Timothy G. Willard, Esquire Fuqua, Yori & Willard, P.A.
James P. Sharp, Esquire Moore & Rutt, P.A.
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.Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. 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. "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." 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."
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. 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 ...