Opinion
C.A. No. 02A-05-017-PLA.
Submitted: January 21, 2002.
Decided: April 15, 2003.
Upon Petition for Writ of Certiorari Decision of New Castle County Board of Adjustment Affirmed.
Michael and Donna Holowka, Middletown, Delaware, Pro Se, Petitioners-Appellants.
Brian J. Merritt, Esquire, Assistant County Attorney, New Castle, Delaware, Attorney for New Castle County Board of Adjustment, Respondent-Appellee.
Edward A. Tarlov, Esquire Roger L. Truemper, Esquire, Elzufon Austin Reardon Tarlov Mondel, P.A., Wilmington, Delaware, Attorneys for David Wallace and Scott Wallace, Respondents-Appellees.
OPINION
Michael and Donna Holowka ("Appellants"), have appealed from the decision of the New Castle County Board of Adjustment ("Board"), granting a dimensional area variance to David Wallace and Scott Wallace (Appellees). Appellees submitted a Board of Adjustment Application for Public Hearing, requesting a dimensional area variance from the required 150 foot lot width to allow for 0 feet lot width road frontage along the southerly property line (Dutch Neck Road) of their approximately thirteen-acre lot. Appellees requested the variance in order to subdivide the lot into a 6.9818-acre parcel and a four-acre parcel upon which two single-family dwellings would be constructed. The remaining rear two acres consist of wooded protected resources acreage and are not part of the land in controversy. Subject to certain restrictions, the Board granted Appellees' application for the dimensional area variance. Appellants have filed this appeal from that decision. For the reasons set forth below, the decision of the Board is AFFIRMED.
Statement of Facts
Appellees are the owners of 12.9857 acres, Lot 6, Conrad Corporation Subdivision, Tax Parcel No. 13-004.00-021, located on Dutch Neck Road in St. George's Hundred, New Castle County, Delaware. Appellees are brothers whose family has owned the lot since 1986. Lot 6 is currently an undeveloped piece of land and is contained within the Suburban (S) Single Family Zoning District. The subject property is one of several lots forming a pattern of alternating flag lot properties along the northern side of Dutch Neck Road. The properties along the northern side of Dutch Neck Road alternate between those with approximately 50 feet of frontage, which lead to a sizable area in the rear comprising most of the acreage of the property, and those properties with approximately 300 feet of frontage where the majority of the acreage of the property is closer to Dutch Neck Road. Pursuant to the New Castle County Unified Development Code ("UDC"), the properties along Dutch Neck Road with more than 300 feet of frontage may be subdivided without the need for a variance.
The lot in question is part of a much larger tract of land once owned by the Conrad Corporation. The tract was subdivided into smaller lots, approximately eleven to thirteen acres in size, and sold by the Conrad Corporation in 1986. In 1990, a small development of upscale homes called Knightsbridge was developed and constructed on several of these lots lying northwest of the subject property. Currently, all of the lots surrounding the subject parcel, with the exception of Knightsbridge and one other lot, consist of a minimum of six acres of land and are either improved with a single home or are vacant. Only one of the original Conrad lots along the north side of Dutch Neck Road was subdivided to create a flag lot, allowing for the construction of two homes. This property had sufficient road frontage to accommodate subdivision without requiring a variance. Thus, Appellees' request for an area variance to subdivide their lot, permitting the construction of two homes on a lot containing less than the mandatory 150-foot lot width frontage requirements, is the first of its kind for this immediate community.
Even though the Appellees' lot contains sufficient acreage to be subdivided, the 52.5-foot width at the setback line precludes any subdivision without a variance. The minimal allowable lot width road frontage required by the UDC is 150 feet. Appellees' lot width road frontage of 52.5 feet was grandfathered in from the time the parcel was originally subdivided in 1986. Appellees' proposed subdivision would create a four-acre parcel at the front, leaving 0 feet of frontage for the approximately 6.9818-acre parcel in the rear. If the lot were to be subdivided, the property in the rear would be 340 feet wide, more than is required by the UDC. Once subdivided, the owner of the front lot would grant an access easement to the owner of the rear lot, the landlocked parcel.
On May 9, 2002, at a public hearing, the Board approved the dimensional area variance requested by Appellees. The Board issued its Notice of Decision on May 30, 2002. Prior to the hearing, the Department of Land Use ("DLU") issued a Recommendation Report approving issuance of the requested variance.
On May 29, 2002, the Appellants filed their Notice of Appeal and Complaint for Writ of Certiorari. In their Petition, Appellants assert that the Board erred in applying the standards for granting an area variance. The Court allowed Appellants' Petition for Writ of Certiorari on June 18, 2002. In their brief, Appellants assert that: 1) the granting of the variance was unsupported by existing law because the Appellees failed to demonstrate exceptional practical difficulty; 2) the variance was against public interest; and 3) the variance would permit a condition not within the character of the immediate vicinity. In response, Appellees contend that the Board properly applied the standards for granting the area variance within the parameters of the law.
The Contentions of the Parties
Throughout these proceedings, both parties have held fast to the same notions regarding the propriety of subdividing a residential lot into two smaller parcels to facilitate the construction of two houses, in contrast to maintaining the residential lot without subdivision and permitting only one house to be constructed thereon. Both parties base their opinions on divergent interpretations of existing land use case law, applicable statutes, and the UDC.
The Appellants are neighbors of the Appellees. Appellants' lot is contiguous with the subject parcel, sharing a common boundary line on one side running the entire length of the parcel for approximately 1200 feet. According to Appellants:
When we were looking for land, we didn't want to take that chance. The chance that a lot of people would be able to build in around us. That was the deciding factor in us buying this particular piece of land. We bought with the backing of the County [sic] regulations. They wrote the codes.
Plaintiffs' Reply Brief in Support of Reversing the Variance Decision by the New Castle County Board of Adjustment, at 3 (hereinafter "Pls.' Reply Br. at ___.").
Appellants contend that a subdivision of Appellees' lot would be in violation of the local zoning code because the intent of the drafters of the code was to uphold a standard of prescribed lots containing approximately similar acreage, each to be improved with only one house. Normal improvement in the form of construction of a family dwelling could be made to the subject parcel without seeking a variance. Further, Appellants argue that only three of the five surrounding neighbors signed a Dimensional Variance Approval Statement approving of the subdivision. According to Appellants, the remaining neighbor also does not approve. Therefore, they submit that the variance is contrary to public interest. Finally, Appellants argue that the granting of the variance is not in character of the immediate vicinity and establishes an unfavorable precedent.
Appellees obtained title to the land from their parents and it is each brother's intent to build his "dream house" on the subject parcel. In order to accomplish their goal, Appellees need to subdivide the lot. In opposition to Appellants' arguments, Appellees assert that: 1) the variance would comply with the nature of the zone in which the property lies; 2) the variance would be in character with the immediate vicinity and applicable uses; 3) the effect of the variance on other properties, if granted, would be minimal; and 4) Appellees would suffer exceptional practical difficulty if the variance was not granted. In addition, pursuant to § 40.31.451 of the UDC, Appellees purport that granting of the variance would neither cause "substantial detriment to the public good" nor "substantially impair the intent and purpose of the zoning code."
Transcript of Hearing, dated May 9, 2002, before the New Castle County Board of Adjustment in the matter of: Dutch Neck Rd., Lot 6 (Conrad Corporation Subdivision), at 3 (hereinafter "Tr. of Hr'g. at ___.").
NEW CASTLE COUNTY, DE., UNIFIED DEVELOPMENT CODE § 40.31.451(A)(4) (2000).
Standard of Review
Before the Court considers the standard and scope of review applicable to consideration of an appeal from a decision of the New Castle County Board of Adjustment, the Court must determine whether the Appellants have standing to appeal the Board's decision. The Court is satisfied that Appellants have standing to challenge the Board's decision. Pursuant to 9 Del. C. § 1314(a), Appellants allege that they have been duly "aggrieved" by the Board's decision and question the "legality" of the decision in "whole or in part." This appeal centers on a statutory interpretation of zoning ordinances, which is a question of law. Questions of law are reviewed de novo. Furthermore, upon reviewing decisions of administrative agencies and boards, this Court has authority to review questions of law.
9 Del. C. § 1314 Judicial review of Board of Adjustment decisions; procedure.
(a) Any person aggrieved by any 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 a petition duly verified alleging that such decision is illegal in whole or in part, and specifying the grounds of illegality. The petition shall be presented within 30 days after the filing of the decision in the office of the Board.
(b) Upon the presentation of the petition, the Court may allow a writ of certiorari directed to the Board of Adjustment, to review the decision of the Board, and shall prescribe therein the time within which return must be made and served upon the petitioner or petitioner's attorney, which shall not be less than 10 days and may be extended by the Court.
(c) The allowance of the writ shall not stay proceedings upon the decision reviewed, but the Court may, on application, on notice to the Board of Adjustment and on due cause shown, grant a restraining order.
(d) The Board of Adjustment shall not be required to return the original papers acted upon it, but it shall be sufficient to return certified or sworn copies thereof, or of such portions thereof as may be called for by the writ. The return shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision reviewed and shall be verified.
(e) If, upon the hearing, it shall appear to the Court that testimony is necessary for the proper disposition of the matter, it may take evidence, or appoint a referee to take such evidence as it may direct, and report the same to the Court together with its findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the Court shall be made.
(f) The Court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.
(g) Costs shall not be allowed against the Board of Adjustment unless it shall appear to the Court that the Board acted with gross negligence or in bad faith or with malice in making the decision reviewed. DEL. CODE ANN. tit. 9, § 1314 (1997 Supp. 2002).
See Fantasia Restaurant Lounge, Inc. v. New Castle County Board of Adjustment, 735 A.2d 424, 428 (Del.Super.Ct. 1998), aff'd, 734 A.2d 641 (Del. 1999); E.I. duPont de Nemours Co. v. Shell Oil Co., 498 A.2d 1108, 1113 (Del. 1985).
Di's Inc. v. McKinney, 673 A.2d 1199 (Del. 1996).
See State ex. Rel. Dep't of Labor v. Unemployment Ins. Appeal Bd., 297 A.2d 412 (Del.Super.Ct. 1972).
The Supreme Court and this Court repeatedly have emphasized the limited appellate review of factual findings of an administrative agency. When appellate review involves statutory interpretation, it is well founded that statutory interpretation is ultimately the responsibility of the courts. A reviewing court may accord due weight, but not defer, to an agency interpretation of a statute administered by it. Concomitantly, a reviewing court will not defer to such an interpretation as correct merely because it is rational or not clearly erroneous.
Industrial Rentals, Inc. v. New Castle County Board of Adjustment, 2000 WL 710087 (Del.Super.Ct.), rev'd on other grounds, 776 A.2d 528 (Del. 2001); Public Water Supply Company v. DiPasquale, 735 A.2d 378, 382 (Del. 1998).
See Public Water Supply Company, 735 A.2d at 382-83 (overruling the standard of judicial review of agency determinations of issues of statutory construction articulated in Eastern Shore Natural Gas Co. v. Delaware Pub. Serv. Comm'n, 637 A.2d 10 (Del. 1994) as overly deferential and confusing).
Id at 382.
Id. at 382-83.
The function of the reviewing Court is limited to determining whether substantial evidence supports the Board's decision regarding findings of fact and conclusions of law and is free from legal error. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Moreover, substantial evidence is that evidence from which an agency fairly and reasonably could reach the conclusion it did. It is more than a scintilla but less than a preponderance. When reviewing a decision on appeal from an agency, the Superior Court does not weigh the evidence, determine questions of credibility, or make its own factual findings. It is well established that it is the role of the Board, not this Court, to resolve conflicts in testimony and issues of credibility. Whenever the factual issues are fairly debatable, it is the duty of the Board to formulate decisions about the weight and credibility of various evidence or testimony presented to the Board. The Court's responsibility is merely to determine if the evidence is legally adequate to support the agency's factual findings. If the agency or Board's decision is supported by substantial evidence, the Court must sustain the decision of the Board, even though it would have decided otherwise had it come before it in the first instance.
DEL. CODE ANN. tit. 29, § 10142(d) (1997 Supp. 2002); See also Soltz Management Co. v. Consumer Affairs Bd., 616 A.2d 1205, 1208 (Del. 1992); Mellow v. Board of Adjustment, 565 A.2d 947, 954 (Del.Super.Ct. 1988), aff'd, 567 A.2d 422 (Del. 1989); Janaman v. New Castle County Board of Adjustment, 364 A.2d 1241 (Del.Super.Ct. 1976), aff'd, 379 A.2d 1118 (Del. 1977); M. A. Harnett, Inc. v. Coleman, 226 A.2d 910 (Del. 1967); Johnson v. Chrysler Corp., 213 A.2d 64, 66-67 (Del. 1965); General Motors Corp. v. Freeman, 164 A.2d 686, 688 (Del. 1960).
Streett v. State, 669 A.2d 9, 11 (Del. 1995); accord Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994); Battista v. Chrysler Corp., 517 A.2d 295, 297 (Del.Super.Ct. 1986), app. dism., 515 A.2d 397 (Del. 1986); Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981).
Mellow v. Board of Adjustment, 565 A.2d at 954 (citing National Cash Register v. Riner, 424 A.2d 669, 674-75 (Del.Super.Ct. 1980)).
Id. at 954 (citing Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981)); Downes v. State, 1993 WL 102547, at *2 (Del.Supr.) (quoting Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del.Super.Ct. 1988)).
Johnson, 213 A.2d at 66.
See Mooney v. Benson Management Co., 451 A.2d 839, 841 (Del.Super.Ct. 1982), rev'd on other grounds, 466 A.2d 1209 (Del. 1983).
Mettler v. Board of Adjustment, 1991 WL 190488, at *2 (Del.Super.Ct.).
DEL. CODE ANN. tit. 29, § 10142(d) (1997 Supp. 2002).
Mellow, 565 A.2d at 954 (citing Kreshtool v. Delmarva Power Light Co., 310 A.2d 649, 653 (Del.Super.Ct. 1973); Searles v. Darling, 83 A.2d 96, 99 (Del. 1951) (emphasis added to original).
In essence, then, the Court does not sit as trier of fact, nor should the Court replace its judgment for that of the Board. Specifically, when considering questions of fact, due deference shall be given to the experience and specialized competence of the Board. Application of this standard "[r]equires the reviewing court to search the entire record to determine whether, on the basis of all the testimony and exhibits before the agency, it could fairly and reasonably reach the conclusion that it did." In this process, "[t]he Court will consider the record in the light most favorable to the prevailing party below." Only where there is no satisfactory proof in support of the factual findings of the Board, may the Superior Court or the Supreme Court overturn it.
Johnson, 213 A.2d at 66.
DEL. CODE ANN. tit. 29, § 10142(d) (1997 Supp. 2002); Histed v. E.I. duPont de Nemours Co., 621 A.2d 340, 342 (Del. 1993).
National Cash Register v. Riner, 424 A.2d 669, 674-75 (Del.Super.Ct. 1980).
General Motors Corp. v. Guy, 1991 WL 190491, at *3 (Del.Super.Ct.).
Johnson, 213 A.2d at 64.
These general standards are guidelines regularly administered by Delaware appellate courts in reviewing various Boards' decisions, e.g., Industrial Accident Board proceedings. The application of these guidelines, however, is not limited. They have been expanded in application to the decisions and proceedings of other boards and administrative agencies, e.g., Board of Adjustment proceedings. It is with these guidelines in mind that the Court conducts its review of Appellants' petition for relief from the Board's decision to grant Appellees' area variance.
See, e.g., Cooch's Bridge Civic Ass'n v. Pencader Corp., 254 A.2d 608 (Del. 1969); Janaman v. New Castle County Board of Adjustment, 364 A.2d 1241 (Del.Super.Ct. 1976), aff'd, 379 A.2d 1118 (Del. 1977).
Discussion
The New Castle County Board of Adjustment is authorized to grant zoning variances under Section 1313 of Title 9 of the Delaware Code. This jurisdictional statute provides in pertinent part:
(a) The Board of Adjustment shall be empowered to hear and decide: . . . (3) In specific cases, such variance from any zoning ordinance, code or regulation that will not be contrary to the public interest, where, owing to special conditions or exceptional situations, a literal interpretation of any zoning ordinance, code or regulation will result in unnecessary hardship or exceptional practical difficulties to the owner of the property so that the spirit of the ordinance, code or regulation shall be observed and substantial justice done, provided such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of any zoning ordinance, code, regulation or map.
DEL. CODE ANN. tit. 9, § 1313 (1997 Supp. 2002) (emphasis added).
The statutory objectives enumerated in Section 1313(a)(3) of Title 9 of the Delaware Code have been long recognized as inherently fundamental to granting a variance. As explained in Janaman v. New Castle County Board of Adjustment, if the granting of a variance does not produce a deleterious effect on the public good, and is not contrary to the intent or purpose of the zoning code, the Board may duly grant the variance to the applicant. Additionally, "[i]f special conditions or exceptional situations would cause, when a literal interpretation of the zoning code is applied, an unnecessary hardship or an exceptional practical difficulty to befall the property owner, then and only then, is the Board permitted to grant a variance." Two years after its decision in Janaman, the Delaware Supreme Court decided Board of Adjustment of New Castle County v. Kwik-Check Realty, Inc., wherein it reaffirmed the statutory ideology of Janaman, and instituted standards for courts to consider when reviewing the issuance of a land "use" variance versus an "area" variance.
Janaman, 364 A.2d at 1243.
Id. at 1243.
Id.
Board of Adjustment of New Castle County v. Kwik-Check Realty, Inc., 389 A.2d 1289 (Del. 1978).
In Kwik-Check, the Court distinguished between the fundamental purposefulness differentiating an "area" variance from a "use" variance, and defined the analytical test to be applied in considering granting one or the other pursuant to Delaware law. As the Delaware Supreme Court stated:
The rationale, which we approve, is that a use variance changes the character of the zoned district by permitting an otherwise proscribed use, (citation omitted), whereas an area variance concerns only the practical difficulty in using the particular property for a permitted use. (citation omitted). Accordingly, given the differing purposes and effects of the two types of variances, a lesser standard of the owner's `exceptional practical difficulties' is appropriate for obtaining an area variance.
Id. at 1291.
In rejecting the lower court's limitation on the meaning of "exceptional practical difficulties" the Court held that economic considerations standing alone are not sufficient grounds for granting an area variance. The Court noted that, "[s]uch [exceptional] 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 the neighboring properties if the variance is granted."
Id.
Id.
The Kwik-Check Court concluded by delineating the four-step analysis test, which has become the bright line rule utilized by the Board in considering a variance application and in determining the functionality and propriety of granting a land use variance. The Court stated the test as follows:
Therefore, to determine if the difficulties presented by the owner are practical rather than theoretical, and exceptional rather than routine, (citation omitted), the Board should take into consideration the nature of the zone in which the property lies, the character of the immediate vicinity and the uses contained therein, whether, if the restriction upon the applicant's property were removed, such removal would seriously affect such neighboring property and uses; 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 normal improvements in the character of that use of the property which is a permitted use under the use provisions of the ordinance. (citation omitted).
Id.
In the case at bar, Appellees requested and were granted, a dimensional "area" variance. In this appeal, it is the Court's function to review the record and confirm whether substantial evidence existed for the Board to grant the variance, complying with the requirements intrinsic to 9 Del. C. § 1313(a)(3). These requirements are stated in terms of "exceptional practical difficulty," the legal test for an area variance. This standard requires that a board of adjustment undertake a four-step analysis when applying the "exceptional practical difficulty" test. As will be discussed more fully hereafter, the Court concludes that the Board adequately addressed and satisfied both the statutory requirements contained within 9 Del. C. § 1313(a)(3) and the four-step "exceptional practical difficulty" analysis established in Kwik-Check.
See supra note 37.
In the first place, it is apparent from the record that the Board, in reaching its decision, considered the nature of the Suburban (S) Single Family Zoning District in which the property exists and that a subdivision of Lot 6 into two parcels would be consistent with this zoning classification, as well as promoting permitted high density residential development. At the hearing, Appellees' counsel cited to Section 40.02.232 of the UDC which supports Appellees' desire to subdivide Lot 6 for residential purposes. Section 40.02.232 of the UDC provides in relevant part:
Tr. of Hr'g. at 6.
A. This district permits a wide range of residential uses. This district includes all the newly developing areas designated as growth areas in the Comprehensive Development Plan.
B. This district permits moderate to high density development and a full range of residential uses in a manner consistent with providing a high quality suburban character. Significant areas of open space and/or landscaping shall be provided to maintain the balance between green space and buildings that characterize suburban character. The highest densities are permitted in designated communities, hamlets and villages.
NEW CASTLE COUNTY, DE., UNIFIED DEVELOPMENT CODE § 40.02.232 (2000).
The record establishes that by subdividing and improving Lot 6 into two single family residences, there would be significant areas of open space remaining. Additionally, Lot 6 lies within the growth area in which the County desires residential development under the County's Comprehensive Development Plan. In its Notice of Decision, the Board aptly noted the nature of the zone, stating, "[t]he applicant notes that the subdivision is appropriate for the nature of the Suburban zone in which the property lies. It is consistent with the comprehensive plan to allow growth in the area." Further, "[b]oth properties well exceed the minimum acreage required for a subdivision in the S zoning district."
New Castle County Board of Adjustment Notice of Decision, dated May 9, 2002, at 1 (hereinafter "Notice of Dec. at ___.").
Notice of Dec. at 2.
Second, the record reflects that the Board took note of the character of the vicinity surrounding Lot 6 and the applicable uses contained therein. The immediate vicinity consists of large lots, ten to twelve acres on the average, each with a single family home constructed thereon. The Board was also made aware that there are four residential flag lots of similar structure in the immediate vicinity of Lot 6. In confirming that the existing character of the immediate vicinity would be maintained, the Board noted, "[o]ne of the neighboring properties to the North along Dutch Neck Road was subdivided to create a flag lot, which tends to confirm the applicant's assertion that the subdivision would be in character for the area."
Notice of Dec. at 1.
Third, from testimony presented at the hearing and upon review of the applicable zoning maps and photographs, the Board correctly concluded that, if the zoning restriction on Lot 6 was removed, this removal would not create an injurious effect on the neighboring properties. Once again, the Board accounted for the size of the surrounding lots and accompanying residences and determined that permitting two houses to be constructed on four acre and approximately seven acre lots, respectively, would not prove seriously detrimental to the surrounding occupied parcels. A neighbor testified at the hearing, expressing his accord with the subdivision and construction of two residences. Three of the five surrounding neighbors also signed a Dimensional Variance Approval Statement. In support of its decision the Board explains:
Appellants refused to sign the Dimensional Variance Approval Statement and the other neighbor was not available at the time the Statement was circulated for signature.
[S]everal neighbors signed a letter of no objection concerning the variance. One neighbor named on the petition appeared at the hearing to speak in favor of the variance. A neighbor to the west appeared to speak in opposition. This neighbor's main concern was the loss of privacy by allowing an additional single family home on this property.
Notice of Dec. at 2.
The Board was cognizant of the effect the subdivision would have on the surrounding properties. To diminish any deleterious effect, the Board mandated that, "[t]he variance is conditioned on their [sic] being no guest house allowed on either parcel and that deed restrictions be placed on both parcels prohibiting further subdivision."
Id.
Finally, the record reflects that the Board appropriately considered whether the restriction would create unnecessary hardship or exceptional practical difficulty for the applicants in relation to their attempts to make normal improvements, if the restriction were not removed. If the variance were refused, the applicants could not effectively utilize the property in conjunction with the prescribed objectives of the zoning code nor could they fulfill the long-term goals encompassed in the County's Comprehensive Development Plan for a future potential residential growth community. The Board recognized that even though Appellees' land had sufficient acreage for subdivision, the tangible restriction of a 52.5 foot width boundary at the set back line made subdivision without a variance physically impossible.
Also, the Board received evidence that Appellees would suffer unnecessary hardship due to the unnatural configuration of Appellees' flag-shaped lot. If the zoning restriction remained in effect, the Appellees would be subject to undeniable exceptional practical difficulty since the irregular lot shape predisposes it to limited use unless it is subdivided, an unfortunate characteristic intrinsic to this type of lot. As the Kwik-Ckeck Court emphasized, an area variance concerns only the practical difficulty in using the particular property for a permitted use. A narrow reading of this section [ 9 Del. C. § 1313(a)(3), formerly, 9 Del. C. § 1352(a)(3)] is not warranted in requests for area variances. The configuration of Lot 6 promotes Appellees' practical difficulty to a level exceptional in nature, as they have no other collective use for the parcel without the subdivision and would be forced to sell the land. Also, pursuant to Kwik-Check, Appellees need only show a lesser standard of "exceptional practical difficulty" as it is an area, not a use variance, they are seeking.
Kwik-Check, 389 A.2d at 1290.
Kwik-Check Realty Co. v. New Castle County Board of Adjustment, 369 A.2d 694, 698 (Del.Super.Ct. 1977), aff'd, 389 A.2d 1289 (Del. 1978).
Tr. of Hr'g. at 16.
Kwik-Check, 389 A.2d at 1291 (emphasis added).
The "hardship" test in 9 Del. C. § 1313(a)(3) is a disjunctive one. A self-imposed condition or violation which gives rise to a form of self imposed hardship is generally not such hardship as is sufficient to sustain a variance. Likewise, `[e]conomic hardship alone, that is, the fact that the owner could use the property more profitably if the variance were granted, is not enough in itself, to justify a variance, particularly if the owner had bought the property with full knowledge of the zoning restrictions.' In this instance, Appellees' unnecessary hardship does not derive either from self-imposed circumstances or pursuit of economic gain. Appellees testified that their family had owned and hunted on the land for fifteen years. They now desire to build their dream homes on the land and raise their children there. In handing down its decision, the Board concluded, "[t]he requested dimensional changes are minimal, in light of existing neighborhood conditions, and the harm to the applicant if the variance were denied would be greater than the probable effect on neighboring properties if the variance were granted."
Kwik-Check Realty Co. v. New Castle County Board of Adjustment, 369 A.2d 694, 697 (Del.Super.Ct. 1977), aff'd, 389 A.2d 1289 (Del. 1978).
Janaman, 364 A.2d at 1243.
Kwik-Check, 369 A.2d at 697 (quoting Homan v. Lynch, 147 A.2d 650, 654 (Del. 1959)).
Tr. of Hr'g. at 13.
Id.
Notice of Dec. at 2.
The evidence in the record is thus legally adequate to support the Board's decision based on its interpretation and application of the requirements in 9 Del. C. § 1313(a)(3), read in conjunction with the four-step analysis set forth in Kwik-Check. The Board's decision is also supported by local ordinance. The New Castle County Unified Development Code was enacted in 1997 to establish a unified and comprehensive statutory system for the implementation of zoning laws throughout New Castle County. Section 40.31.451 of the UDC provides, in part:
Badell's Auto Body, Inc. v. New Castle County Board of Adjustment, 2002 WL 31028573, at *1 (Del.Super.Ct.).
A. The Board of Adjustment shall hear and decide applications for a variance from the provisions of any zoning code or regulation if all of the following are satisfied:
1. The variance sought will not be contrary to the public interest.
2. Owing to special conditions or exceptional situation, a literal interpretation of the provisions of any zoning code or regulation at issue will result in unnecessary hardship or exceptional practical difficulty to the owner of the property.
3. If the variance were granted, the spirit of the zoning code or regulation provision at issue shall be fully observed and substantial justice done.
4. Such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of any zoning code, regulation or map.
NEW CASTLE COUNTY, DE., UNIFIED DEVELOPMENT CODE § 40.31.451 (2000).
In addition to the Board's conclusion that Appellees' plight manifested adequate, "exceptional practical difficulty," it is the Court's opinion that there was sufficient evidence in the record to demonstrate that granting the variance would neither produce a detrimental effect on the public good nor substantially impair the fundamental nature of the zoning code. The Board recognized the potential de minimus effect of Lot 6 subdivision on the neighboring parcels in light of the fact that the immediate vicinity consisted of single family homes spread out on considerable sized lots of six acres or more. Moreover, the testimony from surrounding neighbors and their signatures on the Approval Statement attest to the overall consensus that subdivision of Lot 6 would not be contrary to the public welfare or interest. The fact that Appellants comprise one dissenting vote among a total of five, does not rise to the level of invoking "substantial detriment to the public good." Further, the purpose and spirit of the zoning code will not be subverted. After subdivision, both lots will still exceed the minimum acreage and boundary footage required by the UDC. Pursuant to the Board's decree, the owner of the front parcel will grant an access easement to the owner of the back parcel, and no more than one house may be constructed on each subdivided parcel. Deed restrictions will not permit further subdivision on the proposed lots.
In addition to all of the foregoing, the Court has reviewed that part of the record containing the New Castle County Department of Land Use Recommendation Report to the Board of Adjustment. The Court finds this report to be strongly convincing and substantial evidence in favor of the Board's decision. In its report, the DLU similarly considered the legal standard articulated for granting zoning variances, notably, Section 40.31.451 of the UDC, 9 Del. C. § 313, and the four-step analysis in Kwik-Check. At the conclusion of its legal analysis, the DLU recommended that:
[A]lthough the Department of Land Use generally recommends against the granting of flag lot variances, the Department believes that the Board should GRANT this variance because a denial will result in exceptional practical difficulty to the applicant. However, the Department conditions this grant upon the requirement that the proposed two parcels do not become further subdivided."
Recommendation Report to the Board of Adjustment, dated May 9, 2002, at 2 (emphases in original).
Conclusion
For all of the foregoing reasons, this Court concludes that the decision of the Board granting Appellees' dimensional area variance is based upon substantial evidence with regard to findings of fact and conclusions of law and is free of legal error. The burden of persuasion is on the party who is seeking to overturn the Board's decision to show the decision was arbitrary and unreasonable. Appellants have not met their burden of demonstrating that the Board's decision was not supported by substantial evidence nor have they shown that the Board's decision was arbitrary or unreasonable.
Mellow, 565 A.2d at 955-56; Mobil Oil Corp. v. Board of Adjustment, 283 A.2d 837, 839 (Del. 1971); McQuail v. Shell Oil Co., 183 A.2d 572, 578 (Del. 1962).
For the foregoing reasons, the decision of the New Castle County Board of Adjustment is hereby AFFIRMED.
IT IS SO ORDERED.