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Barn Hill Preserve of Delaware, LLC v. The Board of Adjustment of Town of Ocean View

Superior Court of Delaware, Sussex

May 29, 2019


          Date Submitted: February 15, 2019

          Upon Appeal from a Decision of the Board of Adjustment of the Town of Ocean View. Affirmed.

          Brian J. McLaughlin, Esq., Mozack Mersky McLaughlin Browder, P.A., Attorney for Petitioner.

          Dennis L. Schrader, Esq., and Eric R. Hacker, Esq., Morris James LLP, Attorneys for Respondent.


          STOKES, R. J.


         Presently before the Court is an appeal from a decision of the Board of Adjustment of the Town of Ocean View ("BOA" or "Board") brought by Barn Hill Preserve of Delaware, LLC ("Petitioner" or "Barn Hill"). Petitioner seeks to reverse the BOA's decision that Petitioner's application has not met the requirements needed to establish a special exception to construct and operate a Wildlife Educational Center. The Court AFFRIMS the decision of the BOA for the reasons discussed below.

         II. FACTS

         On March 15, 2018, Barn Hill filed an application for a special exception in order to operate a Wildlife Educational Center at the property in dispute. On May 17, 2018, the BOA held a hearing on Barn Hill's application for a special exception. Only four of the five Board members were present for the initial hearing. At the initial hearing the BOA voted to defer an opinion on the application until the next regularly scheduled meeting. On July 19, 2018, the Board voted 4-0 to deny Barn Hill's application. Finally, on September 20, 2018, the BOA issued a written decision on the matter.

         Barn Hill is a wildlife education and conservation organization devoted to conservation education. Its mission is to educate and cultivate an appreciation for wildlife to help in the protection of thousands of species of wildlife threatened with extinction. Barn Hill began its animal education program in Louisiana in 2013 and has expanded into Delaware with a Mobile Education Program, which travels to schools throughout the region to educate students on wildlife conservation. Barn Hill sought to operate a brick and mortar wildlife educational center in Ocean View, Delaware, which is the dispute of this litigation.

         The property is located in the GB-1 (General Business District 1) area of the Town of Ocean View ("Town" or "Ocean View"). The Land Use and Development Code of the Town of Ocean View ("LUDC") specifically permits Wildlife Educational Centers in this area with the granting of a special exception by the BOA.[1] The property is an "L" shaped parcel totaling 4.06 acres of land located in Ocean View's commercial district. It is bordered on the east by a commercial retail store, Wild about Birds, and is bordered on the west by a commercial complex which includes restaurants and various retail stores. The property sits on Delaware Route 26, the main thoroughfare through the Town. Across Route 26 is the entrance to a large residential community containing approximately 200 homes. The northern side of the property is currently a wooded area lined with trees zoned R-l Single-Family Residential and is the subject of a pending residential subdivision application.

         At the initial BOA hearing a Town official stated that Town Council has approved a Wildlife Educational Center as a permissible use with granting a special exception and outlined the seven criteria that Barn Hill would have to address in order for the BOA to grant a special exception.[2] Thereafter, Barn Hill made a presentation to the BOA concerning the application for a special use exception. First, Barn Hill discussed the goal of the company, which is wildlife and conservation education. Barn Hill then went on to describe the Barn Hill Louisiana facility, how students have been educated by Barn Hill, and how they will plant flowers at the Delaware facility. In operating the Delaware Wildlife Educational Center Barn Hill plans to charge $30-50 for admission. Groups of 10-15 people will be present at the facility for periods of time between one and two hours during the summer and fall months. The facility will be closed during the winter. All visitors must make appointments through an online reservation system and there will be twenty-two parking spaces on the grounds.

         Barn Hill then discussed the types of animals that would be housed at the Delaware facility. The largest animal to be housed at the facility is a juvenile kangaroo or Eurasian Lynx, which can grow to the size of a medium dog (40-50 pounds). Barn Hill also supplied the board with an animal educational packet, which gave a detailed description of nine species of animals that were to be housed at the facility. All animals were planned to be housed outdoors in a paddock area in cages with double door entry and the outside of the facility will have a perimeter fence conforming with the Town Code. The education packet lists nine different species of animals, including the Eurasian Lynx, Asian Small-clawed Otters, Sulcata Tortoise, Patagonian Cavies, Linnaeus Two-toed Sloth, Tayra (a type of weasel), Common Parakeet, Red Kangaroo and Bennet's Wallaby.

         Next, the BOA questioned Barn Hill about how waste from the animals would be taken care of or disposed. Barn Hill explained that solid waste would be removed from the facility daily, concrete surfaces would be scrubbed, and diatomaceous earth and different soil disinfectants could be used if smells were a problem. Furthermore, an employee from Barn Hill stated, "I don't anticipate any of these animals being large enough to cause real problems, as long as daily waste removal is completed." Barn Hill planned to have solid animal waste disposed of offsite, and outside of Town limits, by a professional waste removal company. Barn Hill also addressed noise concerns from the animals. Specifically, Barn Hill stated, animals at the facility either do not vocalize at all or they do not vocalize loud enough to be heard from a distance of more than 10 feet. Moreover, Barn Hill plans on planting aesthetically pleasing hedges as sound buffers around the perimeter fencing.

         After Barn Hill completed its presentation the BOA invited any persons present who wished to speak in favor or against Barn Hill's application. No one spoke in favor of Barn Hill and several people spoke against the application. First, the president and homeowners of the residential neighborhood across Route 26 spoke against the granting of the special exception application. He submitted a packet of emails voicing concerns about the Barn Hill application. In his testimony he voiced many of the concerns from said emails. The concerns of the homeowners in the residential neighborhood include waste, waste odors, and increased traffic congestion. Specifically, the ability to contain waste runoff during rainstorms, the number of animals to be housed at the facility, and odor from urine were concerns for the homeowners. The homeowners also expressed concerns about the possibility that the facility would negatively affect property values. In regard to traffic considerations the homeowners expressed concerns about too much congestion on Route 26 during the summer months, people curiously stopping to see what the new attraction is, and a lack of a traffic light at the entrance of the facility, and school busses coming to the property. Next, a business owner objected to the application. She voiced many of the same concerns as the homeowners.

         The BOA gave Barn Hill a chance to respond to the comments in opposition of the special use application. Barn Hill, in response to traffic concerns, confirmed that there would be no school busses coming to the facility. Barn Hill also stated that there will be twenty-two parking spaces and that the fifteen person groups for two hour periods will not affect traffic any more than it is already impacted by existing locations surrounding the property. Concerning the runoff from waste Barn Hill proposes that they will have a catch pond present on the property so that all runoff would be captured by a catch pond and would not go into any other source of water or property.

         After all sides had been heard the BOA voted to defer making a decision until the next regularly scheduled meeting of the BOA. After reviewing all documents submitted by Barn Hill, and those in opposition to the special exception application, the BOA unanimously denied the application. In the BOA's written decision it determined that the Wildlife Educational Center would fit under the definition in LUDC as an education center and not a zoo. However, the BOA denied the special exception because (1) the application is not in harmony with the purpose of the Comprehensive Plan, (2) the application is not in harmony with the general character of its neighborhood, (3) it is unlikely that the applicants can control all noise and odors coming from the center without interfering with the peaceful enjoyment or economic values of surrounding properties, and (4) the proposed center will have a detrimental effect on traffic.


         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 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]


         A. The Application is in Harmony with the Comprehensive Plan because Town Council Specifically Approved the Disputed Area as an Appropriate Area for a Wildlife Educational Center.

         The BOA erred in holding that the Application was not in harmony with the Comprehensive Plan. The Compressive Plan must be read in conjunction with prior land use legislation of the Town's legislative body. One of the goals of the Comprehensive Plan is to encourage commercial development to promote and encourage existing businesses, the promotion of restaurants, retail stores, small retail shops, professional and medical offices and recreational uses that provide needed goods, services and jobs to the Town, but not large-scale, regional retail uses.[9] The Comprehensive Plan also encourages the use of special exceptions in land use regulations and seeks to encourage flexibility to support business opportunities, encourage businesses and expand the commercial uses within the business area.[10] Furthermore, the Comprehensive Plan seeks to promote wildlife and natural vegetation education.[11] Specifically, a goal is to educate the public on the effects of pollution on the environment and health of wildlife and wildlife habitat.[12]

         Town Council passed an ordinance specifically adding Wildlife Educational Centers as a permissible use in the GB-1 and GB-2 commercial zoning districts, the same district in which the Property sits, with the granting of a special exception.[13] The Town's Planning Commission reviewed the ordinance and recommended, by a 4-0 vote, its adoption by Town Council. Ultimately, Town Council approved the ordinance. In approving the ordinance Town Council necessarily reviewed the relationship of the proposed ordinance to the general purpose and intent of LUDC and the Comprehensive Plan.[14] The Municipal Code expressly notes that LUDC was "made in accordance with the Comprehensive Plan", and that all of the regulations contained in the LUDC were "made with reasonable consideration of the following", (1) the character of each district and its peculiar suitability for a particular use, (2) conserving the value of buildings, and (3) encouraging the most appropriate use of land throughout the Town of Ocean View.[15]

         However, the BOA argues that Barn Hill has not shown that the proposed use conforms to the Town's Comprehensive Plan. The BOA argues that none of Barn Hill's arguments were presented to the BOA at the hearing, and because of this Barn Hill failed to meet its burden to present information on this factor to the BOA. The BOA asserts that under LUDC, the applicant has the burden to show that the use complies with the Town's Comprehensive Plan. But, the BOA believes that Barn Hill has attempted to flip this burden onto the BOA to create a record that a proposed use is not in conformity with the Comprehensive Plan. The BOA's argument is incorrect and Barn Hill has not attempted to flip its burden.

         The standard laid out by the LUDC § 140-111 is as follows, "[e]very applicant shall have the burden of presenting the information needed by the Board of Adjustment to make a special exception determination." Here, Barn Hill, in its application, provided the BOA with the Comprehensive Plan, the LUDC, and that the center was to be operated as a Wildlife Education Center. This information was the only information the BOA needed in order to determine that the Wildlife Educational Center was in harmony with the Comprehensive Plan. By approving a Wildlife Educational Center as a permissible use with the granting of a special exception, the legislative body of the Town determined that such use, and the placement of such use in the Town's commercial districts, conform to the Comprehensive Plan. Furthermore, the goals of Barn Hill are similar to the goals of the Comprehensive Plan, in that Barn Hill's mission is to educate the public and cultivate an appreciation for wildlife stewardship and to help protect the environment.

         Based on the above facts, a reasonable mind could not accept as an adequate conclusion that a Wildlife Educational Center is not in harmony with the purposes and intent of the Comprehensive Plan. However, Barn Hill needed to present evidence to satisfy all seven requirements of LUDC §140-116 in order for the BOA to approve a grant for a special exception. As discussed below Barn Hill has failed to meet this burden and the BOA's decision should be upheld.

         B. The Board Relied on Substantial Evidence to Conclude that Barn Hill's Wildlife Educational Center Will ...

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