Opinion
C.A. No. K18A-08-004 WLW
02-22-2019
ALBERT C. EBERT III, Petitioner, v. KENT COUNTY DEPARTMENT OF PLANNING SERVICES, Respondent.
Albert C. Ebert III, Petitioner, pro se William W. Pepper, Esquire of Schmittinger & Rodriguez, P.A., Dover, Delaware; attorney for Respondent.
ORDER
Upon an Appeal from the Decision of the Kent County Board of Adjustment
Affirmed. Albert C. Ebert III, Petitioner, pro se William W. Pepper, Esquire of Schmittinger & Rodriguez, P.A., Dover, Delaware; attorney for Respondent. WITHAM, R.J.
INTRODUCTION
Presently before the Court is an appeal from a decision of the Kent County Board of Adjustment ("BOA") brought by Albert Ebert III ("Appellant"). The Appellant seeks to reverse the BOA's decision to deny his variance application that would have legalized the percentage of impervious surface coverage on his property that currently exceeds the maximum 23% permitted pursuant to Kent County Code § 205-67. After a careful consideration of the Appellant's appeal, the Court finds an incurable defect in the appeal itself that leaves the Court no choice but to dismiss. Thus, for the forthcoming reasons, the Court AFFIRMS the decision of the BOA.
The Appellant has named only the Kent County Department of Planning Services ("Respondent") as a party and notably, not the Kent County BOA. The Court will address this, and another defect of this appeal in due course.
Due to failure to join the BOA pursuant to Superior Court Civil Rule 19, the Court must dismiss the appeal.
FACTUAL AND PROCEDURAL BACKGROUND
The Appellant is the owner of property located at 43 Bayview Ave., Frederica, Delaware. The property is zoned as a Agricultural Residential District ("AR") and is approximately 0.34 acres in size. It contains a one-story, single-family dwelling, a large four-bay garage, an above ground pool, a storage shed, two paved driveways, and a concrete walkway.
The Respondent, and its staff, reviews and processes a variety of Land Use applications in Kent County, Delaware. In addition to preparing variance applications to be heard by the BOA, the Respondent also reviews site plan and subdivision plan applications to be heard by the Regional Planning Commission, and rezoning and conditional use applications which are heard by both the Regional Planning Commission and the Levy Court. The Respondent makes recommendations to the BOA, but does not make the actual decisions regarding individual applications.
The Kent County BOA, serves as the reviewing and decision making body for appeals to the administration of the zoning code. The BOA may grant special exception variances form the code consistent with state law. The BOA is comprised of seven members, one from each Levy Court district. The presence of a quorum (four or more members) is necessary for the Board to take official action on any matter before it for consideration.
Variance applications are heard by the BOA, and a decision made, on the third Thursday of each month.
In the fall of 2017, the Appellant paved a large portion of his property, increasing the impervious surface coverage on the property to approximately 45%. The legal limit for impervious surface coverage on property, located in an AR, is 23%. Prior to this undertaking, the Appellant failed to apply for a variance from the Kent County BOA.
See Kent Cnty. C. § 205-67.
In October 2017, the Respondent received a complaint from one of the Appellant's neighbors regarding the additional impervious surface coverage. On May 8, 2018, several months after the Appellant laid the additional impervious surface, he, for the first time, filed an application for a variance.
In response to the Appellant's application, the Respondent conducted an evaluation of his property and subsequently, recommended to the BOA that the application be denied. The BOA met on June 21, 2018 and considered the Appellant's variance application. The Appellant and his wife, Brenda Ebert ("Mrs. Ebert"), testified in favor of the application and stated that the additional pavement was laid in front of the four-bay garage, previously granted approval for by the BOA, to facilitate the movement of their business vehicles, primarily in snow conditions. Both further denied that their property was prone to flooding and asserted that water drained towards the street located in front of the property.
See Dep't of Planning Serv. Staff Recommendation Rep., June 21, 2018 at B-1-3 (The Respondent's recommendation was based on the following: (1) several other lots in the subdivision appeared to comply with section 205-67; (2) the combined impervious surfaces on the Appellant's lot appeared "to be out of character," and made the property appear "over-improved" compared to other neighboring lots; (3) the additional impervious surface coverage in a flood plain, may cause and increase flooding to neighboring lots; (4) the Appellant's blatant disregard for previous instructions not to further increase impervious surface coverage without permission from the BOA; and (5) any difficulty experienced by the Appellant in the event of the variance being denied would be "self-imposed.").
Kent Cnty. Bd. of Adjustment Hearing Minutes, June 21, 2018 at B-6-8.
Id. at B-7-8.
An adjacent property owner testified in opposition to the application and provided the BOA with video evidence of flooding in the neighborhood. The neighbor testified that the flooding had increased since the Appellant had built his garage and further laid the additional pavement. Additionally, she further testified that an installed radius at the end of Ebert's driveway, had caused flooding to increase both on the street, and her property.
Id. at B-9-11.
Id. at B-11 (the neighbor also testified that she had observed an increase in flooding since the BOA granted the Appellant a variance for the garage in 2016.).
Id. at B-10.
After considering the testimony and evidence presented, the BOA denied the Appellant's variance application. The BOA based its decision largely on the Respondent's recommendations, and found that the Appellant's combined impervious surfaces were out of character of the surrounding neighborhood and that a variance may impact the neighboring properties by increased flooding.
Kent Cnty. Bd. of Adjustment, Notice of Decision, July 19, 2018 at B-17.
The Appellant filed his timely notice of appeal on August 17, 2018 and subsequently submitted his opening brief on October 4, 2018. The Respondent filed its answer, in opposition, on October 26, 2018. To date, the Appellant has failed to make any further amendments, nor provided the Court with any response to the Respondent's answer.
SUMMARY OF PARTIES' CONTENTIONS
The Appellant seeks reversal of the BOA's decision. As the party seeking to overturn the BOA's decision, the Appellant has the burden of persuasion to show the BOA's decision was arbitrary and unreasonable. His brief, however, is silent as to any legal argument or assignment of legal error. Rather, the Appellant bases his appeal on two arguments. First, the Appellant argues he can provide the Court with video and pictorial evidence that demonstrates that it was physically impossible for his property to be responsible for the flooding of the neighboring lots. Second, the Appellant argues that a representative from "Kent Conservation" evaluated his property and concluded that the existing, additional impervious surface coverage on the Appellant's property was not responsible for flooding his neighbor's property. Finally, at the public hearing, Mrs. Ebert also contended that the Eberts did not understand the prior instructions given in 2016 that prohibited an increase in the property's impervious surface coverage without prior BOA approval.
Gilman v. Kent Cnty. Dep't of Planning, 2000 WL 305341, at *2 (Del. Super. Jan. 28, 2000) (citing Profita v. New Castle Cnty. Bd. of Adjustment, 1992 WL 390625, at *3 (Del. Super. Dec. 11, 1992)).
See Appellant Brief (The Appellant fails to provide the court with any evidence regarding his assertion.).
See Id. (Again, the Appellant fails to provide the Court with any evidence, documentary or otherwise, relating to any examination of his property performed by Kent Conservation.) However, the Court is limited to the record developed at the BOA level. (See footnote 20 herein.)
Kent Cnty. Bd. of Adjustment Hearing Minutes at B-7.
The crux of the Respondent's reply is that the Board's decision should be affirmed because it is free from legal errors and substantial evidence exists in the record that supports the BOA's findings of fact and conclusions of law.
Resp't Resp. at 4.
Additionally, the Respondent identifies two procedural defects in the Appellant's appeal. First, the Respondent states that the Appellant's notice of appeal was not duly verified as required by the statute. Second, the Respondent states that the Appellant has failed to name the BOA as a party to the appeal, implying that the BOA is an indispensable party to the appeal. As a result of the second procedural defect, the Court must dismiss the Appellant's appeal. However, assuming arguendo, if the Court had allowed the appeal to survive, the Appellant's appeal would still fail on the merits.
To date, the Appellant has not rectified either of those defects.
See Super. Ct. Civ. R. 19.
STANDARD OF REVIEW
When a decision of a BOA is appealed in Delaware, the Superior Court's review is "restricted to a determination of whether the [BOA's] decision is free from legal errors and whether [its] finding of facts and conclusions of law are supported by substantial evidence in the record." The BOA must "particularize its findings of fact and conclusions of law to enable the Superior Court to perform its function of appellate review." Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." If substantial evidence is present, then the Court is prohibited from re-weighing the evidence or substituting its judgment for that of the BOA.
Tolson v. Kent Cnty. Dep't. of Planning Serv., 2012 WL 1995796, at *2 (Del. Super. May 22, 2012).
Gilman, 2000 WL 305341, at *2 (citing Profita, 1992 WL 390625, at *3).
Pizzadili Partners, LLC v. Kent Cnty. Bd. of Adjustment, 2016 WL 4502005, at *3 (Del. Super. Aug. 26, 2016) (citing McKinney v. Kent Cnty. Bd. of Adjustment, 2002 WL 1978936, at *4 (Del. Super. July 31, 2002)).
Dover Land Holdings, LLC v. Kent Cnty. Bd. of Adjustment, 2016 WL 3951699, at *2 (Del. Super. July 15, 2016).
After reviewing a BOA's decision, "[t]he Court may reverse or affirm, wholly or partly, or may modify the decision brought up for review." Questions of law are reviewed de novo.
Tolson, 2012 WL 1995796, at *2.
DISCUSSION
As a preliminary matter, the Court must first address the two procedural defects identified by the Respondent regarding the Appellant's appeal.
A. Appellant's Failure to Verify Notice of Appeal is not Fatal
The Respondent states in passing that the Appellant's appeal was not, and apparently still is not, duly verified, as required by 22 Del. C. § 328. However, despite the Court's agreement with the Respondent, the Respondent does not expressly move for dismissal. Thus, given the lack of a motion to dismiss coupled with the Appellant's status as a pro se litigant, the Court will overlook the defect and allow the appeal to survive the defect.
Resp't Resp. at 1.
Section 328 of Title 22 of the Delaware Code requires that appeals to the Superior Court from the BOA be by "petition, duly verified." In this case, the Appellant's appeal was not duly verified at the time of filing, nor has it been amended since the Respondent identified it on October 26, 2018.
22 Del. C. § 328(a) provides "any person or persons, jointly or severally aggrieved by any decision of the board of adjustment...may present to the Superior Court a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality." (Emphasis added.)
There are times, when appropriate, that the Court will provide a pro se litigant some degree of latitude in preparing and presenting a case or appeal. Here, the Court finds leniency towards the Appellant is appropriate.
See Alston v. State, 2002 WL 184247, at *1 (Del. Super. Jan. 28, 2002) ("While procedural requirements are not relaxed for any type of litigant (barring extraordinary circumstances or to prevent substantial injustice), the Court may grant pro se litigants some accommodations that do not affect the substantive rights of those parties involved in the case at bar.").
It is well-settled in Delaware that appeals should be decided on the merits rather than "nice technicalities of practice." To that end, the Delaware Supreme Court has adopted the "modern rule" that "de-emphasizes the technical procedural aspects of appeals and stresses the importance of reaching and deciding the substantive merits of appeals whenever possible."
Episcopo v. Minch, 203 A.2d 273, 275 (Del. 1964) ( "[A]ppeals as well as trials should, where possible and where the other side has not been prejudiced, be decided on the merits and not upon nice technicalities of practice.").
State Pers. Comm'n v. Howard, 420 A.2d 135, 137 (Del. 1980).
For example, in Di's Inc. v. McKinney, our Supreme Court held that this Court has jurisdiction to hear an appeal from a BOA decision before the appellant has fully complied with the statutory requirements for filing the appeal. In that case, the appellant filed a timely petition within thirty (30) days after the BOA filed its decision. However, the petition was not duly verified and the appellant did not submit a duly verified petition to the Court until approximately eight months later, well after the 30-day time limit had expired.
673 A.2d 1199 (Del. 1996).
Id. at 1202.
Id. at 1201.
Di's Inc., 673 A.2d at 1202.
In the case sub judice, the record reflects that the Appellant filed a timely appeal, but unlike the appellant in Di's Inc., our Appellant has not attempted to remedy the defect in his appeal. And while the Court agrees with the Respondent that there is in fact a defect, the Respondent has not expressly moved for dismissal on this ground.
The Court also realizes that pro se litigants may not fully understand the technical and/or procedural requirements that are second nature to seasoned attorneys. Indeed, despite a pro se litigant's best efforts, oftentimes, they still may not be procedurally compliant with all Court's rules. Here, however, there is nothing in the record that suggests that the Appellant purposefully submitted his appeal, knowing that there was a defect upon submission. Additionally, since he is pro se, the Appellant may not be cognizant of the issue identified by the Respondent. As such, the Court finds that no substantial prejudice will result on behalf of the Respondent if the appeal is allowed to continue.
Therefore, in the interests of justice, the Court finds that the Appellant's lack of a duly verified petition is not fatal, and thus, the appeal will not be dismissed on that ground alone.
B. Appellant's Failure to Join the BOA, pursuant to Superior Court Civil Rule 19, is Fatal
The Respondent has also identified that the Appellant failed to properly join the BOA as a party to the current action, pursuant to Superior Court Civil Rule 19 ("Rule 19"). Although the Respondent does not expressly move for dismissal pursuant to Superior Court Civil Rule 12(b)(7) because of this defect, a dispositive issue regarding dismissal of this appeal remains. The Court must determine whether the Kent County Board of Adjustment is an indispensable party who will suffer substantial prejudice as a result of its exclusion from the case.
After a careful analysis of settled standards of Delaware jurisprudence regarding Rule 19, the Court finds that the Board is an indispensable party and that prejudice would result if the Court allowed the appeal to continue. Thus, in this specific case, the non-amenable defect does require the Court to dismiss the appeal on this technicality.
Parties with a direct stake in the litigation at hand are called indispensable parties, and typically must be present in the case. When a failure to join such parties will result in substantial prejudice to the absent interest, it is considered a non-amendable defect which will require dismissal. "This rule generally is not considered discretionary but is a fundamental question of jurisdiction, which cannot be waived by the parties or disregarded by the appellate court, and the latter has no power to hear and determine a case unless all the parties directly affected by the judgment ... are brought before it."
Covington v. Bd. of Adjustment of City of Rehoboth Beach, 2016 WL 7242581, at *2 (Dec. 14, 2016) (citing State Personnel Comm'n v. Howard, 420 A.2d 135, 137 (Del. 1980)).
Id.
Sussex Medical Investors, L.P. v. Delaware Health Resources Bd., 1997 WL 524065, at *2 (Del. Super. Apr. 8, 1997) (internal citations omitted) (emphasis added).
Furthermore, Rule 19 provides that all parties necessary for a fair adjudication shall be joined as parties to the case. While Rule 19 is technically a trial rule, it has been extended to appeals of this Court. In the event that a Court is faced with an absent party "the Court shall determine whether in equity and good conscience the action should proceed among the parties before it, or should be dismissed, the absent person thus being regarded as indispensable."
Super. Ct. Civ. R. 19; Covey v. Cnty. Bd. of Adjustment of Sussex County, 2002 WL 970469, at *2 (Del. Super. May 7, 2002).
Super. Ct. Civ. R 1 ("These Rules shall govern the procedure in the Superior Court in the State of Delaware..."); Covey, 2002 WL 970469, at *2 (holding that Rule 19 applied to an appeal to the Superior Court from the Sussex County Board of Adjustment); Sussex Medical Investors, 1997 WL 524065 at *2 (holding that Rule 19 applied to an appeal to the Superior Court from the Delaware Health Resources Board); Liborio II, L.P. v. Artesian Water Co., 621 A.2d 200 (Del. Super. 1992) (holding that Rule 19 applied to an appeal in the Superior Court from the Public Service Commission).
Super. Ct. Civ. R. 19(b).
Our Supreme Court, in Zoning Bd. Of Adjustment of New Castle County v. Dragon Run Terrace, Inc. wrote,
216 A.2d 146, 148 (Del. 1965).
...while the Board is only an agency of the county, has no corporate existence and has no direct interest in the outcome of the litigation, it nevertheless represents the public interest in the protection and enforcement of the zoning regulations. As the guardian of the public interest, it therefore has standing to defend its decision on appeal, particularly in view of the fact that it is the only indispensable party before the Superior Court.The Supreme Court has further explained that the purpose of this procedural requirement was to ensure that all parties who may be directly affected by the litigation had proper notice of the litigation.
Zoning Bd. of Adjustment of New Castle Cnty, 216 A.2d at 148 (emphasis added).
State Personnel Comm'n v. Howard, 420 A.2d 135, 138 (Del. 1980). (The Superior Court called into question the Howard analysis in Sussex Medical Investors, but stated that it was "guided by the general holding of Howard that appellate courts should 'decide the substantive merits of appeals whenever possible...' " The Court was unwilling to directly apply the Howard analysis because that case failed to take into account Superior Court Civil Rule 15 and 19. Sussex Medical Investors, 1997 WL 524065, at *3.
Here, this Court, guided by Dragaon Run Terrace, Inc., has previously held that a BOA is an indispensable party. In Covington v. Board of Adjustment of City of Rehoboth Beach, the City of Rehoboth Beach ("the City") passed a zoning ordinance that was subsequently approved in a referendum in November of 2015. The appellants in that case submitted a building permit application but the proposed structure would have violated the ordinance. As a result, the application was denied because it did not meet the ordinance's requirements. The appellants appealed to the Rehoboth Beach BOA, and the BOA affirmed the decision of the Building Inspector.
2016 WL 7242581 (Del. Super. Dec. 14, 2016).
Covington, 2016 WL 7242581, at *1.
Id. at *1.
Id.
Id.
After both sides had submitted their opening briefs, the BOA filed a Motion to Dismiss claiming that the City was an indispensable party to the action and that the Appellants' failure to join the City is a non-amendable defect warranting dismissal. The court denied the BOA's motion and held that the BOA was the only indispensable administrative party in an appeal from its decision.
Id. at *2.
Covington, 2016 WL 7242581, at *3.
When possible, an appeal should be decided on the merits rather than a technicality. That is not the case here however. Here, the Court is guided by our prior decision in Covington, and finds that the BOA is an indispensable party. The Kent County BOA, much like the Rehoboth Beach BOA, appears to be the only indispensable administrative party in an appeal from a decision that the BOA, itself, made.
Howard, 420 A.2d at 137.
Covington, 2016 WL 7242581, at *3.
The Court makes this determination within the bounds of Rule 19, and finds that the case may not proceed in good conscience without joining the BOA as a party. Thus, the Court has no alternative but to dismiss the Appellant's case.
C. The Appellant's Appeal Fails on the Merits
Assuming arguendo that the non-amendable defect was not present, the Court would still find the Appellant's appeal fails on the merits. Here, the Appellant failed to demonstrate that the BOA's decision was arbitrary and unreasonable. As a result, the Court would still affirm the BOA's decision.
Supra note 10.
Section 4917 of Title 9 of the Delaware Code provides:
[T]he Board of Adjustment shall have the following powers:
[w]here by reason of ... extraordinary and exceptional situation or condition of such piece of property, the strict application of any regulation adopted under this subchapter would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the owner of such property, to authorize, upon an appeal relating to such property, a variance from such strict application as to relieve such difficulties or hardship; provided such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zoning plan and zoning regulations.
Under this statutory standard, so-called "area variances" concerning practical difficulties in using particular property for permitted uses are determined subject to the "exceptional practical difficulty" standard. This is a less burdensome standard compared to determining whether to grant "use variances" (variances from the permitted type of use for the land), and considers "whether a literal interpretation of the zoning regulations results in exceptional practical difficulties of ownership."
Mesa Comm'n Grp. v. Kent Cnty. Bd. of Adjustment, 2000 WL 33110109, at *4 (Del. Super. Oct. 31, 2000) (citing Kwik-Check Realty Co., Inc. v. Bd. of Adjustment of New Castle Cnty, 369 A.2d 694, 698 (Del. Super. 1977) aff'd Bd. of Adjustment of New Castle Cnty. v. Kwik-Check Realty, Inc., 389 A.2d 1289, 1291 (Del.1978)).
Mesa Comm'n Grp., 2000 WL 33110109, at *4 (citations omitted).
In this context, exceptional practical difficulty exists when "the requested dimensional change is minimal and the harm to the applicant if the variance is denied will be greater than the probable effect on neighboring properties if the variance is granted." This difficulty cannot merely be theoretical or routine, and whether exceptional practical difficulty exists is determined by a weighing of the so-called Kwik-Check factors. These factors include:
Id.
Id.
(1) the nature of the zone where the property is located;
(2) the character and uses of the immediate vicinity;
(3) whether removal of the property restriction would seriously affect the neighboring property; and
(4) whether failure to remove the restriction would create unnecessary hardship or exceptional practical difficulty for the owner in relation to his efforts to
make normal improvements in the character of the use of the property which is a permitted use under the applicable ordinances.
Id. .
In this case, the BOA considered the submitted evidence, including video evidence of flooding, presented at the public hearing in light of the applicable legal factors. During the BOA's vote at the close of the public hearing, the BOA members explained their reluctance to approve the variance based on the recommendation made by the Respondents, including the fact that variance, if granted, would create impervious surface coverage that exceeded the Code by nearly 50%. The BOA further expressed concern regarding the negative impact the variance would continue to have on the neighboring properties. This was clearly evidenced by the video evidence presented at the hearing. Finally, the BOA found no evidence that denial of the variance created an unnecessary hardship or exceptional practical difficulty for the Appellant.
See Kent Cnty. Bd. of Adjustment, Notice of Decision at B-17-18.
While the Board did not cite this as a reason to deny the Appellant's application, the Court reemphasizes that the Respondent did cite this as part of the basis for recommending denial of the application.
The Appellant wanted to expand his driveway to cover the gravel portions, making it easier for his vans to get in and out of the driveway during the winter. However, the Appellant failed to provide the BOA, or the Court for that matter, any evidence to the contrary. Rather, the Appellant appears to have argued the "I didn't know" defense during the hearing when he stated that no one told him he "could not black top the already existing gravel driveway" in 2016, when he was granted the variance, by the same BOA, to build his garage.
Upon examination of the record, the Appellant does not convince the Court. First, the Appellant submits the Conditions of Approval for [the] Home Based Contractor's Establishment, signed by him on February 5, 2016. This document was presented to the Appellant prior to his 2016 variance being approved and provides:
[a]ll regulatory requirements, regulations, and recommendations submitted by any agency member of the Development Advisory Committee shall be satisfied.
Appellant Ex., Conditions of Approval for [the] Home Based Contractor's Establishment at A(7) (emphasis added).
Kent County Code § 205-67 states that no more than 23% of each lot in an AR shall be covered by man-made impervious surfaces. As such, the Court rejects the Appellant's contentions to the contrary, and finds that the Appellant was placed on notice to follow all regulations.
See Kent Cnty. C. § 205-67.
See also Kent Cnty. Bd. of Adjustment Hearing Minutes at 2. (The Court would be further unconvinced by Mrs. Ebert's testimony. At the public hearing, Mrs. Ebert confirmed that the Respondent had previously advised the Ebert's they were prohibited from laying "black top" on any additional area surrounding the garage. She further testified that she and the Appellant were confused by the previous instructions. However, the Eberts' "confusion" regarding the instructions does not change the fact that they were notified of the restriction and either intentionally, or unintentionally, disregarded it.
Based upon the evidence presented at the public hearing, including testimony of the Appellants, the Court would find that the BOA legitimately determined that the Appellant's justification for the unlawful impervious surface coverage, weighed against its negative impacts to the community, was insufficient to satisfy the variance requirements.
Even if the appeal had survived the defect that ultimately led the Court to dismiss it, the Court would find no legal error in the BOA's decision and that it was supported by substantial evidence. The BOA's decision was neither arbitrary nor legally defective and as a result the Court would be prohibited from re-weighing evidence or conducting independent fact-finding on review. Thus, the Board's decision would stand on the merits.
CONCLUSION
For the foregoing reasons, the Appellant's appeal must be dismissed because of an non-amendable defect pursuant to Superior Court Civil Rule 19. Accordingly, the Board's decision is AFFIRMED.
IT IS SO ORDERED.
/s/ William L. Witham, Jr.
Resident Judge WLW/dmh