Opinion
C.A. No. 99A-05-001 HDR.
Submitted: November 24, 1999.
Decided: January 28, 2000.
Upon Appeal from a Decision of the Kent County Board of Adjustment REVERSED
William F. Gilman and Betty A. Gilman, Hartly, Delaware, pro Se.
Craig T. Eliassen, Esq. and Crystal L. Carey, Esq. of Schmittinger Rodriguez, P.A., Dover, Delaware, for Appellee Kent County Board of Adjustment.
OPINION
This is an appeal from a decision of the Kent County Board of Adjustment ("the Board"). Appellants, William F. Gilman and Betty Ann Gilman, sought a variance from a provision of the Kent County Zoning Ordinance in order to construct an accessory building that would exceed the size and area of their mobile home. The Board held a public hearing and voted to deny the Gilmans' request. The Gilmans have petitioned this Court to grant a Writ of Certiorari and review the Board's decision under 9 Del. C. § 4918. Because the Board did not apply the proper legal standard in this case, the Board's decision is reversed.
I. BACKGROUND
The Gilmans filed an application with the Board for a variance from Article 3, Section 13, Item 4 of the 1991 Kent County Zoning Ordinance. This ordinance prohibits an accessory building from dominating in area, extent or purpose the principal use or structure. The Gilmans sought a variance to permit the construction of a 60'x80' accessory building in which they planned to store the equipment used in their beekeeping business. The property in question is zoned agricultural-residential and is located on the west side of Judith Road (County Road 170), approximately 400 feet south of Hartly Road (Delaware Route 44), east of Hartly. It is surrounded by six single family homes, three mobile homes and an antique store. The remaining land in the area is either vacant, tilled or wooded. The Gilmans currently reside on the property in a 12'x55' trailer that has a 12'x20' addition. If their application for a variance had been granted, it would have allowed them to construct an accessory building more than five times the size of their dwelling.
See Article 3, Section 13, Item 4 of the 1991 Kent County Zoning Ordinance.
The Board of Adjustment recommended in its Staff Report that modified approval be granted to the Gilmans' application for a variance and that the size of the proposed accessory building be reduced by fifty percent. The Board held a public hearing regarding the Gilmans' application on April 15, 1999. After reviewing the Gilmans' application and the testimony presented at the public hearing, the Board decided by a vote of six to one to deny the variance. In support of its decision, the Board reasoned that the testimony presented at the public hearing revealed that the Gilmans had failed to demonstrate a hardship.
The Gilmans filed an appeal to the Board's decision on April 23, 1999. They originally asserted two principal grounds for their appeal. First, they claimed that only a 60'x80' accessory building would be large enough to store all of their equipment, and that without such a building, they would experience hardship, because they would have to continue storing their equipment outdoors and in their trailer, and by doing so, they would continue to incur code violations. Second, the Gilmans alleged that they did not receive a fair hearing, because the testimony at the public hearing regarded complaints about their honey bees, and had nothing to do with their application for a variance.
The Board of Adjustment filed a Motion to Affirm pursuant to Civil Rule 72.1(b)(4) on August 26, 1999. The Board argued that the Gilmans' appeal was without merit, because the issue was one of administrative discretion, and the Board clearly did not abuse its discretion in reaching its decision. Additionally, the Board claimed that the Court should affirm its decision because it was supported by substantial evidence and free from legal error. According to the Board, the Gilmans were not entitled to a variance, because they had failed to demonstrate undue hardship "`by reason of exceptional narrowness, shallowness, or shape of a specific piece of property' as required by Section 4917(3)," and had merely an economic basis for requesting a variance. The Court denied the Board's Motion to Affirm, because a summary disposition was inappropriate. The Court then required full briefing on the merits of the appeal, including the issue of whether the Board had applied the proper legal standard.
In its brief, the Board concedes that it erroneously applied the unnecessary hardship standard to the Gilmans' application. Nevertheless, the Board argues that even under the correct, "exceptional practical difficulties standard," substantial evidence exists in the record to support the denial of the variance, and any failure to apply the correct standard constitutes harmless error. In their answering brief, the Gilmans assert that there are many businesses being run out of single family homes in the vicinity, and that many of these properties contain very large accessory buildings. The Gilmans also claim that they have demonstrated exceptional practical difficulties, because removal of the restriction would not adversely affect the neighboring properties, whereas failure to remove the restriction would greatly inhibit the Gilmans in their efforts to make normal improvements to their property. The Gilmans maintain that, without a variance, they will continue to incur code violations and fines for storing their beekeeping equipment outside and will suffer economic loss from damage caused to their equipment by the elements. Additionally, they claim that a variance would actually benefit the neighboring properties by improving the appearance of the Gilmans' property.
II. STANDARD OF REVIEW
On appeals from the Board of Adjustment, the Superior Court must limit its scope of review to correcting errors of law and determining whether substantial evidence exists in the record to support the Board's findings of fact and conclusions of law. "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." It is more than a scintilla of evidence, but less than a preponderance. When substantial evidence exists to support the Board's decision, the Superior Court may not reweigh the evidence or substitute its own judgment for the Board's. The Board, and not the Court, has the power to weigh evidence and to resolve conflicting testimony and issues of credibility. The party seeking to overturn the Board's decision has the burden of persuasion to show that the decision was arbitrary and unreasonable. "If the Board's decision is fairly debatable, there is no abuse of discretion." Despite the Board's wide discretion, it may not do whatever it considers equitable without regard to statutory requirements and the need for substantial evidence to fulfill those requirements. The Board must particularize its findings of fact and conclusions of law to enable the Superior Court to perform its function of appellate review.
Mellow v. Board of Adjustment of New Castle County, Del. Super., 565 A.2d 947, 954 (1988) (citing Janaman v. New Castle County Board of Adjustment, Del. Super., 364 A.2d 1241 (1976)).
Wadkins v. Kent County Board of Adjustment, Del. Super., C.A. No. 98A-05-003, 1999 WL 167776 at § 2 Ridgely, P.J. (Feb. 23, 1999) (ORDER).
McKinney v. Kent County Board of Adjustment, C.A. No. 94A-01-001, 1995 WL 109032 at § 1, Ridgely, P.J. (Feb. 13, 1995) (Mem. Op.).
Janaman v. New Castle County Board of Adjustment, Del. Super., 364 A.2d 1241, 1242 (1976).
Mellow, 565 A.2d at 954.
Profita v. New Castle County Board of Adjustment, Del. Super. CA. No. 92A-08-013, 1992 WL 390625 at § 3, Barron, J. (Dec. 11, 1992) (ORDER).
Mellow, 565 A.2d at 956.
Janaman, 364 A.2d at 1242-43.
Profita, C.A. No. 92A-08-013, 1992 WL 390625 at § 2.
III. DISCUSSION
9 Del. C. § 4917 (3) authorizes the Board of Adjustment to grant a variance from the strict application of a zoning ordinance:
Where by reason of exceptional narrowness, shallowness or shape of a specific piece of property at the time of the enactment of the regulations, or by reason of exceptional topographic conditions or other extraordinary and exceptional situation or condition of such piece of property, the strict application of any regulation . . . would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the owner of such property, . . . 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.
In Board of Adjustment v. Kwik-Check Realty, Inc., the Delaware Supreme Court defined the distinction between "use" variances and "area" variances. A use variance is a variance that changes the character of the zoned district by allowing the land to be used for a purpose otherwise proscribed by the zoning regulations. "An example of a use variance is one which permits a commercial use in a residential district." An area variance, on the other hand, does not involve a prohibited use, and "concerns only the practical difficulty in using the particular property for a permitted use." "Examples of area variances include modifications of setback lines and yard requirements." Because of the different purposes and effects of the two types of variances, the standard of "unnecessary hardship" applies to use variances, while the less burdensome standard of "exceptional practical difficulties" applies to area variances.
389 A.2d 1289, 1291 (1978).
Id.
Kostyshyn v. City of Wilmington Zoning Board of Adjustment, Del. Super., 1990 WL 58226 at § 1, Del Pesco, J. (April 12, 1990).
Id.; Kwik-Check, 389 A.2d at 1291.
Kostyshyn, 1990 WL 58226 at § 1.
Kwik-Check, 389 A.2d at 1291.
The standard applied to area variances considers "whether a literal interpretation of the zoning regulations results in exceptional practical difficulties of ownership." This standard is satisfied only when the difficulties alleged by the owner are practical rather than theoretical and exceptional rather than routine. In order to determine whether exceptional practical difficulties exist, the Board must weigh the following factors: (1) the nature of the zone where the property lies; (2) the character and uses of the immediate vicinity; (3) whether removal of the restriction on the applicant's property would seriously affect the neighboring property and its uses; 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 that use of the property which is a permitted use under the use provisions of the ordinance." Under the exceptional practical difficulties standard, economic hardship, standing alone, may justify granting an area variance. In Kwik-Check, the Supreme Court of Delaware concluded that "[t]he inability to improve one's business, or to stay competitive as a result of area limitations," may qualify as a legitimate "exceptional practical difficulty" that would justify granting a variance. "Such practical difficulty is present where 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."
Kwik-Check Realty Co., Inc. v. Board of Adjustment of New Castle County, Del. Super., 369 A.2d 694, 698 (1977).
See Kwik-Check, 389 A.2d at 1291.
Id.
Id.
Id.
Id.
The Board concedes that it committed a legal error by incorrectly applying the unnecessary hardship standard to the Gilmans' request for a variance. The Gilmans sought a variance in order to construct an accessory building that would exceed the size and area of the principal structure. The Gilmans planned to use this building to store equipment for their beekeeping business. This particular use of the building was not prohibited under the agricultural-residential zoning of the Gilmans' property. The variance sought by the Gilmans concerned only the practical difficulty of using their property to run a beekeeping business without a building large enough to store all of their equipment. Therefore, this variance was an area variance to which the Board should have applied the exceptional practical difficulties standard.
The Board's Notice of Decision denying the Gilmans' request for a variance merely stated in a conclusory manner that the Gilmans had failed to satisfy the unnecessary hardship standard. The Board did not explicitly apply the appropriate factors under the exceptional practical difficulties standard, and made no reference to any evidence that would implicitly tend to prove these factors. The Board is required to particularize its findings of fact and conclusions of law to enable the Superior Court to perform its function of appellate review. However, it neglected to do so in its decision denying the Gilmans' request for a variance.
The Board's decision reads as follows:
After reviewing the above referenced application and the testimony presented at the public hearing, the Board of Adjustment voted 6 (six) to 1 (one) (Mr. Tanner abstained from voting due to personal reasons) to deny this application. The Board based their decision from the testimony of the public hearing, by where the applicant did not demonstrate a hardship.
Profita, C.A. No. 92A-08-013, 1992 WL 390625 at § 2.
The Board, and not the Court, has the duty to apply in the first instance the four factors of the exceptional practical difficulties standard. In the Gilmans' case, the Board failed to perform this duty. The Board argues this was harmless error because the Gilman's cannot satisfy this standard. The Court declines the Board's invitation for the Court to apply the correct legal standard and decide this case on a record which I consider incomplete.
IV. CONCLUSION
Because the Board committed a legal error by not applying the exceptional practical difficulties standard, the decision of the Kent County Board of Adjustment is REVERSED .
IT IS SO ORDERED.