JOHN D. HARTIGAN, Appellant,
SUSSEX COUNTY BOARD OF ADJUSTMENT, IMMANUEL SHELTER, INC., and FAITH UNITED METHODIST CHURCH, INC., Appellees. KENNETH BARTHOLOMEW and JOHN R. ZAWISLAK, Appellants,
SUSSEX COUNTY BOARD OF ADJUSTMENT, IMMANUEL SHELTER, INC., and FAITH UNITED METHODIST CHURCH, INC., Appellees.
Submitted: February 22, 2018
Appeal from the Decision of the Sussex County Board of
D. Hartigan, pro se, Appellant.
Timothy G. Willard, Esq., Fuqua, Willard, Stevens &
Schab, P.A., Attorney for Appellants Kenneth Bartholomew and
John R. Zawislak.
C. Hutt, Esq. & R. Eric Hacker, Esq., Morris James Wilson
Halbrook & Bayard, Attorneys for Appellee Immanuel
P. Sharp, Esq., Moore & Rutt, P. A., Attorney for
Appellee Faith United Methodist Church, Inc.
before the Court are two appeals from a decision of the
Sussex County Board of Adjustment ("BOA" or
"Board"). The first appeal was brought by John D.
Hartigan. The second was brought by Kenneth Bartholomew and
John R. Zawislak (all three men referred to collectively as
"Appellants"). Appellants seek to reverse the
BOA's decision to grant Immanuel Shelter, Inc.
("Immanuel Shelter") a special use exception to
operate a homeless shelter on a site zoned for agricultural
residential use (AR-1). The Court REVERSES
the decision of the Board for the reasons discussed below.
FACTS AND PARTIES' CONTENTIONS
Shelter is a non-profit organization that offers services to
homeless individuals in Sussex County. Immanuel Shelter now
seeks to open a "small transitional living facility to
help individuals achieve the stability of permanent
housing." Therefore, it submitted an application for
a special use exception in order to operate the homeless
shelter at 32490 Lewes-Georgetown Highway in Lewes, Delaware,
which is located near the Five Points Intersection. The
property is zoned for agricultural residential use;
therefore, in order to operate a homeless shelter on the
premises, Immanuel Shelter sought a special use exception.
Faith United Methodist Church is the record owner of the
property in question, but Immanuel Shelter, as the
contract-purchaser, is the equitable owner.
held a public hearing on May 15, 2017. At the hearing,
Immanuel Shelter provided general information on homelessness
and gave an overview of the project. Glenn Piper, a certified
real estate appraiser with Landmark Associates, testified for
Immanuel Shelter. He stated that the proposed use would not
negatively impact property values or use in the surrounding
area. Additionally, Janet Idema, President of the Board for
Immanuel Shelter, testified that the shelter would utilize a
strict vetting process to ensure that only certain
individuals be permitted to stay on the premises. At that
time, she believed that potential residents could be
processed at Delaware State Police Troop 7 to ensure that
they had not been convicted of violent felonies and were not
Tier Two or Tier Three Sex Offenders. Ms. Idema additionally
explained that individuals staying at the shelter would be
required to perform chores, seek work, and find stable
housing. A person would only be able to stay for a maximum of
90 days. Seven additional individuals spoke in support of the
individuals spoke out against the shelter. A large number of
those speaking in opposition were residents of the nearby
Henlopen Landing and Lewes Crossing housing developments.
John Hartigan is a resident of the Henlopen Landing
neighborhood, but he did not speak at the public hearing.
Kenneth Bartholomew is also a resident of Henlopen Landing.
He spoke in opposition to the shelter at the public hearing.
John Zawislak is a resident of the Lewes Crossing
neighborhood. He did not testify at the hearing. The
residents' main concern was that the presence of homeless
individuals would lead to increased panhandling at the
entrances of Henlopen Landing and Lewes Crossing, which would
deter prospective homebuyers and decrease property values.
Residents also expressed concerns for their safety as well as
the possibility of increased traffic in the area. In addition
to concerns about the impact of increased traffic volume on
traffic flow, residents voiced their concern about the safety
of people staying at the shelter who may be walking on the
congested roadway in order to get to the nearby DART bus
Board voted by a three to one margin to approve the
application. It found that the shelter would not
substantially adversely affect uses of nearby properties,
thereby meeting the standard for granting a special use
exception. The BOA gave the following explanations in support
of its finding. According to the Board, property values are
unlikely to decrease in response to opening the shelter.
Appraiser Glenn Piper testified to such, and members of the
opposition did not present expert testimony, reports, or
studies from a qualified individual to counter his assertion.
Additionally, the BOA relied on Immanuel Shelter's
representations about the vetting process for potential
residents to find that sufficient safeguards would be in
place to ensure the safety of those living in nearby
neighborhoods. Moreover, the Board relied on ...