Opinion
C.A. No. 00A-10-006 RRC
Submitted: February 21, 2001
Decided: May 18, 2001
Upon appeal from a decision of the New Castle County Board of Adjustment. Affirmed.
This 18th day of May, 2001, upon consideration of the submissions of the parties, it appears to this Court that:
1. Wayne E. Eastburn ("Petitioner") has appealed a decision of the New Castle County Board of Adjustment ("the Board") denying his request for two area variances for property owned by him in Christiana Hundred, New Castle County at the intersection of Mount Cuba Road and Pyles Ford Road. On August 17, 2000, the Board held a hearing on the requested application for the area variances. By oral decision, the Board confirmed certain non-conforming uses and granted a related area variance. The Board however denied the required area variances for two other proposed lots, which denial forms the basis of this appeal. On September 15, 2000, the Board filed its written decision.
Petitioner filed an appeal of the Board's decision relating to the Board's denial of the requested area variances. For the reasons set forth below, this Court affirms the decision of the Board of Adjustment.
2. Petitioner's property consists of approximately eight acres, currently divided into three separate parcels by Mount Cuba Road and Pyles Ford Road. Petitioner's property is one tax parcel bisected by the these two roads. Mount Cuba Road and Pyles Ford Road create a separation between proposed Lot 3 and Lot 2B and between Lots 1 and 2A, the latter two lots being contiguous. Petitioner's three current lots are zoned NC2a, which zoning allows for the development of single family detached homes and which requires a minimum two acre lot size. The zoning code provides that "[t]he minimum lot area requirement must be met exclusive of protected resources, and for lots less than one acre, exclusive of required buffer yards." Petitioner's intended goal in his application was to create a new Lot 2A. Creating Lot 2A via an area variance would allow Petitioner to sell Lot 2A as a buildable lot.
Mt. Cuba Road splits Lot 3 from 2B.
Pyles Ford Road splits Lot 2B and the remaining parcel, proposed Lot 1 and Lot 2A.
New Castle County Unified Development Code § 40.04.110 (hereinafter "UTDC at ___").
UTDC at § 40.04.110.
Petitioner's Opening Brief at vi.
Id. at vii.
The Department of Land Use for New Castle County recognized and agreed to the separation of Lots 3 and 2B by Mount Cuba Road and Pyles Ford Road as a legal subdivision. Petitioner sought and obtained an area variance as to lots 3 and 2B so as to provide certainty to the subdivision of these lots, more particularly to protect Lot 3 as its acreage of 1.54 acres was less than the two acre minimum.
Recommendation Report to the Board of Adjustment (undated) at 1 (stating that "[t]he Department recognizes that DelDOT's construction of a street through land as a subdivision of land . . . [c]onsequently a variance would not be necessary for the subdivision of lots 3 and 2B.").
Petitioner resides on Lot 3 with his wife. Lot 3 contains a dwelling and a garage. Lot 2B is subject to natural resources, which include a stream and riparian buffer. Petitioner labeled the remainder of the parcel Lots 1 and 2A. This remaining portion of the parcel contains two dwellings and an old spring house, which would be located on Petitioner's proposed Lot 1. Petitioner sought confirmation of the nonconforming status of these two houses to exist on one lot. Both structures were built and occupied before 1954. Petitioner also sought confirmation of a nonconforming situation, the existence of a dwelling within the Code-mandated street and side yards. Since all of these nonconforming situations had been in existence before 1954, the Board approved all of these requests.
Hrg. Tr. at 2.
See Board's Map of Tax Parcel 07-022.00-028.
Id.
Id.
Recommendation Report to the Board of Adjustment at 1 (requesting the "Board to confirm non-conforming use to maintain two (2) single-family dwellings on Lot 1 which have been in existence since pre-1900.")
Board Decision at 2 (hereinafter "Bd. Dec. at __") (stating that "[t]he granting of this variance will not cause substantial detriment to the public good, nor will it substantially impair the intent and purpose of the zoning code.")
As earlier stated, the Department of Land Use recognized the separation of Lots 3 and 2B as a legal subdivision. The Board voted "to grant the requested variances for lots 2B and 3 [as] [t]he requested dimensional change [was] minimal in light of existing neighborhood conditions and the harm to the applicant if the variance was denied would be greater than the probable effect on neighboring properties if the variance was granted." However, the Board refused to grant Petitioner's area variances for proposed lots 1 and 2A, holding that Petitioner had not shown "exceptional practical difficulty" in the development of his property.
Bd. Dec. at 2.
Bd. Dec. at 2.
3. Petitioner argued before the Board and before this Court that the existence of personal circumstances led him to seek an area variance for lots 1 and 2A:
In 1989 Petitioner suffered from a stroke. He has trouble with his oratory and muscular skills. Petitioner's stroke and deteriorating health was the primary factor which led Petitioner to file this application. Petitioner is no longer able to physically or financially maintain the property in its entirety.
Petitioner's Opening Brief at vi.
Petitioner essentially contends on appeal that he met his burden of proof for the Board to have granted the area variance for Lots 1 and 2A. Specifically, Petitioner argues that the UDC's Standards for Zoning Variances was met in that "[t]he gross acreage for lots 1 and 2A is 4.2275 acres [and thus] without the DelDOT takings and without the riparian buffer requirement imposed by the UDC, Petitioner would have enough land to subdivide this area into two 2-acre lots." Therefore, Petitioner basically asserts that the certified record does not contain substantial evidence which would support the Board's decision to deny the variance.
Petitioner's Opening Brief at 1.
Petitioner's Reply Brief at 4.
Id. at 9.
The Board contends that its decision was supported by substantial evidence as Petitioner is not suffering from "exceptional practical difficulties" in the use and enjoyment of his property so that area variances were not warranted to permit the creation of Lots 1 and 2A. The Board further contends that a) "personal difficulties facing the petitioner are insufficient to warrant the award of a variance" and that b) "any difficulties in this land were not sufficient to warrant the further subdivision of Lots 1 and 2A."
Board's Answering Brief at 7.
Id.
Board's Answering Brief at 10.
5. The Supreme Court and this Court have repeatedly emphasized the limited appellate review of the factual findings of an administrative agency. The scope of review for the Superior Court upon an appeal from the Board of Adjustment is twofold: 1) to examine the record in order to determine whether substantial evidence exists in support of the Board's finding of fact, and 2) to determine whether the Board's conclusions of law are devoid of error. "Substantial evidence is such relevant evidence as a reasonable mind might accept as sufficient to support a conclusion."
Janaman v. New Castle County Bd. of Adjustment, Del. Super., 364 A.2d 1241, 1242 (1976); Mellow v. Board of Adjustment of New Castle County, Del. Super., 565 A.2d 947, 954 (1988).
Oceanport Ind. v. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994).
Questions of conflict in testimony and witness credibility are resolved by the fact finder, [i.e.] the Board . . . and not by the Court." On appeal from the Board, this Court does not sit as a trier of fact with authority to weigh the evidence, determine questions of credibility, and make its own factual findings and conclusions. Stated differently, "this Court does not substitute its judgment for that of the Board." Furthermore, "[this] Court will not disturb a decision [reached by the Board] simply because a different view of the same evidence could be taken given the totality of the circumstances surrounding the application." "When [the Industrial Accident] Board decides not to expressly state certain findings, the courts are capable of inferring from the Board's conclusions what the underlying findings must have been." A petitioner seeking judicial review of the Board's decision has the burden of persuasion to show the decision was arbitrary and unreasonable.
General Motors Corp. v. McNemar, Del. Supr., 202 A.2d 803, 807 (1964); Air Mod Corp. v. Newton, Del. Super., 215 A.2d 434, 438 (1965); Coleman v. Department of Labor, Del. Super., 288 A.2d 285 (1972); Shively v. Klein, Del. Supr., 551 A.2d 41, 45 (1988).
Petrucelli v. New Castle County Bd. of Adjustment, Del. Super., C.A. No. 97A-02-009 Quillen, J. Feb. 20, 1998) (Letter Op.).
Stewart v. Del. Liquor Comm., Del. Gen. Sess., 74 A.2d 472, 473 (1950); Del. Alcoholic Rev. v. Alfred I. duPont Sch. Dist., Del. Supr., 385 A.2d 1123, 1125 (1978).
Council of Civil Organizations of Brandywine Hundred v. New Castle County Board of Adjustment, Del. Super., C.A. No. 95A-01-005, Toliver, J. (Nov. 17, 1995) (Op. and Order) at 7 (citing Koilock v. Sussex Co. Board of Adjustment, Del. Super., 526 A.2d 569, 571 (1987)).
Keith v. Dover City Cab Co., Del. Super., 427 A.2d 896, 899 (1981) (citing Board of Public Education in Wilmington v. Rimlinger, Del. Supr., 232 A.2d 98 (1967)).
Petrucelli at 2 (citing McQuail v. Shell Oil Co., Del. Supr., 183 A.2d 572, 578 (1962); Mobile Oil Corp. v. Board of Adjustment, Del. Supr., 283 A.2d 837, 839 (1971); Mellow v. Board of Adjustment, Del. Super., 565 A.2d at 947, 955 (1988).
This Court also notes that "zoning codes are not completely without flexibility in terms of their application, [but these zoning codes] are more than guidelines. The administering authority, . . . the Board, has the discretion to adjust [its] impact if certain criteria are met depending upon the particular provision of the code at issue." "[A]lthough the Board has discretion to grant or deny a variance request, that discretion is not without limits."
Council of Civil Organizations of Brandywine Hundred at 6.
Janaman v. New Castle County Rd of Adjustment, Del. Super., 364 A.2d 1241, 1242-1243 (1976).
6. In this appeal, the only variances being contested are the requested area variances to create Lots 1 and 2A, which were denied by the Board. "[A]n application for a variance by a [property owner] seeks permission to use that property in a manner otherwise forbidden by [the] applicable zoning regulations or laws." This relief is sought in the form of an area variance or a use variance. An area variance is accorded the less restrictive "exceptional practical difficulties' of ownership standard, as opposed to the "exceptional hardship' language which refers to a use variance, because a use variance changes the character of the zoned district by permitting an otherwise prohibited use. "[A]n area variance concerns only the practical difficulties of using the particular property for a permitted use." Because Petitioner is seeking an area variance, Petitioner must satisfy this lower standard of the "exceptional practical difficulty" test. Under this test, there are several factors that must be considered by the Board:
Council of Civil Organizations of Brandywine Hundred at 11.
Doebling v. Board of Adjustment of the City of Lewes, Del. Super., C.A. No. 86A-FE1, Chandler, J. (April 20, 1987) (Letter Op.) (citing Board of Adjustment v. Kwik-Check Realty, Inc. Del. Supr., 389 A.2d 1289, 1291 (1978)).
Doebling at 3 (citing Kwik-Check at 1289).
Kwik-Check at 1291.
1) the nature of the zone in which the property lies;
2) the character of the immediate vicinity and the uses contained therein;
3) whether, if the restriction upon the applicant property were removed, such removal would seriously affect such neighboring property and uses;
4) whether, if the restriction is not removed, the restriction would create unnecessary hardship or exceptional practical difficulty for the owner in relation to his efforts to make the normal improvements in the character of that use of the property which is a permitted use under the use provisions of the ordinance. "The Board must perform these evaluations all the while keeping in mind the public good as well as the intent and purpose of the applicable zoning provisions."
Id.
Council of Civil Organization of Brandywine Hundred at 8.
In Doebling v. Rd. of Adjustment of the City of Lewes, a case with similar facts, this Court held that petitioner's marital circumstances were unfortunate, but nevertheless personal in nature and that "[s]uch dilemmas have no intrinsic relationship to the property itself." The Court further held that "[p]roblems with no relationship to the use for the property itself are not sufficient to meet the "exceptional practical difficulties" standard." In Doebling, the petitioner appealed the Board's decision which had denied her an application for an area variance. Apparently, the petitioner's primary reason for seeking the area variance was compelled by family circumstances resulting from a divorce. The property, which was the primary marital asset, normally would have been sold. However, the petitioner was a long time resident on the property and the property provided the means for her daughter and grandchild to enjoy visitation rights. Basically, the property at issue in Doebling served as a means for the petitioner's grandchild to see her mother who resided out of state.
Doebling at 3.
Doebling at 3 (citing Vassallo v. Penn Rose Civic Assn., Del. Supr., 429 A.2d 168, 172; Anderson, American Law of Zoning § 20.54 and cases cited therein.).
Doebling at 2.
This Court is sympathetic, as was the Doebling Court, to Petitioner's dilemma, namely the claimed financial burden of maintaining the property after having endured a stroke, and paying property taxes for the entire property. However, "difficulties [that are] uniquely personal to the owner, rather than intrinsically related to the property itself, are not appropriate subjects for relief under the variance procedure."
Id. at 3.
In Yates v. Paul, this Court reversed a decision of the Board granting an area variance. In Yates, the respondents were granted an area variance to create a second lot by subdivision in order for their son-in-law to build a single family home on the proposed rear lot. This Court found that, after a review of the record, no basis for the finding that the hardship of difficulties of the respondents were caused or created by the zoning restrictions. The difficulties were deemed by this Court to be "personal to the owners, rather than intrinsically related to the property itself, [and thus] are inappropriate subjects for relief under the variance procedure."
Yates v. Paul, Del. Super.. C.A. No. 87A-DE-7-1, Bifferato, J. (July 19, 1988) (Letter Op.).
Yates at 1.
Id. at 3.
Id.
7. Petitioner contends that he met the "exceptional practical difficulty" standard. However, apparently implicitly referring to Petitioner's personal difficulties, the Board found that "the constraints facing the applicant, aside from land lost due to DelDOT takings, namely the presence of protected resources, should not form the basis for attaining an area variance when to do so would undercut the very protection standards designed to buffer those resources." The Board voted to deny the variances requested for Lot 1 and 2A and stated the following in support of that decision:
Bd. Dec. at 2.
The requested dimensional changes are not minimal and the harm to the applicant if the variances were denied would not be greater than the probable effect on neighboring properties if the variances are granted. The granting of these variances would cause substantial detriment to the public good, and it could substantially impair the intent and purpose of the zoning code.
Id.
The Board continued in its decision holding
The Board was of the opinion that the applicant could still successfully subdivide his property, he just would not be able to have as many lots. The ability to subdivide into three, as opposed to four, lots was, in the Board's opinion, sufficient use of the land to remove the need for a variance. In short, the applicant cannot demonstrate exceptional practical difficulty in the development of his property.
Id.
In response to the contention that there are several surrounding properties which are maintained below the two acre requirement of the NC2a zoning, the Board found that "there are a number of sub-2 acre lots in the area, [but] they were created prior to the advent of the UDC and, thus, not subject to the Code's density controls."
Id.
With respect to the "existence of other sub-2 acre lots in this area," testimony at the hearing indicated that some of the other residents' zoning consisted of ½ acre lots when those residents purchased their property before the adoption of the UDC in 1997. Since that time, the zoning restrictions have changed to require a minimum of two acres for NC2a lots. As the Board asserts in its Answering Brief, "[t]he language of the Code, as well as the evidence on the map [submitted by Petitioner], is a clear indication of the character of the community."
This Court agrees with the Board's position that [s]ubdividing what was a greater than 6 acre parcel into 3 lots, two of which are smaller than the Code mandated 2 acres, is a great enough concession to the Petitioner's situation. Further subdividing the only remaining lot that meets the minimum lot requirement into two additional substandard lots simply does not make sense under the Code.
Board's Answering Brief at 11.
Hrg. Tr. at 14.
Board's Answering Brief at 11.
Id. at 12.
8. This Court finds that there was substantial evidence presented to the Board to have found that Petitioner's area variance to create Lots 1 and 2A should not be permitted. The evidence adduced at the hearing does confirm that the Board was within its scope of authority in granting the non-conforming uses and denying the area variance to create Lot 1 and Lot 2A. The Board's reasons for its decision, although somewhat sparse, are legally sufficient to sustain its decision. For the above reasons, the Board's September 15, 2000 decision to deny the requested area variance is AFFIRMED.
"When a[n] [Industrial Accident] Board decides not to expressly state certain findings, the courts are capable of inferring from the Board's conclusions what the underlying findings must have been." Keith v. Dover City Cab Co., Del. Super., 427 A.2d 896, 899 (1981).
Petitioner also asserts a "due process" violation since there was discussion of Petitioner's utilization of a conservation easement at the hearing. However, this Court finds that although the Board mentioned a conservation easement in its factual recitation of the its decision, the conservation easement did not appear to play a role in the Board's opinion and the Board did not otherwise utilize the conservation easement discussion to form a basis for its decision.
IT IS SO ORDERED.