Summary
applying Newark zoning code § 32-51, which also indiscriminately appertained to a "building, structure, or use," and prohibited alterations and additions "more than 20 percentum of the cubical content of the building"
Summary of this case from McKinney v. Kent County Board of Adj.Opinion
No. 99A-05-010-WTQ
Submitted: May 3, 2000 (Oral Argument Waived)
Decided: May 9, 2000
Mark D. Sisk, Esquire Hughes Sisk Glancy, P.A. The Court at Wawaset Plaza 522 Greenhill Avenue Wilmington, DE. 19805.
Roger A. Akin, City Solicitor 1220 N. Market Street, Suite 608, P.O. Box 25047 Wilmington, DE. 19899.
Letter Opinion and Order on Appellants' Appeal of a Variance Denied by the Board of Adjustment of the City of Newark — AFFIRMED
Gentlemen:
This letter constitutes the Court's Opinion and decision on the Board of Adjustment of the City of Newark's denial of a variance to allow Appellant Glenn Schmalhofer to increase the size of his rental house. For the reasons stated herein, the decision of the Board of Adjustment is AFFIRMED.
FACTS
Mr. Schmalhofer owns a rental property located at 36 North Chapel Street in Newark, Delaware. The rental property is a non-conforming structure under the Newark Zoning Code. Mr. Schmalhofer was planning to renovate the house by replacing the roof and removing the asbestos siding and replacing the asbestos with vinyl siding. BOA Tr. at 5. The kitchen in the house was "very cramped" and "very tight," so Mr. Schmalhofer decided to remodel and enlarge the kitchen and add a bedroom to the property while he was making other repairs. Id. at 5-6. To do this, he decided that it would be best to demolish the old kitchen and put a new foundation under the addition for the new larger structure. Id.
Under the Newark Zoning Code, changes in non-conforming uses, structures and buildings are governed by Section 32-51. That section prohibits alterations and additions to non-conforming structures which would "extend said building, structure, or use for more than 20 percentum of the cubical content of the building or buildings." Newark City Code § 32-51(a). The addition proposed by Mr. Schmalhofer for the house exceeded the 20% limitation in the Code. Therefore, Mr. Schmalhofer was informed by the Director of Building Department, Junie Mayle, that the institution of the plans would cause a violation of the ordinance. Mr. Schmalhofer then applied to the Board of Adjustment for a variance to build the addition.
From the transcript provided, there was substantial discussion at the Board of Adjustment as to what the exact increase to the "cubical content" that the proposed addition would generate. There appears to be no dispute, however, under any of the calculations, that the addition sought by Mr. Schmalhofer exceed the 20% limitation in the Code.
The Board of Adjustment heard Mr. Schmalhofer's request for a variance on April 15, 1999. Mr. Schmalhofer, who was not represented by counsel before the Board, stated to the Board that the house was "tired" and needed renovation. After the Board discussed the proposed renovations, the Board denied Mr. Schmalhofer's request for a variance by a 3-2 vote.
It appears that the Board members all expressed the reasons for their vote on the record. Mr. Foster and Mr. Berg both voted for the project. Mr. Fisher stated that he was going to deny the variance because "he can do the work that he wants to do, fix that kitchen up, [and] it can be done within the percentage that the Code allows." BOA Tr. at 18. Ms. Lash voted against the variance because she felt that the kitchen could be improved within the 20% allowance provided by the Code and she was concerned with the precedent of allowing a variance to build that was 14% over the 20% that the Code required. Id. at 18. Mr. Stone agreed with Ms. Lash that there was an excess over the 20% allowed. Id. at 21. Mr. Stone also stated that he did not think the Board should be using the improvement of the property as a trade-off for increasing the property size beyond the prescribed variance amount in the Code. Id. at 21.
Mr. Schmalhofer now appeals the decision of the Board to this Court. First, he claims that the Board of Adjustment has failed to fulfill its mandate to enact rules of procedure pursuant to 22 Del. C. § 323 and the City Code. Second, Mr. Schmalhofer argues that the City did not comply with 22 Del. C. § 328 (a) and the Board's own procedure when it did not issue a written decision for its findings. Finally, Mr. Schmalhofer claims that he has demonstrated classic hardship in the record in that he has a narrow lot and a dwelling in disrepair. Thus, Mr. Schmalhofer argues should have been granted a variance.
Contray to Mr. Schmalhofer's contention, the Board has adopted rules of procedure. (See Dkt. No. 14, Ex. 3). Moreover, it appears that Mr. Schmalhofer has abandoned this argument in his reply brief. Therefore, the Court will not entertain any detailed discussion of this claim in this Letter Opinion.
STANDARD OF REVIEW
The Supreme Court and this Court have repeatedly emphasized the limited appellate review of the factual findings of an administrative agency. The function of the reviewing Court is to determine whether the agency's decision is supported by substantial evidence and free from legal error. General Motors Corp. v. Freeman, Del. Supr., 164 A.2d 686, 688 (1960); Johnson v. Chrysler Corp., Del. Supr, 213 A.2d 64, 66-67 (1965); Stoltz Management v. Consumer Affairs Board, Del. Supr., 616 A.2d 1205, 1208 (1992). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Oceanport md. v. Wilmington Stevedores, Del. Supr., 636 A.2d 892, 899 (1994); Battista v. Chrysler Corp., Del. Super., 517 A.2d 295, 297 (1986), app. dism., Del. Supr., 515 A.2d 397 (1986). On appeal from the Board, the Superior Court does not sit as a trier of fact with authority to weigh the evidence, determine questions of credibility, and make its own factual findings and conclusions. Johnson, 213 A.2d at 66. It merely determines if the evidence is legally adequate to support the agency's factual findings. 29 Del. C. § 10142 (d). These general standards are applicable to review of Board of Adjustment proceedings. See Cooch's Bridge Civic Ass'n v. Pencader Corp., Del. Supr., 254 A.2d 608 (1969); Janaman v. New Castle County Board of Adjustment, Del. Super., 364 A.2d 1241 (1976), aff'd, Del. Supr., 379 A.2d 1118 (1976). And, the appellate burden of persuasion is on the party who is seeking to overturn the Board's decision to show the decision was arbitrary and unreasonable. McQuail v. Shell Oil Co., Del. Supr., 183 A.2d 572, 578 (1962); Mobil Oil Corp. v. Board of Adjustment, Del. Supr., 283 A.2d 837, 839 (1971).
DECISION
It appears that the Appellant's main argument is that the Board did not provide a written justification for its decision. Mr. Schmalhofer argues that because the Board did not issue a written decision in this case "[t]here are no findings of fact, . . . [t]here is no statement of the legal standard [and] [t]here is . . . nothing for this Court to meaningfully review." Appellant's Reply Br. at 7-8. Article VII of the City of Newark Board of Adjustment Instructions to Appellants states, in pertinent part:
All actions and decisions on any application or appeal to the board shall be in the form of a written document. Such written document shall, where applicable, include findings of fact in support of a decision reached by the board.
Instructions, Dkt. No. 14, Ex. 3 at B-9.
"Appellant also argues that 22 Del. C. § 328 (a) contemplates a written decision. That section states: "(a) Any person or persons, jointly or severally aggrieved by any decision of the board of adjustment, or any taxpayer or any officer, department, board or bureau of the municipality 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. Such petition shall be presented to the Court within 30 days after the filing of the decision in the office of the board." Id. Contrary to the Plaintiff's argument, a written decision is not required or expressly contemplated by this section.
The Board argues that it did issue a written decision in this case, in that it provided Mr. Schmalhofer a written transcript of the proceeding six days after the decision on the matter. "Verbatim Minutes" were in fact kept. Additionally, on April 21, 1999, the City sent a letter to Mr. Schmalhofer notifying him of the denial of the variance. Denial Letter, Dkt. No. 14, Ex. B. So the question is simple, is the providing of a verbatim transcript of the Board of Adjustment hearing sufficient to fulfill the writing requirement of the Board procedure?
In this case, the answer appears to be yes. On the record, each Board member spoke as to the reasons for his or her vote. Mr. Fisher and Mr. Stone thought the kitchen could be improved within the 20% increase that the Code allows, as did Ms. Lash. BOA Tr. at 18, 21. Ms. Lash additionally stated that she was concerned with the precedent of allowing a variance to build that was 14% over the 20% that the Code required. Id. at 18. Likewise, Mr. Berg stated that he would vote for the project and the variance was the price the City had to pay for getting the property upgraded. Id. at 18. Mr. Foster voted for the project because he felt that if the City could get an improvement to the neighborhood, then the variance should be granted. See id. at 19-20. Thus, the Board members expressed on the record the reasons for their vote. The transcript provided to Mr. Schmalhofer that contained the Board's reasoning was sufficient to satisfy the writing requirement in the Board's rules.
The Board's rules require the Board to include the findings of fact it relied on in reaching its decision. One could envision a situation where the Board's transcript was so devoid of justification for the Board's decision that providing a transcript would be insufficient to satisfy the rule. Here, however, that is not the case because each Board member orally gave his or her justification for his or her vote, which was memorialized in writing by the transcript. The Board satisfied the terms of its rule.
Mr. Schmalhofer further claims that he has demonstrated classic hardship for his area variance because he has a narrow lot and an older dwelling that is in disrepair. Appellant's Opening Br. at 12. The appropriate test for the grant of an area variance for a municipality is the "exceptional practical difficulties" test. See 22 Del. C. § 327 (a)(3); Board of Adjustment of New Castle County v. Kwik-Check Realty, Inc., Del. Supr., 389 A.2d 1289, 1291 (1978). Here, there were no exceptional practical difficulties demonstrated. Nothing precludes Mr. Schmalhofer from making improvements to his property which would not increase the building size by more than 20%. The Board's ultimate conclusion was that the increase in the size of the building was just too much of a jump over the 20% allowed by Code. The Board's determination was supported by substantial evidence because no exceptional practical difficulties were presented and the Board found the permitted increase to the building size sufficient.
For the foregoing reasons, the decision of the Board of Adjustment of the City of Newark is AFFIRMED.
Sincerely, __________________ William T. Quillen
WTQ/mw, caj oc: Prothonotary