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Kazemzadeh v. Board of Adjustment of Sussex County

Superior Court of Delaware

December 3, 2014

Ali and Jennifer Kazemzadeh
v.
The Board of Adjustment of Sussex County

Timothy G. Willard, Esquire Fuqua, Yori & Willard, P.A.

James P. Sharp, Esquire Moore & Rutt, P.A.

Dear Counsel:

This is my decision on Ali and Jennifer Kazemzadeh's appeal of the Sussex County Board of Adjustment's denial of their application for a variance. I have affirmed the Board's decision for the reasons set forth herein.

STATEMENT OF FACTS

The Kazemzadehs own a 60 x 120 foot unimproved corner lot in Middlesex Beach, Sussex County, Delaware. The Kazemzadehs want to construct a three-story house containing 2, 800 square feet of living space on each of the second and third floors. The house would be 40 feet wide and 70 feet long and include an elevator and be wheelchair accessible. The Kazemzadehs can not make their house 40 feet wide because there is a 15-foot setback applicable to the side of the lot on the corner and a 10-foot setback applicable to the other side of the lot, leaving them with only 35 feet to work with. Therefore, the Kazemzadehs applied for a five-foot variance from the15-foot setback. The Board held a hearing on the Kazemzadehs' application. Ali Kazemzadeh testified at the hearing. Kazemzadeh testified that the variance was necessary for he and his family to properly enjoy their house. Kazemzadeh also testified that (1) the property was unique because of its proximity to the water which reduced the livable space on the first floor, (2) the size of the house was necessary for a proposed elevator and wheelchair access, (3) the house would lose a substantial amount of space if they had to comply with the15-foot setback, (4) the house would not alter the characteristics of the neighborhood, and (5) the house would be one of the only ones in the neighborhood that would have had to comply with the 15-foot setback if the variance was not granted. The Middlesex Beach Home Owners Association testified in support of the variance. Kathleen McClure, the owner of a nearby lot, testified in opposition to the variance. McClure testified that she and her husband had to change the architectural plans for their house to fit within the required setbacks for their lot. The Board denied the Kazemzadehs' variance application, finding (1) that they did not need a variance to reasonably use their property, and (2) the hardship or exceptional practical difficulty was created by the Kazemzadehs. The Kazemzadehs now appeal the Board's decision to this Court.

STANDARD OF REVIEW

The standard of review on appeals from the Board of Adjustment is limited to the correction of errors of law and a determination of whether substantial evidence exists in the record to support the Board's findings of fact and conclusions of law.[1]Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[2] If the Board's decision is supported by substantial evidence, a reviewing court must su stain the Board's decision even if such court would have decided the case differently if it had come before it in the first instance.[3] "The burden of persuasion is on the party seeking to overturn a decision of the Board to show that the decision was arbitrary and unreasonable."[4] In the absence of substantial evidence, the Superior Court may not remand the Board's decision for further proceedings, but rather, may only "reverse or affirm, wholly or partly, or may modify the decision brought up for review."[5]

DISCUSSION

I. Variance

The Kazemzadehs argue that the Board's decision is arbitrary and capricious. The Board gets it power from 9 Del.C. § 6917. This section authorizes the Board to hear and grant variance requests.[6] Under this provision, the Board may grant a variance "only if all of the following findings are made":

a) That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property, and that unnecessary hardship or exceptional practical difficulty is due to such conditions, and not to circumstances or conditions generally created by the provisions of the zoning ordinance or code in the neighborhood or district in which the property is located;
b) That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance or code and that the authorization of a variance is therefore necessary to enable the reasonable use of the property;
c) That such unnecessary hardship or exceptional practical difficulty has not been created by the appellant;
d) That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare;
e) That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.[7]

The Kazemzadehs bore the burden of proof in persuading the Board that they met all of the requirements of 9 Del.C. § 6917.[8] This also means that the Board lacks the authority to grant an area variance where the applicant fails to meet each and every element of 9 Del.C. § 6917(3).[9] The Board informed the Kazemzadehs of their burden, which they acknowledged. While it would have been helpful for the Board to have addressed each element of 9 Del.C. § 6917(3) individually in its decision, the Board specifically found that (1) the variance was not necessary for the Kazemzadehs to reasonably use their property, and (2) the hardship or exceptional practical difficulty was created by the Kazemzadehs. Based upon these two findings, the Board denied the Kazemzadehs' application for a variance. This Court will review the five elements of 9 Del.C. § 6917(3) as they pertain to the Kazemzadehs' variance application to see if the Board's decision is supported by substantial evidence in the record and is in accordance with the applicable law.

A. Unique Physical Circumstances

The first element of 9 Del.C. § 6917(3) which the Kazemzadehs must satisfy for the granting of a variance is § 6917(3)(a), which states "that there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property...in the neighborhood or district in which the property is located." The Kazemzadehs argue that their lot is unique because it is located in a flood zone, leaving them unable to build on the first floor. The Kazemzadehs also argue that their house needs to be bigger to accommodate an elevator and wheelchair access. I reviewed the record and could not find any evidence to support the Kazemzadehs' arguments. The Kazemzadehs' lot is like every other 60 x 120 corner lot in Middlesex Beach, and presumably every lot in this ocean side community is located in a flood zone and cannot contain living space on the ground floor. There is, quite simply, nothing unique about a 60 x 120 lot at the beach. The Kazemzadehs' lot is not unusually small or uniquely burdened by the flood zone requirements. The Board's finding that the Kazemzadehs did not satisfy §6917(3)(a) is supported by the record.

B. No Possibility of Development

The second element of 9 Del.C. § 6917(3) which the Kazemzadehs must satisfy for the granting of a variance is § 6917(3)(b), which states "that because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance or code and that the authorization of a variance is therefore necessary to enable the reasonable use of the property." The evidence in the record and Ali Kazemzadeh's own testimony indicates that the lot can be developed in strict conformity with the provisions of the zoning code. Ali Kazemzadeh testified as follows:

The possibility of development, yes, it could be developed being 35 foot but, as I stated, that we need that extra five feet in order to - - it's - - to make it enjoyable. After all, this is a vacation home, so we need that. You know, it's a family home, so we need this extra space in order to accommodate my parents.[10]

The only reason the Kazemzadehs have offered for not building their house in accordance with the provisions of the zoning code is that they want a large house. The Kazemzadehs want to build a house containing 5, 800 square feet of living space. This is a large house. A house built in compliance with the setback requirements would contain 4, 900 square feet of living space. This is still a large house. The Kazemzadehs have simply failed to offer evidence establishing that they could not live in a 4, 900 square foot house that contains an elevator and is wheelchair accessible. The Board's finding that the Kazemzadehs did not satisfy § 6917(3)(b) is supported by the record.

C. Unnecessary Hardship or Exceptional Practical Difficulty

The third element of 9 Del.C. § 6917(3) which the Kazemzadehs must satisfy for the granting of a variance is § 6917(3)(c), which states "that such unnecessary hardship or exceptional practical difficulty has not been created by the appellant." The Kazemzadehs argue that the exceptional practical difficulty is due to Ali Kazemzadeh's parents needing an elevator to access the second and third floors. However, there is no evidence in the record that supports the Kazemzadehs' argument that a smaller house could not be built with an elevator and be wheelchair accessible. Furthermore, as the Board states in its brief, the Kazemzadehs' lot is unimproved. The Kazemzadehs have a blank slate upon which to work. The real problem is that the Kazemzadehs want a house that is too large for their lot. This is, as the Board noted, a problem of their own making. The Board's finding that Kazemzadehs did not satisfy § 6917(3)(c) is supported by the record.

D. Character of Neighborhood

The fourth element of 9 Del.C. § 6917(3) which the Kazemzadehs must satisfy for the granting of a variance is § 6917(3)(d), which states "that the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare." The Kazemzadehs argue that allowing them to build their house as desired would improve the value and character of the neighborhood. Additionally, the Kazemzadehs argue that the lot is currently a sandy surface. If improved, the front portion of the lot would be paved over, thereby reducing the amount of sand on the street and making it more recreational biker friendly. There is no evidence in the record that the Kazemzadehs' proposed home would adversely alter the character of the neighborhood, nor permanently impair the appropriate use or development of an adjacent property. The record indicates that the Kazemzadehs have satisfied §6917(3)(d).

E. Minimum Variance Necessary

The fifth and final element of 9 Del.C. § 6917(3) which the Kazemzadehs must satisfy for the granting of a variance is § 6917(3)(e), which states "that the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue." The Kazemzadehs argue that they should be treated the same way as all of their neighbors that have a ten-foot setback, and that the granting of the five-foot variance is necessary to accomplish this result. The Kazemzadehs' reasoning is irrelevant to the granting of a variance. The Kazemzadehs have offered no evidence to support their argument that a five-foot variance is the minimum necessary to fit a house on their property. The Board's finding that the Kazemzadehs did not satisfy § 6917(3)(e) is supported by the record.

There is substantial evidence in the record to support the Board's denial of the Kazemzadehs' application for a variance. The Kazemzadehs were unable to satisfy each and every element of 9 Del.C. § 6917(3) as required by Verleysen.[11] By failing to satisfy each element of § 6917(3), the Kazemzadehs could not demonstrate that a variance was necessary to enable their reasonable use of the property, nor could they demonstrate the need for a variance was not self-created. The Board's decision is based upon substantial evidence and free from legal error.

II. Equal Protection

The Kazemzadehs argue that the Board denied them the equal protection of the law because they were treated differently from other landowners in a similar situation without a rational basis for doing so. The Kazemzadehs argue that their lot is identical to ten other corner lots in their neighborhood. According to the Kazemzadehs, five of those lots were granted variances, one each in 1992, 1999, 2003, and two in 2000. The Kazemzadehs argue that the Board knew about the prior variances and still intentionally denied their application for a variance. However, none of this is in the record before the Court. This Court cannot consider new evidence that has been presented only in the briefs on appeal. Furthermore, this Court's role is to review the record and make a determination on whether the Board's decision is based upon substantial evidence and in accordance with the applicable law. This Court has reviewed the record and determined that substantial evidence exists to support the Board's decision. As a side note, just because the Board's decision is based upon substantial evidence does not mean that the Kazemzadehs can not pursue an equal protection claim in the proper forum. The issue is just not ripe at the moment as the evidence necessary to make an equal protection analysis is not part of the reviewable record.

CONCLUSION

The Sussex County Board of Adjustment's decision is AFFIRMED.

IT IS SO ORDERED.

Very truly yours,

E. SCOTT BRADLEY JUDGE


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