The CITY OF LEWES and the Board of Adjustment of the City of Lewes, Appellees Below, Appellants,
Ernest M. NEPA and Deborah A. Nepa, Appellants Below, Appellees.
March 27, 2019
Below— Superior Court of the State of Delaware, C.A.
Appeal from the Superior Court of the State of Delaware:
C. Mandalas, Esquire, and Daniel F. McAllister, Esquire
(argued), Baird Mandalas Brockstedt, LLC, Dover, Delaware,
for Appellee Below, Appellant The City of Lewes.
J. Hoffman, Esquire (argued), Tarabicos Grosso, LLP, New
Castle, Delaware, for Appellee Below, Appellant Board of
Adjustment of The City of Lewes.
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.
STRINE, Chief Justice; VAUGHN, SEITZ, and TRAYNOR, Justices;
GLASSCOCK, Vice Chancellor,[*] constituting the Court en Banc.
Justice, for the majority:
City of Lewes and its Historic Preservation Commission
approved Ernest and Deborah Nepas 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 Citys board of adjustment for three
area variances to complete the unauthorized addition. The
board turned them down.
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 boards 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." 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."
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
agree with the City and reverse the Superior Courts
decision. The City can adopt land use regulations as broad as
those that might be adopted by the State as long as the
Citys 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.
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 Codes 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.
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.
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 Citys
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 homes
marketability because it would allow the eventual occupants
to age in place— a modern trend in housing.
Citys 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. 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." While recognizing the Citys goal of
promoting aging in place, the board did not believe all the
requested variances were needed for this
purpose. Finally, the board found the
difficulties faced during construction were self-created as a
result of the Nepas failure to follow proper procedure.
Nepas appealed the boards 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
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
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 Codes stricter requirements conflicted with the state
statutes more lenient requirements. According to the court,
when a conflict occurs, and state law does not authorize the
Citys specific code provision, state law typically controls.
Thus, the Citys stricter standards could not be applied to
the Nepas variance application. The Superior Court reversed
the boards decision.
appeal presents a question of statutory interpretation, which
we review de novo.  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 ...