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12/01/54 MATTER APPLICATION EMMETT S. HICKMAN CO.

December 1, 1954

IN THE MATTER OF THE APPLICATION OF EMMETT S. HICKMAN CO., FOR THE DIAMOND STATE TELEPHONE COMPANY. ON THE PETITION OF SIDNEY S. ROWEN AND STEVEN L. FORTUNATO


Appeal from a judgment of the Superior Court of New Castle County affirming a decision of the Board of Adjustment on an application under the Building Zone Ordinance of the City of Wilmington. Reversed and remanded.

Southerland, Chief Justice, Bramhall, Justice, and Herrmann, Judge, sitting.

The opinion of the court was delivered by: Southerland

SOUTHERLAND, Chief Justice.

The Diamond State Telephone Company is a public utility corporation of this State. It wishes to expand its facilities by the erection of an office building and a telephone exchange upon a block of land in Wilmington bounded by Thirty-ninth, Fortieth, West and Washington Streets. It does not own this land outright, but has contracted to buy it.

It applied to the Building Inspector for a permit. He refused it because the proposed construction conflicted with provisions of the Wilmington Zoning Ordinance. The Company appealed to the Board of Adjustment. A hearing was held, objections were heard, and testimony was taken. The Board's decision was to grant the application. The objectors appealed to the Superior Court, which affirmed. This appeal followed.

The question before us concerns the proposed establishment of a parking lot in a residential district. The facts are these:

A portion of the block of land in question is zoned as a Business A District. Upon this portion the office building will stand. This is a permitted use. The rest of the block is zoned as a Residence B District. Upon this portion will be built the exchange. This is also a permitted use. The two buildings will be joined. Adjacent to the exchange, and within the Residence A District, the Company wishes to establish a parking lot serving 55 cars to be used by its employees working in both buildings and by its customers. Neighboring property owners object. The question before us is whether the action of the Board with respect to the parking lot is authorized by the provisions of the zoning ordinance.

Before proceeding to the merits, we must deal with a preliminary question.

In the court below appellants sought a reversal of the Board's order on the ground that the notice of appeal to the Board did not specify the grounds thereof, as required by 22 Del.C. § 324. It does not appear that this question was ever raised before or at the hearing before the Board. If it had been seasonably raised, the Board could and should have enforced compliance with the statute. We think the matter a procedural one, although there is authority to the contrary. See the cases cited in Yokley, Zoning Law & Practice, § 122. We do not look with favor on such an objection, made for the first time after a full hearing has been had and no prejudice to appellants affirmatively appears. We decline to void the proceedings upon this ground. We say, however, that the Board itself ought to insist upon compliance with the statute. Non-compliance contributes to inadequacy of the records of the proceedings -- a matter we have twice before noticed. See Searles v. Darling, 46 Del. 263, 83 A.2d 96; Auditorium Inc. v. Board of Adjustment, etc., Del., 91 A.2d 528.

We turn to the merits.

The Board of Adjustment, in granting the Company's application, apparently based its decision upon three grounds: first, upon a finding of unnecessary hardship justifying a variance under Section 14 of the zoning ordinance; second, a finding that the convenience and welfare of the public would be promoted, under Section 14(h) of the ordinance, relating to public utilities; and, third, upon a finding that the parking lot was an accessory use, under Section 3(1) of the ordinance.

The case was reviewed on certiorari by the Superior Court. That court agreed with the Board that the proposed parking use was accessory to the main use -- the exchange. In so far as such use was accessory to the office building in the business district, the court was of opinion that the Board was within its powers in granting a variance in this respect.

It will be convenient to consider first the matter of accessory uses.

The Wilmington Zoning Ordinance, as is customary, creates for zoning purposes various classes of districts. Section 3 provides that within any Residence District no building or premises shall be used, in any part, otherwise than for nine specified classes of purposes. A parking lot is not one of them.

Paragraph (g) specifies the following class of permitted uses:

'Railroad passenger stations and rights-of-way, not including yards or sidings (other than passing tracks) and not including buildings other than passenger stations, telephone exchanges.'

Paragraph (i) provides in part:

'Accessory uses, customary with or incidental to any of the aforesaid permitted uses, including private garages and private stables as hereinafter specified; * * *'.

Paragraph (i) also provides:

'No business, service or industry, except operations incidental to farming carried on on the same lot, shall be conducted in any accessory building, nor shall any walk or driveway giving access to any business, service or industrial establishment, or any advertising ...


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