The City of Lewes & The Board of Adjustment v. Nepa

IN THE SUPREME COURT OF THE STATE OF DELAWARE
THE CITY OF LEWES and §
THE BOARD OF ADJUSTMENT §
OF THE CITY OF LEWES, §
§ Nos. 348 & 349, 2018
Appellees Below, §
Appellants, § Court Below—Superior Court
§ of the State of Delaware
v. §
§ C.A. No. S17A-06-003
ERNEST M. NEPA and §
DEBORAH A. NEPA, §
§
Appellants Below, §
Appellees. §
Submitted: March 27, 2019
Decided: June 10, 2019
Before STRINE, Chief Justice; VAUGHN, SEITZ, and TRAYNOR, Justices;
GLASSCOCK, Vice Chancellor,* constituting the Court en Banc.
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.
* Sitting by designation under Del. Const. art. IV, § 12.
SEITZ, Justice, for the majority:
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
1
Nepa v. Bd. of Adjustment of City of Lewes, 2018 WL 1895699, at *8 (Del. Super. Apr. 11, 2018).
2
Id. at *9.
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.
I.
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
3
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
4
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
3
App. to Opening Br. at A116 (Board of Adjustment Decision).
4
Id.
5
Id. at A117.
5
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.
II.
A.
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.
6
Bd. of Adjustment of Sussex Cnty. v. Verleysen, 36 A.3d 326, 329 (Del. 2012).
6
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
7
Randy J. Holland, The Delaware State Constitution 128 (2d ed. 2017). See also Simon v. Town
of Seaford, 197 A. 681, 685 (Del. 1938) (“It is well settled in this State that a municipal corporation
has no power except by express legislative grant, or by fair and necessary implication because of
being incident to the powers expressly granted or essential to carrying them out.”).
8
22 Del. C. § 303.
9
Cantinca v. Fontana, 884 A.2d 468, 473 (Del. 2005) (quoting State v. Putman, 552 A.2d 147,
1249 (Del. Super. 1988)) (“In Delaware, the State and its political subdivisions are permitted to
enact similar provisions and regulations, so long as the two regulations do not conflict. But ‘where
[a] conflict exists between a state statute and a municipal ordinance, the statute must always
prevail.’”).
10
22 Del. C. § 307.
7
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
11
22 Del. C. § 327(a) (3). The board is also authorized to hear other applications, such as appeals
from administrative enforcement actions and special exceptions. Id. at § 327(a)(2) and (3).
8
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
B.
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
12
389 A.2d 1289 (Del. 1978).
13
Id. at 1291 (citing 3 Anderson American Law of Zoning, § 14.45 et seq. (1968)).
14
Id. (citing 2 Rathkopf, The Law of Zoning & Planning, 45-2 (1973 Supp.)).
15
Id.
16
22 Del. C. § 802; Lewes, Del., C. (Charter)§ 29, 29(23) (“Not by way of limitation upon the
power vested in the City Council to exercise all powers delegated by this Charter to the municipal
corporation except as may expressly appear herein to the contrary, but, rather, by way of
9
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:
enumeration and for purposes of clarity, the City Council is vested by this Charter with the
following powers, to be exercised by said City Council in the interest of good government and the
safety, health and welfare of the City, its inhabitants and affairs, that is to say, … 23. For the
prevention of fire and the preservation of the beauty of the City, to regulate and control the manner
of building or removal of dwelling houses and other buildings; to establish a code for the same and
to provide for the granting of permits for the same; to establish a building line for buildings to be
erected; zone or district the City and make particular provisions for particular zones of districts
with regard to building or building materials; and, 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.”). See also id. at § 38 (“For the purpose of
protection against fire, promoting health, safety, morals or the general welfare of the community,
the City Council is hereby empowered to adopt ordinances to regulate and restrict the height,
number of stores, size of buildings and other structures, the density of population and the location
and use of buildings, structures and lands for trade, industry, residence or other purposes, and this
power shall embrace new buildings or additions to or alterations of existing structures of every
kind; to condemn buildings or structures, or portions thereof, that constitute a fire menace and to
require or cause same to be torn down, removed or so altered as to eliminate the menace of fires;
to prescribe the height and thickness of any building and the kind and grade of materials used in
the construction thereof.”).
17
22 Del. C. § 321 (“The legislative body of cities or incorporated towns shall provide for the
appointment of a board to be known as the board of adjustment and in the rules and regulations
adopted pursuant to the authority of this chapter shall provide that the board may, in appropriate
cases and subject to appropriate conditions and safeguards make special exceptions to the terms of
the ordinance in harmony with its general purpose and intent and in accordance with general or
specific rules therein contained.”) (emphasis added).
18
City of Lewes Zoning Code § 197-92.
19
Id.
10
(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
III.
A.
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.
20
Id.
21
Id.
11
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. § 304 allows a municipality to
“provide for the manner in which” its land use “regulations and restrictions . . . shall
be enforced.” The standards dictated by the City to its board is one manner in which
the City enforces its zoning regulations. Thus, the City has the authority under state
law and its Charter to enact rules and regulations for its board of adjustment.
22
We respectfully disagree with our concurring colleague that the State’s delegation of power to
municipalities to enact rules and regulations for their boards of adjustment is limited to special
exceptions. As the dissent recognizes, the State’s delegation of land use regulatory authority to the
City under Chapter 3 is “broad” and should be “liberally construed.” Concurring Op. at 1. By
using the words “in the rules and regulations adopted pursuant to the authority of this chapter” the
General Assembly necessarily meant that a municipal legislative body can adopt rules and
regulations for its board of adjustment. Then, within those rules and regulations, the municipal
legislative body must provide for special exceptions.
12
B.
The second issue on appeal is whether the Lewes City Code § 197-92 requires
stricter standards for granting area variances than state law, 22 Del. C. § 327(a)(3).
The City argues that, despite some differences in wording, the requirements are
effectively the same. We agree with the Superior Court, however, that the City Code
has stricter standards for granting variances than those in state law.
The City Code partially tracks the area variance requirements described in
Kwik-Check,23 which interpreted a comparable state statute.24 Under Kwik-Check
and the City Code, the board must weigh four factors to determine whether an
exceptional practical difficulty is present: (1) the nature of the zone in which the
property is located, (2) the character and uses of the immediate vicinity, (3) whether,
if the restrictions are removed, there would be a serious effect on neighborhood
property and uses, and (4) if the restrictions are not removed whether there would
be a hardship to the owner to make normal improvements allowed for the use
permitted.25 Under § 327(a)(3) the relief must also not create “substantial detriment
23
389 A.2d at 1291.
24
In fact, as the Superior Court points out, after we issued our Kwik-Check decision, the General
Assembly modified 22 Del. C. § 327(a)(3)’s language to be nearly identical to the language at
issue in Kwik-Check. See Nepa v. Bd. of Adjustment of City of Lewes, 2018 WL 1895699, at *4
(Del. Super. Apr. 11, 2018) (“[T]he General Assembly changed the statute granting power to
municipal Boards of Adjustments to render it identical to the statute examined in Kwik–Check.”).
25
Id.; City of Lewes Zoning Code § 197-92.
13
to the public good” and not “impair[] the intent and purpose of any zoning
ordinance.”26
But that is where the similarity with the state statute and our decision in Kwik-
Check ends. The City Code also requires that the hardship to the applicant be unique
to the property (“not shared generally by other properties”). Although uniqueness is
a relevant inquiry under state law,27 neither § 327 nor Kwik-Check require such a
finding. Further, the City made two of the Kwik-Check factors more stringent. First,
under the City Code, any effect on neighboring properties must be considered, in
contrast to the state standard of seriously affecting those properties.28 And, the City
Code requires that the board find that “[t]he benefits from granting the variance
would substantially outweigh any detriment” to the public good. 29 Under
§ 327(a)(3), the variance need only be in harmony with the public interest.
Finally, the City Code expressly acknowledges that it imposes conditions
beyond those required by state law. Under the City Code there are “[a]dditional
standards,” one of which is eliminating a property’s nonconforming status as a
ground for a variance. 30 Thus, the Superior Court correctly determined that the
26
22 Del. C. § 327(a)(3).
27
See, e.g., Snyder v. New Castle Cnty., 135 A.3d 763, 2016 WL 1375393 (Del. Apr. 5, 2016)
(TABLE).
28
City of Lewes Zoning Code § 197-92 (“Whether the restrictions, if lifted, would affect
neighboring properties and uses”).
29
Id.
30
Id.
14
board “(1) used a heightened exceptional practical difficulty test by requiring the
benefit to the Nepas in granting the variances to substantially outweigh the detriment
to the neighboring properties, (2) imposed a ‘uniqueness’ requirement not required
by Kwik–Check, and (3) excluded nonconformity as a reason for granting a
variance.”31
C.
We now reach the crux of this appeal—whether the Superior Court correctly
concluded that the City’s stricter variance standards are in conflict with state law and
therefore invalid. The City argues first that the Superior Court failed to address a
state statute, 22 Del. C. § 307, which resolves any conflict between state and
municipal land use law in favor of the City. In its view, § 307 expressly recognizes
that, when a municipality adopts stricter land use standards than those in state law,
the municipality’s stricter standards govern. In the alternative, according to the City,
even if § 307 does not apply to municipal variance requirements, § 327(a) does not
require that the board grant any variance. Rather, by use of the permissive word
“may” instead of the mandatory word “shall” when referring to a variance grant, the
state statute does not require any variance to be granted and thus dictates only
minimum requirements before a board grants a variance. Under this interpretation,
the City is free to require stricter standards before granting a variance.
31
Nepa, 2018 WL 1895699, at *8.
15
The Nepas respond that § 307 of state law only applies to dimensional land
use standards and not to standards for granting variances. Further, according to the
Nepas, the General Assembly intended § 327(a) to be exclusive of any requirements
that municipal boards of adjustment might apply. In support of their argument, the
Nepas note that in § 327(a)(2) the General Assembly expressly authorized
municipalities to establish their own standard for special exceptions, in contrast to
their treatment of variances in § 327(a)(3).32
The Nepas also argue that two amendments to the statute in 1985 and 2008
show that the State sought to limit the board’s authority. The 1985 amendment
adopted the “exceptional practical difficulties” language from our decision in Kwik-
Check, but did not require any findings by the board outside the Kwik-Check factors.
And the 2008 amendment allowed municipalities a more streamlined method of
approving nominal variances of less than one foot. According to the Nepas, these
amendments suggest that the General Assembly “intended to reserve unto itself the
exclusive authority to establish the jurisdictional powers of municipal boards of
adjustment.”33
32
See 22 Del. C. § 327(a)(2) (The board may “[h]ear and decide special exceptions to the terms of
the ordinance upon which the board is required to pass under such ordinance”).
33
Answering Br. at 20.
16
We conclude that, without reaching the City’s argument under § 307, 34
§ 327(a) is permissive only and sets minimum standards, meaning the City of Lewes
can adopt stricter variance review standards than the standards set forth in state law.
As noted earlier, when a conflict arises between a state statute and municipal
ordinance, the state statute ordinarily prevails. 35 Whether a conflict exists is
ascertained by looking at legislative intent—did the General Assembly intend to
preempt local law either expressly or by implication. Intent to preempt is implied
when the local law is either inconsistent with the state statute or hinders its
objective.36
Under § 327(a), boards of adjustment may grant variances when “special
conditions” or “exceptional situations” exist that cause “unnecessary hardship” or
“exceptional practical difficulties.” By its use of highly restrictive language, the
General Assembly made clear that variances from uniform land use planning laws
should be treated as the exception and not the rule. Unlike other parts of Chapter 3
34
Section 307 provides that “[w]herever the regulations made under authority of [Chapter 3]
impose other higher standards than are required in any other statute or local ordinance or regulation
then the regulations made under authority of this chapter shall govern.” The City Code provisions
addressing variances are “regulations made under authority of Chapter 3.” But, the regulations
addressed by § 307 are zoning laws aimed at details such as lot sizes and building height—not
regulations governing the board of adjustment. Because we can resolve this case on the basis of
the lack of a conflict with § 327(a)(3), we need not reach the City’s argument under § 307.
35
See, e.g., Mayor & Council of Wilmington v. Smentkowski, 198 A.2d 685, 687 (Del. 1964).
36
See Cantinca, 884 A.2d at 473 (“[C]oncurrent regulation of the same subject matter, without
more, does not create a preemption justifying conflict.”).
17
of Title 22, where the state statutes use the word “shall,” when it came to the
“Determinations of [B]oard” of adjustment, the General Assembly used permissive
language—the board may grant a variance, but is not compelled by the statute to do
so.37 If the board is under no state statutory obligation to grant any variance, then a
municipality is free to enact variance requirements stricter than those in state law.
As we have noted before, “[s]tatutory and local regulation may coexist in identical
areas although the latter, not inconsistently with the former, exacts additional
requirements, or imposes additional penalties.”38
Variances are exceptions to zoning laws that promote uniformity in land use
planning. Without minimum standards, municipalities could grant variances based
on more lenient standards than state law, or no standards at all. Section 327(a)
requires that any variance granted by a municipal board of adjustment meet the
minimum requirements of the state statute. It does not require that a variance be
37
The state statute addressing municipal boards of adjustment is consistent with the comparable
state statute governing county boards of adjustment. See 9 Del. C. § 6917 (“The Board may grant
a variance in the application of the provisions of the zoning ordinance or code only if all of the
following findings are made . . .”) (emphasis added). In contrast to these sections, the General
Assembly used “shall” throughout Chapter 3. See 22 Del. C. §§ 302; 303-07; 309-12; 321-32. We
presume the General Assembly’s use of the word “may” instead of “shall” is a meaningful
variation. See Clark v. State, 65 A.3d 571, 577 (Del. 2013) (“We presume that the General
Assembly intentionally chose particular language”); see also Legislative Council’s Division of
Research, Delaware Legislative Drafting Manual, 84-87 (2019 ed.) (“‘May’ means a person is
permitted, has discretion, has a right, or is authorized to do something. Use ‘may’ to confer a
power, privilege, or right”).
38
Cantinca v. Fontana, 884 A.2d 468, 473 (Del. 2005) (quoting Firemen's Ins. Co. of Washington,
D.C. v. Washington, 483 F.2d 1323, 1328 (D.C. Cir. 1973).
18
granted. Thus, the City of Lewes was free to adopt stricter standards for variance
grants than those under the state law governing municipal boards of adjustment.39
It is worth noting that many municipalities have adopted similar ordinances
over the years.40 The Superior Court has also twice affirmed their validity.41 While
not dispositive, it does show that the General Assembly has so far allowed
municipalities to enact stricter standards for variance grants.
IV.
The judgment of the Superior Court is reversed, and the City of Lewes board
of adjustment decision is reinstated.
39
The Superior Court cited our decisions in Board of Adjustment of Sussex County v. Verleysen,
36 A.3d 326 (Del. 2012), and County Council of Sussex County v. Green, 516 A.2d 480 (Del.
1986), to support the proposition that “the municipality must conform with standards established
by the General Assembly.” Nepa, 2018 WL 1895699, at *8. Those cases dealt with variance
grants and rezoning requests that did not meet the minimum standards required by state law—a
result that is consistent with our decision in this appeal.
40
See, e.g., Dewey Beach Municipal Code § 101-34(B) (providing for factors that shall be
considered beyond the Kwik-Check factors); Wilmington Municipal Code § 48-594 (same);
Georgetown Municipal Code § 107-31 (same); Middletown Municipal Code § 78-31 (same);
Dewey Beach Municipal Code § 185-68 (same).
41
Hellings v. City of Lewes Bd. Of Adjustment, 1998 WL 960710 (Del. Super. Dec. 31, 1998),
rev’d on other grounds, 734 A.2d 641, 1999 WL 624114 (Del. 1999) (TABLE) (noting the board
could have adopted a more stringent standard); Dale v. Town of Elsmere, 1988 WL 40018, at *2
(Del. Super. Apr. 20, 1988) (applying the more stringent test codified by Elsmere).
19
VAUGHN, Justice, concurring in the judgment:
I concur in the Court’s judgment for reasons that I will explain. I write
separately because I think there is no valid source of legislative authority for § 197-
92 of the Lewes City Code, and I, therefore, agree with the Superior Court’s finding
that the ordinance “is ultra vires and cannot be applied.” 1 The power of
municipalities to enact zoning ordinances is a power delegated to them by the
General Assembly as part of the State’s police power. 2 Municipalities have no
inherent authority to enact zoning ordinances.3 The enabling legislation enacted by
the General Assembly for this purpose is currently codified in Chapter 3 of Title 22.
While the delegation of authority is broad and should be liberally construed, the
delegated authority must be exercised in conformance with the enabling legislation.
Municipal boards of adjustment are created under 22 Del. C. § 321, which
appears in Subchapter II of Chapter 3. This section provides that a municipal
legislative body “shall” provide for the appointment of a board of adjustment and
further provides that “in the rules and regulations adopted pursuant to the authority
of this chapter shall provide that the board may, in appropriate cases and subject to
appropriate conditions and safeguards, make special exceptions to the terms of the
1
Nepa v. Bd. of Adjustment, 2018 WL 1895699, at *9 (Del. Super. Apr. 11, 2018).
2
Del. Const. art. II, § 25 (“The General Assembly may enact laws under which municipalities and
the [counties] may adopt zoning ordinances . . . and the exercise of such authority shall be deemed
to be within the police power of the State.”).
3
See id.
1
ordinance.” 4 But this section does not grant any authority to adopt rules and
regulations establishing criteria for the granting of a variance for two reasons. First,
a special exception is quite different from a variance.5 As this Court has previously
explained, “[i]n the case of an exception, the law itself has foreseen the possibility
that a departure from its provisions may be desirable if certain specified facts or
circumstances are found to exist.”6 That is, “[a]n ‘exception’ is one allowable where
facts and conditions detailed in the ordinance are found to exist.” 7 A variance,
however, “involves an overriding of the law itself, based upon a finding that the law
as written would inflict unnecessary hardship on the property owner.”8
Second, I read the phrase “rules and regulations adopted pursuant to the
authority of this chapter,” to mean the rules and regulations enacted pursuant to 22
Del. C. § 301 and the other enabling sections of Chapter 3. I do not think that § 321
4
22 Del. C. § 321.
5
In re Emmett S. Hickman Co., 108 A.2d 667, 673 (Del. 1954).
6
Id.7
Id. (omissions omitted) (quoting In re Devereux Found., Inc., 41 A.2d 744, 746 (Pa. 1945)).
Although the Court in In re Emmett S. Hickman Co. used the term “exception” and not “special
exception,” it was undoubtedly referring to “special exceptions” as that term is used in the statute.
The statute in effect at that time, like the one in effect today, distinguished between a “special
exception” and a “variance.” See 22 Del. C. §§ 321, 327(a)(2)-(3) (1953).
8
In re Emmett S. Hickman Co., 108 A.2d at 673; see also 83 Am. Jur. 2d Zoning and Planning
§ 708 (“Unlike a variance which gives permission to an owner to use property in a manner
forbidden by, or inconsistent with, a local zoning ordinance, a ‘special exception’ gives permission
to use property in a way that is consistent with the zoning ordinance although not necessarily
allowed as of right.” (footnote omitted)). At the time In re Emmett S. Hickman Co. was decided,
§ 327 allowed variances only where there was an “unnecessary hardship,” 22 Del. C. § 327(a)(3)
(1953); the “exceptional practical difficulties” language was added in 1985, see 65 Del. Laws ch.
61, § 1 (1985).
2
can itself be reasonably construed as a delegation of authority to a municipal
legislative body to establish the standard for granting a variance. This interpretation
is consistent with the statutory scheme. Section 301 is the general grant of power to
municipalities to enact zoning ordinances. Inherent in this authority is the power to
create conditional size- and use-based allowances—or special exceptions. Section
321 simply recognizes that a locality can create such conditional allowances and
that, if a locality does so, it must provide that the board of adjustment can make such
special exceptions when the relevant conditions are met.9
Instead, the General Assembly has itself set the criteria for the granting of a
variance in 22 Del. C. § 327(a). That section provides that a board of adjustment
“may” hear and decide appeals, hear and decide special exceptions, and authorize
variances. 10 The section also sets out the statutory test a municipal board of
adjustment must follow in deciding whether to grant a variance.11 Nothing in the
statute states that it is setting only minimum standards for granting a variance or that
a municipality is free to require stricter standards. By using the word “may,”
§ 327(a)(3) gives the board of adjustment—an entity separate and distinct from a
9
See 22 Del. C. § 321; see also id. § 327(a)(2) (“The board of adjustment may . . . [h]ear and
decide special exceptions to the terms of the ordinance upon which the board is required to pass
under such ordinance.”).
10
Id. § 327(a)(1)-(3).
11
Id. § 327(a)(3).
3
municipality’s legislative body—the authority to grant (or not grant) variances.12 I
think the use of the word “may” simply emphasizes the independence of the board
of adjustment and its broad discretion to grant or not grant relief that an applicant
may seek. It is generally accepted that absent express, statutory authority, a local
government (such as a municipal legislative body) cannot enlarge or limit a board of
adjustment’s authority.13 Local governments, in regulating land use, “must conform
with standards established by the General Assembly,” which requires “an adherence
to the statutory or decisional standards then controlling.”14 Therefore, unless a city’s
legislative body is acting pursuant to express, state-level statutory authority to
restrict a board of adjustment’s power, a city’s legislative body cannot curtail a board
of adjustment’s state-level statutory authority by further limiting the circumstances
where a variance may be granted.15
12
Id. (“The board of adjustment may . . . [a]uthorize, in specific cases, such variance from any
zoning ordinance, code or regulation . . . .” (emphasis added)).
13
See, e.g., Swann v. Bd. of Zoning Adjustment, 459 So. 2d 896, 899 (Ala. Civ. App. 1984)
(“[S]ince the board of adjustment derives its powers from the state legislature, such powers cannot
be circumscribed, altered, or extended by the municipal governing body.”); Komondy v. Zoning
Bd. of Appeals, 16 A.3d 741, 747 (Conn. App. Ct. 2011) (“[Zoning boards of appeal] possess a
limited authority, as circumscribed by statute, the scope of which cannot be enlarged or limited by
either the board or the local zoning regulations.”); see also 83 Am. Jur. 2d Zoning and Planning
§ 634.
14
Cty. Council v. Green, 516 A.2d 480, 481 (Del. 1986) (per curiam).
15
See New Castle Cty. Council v. BC Dev. Assocs., 567 A.2d 1271, 1275 (Del. 1989) (“[I]t is
axiomatic that delegated power may be exercised only in accordance with the terms of its
delegation.” (citing Del. Const. art. II, § 25 and collecting cases)).
4
Aside from one, specific exception, § 327(a)(3) does not delegate to the
municipal legislative body any role in the granting of variances. In 2008, § 327(a)(3)
was amended to add, at the end of the section, that “the legislative body of any city
or incorporated town may, by ordinance, vest a designated town official or
department with authority to administratively grant a dimensional variance for
existing conditions that do not exceed 1 foot of the required dimension
restrictions.”16 Apart from this “1 foot” rule, § 327 does not delegate any authority
to a municipal legislative body to establish criteria for the granting of a variance.
The appellants contend that other sections of Chapter 3, Title 22, contained in
Subchapter I, give a municipal legislative body the authority to adopt rules and
regulations that make the criteria for granting a variance stricter than § 327(a)(3).
They specifically mention §§ 301, 302, and 304 as sources of such authority.
However, none of these provisions expressly, or in my view implicitly, delegate to
a municipal legislative body the authority to adopt a variance ordinance that conflicts
with § 327(a)(3).
First, Section 301 is a general grant of authority to municipalities with respect
to zoning regulation. It provides:
For the purpose of promoting health, safety, morals or the
general welfare of the community, the legislative body of
cities and incorporated towns may regulate and restrict the
height, number of stories and size of buildings and other
16
22 Del. C. § 327(a)(3); see also 76 Del. Laws ch. 371, § 1 (2008).
5
structures, percentage of lot that may be occupied, the size
of yards, courts and other open spaces, the density of
population, and the location and use of buildings,
structures and land for trade, industry, residence or other
purposes.17
Despite this broad grant of power, this section does not authorize a municipality to
alter the standards under which its board of adjustment may grant variance requests.
Second, § 302, which authorizes municipalities to create zoning districts,
expressly limits its grant of authority to “any or all of the purposes provided in
§ 301.”18 Therefore, because § 301 does not authorize a municipality to adopt a
variance ordinance, § 302 necessarily cannot do so.
Third, § 304, when read in context with the entire statutory scheme, does not
authorize a municipality to alter the standards for granting variances. Section 304
provides: “The legislative body of the municipality shall provide for the manner in
which the regulations and restrictions . . . of the districts shall be . . . enforced . . .
.”19 Granting (or not granting) a variance is not a means of enforcing restrictions.
Issuing a stop-work order, as was done here, is a manner of enforcing restrictions.
This section authorizes a municipality to provide the manner in which it will enforce
its zoning ordinances—such as how it will enforce physical dimensional
requirements. This section does not empower a municipality to make regulations
17
22 Del. C. § 301.
18
Id. § 302.
19
Id. § 304.
6
governing (or proscribing) the situations in which variances may (or may not) be
granted by a board of adjustment—that is a jurisdictional issue controlled by
§ 327(a)(3).20 Reading § 304 to broadly empower a municipal legislative body to
alter the standards for granting variances renders § 327(a)(3) superfluous. For
example, if under the guise of § 304, a municipal legislative body were to enact an
ordinance that prohibits the granting of variances in all circumstances, then
§ 327(a)(3) would be meaningless.21
The appellants also disclaim § 307 as a source of regulatory authority, but they
contend that § 307 recognizes that municipal legislative bodies can enact stricter
standards for variances than the statutory standard.22 Section 307 provides that when
a zoning regulation conflicts with a statute, a local ordinance, or another regulation,
the zoning regulation, statute, local ordinance, or other regulation imposing the more
restrictive or higher standard governs.23 But the statute applies to “regulations made
under the authority of this chapter.”24 Section 307 therefore presumes the underlying
validity of the regulation and simply determines its priority among conflicting
20
See Bd. of Adjustment v. Henderson Union Ass’n, 374 A.2d 3, 4 (Del. 1977) (per curiam) (“The
Board’s authority to grant a variance is derived entirely from its jurisdictional statute.”); id. at 5(“[T]hese statutory standards supply both a foundation for the Board’s power and a yardstick
against which its discretion may be measured.”).
21
See Sussex Cty. Dep’t of Elections v. Sussex Cty. Republican Comm., 58 A.3d 418, 422 (Del.
2013) (en banc) (“We presume that the General Assembly purposefully chose particular language
and therefore construe statutes to avoid surplusage if reasonably possible.”).
22
They contend that the Superior Court misapplied § 307.
23
See 22 Del. C. § 307.
24
Id.
7
provisions. It is not a source of authority. If there was a provision within Chapter 3
that gave municipalities the authority to enact stricter standards for variances, then I
think it could perhaps be said that under § 307, § 327(a)(3) establishes a minimum
standard for variances. But before applying § 307, one must first make the threshold
determination that the regulation in question is authorized by Chapter 3. In my view,
Lewes City Code § 197-92 is not authorized by Chapter 3. Because Chapter 3 does
not provide such authority, § 307 is irrelevant.
The appellants also contend that the city’s charter authorizes § 197-92. The
provisions relied upon, however, are general in nature, and none, in my view,
authorize the city to enact an ordinance that conflicts with § 327(a)(3). Moreover, it
is unclear how the charter could authorize such a law given that the charter itself
granted Lewes’s City Council the authority “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”25 and “[t]o make,
adopt and establish all such ordinance, regulations, rules and by-laws, not contrary
to the laws of this State.”26 Because no provision of Chapter 3 of Title 22 authorizes
a municipal legislative body to enact a variance ordinance, the city’s charter cannot
and does not provide such authority.
25
Lewes, Del., C. (Charter) § 29(23).
26
Id. § 29(41) (emphasis added).
8
The point I make has been recognized by courts in other jurisdictions where,
as here, municipal zoning power is derived from an enabling act passed by the state
legislature. In Swann v. Board of Zoning Adjustment, the Court of Civil Appeals of
Alabama struck down a municipal ordinance stripping the board of adjustment of its
statutory authority to grant a use variance.27 The court reasoned that, in the context
of the variance ordinance involved there, “since the board of adjustment derives its
powers directly from the state legislature, such powers cannot be circumscribed,
altered, or extended by the municipal governing body.”28 Bostic v. City of West
Columbia is another case where, on the same reasoning, a municipal ordinance that
stripped the board of adjustment of its authority to grant a use variance was struck
down. 29 While deciding the case on other grounds, the Appellate Court of
Connecticut in Komondy v. Zoning Board of Appeals also recognized that, in the
context of a variance ordinance, “zoning boards of appeal are creatures of statute”
and “possess a limited authority, as circumscribed by the statute, the scope of which
cannot be enlarged or limited by either the board or the local zoning regulations.”30
27
459 So. 2d at 899-900.
28
Id. at 899.
29
234 S.E.2d 224, 225-266 (S.C. 1977).
30
16 A.3d at 747; see also 83 Am. Jur. 2d Zoning and Planning § 634 (“Under most zoning
enabling statutes, the jurisdiction of a board of adjustment to grant variances is specifically
described and limited. The power cannot be exercise by the legislative authority unless the power
is expressly delegated to the legislature. If the power to grant variances is vested in the board of
adjustment by statute, it cannot be taken from the board by ordinance or delegated to another
agency or to a court.” (footnotes omitted)).
9
Lewes City Code § 197-92D(1) also purports to strip the Lewes board of adjustment
of its authority under § 327(a)(3) to grant a use variance. The reasoning of these
cases is consistent with my own.
Since 1934 when the General Assembly passed an earlier version of what is
now known as § 327, the statute has contained a state-wide standard that local boards
of adjustment are obligated to follow when deciding whether or not to grant a
variance. The conclusion I reach from § 327’s articulation of a state-wide standard
under which local boards of adjustment may grant variances, and the absence of any
section of Chapter 3 that authorizes a municipal legislative body to write a variance
regulation, is that § 197-92 is null and void.
I know that many municipalities, perhaps all, have their own variance
ordinances. But it appears to me that the State has established a state-wide standard
under which a municipal zoning regulation can be waived by the grant of a variance,
and municipal legislative bodies are not authorized to modify that standard.
I concur in the judgment of this Court, however, because I am satisfied that in
denying the variance request, the board of adjustment determined that a necessary
predicate to awarding a variance under § 327(a)(3) was not satisfied. In concluding
that “the Applicants have not demonstrated an exceptional practical difficulty
sufficient to warrant granting their request for variances,”31 the board stated that it
31
App. to Appellant’s Opening Br. at A116.
10
did not “find that the variances c[ould] be granted without substantial detriment to
the public good.”32 These findings, which I am satisfied are supported by substantial
evidence under our standard of review, are fatal to the appellee’s variance requests
under the exceptional-practical-difficulty test set forth in § 327(a)(3) because a
variance may be granted under that section only if it “may be granted without
substantial detriment to the public good.”33
32
Id. at A117.
33
22 Del. C. § 327(a)(3).
11