Gannos, LLC v. Sussex County Board of Adjustment ( 2016 )

SUPERIOR COURT
OF THE
STATE OF DELAWARE
E. SCOTT BRADLEY 1 The Circle, Suite 2
JUDGE GEORGETOWN, DE 19947
August 16, 2016
Richard E. Berl, Jr., Esquire James P. Sharp, Esquire
Berl & Fineberg, LLP Moore & Rutt, P.A.
Dartmouth Business Center, Suite 3 122 W. Market Street
34382 Carpenter’s Way P.O. Box 554
Lewes, DE 19958 Georgetown, DE 19947
RE: Gannos, LLC, v. Sussex County Board of Adjustment, et. al.
C. A. No. S15A-12-002 ESB
Dear Counsel:
This is my decision on the appeal filed by Gannos, LLC, of the Sussex County
Board of Adjustment’s decision to grant a special use exception and variances for a
billboard to be located on a property owned by 19366 Coastal Highway, LLC
(“Applicant”). The Applicant is the owner of a parcel of property located on the
southbound side of Delaware Route 1 at 19366 Coastal Highway, Rehoboth Beach,
Delaware. The Applicant filed with the Sussex County Board of Adjustment an
application for a special use exception to erect a billboard on its property and for five
variances related to the billboard. Gannos is the owner of the Rehoboth Marketplace,
a shopping center which sits immediately west of the Applicant’s property. Gannos
is opposed to any modification to the Applicant’s existing billboard. After a hearing
on the application, the Board approved the application for a special use exception and
the five variances with the only change being to the square footage variance. Gannos
now appeals the Board’s decision to this Court.
The Board Hearing
The Board held a public hearing on the application on August 3, 2015. Present
at the hearing for the Applicant were David Hutt, Esquire, and Patricia and James
Derrick, members of the Applicant. Present for Gannos, LLC, were Richard Berl,
Esquire, and Gregory Fisher, the property manager for the shopping center.
Hutt presented the application. Hutt told the Board that the Applicant wanted
to replace an old billboard. The Applicant’s property is zoned commercial and
currently houses a billboard, the Sea Shell Shop, a miniature golf course, and a
parking lot. The property is triangularly shaped and the topography is unusual in that
the Sea Shell Shop sits up high on the property while the billboard sits on one of the
lowest points of the property. A Sussex County pump station is located immediately
north of the property and sits on higher ground than where the billboard sits. The
existing billboard consists of telephone poles and plywood, and is approximately 500
square feet. The Applicant is seeking to replace the existing billboard with a steel
monopole structure.
Thomas and Patricia Derrick purchased the property in 1993. At the time of
2
the 1993 purchase, a billboard was already on the property and located in the same
area. In 1995, the Derrick’s filed an application to modify the billboard, which was
granted by the Board. In 2010, the property was transferred to the Applicant.
During the hearing Hutt addressed both the standards for granting a variance
and a special use exception. The Applicant sought (1) a variance of 42 feet from the
side-yard setback requirement, (2) a variance of 89 feet from the separation distance
requirement from another billboard located across Route 1, (3) a variance from the
separation distance requirement from public lands, (4) a variance of six feet from the
height requirement, and (5) a variance of 276 feet per side from the maximum square
footage requirement. In his presentation for the special use exception, Hutt told the
Board that the proposed billboard would not substantially adversely affect the uses
of adjacent and neighboring properties because (1) there is an existing billboard on
the property in the same location, (2) the replacement of the existing billboard is
consistent with the surrounding highly-developed commercial area of Route 1, and
(3) the proposed billboard is consistent with other replacement billboards that have
been brought before and approved by the Board.
Berl spoke on behalf of Gannos. Gannos submitted a letter of objection signed
by the owners or store managers of the tenants of the Rehoboth Marketplace. The
letter claims that the proposed billboard will block the view of its main pylon sign
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heading north on Route 1 and it will block the view of the shopping center from
Route 1. Gannos believes this will result in a loss of customers for the stores in the
shopping center. Gannos stated that because many of the leases in the shopping
center expire this fall, some of its tenants may look for properties that are closer to
Route 1 and possess a greater roadside exposure. Gannos argues that the change in
the billboard would potentially affect the uses of adjacent properties in an adverse
manner. Gannos did acknowledge that everyone in the shopping center has gotten
used to the current billboard. Gregory Fisher affirmed that Berl’s statements to the
Board were correct. At the conclusion of the hearing the Board voted to table the
application until its meeting on October 5, 2015.
The Board revisited the Application at its meeting on October 5, 2015, during
which time the Board members discussed the arguments raised by the parties at the
initial hearing. The Board discussed the height of the billboard in depth and found
no problem with the height. The Board discussed its concern about the size of the
variance for the additional square footage of the billboard. Ultimately, the Board
denied the extra square footage but allowed the Applicant to keep the proposed
billboard the same size as the existing one. The Board unanimously approved the
special use exception under Sussex County Code §115-210 and the five variances
under Sussex County Code §115-211(B), with the exception being a reduction in the
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square footage variance. The Board issued its written decision on November 17,
2015.
STANDARD OF REVIEW
The standard of review on appeals from the Board of Adjustment is limited to
the correction of errors of law and a determination of whether substantial evidence
exists in the record to support the Board’s findings of fact and conclusions of law.1
Substantial evidence means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.2 If the Board’s decision is supported by
substantial evidence, a reviewing court must sustain the Board’s decision even if such
court would have decided the case differently if it had come before it in the first
instance.3 “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.”4 “If the
Board’s decision is fairly debatable, there is not [an] abuse of discretion.”5 “In this
1
Janaman v. New Castle County Board of Adjustment, 364 A.2d 1241, 1242 (Del. Super.
1976).
2
Miller v. Board of Adjustment of Dewey Beach, 1994 WL 89022, *2 (Del. Super. Feb.
16, 1994).
3
Mellow v. Board of Adjustment of New Castle County, 565 A.2d 947, 954 (Del. Super.
1988), aff’d, 567 A.2d 422 (Del. 1989).
4
Mellow, 565 A.2d at 955.
5
Id. at 956.
5
process, ‘[t]he Court will consider the record in the light most favorable to the
prevailing party below.’”6 In the absence of substantial evidence, the Superior Court
may not remand the Board’s decision for further proceedings, but rather, may only
“reverse or affirm, wholly or partly, or may modify the decision brought up for
review.”7
DISCUSSION
Gannos argues that the Board (1) did not follow the proper procedure in
approving the special use exception, (2) erred in granting the special use exception,
and (3) erred in granting the height and square footage variances. The Board gets its
power from 9 Del.C. §6917. This section authorizes the Board to hear and grant
variance requests. 8 The Sussex County Council enacted §115-210 and §115-211 of
the Sussex County Code to implement 9 Del.C. §6917.
I. Proper Approval
Gannos argues that the Board did not follow the proper procedure in approving
the special use exception. Gannos argues that when Mr. Mills made the motion to
6
Holowka v. New Castle County Board of Adjustment, 2003 WL 21001026, at *4 (Del.
Super. April 15, 2003) citing General Motors Corp. v. Guy, 1991 WL 190491, at *3 (Del. Super.
Aug. 16, 1991).
7
22 Del. C. § 328(c).
8
9 Del.C. § 6917(1).
6
approve the five variances he failed to mention the special use exception. In making
the motion, Mr. Mills stated “[s]o the motion I would make is the variance of 42 feet
from the side yard setback requirement, a variance of 89 feet separation distance from
another billboard across Route 1, a variance for public lands, county pumping station
which exists within 300 feet of the sign, a variance of 6 feet to allow the sign to be
31 feet high, and a variance of 180 square feet per square footage.”9 Directly after
making the motion and prior to it being seconded by Mr. Workman, Mr. Mills
explained his reason for making a motion to approve the five variances and the
special use exception. Furthermore, after having the motion seconded, Mr. Callaway
states “Thank you Mr. Mills. Okay. So we got a motion by Mr. Mills and a second
by Mr. Workman that we approve case no. 11612, one, for the special use exception
with the requested variances except for the 180-foot instead of 276; is that correct,
Mr. Mills?”10 Mr. Mills answered affirmatively, making his intent to include the
special use exception in his motion clear.11
The record does not support Gannos’ argument that the special use exception
was not properly approved. In its written decision, the Board stated it reviewed the
9
Transcript of Sussex County Council Meeting at 27 (October 5, 2015).
10
Id. at 30.
11
Id.
7
testimony and evidence presented at the public hearing and the public record and
granted the special use exception after a finding that the sign would not substantially
affect adversely the uses of neighboring and adjacent properties. The Board’s own
Rules dictate that it is the written decision that is controlling, not the oral vote. Rule
14.8 states “Following a decision by the Board on an appeal or application, a copy of
the written decision shall be sent to the appellant or applicant, or the agent or attorney
for the appellant or applicant. Any oral discussion of or vote upon the application by
the Board shall be deemed in the nature of preliminary deliberations to the rendering
of a final written decision and only the written decision, as adopted by a majority of
the Board, shall constitute a decision of the Board.”(Emphasis added). The Board’s
approval of the special use exception is recognized in its written decision. As
established by its own rules, the Board’s written decision determined what was and
what was not passed. The record fully supports the finding that the Board’s approval
process was not arbitrary or unreasonable, and any oral discussion on the application
simply constituted preliminary discussions prior to the rendering of the final written
decision. Procedurally, the Board’s process was proper and free from legal error.
II. Substantial Evidence
Gannos argues that the Board erred in approving the special use exception.
Gannos argues that the Applicant failed to prove that the new billboard would not
8
substantially affect adversely the uses of neighboring and adjacent properties. In
support of the special use exception, the Applicant stated (1) that a billboard already
exists in the same location as the proposed billboard, (2) that the replacement
billboard is consistent with the surrounding area as it is a highly developed
commercial area, and (3) that the proposed billboard is consistent with other
replacement billboards that take aging and obsolete billboards and replace them with
safer and more aesthetically pleasing billboards.
In order to grant a special use exception the Board must find that “such
exceptions will not substantially affect adversely the uses of adjacent and neighboring
property.”12 Specifically, §115-210 states that “[i]n order to provide for adjustments
in the relative location of uses and buildings, to promote the usefulness of these
regulations and to supply the necessary elasticity to their effective operation, special
use exceptions, limited as to locations described in this Article, and special yard and
height exceptions are permitted by the terms of these regulations. The following
buildings and uses are permitted as special exceptions if the Board finds that, in its
opinion, as a matter of fact, such exceptions will not substantially affect adversely the
uses of adjacent and neighboring property...”
In its decision the Board noted (1) that there is already a billboard in the same
12
Sussex County Code §115-210.
9
location and no evidence was presented that the existing billboard had any substantial
adverse effect on neighboring and adjacent properties, (2) the location is a well-
traveled commercial zone with other billboards located in the area, (3) the new
billboard would be a safety and aesthetic improvement from the current billboard, (4)
that the proposed sign will meet Department of Transportation requirements, and (5)
that the concerns presented by Gannos are general in nature and do not rise to the
level of substantial evidence. The Board noted that some members of the shopping
center had been tenants since 1989 and if an adverse effect from the billboard existed,
then there would be evidence of it. The Board also determined that the shopping
center’s sign is visible from the South and was not convinced that the proposed
billboard would have any effect of the views of the shopping center’s sign. On
discussing the view of the shopping center from the highway, Mr. Mills stated that
he believed that the application has “no visual impact on the shopping center in that
with certain – you know, before you even get to the property, you see the shopping
center. You see its signage and so forth. You have the existing – I don’t think it’s
going to block – in fact, it will probably block whatever shopping center – view to the
shopping center less by raising it.”13 Mr. Workman stated that he didn’t “think it’s
13
Transcript of Sussex County Council Meeting at 2 (October 5, 2015).
10
going to block any of those stores or anything else.” 14 The photographic evidence
submitted into the record supports their statements.
The evidence in the record established that the current billboard has had no
discernable impact on the shopping center. The evidence before the Board
demonstrates that the proposed billboard will be the same size as the one it is
replacing and in the same location. The only difference is that the proposed billboard
will be six feet taller. The evidence also establishes that the proposed billboard is
consistent with the surrounding area and would be a safety and aesthetic
improvement. While it was not their burden, no specific evidence of adverse affects
was presented by Gannos, presumably because none existed. It is unrealistic to
expect the Applicant to have to produce evidence of the hypothetical negative effects
the proposed billboard would have on the shopping center, as Gannos appears to have
suggested. For example, Gannos argues that the new billboard could have an impact
on which tenants renew their leases, but that information would be purely
hypothetical at this point in time and it may not have anything to do with the
proposed billboard. In its brief, Gannos argues that the new billboard is going to be
far more intrusive than the older one but there is no evidence in support of that
allegation. In fact, the photographs submitted into evidence disproves Gannos’
14
Id. at 10.
11
claims. Gannos acknowledged that its tenants have also become accustomed to the
current billboard so it is unclear how a modest increase in height would adversely
affect the shopping center. If anything, the increase in height will allow passing
motorists to see more of the shopping center. All of Gannos’ claims are theoretical
at best with no basis in fact. A review of the Board’s decision demonstrates that it is
based upon substantial evidence and free from legal error.
III. Granting Variances for Height and Square Footage
Gannos argues that the Board erred in granting two of the five variances.
Specifically, Gannos argues that the Board erred in granting the height and square
footage variances because (1) the Applicant failed to demonstrate that the property
cannot be reasonably used without the variances, and (2) the hardship in complying
with the code is self-created.15 The Board may, in its discretion, grant:
A variation in the yard requirements in any district so as to relieve
practical difficulties or particular hardships in cases when and where, by
reason of exceptional narrowness, shallowness or other unusual
characteristics of size or shape of a specific piece of property at the time
of the enactment of such regulation or restriction or by reason of
exceptional topographical conditions or other extraordinary situation or
condition of such piece of property or by reason of the use or
development of property immediately adjacent thereto, the strict
application of each regulation or restriction would result in peculiar and
exceptional practical difficulties to or exceptional hardship upon the
15
The Court will not examine the other factors necessary for approval of a variance for
error as they are not being challenged.
12
owner of such property. Such granting of variance shall comply, as
nearly as possible, in every respect with the spirit, intent and purpose of
this chapter, it being the purpose of this provision to authorize the
granting of variation only for reasons of demonstrable and exceptional
hardship as distinguished from variations sought by applicants for
purposes or reasons of convenience, profit or caprice.16
Section 115-211(B) provides that the Board shall grant a variance only if five certain
findings are made.
(1) That there are unique physical circumstances or conditions,
including irregularity, narrowness or shallowness of lot size or shape, or
exceptional topographical or other physical conditions peculiar to the
particular property and that the unnecessary hardship is due to such
conditions and not to circumstances or conditions generally created by
the provisions of the Zoning Ordinance or code in the neighborhood or
district in which the property is located.
(2) That, because of such physical circumstances or conditions,
there is no possibility that the property can be developed in strict
conformity with the provisions of the Zoning Ordinance or code and that
the authorization of a variance is therefore necessary to enable the
reasonable use of the property.
(3) That such unnecessary hardship has not been created by the
appellant.
(4) That the variance, if authorized, will not alter the essential
character of the neighborhood or district in which the property is located
and not substantially or permanently impair the appropriate use or
development of adjacent property nor be detrimental to the public
welfare.
(5) That the variance, if authorized, will represent the minimum
16
Sussex County Code §115-211(A)(1).
13
variance that will afford relief and will represent the least modification
possible of the regulation in issue.
A. Reasonable Use
Gannos argues that the Board erred in granting the height and square footage
variances because the Applicant is able to reasonably use the property without them.
Gannos argues this is evidenced by the fact that the Applicant operates the Sea Shell
Shop, a miniature golf course, and a seasonal ice cream shop on its property. The
Board found that the evidence presented at the hearing indicates that the property is
unique in terms of shape and topography. The Property is triangular in shape and
uneven, as evidenced by the multi-level parking lot. The Board found that a billboard
currently sits on the property in an area that is much lower than other portions of the
property, and several feet lower than Route 1. Because of the location of the current
billboard, the Board found that the Applicant is unable to construct a billboard that
is the same height as other nearby billboards. The Board found that the unique shape
of the property limits the placement and options for the billboard. The Board found
that the current billboard is a wooden billboard that is in need of repair. Due to the
uniqueness of the property, the Board found that it cannot be developed in strict
conformity with the Sussex County Code. The Board found that the variances for
height, shape, and location are necessary to enable the reasonable use of the property
14
as the variances will allow the new billboard to be constructed. The Board also found
that the variance request for the height of the billboard is consistent with the spirit of
the Sussex County Zoning Code. The Board was not convinced that the maximum
square footage variance was the minimum necessary to afford relief. Rather, the
Board found that a variance of 180 square feet per side would allow the Applicant to
build a billboard the same size as the one it was replacing. The Board also found that
the shopping center’s sign is quite visible from the South and the proposed billboard
should not have any effect on the views of the shopping center sign.
I have concluded that the Board properly found that the Applicant could not
reasonably use the property without the variances. The Board properly considered
the shape and topography of the property, the history of the billboard, the placement
of the current billboard, the surrounding area, and the uniqueness of the lot in relation
to the Sussex County Code. Gannos relies on Village of Highway One17 for support,
but in that case there was no preexisting billboard. That is a big difference from the
current situation where the billboard already exists with its placement on the property
several feet below the road level. Another big difference from Village of Highway
One is that the applicant in that case was trying to go higher than the surrounding
17
The Village of Highway One v. Board of Adjustment of Sussex County, 2015 WL
799536 (Del. Super. Feb. 23, 2015).
15
billboards and above the 25-foot height limit. The Applicant in this case is not trying
to get permission to go higher than other nearby billboards. It is merely trying to go
to the same height as the other billboards due to the fact its billboard sits at a lower
elevation than the surrounding area. Gannos has failed to show that the Board’s
decision was arbitrary or unreasonable. The Board thoroughly reviewed the evidence
and made its findings based upon that evidence. The Board’s findings are based upon
substantial evidence and free from legal error.
B. Self-Created Difficulty
Gannos argues that any hardship faced by the Applicant in complying with the
Sussex County Code was self-created. Gannos argues that the Applicant’s need for
a height variance is due to its own decision to place the current billboard in a low spot
back in 1995 instead of interfering with existing improvements. Gannos also argues
that the Applicant could comply with the size requirement but chooses not to do so
for economic reasons. Gannos concedes that the portion of land where the billboard
sits is unsuitable for other uses.
The Board found that the exceptional practical difficulty was not created by the
Applicant. The Board found that the Applicant did not (1) create the shape or
topography of the property, (2) place the billboard on neighboring lands, or (3) erect
the existing billboard on the property. The Board also found that the existing
16
billboard needs repair and the replacement billboard will be safer and more
aesthetically pleasing.
I have concluded that the Board properly found that the hardship faced by the
Applicant was not self-created. The Board properly considered the history of the
billboard, the condition of the billboard, and the shape and topography of the property
in reaching its decision. In Verleysen, the Court stated a “self-imposed hardship
exists where a party “[comes] to the restricted subject property with a particular
unpermitted use in mind and mindful of the impossible area restrictions for that use.”
By contrast, a hardship is not self-imposed if it “result[s] from inherent and pre-
existing characteristics” of the property.”18 When the Derrick’s purchased the
property in 1993, a billboard already existed on the property. In 1995, the Derrick’s
replaced the billboard, but kept it in the same location. The Applicant now seeks to
replace the wooden billboard with a steel billboard, while keeping it in the same
location. What the Applicant is not doing is attempting to place a billboard on its
property for the first time. The billboard and its location pre-existed the arrival of the
Derrick’s and the Applicant as owners of the property. The Applicant’s desire to
continue to use the property as it existed when they purchased it is a problem that is
intrinsically related to the property itself, and not one created by the Applicant.
18
Board of Adjustment of Sussex County v. Verleysen, 36 A.3d 326, 332 (Del. 2012).
17
Gannos has failed to show that the Board’s decision was arbitrary or unreasonable.
The Board thoroughly reviewed the evidence and made its findings based upon the
evidence. The Board’s findings are based upon substantial evidence and free from
legal error.
CONCLUSION
The Sussex County Board of Adjustment’s decision is AFFIRMED.
IT IS SO ORDERED.
Very truly yours,
/s/ E. Scott Bradley
E. Scott Bradley
ESB/sal
oc: Prothonotary
18