Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Village at Hwy One v. Bd. of Adjustment of Sussex Cty.

Superior Court of Delaware, Sussex

February 23, 2015

The Village at Hwy One
v.
Bd. of Adjustment of Sussex Cty.

Dear Parties:

Before the Court is The Village at Highway One's ("Applicant") appeal from the Sussex County Board of Adjustment ("Board"). At issue is the Board's decision to grant a special use exception to allow for a double-sided off-premise sign[1] ("billboard") to be erected on the property, but to deny a variance request with regard to the proposed billboard's height. Based on the facts of the case and the relevant case law, the Court AFFIRMS the Board's decision.

FACTS

Procedural History

On March 12, 2014, Applicant filed an application[2] for a special use exception to construct a billboard on Applicant's property, and for a ten foot height variance from the billboard height requirement. A public hearing was subsequently held on April 21, 2014 to address the application. At the conclusion of the hearing, the Board voted to table the application until the next meeting on May 5, 2014. At the May 5 meeting, the Board discussed the application further and decided to grant the application as to the special use exception, but deny it as to the height variance. On June 3, 2014, following its determination to grant the application in part and deny it in part, the Board issued a written decision ("Board's Decision") documenting its findings of fact and explaining its reasons for denying the variance. On July 3, 2014, Applicant filed a Notice of Appeal with regard to the Board's denial of the variance request in Superior Court. The Board filed its Return on Appeal on July 30, 2014. Briefing on the case concluded on December 1, 2014. The Court is now addressing Applicant's appeal.

Substantive Facts

The piece of property at issue has an interesting past that has played a part in shaping the physical attributes of the lot. The property is located east of Route 275A Airport Road in Rehoboth, Delaware at the intersection of Airport Road and Route 1. The property's identification number on the tax map is Parcel Number 3-34-13.00-325.02. The piece of land is 20, 272 square feet, which is slightly less than half an acre in square footage. The land lies in a C-1 zone, a commercial zone.

The property is unique in shape, size, location, and with regard to the number of commercial buildings it houses. First, the property is a very small piece of commercial property, consisting of less than half an acre of land. Second, the property has a fairly unique shape in that it most closely resembles a triangle. Third, the property is an island lot, since it is surrounded on two sides by Airport Road, and on one side by Route 1. Lastly, the land currently houses two businesses, Liquid Surf and Skate Shop and Big Chill Surf Cantina, a marquee sign, and a parking lot for the two businesses.

The plot has been in use since 1937, potentially housing one structure that year. By 1961, multiple structures existed on the small plot. By 1992, a great deal of development had occurred in the area around the lot, and by 1997, the land housed four structures. The plot was purchased by Applicant in 2004. When purchased, the property housed four buildings, two of which were later removed from the site by Applicant. The significance of the property's history is that it shows that structures have existed on the lot prior to the enactment of the County's zoning code ("the Code"). Due to the land's unique size, shape, location, and development, and the County's current zoning code, the lot would be unbuildable, and virtually useless, today.[3]

At the April 21, 2014 hearing, Applicant, through his counsel ("Counsel"), went through each of the Code's requirements to erect a billboard on property in a C-1 zone. According to Counsel "[e]ach of the requirements, except for the height requirement, is met in [the] application."[4] This statement was made with regard to Applicant receiving a special use exception.

After discussing the special use exception, Counsel moved on to discussing the height variance request. The application sought permission to increase the proposed billboard's height by ten feet, up to 35 feet, since the Code only allows billboards to have a maximum height of 25 feet. Counsel explained the two building's currently located on the lot are 22 feet and 23 feet tall. Counsel told the Board that the proposed billboard's dimensions were ten feet by thirty feet; however, he admitted that "[a]nother common size for a sign of this nature is 12 by 25. . . ."[5] Counsel reasoned that if the Board denied the variance, travelers would only be able to see the top two feet of the sign, because the billboard would be located behind the buildings, and would therefore be useless. He argued that if the billboard was raised ten feet, it would be above the sight lines of the buildings and would be usable for advertising. Counsel then went through the five statutory factual predicates necessary for granting a variance in Sussex County.

Upon Applicant's conclusion of its case, the Board sought testimony from those opposed to the application. The Board only heard from Sanford Hazard ("Hazard"), a neighboring business owner located adjacent to the property at issue. Hazard's chief concern was that the billboard would overshadow his land, business sign, and business. Hazard testified in complete opposition of the sign, [6] stating ". . . I feel that the LLC, Village at Highway One, has enough with the two businesses on there that with this sign, I think it's just going to overtax and be detrimental to everybody around it. . . ."[7] He went on to say, "I feel that this commercial property makes enough that they don't really need the sign."[8]

After Hazard spoke in opposition, the Board decided to table the discussion until its May 5, 2014 meeting. On May 5, 2014, the Board discussed the application further and decided to grant the application as to the special use exception, but deny it as to the height variance. The Board subsequently issued the Board's Decision on July 3, 2014. The Board's Decision highlighted the following relevant findings of fact:

4. The Board found that . . . there are two (2) commercial buildings on the Property.
5. The Board found that . . . the Applicant purchased the Property in 2004 and that the buildings have been on the Property since 1954.
6. The Board Found that . . . the Property is unique due to its odd shape.
7. The Board found . . . that under the current Zoning Ordinance the lot would ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.