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W & C Catts Family Limited Partnership v. The Town of Dewey Beach

Superior Court of Delaware, Sussex

November 30, 2018

W & C CATTS FAMILY LIMITED PARTNERSHIP, Property owners in the City of Dewey Beach, Appellants,
v.
THE TOWN OF DEWEY BEACH and THE BOARD OF ADJUSTMENT OF THE CITY OF DEWEY BEACH, DELAWARE, a Delaware Municipal corporation, Appellees.

          Submitted Date: August 20, 2018

         Upon Appeal from a Decision of the Dewey Beach Board of Adjustment.

          John W. Paradee, Esq., Glenn C. Mandalas, Esq., and Daniel F. McAllister, Esq., Attorneys for Appellant

          Veronica O. Faust, Esq., Morris James, LLP, and Michael J. Hoffman, Esq., Tarabicos Grosso, LLP, Attorneys for Appellees

          MEMORANDUM OPINION

          STOKES, R. J.

         I. INTRODUCTION

         Presently before the Court is an appeal from a decision of the Dewey Beach Board of Adjustment ("BOA" or "Board") brought by W&C Catts Family Limited Partnership ("Appellant" or "Catts"). Appellant seeks to reverse the BOA's decision that Appellants have abandoned a non-conforming use of their property. Appellants also seek to reverse the BOA's decision based on the BOA's flawed interpretation of the Flood Damage Reduction Ordinance and § 185-59 of the Dewey Beach Code. The Court AFFRIMS the decision of the BOA for the reasons discussed below.

         II. FACTS

         Catts is the owner of the property in dispute, Ed's Chicken and Crabs ('Ed's Chicken") located at 2200 Coastal Highway, Dewey Beach, Delaware. The property is located within Resort Business District 2 zoning district and also within the AO-2 floodplain district as described in Chapter 101 of the Delaware Code.

         On August 9, 2016, a drunk driver crashed into Ed's Chicken, causing a fire which completely destroyed the structure located on the property. Catts then submitted a letter to the Town of Dewey Beach Building Inspector, requesting a determination of non-conforming use for the property on the basis that Catts used the property, prior to its destruction by fire, as an outdoor eatery and never abandoned this legal non-conforming use. The Town of Dewey Beach ("Town") responded that Catts had abandoned the non-conforming use once Catts began using structures with indoor cooking facilities. In November of 2017, Catts began discussing with the Town construction within the former structure's existing building footprint. Catts submitted a building permit for a structure of essentially the same configuration as the one that had been destroyed by the fire. The Town's Building Inspector denied the permit on the basis that the plans submitted did not conform with the standards required for the AO-2 floodplain district.

         Catts appealed both of these decisions and requested a hearing before the BOA. At the hearing, Ed Riggin ("Riggin") testified on behalf of Catts. Riggin, the former proprietor and namesake of Ed's Chicken, testified that he started Ed's Chicken in 1978 or 1979. He also testified that Ed's Chicken exclusively served chicken cooked outside for the first five years that Ed's Chicken was open, through the mid 1980's. At some point in the mid 1980's, Riggin built a shack and put in picnic tables. Riggin further testified that Ed's Chicken hosted at least two or three pig roasts over the years, and furthermore that approximately five years ago, when a fire destroyed the hood system to the indoor stove, Riggin cooked chicken outside for an entire summer. Riggin also testified that he never intended to cease cooking outdoors and that no one from the Town told him that by building an indoor kitchen and applying for a business license as an "eatery" he would abandon his right to cook outdoors.

         With respect to outdoor cooking Riggin confirmed that Ed's Chicken occasionally would return to its open air roots and prepare food on outdoor grills whenever other equipment was unusable. Riggin further stated, "it wasn't needed" when asked if he stopped cooking outdoors when the signature shack, with indoor cooking equipment, and picnic tables were erected in the mid 1980's.

         Rusty Catts ("Rusty") also testified on behalf of Catts. Rusty testified that his father and Riggin went into business with one another in the late 7O's and early 8O's. Rusty's father was a silent partner in the restaurant business and Riggin was the managing partner. After his father's death, Rusty made an agreement with Riggin that Rusty would become a landlord only and Riggin would own Ed's Chicken and mechanical equipment inside of Ed's Chicken. Rusty testified, based on his personal knowledge, that outdoor cooking occurred on the property on a periodic basis. Furthermore, Rusty defined how often a periodic basis was as, "because of fire", "we did a pig", and "whenever we felt the need to".

         After hearing all of the evidence presented the BOA upheld the Building Inspector's decisions that Catts had abandoned the non-conforming use for outdoor food preparation and that the reconstruction of the building must comply with Chapter 101 or § 101-12[1] of the Dewey Beach Code "the Code". The Board reasoned that Catts abandoned the non-conforming use because (1) Catts intended to abandon outdoor cooking when Catts erected walls, changed the character of the business, and was licensed as an eatery; and (2) that Catts abandoned the use of open air cooking for a continuous period of at least one year when the business moved its food preparation to an indoor cooking facility, even though there were occasional examples of open air food preparation since the late 1980s.

         In making its determination the BOA determined that Chapter 101, the Flood Plain Ordinance which requires minimum building elevation levels for building constructed in FEMA flood plain designated areas, applies notwithstanding § 185-59[2] of the Code. The BOA reasoned that the laws of statutory interpretation should apply in order to decide whether § 185-59, § 101-12, or both statutes should govern the reconstruction of the structure. The BOA stated that it must give effect to the intent of the legislators and determine whether the statute is ambiguous. It also stated that where a statute is unambiguous the plain meaning of the statutory language controls and when a statute is ambiguous the statute must be construed as a whole, in a way that gives effect to all of the provisions of the statute and avoids absurd results. Furthermore, it stated that if there are two reasonable interpretations of the statute, the interpretation to follow is the one that favors the landowner controls. Ultimately, the BOA decided that § 101-12 controlled because § 101-12 was adopted after § 185-59, the legislative intent of the Town was for § 101-12 to control if there were conflicting statutes, and that § 101-12 and § 185-59 could be read as a whole in order to avoid absurd results. Finally, the BOA reasoned that § 101-12 and § 185-59 could be read as a whole because § 101-12 operates to provide an additional requirement that any reconstruction of 50% or more of a building under § 185-59 must comply with the applicable height and elevation requirements of§ 101-12 because that reading of the ordinance would give effect to all of the statutory provisions and avoid absurd results.

         III. STANDARD OF REVIEW

         The standard of review for appeals from a Board of Adjustment decision is limited to the correction of errors of law and 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 a 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 [based on a question of fact] of the Board to show that the decision was arbitrary and unreasonable."[6] Questions of law are reviewed de novo[7]In its appellate review, the Superior Court after examining the record may "reverse or affirm, wholly or partly, or may modify the decision brought up for review."[8]

         IV. DISCUSSION

         a. Abandonment

         i. Catts Established a Non-Conforming Use of Outdoor Open Air Food Preparation.

         The first issue in determining abandonment is whether Catts has established the nonconforming use of outdoor open air food preparation. The initial burden of proof is on the property owner to establish a non-conforming use.[9] It is clear that Catts has met this initial burden and has established the non-conforming use.

         The record clearly shows that Ed's Chicken served food directly from an outdoor barbeque pit and grill until the mid-1980s. Furthermore, the BOA has confirmed in its decision that Catts has established a legal non-conforming use by stating, "the record clearly establishes that while this use became non-conforming when the town was incorporated in 1981.. . ."[10] Appellees assert that Catts failed to present evidence that established a non-conforming use relying on open-air food preparation. This assertion is contrary to undisputed facts, the BOA's decision, and the fact that the Appellees, in their own brief, admit that Catts did establish a legal non-conforming use for relying on open-air food preparation. Based on these facts it is clear that Catts has established a legal non-conforming use for open-air food preparation.

         ii. The Board Relied on Substantial Evidence to Determine that Catts Abandoned the Non-Conforming Use of Open Air Outdoor Food Preparation for a Period of at least One Year.

         As mentioned above the initial burden of proof is on the property owner to establish a non-conforming use.[11] But, once the property owner has met this initial burden, as Catts has here, the burden then shifts to the Town to prove that the property owner has abandoned the nonconforming use.[12] Abandonment of a non-conforming use can be found under the following two circumstances: (1) where there is intent by the property owner to abandon the non-conforming use with an accompanying clear act, or failure to act, to demonstrate such an intent; or (2) abandonment is presumed where a property owner terminates a non-conforming use for a period in excess of the time specified in the zoning ordinance.[13] The Town Code provides a period of one year in determining abandonment of a non-conforming use.[14] The testimony of Riggin was enough to provide the Board with substantial evidence that the Town established that the nonconforming use of outdoor open-air food preparation had been abandoned for a continuous period of at least one year.

         Riggin was the proprietor of the restaurant from the early 1980's, at which time Ed's Chicken relied solely on outdoor open-air food preparation, through when the Town was incorporated, at which time outdoor open-air food preparation became a permissible nonconforming use, and up until the fire in 2016. As the proprietor of the restaurant Riggin was in the best position to testify to the nature of the business from the relevant period of 1980-2016. Per Riggin's testimony, in the late 1980's, Ed's Chicken incorporated an indoor kitchen facility. When asked if he continued to cook outdoors after the completion of the indoor kitchen Riggin responded, "there was no need to". In addition to this testimony, Riggin stated that he cooked a few pig roasts over the years outdoors, that outdoor cooking occurred on a periodic basis, and that he cooked outside for an entire summer five or six years ago due to a kitchen fire. Furthermore, the business substantially changed when Ed's Chicken constructed an indoor kitchen. The business transformed from one that solely relied on outdoor cooking to a business that would use outdoor cooking for special occasions such as pig roasts or in the event of indoor equipment failure. The nature of Ed's Chicken became an eatery as defined by the Town Code.[15]

         Catts argues that the BOA has flipped the burden onto him to prove that he has not abandoned the non-conforming use of open air food preparation. But, the BOA has met its burden of affirmatively proving abandonment[16] through the testimony of Riggin. The BOA is not required to provide its own witness to demonstrate that the non-conforming use was abandoned. Riggin's own testimony as outlined above established the substantial evidence needed to conclude that the non-conforming use of outdoor open-air food preparation had been abandoned for a period of at least one year and that the nature of the business and nonconforming use had changed. Based on this testimony, it is clear to see that the nature of the nonconforming use has changed since the building of an indoor kitchen facility, making this case similar to New Castle County v. Harvey.[17]Furthermore, the testimony provides substantial evidence that the BOA could find that the non-conforming use of outdoor open-air food preparation was altogether abandoned for a continuous period of 1 year, despite periodically cooking outdoors for special occasions such as a few pig roasts and in the event of indoor kitchen equipment failure.

         Next, Catts asserts that the BOA impermissibly relied on the receipt of a business license as an eatery to determine that the nature of Ed's Chicken had changed. Catts contends that the BOA's reliance on the business license as an eatery results in legal reversible error. It is clear, from the BOA's written decision, that "the actions of the property owner in erecting walls and changing the character of the business evinced an intent to convert [the business] from a food service business with open air food preparation to a business with indoor kitchen facilities". This language makes it clear that the BOA made its decisions based off of Catts' actions and not his business license. Furthermore, the testimony from Riggin clearly established that the nature of the business changed when an indoor kitchen facility was created as the business changed from entirely cooking outdoors to periodically cooking outdoors for special occasions or in the event of kitchen equipment failure. Therefore, the BOA did not rely on the property owner's business license in making it's decision, but rather it permissibly relied on the actions of the property owner in establishing that the nature of the business changed.

         Finally, Catts contends that the BOA presented no evidence that Catts intended to abandon the legal non-conforming use of outdoor cooking. Catts states that Riggin's testimony "I did not intend to abandon the non-conforming use of outdoor cooking" is the only evidence that the BOA can permissibly look at to show abandonment. As mentioned above, the Delaware Superior Court has held that abandonment of a non-conforming use can be found where the property owner intended to abandon the non-conforming use, or where the property owner has abandoned the non-conforming use for a period of time specified in the zoning ordinance, here one year.[18] The BOA was correct in stating that the actions of building walls and creating an indoor cooking facility evinced an intent to change the nature of the business. Furthermore, Riggin's testimony corroborates the fact that the business had changed when the indoor cooking facilities were constructed. The Town need not prove both abandonment and intent, but rather only abandonment for a period of 1 year or intent to abandon.

         The BOA has relied on the substantial evidence of Riggin's testimony in determining that the non-conforming use of outdoor cooking has been abandoned for a period of 1 year. The BOA has further relied on the substantial evidence of the actions of Ed's Chicken in erecting walls and creating an indoor kitchen that the nature of the business has substantially changed since its inception and Ed's Chicken intended to abandon outdoor cooking.

         b. Interpretation of Town Ordinances

         i. Standard of review

         As previously noted questions of law are reviewed de novo[19]The standard of review that the Court will apply to the question of interpretation of a zoning ordinance is de novo review.[20] A Board decision which reviews clear and unambiguous ordinance, but misinterprets the language, may be subject to reversal as an error of law.[21] In that case, "it is the intent of the ordinance and the plain meaning of its language that are controlling."[22] Furthermore, the Board's interpretation of an ambiguous ordinance "should be given great weight and should not be overturned unless contrary to law."[23] An ambiguous ordinance is one that is reasonably interpreted two different way or renders an absurd or unreasonable result.[24] Additionally, when ambiguities arise, the Court "must keep in mind that zoning laws are to be interpreted in favor of the occupants of the land."[25]

         ii. The Board of Adjustment had the authority to consider Chapter 101 of the Town Code.

         Catts contends that the BOA is only endowed with limited jurisdiction.[26] Specifically, Catts argues that the BOA has no jurisdiction to act outside the parameters of 22 Del. C. §§ 327(a)(1)[27] and 301[28], and can only hear zoning issues.[29] Catts argues that by interpreting § 101-12 alongside of § 185-59 the BOA exceeded its jurisdiction because § 101-12 is not a zoning ordinance. Catts points out that Chapter 101 of the Code, which contains § 101-12, is not included in the Town's zoning chapter, is named the "Flood Damage Reduction Ordinance", and is not named as a zoning ordinance. Catts further states that local ordinances do not supersede, side-step or otherwise substitute for legislative jurisdictional requirements.[30] Catts contends that the BOA is limited to applying only § 185-59 to the present case. Catts then cites to Arbour Park Civic Ass 'n, Inc. v. Bd. Of Adjustment of City of Newark[31] to demonstrate what a zoning ordinance is. The Court, in Arbour Park, held that the ...


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