’s failure to timely file an administrative appeal created a jurisdictional defect that the Board did not discover at the time of the December 14, 2004 hearing. Relying on Draper King Cole v. Malave, the Defendants argue this Court lacks jurisdiction because the Board lacked appellate jurisdiction to hear the appeal.
In response, the Plaintiff argues, inter alia, that the Defendants’ reliance on Draper King Cole v. Malave is misplaced, the Plaintiff is not appealing the July 8, 2002 Notice of Rule to Show Cause Decision, the issue does not appear in the record because it was raised for the first time on review and, therefore, the Court cannot properly consider it on certiorari
The Defendants concede “the jurisdictional defect of a late appeal was not brought to the attention of the . . . Board. . . .” Thus, the Board had no opportunity to consider this issue during the proceedings below and, as Plaintiff aptly points out, this issue is not contained in the record on review. What the Defendants ask this Court to do is to assume or make its own determination that the alleged jurisdictional defect in fact existed, and, as a consequence, divested the Board of the necessary “intermediate” jurisdiction. The Court cannot do this.
First, the present writ only permits the Court to review the conduct of the Board by looking for errors that appear on the face of the record returned in obedience to it. Thus, in ascertaining whether the Board “exceeded its jurisdiction” or “proceeded irregularly” in making the disputed determination, the Court’s certiorari review is confined to the record.
Because the Board never addressed or ruled on this issue, “there is nothing for this Court to review under the rubric of a writ of certiorari.”
Second, unlike an appeal that “brings up the case on its merits,” certiorari review only permits the Court to look “at the regularity of the proceedings” below. The Court may not, in this instance, weigh evidence or review the Board’s factual findings. This is consistent with the general rule that an appellate or reviewing court will not decide any question that was not raised in the tribunal below.
To the extent the Defendants argument implies that the Board exceeded its jurisdiction by accepting the Plaintiff’s August 2, 2004 Application for Hearing to Appeal the July 13, 2004 Department Decision, the record shows that the Plaintiff filed the appeal “within the 20 days of receipt of notice.” The Board’s December 30, 2004 Notice of Decision on that appeal states that the Board is:
“vested with authority to consider administrative appeals pursuant to § 6.09.003. . . . Pursuant to § 6.09.003(E), the Board may affirm, modify, reverse, vacate, or revoke the action appealed provided that such action be affirmed if the action was not arbitrary or capricious or was not taken contrary to law.”
The record indicates that within the scope of this authority, and after considering the evidence and argument, the Board affirmed the Department’s July 13, 2004 decision. Thus, the record returned shows that these matters were within the Board’s subject matter and personal jurisdiction.
B. Irregularities in the Proceedings — The Legal Standard andWritten Decision
The Plaintiff argues that there are irregularities which merit reversal. Specifically, it contends that: (1) the voting Board Members’ statements during the December 14, 2004 Hearing reflect a failure to correctly apply the applicable legal standard as required by §§ 6.09.003(E), 12.08.006(A) of the New Castle County Code and the Due Process Clause; and (2) the Board’s subsequent December 30, 2004 written decision, which references the complete legal standard of review, is legally invalid because it contravenes the Board’s Rules of Procedure. It further asserts that the Board failed to render a majority decision based on the two part “error of law” and “arbitrary and capricious” standard. It claims that at the December 14, 2004 Hearing only two members of the three member majority actually articulated that they found the Department’s actions neither arbitrary nor capricious and that none of the three members expressly articulated whether the Department’s actions “were not taken pursuant to law.” Without citation to any case law, the Plaintiff also argues that the Board’s subsequent written decision dated December 30, 2004 is invalid because it is not signed by the majority, contradicts the record made at the hearing, and creates an “imaginary, make-believe set of reasons for the LIRB’s findings.”
In response, the Defendants argue that the record demonstrates the Board applied the complete and correct legal standard during the Hearing, no irregularities exist in the preparation, content or signing of the Board’s subsequent written decision, and the record includes a fair statement of the Board’s conclusions and facts supporting its decision.
As noted earlier, when considering whether the Board proceeded irregularly, the Court’s certiorari review is confined to the record returned in obedience to the writ. The Board’s decision will only be reversed for “irregularities of proceedings if the [Board] failed to create an adequate record to review.” It is well settled that a “`quasi-judicial tribunal must state the basis for its decision, in order to allow judicial review.'” Moreover, even in the context the “broader” statutory writ of certiorari, this Court has held that a “written decision is the controlling decision,” the one upon which it “primarily” focuses. Finally, as the Defendants correctly point out, even under the broader statutory writ, this Court has held “it is enough if the record sent . . . includes a “`fair statement of the conclusions of the Board,’ as well as `the facts material to show the grounds’ for those conclusions,'” when asked to find a board decision “illegal” where it “contains a legal standard not articulated in the board’s oral ruling.”
The record returned in response to this writ includes both a type written transcript of the Board’s December 14, 2004 Hearing and the Board’s December 30, 2004 written decision. Mindful that it may not examine the transcript to evaluate the adequacy of evidence, and applying the “more rigorous” substantial evidence standard, the Court is satisfied that the Board created an adequate record for review as to whether it proceeded regularly in its application of the standard of review in administrative appeals. The record shows that early in the proceeding the Plaintiff’s attorney instructed the Board that: “the points that are being made are as you know based on the standard you have to either establish that there was legal error or that the code official acted arbitrarily and capriciously.” At the conclusion of the hearing, the record shows that the Chairman polled the Board to determine if, after hearing all the facts and testimony, the members found the Department’s actions “arbitrary or capricious or that they were taken not pursuant to law?” After polling the Board members, who explained their respective positions on the Department’s decision and the grounds for appeal, the Chairman then moved to deny the appeal. This motion passed: “3-0-1. Three in favor. None in opposition. One abstention.”
The Board’s December 30, 2004 written decision clearly states that: “the Board may affirm, modify, reverse, vacate, or revoke the action appealed, provided such action be affirmed if the action was not arbitrary or capricious or was not taken contrary to law” and that “the Board votes to affirm the Department’s Decision.” Specifically, the written findings show the Board found: “[t]he Decision was not arbitrary or capricious, nor was it contrary to law,” “sufficient evidence” that the Plaintiff was “in violation” of the Code and for the Department to make its judgment; and “the Department made no error of law in refusing to close the [handrail] case.”
The Court finds that the record returned shows the grounds for, and includes a fair statement of, the Board’s conclusion that Department’s actions were neither “arbitrary and capricious” nor “contrary to law.” The Court finds no merit to Plaintiff’s claims that the written decision is invalid under the Article V of the Board’s Rules of Procedure, § 6.09.003 of the New Castle County Code, 9 Del. C. § 1315 or that it violated the Due Process Clause. It is apparent from the record that the Board heard evidence, made findings and rendered a decision. It rendered a decision at the close of the hearing and in writing based upon the record created at the hearing. Therefore, the Board’s December 30, 2004 Decision should not be reversed on any of these grounds.
C. Errors of Law — The Statute of Limitations and Waiver
The Plaintiff contends that the Board committed errors of law by: (1) failing to conclude from the record before it that all three violations appealed should be reversed due to the three-year statute limitations; and (2) concluding that the Plaintiff waived the right to assert statute of limitations as to the Grading Violation by failing to raise it during prior proceedings, when there was no evidence that the Plaintiff intended to or made an express, knowing, intelligent and voluntary waiver. The Plaintiff further argues that the Department waived its right to assert waiver by not issuing new Notice Violations based on changed circumstances.
Because this last issue does not appear in the record, the Court cannot consider it on the merits for the first time on review.
In response, the Defendants argue that: (1) the statute of limitations period commenced on the date the CO issued; (2) pursuant to § 6.09.002©) of the New Castle County Code, tolling rules and other applicable common law principles concerning 10 Del. C. § 8106 apply to County administrative enforcement actions; (3) the three violations issued on April 19, 2002, May 28, 2002, and July 25, 2002; (4) the Board heard testimony that the ponding of water started after the CO was issued as a result of subsequent sidewalk repairs by the Plaintiff; (5) the statute of limitations is not a constitutionally protected right but rather an affirmative defense that is waived if not pled.
As noted above, the Court will only reverse a decision of the Board “for an error of law . . . when the record affirmatively shows that the lower tribunal has `proceeded illegally or manifestly contrary to law.'” The Court “may not review the substantive decisions of the case or, in other words, it may not 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.” The Court’s review “`is limited to errors which appear on the face of the record and does not embrace an evaluation of the evidence considered by the inferior tribunal'” or “factual findings.” Moreover, it “settled in this jurisdiction that the evidence before the lower tribunal is not a proper part of the record in a common law certiorari proceeding.”
At their core, the Plaintiff’s arguments actually take issue with the Board’s interpretation of the facts and its determination that the Department’s actions were not barred by the three-year statute limitations and that Plaintiff waived the statute of limitations defense. It appears to the Court that both sides are simply attempting to re-argue the merits of their respective positions on the statute of limitations and waiver issues. Resolution of these arguments on review would require the Court to consider the sufficiency and weight of the evidence and to substitute its own judgment for that of the Board.
Having said that, however, the Court can and will review the record returned to determine if the Board “`proceeded illegally or manifestly contrary to law.'” The record shows that on January 30, 2004 the Plaintiff presented its legal and factual positions as to the expiration of statute of limitations and its repairs. Both parties argued their positions on the statute of limitations issues to the Board during the December 14, 2004 Hearing. These positions are restated again in the Board’s December 30, 2004 Decision.
The statute of limitations issue does not appear in the July 8, 2002 Notice of Rule to Show Cause Decision, and the record shows that the Board heard and discussed the statute of limitations arguments that appear in the July 13, 2004 Decision. At the close of the proceedings, the Chairman polled the Board Members to determine if they found the Department’s actions arbitrary or capricious or not pursuant to law. The first member polled said:
No. No. . . . Particular I note that there were violation issues . . . violation notices issued January 18, 2002, April 19, 2002 [Window Violations] which certainly were within the statute of limitations even if the argument was, well that’s . . . whether we consider that or not I mean that’s certainly within the three year statute of limitation.
The second member polled said:
I feel that the County did not act arbitrarily and capricious in their actions. [the first Member polled] covered the lot of it. . . . The builder . . . has clearly been involved in repair work and committed to repair work . . . I don’t know what their argument is for leaving the windows water coming in. I don’t think I’ve ever heard that other than it’s outside the statute of limitations. On that issue I’m not convinced that their statute of limitations excludes them from fixing the leaky windows. I believe I understood from the County’s presentation the statute of limitations can be extended based on certain issues and circumstances which makes logical sense to me. So for those reasons that’s my vote.
The third member polled, who ultimately abstained, said:
I look at the violation notices here. And clearly the windows are within the three years because the first one was issued in January of 2002 [Window Violation]. I’m going back to [the First Member polled] too. But I notice the other two violations the handrailing [July 25, 2002 or May 19, 2003] and the grading [May 28, 2002] were beyond the three year if this is the first violation. If this is the first violation notice they were beyond the three year limitation. Because it’s May 2002 and July 2002. We can see clearly that the grading was not up to standards so to speak but yet it is outside the three year statute of limitation so that it then becomes another matter. But the violation on the part of the windows concerned 100 percent that the developer is in violation of that particular item.
In its December 30, 2004 written Decision, the Board noted the following about the Department’s arguments:
With respect to the statute of limitations, the Department argues that it specifically cites the Delaware statute in its code so that the case law referring to the statute would apply. One concept found in the case law is that latent defects can allow the period of limitations to be tolled. In the cases of the windows, the leaking windows would not become apparent until storms revealed the problem. More importantly, the Department relies on the concept that, as an affirmative defense, the statute of limitations is waived if not asserted. Although there is no pleading like a complaint to mark as beginning of a 5 day period to assert the defense, by analogy, the violation notice acts as a complaint. According to the Department, by analogy to the Delaware Code, when the statute of limitations is raised as a defense to enforcement of the building code, the defense must be raised within a reasonable time from the date of the violations notice. Moreover, the Department notes that the windows do not receive a separate inspection and the period would begin with the Certificate of Occupancy.
After “considering the evidence and argument of both parties,” the decision indicates that the Board voted to affirm the Department’s decision which it did not find to be “arbitrary or capricious, nor . . . contrary to law.” It further determined that:
With respect to the statute of limitation, two of the three violation notices were issued before the period came to a close. Both Violation #1 and #2 [the Handrail Violation and the Window Violation] were sent to the Plaintiff before April 30, 2002. Violation #3 [the Grading Violation] was sent after three years had passed, but the Plaintiff did not raise this argument within a sufficient amount of time after receiving this or any other violation notices, effectively waving the argument.
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.” It cannot consider the case below “on its merits” or “substitute its own judgment” for that of the Board. With this standard in mind, the Court finds that the record for review adequately sets forth the Board’s factual finding that the Window Violation Notice was not barred by the three year statute of limitations. The record shows the Board heard and considered argument and facts pertaining to the timeliness of the Window Violation. Likewise, it is plain from the discussion of the Department’s position in the December 30, 2004 written decision that the Board found the Department’s position as to that Violation persuasive. Therefore, the Board’s determination on this issue will not be disturbed o certiorari review.
However, the Court finds the Board’s decision that Plaintiff waived its statute of limitation argument on the Grading Violation is manifestly contrary to law. The record indicates that the Board relied on the Department’s legal analogy between a complaint and violation of notice, suggesting that the Plaintiff had five days in which to raise its affirmative defense or risk waiver. The Board explained in its decision that `[a]ccording to the Department, by analogy to the Delaware Code, when the statute of limitations is raised as a defense to enforcement of the building code, the defense must be raised within a reasonable time from the date of the violations notice.” It ultimately determined that the Plaintiff waived its defense as to the Grading Violation.
The Court agrees that the statute of limitations as an affirmative defense can be waived. The “failure to timely assert an affirmative defense generally constitutes a waiver of the right to do so.” Further, “the rule clearly applicable to court cases . . .” does state that “an affirmative defense must be set forth in a “pleading to a preceding pleading.” The Court notes, however, that the “issue must be fairly presented in order to preserve it for appeal.” Thus, this Court has held that “the general rule applies, at least informally, to administrative proceedings and thus, in order to determine that an affirmative defense was raised and not waived for appeals purposes, a fair presentation must have been made to the agency.”
Recognizing the limited scope of its review and that the issue of whether “a defendant has waived an affirmative defense by failing to assert it timely is a matter left to the discretion” of the Court, the Court finds the Board’s determination on waiver constitutes an error of law. The Court is not persuaded that a notice violation is sufficiently analogous to a “complaint” or a “pleading” so as to require a recipient to file a “responsive pleading” stating its affirmative defense within five days (the time allotted to remedy a deficiency or risk civil, criminal or administrative remedies). Nor is the Court persuaded that five days from the date of the violation notice is a “reasonable time” in which to require the recipient to raise such defenses. This is especially so here because the record establishes the Plaintiff did in fact raise the defense at the January 30, 2004 Rule to Show Cause Hearing. Consequently, the Court reverses the Board’s Decision as to the Plaintiff’s waiver of its statute of limitations defense to the Grading Violation.
Finally, with regard to the Handrail Violation, the Court is unable to determine from the record how the Board reached its conclusion that the Handrail Violation was timely and not barred by the statute of limitations. “`It is settled law that a quasi-judicial tribunal must state the basis for its decision, in order to allow judicial review.'” This finding does not mean the Board committed an “error of law,” it simply means the record is insufficient for certiorari review.
Therefore, the Court remands this issue to the Board for clarification.
D. Errors of Law — The Principle of Estoppel and the WindowsViolation
Next, the Plaintiff argues that the Department may not assert any violations after issuance of the CO, because it inspected and confirmed the Plaintiff’s compliance with the Code.
The Defendants argue that the Court should not consider this issue because it was not raised in any proceeding below. According to the Defendants, the record is devoid of any discussion or argument on this issue, the Plaintiff waived this affirmative defense, and cannot satisfy the requirement for equitable estoppel. The Plaintiff responds to this assertion by, inter alia, directing the Court to its Memorandum of Law in Support of Appeal, in which the Plaintiff argues:
the County approved the installation of the windows long before the issuance of the Certificate of Occupancy. . . . As a result, the County waived any objection to the issue of proper installation of windows, and it is now estopped from asserting any violations regarding the windows.
The Plaintiff also directs the Court to its argument at the December 14, 2004 Hearing before the Board with regard to the Window and Grading Violations:
I think the point here is that the County essentially waived or estopped from asserting this because in fact the County did all the inspections. The property passed all the inspections or else it never would have been issued a certificate of occupancy. . . . So, before the C of O was issued on April 30, 1999 the County has to, is obligated and required to go out to the property and to ensure that the protective slope is properly graded. . . . So we have to assume that the County properly performed their inspection . . . when the home builder handed over this property to the homeowner everything was copasetic. So here we are five and half years later talking about grading. . . .
This is the extent of the record as to this issue. Thus, the parties again ask the Court to decide an issue, raised for the first time on review, by examining the facts and merits of their arguments. The Plaintiff claims the Board committed an error of law in “failing to conclude that all the claims asserted . . . are barred pursuant to the principle of equitable estoppel.” The Department contends the Plaintiff waived this affirmative defense and cites to testimony in the record. Although the record shows that Plaintiff briefed the issue on administrative appeal and briefly argued it during the two hour hearing, the matter was never decided by the Board.
The present writ only permits the Court to review of the conduct of the Board by looking for errors that appear on the face of the record returned in obedience to it. The “transcript of the evidence below is not part of the reviewable record . . . the Court cannot examine the transcript in order to evaluate the adequacy of the evidence which supports the conclusion rendered below.” Because the Board never ruled on this issue, the Department did not address it and the Plaintiff did not raise it again until now. Thus, “there is nothing for this Court to review” “under the rubric of a writ of certiorari” and this claim will not be considered on review.
E. Errors of Law — BOCA National Building Code and the HandrailViolation
The Plaintiff argues that the Board committed an error of law by affirming the Department’s July 13, 2004 Decision, based in part on its finding that the BOCA National Building Code (“BOCA”) required a stain or finish coat on the re-installed handrail. It contends that the July 25, 2002 Violation Notice cites the CABO Code, and that BOCA was inapplicable at the time the Violation issued. Therefore, the Plaintiff claims the Board should have reversed the Department’s July 13, 2004 decision, which was originally based on the home warranty standard.
The Defendants argue that Plaintiff never raised this issue during the December 14, 2004 Hearing. They assert that the record shows the Board discussed and considered the facts and law relevant to the Handrail issues the Plaintiff raised on administrative appeal. Finally, the Defendants contend that BOCA was the applicable building standard because it was in effect when the CO issued in 1999.
The Court’s review of the record returned confirms Defendant’s contention that this particular issue was not raised or considered below. The July 25, 2002 Violation cites to the “1995 CABO, Section 315.1” and instructs the Plaintiff to “[i]nstall handrail as required by Code.” After the Plaintiff corrected the height of Handrail but failed to apply a finish coat, the Department sent the May 19, 2003 letter refusing to issue a compliance letter because a review of the home warranty standards made “clear that repaired items must be finished to match surrounding areas.” The Plaintiff argued at the July 13, 2004 Rule to Show Cause Hearing that: (1) the Violation was barred by statute of limitations; (2) the Plaintiff had installed handrail as required by Code; and (3) “`any further proceeding must be prosecuted under the new home warranty,'” and (4) the Handrail Violation should have been dismissed because it was time barred by the Building Code statute of limitations, was fixed, and the finish was exclusively a home warranty issue.
Before the Board, the record shows that the Plaintiff raised the following with regard to the Handrail Violation: (1) it was issued in violation of the Building Code’s statute of limitations; (2) the Plaintiff complied with the Violation; and (3) finish is “exclusively” a home warranty issue. At the December 14, 2004 Hearing, the Plaintiff presented “generally the same” defenses and presented the “same points” that it asserted at the Rule to Show Cause Hearing. The Department argued that: (1) the house had no home warranty until 2003; (2) the home warranty did not preclude enforcement of Building Code; (2) the statute of limitations did not bar the enforcement actions; and (3) Section 116.0 BOCA requires work be completed “in a workmanlike and acceptable manner to secure the results intended by this code.” The record reflects that the Board Members questioned the parties about the finish, warranty and code arguments. Finally, the Plaintiff argued in rebuttal that using the BOCA Code Section 1.16.0 catch all was “boot strapping,” and that the “catch all only applies to supplement and add to the specific provisions” otherwise the homeowner could raise any issue claiming it was not done in a “workmanlike fashion.”
The record shows that the Board Members considered only these arguments as to the Handrail Violation. The first member polled stated:
“[a]s to the handrail. . . . if I had a problem . . . in the beginning because it wasn’t high enough and somebody came . . . and fixed it and . . . left it worse off than it was in the beginning except it literally meant the code requirements . . . I would be pretty annoyed.”
The second member polled stated:
“whether [the handrail] is finished or painted or not could probably be argued until we are all in the grave. It doesn’t matter to me. I think its just ridiculous.”
The third member polled stated:
“I noticed the other two violations the handrailing and the grading were beyond the three year . . .”
Finally, the Chairman stated:
“As far as the handrail is concerned it’s the same thing. When you put a job in you finish it. If you don’t finish it it’s not finished. That’s all there is to it. Common sense dictates that.”
The record shows only these Handrail issues were decided by the Board. Specifically, the Decision states:
“A finished hand rail was originally installed below the required height. 395 replaced and reinstalled the handrail, but the handrail and spindles were not finished with stain or paint. . . . While the building code does not specifically require that handrails along stairs must be finished, the Department asserts that the violation has not been adequately addressed, relying on BOCA . . . section 116.0 (1990), which states `[a]ll work shall be conducted, installed and completed in a workmanlike and acceptable manner so as to secure the results intended by this code.’ When violations require remedial work to be done, the Department requires this standard to be observed. The Department argues . . . it was . . . not arbitrary or capricious . . . to determine . . . the work was not completed in a workmanlike an acceptable manner when the deficient handrail . . . was left unfinished.”
“After considering the evidence and . . . arguments . . . the Board votes to affirm. . . . Where the Plaintiff attempts repairs on an obvious building code violation such as a short handrail, and where this repair is only partially completed, the Department made no error of law in refusing to close the case. . . . Pursuant to BOCA, the repair must be completed in a workmanlike and acceptable manner. It is obvious that by leaving the homeowner with an unfinished handrail, the . . . repair was not completed, nor . . . performed in a workmanlike and acceptable manner. That the issue might be more specifically addressed under the home warranty . . . does not prevent the Department from enforcing the code. . . . As it stands, the repair is presently inadequate.”
Finally, the Court notes that in asserting its statute of limitations defense, the Plaintiff did question which Code controlled, but only with regard to the Grading Violation, not the Handrail Violation:
“. . . it’s an interesting issue in that the County is saying they have a problem with grading and drainage under the building code which is a little bit of a puzzler . . . in that grading and drainage are expressly regulated under the . . . drainage code.
The Department responded: the drainage code says go to BOCA and BOCA says for one and two to CABO. So that’s how we get to CABO and that’s how we get into the building code.
Because the Board did not consider the CABO/BOCA code issue with respect to the Handrail Violation, “there is nothing for this Court to review” “under the rubric of a writ of certiorari.”
F. Failure to Present Evidence — Grading Violation
The final claim raised by the Plaintiff asserts that the Department failed to present evidence to the Board showing the Plaintiff was not in compliance with the new lines and grade plan for the property. In essence, the Plaintiff asks the Court to find that the professional engineering certification that it offered into evidence trumps the testimony of the inspector and photographs offered by the Department.
As the Defendants correctly point out, such an examination of the evidence is beyond the scope of the Court’s certiorari
review. Because it is the function of “the agency, not the court, to weigh evidence and resolve conflicting testimony and issues of credibility,” the Court will not consider this claim.
For the reasons stated above, the decision of the Board is hereby AFFIRMED IN PART, REVERSED IN PART, AND REMANDED IN PART
for further proceedings consistent with this decision.
IT IS SO ORDERED.
(Del. 1999)). Thus if “a party fails to perfect an appeal within the statutorily mandated period, a jurisdictional defect results, thereby preventing the appellate court from exercising jurisdiction.” Preston v. Board of Adjustment of New Castle County, 772 A.2d 787, 791 (Del.Supr.). See Draper King Cole v. Malave, 743 A.2d 672 (Del. 1999). Applying this rule in Draper King Cole v. Malave, the Supreme Court found it was without jurisdiction on appeal to review the merits of the Superior Court’s judgment, affirming a decision of the Industrial Accident Board, because the Superior Court was without jurisdiction to hear an appeal that was not perfected within the thirty day period mandated by statute. Draper King Cole v. Malave, 743 A.2d 672 (Del. 1999). Moreover, the Superior Court has found that this rule deprived it of appellate jurisdiction over board of adjustment decisions, where certiorari review is not timely perfected in accordance with statutes establishing the procedures by which this Court may review those boards’ decisions. See Covey v. County Bd. of Adjustment of Sussex County, 2002 WL 970469 (Del.Super.); McDonald’s Corp. v. Zoning Bd. of Adjustment for the City of Wilmington, 2002 WL 88944