Certiorari proceeding by Carlton R. Searles against J. Frank Darling, and others, members of Board of Adjustment, to review an order of the Board granting variance to building zone ordinance. The Superior Court, New Castle County, affirmed order of the board and petitioner brought writ of error. The Supreme Court, Tunnell, J., held that evidence failed to support finding of unnecessary hardship.
[46 Del. 265] William E. Taylor, Jr., Wilmington, for appellant.
David F. Anderson (of Berl, Potter & Anderson), Wilmington, for J. Frank Darling, appellee.
August F. Walz, Wilmington, for James F. Hearn, Edwin F. Koester, and himself, constituting the Board of Adjustment of the City of Wilmington, appellees.
WOLCOTT and TUNNELL, Justices, and LAYTON, Judge, sitting.
J. Frank Darling, one of the appellees, proposes to build an apartment house in Wilmington, and nearby, at 1701 Hancock Street, as an incident to the apartment house enterprise, an eight-story garage. There is no difficulty about the apartment building; this case concerns the garage. The problem arises because the lot where Darling has applied for permission to build his garage is within a district zoned as residential.
Attending first to the sequence of events, the record reveals that after Darling had proposed to construct the apartment house, but before the architect's plans were drawn, he purchased 1701 Hancock Street with the thought that it would be a suitable site for a garage to serve the occupants of the apartment building. Although this lot was within a territory which had been zoned as residential many years prior to Darling's purchase of it, it had always theretofore been devoted to a non-conforming use. It was, in fact, occupied by twenty-six small single-story garages and a two-story stable. Darling's application was for permission to raze all of the structures presently on the lot and to build the garage in their place.
[46 Del. 266] Following the procedure prescribed by the Building Zone Ordinance, Darling first applied to the building inspector, submitting his plans and specifications, but, since the application was for a non-conforming use, the inspector denied the application as a matter of course. Thereupon, Darling appealed to the Board of Adjustment of the City of Wilmington, and on January 18, 1950, after due notice, the Board of Adjustment viewed the premises and conducted a full hearing of all interested parties. There is no indication in the record as to what witnesses were heard or what was the nature of their testimony. On the 25th day of January, 1950, the Board of Adjustment entered a formal order granting Darling's application, but imposing upon the permit the applicant's own proposed condition that the building must be used exclusively for the ‘ storage or garaging’ of motor vehicles of or for the tenants of the apartment building.
After entry of the Board's order, Carlton R. Searles, a taxpayer in Wilmington, petitioned the Superior Court for a writ of certiorari. In petitioning for the writ, he joined as respondents the applicant, J. Frank Darling, and also the three members of the Board of Adjustment. On May 15, 1950, the matter came on for hearing before the Superior Court. After examining the record, hearing additional testimony and receiving in evidence certain exhibits, on August 25, 1950, the Superior Court affirmed the order of the Board of Adjustment.
The appellant has now sued out in this court a writ of error to the Superior Court for review of the proceedings below.
Municipal zoning in Delaware is by authority of a general enabling act, the most recent version of which was enacted on April 26, 1934, and appears as paragraphs 6228-6236, Revised Code of Delaware, 1935. This enabling act is an ...