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Ebert v. Kent County Department of Planning Services

Superior Court of Delaware

February 22, 2019

ALBERT C. EBERT III, Petitioner,

          Submitted: December 3, 2018

         Upon an Appeal from the Decision of the Kent County Board of Adjustment Affirmed.

          Albert C. Ebert III, Petitioner, pro se

          William W. Pepper, Esquire of Schmittinger & Rodriguez, P.A., Dover, Delaware; attorney for Respondent.


          William L. Witham. Jr., Resident Judge


         Presently before the Court is an appeal from a decision of the Kent County Board of Adjustment ("BOA")[1] brought by Albert Ebert III ("Appellant"). The Appellant seeks to reverse the BOA's decision to deny his variance application that would have legalized the percentage of impervious surface coverage on his property that currently exceeds the maximum 23% permitted pursuant to Kent County Code § 205-67. After a careful consideration of the Appellant's appeal, the Court finds an incurable defect in the appeal itself that leaves the Court no choice but to dismiss.[2]Thus, for the forthcoming reasons, the Court AFFIRMS the decision of the BOA.


         The Appellant is the owner of property located at 43 Bayview Ave., Frederica, Delaware. The property is zoned as a Agricultural Residential District ("AR") and is approximately 0.34 acres in size. It contains a one-story, single-family dwelling, a large four-bay garage, an above ground pool, a storage shed, two paved driveways, and a concrete walkway.

         The Respondent, and its staff, reviews and processes a variety of Land Use applications in Kent County, Delaware. In addition to preparing variance applications to be heard by the BOA, the Respondent also reviews site plan and subdivision plan applications to be heard by the Regional Planning Commission, and rezoning and conditional use applications which are heard by both the Regional Planning Commission and the Levy Court. The Respondent makes recommendations to the BOA, but does not make the actual decisions regarding individual applications.

         The Kent County BOA, serves as the reviewing and decision making body for appeals to the administration of the zoning code. The BOA may grant special exception variances form the code consistent with state law.[3] The BOA is comprised of seven members, one from each Levy Court district. The presence of a quorum (four or more members) is necessary for the Board to take official action on any matter before it for consideration.

         In the fall of 2017, the Appellant paved a large portion of his property, increasing the impervious surface coverage on the property to approximately 45%. The legal limit for impervious surface coverage on property, located in an AR, is 23%.[4] Prior to this undertaking, the Appellant failed to apply for a variance from the Kent County BOA.

         In October 2017, the Respondent received a complaint from one of the Appellant's neighbors regarding the additional impervious surface coverage. On May 8, 2018, several months after the Appellant laid the additional impervious surface, he, for the first time, filed an application for a variance.

         In response to the Appellant's application, the Respondent conducted an evaluation of his property and subsequently, recommended to the BOA that the application be denied.[5] The BOA met on June 21, 2018 and considered the Appellant's variance application. The Appellant and his wife, Brenda Ebert ("Mrs. Ebert"), testified in favor of the application and stated that the additional pavement was laid in front of the four-bay garage, previously granted approval for by the BOA, to facilitate the movement of their business vehicles, primarily in snow conditions.[6] Both further denied that their property was prone to flooding and asserted that water drained towards the street located in front of the property.[7]

         An adjacent property owner testified in opposition to the application and provided the BOA with video evidence of flooding in the neighborhood.[8] The neighbor testified that the flooding had increased since the Appellant had built his garage and further laid the additional pavement.[9] Additionally, she further testified that an installed radius at the end of Ebert's driveway, had caused flooding to increase both on the street, and her property.[10]

         After considering the testimony and evidence presented, the BOA denied the Appellant's variance application. The BOA based its decision largely on the Respondent's recommendations, and found that the Appellant's combined impervious surfaces were out of character of the surrounding neighborhood and that a variance may impact the neighboring properties by increased flooding.[11]

         The Appellant filed his timely notice of appeal on August 17, 2018 and subsequently submitted his opening brief on October 4, 2018. The Respondent filed its answer, in opposition, on October 26, 2018. To date, the Appellant has failed to make any further amendments, nor provided the Court with any response to the Respondent's answer.


         The Appellant seeks reversal of the BOA's decision. As the party seeking to overturn the BOA's decision, the Appellant has the burden of persuasion to show the BOA's decision was arbitrary and unreasonable.[12] His brief, however, is silent as to any legal argument or assignment of legal error. Rather, the Appellant bases his appeal on two arguments. First, the Appellant argues he can provide the Court with video and pictorial evidence that demonstrates that it was physically impossible for his property to be responsible for the flooding of the neighboring lots.[13] Second, the Appellant argues that a representative from "Kent Conservation" evaluated his property and concluded that the existing, additional impervious surface coverage on the Appellant's property was not responsible for flooding his neighbor's property.[14]Finally, at the public hearing, Mrs. Ebert also contended that the Eberts did not understand the prior instructions given in 2016 that prohibited an increase in the property's impervious surface coverage without prior BOA approval.[15]

         The crux of the Respondent's reply is that the Board's decision should be affirmed because it is free from legal errors and substantial evidence exists in the record that supports the BOA's findings of fact and conclusions of law.[16]

         Additionally, the Respondent identifies two procedural defects in the Appellant's appeal.[17] First, the Respondent states that the Appellant's notice of appeal was not duly verified as required by the statute.[18] Second, the Respondent states that the Appellant has failed to name the BOA as a party to the appeal, implying that the BOA is an indispensable party to the appeal.[19] As a result of the second procedural defect, the Court must dismiss the Appellant's appeal. However, assuming arguendo, if the Court had allowed the appeal to survive, the Appellant's appeal would still fail on the merits.


         When a decision of a BOA is appealed in Delaware, the Superior Court's review is "restricted to a determination of whether the [BOA's] decision is free from legal errors and whether [its] finding of facts and conclusions of law are supported by substantial evidence in the record."[20] The BOA must "particularize its findings of fact and conclusions of law to enable the Superior Court to perform its function of appellate review."[21] Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."[22] If substantial evidence is present, then the Court is prohibited from re-weighing the evidence or substituting its judgment for that of the BOA.[23]

         After reviewing a BOA's decision, "[t]he Court may reverse or affirm, wholly or partly, or may modify the decision brought up for review."[24] Questions of law are reviewed de novo.[25]


         As a preliminary matter, the Court must first address the two procedural defects identified by the Respondent regarding the Appellant's appeal.

         A. Appellant's Failure to Verify Notice of Appeal is not Fatal

         The Respondent states in passing that the Appellant's appeal was not, and apparently still is not, duly verified, as required by 22 Del. C. § 328.[26] However, despite the Court's agreement with the Respondent, the Respondent does not expressly move for dismissal. Thus, given the lack of a motion to dismiss coupled with the Appellant's status as a pro se litigant, the Court will overlook the defect and allow the appeal to survive the defect.

         Section 328 of Title 22 of the Delaware Code requires that appeals to the Superior Court from the BOA be by "petition, duly verified."[27] In this case, the Appellant's appeal was not duly verified at the time of filing, nor has it been amended since the Respondent identified it on October 26, 2018.

         There are times, when appropriate, that the Court will provide apro se litigant some degree of latitude in preparing and presenting a case or appeal.[28] Here, the Court finds leniency towards the Appellant is appropriate.

         It is well-settled in Delaware that appeals should be decided on the merits rather than "nice technicalities of practice."[29] To that end, the Delaware Supreme Court has adopted the "modern rule" that "de-emphasizes the technical procedural aspects of appeals and stresses the importance of reaching and deciding the substantive merits of appeals whenever possible."[30]

         For example, in Di's Inc. v. McKinney, [31] our Supreme Court held that this Court has jurisdiction to hear an appeal from a BOA decision before the appellant has fully complied with the statutory requirements for filing the appeal.[32] In that case, the appellant filed a timely petition within thirty (30) days after the BOA filed its decision.[33] However, the petition was not duly verified and the appellant did not submit a duly verified petition to the Court until approximately eight months later, well after the 30-day time limit had expired.[34]

         In the case sub judice, the record reflects that the Appellant filed a timely appeal, but unlike the appellant in Di's Inc., our Appellant has not attempted to remedy the defect in his appeal. And while the Court agrees with the Respondent that there is in fact a defect, the Respondent has not expressly moved for dismissal on this ground.

         The Court also realizes that pro se litigants may not fully understand the technical and/or procedural requirements that are second nature to seasoned attorneys. Indeed, despite a pro se litigant's best efforts, oftentimes, they still may not be procedurally compliant with all Court's rules. Here, however, there is nothing in the record that suggests that the Appellant purposefully submitted his appeal, knowing that there was a defect upon submission. Additionally, since he is pro se, the Appellant may not be cognizant of the issue identified by the Respondent. As such, the Court finds that no substantial prejudice will result on behalf of the Respondent if the appeal is allowed to continue.

         Therefore, in the interests of justice, the Court finds that the Appellant's lack of a duly verified petition is not fatal, and thus, the appeal will not be dismissed on that ground alone.

         B. Appellant's Failure to Join the BOA, pursuant to Superior Court Civil Rule 19, is Fatal

         The Respondent has also identified that the Appellant failed to properly join the BOA as a party to the current action, pursuant to Superior Court Civil Rule 19 ("Rule 19"). Although the Respondent does not expressly move for dismissal pursuant to Superior Court Civil Rule 12(b)(7) because of this defect, a dispositive issue regarding dismissal of this appeal remains. The Court must determine whether the Kent County Board of Adjustment is an indispensable party who will suffer substantial prejudice as a result of its exclusion from the case.

         After a careful analysis of settled standards of Delaware jurisprudence regarding Rule 19, the Court finds that the Board is an indispensable party and that prejudice would result if the Court allowed the appeal to continue. Thus, in this specific case, the non-amenable defect does require the Court to dismiss the appeal on this technicality.

         Parties with a direct stake in the litigation at hand are called indispensable parties, and typically must be present in the case.[35] When a failure to join such parties will result in substantial prejudice to the absent interest, it is considered a non-amendable defect which will require dismissal.[36] "This rule generally is not considered discretionary but is a fundamental question of jurisdiction, which cannot be waived by the parties or disregarded by the appellate court, and the latter has no power to hear and determine a case unless all the parties directly affected by the judgment... are brought before it."[37]

         Furthermore, Rule 19 provides that all parties necessary for a fair adjudication shall be joined as parties to the case.[38] While Rule 19 is technically a trial rule, it has been extended to appeals of this Court.[39] In the event that a Court is faced with an absent party "the Court shall determine whether in equity and good conscience the action should proceed among the parties ...

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