Submitted: January 23, 2014
Upon Appeal from the Decision of the Kent County Board of Adjustment.
Reversed. Stanley Zober, Jr. and Beverly J. Sturm, pro se
Noel E. Primos, Esquire of Schmittinger and Rodriguez, P.A., Dover, Delaware; attorney for Appellee.
William L. Witham, Jr. Resident Judge
Before the Court is the pro se appeal of Appellants Stanley Zober, Jr. (hereinafter "Zober") and Beverly Sturm (collectively "Appellants") from the decision of the Kent County Board of Adjustment (hereinafter "the Board") denying Appellants' application for several variances that would allow Appellants to build two homes on their property. After careful consideration of the record and the submissions by the parties, the decision of the Board is REVERSED for the reasons set forth below.
Appellants filed an application with the Kent County Department of Planning Services (hereinafter "the Department") for three variances from Section 205-127 of the Kent County Code that would allow Appellants to build two homes on a currently undeveloped lot in the Meadowbrook Acres subdivision. Appellants' property is zoned as RMH (Residential Manufactured Home). The variances concern the required road frontage, minimum lot size, and maximum density, respectively. The variances would, in essence, split Appellant's property into two lots and would allow for the construction of two homes.
The Department issued a Staff Recommendation Report that recommended denial of the Appellants' variance requests. The report stated that Appellants did not demonstrate an exceptional practical difficulty that would justify the variances, and noted that "approval of the requests could have a negative impact on the character of the area or to the nature of the zoning district if the variances are approved." The Staff Report notes that the property was originally platted as two separate lots, lots 32 and 33, respectively, but the property was at some point combined into a single lot. The Staff Report also describes six similar variance requests for properties in the surrounding area; five were approved, and one was denied.
A public hearing was held on August 15, 2013. Zober testified before the Board that he owns multiple rental properties in Meadowbrook Acres. Zober testified that the property in question was already equipped with two sewer laterals, previously installed by the county, that would allow for the construction of two homes. Zober stated that when he originally purchased the property in the 1970s, the property consisted of two separate lots. Zober claimed that at some point he received a phone call from "someone in the tax office" who persuaded Zober to combine the lots for tax purposes. Zober told the Board he did this to save money without fully knowing or appreciating the consequences of his decision. Zober testified that he continues to pay taxes on the property as if the property remains two separate and distinct lots.
A dotted line on a parcel map of Appellants' property corroborated Zober's testimony to the extent that the dotted line represented that a property line had once existed that separated the two separate lots, but had since been removed when the lots were combined. As for Zober's testimony regarding the circumstances of the combination of the lots, members of the Board expressed confusion over Zober's testimony, and also expressed doubt over the tax status of the property. The Board's staff noted that there were no records of how the combination of the lots occurred. The Board explained that if Zober was in fact paying taxes for two different properties when he only owned one, he would have originally received two separate deeds, with two separate tax numbers. The Board only had one deed, and one tax number, before it during the meeting.
Zober acknowledged he could not verify that he paid taxes on each of the individual lots, but indicated that he might not have had all of the relevant documents pertaining to the property with him at the meeting. The Board's staff also indicated that the Board did not have the original deed for the property before it. The Board's chairperson asked if it were possible to obtain a copy of the original deed; the Board's staff indicated that it was not possible because the deed office was already "locked up" for the evening.
The Board's chairperson noted several times over the course of the hearing that the nature of the property was "very confusing, " including the fact that the current deed for the property indicates it is one parcel, with one tax I.D. number, but with two lot numbers. The Board's counsel also noted that "the record at this time seems to be very muddled to say the least." The Board's staff explained that many of parcels in Meadowbrook Acres were of the same nature as what would result if the variances were granted; i.e., the Meadowbrook Subdivision was originally designed as largely consisting of separate, smaller lots that were never combined, unlike the property at issue. The Board's chairperson stated several times throughout the hearing that the variance request may have to be "tabled" in order to consult the original deed and "so that we can have true documents before us."
The Board took comments from two Meadowbrook Acres residents. The first person to comment was Vivian McDonald (hereinafter "McDonald"), who expressed concern that landlords such as Zober did not properly maintain their properties and allowed them to fall into disrepair. The second person to comment was Bruce Murphy (hereinafter "Murphy"), another property owner who did not specifically oppose Zober's application, but expressed frustration with the inconsistent makeup of Meadowbrook Acres. Murphy told the board: "if ...