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.
Submitted: March 27, 2019
Below-Superior Court of the State of Delaware C.A. No.
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.
Michael J. Hoffman, Esquire (argued), Tarabicos Grosso, LLP,
New Castle, Delaware, for Appellee Below, Appellant Board of
Adjustment of The City of Lewes.
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.
STRINE, Chief Justice; VAUGHN, SEITZ, and TRAYNOR, Justices;
GLASSCOCK, Vice Chancellor, [*] constituting the Court en Banc.
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.
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." 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 stricter standards.
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.
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
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.
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.
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. 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 City's 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 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
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 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.
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 power of
25 "delegate[s] the zoning powers of the state to the
counties and municipalities." 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."
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
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." 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
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….
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.,
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" while
"an area variance concerns only the practical difficulty
in using the particular property for a permitted
use." 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
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. Also, as authorized by state law, the
City has adopted "rules and regulations" under
which the board operates. 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." The board must make
"required findings" by "applying 22
Del. C. §
327(a)(3)." 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
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
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.
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. And second, 22 Del. C. § 304 allows
a municipality to "provide for the manner in which"
its land use "regulations and restrictions . . . shall
be enforced." The standards dictated by ...