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Forrey v. Sussex County Board of Adjustment

Superior Court of Delaware, Sussex

June 7, 2017

John Forrey, et al.,
v.
Sussex County Board of Adjustment and Canal Corkran, LLC, and Jungle Jim's Inc., d/b/a Jungle Jim's Amusement Park

          E. Scott Bradley, Judge

          Dear Counsel:

         This is my decision on the appeal filed by Appellants John Forrey, et. al., of the Sussex County Board of Adjustment's decision granting an 18-foot height variance for a 60-foot high water slide to be constructed at Jungle Jim's Amusement Park. Jungle Jim's is a fifteen-acre amusement park complex located at 36944 Country Club Road, Rehoboth Beach, Delaware. Jungle Jim's applied to the Board of Adjustment for an 18-foot variance from the 42-foot height limit in order to add a new 60-foot high water slide. The proposed water slide has two platforms and five water tubes. The lower platform has three water tubes. The lower platform and its canopy appear to be well below the 42-foot height limit. The taller platform has two water tubes. The taller platform is at 47 feet and its canopy is at 60 feet. The Appellants are neighboring homeowners to Jungle Jim's Amusement Park. The Appellants are opposed to the variance because they claim Jungle Jim's property is not unique, that it can be developed without a variance, that the proposed water slide will alter the character of the neighborhood, and that the height of the proposed water slide will reduce the privacy of their backyards. After a hearing on the application, the Board approved Jungle Jim's application for a variance. The Appellants now appeal the Board's decision to this Court.

         The Board Hearing

         The Board held a public hearing on Jungle Jim's application on February 15, 2016. Present at the hearing for Jungle Jim's were David C. Hutt, Esquire, William D. Lingo ("Bill"), T. William Lingo, and John Barwick. The Board received two letters in support of Jungle Jim's application and one letter in opposition to it.

         Hutt presented Jungle Jim's application to the Board. Hutt told the Board that Jungle Jim's sought to add a new water slide to the amusement park in the area where a go-cart track was located. Specifically, Hutt told the Board that Jungle Jim's sought an 18-foot variance from the 42-foot height restriction in Section 115-82C of the Sussex County Code.

         Hull detailed the history of Jungle Jim's Amusement Park, starting with its origin in 1974. Hutt told the Board that Jungle Jim's is a 15-acre parcel of land that is zoned C-l. Due to a change in the Sussex County Code in 1992, an amusement park was no longer a permitted use and instead became a conditional use. Hutt informed the Board that the current owners purchased the property in 1998.

         In 2002, Jungle Jim's, through the purview of the Planning and Zoning Commission, added two water slides to the park, the Anaconda and the Stampede. Including their canopies, the Anaconda and the Stampede have a height of approximately 60 feet. In 2008, Hutt told the Board that Jungle Jim's added a spray area to the park through a commercial site plan review by the Planning and Zoning Commission. Hutt stated that Jungle Jim's is once again looking at keeping the park modern and attractive to its guests.

         Hutt told the Board that the most complained-about feature of Jungle Jim's are the go-cart tracks due to the noise and their hours of operation. Since 2011, Jungle Jim's began eliminating the go-cart tracks to help alleviate some of the noise for the neighbors. Hutt told the Board that Jungle Jim's sought to replace the final go-cart track with a water slide.

         After discussions with the water slide manufacturing company, Hutt told the Board that it was determined that the minimum height at which the proposed water slide could function and safely transport a rider from the top to the bottom of the slide would be 47 feet. In addition to the height of the water slide, the platform would also require a 13-foot canopy. Hutt also told the Board that the distance from the property line to the back of the slide was approximately 80 feet and then another 40 feet or so from the property line to the back of the nearest neighbor's house. Hutt stated that it would not be feasible to relocate the proposed water slide to another area of the park.

         During the hearing Hutt addressed the standards for granting a variance. Hutt stated that (1) the property is unique because it is a pre-existing, non-conforming use as an amusement park and that because of the topography of the property no portion of the water slide can be placed below grade, (2) the property can not be otherwise developed and the variance is necessary to enable the reasonable use of the property, (3) Jungle Jim's did not create the need for the variance, (4) the addition of a water slide will not alter the essential character of the neighborhood, and (5) the variance sought is the minimum necessary that will afford relief.

         T. William Lingo testified that he is a principle in Jungle Jim's Amusement Park and a certified general real property appraiser. Mr. Lingo stated that he also has been an expert witness in Chancery Court and Family Court. Mr. Lingo testified that when the park was developed in 1973 it was surrounded by undeveloped property. Based upon this, Mr. Lingo testified that when the properties surrounding the park were developed, any negative impact the park would have had on those properties would have taken place at the time of development. Mr. Lingo also testified that he would be willing to plant a row of trees along the rear of the property to help reduce the sound coming from the park.

         John Barwick testified on behalf of Jungle Jim's. Mr. Barwick is a consulting engineer with Karins and Associates. Mr. Barwick testified that based upon the height of the proposed platform and the sight lines into the neighboring yards, it would be impossible to see through or into an outside shower enclosure. Mr. Barwick also testified that, as it was explained to him, the proposed height of the platform was necessary in order to make the slide into a thrill ride.

         Bill Lingo testified on behalf of Jungle Jim's. Bill Lingo is the general manager and runs the day-to-day operations of the amusement park. Bill Lingo testified that the proposed water slide would not create any more noise than what currently exists. Bill Lingo also testified that the removal of the go-cart tracks has done away with the noise complaints from the neighbors.

         Esther Downs and Bruce Powell spoke in opposition to Jungle Jim's application. Esther Downs testified that she lives in a house which borders the southern end of Jungle Jim's property. Mrs. Downs testified that the proposed slide serves no altruistic benefit to the community and will negatively impact the neighboring residents for years to come. Mrs. Downs testified to her concerns about the proposed water slide in relation to a nearby storm water drainage pond. Mrs. Downs also testified to her belief that the quality of life to the neighboring residents will be detrimentally impacted due to noise and privacy concerns.

         Bruce Powell testified that he believes the placement of the proposed water slide would be in the worst possible location with respect to noise and the neighboring properties. Mr. Powell testified that when he purchased his home he believed the amusement park would ultimately fail and be replaced by housing developments. Mr. Powell also voiced his concerns about the storm water management and his belief that the proposed water slide would negatively affect his home's value.

         At the conclusion of the hearing the Board voted to table Jungle Jim's application until its next regular meeting. The Board revisited Jungle Jim's application at its meeting on February 29, 2016, during which time the Board members discussed the factors necessary for granting a variance and how they related to Jungle Jim's application. In a 3 to 2 vote, the Board granted Jungle Jim's application for a variance. The Board issued its written decision on April 5, 2016.

          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 sustain 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] "If the Board's decision is fairly debatable, there is no abuse of discretion."[5] "In this process, '[t]he Court will consider the record in the light most favorable to the prevailing party below.'''[6] 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."[7]

         DISCUSSION

         The Appellants argue that the Board failed to correctly evaluate and apply the statutory requirements for granting a height variance to Jungle Jim's. The Board gets it power from 9 Del.C. §6917. This section authorizes the Board to hear and grant variance requests.[8] The Sussex County Council enacted §115-211 of the Sussex County Code to implement 9 Del.C. §6917.

         Section 115-211(B) of the Sussex County Code provides that the Board shall grant a variance only if five certain findings are made:

         (1) 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 the unnecessary hardship 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.

         (2) 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 ...


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