Opinion
CIVIL ACTION NO: 99A-03-003
Date Submitted: June 23, 2000
Date of Decision: September 26, 2000
John A. Sergovic, Jr., Esquire and Julie G. Bucklin, Esquire, Sergovic, Ellis Shirey, P.A., 9 North Front Street, P.O. Box 566, Georgetown, Delaware 19947, attorneys for Petitioners/Appellants;
Richard E. Berl, Jr., Esquire, 36 The Circle, Georgetown, Delaware 19947, attorney for Respondent/Appellee;
Lisa B. Goodman, Esquire, Young Conaway Stargatt Taylor, LLP, 11th Floor, Rodney Square North, P.O. Box 391, Wilmington, Delaware 19899-0391, attorney for Dominic and Leslie Marra.
MEMORANDUM OPINION
This case presents an appeal from a decision of the Sussex County Board of Adjustment, regarding the allowance of an area variance. For the reasons stated herein, the owners of the property that is the subject of this appeal are deemed to have intervened, and the Board's decision is affirmed.
NATURE AND STATUS OF THE PROCEEDINGS AND STATEMENT OF FACTS
On October 5, 1998 Dominic and Leslie Marra ("The Marras"), owners of a lot with improvements at Lot 9, Maryland Avenue in Fenwick Island, Delaware, applied for a variance from the setback requirements of the Sussex County zoning code. Their intent was to demolish the existing structure and rebuild a larger home substantially within the footprint of the original building.
The Marras' lot, like others in the area, is only 50 feet wide. The home they wished to build was 36 feet wide. The Sussex County zoning ordinance requires 10-foot side yard setbacks. Although the existing residence was non-conforming and already encroached on at least one setback, the new home would require a variance of 5 feet from the front setback and 3 feet from the rear and side setback regulations. Albert and Patricia Riedinger ("The Riedingers") own Lot 7, the property next to the Marras. The Riedingers' residence was built prior to the enactment of the zoning code and sits directly on the adjoining property line, creating a "zero setback" on the side closest to the Marras' property.
The Marras' request for a variance was forwarded to the Board of Adjustment ("The Board"). A hearing was scheduled for December 7. 1998, and notice was given. At the hearing the Board considered the matter. It heard from both Dominic and Leslie Marra. In addition, a letter in opposition was read into the record and Albert Riedinger spoke against the requested variances. Riedinger urged the Board not to approve the variances for, among several reasons, fire safety concerns. If the variances were approved, only seven feet would remain between his house and the Marras'. The existing structure stood a little over a foot further away.
The Board tabled the matter until its December 21st meeting. At that meeting, the Board approved the Marras' request. The property owners requested and were issued a building permit the next day. The Board released a written opinion on the matter on February 23, 1999.
The Board's findings of fact are as follows:
1. The Applicant wants to tear down an existing old house and build a new one, believing that it will enhance the area.
2. Although there was an objection to this proposed structure being built close to neighboring properties, there are houses and townhouses along the street that are joined together.
3. The new dwelling would have 10 feet less on the front than the existing structure. Thus, the variances being requested are the minimum necessary.
4. Lots along Maryland Avenue are narrow. One of the objecting neighbors (Lot 7) has built his dwelling to the property line, creating a "zero-setback". Although that structure is non-conforming, it eliminates any possibility for a reasonable isolation between the dwellings, and the Board views the objections of that owner as somewhat hypocritical.
Pursuant to 9 Del. C. § 6918, the Riedingers brought this appeal as a party "aggrieved by a decision of the Board of Adjustment." In their Notice of Appeal, filed on March 19, 1999, the Riedingers named only the Board of Adjustment as a party. They did, however, list the Marras as "parties in interest" on the Notice of Appeal. The Marras apparently received notice of the appeal after the 30-day statute of limitations had run. Throughout the proceedings they have made no effort to intervene in the matter, but have taken steps to protect their interests.
On May 3, 1999 the Riedingers filed a Motion to Stay the construction of the Marras' house until after the proceedings. The Marras participated in the hearing on that motion. This Court denied the motion, and allowed the Marras to proceed with construction of their home.
Upon establishment of the briefing schedule in this appeal, the Marras requested an opportunity to submit an amicus curiae brief in support of their position. This Court granted permission. Subsequently, the Board adopted, as its own, the Marras' position set forth in their amicus brief.
STANDARD OF REVIEW
In matters on appeal from a decision of the Board of Adjustment under 9 Del. C. § 6819, the record on review binds the Superior Court.Searles v. Darlin. Del. Supr., 83 A.2d 96 (1951). The Court's review is limited to correcting errors of law and determining whether substantial evidence exists on the record to support the Board's findings of fact. Janaman v. New Castle County Bd. of Adiustment, Del.Supr., 364 A.2d 1241 (1976), aff'd Del. Supr., 379 A.2d 1118 (1977). The Court is bound by the Board's findings of fact, if supported by substantial evidence, but has plenary review of any questions of law. Reagan v. Heintz, Del. Super., 246 A.2d 710 (1968).
Substantial evidence means such relevant evidence that a reasonable mind might accept to support a conclusion. Miller v. Board of Adjustment of Dewey Beach, Del. Super., C.A. No. 93A-02-009, Lee, J. (February 16, 1994). It is more than a scintilla of evidence, but less than a preponderance. Johnson v. Caldwell Flexible Staffing. Inc., Del. Super., C.A. No. 92A-03-003, Gebelein, J. (April 29, 1993). Where substantial evidence exists, the appellate court may not reweigh the evidence and substitute its own judgment for the Board's. Janaman at 1242.
Thus, if substantial evidence exists on the record to support the Board's conclusion, it is the duty of the Court to sustain the Board, even if the Court would have reached a different decision with the same evidence before it. Searles at 99. In the absence of substantial evidence, the Superior Court may not remand the Board's decision for further proceedings, but rather, may only "reverse or affirm, wholly or partly, or may modify the decision brought up for review." 9 Del. C. § 6819 (a); Mellow v. New Castle County Bd. of Adiustment, Del.Supr., 565 A.2d 947 (1988), aff'd without opinion, Del.Supr., 567 A.2d 422 (1989).
In the course of the appeal, the burden of persuasion is on the party seeking to reverse the Board's decision to show that the Board's action was arbitrary and unreasonable. Id; Mobil Oil Corp. v. Board of Adjustment of the Town of Newport, Del. Super., 283 A.2d 837 (1971). Whether petitioners sustained their burden before the Board requires the Court to examine the conclusions of the Board in relation to the record.Reagan at 712.
DISCUSSION
I. Indispensability Analysis
The Marras claim that they are indispensable parties to this action, and since they are not named in the caption of the Notice of Appeal as appellees, the appeal should be dismissed. Furthermore, they assert that the Riedingers should not be allowed to amend their appeal and name the Marras as parties, since the 30-day statute of limitations has run and the dictates of Superior Court Civil Rule 15(c) cannot be met. They further claim that they may not intervene in this action since they were unaware of the appeal until the passing of the statute of limitations, and that the passage of the limitations period precludes intervention on their part.
That Rule states that amendments will relate back to the original date of filing when: (3) the amendment changes the party or the naming of the party against whom a claim is asserted if the foregoing provision (2) is satisfied and, within the period provided by statute or these Rules for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew or should have known that but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
The Riedingers counter that the Marras are not indispensable to this action. Only the Board, they contend, is an indispensable party where the appellant challenges the lawfulness of a Board action. Alternatively, the appellants ask this Court for leave to amend their Notice of Appeal to correct the technical defect. Further, they charge that the Marras may be permitted to intervene in the matter and become in reality what they have acted as throughout these proceedings — parties to the case.
It is a basic tenet of Delaware law that courts should avoid basing the dismissal of appeals on the minutiae of technical practice; rather they should be decided on their merits where substantial prejudice would not result. Di's. Inc. v. McKinney, Del. Supr., 673 A.2d 1199 (1996). Just as basic, however, is the precept that all "interested parties" who would be directly affected by a ruling on the merits in a particular appeal must be made parties to the action. Personnel Comm'n v. Howard, Del. Supr., 420 A.2d 135 (1980). So fundamental is this notion that it is considered a defect of the jurisdiction of the court when one required for the just adjudication of the matter is absent from the proceedings. Sussex Medical Investors, L.P. v. Delaware Health Resources Board, Del. Super., C.A. No. 96A-10-009, Cooch, J. (April 8, 1997) Quoting 4 C.J.S. Appeal and Error § 232 (1993). The parties are generally unable to waive the jurisdictional error and the court has no power to hear and rule on the merits of the appeal. Id.
Property owners who receive a favorable ruling at the Board level are generally considered necessary parties to an appeal brought by an aggrieved party. See CCOBH v. New Castle County, Del. Ch., C.A. No. 12048, Hartnett, V.C. (September 21, 1993). However, it is not an automatic reason for dismissal, the facts and circumstances of the particular case dictate whether a party is indispensable. Id at 7. To determine whether such a situation exists, it is incumbent upon this Court to consider Superior Court Civil Rule 19(b).
That Rule provides that, when a party is not named, "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 being thus regarded as indispensable." Super. Ct. Civ. R. 19(b).
The test for indispensability is embodied in that Rule, requiring the Court to examine four factors. They are, first, to what extent judgment in the absence of the party would prejudice the missing party and those already parties to the action. Second, whether the Court can fashion relief or other measures in such a way to lessen any prejudice. Third, whether judgment in the person's absence would be adequate. Finally, whether dismissal of the action will leave the plaintiff any recourse for relief. Rule 19(b). This opinion will address each of these factors in turn.
Prejudice to Marras and existing parties.
The Marras hold a much greater interest in the outcome of this case than the Board. It is their potential use of their property and their newly constructed house at stake in these proceedings. Just as in CCOBH, this factor weighs heavily in favor of ruling the property owners indispensable parties. Prejudice could only accrue to them should this Court move forward in their absence and rule in favor of the Riedingers. The Board is not bound to defend the interests of the Marras. Appellants, though, rightly point out that this prejudice is diminished considering the fact that the Board has adopted the Marras' arguments and position on the issues. This fact is closely tied to the second factor this Court must examine.
Protective measures by the Court.
The Court may craft methods by which the absence of an otherwise indispensable party imposes less of a burden upon that potential party. The rule provides for "shaping of relief, or other measures" to protect the party in its absence. Rule 19(b). In this case, the Court has already undertaken such efforts. The Marras were allowed to participate in argument on the Motion to Stay. They have been allowed to submit an amicus brief. Additionally, as noted, the Board has added nothing further to their position. Rather, it has adopted their arguments.
By allowing the Marras to act in defending their interests, the Court has taken substantial steps to ensure that any prejudice arising from not being a named party has been quelled. Their position is nearly as well protected as if they were named parties. As such, this factor leans in favor of not deeming the Marras indispensable and allowing the appeal to go forward without them being named in the caption.
Adequacy of judgment in absence of Marras.
Just as in CCOBH, this factor has little relevance to the considerations of this case. Id at 17. Whether the Marras were included within the appeal or not, this Court can properly render a judgment that could adequately address the merits of the Riedinger's plea. No prevailing interests of the Marras would be trammeled if judgment was in the Board's favor, and the Riedingers would have had their day in court. If the Court ruled against the Board, the conclusion would be adequate, despite constituting a hardship for the Marras. In this way, at least, the fates of the Board and the Marras are inextricably linked. In any event, any possible result of hearing the appeal would be the same whether or not the property owners were parties to the action.
Adequate remedy for the Riedingers.
Were this Court to dismiss the action before it, with the exception of appeal, there would be no remedy for appellants. Since the applicable statute of limitations has passed, dismissal would mean the end of their opportunity to seek redress of the Board's action. While the Court may take this into account, there are countervailing factors to consider. Foremost among them is that the Riedingers bore the burden of naming all required parties when bringing the appeal. Thus, any prejudice resulting from dismissal would be of their own making. The Court can imagine a situation where this part of the analysis would weigh in favor of the plaintiff or appellant who did not name an indispensable party through no fault of his or her own; that is not the case presently at hand.
Upon initial balancing of these four facets of the indispensability test, the prejudice to the Marras would appear to overbalance any other interests. However, the Court has made allowances to accommodate the interests of the Marras in light of the fact that they are the ones whose property rights are at risk. These steps by the Court, and the Marras' vigorous defense of their interests as a result, lead to the conclusion that the Marras are no longer indispensable as parties to the appeal. Under the circumstances of this case and with the protective measures taken by this Court, it is not inequitable, nor does it offend the Court's good conscience to allow this appeal to move forward without the Marras as named parties.
II. Amendment or Intervention
That said, there is certainly both practical and technical advantages to having the property owners named as parties. This appeal, as well as any future action in this matter, would progress more smoothly and efficiently if the Marras were actual parties. Therefore, for the purpose of ensuring that all parties' interests are protected as a result of this Court's finding regarding indispensability, I turn to the appellants' arguments that the Marras still may be made parties to this appeal. They claim the property owners can be made parties to this appeal either by this Court permitting the Riedingers to amend the Notice of Appeal or by requiring intervention of the Marras.
Amendment.
Under Superior Court Civil Rule of Procedure 15(a) liberal amendment of the pleadings is available to add or change a party after the passage of the statute of limitations, subject to the constraints of subsection (c) of the Rule. Mullen v. Alarmguard of Delmarva. Inc., Del. Supr., 625 A.2d 258 (1993). There is a question of when the Marras received notice of the appeal, but it is undisputed that the property owners received notice of the action as parties in interest. Assuming, arguendo, that this satisfies the requirements of 15(c)(3)(A), appellants are barred by subsection (B) of that Rule. The Supreme Court has made it quite clear that the "knew or should have known" portion of the Rule is stated only where the claimant would have named a party correctly but for a mistake in the identity of that party. Id at 265; Sussex Medical Investors, supra. That is not the case here. The Riedingers are quite familiar with the Marras. It is, after all, the Marras' requested variance that they opposed in the first place. Thus the appellants will find no harbor in Rule 15.
That subsection provides that an amendment is permissible and relates back to the original filing when: (c)(3) the amendment changes the party or naming of the party against whom a claim is asserted if, within the period provided by statute or these Rules for service of the summons and complaint, the party to be brought in by amendment (A) has received such notice of the institution of the action that the party will not be prejudiced in maintaining a defense on the merits, and (B) knew, or should have known, that but for a mistake concerning the identity of the proper party, the action would have been brought against the party.
Intervention.
The Riedingers also assert that this Court may make the Marras parties to this action by allowing (or rather requiring) them to intervene. The property owners, the Riedingers contend, have acted as parties all along without Special Appearance or a Motion to Intervene. The argument is, "make them in name what they have been in deed." While this appears to be an issue of first impression for Delaware, I rule that the Marras have, indeed, constructively intervened in this appeal and are thusly bound as parties.
Intervention is possible "upon timely application" by anyone with an interest in the litigation, whether that interest be conveyed by statute or arising from the res of the case. Super. Ct. Civ. R. 24(a). Timeliness of intervention is not necessarily measured by the statute of limitations, as the Marras contend. Parties have been permitted to intervene at nearly any point in a case, even post-judgment, where the need for protection of a party's interest and the fundamental notions of fairness have required such action. See In Re Bicoastal Corp., Del. Supr., 600 A.2d 343 (1991); Dugan v. Dineen, Del. Ch., C.A. No. 10864, Chandler, V.C. (June 12, 1990). Certainly, were this Court to rule against the Board, the Marras would likely seek the opportunity to intervene to perfect an appeal to the Supreme Court. See for example, Haley v. Town of Dewey Beach, Del. Supr., 672 A.2d 55 (1996). The CCOBH court was faced with a statute of repose, which, in its opinion, precluded any possibility of the would-be intervenors to take part in the action. Id at 16. Here, we do not have such a restriction. Title 9 Del. C. § 6918 of the Delaware Code is a traditional statute of limitations, and, thus, intervention may still be "timely" within the meaning of the Rule.
There remains, however, a fundamental conflict. One who holds a right to intervene in an appeal and fails to exercise it is typically deemed to have acquiesced to the judgment and final outcome of the case. Haley, supra. Intervention is generally only available upon application to the Court. Super. Ct. Civ. R. 19(a). The Marras have not made any such application per se. The Marras have not technically intervened, and yet they have moved to protect their interests in the case. In the interests of justice, the Court has allowed them to take a position on the merits of the appeal and defend it.
In essence, the Marras have sought to avoid intervening, yet reap all of the benefits of such a move and still claim they are indispensable to the action. Granted, it is their right to intervene or not to do so. It is also their right to use such procedural tools as amicus curiae to benefit themselves. However, this Court will not allow such procedural devices to be used alternately as both a rapier sword and an all-protective shield. Either the Marras are a part of this appeal and subject to victory or defeat in court, or they are not. They may not claim both paths.
The Rules of this Court concerning intervention make no allowances for requiring a party to intervene; the party must make some affirmative action to intervene on his or her own behalf Intervention is preferably accomplished by application to the Court; however, a person who acts in the role of a party may effectively intervene without any such application. Ross v. Ross, N.J. Super., 705 A.2d 784 (1998) (by appearing and arguing the merits of her case, widow in a survivor benefits case effectively intervened, even absent formal motion); Schulz. Davis Warren v. Marinkovich, Mont. Supr., 661 P.2d 5 (1983) (where party could have intervened as a matter of right and court overruled objection to party's participation, party had constructively intervened without filing motion).
In the present case, the Marras have not only acted to object to the procedural defect of failure to name an indispensable party, but they have also challenged on the merits of the appeal. They succeeded in argument against a motion to stay construction of their home, and their amicus brief discussed not only the indispensability analysis, but also the very core of the case. As such, the Marras have constructively intervened in this action through their conduct and are now parties to the appeal.
III Merits of the Case
The record shows that all of the lots in this neighborhood are quite narrow (50 feet on average). The newly constructed house is the sort of improvement that fits within the character of the area. The variance, as granted, is only about one and a half feet closer to the Riedinger's house than the original structure. Finally, the Riedingers' house, though non-conforming at the time of the zoning implementation, is built directly on the property line.
The Board's Legal Standard
The Marras sought a variance from the front, side and backyard setback requirements; such a variance typically has been deemed an "area" variance rather than a "use" variance. The Supreme Court recognized that this distinction in variances gives rise to separate legal standards.Board of Adjustment v. Kwik-Check Realty. Inc., Del. Supr., 389 A.2d 1289 (1978). "Use" variances call into play the "undue hardship" test; "area" variances necessitate the use of the "substantial practical difficulty" test. Id at 1291.
"Substantial practical difficulty" is that which is ""practical' as distinguished from theoretical." Board of Adjustment of New Castle County v. Henderson Union Association, Del. Supr., 374 A.2d 3, 5(1977). Such practical difficulty presents itself where the requested variance is minimal and the applicant would be harmed more by denial of the variance than the surrounding properties would be if it were granted. Kwik-Check at 1291. In making this consideration, the Board should look to such factors as:
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 the 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 use of the property which is permitted. Id.
This "exceptional practical difficulty" analysis unfolds into the factors of 9 Del. C. § 6917, which permits the Board of Adjustment to grant variances to the zoning code where all of the following conditions are met:
a. That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property, and that the unnecessary hardship or exceptional practical difficulty is due to such conditions, and not to circumstances or conditions generally created by the provisions of the zoning ordinance or code in the neighborhood or district in which the property is located;
b. That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance or code and that the authorization of a variance is therefore necessary to enable the reasonable use of the property;
c. That such unnecessary hardship or exceptional practical difficulty has not been created by the appellant;
d. That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare; and
e. That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.
Appellants claim that the Board failed to articulate and follow this standard in rendering its decision. Since review of the legal adequacy of a Board decision is plenary, the Court must examine the record to determine if the Board has made the requisite findings under the legal standard. If it has failed to do so, the Court must determine whether evidence exists upon which the findings could have been based. Sheridan v. Board of Adjustment, Del. Super., C.A. No. 97A-12-001, Lee, J. (May 27, 1998) citing In Re Beattie, Del. Super., 180 A.2d 741 (1962).
In light of a review of the record, the Court rejects the assertion that the Board failed to fully examine the required factors. It is true that the Board was not entirely specific or succinct in its application of the substantial practical difficulty test and the Code provisions. However, it is apparent that it considered all of the necessary factors under the test and that its findings in relation to that test are supported by the record.
As for the Kwik-Check factors, the Board notes the nature, character and uses of the immediate area in its second and fourth findings of fact. It is a residential area, developed before the zoning ordinance. As such a development, the lots are smaller and have less frontage than would now be required by the Code. Tearing down an existing home and replacing it with one that suits the character of the area is a reasonable use of the property.
Again, the Board's findings of fact are as follows:
1. The Applicant wants to tear down an existing old house and build a new one, believing that it will enhance the area.
2. Although there was an objection to this proposed structure being built close to neighboring properties, there are houses and townhouses along the street that are joined together.
3. The new dwelling would have 10 feet less on the front than the existing structure. Thus, the variances being requested are the minimum necessary.
4. Lots along Maryland Avenue are narrow. One of the objecting neighbors (Lot 7) has built his dwelling to the property line, creating a "zero-setback". Although that structure is non-conforming, it eliminates any possibility for a reasonable isolation between the dwellings, and the Board views the objections of that owner as somewhat hypocritical.
The Board further considers the effect of removing the restriction on the neighboring property in finding numbers two and five. On the record are a number of references to other homes on the street being either connected or in close proximity. This appears to be accepted practice in the neighborhood, and any objection to a continuation of this pattern must be viewed with some skepticism. The Board also specifically assesses the impact to the Riedingers. Having a "zero setback," the proximity of the Riedinger's home presents a substantial difficulty to allow any variance that will not have some arguable effect on their property. As the Board put it, the placement of the Riedingers' home "eliminates any possibility for a reasonable isolation between dwellings."
Finally, the Board reflects the exceptional practical difficulty test, as embodied in § 6917, in all of its findings of fact. First, the characteristics of the Marras' lot, while the same dimension as others in the neighborhood, precludes reasonable development of the sort already in the vicinity. The placement of the Riedingers home contributes to the practical difficulty of reasonable use within the framework of the zoning ordinance. Second, strict conformity with the zoning ordinance would result in eliminating reasonable, and otherwise permitted, use of the property. The width of home that the Marras intended to build, on any other location without the difficulties presented by this one, would not be considered unreasonable. Third, the Marras did not create their own misery. Though they bought the property knowing of the limitations, they did not choose an excessively large house plan, nor did they cause the placement of the Riedingers' home. As such their difficulty is more practical than exceptional. The fourth factor of § 6917 is addressed in the prior discussion of the Kwik-Check issues above. Lastly, the Board specifically found in its third finding of fact that the requested variance was the minimum necessary. In addition to the fact that the front setback would be increased with the new house, the side setback variances requested by the Marras split the difference on each side. On the side closest to the Riedingers, this represents just a little over a foot of additional encroachment on the setback than the prior structure.
Clearly, while the Board's conclusions could have been more fully developed, it is clear that the Board considered the necessary factors under the legal standard. Any failing of specificity on the Board's finds adequate cure by a review of the record. Sufficient evidence is present in the record to support the requisite elements of the substantial practical difficulty test.
CONCLUSION
For the foregoing reasons, the Court rules that the actions of the Marras have been sufficient to negate the effect of the Riedingers' failure to name them in the Notice of Appeal, and the Marras are now parties to this action. Further, while the Board's articulation and application of the substantial practical difficulty test was not perfect, it did not commit any error of law. Its decision is legally sound and supported by a review of the record where any articulation error may have occurred.
IT IS SO ORDERED.