Nepa v. Board of Adjustment of the City of Lewes

SUPERIOR COURT
OF THE
STATE OF DELAWARE
E. SCOTT BRADLEY 1 The Circle, Suite 2
JUDGE GEORGETOWN, DE 19947
April 11, 2018
Mark F. Dunkle, Esquire Daniel F. McAllister, Esquire
Parkowski, Guerke & Swayze, P.A. Baird, Mandalas, Brockstedt, LLC
116 West Water Street 6 South State Street
P.O. Box 598 Dover, DE 19901
Dover, DE 19903
Michael J. Hoffman, Esquire
Tarabicos Grosso, LLP
One Corporate Commons
100 W. Commons Blvd.
New Castle, DE 19720
Re: Nepa v. The Board of Adjustment of the City of Lewes, et al.,
C.A. No: S17A-06-003 (ESB)
Dear Counsel:
This is my decision on the appeal filed by Ernest M. and Deborah A. Nepa
(“the Nepas”) of the denial of their request for three area variances for their historic
home in the City of Lewes by the Lewes Board of Adjustment. The Nepas’ home
encroaches 4.8 feet into their sideyard setback. The Nepas want to make certain
additions to their home, which cannot be done without area variances from their
sideyard setback and a requirement that their house and garage be at least ten feet
apart. So, the Nepas filed an application for the necessary three variances. Area
variances are governed by the Delaware Supreme Court’s Kwik-Check decision. In
Kwik-Check, the Supreme Court stated:
Such practical difficulty is present where the requested
dimensional change is minimal and the harm to the applicant if the
variance is denied will be greater than the probable effect on the
neighboring properties if the variance is granted. Therefore, to
determine if the difficulties presented by the owner are practical rather
than theoretical, and exceptional rather than routine, the Board should
take into consideration the nature of the zone in which the property lies,
the character of the immediate vicinity and the uses contained therein,
whether, if the restriction upon the applicant’s property were removed,
such removal would seriously affect such neighboring property and
uses; whether, if the restriction is not removed, the restriction would
create unnecessary hardship or exceptional practical difficulty for the
owner in relation to his efforts to make normal improvements in the
character of that use of the property which is a permitted use under the
use provisions of the ordinance. [citations omitted].1
The Delaware Supreme Court, in subsequent decisions, has referred to the
exceptional practical difficulty test as a weighing analysis, stating that when
considering the four factors, the Board of Adjustment should weigh “the potential
harm to the neighboring properties by granting the variance against the potential harm
to the property owner by denying it.”2
The Board denied the Nepas’ variance application, reasoning that (1) the
1
Board of Adjustment of New Castle County v. Kwik-Check Realty, Inc., 389 A.2d 1289,
1291 (Del. 1978). (“Kwik-Check”).
2
McLaughlin v. Board of Adjustment of New Castle County, 984 A.2d 1190, 1192-93
(Del. 2009); Accord Board of Adjustment of Sussex County v. Verleysen, 36 A.3d 326, 330 (Del.
2012). (“Verleysen”).
2
Nepas’ Property was not unique, (2) the fact that the Nepas’ Property was
nonconforming could not alone justify the variances, and (3) the benefit to the Nepas
in granting the variances did not substantially outweigh the detriment to the
neighboring properties. I reverse the Board’s decision, concluding that the Board (1)
required a finding of “uniqueness” that is not required by Kwik-Check, (2) required
a more stringent weighing test than does Kwik-Check, (3) permitted a lesser
“detriment” to neighboring properties than does Kwik-Check, and (4) eliminated the
nonconforming nature of a property as being a reason for granting a variance, which
Kwik-Check does not do.
BACKGROUND
The Nepas are the owners of the real property located at 116 Dewey Avenue,
Lewes, Delaware (the “Property”). The Property is located within the R-4(H),
Residential Medium-Density (Historic) Zoning District. When the Nepas purchased
the Property, it was improved by a two and one-half story dwelling, a portion of
which was only one and one-half stories (the “House”), with attached enclosed
porches and a detached garage. The Property was legally non-conforming under the
Lewes Zoning Code (the “Zoning Code”) due to existing encroachments, which
varied from 4.6 feet to 4.8 feet within the sideyard setback. The Nepas purchased the
Property to renovate it and then re-sell it. The Nepas obtained Historic Preservation
3
Committee approval and a building permit to renovate the House. The approved
renovations included rebuilding the House’s roof, siding, windows, and the porch, as
well as squaring the House so it would be level.
During the renovation, the Nepas discovered damage to the House as a result
of puff beetles and fire. In February 2016, a rain storm caused water damage,
resulting in the back roof collapsing, and causing the Nepas to use chains to hold the
House in place. Subsequently, the Nepas resumed construction on the House.
However, in addition to repairing the storm damage, the Nepas chose to enlarge the
House, which increased the Property’s dimensional non-conformities, and exceeded
the parameters of the building permit, without seeking permission or approval from
any authority.
The Nepas converted a 1.5 story portion of the House into two stories, and
constructed a new addition on the back of the House, totaling approximately 521
square feet. These additions extended the approximately 4.8 foot sideyard
encroachment rearward approximately 14.8 feet, and created a new encroachment of
approximately 4.3 feet in the required minimum ten-foot separation from the House’s
detached garage. On March 22, 2016, Robin Davis, Assistant Building Official,
conducted a site visit to review the status of construction and discovered that work
outside the scope of the permit was being performed. He immediately issued a Stop-
4
Work Order.
Eleven months after the Stop-Work Order was issued, on February 17, 2017,
the Nepas filed a request for three variances: (1) to verify and approve the
construction of new additions that expand an existing nonconforming structure; (2)
to verify and approve the construction of new additions that encroach approximately
4.8 feet into the required minimum eight-foot sideyard setback; and (3) to verify and
approve the construction of a new addition that encroaches approximately 4.3 feet
into the required minimum ten-foot separation from the nearest garage.
The Nepas’ principal reason for justifying their variance request was that the
521 square foot addition was necessary so that they could install a first floor master
bedroom to permit “aging in place.” The Board denied the Nepas’ variance
application, reasoning that (1) the Nepas’ Property was not unique, (2) the fact that
the Nepas’ Property was nonconforming could not alone justify the variances, and (3)
the benefit to the Nepas in granting the variances did not substantially outweigh the
detriment to their neighbors.
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
5
exists in the record to support the Board’s findings of fact and conclusions of law.3
Substantial evidence means such relevant evidence as a reasonable mind might accept
as adequate to support a conclusion.4 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. 5 “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.”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
I. Variance History
The General Assembly has granted municipalities and the three counties the
3
Janaman v. New Castle County Board of Adjustment, 364 A.2d 1241, 1242 (Del.Super.
1976).
4
Miller v. Board of Adjustment of Dewey Beach, 1994 WL 89022, *2 (Del. Super. Feb.
16, 1994).
5
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).
6
Mellow, 565 A.2d at 956.
7
22 Del. C. § 328(c).
6
authority to regulate zoning as well as variances to zoning requirements.8 As noted
in Board of Adjustment v. Verleysen (“Verleysen”),9 although the counties and
municipalities all have these powers, the extent of those powers differ. Of
significance here are a municipality’s powers, which are limited to those granted by
the legislature in Chapter 3 of Title 22, of the Delaware Code.10
There are two basic kinds of variances: use variances and area variances.
In the 1970s, the New Castle County Board of Adjustment was empowered to
grant variances
... where owing to special conditions or exceptional situations, a literal
interpretation of the provisions of any zoning ordinance, 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
8
22 Del. C. §§ 301, 321 and 327; 9 Del. C. § 2601 and § 1311-1313; 9 Del. C. § 4901
and §§4913-17; 9 Del. C. § 6902 and §§ 6913-6917.
9
36 A.3d 326, 329 (Del. 2012).
10
22 Del. C. § 321, which provides:
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.
7
of any zoning ordinance, code, regulation or map.11
The Supreme Court, in Board of Adjustment of New Castle County v. Kwik-
Check Realty, Inc. (“Kwik-Check”),12 ruled that the nature of the variance determined
the standard to be applied in deciding whether to grant the requested variance. If the
requested variance is a use variance, then the applicable standard is the more stringent
one of unnecessary hardship. If the requested variance is an area variance, then the
applicable standard is the less onerous one of exceptional practical difficulties. The
standards differ because “a use variance changes the character of the zoned district
by permitting an otherwise prohibited use, whereas an area variance concerns only
the practical difficulty in using the particular property for a permitted use.”13
The elements for the unnecessary hardship standard are as follows:
1) the land cannot yield a reasonable return if used only for the
permitted use;
2) the need for the variance is due to unique circumstances and not
general conditions in the neighborhood which reflect
11
The decision in Board of Adjustment of New Castle County v. Kwik-Check Realty, Inc.,
389 A.2d 1289, 1290-91 (Del. 1978) sets forth the statute which, at that time, was located at 9
Del. C. § 1352(a)(3). The current statute is located at 9 Del. C. § 1313(a)(3), and it remains
unchanged.
12
389 A.2d 1289 (Del. 1978).
13
Id. at 1291 (citations omitted).
8
unreasonableness of the zoning ordinance itself; and
3) the use sought will not alter the essential character of the locality.14
The elements of the exceptional practical difficulties standard are as follows:
1) the nature of the zone in which the property is located,
2) the character of the immediate vicinity,
3) the uses in that vicinity,
4) whether, if the restrictions were removed, would there be a
serious affect on neighborhood property and uses, and
5) if the restriction(s) were not removed, would there be a hardship to the
owner to make normal improvements allowed for the use permitted in
the zoning regulations for that property.15
Before 1985, the authority given municipalities to grant variances provided
that a Board of Adjustment may:
Authorize upon appeal in specific cases such variance from the terms
of the ordinance as will not be contrary to the public interest, where
owing to special conditions a literal enforcement of the provisions of the
ordinance will result in unnecessary hardship, and so that the spirit of
the ordinance shall be observed and substantial justice done. (Emphasis
14
Baker v. Connell, 488 A.2d 1303, 1307 (Del. 1985); Rehoboth Art League, Inc. v.
Board of Adjustment of the Town of Henlopen Acres, 2009 WL 3069672, * 4 (Del. Super. Aug.
20, 2009), aff’d, 991 A.2d 1163 (Del. 2010); Johnson v. McWilliams, 1997 WL 817868, *2 (Del.
Super. Nov. 19, 1997).
15
Kwik-Check, 389 A.2d at 1291.
9
added.)16
Then, in 1985, 22 Del. C.§ 327 was amended to provide that the Board of Adjustment
of a municipality may:
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 special conditions or exceptional situations, a literal
interpretation of the provisions 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.17
Thus, the General Assembly changed the statute granting power to municipal
Boards of Adjustments to render it identical to the statute examined in Kwik-Check.
Where statutes are similar, the case law interpreting one of the statutes applies to the
other.18 Consequently, a municipality’s Board of Adjustment must apply the standard
set forth in Kwik-Check when considering an area variance.19
16
22 Del. C. 1953, §327(a)(3).
17
22 Del. C. § 327(a)(3); 65 Del. Laws, Ch. 61, §1 (1985).
18
Cooch’s Bridge Civic Ass’n v. Pencader Corp., 254 A.2d 608, 609 n. 4 (Del. 1969);
Williams v. Board of Adjustment of City of Newark, 1993 WL 331060, *1 n. 1 (Del. Super. July
9, 1993); Coastal Resorts Properties, Inc. v. Board of Adjustment of City of Rehoboth Beach, 558
A.2d 1105, 1107 n. 2 (Del. Super. 1988).
19
Vondrasek v. Board of Adjustment of the City of Wilmington, 2017 WL 1735402, *3
(Del. Super. May 1, 2017).
10
II. The Lewes Variance Ordinance
I now turn to the Lewes Zoning Code. In 2011, the City of Lewes amended its
Zoning Code. The provision regarding variances, §197-92, states:
A. Definition: relief from the strict application of the provisions of
this chapter when, owing to special conditions or exceptional
situations, a literal interpretation of this chapter will result in
exceptional practical difficulties to the property owner.
B. Required findings. Pursuant to 22 Del. C. § 327(a)(3), the Board
of Adjustment shall determine whether each variance application
meets 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 chapter.
C. Additional considerations. The Board of Adjustment shall 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
11
properties and uses.
(4) Whether the restriction would tend to create a hardship on the owner
in relation to normal improvements.
D. Additional Standards.
(1) Use variances not authorized. These provisions governing
variances shall not be construed to permit the Board of
Adjustment, under the guise of a variance, to authorize a use of
land not otherwise permitted in this chapter.
(2) Nonconforming situations not grounds for variance.
Nonconforming lots, structures, uses or signs shall not be
considered grounds for granting variances.
There are several matters to note. First, Subsection C largely codifies the Kwik-
Check factors. Second, parts of Subsections B and D impose additional requirements
on an applicant seeking an area variance in Lewes which render the test for granting
an area variance more burdensome than 22 Del. C. § 327(a)(3) allows.
Section197-92 has four factors that are different than the Kwik-Check factors
and analysis. Specifically, §197-92 (1) requires a finding of “uniqueness” that is not
required by Kwik-Check, (2) requires a more stringent weighing test than does Kwik-
Check, (3) permits a lesser “detriment” to neighboring properties than does Kwik-
Check, and (4) eliminates the nonconforming nature of a property as being a reason
for granting a variance, which Kwik-Check does not do.
12
III. Kwik-Check
In Kwik-Check, the Delaware Supreme Court said that under the exceptional
practical difficultly test “[a] practical difficulty is present where the requested
dimensional change is minimal and the harm to the applicant if the variance is denied
will be greater than the probable effect on neighboring properties if the variance is
granted.”20 The Supreme Court went on to list four factors that must be considered
when applying this test.
1. The nature of the zone in which the property lies;
2. The character of the immediate vicinity and the uses contained therein;
3. Whether, if the restriction upon the applicant’s property were removed, such
removal would seriously affect such neighboring property and uses; and
4. Whether, if the restriction is not removed, the restriction would create
hardship for the owner in relation to his efforts to make normal improvements in the
character of that use of the property which is permitted use under the use provisions
of the ordinance.21
As I noted before, the Delaware Supreme Court has referred to the exceptional
practical difficulty test as a weighing analysis, stating that when considering the four
20
389 A.2d at 1291.
21
Id.
13
factors, the Board of Adjustment should weigh the potential harm to the neighboring
properties by granting the variance against “the potential harm to the property owner
by denying it.”22
Put another way, if the Board grants a variance, then it must have considered
the applicable factors and found that the benefit to the applicant was greater than the
harm to the neighboring properties.
Uniqueness
Section 197-92 (B)(1) states that the Board must determine whether “[t]he
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.” This “uniqueness”
requirement seems to be drawn from the second prong of the “unnecessary hardship”
test, which is applicable to “use variances” and states “the need for the variance is due
to unique circumstances and not general conditions in the neighborhood which reflect
the unreasonableness of the zoning itself.” Kwik-Check does not have this
“uniqueness” requirement for an area variance.
The Board noted in its written decision that the Nepas’ Property “has a standard
lot, on a standard street, with a standard situation for this community; namely the
22
McLaughlin v. Board of Adjustment of New Castle County, 984 A.2d at 1192-93.
Accord Verleysen, 36 A.3d at 330.
14
renovation of a nonconforming historic structure.” Requiring a property to be unique
in order to get a variance imposes a burden not found in Kwik-Check for no apparent
reason and would alone seemingly defeat the Nepas’ request for the three variances.
The Weighing Analysis
Section197-92 (B)(3) states that the Board must determine that “[t]he benefits
from granting the variance would substantially outweigh any detriment.” This is a
more stringent standard than what is required by Kwik-Check. In Kwik-Check, the
Delaware Supreme Court said that under the exceptional practical difficulty test “[a]
practical difficulty is present where the required dimensional change is minimal and
the harm to the applicant if the variance is denied will be greater than the probable
effect on neighboring properties if the variance is granted.”23 This seems to be a
simple preponderance standard. Section197-92(B)(3) requires the benefit of granting
the variance to the applicant to substantially outweigh any detriment to the applicant’s
neighbors, a much more stringent standard than required by Kwik-Check.
Permitting a Lesser Detriment
Section 197-92 (C)(3) requires the Board to consider “[w]hether the
restrictions, if lifted, would affect neighboring properties and uses.” This is a lesser
“detriment” than required by Kwik-Check. In Kwik-Check, the Delaware Supreme
23
389 A.2d at 1291.
15
Court stated that one of the factors was “whether, if the restriction upon the
applicant’s property were removed, such removal would seriously affect such
neighboring property and uses.24 ” Section197-92 (C)(3) uses “affect” where Kwik-
Check uses “seriously affect.” Thus, §197-92 (C)(3) requires the removal of the
zoning restriction to only “affect” neighboring properties while Kwik-Check requires
the removal of the zoning restriction to “seriously affect” neighboring properties.
Thus, the effect of this is to make it more difficult to get a variance than Kwik-Check
requires.
Nonconforming Lots
Section 197-92(D)(2) provides that nonconforming lots, structures, uses, or
signs shall not be considered grounds for granting a variance. Kwik-Check does not
exclude nonconforming structures from consideration. The Nepas’ House, through
no fault of their own, is a nonconforming structure because it was, in all likelihood,
built long before Lewes ever had a zoning code which required sideyard setbacks.
Having a nonconforming structure often gives an applicant a good reason for
obtaining a variance. The Nepas’ House is nonconforming because it was built in the
sideyard setback, which setback did not exist when the Nepas’ House was built. This
is, in all likelihood, the problem that prevents the Nepas from expanding their House.
24
Id. (emphasis added).
16
The Nepas’ lot is a normal size. The Nepas’ House is a normal size. The Nepas’
proposed expansion to their House is modest. But for the fact that the Board is
precluded from considering the nonconforming nature of the Nepas’ House, the
Nepas could probably make a good argument for a variance. The Board said that it
“struggled to identify other bases of support for the variance” other than the fact that
the Nepas’ House is nonconforming. The Nepas’ did struggle and they struggled
largely because §197-92(D)(2) prohibits the Board from considering the one factor
– nonconformity – that was their best argument for getting a variance. Obviously,
this makes it difficult to expand their house and maintain the same look and
appearance. Kwik-Check does not eliminate nonconformity as a ground, but §197-92
(D)(2) does.
All of these issues flow into the Board’s decision. The Board found that (1)
the Nepas’ Property was not unique, (2) the benefit to the Nepas in granting the
variances did not substantially outweigh the detriment to the neighboring properties,
and (3) the fact that the Nepas’ House is nonconforming alone is not sufficient to
support a request for a variance. Arguably, the Board of Adjustment gave this last
matter some consideration even though §197-92 prohibits it.
IV. The Board’s Decision
I have excerpted, underlined and footnoted those portions of the Board’s
17
decision showing where the Board applied §197-92 in violation of Kwik-Check.
The Board concludes that the Applicants have not demonstrated
an exceptional practical difficulty sufficient to warrant granting their
request for variances to verify and approve the construction of additions
as proposed during the March 21, 2017 and April 18, 2017 hearings on
this matter and as identified in the Applicants’ submission and exhibits.
The Board examined the nature of the zone in which the property
lies – Residential Medium-Density (Historic) – including a review of
similarly situated historic properties along Dewey Avenue and
concludes that the Applicants’ request is not unique and would represent
a deviation from the spirt [sic] and intent of the Zoning Code.25
Although the Property includes a nonconforming structure, per Section
197-92 (D)(2) of the Zoning Code, that fact alone is not sufficient to
support a request for variances.26 The Board struggled to identify other
bases of support for the variances.
The Property has a standard lot, on a standard street, with a
standard situation for this community; namely the renovation of a
nonconforming historic structure.27
Regarding the exceptional practical difficulty standard, the Board
does not find that the Property and circumstances necessitating the
variances are unique.28 Nor does the Board find that the variances can
be granted without substantial detriment to the public good, and thus in
weighing the impact, the Board cannot agree that the benefit in granting
the variances substantially outweighs the detriment.29 Indeed, the
variances sought are significant, representing considerable
25
Uniqueness.
26
Nonconforming structure.
27
Nonconforming structure.
28
Uniqueness.
29
Heightened weighing standard.
18
encroachments and expansions. Lastly, the Board finds that there is not
sufficient evidence supporting a deviation from the requirements of the
Zoning Code, which requirements have not been challenged by the
Applicants.
There is little doubt that this Board’s decision to deny the
requested variances leaves the Applicants in a difficult position
concerning returning the structure to its compliant status. This position,
however, is entirely self-created. Had the Applicants applied for the
subject variances before construction, the record would contain little
evidence of a sufficient hardship compared to normal improvements,
aside from a Code-based hurdle to pursuing a personal preference as to
layout and features in the renovated dwelling. The Board does not find
evidence within the record supporting a contention that the Applicants
are presented with a hardship sufficient to prevent them from making
normal improvements in the character of the use permitted under the
Zoning Code and Comprehensive Plan.
Given the above, the Board concludes that the Applicants have
failed to satisfy the elements required under the exceptional practical
difficulty standard and the requirements set forth in the City of Lewes
Code for a variance.
In summary, the 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, which Kwik-Check does not do.
The last excerpted portion of the Board’s decision, where the Board states “that
the Applicants have failed to satisfy the elements required under the exceptional
19
practical difficulty standard and the requirements set forth in the City of Lewes Code
for a variance,” make it clear that the Board imposed conditions on the Nepas’
variance application that are not part of the Kwik-Check requirements.
The Board argues that § 197-92 does not impose a more stringent standard than
Kwik-Check provides. Instead, the Board argues that additional requirements are
allowed under the Kwik-Check standard. I have concluded that it is clear that the
Board imposed a more burdensome standard than the Kwik-Check standard. It treats
an area variance more like a use variance.
The more stringent standard is not allowed unless there is statutory authority
granting such, as the municipality must conform with standards established by the
General Assembly.30 The Board argues that such authority appears in 22 Del. C. §
307. This statute provides:
Conflict with other laws.
Wherever the regulations made under authority of this chapter
require a greater width or size of yards or courts, or a lower height of
building or less number of stories, or a greater percentage of lot to be
left unoccupied, or impose other higher standards than are required in
any other statute or local ordinance or regulation, the regulations made
30
Verleysen, 36 A.3d at 330-31. See New Castle County Council v. BC Development
Associates, 567 A.2d 1271, 1275-76 (Del. 1989) (delegated power must be exercised in
accordance with the delegation); County Council of Sussex County v. Green, 516 A.2d 480, 481
(Del. 1986) (with regard to rezoning issues, County Council must conform with standards
established by the General Assembly) .
20
under authority of this chapter shall govern. Whenever any other statute,
local ordinance or regulation requires a greater width or size of yards or
courts, or a lower height of building or a less number of stories, or a
greater percentage of lot to be left unoccupied, or imposed other higher
standards than are required by the regulations made under authority of
this state, such statute, local ordinance or regulation shall govern.
(Emphasis added.)
This statute requires that the more stringent law pertaining to a certain parcel’s
use be applied. For example, a more lenient municipal law cannot preempt the State’s
Wetland’s Act.31 Two Superior Court decisions have interpreted this provision to
mean that a municipality may develop its own standard for granting an area variance
and if that standard is more stringent than Kwik-Check, then the municipalities’
regulations govern: Hellings v. City of Lewes Board of Adjustment32 and Dale v. Town
of Elsmere.33
The problem with these decisions, however, is that they did not examine the
limiting language of the statute qualifying that the regulations had to be made under
authority of Chapter 3 of Title 22, of the Delaware Code. As examined above, a
municipal zoning board is authorized only to impose a standard for granting an area
31
Route 26 Land Development Ass’n v. State, Natural Resources and Environmental
Control, 1989 WL 5168, *4 (Del. Super. Jan. 12, 1989).
32
Hellings v. City of Lewes Board 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).
33
Dale v. Town of Elsmere, 1988 WL 40018 (Del. Super. Apr. 20, 1988).
21
variance which contains the Kwik-Check factors. While case law supports the
conclusion that the General Assembly “has expressed its intention that regulation and
planning of the land use in incorporated municipalities be left as far as is possible to
local government,”34 the municipality’s participation in zoning matters must conform
with standards established by the General Assembly.35 Thus, the Code provision at
issue here, which imposes a more stringent standard, is ultra vires and cannot be
applied.
Finally, only the offending portions of § 197-92 need be stricken pursuant to
the severability provision of the Code.36 Since Subsection C largely codifies the
Kwik-Check factors, that portion of the Code may stand to the extent it complies with
Kwik-Check.
34
Scarborough v. Mayor and Council of the Town of Cheswold, 303 A.2d 701, 707 (Del.
Ch. 1973). Accord Richardson v. Board of Adjustment of New Castle County, 1989 WL 112527
(Del. Super. Sept. 25, 1989), aff’d, 577 A.2d 751 (Del. 1990).
35
See County Council of Sussex County v. Green, 516 A.2d at 481.
36
In § 197-17, it is provided:
Severability.
A. The Mayor and City Council hereby declares that the sections, paragraphs,
sentences, clauses and phrases of this chapter can be separated from one another.
B. Should a court decide that any section or provision of this chapter is
unconstitutional or invalid, such decision shall not affect the validity of this
chapter as a whole or any part other that [sic] the part judged unconstitutional or
invalid.
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CONCLUSION
The City of Lewes Board of Adjustment’s decision denying the application for
three area variances by Ernest M. and Debra A. Nepa is REVERSED.
IT IS SO ORDERED.
Very truly yours,
/s/ E. Scott Bradley
E. Scott Bradley
ESB/sal
oc: Prothonotary
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