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Auditorium, Inc. v. Board of Adjustment of Mayor & Council of Wilmington

Supreme Court of Delaware

October 10, 1952


Page 529

[Copyrighted Material Omitted]

Page 530

David F. Anderson, of Berl, Potter & Anderson, Wilmington, for appellant.

Herbert B. Warburton, Asst. City Sol., Wilmington, for appellee.

WOLCOTT and TUNNELL, Justices, and HERRMANN, Judge, sitting.

WOLCOTT, Justice.

This appeal seeks review of the application of the Building Zone Ordinance of Wilmington by the municipal authorities to the appellant's property. Two basic questions are raised, viz., first, is the appellant's property located within a Business 'B' Zoning District of Wilmington, and, second, in the event the first question is answered in the negative, may the appellant's building be used for the showing of athletic exhibitions?

The appellant is the owner of the premises known as the Auditorium, located at 704 West 11th Street in Wilmington. The Auditorium is a large one-story building with a main entrance on 11th Street and having two small stores on either side of the main entrance. The balance of the building consists of a large room designed for use as a place of public assemply. The premises are located on the southerly side of 11th Street and are about in the middle of the block formed by Madison Street on the east and Monroe Street on the west. They have a frontage on 11th Street of 70 feet and extend between parallel lines in a southerly direction to a depth of 230 feet. The easterly boundary of the premises runs, at a distance of 155 feet from the westerly[47 Del. 377] side of Madison Street, along the westerly side of an alley running parallel to Madison Street through the block from 11th Street to 10th Street. The easterly side of the alley is the rear boundary of the properties fronting on the westerly side of Madison Street between 10th and 11th Streets.

The Auditorium was erected some time prior to 1900 and, thereafter, until 1941, it was regularly used as a place of public assembly for sporting events, dances, automobile shows, roller skating and other similar events.

On July 24, 1924, pursuant to the enabling act of the General Assembly, 1935 Code, Ch. 179 §§ 6228-6236, Wilmington enacted a Building Zone Ordinance. By Section 1 of this ordinance the city was divided into zone districts. The boundaries of the zone districts were declared to be 'established as shown on the Building Zone Map' which accompanied and was declared to be a part of the ordinance.

At the trial of the cause before the Superior Court, a Building Zone Map was exhibited to the court by the Building Inspector of Wilmington. He testified that the map thus shown was kept by him in his office and was used to establish zone boundaries whenever it was necessary to do so in the performance of the duties of his office. The map thus exhibited bore an inscription 'Building Zone Map of Wilmington, Delaware, January, 1924'. The Building Inspector testified that as far as he knew, that map was the original zoning map referred to in the Building Zone Ordinance of 1924.

The Clerk of City Council in whose custody all official papers of the city are held was unable to produce at the trial in the Superior Court the original Building Zone Ordinance enacted in 1924. He testified that in his opinion the map kept in the office of the Building Inspector was the official Building Zone Map of Wilmington.

At the argument of the appeal before this court, by stipulation of counsel, the original Building Zone Ordinance, which [47 Del. 378] had been subsequently located, was submitted for our examination. Attached to this original ordinance was the official Building Zone Map of 1924. The map thus attached is smaller than the map retained in the office of the Building Inspector. We have not seen the Building

Page 531

It appears from an inspection of the Building Zone Map of 1924 that the block bounded by Madison, Monroe, 11th and 10th Streets, contains three building zone districts. The block is divided by a line running north and south between 11th and 10th Streets dividing the block approximately in half. That portion of the block lying to the west of the north-south division line is designated on the map as a Residence 'C' District. That portion of the block lying to the east of the north-south line is divided approximately in half by an east-west line running between a point on the westerly side of Madison Streed and a point on the north-south dividing line. The northerly portion of the easterly part of the block is designated as a Business 'B' District. The southerly portion of the easterly part of the block is designated as an Apartment District.

Neither the property lines nor the alley referred to above are shown on the Building Zone Map. There is nothing in the record before us to indicate the number and types of properties contained within the block, nor to show the property lines of the various properties. The record contains no showing of any distances contained within the block except the dimensions of the appellant's property and its distance from the corner of Madison and 11th Streets. Nor does not record disclose the length of the sides of the block along the four streets enclosing it.

[47 Del. 379] There is testimony that the property located at the corner of 11th and Madison Streets is a business property and that this corner property is the only business property contained within the block, and that the Business 'B' District shown on the Building Zone Map is considered by the city authorities to be confined to the lot boundaries of that corner property. It appears, however, that the corner property does not extend to the south down Madison Street to a point anywhere near the middle of that block.

As we have stated before, the Auditorium was in existence at the time of the first enactment of the Building Zone Ordinance of Wilmington. At that time, it was used for public sporting exhibitions and other uses which required public gatherings. This use was continued by the owners of the building until August 28, 1940 when an order of the Board of Adjustment was entered granting permission to use the Auditorium for furniture exhibitions as an improvement to the neighborhood. This order recited that the Auditorium was located in an Apartment District and also reserved to the appellant the right to use the Auditorium for boxing and wrestling bouts. Thereafter, commencing in the fall of 1941, the Auditorium building was used solely for furniture exhibitions until the present application was made to the Building Inspector seeking permission to make alterations to resume the showing of athletic exhibitions.

The Building Inspector refused the present application and from this refusal an appeal was taken to the Board of Adjustment which affirmed the ruling of the Building Inspector. From that affirmance the cause was taken to the Superior Court of New Castle County by writ of certiorari. The record of the proceedings before the Board of Adjustment consisting of a notice of application, an objection signed by 122 residents of the neighborhood, on objection signed by four doctors who objected to the proposed use on the ground that it would be a disturbing influence to the patients of the Osteopathic Hospital located at 1105 Madison Street, and the ruling of the Board of ...

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