RIVERFRONT HOTEL LLC, ONIX RIVERFRONT LLC, BFC DEVELOPMENT LLC, and BIGGER FISH LLC, Appellants Below, Appellants,
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
Below-Superior Court of the State of Delaware
VALIHURA, SEITZ, and TRAYNOR, Justices.
F. TRAYNOR JUSTICE
29th day of April 2019, after careful consideration of the
parties' briefs and the record on appeal, it appears to
the Court that:
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.
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.
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
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 of 2:1 that would ordinarily
apply. 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.
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.
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. The Superior Court affirmed the
Board's decision. Big Fish now appeals to this Court.
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." 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.
"The law is well settled that our courts will not lend
themselves to decide cases which have become moot, or to
render advisory opinions."  "Delaware courts do not
address disagreements that have no significant current
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 ...