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Riverfront Hotel LLC v. Board of Adjustment of The City of Wilmington

Supreme Court of Delaware

April 29, 2019

RIVERFRONT HOTEL LLC, ONIX RIVERFRONT LLC, BFC DEVELOPMENT LLC, and BIGGER FISH LLC, Appellants Below, Appellants,
v.
BOARD OF ADJUSTMENT OF THE CITY OF WILMINGTON, RIVERFRONT DEVELOPMENT CORPORATION OF DELAWARE, BPG WILMINGTON RIVERFRONT HOTEL XXXIV LLC, and BPG WILMINGTON HOTEL XXXIV LLC, Appellees Below, Appellees.

          Submitted: March 15, 2019

          Court Below-Superior Court of the State of Delaware

          Before VALIHURA, SEITZ, and TRAYNOR, Justices.

          ORDER

          GARY F. TRAYNOR JUSTICE

         This 29th day of April 2019, after careful consideration of the parties' briefs and the record on appeal, it appears to the Court that:[1]

         (1) In the spring of 2014, Buccini/Pollin, a land developer, opened the 180-room Wilmington Westin, which was the first hotel built in Wilmington in decades and was part of a revitalization plan for the Wilmington riverfront. With the success of the Westin, which often is fully booked, Buccini/Pollin sought to build two more hotels nearby.

         (2) The Riverfront Development Corporation, an entity established by the General Assembly in 1995, owned the lot that Buccini/Pollin sought to build on. Buccini/Pollin acquired the lot and planned to divide it into three parcels to contain both hotels and a parking garage.

         (3) Meanwhile, another developer group led by Big Fish Restaurant Group and Onix Group ("Big Fish") also planned to build a hotel. It put together a strategy to build a riverfront Hyatt attached to a Big Fish restaurant that had opened in July 2009. Big Fish's Hyatt would be two lots down the Christina River from Buccini/Pollin's proposed hotels.

         (4) To develop its new lot, Buccini/Pollin sought two variances from the Wilmington Board of Adjustment ("the Board"). First, it sought a variance for the first hotel to be built on the lot, a Homewood Suites, to exceed the floor-area ratio[2] of 2:1 that would ordinarily apply.[3] Second, Buccini/Pollin wanted a variance to build a temporary parking lot (that would be later replaced by the parking garage) without landscaping islands in the lot. The variances do not apply to Buccini/Pollin's second hotel on the lot.[4]

         (5) The Board held a hearing on these variances at which Big Fish argued against the variances. Despite Big Fish's opposition, the Board granted both variances but required Buccini/Pollin to complete the permanent parking garage within three years.

         (6) Big Fish appealed the Board's decision to the Superior Court on the basis that it was not supported by substantial evidence and did not properly apply the test for area variances this Court had laid out in Board of Adjustment v. Kwik-Check Realty, Inc.[5] The Superior Court affirmed the Board's decision.[6] Big Fish now appeals to this Court.

         (7) After the parties filed their briefs, we requested supplemental submissions on the issues of mootness and standing. Our interest in the possibility that some or all of the issues before us might be moot was piqued by Big Fish's assertions in its opening brief that "[t]he hotel which was represented as needing a variance is now being built on the larger of the two parcels, and no variance is needed, …[and] [a]ccordingly, as a practical matter, [Buccini/Pollin] will not be injured by the reversal of the Board's decision."[7] Having received the parties' supplemental submissions, we now VACATE the Superior Court's decision as to the floor-area ratio variance as moot and AFFIRM the Superior Court's decision as to the landscape variance.

         (8) "The law is well settled that our courts will not lend themselves to decide cases which have become moot, or to render advisory opinions." [8] "Delaware courts do not address disagreements that have no significant current impact."[9]

         (9) We find that the floor-area ratio variance appeal is moot because we see no reason to think invalidating that variance would do anything to stop ...


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