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Colburn v. Board of Adjustment of City of New Castle

Superior Court of Delaware

October 8, 2019


          Submitted: August 6, 2019

         Petition for Writ of Certiorari and Appeal of Decision of Board of Adjustment of the City of New Castle REVERSED and REMANDED

          Josiah Wolcott, Esquire, CONNOLLY GALLAGHER LLP, Attorney for Appellants.

          Daniel Losco, Esquire and Geena Khomenko George, Esquire, LOSCO & MARCONI, P.A., Attorneys for Appellees.


          Charles E. Butler Judge


         This matter has come to the Court by way of a request for a Writ of Certiorari and Appeal of a Decision of the Board of Adjustment of the City of New Castle. The factual and procedural history is somewhat unusual, so I will save the details here and say only that, after due consideration, the Court is not satisfied that the matter before the Court is a justiciable controversy. Even if it were, the Board of Adjustment's decision upholding the Building Official's unilateral opinion is bereft of an articulated rationale that enables this Court to conduct any meaningful review. The Court therefore has little choice but to reverse the decision of the Board of Adjustment.


         In the historic district of Old New Castle, one will inevitably come upon Second Street, with quaint houses fronting both sides of the street. Two such houses are at the center of this dispute: 153 and 155 Second Street, owned by the Colburns and the Chaumps respectively.[1] Standing at the back door of the Chaump or Colburn houses would yield a view across a grassy field that extends to The Strand - Old New Castle's signature street along the Delaware River - and beyond to New Jersey.[2]

         There are property lines that partition the expanse of green.[3] At the point the legally described backyards end, there is a 20-foot wide, unimproved right of way running across both backyards.[4] Beyond the 20-foot right of way are 2 rectangular strips of land, the same width as the homeowners' lots, deeded to these same homeowners, but referred to as "unimproved building lots."[5] They are not part of the same tax parcel as the residences, but to the naked eye, it all looks like a backyard field and is routinely mowed and cared for by the homeowners.[6]

         As homeowners will, the Chaumps at 155 Second Street decided they wanted to build an addition to the back of their house.[7] Because this is a historic district, apparently changing anything about an exterior is no mean feat. It took seven trips to the Historic Area Committee to get approval of the plans before the Building Official would issue a permit.[8] Then, after construction had begun, the Chaumps learned that the rear porch of the ongoing project would protrude into a 25-foot setback requirement at the back of the property.[9] The Chaumps stopped construction and sought a variance from the zoning limitation before the New Castle City Board of Adjustment.[10]

         The Board of Adjustment consists of three members: the City Solicitor, the City Engineer and the Mayor.[11] In the zoning variance proceeding, however, the President of the city council sat in place of the Mayor, who was not part of the proceeding.[12]

         All sides were well aware that building out into the setback area would interfere with the "viewscape" of the Delaware River for the Colburns next door, a fact that did not set will with the Colburns. Much of the hearing and argument was taken up with the extent of the visual interference, the precedent that would be set generally and the settled expectations of others, like the Colburns, that had not sought a variance.[13] This, one supposes, it to be expected in such a hearing.

         One issue raised during the zoning hearing would come back to haunt the later proceedings. According to the written record of the zoning hearing, "Discussion ensued with the Building Official Jeff Bergrstrom as to whether the 20-foot wide "alley" is really a paper "street" - if so, the Property has two "front" yards and no rear yards."[14] There being no setback requirement for a front yard facing a street, the argument goes, the Chaumps could build all the way back to the rear property line, unrestricted by any setback requirement.

         Apparently, this was the first time the issue was raised and the City Solicitor, sitting on the Board of Adjustment, said that determining whether the 20-foot right of way was a street or an alley would require "significant research" and was beyond the scope of the zoning variance sought in the application.[15] Ultimately, the Chaumps' requested zoning variance was turned down by the Board of Adjustment.

         Alas, this is not an appeal of the zoning board's decision. Rather, after the unsuccessful run at a zoning variance, the Chaumps went back to the Building Official and brought their best arguments why the Building Official was right during the zoning hearing and the "alley" really was not really an alley at all, but a "street" and the 25-foot setback requirement did not apply.[16] Since the Chaumps had "streets" at either end of the property, they could build to the lot line on either or both sides. This unilateral effort by the Chaumps with the Building Official yielded a better result than they got at the zoning hearing. The Building Official opined in writing that the right of way behind the houses was a street and, therefore, the Chaumps need not comply with the 25-foot setback requirement.[17] Next door, the Colburns, thinking the dispute was over after successfully fighting off the zoning variance before the Board, learned that the Chaumps had effectively won with the Building Official what they had lost before the Board of Adjustment. Upset with the conclusion of the Building Official, the Colburns appealed the decision to the City's Board of Adjustment - the same board that denied the Chaumps the zoning variance.[18]

         As noted earlier, the Board of Adjustment for the City of New Castle consists of the City Solicitor, the City Engineer and the Mayor.[19] This time around, however, the City Solicitor recused himself from ruling, announcing that he had counseled the Building Official in making his decision.[20] Thus, the Board for this hearing was two members: the Mayor, who was present (and not the city council president) and the City Engineer.[21]

         The Board took substantial testimony, from counsel, from the Colburns, as well as several residents of the neighborhood.[22] In addition, various maps and historical records concerning the property were introduced.[23]

         We might pause here to discuss the substance of the arguments for and against calling the right of way a street versus an ally, but the merits matter little to the Court's resolution of this dispute and the Court will therefore demur.

         What is apparent from the record is that at the conclusion of the testimony, the now two member Board deliberated.[24] The City Engineer, believing the Building Official had erred in concluding the right of way was a street, moved to overturn the Building Official's finding.[25] In what can only be described as a prophetic comment, the recused City Solicitor told the Engineer, "I think you need to state on the record the specific reasons why.[26] You said that Mr. Wolcott's arguments, or at least some were compelling, but I think you need to create on the Record what grounds to your decision are."[27] The Engineer then proceeded to articulate his ratio decidendi, pointing to specific evidence.[28]

         The motion then turned to the Mayor and he explained his vote thus: "Both sides present intelligent arguments. I believe, however, that we should accept the opinion of the City Building Inspector, the City Building Official. I believe we should call it a street."[29] The City Solicitor, rather than calling upon the Mayor to articulate his reasons for his decision as he had for the City Engineer, announced that because the vote was a one-one tie, the motion to overturn the Building Official's conclusion did not pass.[30] The decision of the Building Official thus became the final word on the subject.[31]

         Finally, as if the record were not confusing enough already, at oral argument, counsel for the Colburns advised the Court that since these hearings, the Chaumps have acceded to the setback requirement coming out of the zoning hearing and the home addition has been completed, within the 25 foot setback. According to the Colburns, the issue may nonetheless raise its head again and, having filed their appeal, they would like a Court ruling that the Building Official is in error in his conclusion that the right of way is a street.[32]


         The Court is bound to affirm administrative findings provided "substantial evidence exists on the record to support a zoning board's findings of fact and to correct any errors of law."[33] "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."[34] "Statutory interpretation is ultimately the responsibility of the courts" and a reviewing court will not defer to an agency's interpretation as correct merely because it is rational or not clearly erroneous.[35]

         "A decision will be reversed for irregularities of proceedings if the lower tribunal failed to create an adequate record to review.[36] "It is settled law that a quasi-judicial tribunal must state the basis for its decision in order to allow judicial review.[37]


         At the risk of repetition, this is not a controversy over whether the Chaumps may build an addition to their home beyond the zoned setback requirement. They have apparently accepted the zoning decision of the Board of Adjustment that they must abide the setback requirements and have proceeded to complete their renovation project. Indeed, the Chaumps are not even parties before the Court, having abandoned their appeal of the zoning order.[38] Rather, the Colburns are pressing this appeal because they do not believe the Building Official's decision that the right of way behind their house is a street is correct and the Building Official's decision could cause further aggravation to them down the road. While it is certainly true that the street designation could conceivably have some legal consequence at some point in the future, the Colton's have not articulated a specific or immediate harm to them flowing from the Building Official's ruling.

         A. This dispute is not a justiciable controversy

         One of the primary reasons cited by the Building Official in support of his decision that the right of way was a street was that the unimproved building lots, facing the right of way on the other side of the backyards of the Second Street homes, needed to have a "street" to face. If the right of way were considered an "alley," homes built on the unimproved lots would be landlocked, an unacceptable possibility.[39] The City Engineer, in voting to overrule the Building Official, found this to be a false dilemma: "there are other situations in New Castle, where houses are accessed from an alley, and even if there ...

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