Friends of the H. Fletcher Brown Mansion
City of Wilmington, City of Wilmington Zoning Board of Adjustment, and Ingleside Homes, Inc.
Submitted: May 17, 2013
On Writ of Certiorari to the City of Wilmington Zoning Board of Adjustment.
Richard R. Cooch, R.J.
Respondent Ingleside Homes, Inc. asked Respondent City of Wilmington Zoning Board of Adjustment to permit development that would normally violate the Wilmington City Code. The Board allowed one use and two area variances. Petitioners Friends of the H. Fletcher Brown Mansion ask this Court to set aside the Board's decision because
1. when approving the variances, the Board lacked a quorum, and
2. insufficient evidence supports the Board's findings that
a. the variance is consistent with the comprehensive plan,
b. allowing the variance would not worsen existing parking problems, and
c. the realty would not yield a reasonable return unless the Board allowed the variance.
Although the Board's decision is brief, it nonetheless promotes the Code's spirit; substantial evidence supports the Board's findings, and every member of the Board could join in the decision. For these reasons, the Board's decision is AFFIRMED.
Although Harry Fletcher Brown was born elsewhere, he died a Delawarean.He graduated from Harvard University with degrees in physics and chemistry, and by 1904, Mr. Brown had joined E. I. du Pont de Nemours and Company. In 1914, Mr. Brown built a house at 1010 North Broom Street in Wilmington, Delaware. The H. Fletcher Brown Mansion tops two stories and encloses 14, 351 square feet. Charles Wellford Leavitt Jr., a well-known landscape architect, civil engineer, and urban planner, designed the home's gardens. Mr. Brown lived there with his wife, Florence, until he died in 1944.
When Mrs. Brown died in 1953, Delaware Hospital inherited the grounds, which the Browns asked the Hospital to use as a "Home for the Aged." In 1971, the Hospital, as the Wilmington Medical Center, sold 1010 North Broom Street to Church Home Foundation, Inc. And later, the Foundation became Respondent Ingleside Homes, Inc.
Ingleside provides housing and help to low- and middle-income seniors.Ingleside runs two homes: Ingleside Assisted Living Apartments on 1605 North Broom Street and Ingleside Retirement Apartments on 1005 North Franklin Street, which is next to 1010 North Broom Street. An outdoor path and an enclosed hall join Ingleside Retirement Apartments and the H. Fletcher Brown Mansion.Ingleside ran a "Home for the Aged" at 1010 North Broom Street through 1975.Then, the Mansion housed Ingleside's offices from 1976 to 2008; in late 2008, Ingleside vacated the Mansion because it was unsafe.
Since 2000, Ingleside has weighed repurposing 1010 North Broom Street.But Ingleside failed at first because Respondent City of Wilmington zoned the land as R-1,  which limited Ingleside's options:
The R-1 district, one-family detached dwellings, is designed to protect and maintain those residential areas now developed primarily with one-family detached dwellings on relatively large lots and adjoining vacant areas likely to be developed for such purposes.
In 2007, Ingleside and the Cool Spring/Tilton Neighborhood Association discussed how Ingleside should repurpose 1010 North Broom Street. Ingleside preferred to demolish the H. Fletcher Brown Mansion and build a 54-unit apartment building.Ingleside asked the City to rezone the land as R-5-B,  which would allow Ingleside to build the new structure:
The R-5-B district, medium-density apartment houses, is designed to accommodate medium-density elevator apartment houses with ample light and air at medium or high rentals.
The City's planning department advised the City to reject Ingleside's request because R-1 was the "most appropriate" district for 1010 North Broom Street.The department noted that, if the City insisted on rezoning the land for Ingleside, R-5-A-1 was a "somewhat more compatible" designation, and it would still allow Ingleside to build an apartment building—albeit one that is no taller than five stories:
The R-5-A-1 district, low-medium density apartment houses, is designed primarily to permit low to medium density apartment developments contiguous to one-family districts and to include other residential and residentially compatible, institutional uses. . . . The density of uses in the district is controlled by the floor area ratio (FAR) and height of buildings is limited to five (5) stories as a matter of right.
Ingleside abandoned its request, and relations between it and the Association then worsened.
In 2009, the City hired Leon N. Weiner & Associates to broker a deal between Ingleside and the Association. And with Weiner & Associates' help, Ingleside drafted a new proposal:
1. Ingleside would demolish about 20 percent of the H. Fletcher Brown Mansion;
2. Ingleside would preserve and maintain the Mansion's gardens; and
3. Ingleside would join the Mansion and Ingleside Retirement Apartments with a new four-story, 35-unit apartment building.
Although the Association opposed the new proposal,  Ingleside still asked the City to approve the proposal.
1. the City's Design Review and Preservation Commission to approve the proposal because 1010 North Broom Street is within the Cool Spring/Tilton Park City Historic District, and
2. Respondent City of Wilmington Zoning Board of Adjustment to allow three variances from Chapter 48 of the Wilmington City Code.
On October 21, 2009, the Commission approved the proposal conditionally; the body conditioned its approval on whether the Board allowed the variances. And on October 29, 2009, the Board allowed the variances, though the Association vigorously opposed them.
Petitioners Friends of the H. Fletcher Brown Mansion asked Superior Court to direct a writ of certiorari to the Board under Title 22, Section 328 of the Delaware Code. Superior Court issued the writ and affirmed the Board's decision. Friends appealed Superior Court's ruling; however, the Supreme Court reversed the ruling on December 12, 2011 and held that the Board's decision was void because the City did not compose the Board as Section 322(a) then required.This judgment forced Ingleside to start fresh because Superior Court could not remand the case to the Board.
In January of 2012, Ingleside asked the Board for variances from
1. Section 48-131 of the Wilmington City Code, which bars multi-family use of 1010 North Broom Street,
2. Section 48-151 of the Wilmington City Code, which sets the maximum height of any structure at 1010 North Broom Street as three stories, and
3. Section 48-156 of the Wilmington City Code, which sets the minimum width of 1010 North Broom Street's side yard as 15 feet.
The Board scheduled a hearing for February 22, 2012.
The Board found "significant public support for [Ingleside's] request, "although many neighbors, including Jeffrey T. Kusumi, opposed the request.After Ingleside presented its case, the Board asked other attendees for comments.Most attendees opposed Ingleside, but some, like Ray Banker, backed Ingleside.After attendees finished, the Board voted.
The Board allowed all three variances; the Board issued a written decision on April 11, 2013. Friends then asked the Court to direct another writ of certiorari to the Board,  which the Court did. The Court now reviews the Board's second decision.
II. STANDARD OF REVIEW
The Court must affirm a decision of a board of adjustment if
1. substantial evidence supports the board's findings of fact, 
2. the decision is free from errors of law,  and
3. the decision is not arbitrary, capricious, or unreasonable.
The evidence is "substantial" if a reasonable mind could conclude that the evidence is adequate to support the findings of fact. The Court's inquiry is limited: the Court does not weigh the evidence, assess its credibility, or find factsbecause the legislature has assigned those tasks to the board of adjustment. In other words, the Court must respect the board's discretion. But the Court is no mere spectator. The legislature has charged the Court with the duty to ensure that the board follows the law and acts reasonably. The Court can discharge this duty only if the grounds on which the board acts are "clearly disclosed and adequately sustained, " or else, the Court could inadvertently, yet still improperly, invade the board's province. The board must therefore do more than recite statutory text or invoke a legal rule; the record must allow the Court to identify the reasons for the board's decision and evaluate them.
No government may take property arbitrarily, though property is not sacred. As President Theodore Roosevelt once stated, "every man holds his property subject to the general right of the community to regulate its use to whatever degree the public welfare may require it." But even if the public welfare justifies a rule generally, the public welfare might not justify every application of the rule; in other words, the rule might sometimes impose a burden so great that an exception is merited. The Board has decided that 1010 North Broom Street merits an exception under Delaware law. Friends must persuade this Court otherwise.Friends contend that
1. the Board lacked a quorum because two members of the Board did not appear to be impartial, and
2. substantial evidence does not support the Board's conclusions that
a. the exception is consistent with the City's comprehensive plan,
b. the development that the exception permits will not exacerbate existing parking problems, and
c. 1010 North Broom Street could not yield a reasonable return unless the Board granted an exception.
The Court does not find Friends' claims to be persuasive.
A. The Board had a quorum because the Court presumes that each member of the Board acted fairly, impartially, and in good faith and Friends has failed to ...