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The City of Lewes v. Nepa

Supreme Court of Delaware

June 10, 2019

ERNEST M. NEPA and DEBORAH A. NEPA, Appellants Below, Appellees.

          Submitted: March 27, 2019

          Court Below-Superior Court of the State of Delaware C.A. No. S17A-06-003

         Upon Appeal from the Superior Court of the State of Delaware: REVERSED.

          Glenn C. Mandalas, Esquire, and Daniel F. McAllister, Esquire (argued), Baird Mandalas Brockstedt, LLC, Dover, Delaware, for Appellee Below, Appellant The City of Lewes.

          Michael J. Hoffman, Esquire (argued), Tarabicos Grosso, LLP, New Castle, Delaware, for Appellee Below, Appellant Board of Adjustment of The City of Lewes.

          Kyle F. Dunkle, Esquire (argued), and Mark. F. Dunkle, Esquire, Parkowski, Guerke & Swayze, P.A., Dover, Delaware, for Appellants Below, Appellees Ernest M. Nepa and Deborah A. Nepa.

          Before STRINE, Chief Justice; VAUGHN, SEITZ, and TRAYNOR, Justices; GLASSCOCK, Vice Chancellor, [*] constituting the Court en Banc.

          SEITZ, JUSTICE.

         The City of Lewes and its Historic Preservation Commission approved Ernest and Deborah Nepa's plans to renovate a house in the historic district. The Nepas violated the conditions of the approvals by building a two story addition on the back of the house and increasing its already nonconforming setbacks from neighboring properties. After the City discovered the violations and issued a stop work order, the Nepas applied to the City's board of adjustment for three area variances to complete the unauthorized addition. The board turned them down.

         The Nepas appealed the variance denials to the Superior Court, arguing that the City Code provision used by the board to evaluate their variance applications conflicted with a more lenient state law addressing municipal variances. The Superior Court agreed and reversed the board's decision. According to the court, the City could not require stricter variance requirements than those in state law "unless there is statutory authority granting such, as the municipality must conform with standards established by the General Assembly."[1] Because the state law addressing municipal variances had more lenient requirements than those in the City Code, the City Code was "ultra vires and cannot be applied."[2]

         On appeal, the City argues that the Superior Court erred because the state statute the court relied on-22 Del. C. § 327(a)(3)-does not require municipal boards of adjustment to grant variances. Instead, the state statute only sets minimum requirements that must be met before a municipality, through its board of adjustment, may grant a variance. Stated differently, the state statute only prohibits the City from loosening the state law requirements for granting a variance. The City is thus free to require stricter standards.

         We agree with the City and reverse the Superior Court's decision. The City can adopt land use regulations as broad as those that might be adopted by the State as long as the City's regulations do not conflict with state law. The state statute the Superior Court found conflicted with the City Code states that the board "may" grant a variance under specified conditions. The permissive nature of the statute makes it clear that the state statute sets a floor and not a ceiling for the City to honor. As long as the variance standards applied by the City of Lewes' board of adjustment meet the minimum state statutory standards, nothing in the state statute prohibits the City, through its board of adjustment, from applying variance standards stricter than those set by the State.


         The facts are largely undisputed and are taken from the Superior Court decision. The Nepas own a lot with a two and one-half story house in the City of Lewes. The property is legally nonconforming under the City Code because the house does not meet the Code's current setback requirements. When the Nepas purchased the property, they knew it was nonconforming, but purchased it as an investment property to renovate and sell.

         The City and the Historic Area Commission approved the Nepas' renovation applications, which did not include an increase in house size or the encroachment into the setbacks. While renovating the house, the Nepas discovered insect damage. Then a rainstorm caused the back roof to collapse. Without informing the City or applying to modify their approvals, the Nepas decided to change course and build a two story addition on the back of the house, which increased the house size and expanded the already nonconforming encroachment.

         A Lewes building officer discovered the violations and issued a stop-work order. After waiting almost a year, the Nepas applied for three variances with the City's board of adjustment to continue their unapproved work. The Nepas justified the variance requests on two grounds: the need to lift the stop work order and to improve the home's marketability because it would allow the eventual occupants to age in place-a modern trend in housing.

         The City's board of adjustment denied the variances. According to the board, the Nepas had not demonstrated an exceptional practical difficulty in complying with the City Zoning Code requirements-a standard the Nepas had to meet to be entitled to the variances.[3] The board found that the property was not unique and the variances would "represent a deviation from the spirit and intent of the Zoning Code."[4] While recognizing the City's goal of promoting aging in place, the board did not believe all the requested variances were needed for this purpose.[5] Finally, the board found the difficulties faced during construction were self-created as a result of the Nepas' failure to follow proper procedure.

         The Nepas appealed the board's decision to the Superior Court, claiming that the board erred by applying stricter standards for variance applications than those authorized by the state statute governing municipal boards of adjustment-22 Del. C. § 327(a)(3). According to the Nepas, because the state statute had more lenient requirements for granting a variance, and state law typically controls when it conflicts with local law, the City and its board could not impose stricter requirements.

         The City responded with two main arguments. First, the City Code variance requirements were consistent with, and not stricter than, the state statute governing municipal boards of adjustment. And second, even if the City Code standards were stricter than state law, § 327(a)(3) did not prohibit the City from imposing stricter variance standards because the state statute set only minimum requirements for variance grants.

         The Superior Court agreed with the Nepas. It first decided that the City Code imposed stricter requirements for variance grants than 22 Del. C. § 327(a)(3) and court decisions interpreting the statute. The court next decided that the City Code's stricter requirements conflicted with the state statute's more lenient requirements. According to the court, when a conflict occurs, and state law does not authorize the City's specific code provision, state law typically controls. Thus, the City's stricter standards could not be applied to the Nepas' variance application. The Superior Court reversed the board's decision.



         This appeal presents a question of statutory interpretation, which we review de novo. [6] Looking first at state law, under Article II § 25 of the Delaware Constitution:

The General Assembly may enact laws under which municipalities [and counties] may adopt zoning ordinances, laws or rules limiting and restricting to specified districts and regulating therein buildings and structures according to their construction and the nature and extent of their use, as well as the use to be made of land in such districts for other than agricultural purposes; and the exercise of such authority shall be deemed to be within the police power of the State.

         Section 25 "delegate[s] the zoning powers of the state to the counties and municipalities."[7] By statute, the State has delegated to municipalities broad power to regulate land use "to promote health and the public welfare" and to further other public interests such as preventing "undue concentration of population," preventing the "overcrowding of land," " provid[ing] adequate light and air," and "facilitat[ing] the adequate provision of transportation, water, sewerage, schools, parks and other requirements."[8]

         The delegated land use regulatory authority typically extends to the outer boundary of the State's authority, subject to any express or implied preemption by other state law.[9] Even when preemption occurs, however, the State anticipated that municipalities might adopt stricter land use requirements than those in state or local law. When the municipality adopts "higher standards than are required in any other statute or local ordinance or regulation, the regulations made under authority of this chapter shall govern."[10] In other words, although conflicting state statutes typically preempt conflicting laws adopted by municipalities, when the municipality enacts land use ordinances and regulations requiring stricter standards than other state and local laws, the municipality's stricter standards govern.

         State and local land use regulations promote the public interest by establishing uniform land development and use standards. There are situations, however, when a departure from a broad land use regulatory scheme might be warranted. One example is where literal application of zoning ordinances would cause practical difficulties to a specific property owner, and granting a variance from those requirements would not harm the public interest. To address requests for variances from land use laws, the State has delegated to municipalities the authority to hear variance applications through boards of adjustment. Under state law,

(a) The board of adjustment may:
(3) Authorize, in specific cases, such variance from any zoning ordinance, code, or regulation that will not be contrary to the public interest, where, owing to the special conditions or exceptional situations, a literal interpretation of any zoning ordinances, code or regulation will result in unnecessary hardship or exceptional practical difficulties to the owner of property so that the spirit of the ordinance, code or regulation shall be observed and substantial justice done, provided such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of any zoning ordinance, code, regulation or map….[11]

         The state statute makes clear that boards of adjustment may grant variances only when "special conditions" or "exceptional situations" exist that cause "unnecessary hardship" or "exceptional practical difficulties." In Board of Adjustment of New Castle County v. Kwik-Check Reality, Inc., [12] involving a comparable statute for a county board of adjustment, we noted the distinction between two types of variances-use and area variances. A use variance "changes the character of the zoned district by permitting an otherwise proscribed use"[13] while "an area variance concerns only the practical difficulty in using the particular property for a permitted use."[14] Thus, "given the differing purposes and effects of the two types of variance," the more rigorous "unnecessary hardship" standard applies to use variances and the "lesser standard of the owner's 'exceptional practical difficulties' is appropriate for obtaining an area variance."[15]


         Turning to the City of Lewes and its land use laws, the City exercised its authority under state law and its Charter to adopt a zoning code and to create a board of adjustment.[16] Also, as authorized by state law, the City has adopted "rules and regulations" under which the board operates.[17] According to § 197-92 of the City Code, "[r]elief from the strict application of the provisions of" the City Code-a variance-may be granted by the board "when, owing to special conditions or exceptional situations, a literal interpretation of this chapter will result in exceptional practical difficulties to the property owner."[18] The board must make "required findings" by "applying 22 Del. C. § 327(a)(3)."[19] Under the City Code, the applicant must satisfy the following criteria:

(1) The variance relates to a specific parcel of land, and the hardship is not shared generally by other properties in the same zoning district and vicinity.
(2) The variance can be granted without substantial detriment to the public good.
(3) The benefits from granting the variance would substantially outweigh any detriment.
(4) Approval of the variance would not substantially impair the intent and purposes of the Comprehensive Plan or this chapter.[20]

         In addition to these requirements, the board of adjustment must also "consider the following factors in reaching its decision on each variance application:"

(1) Nature of the zone where the property lies.
(2) Character of the immediate vicinity.
(3) Whether the restrictions, if lifted, would affect neighboring properties and uses.
(4) Whether the restriction would tend to create a hardship on the owner in relation to normal improvements.[21]



         We first address a threshold argument raised by the Nepas-whether the City had the authority to adopt any variance requirements to be applied by its board of adjustment. The Nepas argue that the state statute authorizing the City's board of adjustment contains the exclusive requirements for granting variances, and thus the City was not authorized to adopt any of its own requirements.

         The argument is unpersuasive for several reasons. First, Section 23 of the City Charter authorizes the City "generally to exercise all the powers and authorities vested in the legislative body of cities and incorporated towns under and by virtue of 22 Del. C. § 301 et seq., and all amendments thereto." Under 22 Del. C. § 321, which addresses the creation and powers of municipal boards of adjustment, the State has authorized municipalities to adopt their own laws governing their boards of adjustment. The "legislative bodies of cities or incorporated towns" are authorized to adopt "rules and regulations" for boards of adjustment "pursuant to the authority under [Chapter 3] …." Section 197-92 of the City Code adopts the "rules and regulations" to be applied by the City's board of adjustment when evaluating variances applications.[22] And second, 22 Del. C. ยง 304 allows a municipality to "provide for the manner in which" its land use "regulations and restrictions . . . shall be enforced." The standards dictated by ...

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