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In re Auditorium, Inc.

Superior Court of Delaware, New Castle County

October 30, 1951

In re AUDITORIUM, Inc. In re 704 WEST ELEVENTH ST., WILMINGTON.

Proceeding by the Auditorium, Inc., for a writ of certiorari to review the denial by the Building Inspector and Board of Adjustment for zoning appeals of the application for building permit of James P. Ward to repair premises known as No. 704 West Eleventh Street, Wilmington, Delaware, preliminary to using it as an amusement center for the holding of sporting events. The Superior Court, Richards, P. J., held that the evidence established that the building was in either a residence or apartment zone district and that use of building as amusement center for the holding of sporting events was improper in either zone district.

Order affirmed.

In proceeding before board of adjustment for zoning appeals to review denial by building inspector of application of prospective lessee for building permit to repair premises preliminary to using building as amusement center, wherein lessee relied on prior nonconforming use as amusement center, evidence sustained board's determination upholding denial of application.

Page 599

[46 Del. 432] It appears from the petition filed in this case that the petitioner is the owner of the premises known as No. 704 West Eleventh Street in the city of Wilmington; that said premises are located in the middle of the square bounded on the east by Madison Street, on the north by Eleventh Street, on the west by Monroe Street and on the south by Tenth Street, with a frontage of approximately seventy feet on Eleventh Street and extending in a southerly direction therefrom to a depth of approximately two hundred thirty feet; that said premises are almost wholly occupied by a large one story building and have been so occupied for approximately fifty years, said building having been used during most of said period of fifty years as a place of public assembly for sporting events, dances, automobile shows, food shows and other events of a like nature, and also by two small shops fronting on Eleventh Street on each side of the main entrance which was used for a soda shop, restaurant, offices and other business purposes; that on August 28, 1940, the Board of Adjustment for Zoning Appeals reversed a decision of the building inspector and granted an application of The Auditorium, Inc., the petitioner in this proceeding, to change the then existing candy store and soda fountain over to furniture stores, and at the same time allowed said applicant to reserve its right to use said Auditorium, at 704 West Eleventh Street, for boxing and wrestling bouts, as well as for furniture exhibits; that in the order granting said application said Board of Adjustment stated that The Auditorium located at 704 West Eleventh Street was in an apartment district, that it considered the change an improvement to the neighborhood and that there [46 Del. 433] appeared to be circumstances of hardship existing which justified a variance in the building zone ordinance; that from 1940 to September 1950 said Auditorium located as aforesaid

Page 600

was used as a furniture store and for the exhibition of furniture; that in September 1950 James P. Ward as prospective lessee of said Auditorium made application to the building inspector of the Mayor and Council of Wilmington for a permit to make certain minor interior repairs and alterations thereto with the intention of occupying and using said Auditorium as an amusement center, but such permit was denied on the ground that the use intended to be made of said Auditorium was not permissible in a residence district under the zoning ordinance; that upon an appeal to the Board of Adjustment that body sustained the decision of the building inspector, upon the ground that the use of the building known as 704 West Eleventh Street as an amusement center for the holding of sporting events, such as wrestling, basket ball, dancing and similar sporting events would constitute a non-conforming use which would be more detrimental to the neighborhood than the non-conforming use for which the building has been currently used.

The petition filed in this Court praying for a writ of certiorari contends that the determination of the Board of Adjustment is contrary to the facts and the law and is illegal and void for the following reasons:

(1) Petitioner's premises are within a business district as defined by the building zone ordinanace and said ordinance permits the use for which application was made.

(2) If petitioner's premises are in a residence or apartment district, section 2 of the building zone ordinance permits the use for which application was made, since said premises were used for the same use for many years prior and subsequent to the enactment of said building zone ordinance in 1924.

(3) The building zone ordinance is illegal and void as applied to petitioner's premises in that Section 1 thereof provides [46 Del. 434] for the establishment of the boundaries of the zoning districts as shown on a building zone map which accompanies and is declared to be a part of said ordinance and no such map does in fact accompany said ordinance. Furthermore, no such map is kept in the custody of the clerk of council pursuant to an Ordinance of the Mayor and Council of Wilmington, approved January 1, 1857, as amended (Revised Code of Wilmington, 1942, p. 1432, Sec. 2391).

(4) Section 1 of said building zone ordinance is invalid as to petitioner in that it violates Sections 4 and 5 of Chapter 114 of the Laws of Delaware of 1923, 33 Del.L. 292, since the legislative body of the Mayor and Council of Wilmington have not fixed, determined and established the boundaries of the various zoning districts.

(5) Any boundaries established by the Mayor and Council of Wilmington for zoning districts are too vague, indefinite and uncertain to be applied to petitioner's premises.

(6) The determination of said Board of Adjustment violates petitioner's constitutional rights under the Constitutions of the United States and the State of Delaware in that Section 1 of said zoning ordinance is unreasonable because it is vague and indefinite, and the denial of the petitioner's right to use its premises under the circumstances hereinabove set forth constitutes a taking of its property without due process of law, constitutes unequal treatment, and is arbitrary and without justifiable basis.

(7) Section 1 of said building zone ordinance in establishing the building zone districts applicable to petitioner's premises is so vague and indefinite that petitioner cannot determine its rights thereunder and said ordinance is incapable of enforcement against petitioner.

(8) The Mayor and Council of Wilmington and its agents, officers and administrative agencies are bound by the prior determination of the Board of Adjustment which recognized that [46 Del. 435] petitioner's premises were and ...


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