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Hartigan v. Sussex County Board of Adjustment

Superior Court of Delaware

March 28, 2018

JOHN D. HARTIGAN, Appellant,
v.
SUSSEX COUNTY BOARD OF ADJUSTMENT, IMMANUEL SHELTER, INC., and FAITH UNITED METHODIST CHURCH, INC., Appellees. KENNETH BARTHOLOMEW and JOHN R. ZAWISLAK, Appellants,
v.
SUSSEX COUNTY BOARD OF ADJUSTMENT, IMMANUEL SHELTER, INC., and FAITH UNITED METHODIST CHURCH, INC., Appellees.

          Submitted: February 22, 2018

          Upon Appeal from the Decision of the Sussex County Board of Adjustment.

          John D. Hartigan, pro se, Appellant.

          Timothy G. Willard, Esq., Fuqua, Willard, Stevens & Schab, P.A., Attorney for Appellants Kenneth Bartholomew and John R. Zawislak.

          David C. Hutt, Esq. & R. Eric Hacker, Esq., Morris James Wilson Halbrook & Bayard, Attorneys for Appellee Immanuel Shelter.

          James P. Sharp, Esq., Moore & Rutt, P. A., Attorney for Appellee Faith United Methodist Church, Inc.

          MEMORANDUM OPINION

          STOKES, J.

         I. INTRODUCTION

         Presently before the Court are two appeals from a decision of the Sussex County Board of Adjustment ("BOA" or "Board").[1] 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.

         II. FACTS AND PARTIES' CONTENTIONS

         Immanuel 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."[2] 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.

         The BOA 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 shelter.

         Seventeen 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 stop.

         The 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.[3] Moreover, the Board relied on ...


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