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Vondrasek v. Board of Adjustment of the City of Wilmington

Superior Court of Delaware

May 1, 2017

DIANE AND ROBERT VONDRASEK, Appellants,
v.
BOARD OF ADJUSTMENT OF THE CITY OF WILMINGTON AND SAM ROSAURI D/B/A ROSAURI BUILDERS & REMODELERS INC., Appellees.

          Submitted: January 30, 2017

         Upon Consideration of Appeal from the Board of Adjustment for the City of Wilmington

          ORDER

          CHARLES E. BUTLER, JUDGE

         This 1st day of May, 2017, the Court is asked here to review a decision of the Wilmington Zoning Board of Adjustment (the "Board") that approved a zoning variance for a homeowner to build a second story addition over its previously approved garage. We will affirm the decision of the Board with the following explanation.

         Factual Background

         There are 2 adjoining row houses located at 1817 and 1819 Delaware Ave in the City of Wilmington. These houses are about 100 years old. From the record, it appears that they were substantially renovated in approximately 1995 because in that year, a large garage was built behind the two houses to accommodate vehicles parking at both properties. That garage construction required a zoning variance in the setback requirement in that neighborhood. The zoned setback is 15 feet. As a result of the zoning variance, the garage was permitted to come within 7 feet of the rear property line. That variance was granted before the incumbent owners purchased the property. The garage features a roof that peaks at the center, as is common for duplex style houses in the city.

         The homeowners of 1817 Delaware Avenue sought to add a second floor room over the garage on their side of the property. They hired a contractor, Rosario Builders, who presented their request for the zoning variance to the City. They also solicited comment from the president of the local homeowner's association, who came to the hearing in support of the petition. The homeowners also produced 2 neighbors to speak in support of the petition.

         As noted, there is already an existing variance in place for the single story garage. The variance sought here was only to add a second floor on the same footprint as the first floor garage that was previously approved.

         The only opposition to the requested variance came from the adjoining property owner at 1819 Delaware Avenue, which shares the garage structure with 1817. These neighbors came to the hearing, with counsel, to protest that the proposed structure was inappropriate for the neighborhood, there was a possibility of snow or ice build-up where the second story structure at 1817 met the roof of the garage structure at 1819. These homeowners also protested that some of the plans suggested the second floor addition at 1817 would alter or move some of the structural supports on the 1819 side of the garage. Finally, they questioned whether a proper engineering study had been done to ensure that the existing garage would support a second floor above it.

         After hearing from all parties and the neighbors as noted above, the Board voted 2-1 to grant the variance as requested. The owners of 1819 Delaware Avenue have appealed that decision by seeking a writ of certiorari.

         Standard of Review

         The record reviewable by the Superior Court on a common law writ of certiorari consists only of the complaint initiating the proceeding, any written answer or response, and the docket entries.[1] The Court is limited to a consideration of the record to determine whether the lower tribunal exceeded its jurisdiction, committed errors of law, or proceeded irregularly.[2] A decision will be reversed for an error of law committed by the lower tribunal when the record affirmatively shows that the lower tribunal has "proceeded illegally or manifestly contrary to law."[3] A decision will be reversed for irregularities of proceedings if the lower tribunal failed to create an adequate record to review.[4]

         Appellant's Failure to Name the Landowner is Fatal to this Appeal

         After Appellants filed their opening brief in this Court, the Board filed an answering brief attacking Appellants' failure to name the homeowner as a party. The Board sought dismissal of the appeal on grounds that this constituted a fatal error. In reply, Appellants argued that they named the petitioner in the zoning proceeding below (the contractor for the homeowner), the contractor was the homeowner's agent, the Board did not move to dismiss the writ and, if the Court was unpersuaded by those arguments, it should grant ...


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