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Nepa v. The Board of Adjustment of the City of Lewes

Superior Court of Delaware

April 11, 2018

Nepa
v.
The Board of Adjustment of the City of Lewes, et al.,

          Mark F. Dunkle, Esquire Parkowski, Guerke & Swayze, P.A.

          Daniel F. McAllister, Esquire Baird, Mandalas, Brockstedt, LLC

          Michael J. Hoffman, Esquire Tarabicos Grosso, LLP

         Dear Counsel:

         This is my decision on the appeal filed by Ernest M. and Deborah A. Nepa ("the Nepas") of the denial of their request for three area variances for their historic home in the City of Lewes by the Lewes Board of Adjustment. The Nepas' home encroaches 4.8 feet into their sideyard setback. The Nepas want to make certain additions to their home, which cannot be done without area variances from their sideyard setback and a requirement that their house and garage be at least ten feet apart. So, the Nepas filed an application for the necessary three variances. Area variances are governed by the Delaware Supreme Court's Kwik-Check decision. In Kwik-Check, the Supreme Court stated:

Such practical difficulty is present where the requested dimensional change is minimal and the harm to the applicant if the variance is denied will be greater than the probable effect on the neighboring properties if the variance is granted. Therefore, to determine if the difficulties presented by the owner are practical rather than theoretical, and exceptional rather than routine, the Board should take into consideration the nature of the zone in which the property lies, the character of the immediate vicinity and the uses contained therein, whether, if the restriction upon the applicant's property were removed, such removal would seriously affect such neighboring property and uses; whether, if the restriction is not removed, the restriction would create unnecessary hardship or exceptional practical difficulty for the owner in relation to his efforts to make normal improvements in the character of that use of the property which is a permitted use under the use provisions of the ordinance. [citations omitted].[1]

         The Delaware Supreme Court, in subsequent decisions, has referred to the exceptional practical difficulty test as a weighing analysis, stating that when considering the four factors, the Board of Adjustment should weigh "the potential harm to the neighboring properties by granting the variance against the potential harm to the property owner by denying it."[2]

         The Board denied the Nepas' variance application, reasoning that (1) the Nepas' Property was not unique, (2) the fact that the Nepas' Property was nonconforming could not alone justify the variances, and (3) the benefit to the Nepas in granting the variances did not substantially outweigh the detriment to the neighboring properties. I reverse the Board's decision, concluding that the Board (1) required a finding of "uniqueness" that is not required by Kwik-Check, (2) required a more stringent weighing test than does Kwik-Check, (3) permitted a lesser "detriment" to neighboring properties than does Kwik-Check, and (4) eliminated the nonconforming nature of a property as being a reason for granting a variance, which Kwik-Check does not do.

         BACKGROUND

         The Nepas are the owners of the real property located at 116 Dewey Avenue, Lewes, Delaware (the "Property"). The Property is located within the R-4(H), Residential Medium-Density (Historic) Zoning District. When the Nepas purchased the Property, it was improved by a two and one-half story dwelling, a portion of which was only one and one-half stories (the "House"), with attached enclosed porches and a detached garage. The Property was legally non-conforming under the Lewes Zoning Code (the "Zoning Code") due to existing encroachments, which varied from 4.6 feet to 4.8 feet within the sideyard setback. The Nepas purchased the Property to renovate it and then re-sell it. The Nepas obtained Historic Preservation Committee approval and a building permit to renovate the House. The approved renovations included rebuilding the House's roof, siding, windows, and the porch, as well as squaring the House so it would be level.

         During the renovation, the Nepas discovered damage to the House as a result of puff beetles and fire. In February 2016, a rain storm caused water damage, resulting in the back roof collapsing, and causing the Nepas to use chains to hold the House in place. Subsequently, the Nepas resumed construction on the House. However, in addition to repairing the storm damage, the Nepas chose to enlarge the House, which increased the Property's dimensional non-conformities, and exceeded the parameters of the building permit, without seeking permission or approval from any authority.

         The Nepas converted a 1.5 story portion of the House into two stories, and constructed a new addition on the back of the House, totaling approximately 521 square feet. These additions extended the approximately 4.8 foot sideyard encroachment rearward approximately 14.8 feet, and created a new encroachment of approximately 4.3 feet in the required minimum ten-foot separation from the House's detached garage. On March 22, 2016, Robin Davis, Assistant Building Official, conducted a site visit to review the status of construction and discovered that work outside the scope of the permit was being performed. He immediately issued a Stop-Work Order.

         Eleven months after the Stop-Work Order was issued, on February 17, 2017, the Nepas filed a request for three variances: (1) to verify and approve the construction of new additions that expand an existing nonconforming structure; (2) to verify and approve the construction of new additions that encroach approximately 4.8 feet into the required minimum eight-foot sideyard setback; and (3) to verify and approve the construction of a new addition that encroaches approximately 4.3 feet into the required minimum ten-foot separation from the nearest garage.

         The Nepas' principal reason for justifying their variance request was that the 521 square foot addition was necessary so that they could install a first floor master bedroom to permit "aging in place." The Board denied the Nepas' variance application, reasoning that (1) the Nepas' Property was not unique, (2) the fact that the Nepas' Property was nonconforming could not alone justify the variances, and (3) the benefit to the Nepas in granting the variances did not substantially outweigh the detriment to their neighbors.

         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.[3]Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[4] 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.[5] "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."[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

         I. Variance History

         The General Assembly has granted municipalities and the three counties the authority to regulate zoning as well as variances to zoning requirements.[8] As noted in Board of Adjustment v. Verleysen ("Verleysen"), [9] although the counties and municipalities all have these powers, the extent of those powers differ. Of significance here are a municipality's powers, which are limited to those granted by the legislature in Chapter 3 of Title 22, of the Delaware Code.[10]

         There are two basic kinds of variances: use variances and area variances.

         In the 1970s, the New Castle County Board of Adjustment was empowered to grant variances

... where owing to special conditions or exceptional situations, a literal interpretation of the provisions of any zoning ordinance, code or regulation will result in Unnecessary hardship or Exceptional practical difficulties to the owner of property so that the spirit of the ordinance, code or regulation shall be observed and substantial justice done, provided such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of any zoning ordinance, code, regulation or map.[11]

         The Supreme Court, in Board of Adjustment of New Castle County v. Kwik-Check Realty, Inc. ("Kwik-Check"), [12] ruled that the nature of the variance determined the standard to be applied in deciding whether to grant the requested variance. If the requested variance is a use variance, then the applicable standard is the more stringent one of unnecessary hardship. If the requested variance is an area variance, then the applicable standard is the less onerous one of exceptional practical difficulties. The standards differ because "a use variance changes the character of the zoned district by permitting an otherwise prohibited use, whereas an area variance concerns only the practical difficulty in using the particular property for a permitted use."[13]

         The elements for the unnecessary hardship standard are as follows:

1) the land cannot yield a reasonable return if used only for the permitted use;
2) the need for the variance is due to unique circumstances and not general conditions in the neighborhood which reflect unreasonableness of the zoning ordinance itself; and 3) the use sought will not alter the essential character of the locality.[14]The elements of the exceptional practical difficulties standard are as follows:
1) the nature of the zone in which the property is located,
2) the character of the immediate vicinity,
3) the uses in that vicinity,
4) whether, if the restrictions were removed, would there be a serious affect on neighborhood property and uses, and
5) if the restriction(s) were not removed, would there be a hardship to the owner to make normal improvements allowed for the use permitted in the zoning regulations for that property.[15]

         Before 1985, the authority given municipalities to grant variances provided that a Board of Adjustment may:

Authorize upon appeal in specific cases such variance from the terms of the ordinance as will not be contrary to the public interest, where owing to special conditions a literal enforcement of the provisions of the ordinance will result in unnecessary hardship, and so that the spirit of the ordinance shall be observed and substantial justice done. (Emphasis added.)[16]

         Then, in 1985, 22 Del. C.§ 327 was amended to provide that the Board of Adjustment of a municipality may:

Authorize, in specific cases such variance from any zoning ordinance, code or regulation that will not be contrary to the public interest, where, owing to special conditions or exceptional situations, a literal interpretation of the provisions of any zoning ordinances, code, or regulation will result in unnecessary hardship or exceptional practical difficulties to the owner of property so that the spirit of the ordinance, code, or regulation shall be observed and substantial justice done, provided such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of any zoning ordinance, code, regulation or map.[17]

         Thus, the General Assembly changed the statute granting power to municipal Boards of Adjustments to render it identical to the statute examined in Kwik-Check. Where statutes are similar, the case law interpreting one of the statutes applies to the other.[18] Consequently, a municipality's Board of Adjustment must apply the standard set forth in Kwik-Check when considering an area variance.[19]

         II. The Lewes Variance Ordinance

         I now turn to the Lewes Zoning Code. In 2011, the City of Lewes amended its Zoning Code. The provision regarding variances, §197-92, states:

A. Definition: relief from the strict application of the provisions of this chapter when, owing to special conditions or exceptional situations, a literal interpretation of this chapter will result in exceptional practical difficulties to the property owner.
B. Required findings. Pursuant to 22 Del. C. ยง 327(a)(3), the Board of Adjustment shall determine whether each variance ...

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