Karpoff v. Sussex County Board of Adjustment

IN THE SUPREME COURT OF THE STATE OF DELAWARE

JULIAN KARPOFF, §
§ No. 362, 2024
Petitioner Below, Appellant, §
§ Court Below—Superior Court
v. § of the State of Delaware
§
SUSSEX COUNTY BOARD OF § C.A. No. S24M-01-039
ADJUSTMENT, SUSSEX COUNTY, §
and ATLANTIC CONCRETE CO., §
INC., §
§
Respondents Below, Appellees. §

Submitted: March 14, 2025
Decided: May 12, 2025

Before TRAYNOR, LEGROW, and GRIFFITHS, Justices.

ORDER

After consideration of the briefs and the record on appeal, it appears to the

Court that:

(1) The appellant, Julian Karpoff, appeals from the Superior Court’s order

dated July 31, 2024, that dismissed Karpoff’s petition for a writ of mandamus. For

the reasons discussed below, we affirm the Superior Court’s judgment.

(2) Atlantic Concrete Company, Inc. (“Atlantic”) is engaged in concrete-

recycling activity on a property near Karpoff’s residential property in Lewes. On

March 4, 2022, Karpoff sent a letter to Jamie Whitehouse, Director of the Sussex

County Department of Planning and Zoning, asserting that Atlantic’s concrete
production and batching activities—which involved daily dumping of cement and

periodic breaking of concrete using a “noxious device similar to a mechanized jack-

hammer,” causing substantial noise and vibration—were in violation of applicable

zoning laws.1 By letter dated April 29, 2022 (the “Determination Letter”),

Whitehouse determined that the concrete production and batching has been

occurring on the property since 1969, prior to the adoption of the Sussex County

Code in 1970, and is therefore a permitted non-conforming use.2 The Determination

Letter stated that the decision could be appealed to the Sussex County Board of

Adjustment (the “Board”) under Section 115-209 of the Sussex County Code.

(3) Karpoff timely appealed the Determination Letter to the Board on May

26, 2022. Thereafter, he also filed a complaint against Atlantic and Sussex County

in the Court of Chancery seeking “abatement of Defendant Atlantic’s use of the

Subject Land for industrial operations, including concrete recycling, and a

declaratory judgment binding both Defendants that Defendant Atlantic’s use of the

Subject Land for concrete recycling is unlawful under the applicable zoning law.”3

The Board proceedings stalled while the Court of Chancery matter proceeded. On

February 28, 2023, a Magistrate in Chancery issued a report finding that the action

1
Appendix to Appellee Sussex County’s Answering Brief at B-223–24.
2
Id. at B-226–28.
3
Karpoff v. Atl. Concrete Co., C.A. No. 2022-0621, Docket Entry No. 1, Complaint ¶ 12 (Del. Ch.
filed July 15, 2022).
2
should be dismissed in favor of the first-filed Board proceedings.4 Through the

exceptions process, Karpoff was granted leave to file an amended complaint to add

a new party and additional claims.5 The Magistrate’s dismissal of the zoning claims

in favor of the Board appeal later became final.6

(4) Activity in the Board appeal resumed. Karpoff and the Board’s counsel

disagreed as to how the appeal should proceed. For example, Karpoff’s request that

the Board issue witness and document subpoenas was declined. Karpoff and counsel

also disagreed about the procedures for hearing from witnesses. Karpoff maintained

that he did not have a complete copy of the record on which the Determination Letter

was based—specifically, he asserted that he should receive copies of any documents

that Atlantic had submitted to Whitehouse.

(5) Karpoff also sought the Board members’ recusal. He asserted that the

Board’s rules established that Whitehouse performed a variety of functions for the

Board, including conducting official correspondence, preparing the agenda of Board

meetings, determining which items will be placed on the agenda, and maintaining

files of Board meetings, among other duties. Karpoff asserted that the close

association between Whitehouse and the Board created an appearance of bias as to

4
Karpoff v. Atl. Concrete Co., 2023 WL 2260588 (Del. Ch. Feb. 28, 2023) (Magistrate report).
5
Karpoff v. Atl. Concrete Co., 2023 WL 5529695 (Del. Aug. 25, 2023).
6
Karpoff, C.A. No. 2022-0621, Docket Entry No. 90 (Del. Ch. Dec. 6, 2023). Karpoff filed an
amended complaint in the Court of Chancery adding the State of Delaware Department of Natural
Resources as a defendant and asserting a claim alleging that Atlantic’s activities on the property
violate the Coastal Zone Act. The Court of Chancery proceedings are ongoing.
3
the Board’s consideration of Karpoff’s appeal from Whitehouse’s Determination

Letter. The Board members did not recuse.

(6) On January 17, 2024, Karpoff filed a petition for a writ of mandamus

against the Board in the Superior Court. He filed an amended petition on February

15, 2024, which added Sussex County and Atlantic as defendants. The amended

petition asked the court to issue a writ of mandamus directing the Board to (i)

proceed with Karpoff’s appeal; (ii) direct Sussex County to provide Karpoff with a

complete copy of the record on appeal; (iii) issue witness and document subpoenas;

(iv) allow Karpoff to conduct direct examination of fact and expert witnesses that he

called and to cross-examine hostile witnesses that he called; and (v) allow Karpoff

to cross-examine witnesses called by others. The pleading also asserted a second

count for declaratory judgment, in which Karpoff asked the court to “declare his

right to the foregoing Mandamus relief and bind Defendants Sussex [County] and

Atlantic to the result.”

(7) In the amended petition, Karpoff alleged that the Board was

“repudiating its own Rule BOA Rule 15.3,” which provides that an appellant will be

“afforded the opportunity to present testimony and evidence supporting the

application” and “permitted to present witnesses and introduce exhibits, petitions,

4
and other documents into the record.”7 Pointing to Section 115-208.E of the Sussex

County Code, which provides that the Board chair “may administer oaths and

compel the attendance of witnesses,”8 he asserted that the Board “has the power to

issue subpoenas and cannot restrict their issuance arbitrarily.” He also alleged that

the Board, through its counsel’s positions as to the examination and cross-

examination of witnesses, was arbitrarily restricting witness testimony. Karpoff

further alleged that the Board was required to provide him with a copy of the record

on appeal, including Atlantic’s submissions, but had arbitrarily failed to do so.

(8) The Superior Court granted the respondents’ motions to dismiss. The

court determined that Karpoff had not exhausted his administrative remedies and

had not demonstrated that such remedies would be futile.9 It emphasized that “[t]he

eventual decision of the Board will also carry its own set of appellate rights at law.”10

The court also found that the amended petition did not request recusal of the Board

and stated that, even if the amended petition had requested such relief, the court

would have denied the request under the exhaustion doctrine.11

7
Rules of Procedure of the Board of Adjustments and Appeals Rule 15.3, at https://
sussexcountyde.gov/rules-procedure-board-adjustments-and-appeals [hereinafter Board Rules].
As noted infra note 22, the language of the Board’s rules as posted on the Sussex County
government’s website differs in some respects from the language of the rules included in Karpoff’s
appendix. We do not know whether the rules have been amended since the amended petition was
filed, but the difference in Rule 15.3 is immaterial to the resolution of this appeal.
8
Sussex County Code ch. 115, art. XXVII, § 115-208.E, at https://ecode360.com/8885269.
9
Karpoff v. Sussex Cty. Bd. of Adjustment, 2024 WL 3595757, at *2 (Del. Super. July 31, 2024).
10
Id.
11
Id.
5
(9) On appeal from the Superior Court’s order, Karpoff argues that the

Board “has apparent relational and operation[al] conflicts of interest” that “give rise

to a reasonable basis to question its impartiality.”12 He asserts that the Board’s

failure to provide him with the complete record13 and the Board’s counsel’s

insistence that he waive the right to assert his Chancery claims before an appeal

hearing would be scheduled demonstrate the Board’s bias and inability to fairly

adjudicate the matter. He therefore contends that pursuing his appeal to the Board

is an inadequate remedy and the Superior Court erred by concluding that he could

not demonstrate the futility of exhausting that remedy.

(10) After careful consideration,14 we have concluded that the Superior

Court did not abuse its discretion by dismissing the amended petition.15 “Mandamus

is an exceptional remedy that is not available as a matter of right, but rather, is issued

12
Opening Brief at 10.
13
Specifically, Karpoff claims that he was provided with an email between Whitehouse and an
employee of the State of Delaware but not all the attachments to the email, despite asking for them.
14
We have considered Karpoff’s request for oral argument in this appeal and determined that the
matter should be decided upon the briefs. See generally Del. Supr. Ct. R. 16(a) (“There shall be
oral argument only in those appeals and original proceedings designated by the Court. Otherwise,
cases shall be deemed submitted for decision upon the briefs.”).
15
See Brittingham v. Town of Georgetown, 113 A.3d 519, 524 (Del. 2015) (stating that this Court
reviews the Superior Court’s denial of a petition for a writ of mandamus for abuse of discretion);
see also Boone v. State Dep’t of Health & Social Servs., 144 A.3d 1108, 2016 WL 4091237, at *1
(Del. July 22, 2016) (TABLE) (holding that Superior Court did not abuse its discretion by
dismissing mandamus petition on basis that the duty that the petitioners sought to have state agency
perform was discretionary in nature); Riley v. Carroll, 841 A.2d 308, 2003 WL 22992207, at *1
(Del. Dec. 17, 2003) (TABLE) (stating that Superior Court was “within its discretion to dismiss”
mandamus petition for failure to state a claim upon which relief may be granted under Rule
12(b)(6) because petitioner had “failed to show a clear legal right to the performance of a duty” by
the respondent officials).
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only according to the sound judicial discretion of the court in which mandamus is

sought.”16 It “is a command that may be issued by the Superior Court to an inferior

court, public official, or agency to compel the performance of a duty to which the

petitioner has established a clear legal right.”17 “For the performance of a duty to be

clearly owed to a petitioner, it must be nondiscretionary or ministerial, meaning that

it is ‘prescribed with such precision and certainty that nothing is left to discretion or

judgment.’”18 A writ of mandamus will not issue unless the petitioner can establish

that there is no other adequate remedy available.19 In sum, as a “condition

precedent” to the issuance of the writ, the petitioner must demonstrate that (i) he has

a clear right to the performance of a nondiscretionary duty; (ii) no other adequate

remedy is available; and (iii) the respondent has arbitrarily failed or refused to

perform its duty.20

(11) The amended petition sought an order directing the Board to do five

things: (i) proceed with Karpoff’s appeal; (ii) direct Sussex County to provide

Karpoff with a complete copy of the record on appeal; (iii) issue subpoenas; (iv)

allow Karpoff to conduct direct examination of fact and expert witnesses that he

16
Brittingham, 113 A.3d at 524 (citation and internal quotations omitted).
17
Clough v. State, 686 A.2d 158, 159 (Del. 1996).
18
Brittingham, 113 A.3d at 524.
19
Clough, 686 A.2d at 159; see also Brittingham, 113 A.3d at 524 (“The Superior Court has broad
discretion to deny a petition where the legal duty is unclear or the petitioner has another remedy
available.”).
20
King v. State, 108 A.3d 1225, 2015 WL 317128, at *1 (Del. Jan. 23, 2015) (TABLE).
7
called and to cross-examine hostile witnesses that he called; and (v) allow Karpoff

to cross-examine witnesses called by others. As to the production of the record,

issuance of subpoenas, and the procedures for witness testimony, Karpoff has not

demonstrated that he has no other adequate remedy. The Board has discretion in its

determinations with respect to the examination of witnesses and the issuance of

subpoenas.21 And if the Board arbitrarily or otherwise erroneously decides those

matters or withholds portions of the record to which Karpoff is entitled—and its

ultimate merits decision is adverse to Karpoff—then Karpoff can assert those

arguments in a petition for review by the Superior Court.22 Karpoff therefore has an

21
Cf. Torres v. Allen Family Foods, 672 A.2d 26, 31–32 (Del. 1995) (discussing the scope of the
Industrial Accident Board’s discretion as to the issuance of subpoenas, the admission of evidence,
and the cross-examination of witnesses).
22
See 9 Del. C. § 6918(a) (“Any persons jointly or severally aggrieved by a decision of the Board
of Adjustment or any taxpayer or any officer, department, board or bureau of the County may
present to the Superior Court in and for Sussex County, a petition duly verified, setting forth that
such decision is illegal in whole or in part, specifying the grounds of the illegality. The petition
shall be presented to the Court within 30 days after the filing of the decision in the office of the
Board.”). Cf. Torres, 672 A.2d at 31–32 (reviewing the Superior Court’s review of the Industrial
Accident Board’s refusal to issue subpoenas).
We note that the Board’s rules, as posted on the Sussex County government’s website, do
not contain the limitation on cross-examination that appears in the copy of the rules provided in
Karpoff’s appendix in this appeal. Compare Appendix to Opening Brief at A-II.35 (providing, in
Board Rule 14.6: “During the presentation of an appeal or application to the Board, persons
addressing the Board shall identify themselves by name and place o[f] residence. No cross-
examination of witnesses or applicants will be permitted. All questions for others should be
directed to the Board and the Board may direct the question to the appropriate person. Nothing in
this Paragraph shall limit an attorney from directly questioning witnesses in support of the position
the attorney is advocating.”), with Board Rules, supra note 7 (providing, in Rule 14.6, only that
“[d]uring the presentation of an appeal or application to the Board, persons addressing the Board
shall identify themselves by name and place o[f] residence,” and not including any express
limitation on cross-examination). Because of that discrepancy, it is not clear whether the Board
will prohibit cross-examination. This is further reason that the Board should address Karpoff’s
8
adequate remedy—a petition for review of the Board’s decision in the Superior

Court.

(12) Similarly, after the conclusion of the Board appeal, Karpoff may file a

petition for review under 10 Del. C. § 6918 and present his claim that the Board

erroneously denied his motion for recusal. Although Karpoff pointed to the Board’s

purported lack of impartiality in support of his contention that the Board appeal is

an inadequate remedy, the amended petition did not ask the Superior Court to direct

the members of the Board to recuse. In any event, a writ of mandamus directing the

Board members to recuse themselves would not be warranted because recusal is a

matter within the discretion of the official whose recusal is sought,23 and the remedy

for a wrongful refusal to recuse in this matter is a petition for review by the Superior

Court under Section 6918.

(13) That leaves the amended petition’s request for an order directing the

Board to proceed with Karpoff’s appeal. We agree that the Board appeal should

proceed to a hearing. But the delay in scheduling a hearing is largely attributable to

Karpoff’s filing of litigation in two other venues and his insistence that the hearing

should not proceed unless it proceeded in precisely his preferred manner. Whether

discovery and procedural positions in the first instance and bring the appeal to a conclusion before
Karpoff presents his arguments to the Superior Court.
23
In re Coleman, 115 A.3d 1214, 2015 WL 3649537 (Del. June 9, 2015) (TABLE); In re Webb,
23 A.3d 866, 2011 WL 2685731 (Del. July 11, 2011) (TABLE).
9
or not the Board’s counsel insisted that Karpoff waive legal rights before a hearing

would be scheduled, the amended petition admitted that counsel had abandoned that

position in January 2024, before the mandamus action was filed. Accordingly, the

dispute about waiver did not establish grounds for a writ of mandamus. We find no

reversible error in the Superior Court’s dismissal of the amended petition. If the

Board does not schedule and hold a hearing within a reasonable time, then Karpoff

may file a new petition for appropriate relief.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

BY THE COURT:

/s/ Abigail M. LeGrow
Justice

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