State Supreme Court dismisses case against Sussex board

Justice rules filing can't be amended to include landowner's name
December 4, 2019

Story Location:
Old Orchard Road
LEWES  Delaware  19958
United States

The Delaware Supreme Court has denied a request to amend an appeal of a Sussex County Board of Adjustment decision that granted a special-use exception for a 104-bed assisted-living and skilled-nursing facility along Old Orchard Road near Lewes.

The case was dismissed because the petitioners did not include the name of the landowner in their original appeal. The court also dismissed the petitioners' request to add the landowner's name to the appeal.

The petitioners, Janice Allmaras, Joseph Rolla and Robert Viscount, live near the parcel.

“The failure to name the landowner as an additional respondent flies in the face of longstanding precedent requiring the landowner to be a party to the appeal,” wrote Justice Craig Karsnitz.

The board of adjustment granted approval of the project Feb. 5. Six days later, the petitioners filed a request for a re-hearing before the board. On June 4, the board denied the request.

On June 24, within the 30-day window of filing an appeal, the petitioners filed for a writ of certiorari naming only the board as respondent. The board voted to dismiss that petition.

According to the court ruling, the petitioners initially argued they did not need to name the landowner, but have since abandoned that position agreeing the landowner must be named in their petition. They had asked the court to add the landowner’s name to their petition retroactively to stay within the 30 days allowed to file an appeal.

A writ of certiorari is an order to a lower court to deliver its record in a case so a higher court may review it.

“Here there was no mistake as to the identity of landowner. Rather, petitioners made a mistake as to whether or not the clearly identified landowner had to be named as a party in the first instance,” the court ruled.





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