Snyder

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
ELIZABETH SNYDER and SAVE, )
OUR DELAWARE BYWAYS, INC., )
)
Plaintiffs in Error, )
)
) C.A. No. N14A-05-003 FWW
v. )
)
NEW CASTLE COUNTY, NEW )
CASTLE COUNTY BOARD OF )
ADJUSTMENT, NEW CASTLE )
COUNTY DEPARTMENT OF LAND )
USE, and MARY K. CARPENTER )
TRUST, )
)
Defendants in Error. )
Submitted: May 21, 2015
Decided: August 24, 2015
Upon Plaintiffs in Errors’ Petition for Writ of Certiorari
AFFIRMED.
OPINION AND ORDER
Christopher S. Koyste, Esquire, Law Office of Christopher S. Koyste, LLC, 709
Brandywine Blvd., Wilmington, Delaware, 19809, Attorney for Petitioners.
Richard A. Forsten, Esquire and Wendie C. Stabler, Esquire, Saul Ewing, LLP,
222 Delaware Ave., Suite 1200, Wilmington, Delaware 19801, Attorneys for
Defendant, Mary K. Carpenter Trust.
Brian J. Merritt, Esquire and Julie M. Sebring, Esquire, 87 Reads Way, New
Castle, Delaware 19720, Attorneys for Defendants New Castle County Dept. of
Land Use, and New Castle County Bd. of Adjustment.
WHARTON, J.
I. INTRODUCTION
This action concerns a proposed residential land development project by the
Mary K. Carpenter Trust (“Applicant”) to subdivide a parcel of land located at 206
Montchanin Road, Wilmington, Delaware 19710 (“Property”). The proposed plan
would allow for a cluster of homes for owners 55-and-older to be developed on a
portion of the Property. The proposed plan required the approval of New Castle
County Council (“County Council”) to rezone the property and the New Castle
County Board of Adjustment (“Board”) for five area variances. County Council
voted to rezone the property from Suburban Estate (“SE”) zoning to Suburban
(“S”) zoning. Applicant filed an “Application for Public Hearing” (“Application”)
with the Department of Land Use (“Department”) for a hearing before the New
Castle County Board of Adjustment (“Board”) regarding five area variance
requests to depart from the requirements of the Unified Development Code
(“UDC”).
Elizabeth Snyder and Save Our Delaware Byways, Inc. (“Petitioners”) filed
an Amended Petition for Writ of Certiorari on May 12, 2014 requesting judicial
review of the Board’s April 21, 2014 decision regarding the Application.
Petitioners challenge the Board’s jurisdiction to hear the Application and the
Board’s decision to grant five area variances with respect to the Property. An
2
Order allowing the writ of certiorari was granted on May 13, 2014. On February
24, 2015, the case was reassigned to this Judge.
In considering a writ of certiorari, the Court must determine whether the
Board exceeded its jurisdiction in approving the Application and whether the
Board’s decision to grant the variances for the Property was illegal or contrary to
law. Upon consideration of the pleadings before the Court and the record below,
the Court finds that the Board did not exceed its jurisdiction and that the Board’s
decision was neither illegal nor contrary to law. Accordingly, the Board’s decision
is AFFIRMED.
II. FACTUAL AND PROCEDURAL CONTEXT
On December 30, 2013, the Department received Applicant’s Application
requesting a public hearing before the Board regarding the Property. 1 Applicant
requested that the Board grant five area variances needed to effectuate the overall
development plan for the Property which was to rezone approximately 12 of the 20
acres to provide for a 55-and-older “open space/cluster community to consist of
twelve (12) custom, ‘cape-style’ homes on 1/3-1/2 acre lots.”2 Specifically,
Applicant requested that the Board approve the following variances:
1. to provide 0 bufferyard opacity along a portion of the
southerly lot line shared with tax parcel number 07-
027.00-056 (proposed minimum buffer width of 5-
1
See Application to Board of Adjustment.
2
Id. at 3.
3
feet) 150 feet from SR 100 in an easterly direction
along the share [sic] lot line with tax parcel number
07-027.00-056 (0.2 minimum bufferyard opacity);
2. to allow protected resources (mature forests) in a
conservation easement to be located on Lot 13
(protected resources shall not be located on an
individual lot pursuant to Section 40.20.225.B.1);
3. to allow protected resources (mature forest and
riparian buffer) in a conservation easement to be
located on Lot 14 (protected resources shall not be
located on an individual lot pursuant to Section
40.20.225.B.1);
4. to provide zero (0) percent open space for Lot 13 (5
percent minimum open space ratio for SE-zoned land
and open space shall be contained on a separate
parcel) [sic] Protected resources will be provided on
Lot 13 and will be protected by a conservation
easement; and
5. to provide zero (0) percent open space for Lot 14 (5
percent minimum open space ratio for SE-zoned land
and open space shall be contained on a separate
parcel) [sic] Protected resources will be provided on
Lot 14 and will be protected by a conservation
easement.3
The Department notified Applicant that the Application was scheduled to be heard
at the Board’s February 13, 2014 meeting.4 On February 7, 2014, Petitioners
submitted various materials in opposition to the Application for the Board’s review
3
Id. at 2.
4
See Letter from the Department of Land Use dated January 21, 2013 [sic].
4
in advance of the hearing.5 The meeting was rescheduled for March 13, 2014.
On February 24, 2014, Petitioners submitted additional documents for the
Board’s review prior to the March 13, 2014 hearing, including a letter asserting
that the Application cannot proceed because of various defects in the Application
(“February 24, 2014 Letter”).6 Specifically, Petitioners asserted that “the
Application has not been properly noticed for a New Castle County Board of
Adjustment (“Board”) hearing and the Applicant has not submitted an Exploratory
Plan in accordance with County Code as required for each Board hearing due to
the lack of Ms. Snyder’s signature on Applicant’s submissions.” 7 The February
24, 2014 Letter, addressed to the “Members of the Board of Adjustment” and the
“New Castle County Department of Land Use,” begins with the salutation “Dear
Members of the Board of Adjustment” and concludes with the following request:
I ask that you issue a written determination no later than
Monday, March 3, 2014 as to whether: a) the Application
must be removed from the March 23, [sic] 2014 agenda
because the County has made a determination that the
Board cannot hear the variance application for the
reasons noted; or b) the Application can proceed forward
as the County has issued a determination as to each of the
above argued inconsistencies with UDC requirements,
with said determination outlining the County’s reason for
reaching its conclusion in relation to each of the noted
UDC sections. All interested parties can then determine
5
See Letter to Members of the Board of Adjustment of New Castle County dated February 7,
2014 and accompanying Exhibits.
6
See February 24, 2014 Letter to Members of the Board of Adjustment and the New Castle
County Department of Land Use and accompanying Exhibits.
7
Id.
5
with due advance notice how to best protect their rights.
If the Department of Land Use does not remove the
Application from the March 13, 2014 agenda, Ms.
Snyder preserves her right to raise the above referenced
objections at any hearing held or alternatively appeal
such determination in accordance with Section
1313(a)(1) of Title 9 of the Delaware Code: ‘The Board
of Adjustment is empowered to hear on and decide:
[a]ppeals in zoning matters when error is alleged in any
order, requirement, decision or determination made by an
administrative officer or agency…’ and also in
accordance with Section 30.110 of the Unified
Development Code.8
Prior to the March 13, 2014 hearing, a Planner from the Department issued a
“Recommendation Report to the Board of Adjustment” in which the Planner
detailed the reasons that the Department recommended that the Board grant the
requested variances (“Recommendation Report”). 9 The Recommendation Report
indicates that the Department is in support of the variances for several reasons
including, inter alia, that the overall plan allows for a “superior design.” The
Recommendation Report did not require that Ms. Snyder or any other neighbor
sign the plan or Application. 10
A. The March 13, 2014 Board Hearing
The Board held a hearing on the Application on March 13, 2013. As an
initial matter, the Board considered Petitioners’ preliminary procedural issue
8
Id.
9
See Recommendation Report to the Board of Adjustment.
10
Id.
6
outlined in the February 24, 2014 Letter. Petitioners argued that the Board lacked
jurisdiction to hear the Application because the Department failed to provide a
written response to the February 24, 2013 Letter.11 In support of their contention,
Petitioners relied upon a May 23, 2013 “Department of Land Use Revised
Exploratory Plan Report” regarding a project named “Independence Towns”
(“Comment Letter”). 12 Petitioners asserted that the Comment Letter involved an
analogous factual situation in which the Department determined that an entrance
right of way was so close to the neighboring property that it would affect the
neighboring property rights such that the application could not proceed without the
11
See Tr. at 8-9:
[Counsel for Petitioners]: …[Petitioner] requested Land Use to
give a written response to this because we believe that the proper
procedures first Land Use should not have even put it before you
all without following your procedures that you voted on…If [Land
Use] would have ruled there was not jurisdiction ah [sic] that there
was jurisdiction of the Board we would have then appealed that
decision to you the Board of Adjustment. But [Land Use] didn’t
do that…
12
See February 24, 2014 Letter to Members of the Board of Adjustment and the New Castle
County Department of Land Use, at Ex. 1; See also Tr. at 16:
[The Board]: …[T]he sole authority as I understand that you are
citing is a May 23, 2013 Department of Land Use revised
exploratory plan report in a different project in which the
determination was made that the submittal has been found
unacceptable. And one of the paragraphs mentions that because
the street yard setback would create more more [sic] restricted
building envelope the owners of the and I’m quoting ‘adjoining
parcels will need to sign future SDL1 applications and the record
plan’. Is that correct? Is that the sole authority you are citing?
[Counsel for Petitioners]: Yes.
7
affected neighbor’s signature on the application. 13 Petitioners contended that the
Comment Letter was binding precedent on the Department. 14
Additionally, Petitioners argued that the Board lacked jurisdiction to hear the
Application because “the County reg’s [sic] that need to be filed, followed before
13
See Tr. at 9-11:
[Counsel for Petitioners]:…[W]hat [the Department] determined is
that a property in which a proposed right of way it would impose a
street yard building setback on an adjacent property which is
exactly what we have here. [The Department] require[s] since the
street yard setback would create a more restricted building
envelope the owners of the adjoining parcels will need to sign
further SLD applications and [the applicant’s] record plan…I
believe this [application] was not allowed to proceed forward…
[The Board]: Does it say that in [the Comment Letter]?
[Counsel for Petitioners]: I believe if you look through the entirety
of it…The revised exploratory submittal has been found
unacceptable…That meant [the application] could not proceed
forward. Just like the Board of Adjustment application cannot.
[The Board]: Well so I gather your [sic] tying this one statement in
paragraph number one about needing to sign a future SLD1 to that
summary statement under status of review and attributing the
finding and status of review to that one factor. Is that correct?
[Counsel for Petitioners]: Yes.
[The Board]: Is there something in here that says that?
[Counsel for Petitioners]:…[W]e have a holding. It’s not
structured as a legal opinion. But the basic holding is the status of
review. It’s been found unacceptable. It means [the application]
can’t proceed forward. This case here exact same situation[. I]t’s
an entrance right of way. It’s so close to this neighboring property.
It’s going to affect [Ms. Snyder’s] property in the future.
14
See Id. at 17: (“[The Board]:…Are you saying that past precedent, past actions [by the
Department] which may have set precedent is a guide for all future actions? …[Counsel for
Petitioners]: It certainly would be when [the Department is] making a determination.”).
8
anything gets to [the Board] haven’t been followed. [The Application] shouldn’t
have been noticed [for a public hearing].” 15 Petitioners also asserted that the
Department of Land Use’s lack of written response to the February 24, 2014 Letter
deprived Petitioners of the opportunity to appeal a final determination to the
Board. 16 Petitioners ultimately requested that the Board determine that it lacked
jurisdiction to hear the Application until the Department issued a written decision
in response to the arguments outlined in the February 24, 2014 Letter.17
Applicant argued that the Board’s rules and the UDC do not deem the
Application deficient without Ms. Snyder’s signature because the Comment Letter
lacks precedential value based upon the factual circumstances of the Application. 18
Applicant also argued that Petitioners would face no prejudice if the Board ruled
on the jurisdictional issue at the hearing and asserted that the Board should proceed
15
Id. at 12.
16
See Id.:
[The Board]: So if Land Use were to issue a written determination
that at that, the southerly neighbor’s signatures [sic] not require
[sic] on an SDL1 in order for the matter to proceed before the
Board of Adjustment that would remove the procedural irregularity
for now and maybe leave you with a future issue?
[Counsel for Petitioners]: It would have left us with an immediate
issue. That I would have filed an appeal to the Board of
Adjustment and I would have argued they are not even following
their own procedures.
17
See Id. at 15: (“[Counsel for Petitioners]:…I ask [the Board] to vote that [the Board] lack[s]
jurisdiction procedurally because the County has not made a written determination in order to put
[the Application] properly before [the Board]…”).
18
See Id. at 17-18 (“[Counsel for Applicant]: [The Comment Letter] was a completely different
situation and, therefore, even if [the Comment Letter] did have precedential value it would not be
binding here.”).
9
on the substance of the Application.19 Applicant asserted that Petitioners had
preserved the right to appeal the Board’s jurisdiction by raising the argument at the
hearing.20
After hearing the arguments presented, the Board recessed for an executive
session to “get some legal advice first.”21 Upon reconvening, the Chairman of the
Board announced
…We have in effect a motion for a continuance to permit
the procedures suggested by an objecting member of the
public who is represented by counsel or members I guess.
And we have a response and some discussion on that.
We have a response to that an argument made by the
applicant and that’s all on the record. And I don’t feel a
need to review it in any detail. I as Chair have the
responsibility of determining in many instances when it’s
necessary to take testimony and when it isn’t. And in
this instance I feel there’s been enough argument.
There’s not a need for any additional record on this issue
so we won’t be taking any testimony with regard to the
procedural issue ahead of us… 22
The Board unanimously voted that it had jurisdiction to hear the Application. 23
19
Id. at 18.
20
Id.
21
Id. at 19.
22
Id.
23
See Id. at 19-20:
[Chairman of the Board]: On the question of whether the Board
can hear this application this evening the argument I believe boils
down [sic] whether or not we have jurisdiction on the basis of the
prior Land Use prouncement [sic] that we were discussing earlier.
And the record contains the arguments of both of the interested
parties. I believe it is sufficient for us in this instance to determine
as probably a simple matter of procedure which is the prerogative
10
Following the Board’s jurisdictional determination, the Board heard
testimony regarding the merits of the Application. The record indicates that the
Board heard argument from the parties, gathered evidence, asked questions and
heard comments from several members of the public. At the conclusion of the
hearing, the Board voted to conditionally approve the five proposed variances. 24
B. The Board’s April 21, 2014 Written Decision
In the Board’s written decision, filed April 21, 2014, the Board detailed the
procedural argument raised by Petitioners and concluded that
[Counsel for Petitioners’] allegations of violation of
statute or rules are not supported by facts before the
Board. [Counsel for Petitioners] supported his argument
with a sole purported authority: a finding in a Department
of Land Use comment letter that discussed the impact of
a new road on an adjacent property to the project.25
The Board found that
of the Chair that the Board will proceed and has jurisdiction…so
I’m going to make a motion, if there is a second we’ll…take a vote
and depending on the outcome of that vote we’ll proceed. So I’m
going to move that the Board assert jurisdiction over this matter
and proceed this evening.
[Board Member]: Second…
[Chairman of the Board]: …All in favor?
…(Everybody said aye)…
[Chairman of the Board]: Opposed? None. Okay lets [sic]
proceed.”
24
Id. at 130.
25
Notice of Decision, at 2.
11
[the Comment Letter] involved a different project,
different parcels, and different factual circumstances.
This application contains no such comment letter from
Land Use. Land Use is required by the UDC to review
this project and, in doing so, did not issue a deficiency
letter stating that an adjacent landowner’s signature was
required. The Board is satisfied that the requirements of
[the] UDC with respect to the necessity for Mrs. Snyder’s
signature on the documents, and the notice of this
application, have been met… 26
Based upon that explanation, the Board found that it “is satisfied that the
requirements of [the] UDC with respect to the necessity for Mrs. Snyder’s
signature on the documents, and notice of this application, have been met…” 27
Next, the Board discussed the five requested variances and detailed the
testimony regarding the variances, including the comments the Board received
from the public. The Board voted to approve conditionally the five variances and
concluded that ‘“[a] literal interpretation of the zoning law results in exceptional
practical difficulties of ownership.’” 28 The Board relied upon provisions in the
UDC and Bd. of Adjustment of New Castle Cnty. v. Kwik-Check, Inc., 389 A.2d
1289 (Del. 1978).
The Board’s decision, provides, inter alia, that
…[t]he subject property…is located on the southern end
of an extensive SE (Suburban Estate) zone that projects
26
Id.
27
Id.
28
Id. at 7 (quoting Kwik-Check Realty, Inc. v. Board of Adjustment of New Castle County, 369
A.2d 694, 698 (Del. Super. 1977)).
12
northward to the Pennsylvania state line, which includes
large lot residential properties, the museum properties
and land for both Hagley and Winterthur museums,
protected public open space of the Brandywine Creek
State Park, and other large conservation areas owned by
Woodlawn Trustees (1100 acres of which was designated
in early 2013 as a National Monument within the
National Park System). Positioned at the southern end of
Route 100, the subject parcel is in a transitional area and
has significant links to both the developed area near
Route 141 (including the Greenville area) and the wide
open landscapes and roadways that have evolved over the
last several hundred years and are now associated with
the Brandywine Valley National Scenic Byway… 29
Additionally, in the written decision, the Board concluded that
[t]he requested variances fall into three groupings: the
access road, the conservation easements, the allocation of
protected resources. Development of homes is permitted
on this land whether the zoning is S or SE. For
compelling safety reasons DelDOT has stated that the
access road should be located opposite of Montchan
Drive, a determination reached regardless of the size of
the project. Location of the access road, therefore, is not
a self-created hardship. The protected resources are
inherent in the land and the Applicant is attempting to
ensure that those resources are well-maintained by the
use of the conservation easements. There is little or no
negative impact by this project on Mrs. Snyder’s narrow
strip of land that is adjacent to the subject property. The
character of the community is maintained by the
proposed project. The scenic byway is protected by the
unusual size of the 125 foot buffer filled with plantings…
The unique conformation of the property, the unique
relationship of the existing dwellings and outbuilding to
one another and to the varied topography and to the
29
Id. at 3.
13
existing protected resources and stream in relationship to
the goals of protecting these valuable resources while
permitting a normal improvement by a reasonable
amount of residential development on the property given
the presence of necessary infrastructure to serve new
development and the unique geometry of the proposed
signalized intersection with Montchanin Drive
[sic]…constitute a special condition and exceptional
situation warranting some flexibility in the Zoning Code.
The requested variances will be consistent with the
character of the surrounding community. The requested
relief is modest. The proposed clustered subdivision with
a large percentage of open space and mature trees visible
from Montchanin Road, and natural resources protected
by conservation easement elsewhere on the site, indicate
that the requested relief will be unlikely to adversely
affect residential surrounding properties. If the zoning
restrictions upon the Applicant’s property were removed,
the removal would not seriously affect neighboring
properties. If the restrictions were not removed, it would
create an exceptional practical difficulty that is inherent
in the land. The granting of the variances would not
substantially impair the intent or purpose of the zoning
regulations. ‘A literal interpretation of the zoning law
results in exceptional practical difficulties of ownership.’
Kwik-Check Realty, Inc., v. Board of Adjustment of
New Castle Cty., 369 A.2d 694, 698 (Del. Super. 1977),
aff’d, 389 A.2d 1289 (Del. 1978).
Granting the application conditionally, and removing the
restriction, will not seriously affect the neighboring
properties. If the variance was denied, and the restriction
not removed, ‘the restriction would create…exceptional
practical difficulty for the owner in relation to his/her
efforts to make normal improvements on the character of
that use of the property which is a permitted use under
the use provisions of the ordinance [involved].’ Board of
Adjustment of New Castle Cty. v. Kwik-Check Realty,
Inc., 389 A.2d 1289, 1291 (Del. 1978). The granting of
this variance will not cause substantial detriment to the
14
public good, nor will it substantially impair the intent and
purpose of the zoning code. 30
C. Petition for Writ of Certiorari
On May 12, 2014, Petitioners filed an Amended Petition for Writ of
Certiorari 31 and the Court entered an Order allowing certiorari review on May 13,
2014. 32 Additionally, on May 12, 2014, Petitioners filed an Amended Motion for
Stay and Restraining Order Pursuant to 9 Del. C. § 1314.33 The Court heard the
Motion on June 13, 2014 and denied the Motion on February 24, 2015. 34 On the
same day, the file was reassigned to this Judge. 35 The Court held oral argument on
the merits of Petitioners’ Amended Petition for Writ of Certiorari on May 21,
2015.
III. STANDARD OF REVIEW
Petitioners for a writ of certiorari must establish that two threshold
requirements are met before the Court may examine the lower tribunal’s decision;
namely, that the decision of the lower tribunal was a final decision and that no
alternative basis for review exists.36 The purpose of a writ of certiorari is to
permit this Court to review the record of a proceeding decided by a lower
30
Id. at 6-7.
31
D.I. 8.
32
D.I. 12.
33
D.I. 9.
34
D.I. 32.
35
D.I. 33.
36
Maddrey v. Justice of the Peace Court 13, 956 A.2d 1204, 1213 (Del. 2008).
15
tribunal.37 Delaware law is clear that a writ of certiorari is not the functional
equivalent of appellate review. 38 “Certiorari review differs from appellate review
in that an appeal ‘brings up the case on its merits,’ while a writ brings the matter
before the reviewing court to ‘look at the regularity of the proceedings.’” 39
The evidence before the lower tribunal is not a proper part of the record for
certiorari review. 40 When conducting the review of the lower tribunal, this Court
may not “look behind the face of the record” nor may it engage in “combing the
transcript for an erroneous evidentiary ruling.” 41 Additionally, reviewing the
transcript from the proceeding to evaluate the basis for the lower tribunal’s
decision is impermissible because it “necessarily contemplates that the court will
weigh and evaluate the evidence.” 42 However, the Court may review the transcript
only to determine the sufficiency of the proceedings.43 As such, during this limited
review, the Court may not consider the merits of the case presented to the Board
nor may the Court substitute its own judgment for that of the Board. 44 That is
because “[i]t is the function of ‘the agency, not the court, to weigh evidence and
37
Christiana Town Ctr., LLC v. New Castle Cnty., 2004 WL 2921830, at *2 (Del. Dec. 16,
2004).
38
Maddrey, 956 A.2d at 1213.
39
395 Assocs., LLC v. New Castle Cnty., 2006 WL 2021623, at *3 (Del. Super. July 19, 2006)
(quoting Breasure v. Swartzentruber, 1988 WL 116422, at *1 (Del. Super. Oct. 7, 1988)).
40
Maddrey, 956 A.2d at 1216.
41
Id. at 1215.
42
Castner v. State, 311 A.2d 858, 858 (Del. 1973).
43
395 Assocs., 2006 WL 2021623, at *3.
44
Id.
16
resolve conflicting testimony and issues of credibility.’” 45 Instead, the Court only
“considers the record to determine whether the lower tribunal exceeded its
jurisdiction, committed errors of law, or proceeded irregularly.” 46 Ultimately,
“[t]he Court may reverse or affirm, wholly or partly, or may modify the decision
brought up for review” from the Board.47
IV. DISCUSSION
Petitioners allege that the Board erred as a matter of law 1) by granting the
five variances absent a showing of exceptional practical difficulty under Kwik-
Check; and 2) by rejecting Petitioners’ argument that the proper applicants did not
sign the plan or the Application in violation of UDC, Appendix 1. Additionally,
Petitioners allege that the Board exceeded its jurisdiction 1) because notice of the
public hearing on the Application was insufficient and violated UDC Article 31;
and 2) because the Board should not have proceeded to hear the merits of the
Application when the Department had not issued a written decision regarding
Petitioners’ February 24, 2014 Letter in violation of UDC § 31.330.
As a preliminary matter, the decision from the Board was a final decision
and no other basis for review exists. Therefore, Petitioners have met the threshold
requirements to permit certiorari review. For Petitioners to prevail on certiorari
45
Id. (quoting Christiana Town Ctr., LLC v. New Castle Cnty., 2004 WL 1551457, at *2. (Del.
Super. July 7, 2004)).
46
Christiana Town Ctr., 2004 WL 2921830, at *2.
47
9 Del. C. § 1314(f).
17
review, the Court must find that an error of law occurred because the record below
shows that the tribunal “proceeded illegally or manifestly contrary to law.” 48
Alternatively, Petitioners will prevail if “the record fails to show that the matter
was within the lower tribunal's personal and subject matter jurisdiction.”49
A. There Are No Legal Errors Manifest on the Face of the Board’s
Decision.
The Delaware Supreme Court recently instructed that
[h]istorically, a petition for a writ of certiorari has not
allowed a reviewing court to consider the full record
before the first tribunal or to conduct a plenary review of
whether the tribunal committed an error of law. Only if
an error of law is manifest on the face of the limited
record is certiorari appropriate, because the writ exists to
ensure that the tribunal is proceeding regularly and
attempting to do its job within its legal authority. 50
Therefore, only where the face of the record below indicates that the lower tribunal
has proceeded illegally or contrary to law must the Court reverse the lower
tribunal’s decision for legal error.51
The Court has held that where the lower tribunal applies the incorrect law or
foregoes procedural requirements consistent with notions of due process the lower
48
Id.
49
Christiana Town Ctr., 2004 WL 2921830, at *2 (citing Woolley, Delaware Practice, Volume I,
§ 921).
50
Black v. New Castle Cnty. Bd. of License, Inspection and Review, 2015 WL 3941464, at *4
(Del. June 29, 2015).
51
Christiana Town Ctr., 2004 WL 2921830, at *2.
18
tribunal has proceeded illegally or manifestly contrary to law. 52 Conversely, the
Court “may not review the substantive decisions” nor may it “correct a mistake of
facts or an erroneous conclusion from the facts, even though the [tribunal's]
interpretation of the facts or law may have been erroneous.” 53 The Court cannot
substitute its own judgment for that of the lower tribunal. 54 The Court may not
weigh evidence, disturb the lower tribunal’s factual findings or decide the merits of
the case. 55 Therefore, the Court shall uphold the decision of the Board unless it
finds that the Board’s decision is “illegal or contrary to law” on its face.56
1. The Board’s Decision to Conditionally Grant the Five Area
Variances Is Not Illegal or Contrary to Law.
According to Petitioners, “[t]he Court should reverse the Board where, as
here, the Board fails to identify substantial evidence to support a finding of
exceptional practical difficulty under Kwik-Check.” 57 Petitioners assert that
52
See, e.g., Maddrey, 956 A.2d at 1215 (an error of law occurs when the tribunal applies the
wrong burden to the proceedings); 395 Assocs., 2006 WL 2021623, at *9 (the tribunal acted
manifestly contrary to law when it impermissibly analogized receipt of a notice of violation with
receipt of a legal complaint and applied the five-day statute of limitations to determine that the
plaintiff had waived its right to assert the statute of limitations); Lane v. Bd. of Parole, 2012 WL
5509711, at *5 (Del. Super. Aug. 30, 2012) (the parole board erred when it required a person to
register as a sex offender for a longer time period than imposed by statute based upon the
Attorney General’s tier classification); State, Office of Mgmt. and Budget v. Public Emp’t
Relations Bd., 2011 WL 1205248, at *3 (Del. Super. Mar. 29, 2011) (failure to provide notice of
the board hearing and provide an opportunity to be heard was error of law).
53
395 Assocs., 2006 WL 2021623, at *8 (quoting El Di, Inc. v. Justice of the Peace Court No.
17, 1998 WL 109823 at *4 (Feb. 20, 1998)).
54
Christiana Town Ctr., 2004 WL 2921830, at *2.
55
Reise v. Bd. of Bldg. Appeals of Newark, 746 A.2d 271, 274 (Del. 2000).
56
Christiana Town Ctr., 2004 WL 2921830, at *2.
57
Pet’rs’ Opening Br., D.I. 28, at 10.
19
[t]he Trust did not demonstrate exceptional practical
difficulty in developing the Trust Property in accordance
with the UDC to the Board. Without the variances, the
Trust faces no hardship related to the dimensions of the
parcel itself or its topography…The ‘hardship’ present is
personal to the Trust and financial only. 58
In support of its argument, Petitioners assert that the five requested variances
are inconsistent with the Property’s zoning and scenic byways designation because
“the variances run contradictory to the purpose and intent described [for SE zoning
in UDC § 02.233].” 59 Petitioners also assert that the variances are inconsistent
with the character of the immediate vicinity because “[l]arge estate-type homes are
the exclusive housing type in the ‘triangle’ of land stretching from Buck Road and
Route 100 to the border of the Hagley Museum, and along Route 100 which is the
relevant ‘immediate vicinity’ the Board should have considered.” 60 Petitioners
contend that the variances will have an adverse effect on neighboring properties
because the intersection created will be dangerous and the visual impact provides
for no opacity barrier or visual buffer for Ms. Snyder’s property. 61
Applicant argues that the Board’s decision is free of legal error and is
supported by substantial evidence and, therefore, should be upheld. Applicant
58
Id. at 19.
59
Id. at 10-11.
60
Id. at 14.
61
Id. at 17-18.
20
argues that the Board properly applied the Kwik-Check factors and determined that
the variances were appropriate. 62 Applicant argues that
[t]he four prongs of the [Kwik-Check] test are easily met
here. The nature of the zone of the property (prong 1) is
residential and the character and use of the immediate
vicinity (prong 2) is residential…if the variances are
granted, the variances would not seriously interfere with
neighboring property and uses (prong 3)…Meanwhile, if
the variances are not granted (prong 4), access becomes
less safe, buffering less substantial and the design much
more ‘awkward.’ 63
Petitioners’ arguments regarding the variances challenge the factual
determinations the Board made in reaching its decision. Petitioners essentially
argue to the Court that the Board’s decision was wrong and that the factual
evidence does not support the Board’s finding. However, to address the merits of
Petitioners’ arguments would be to impermissibly consider the Board’s substantive
determination.64 Instead, the Court’s review on certiorari is limited to whether the
Board made a legal error that is manifest on the face of the record. 65
Pursuant to 9 Del. C. § 4917, the Board may allow a variance where the
strict application of any regulation adopted…would
result in peculiar and exceptional practical difficulties to,
or exceptional and undue hardship upon, the owner of
such property…provided such relief may be granted
62
Defs.’ Answering Br., D.I. 30, at 20.
63
Id.
64
395 Assocs., 2006 WL 2021623, at *8 (quoting El Di, Inc. v. Justice of the Peace Court No.
17, 1998 WL 109823 at *4 (Feb. 20, 1998)).
65
See, e.g., Maddrey v. Justice of Peace Court 13, 956 A.2d 1204, 1215 (Del. 2008); Dover
Historical Soc. v. City of Dover Planning Comm’n, 838 A.2d 1103, 1106 (Del. 2003).
21
without substantial detriment to the public good and
without substantially impairing the intent and purpose of
the zoning plan and zoning regulations. 66
In determining whether an exceptional practical difficulty exists for purposes of
examining applications for area variances, the Delaware Supreme Court has
instructed the Board to consider the following factors:
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.67
Therefore, to the extent that the record shows that the Board properly considered
the Kwik-Check factors and applied 9 Del. C. § 4917, the Court’s limited inquiry
on certiorari review ends.
In the Board’s written decision, the Board detailed the testimony it received
regarding the five variances, including the comments from the public. The Board
grouped the variances into three separate categories for analysis purposes: the
66
9 Del. C. § 4917(3).
67
Bd. of Adjustment of New Castle Cnty. v. Kwik-Check Realty, Inc., 389 A.2d 1289, 1291 (Del.
1978).
22
access road, the conservation easements and the allocation of protected resources. 68
The Board voted to conditionally approve the variances and concluded that ‘“[a]
literal interpretation of the zoning law results in exceptional practical difficulties of
ownership.’” 69 The Court finds that, in reaching that conclusion, the record
affirmatively shows that the Board considered the Kwik-Check factors.
The Board considered the nature of the zone in which the property lies. In
the written decision, the Board found that “[d]evelopment of homes is permitted on
this land whether the zoning is S or SE.” 70 The Board also found that “[t]he issue
as to whether the Board can hear this application before the rezoning has been
considered by County Council is not a critical issue because the requested
variances could be considered by this Board whether the property is zoned S or SE,
in either case.” 71
Additionally, the Board considered the character of the surrounding area
where the written decision provided that
[t]he subject property…is located on the southern end of
an extensive SE (Suburban Estate) zone that projects
northward to the Pennsylvania state line, which includes
large lot residential properties, the museum properties
and land for both Hagley and Winterthur museums,
protected public open space of the Brandywine Creek
State Park, and other large conservation areas owned by
68
Notice of Decision, at 6.
69
Id. at 7 (citing Kwik-Check Realty, Inc. v. Bd. of Adjustment of New Castle Cnty., 369 A.2d
694, 698 (Del. Super. 1977)).
70
Id. at 6.
71
Id.
23
Woodlawn Trustees (1100 acres of which was designated
in early 2013 as a National Monument within the
National Park System). Positioned at the southern end of
Route 100, the subject parcel is in a transitional area and
has significant links to both the developed area near
Route 141 (including the Greenville area) and the wide
open landscapes and roadways that have evolved over the
last several hundred years and are now associated with
the Brandywine Valley National Scenic Byway. 72
The Board found that “[t]he requested variances will be consistent with the
character of the surrounding community.” 73
The Board also considered the impact the variances would have upon
neighboring properties. In the Board’s written decision, the Board found that
“[t]here is little or no negative impact by this project on Mrs. Snyder’s narrow strip
of land that is adjacent to the subject property.” 74 The Board also found that “[t]he
proposed clustered subdivision with a large percentage of open space and mature
trees visible from Montchanin Road, and natural resources protected by
conservation easement elsewhere on the site, indicate that the requested relief will
be unlikely to adversely affect residential surrounding properties.” 75
Finally, the record shows that the Board considered the size, configuration,
topography or other physical characteristic inherent in the land. The Board’s
written decision provides that “[t]he Applicant is suffering exceptional practical
72
Id. at 3.
73
Id. at 7.
74
Id. at 6.
75
Id. at 7.
24
difficulty because any ability to develop this land is hindered by its natural and
existing topography, including the riparian buffer and other resources, the
bordering roadways, the existing buildings, and the mature landscaping on the
subject parcel.”76 The decision also provides that “[t]he protected resources are
inherent in the land and the Applicant is attempting to ensure that those resources
are well-maintained by the use of the conservation easements.” 77 The Board’s
decision concludes that
[t]he unique conformation of the property, the unique
relationship of the existing dwellings and outbuilding to
one another and to the varied topography and to the
existing protected resources and stream in relationship to
the goals of protecting these valuable resources while
permitting a normal improvement by a reasonable
amount of residential development on the property given
the presence of necessary infrastructure to serve new
development and the unique geometry of the proposed
signalized intersection with Montchanin Drive
[sic]…constitute a special condition and exceptional
situation warranting some flexibility in the Zoning
Code. 78
Based upon the aforementioned excerpts from the Board’s written decision,
it is apparent that the Board considered all of the factors that Kwik-Check mandates
that the Board consider. Additionally, as required by 9 Del. C. § 4917(3), the
Board made a finding that granting the variances “will not cause substantial
76
Id. at 6.
77
Id.
78
Id. at 7.
25
detriment to the public good, nor will it substantially impair the intent and purpose
of the zoning code.”79 Therefore, the Court finds that the Board’s decision is not
illegal or contrary to law because it is manifest on the face of the record that the
Board considered all of the relevant factors under Kwik-Check and the applicable
statute.
2. The Board Did Not Act Illegally or Contrary to Law When It
Approved the Application Without Ms. Snyder’s Written Consent to
the Plan and Application.
Petitioners also argue that the Board erred as a matter of law when it
proceeded to hold the March 13, 2014 public hearing on the Application despite
the absence of Ms. Snyder’s signature on the plan and Application.80 In support of
Petitioners’ argument, Petitioners solely rely upon the Comment Letter that was
presented to the Board. 81 Petitioners assert that that the Board impermissibly
rejected the Comment Letter because the Comment Letter is precedent by which
the Department is bound to require Ms. Snyder’s signature on the plan and
Application before the Board can hold a public hearing on the Application. 82
Applicant argues that Petitioners’ reliance upon the Comment Letter is
misplaced because the Comment Letter lacks precedential value. 83 Applicant
asserts that the Department is not bound by the determination made in the
79
Id.
80
Pet’rs’ Opening Br, at 22.
81
Id. at 22-23.
82
Id.
83
Defs.’ Answering Br., at 23.
26
Comment Letter because the facts of that case were materially different than the
facts surrounding the Application.84 Specifically, Applicant contends that the
Comment Letter was issued because the Department determined that setbacks for
neighboring properties would be detrimentally affected; however, here the
evidence presented to the Board is that there is no new setback or additional
setback imposed on Ms. Snyder’s property. 85
The Board rejected Petitioners’ argument in its written decision when it
found that
[Petitioners’] allegations of violations of statute or rules
are not supported by facts before the Board. [Counsel for
Petitioner] supported his argument with a sole purported
authority: a finding in a Department of Land Use
comment letter that discussed the impact of a new road
on an adjacent property to the project. That letter
involved a different project, different parcels, and
different factual circumstances. This application contains
no such comment letter from Land Use. Land Use is
required by the UDC to review this project and, in doing
so, did not issue a deficiency letter stating that an
adjacent landowner’s signature was required. 86
The Court cannot find that the Board’s decision was illegal or contrary to
law. There is no provision in the UDC or the Board rules that mandates that
comment letters issued by the Department regarding other land development
projects are precedent for future decisions. The Recommendation Report did not
84
Id.
85
Id. at 22.
86
Notice of Decision, at 2.
27
require that Ms. Snyder or any other neighbor sign the plan or Application. 87
Therefore, the Court cannot find that the Board erred when it rejected Petitioners’
argument that the Comment Letter required Ms. Snyder’s signature on the plan and
Application before the Application was properly before the Board.
B. The Record Shows that the Board Did Not Exceed its Jurisdiction.
“A decision will be reversed on jurisdiction grounds only if the record fails
to show that the matter was within the lower tribunal's personal and subject matter
jurisdiction.” 88 The Delaware General Assembly set forth the Board’s jurisdiction
in 9 Del. C. §§ 1312-13. 9 Del. C. § 1313 provides, in relevant part, that
The Board of Adjustment shall be empowered to hear
and decide:… [i]n 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 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 of any zoning ordinance, code,
regulation or map. 89
87
Recommendation Report to the Board of Adjustment.
88
Christiana Town Ctr., 2004 WL 2921830, at *2 (citing Woolley, Delaware Practice, Volume I,
§ 921).
89
9 Del. C. § 1313(a)(3).
28
Additionally, “[t]he Board of Adjustment shall adopt regulations to govern the
organization, procedure and jurisdiction of the Board. The regulations shall not be
inconsistent with this title and shall not become effective unless and until approved
by the County Executive.” 90
1. Public Notice of the Hearing was Sufficient Such That the Board
Did Not Exceed its Jurisdiction.
Petitioners argue that the notice provided to the public regarding the public
hearing on the Application was insufficient because Ms. Snyder did not sign the
necessary forms. 91 Petitioners contend that the newspaper notice was deficient
because it was not published in the newspaper with a reference to Ms. Snyder’s
property by tax parcel number. 92 Petitioners also contend that the yellow sign
posted on the Property was deficient because it did not contain Ms. Snyder’s tax
parcel name and number as part of the plan and failed to graphically depict her
property. 93
Applicant argues that the notice to the public regarding the public hearing
before the Board on the Application was sufficient. Applicant contends that there
is no requirement in the UDC or in the Board’s rules that mandates that Ms.
Snyder sign the plan or Application and that the Department is not bound by its
90
9 Del. C. § 1312.
91
Pet’rs’ Opening Br., at 23; See supra Part IV.A.2.
92
Pet’rs’ Opening Br., at 24.
93
Id.
29
decision in the Comment Letter because no new setback is being created on Ms.
Snyder’s property. 94 Applicant asserts that because Petitioners’ argument that Ms.
Snyder’s signature was required on the plan and Application fails, the notice of the
public hearing before the Board regarding the Application is not deficient. 95
The requirements to perfect public notice for land development applications
prior to a public hearing before the Board are set forth in UDC § 40.31.320(F). 96
Additionally, UDC § 40.31.340 requires that the notice of the public hearing be
posted on all properties affected by a variance and that the notice identify all
properties affected by the variance.97 The Board relied on the Recommendation
94
Defs.’ Answering Br., at 24.
95
Id.
96
UDC § 40.31.320(F)(2)(c) provides:
The applicant shall erect a posted notice sign for all major and
minor land development plans within ten (10) days of submission
of a completed initial exploratory sketch plan to the Department…
c. The sign shall depict the lot configuration of residential
applications or building footprint with square footage,
paving, and landscaping in the case of nonresidential
applications. The applicants name and phone number, the
name of the plan, and the tax parcel number (s) shall be
prominently displayed on the sign…
97
UDC § 40.31.340(B)(4)(c) provides that
…[t]he applicant shall erect a public hearing posted notice sign on
all subject properties at least ten (10) days in advance of a public
hearing…
c. The sign shall depict the lot configuration of residential
applications or building footprint with square footage,
paving, and landscaping in the case of nonresidential
applications. The applicants name and phone number, the
name of the plan, the application number, and the tax parcel
number(s) shall be prominently displayed on the plan…
30
Report issued by the Department to determine that Ms. Snyder’s property was not
affected by the proposed variances when it found that
…[the Department] is required by the UDC to review this
project and, in doing so, did not issue a deficiency letter
stating that an adjacent landowner’s signature was
required. The Board is satisfied that the requirements of
[the] UDC with respect to the necessity for Mrs. Snyder’s
signature on the documents, and the notice of this
application, have been met… 98
Petitioners’ argument that the public notice is deficient is predicated on a
finding that the Board committed legal error in proceeding to hear and approve the
Application without Ms. Snyder’s signature on the plan or Application. Petitioners
do not allege that the public notice of the hearing before the Board was deficient in
any other way under the requirements of the UDC. The Court has found that the
Board did not commit legal error in determining that Ms. Snyder was not required
to sign the plan and Application.99 Therefore, the Court cannot find that the Board
exceeded its jurisdiction when the Board proceeded to hear the Application based
upon the notice given of the public hearing before the Board.
2. The Board did not Exceed its Jurisdiction when it Ruled Upon the
Merits of the Arguments Raised in the February 24, 2014 Letter.
Finally, Petitioners argue that the Department deprived Petitioners of their
appellate rights when it did not respond in writing to the February 24, 2013 Letter
98
Id.
99
See supra Part IV.A.2.
31
in which Petitioners requested that the Department determine that the Application
was not properly before the Board because it lacked Ms. Snyder’s signature. 100
Petitioners assert that the Department “was required to issue, in writing, a decision
or response to the [February 24, 2013 Letter] within twenty (20) days of the receipt
of the submission.”101 Petitioners rely upon UDC § 40.30.320 and § 40.31.330 for
their claim that the Department, and not the Board, is the sole authority to make the
determination that the Application was not properly before the Board. 102
Petitioners contend that the Board impermissibly exceeded its jurisdiction in
making the determination itself at the beginning of the March 3, 2014 public
hearing.103 Petitioners argue that, when no written decision was furnished,
“Petitioners were not afforded the opportunity to respond to or appeal th[e]
decision. Appeal would have been to the Planning Board…so an entire appellate
proceeding was side-stepped, depriving Petitioners of due process and the public of
notice and an opportunity to be heard.” 104
Applicant argues that the Department was not required to respond to the
February 24, 2014 Letter in writing and that, to the extent that Petitioners allege
that the Department committed legal error, the complaint is not properly part of the
100
Pet’rs’ Opening Br., at 25.
101
Id.
102
Pet’rs’ Reply Br., D.I. 31, at 17.
103
Id.
104
Defs.’ Answering Br., at 26.
32
Court’s consideration regarding the Board’s decision. 105 Applicant alternatively
argues that, even if the Department was required to respond to the February 4,
2014 Letter, the Department responded appropriately when
[t]he Department received both the SLD application (the
application that initiates the record plan approval
process) and the variance application and returned neither
for lack of the appropriate signatures. Moreover, if the
Department considered the variance application lacking
something as fundamental as the required land owner
signature, it would not have recommended approval of
the application. 106
Applicant contends that the Board properly heard the merits of the arguments set
forth in the February 24, 2014 Letter on the record and rejected them. 107 Applicant
asserts that “with their appeal to this Court, [Petitioners] are now having the matter
further reviewed. Petitioners cannot claim any prejudice or lack of due
process.”108
Section 40.31.330 of the UDC provides, in part, that “…whenever a
response or decision is required by the Department, it shall be issued in writing
within twenty (20) days of receipt of a complete submission. This requirement
may be waived by mutual consent of the Department and the applicant.”
Petitioners have not identified and the Court is unaware of a particular statute or
105
Id.
106
Id. at 27-28.
107
Id. at 26.
108
Id.
33
Board rule that requires that the Department respond to the February 24, 2014
Letter.
Moreover, there is no provision adopted by the Board in the UDC or the
Board rules that mandates that the Department, and not the Board, be the sole
authority to resolve the issues set forth in the February 24, 2014 Letter. In fact, the
February 24, 2014 Letter itself undermines Petitioners’ argument. Petitioners
addressed the February 24, 2014 Letter to the “Members of the Board of
Adjustment” and the “New Castle County Department of Land Use,” the Letter
begins with the salutation “Dear Members of the Board of Adjustment,” and
concludes with an ambiguous request that “…you issue a written determination no
later than March 3, 2014.”109 Based upon the arguments and authority presented,
the Court cannot conclude that the Board exceeded its jurisdiction in addressing
the February 24, 2014 Letter at the March 13, 2014 public hearing.
Additionally, the Court cannot find that the Board’s determination at the
March 13, 2014 public hearing deprived Petitioners of due process. The record
demonstrates that the Board heard argument from both parties regarding whether
or not the hearing should proceed and, following the argument, the Board recessed
109
February 24, 2014 Letter to Members of the Board of Adjustment and the New Castle County
Department of Land Use, at 2.
34
for an executive session to “get some legal advice first.” 110 Upon reconvening, the
Chairman of the Board announced
…We have in effect a motion for a continuance to permit
the procedures suggested by an objecting member of the
public who is represented by counsel or members I guess.
And we have a response and some discussion on that.
We have a response to that an argument made by the
applicant and that’s all on the record. And I don’t feel a
need to review it in any detail. I as Chair have the
responsibility of determining in many instances when it’s
necessary to take testimony and when it isn’t. And in
this instance I feel there’s been enough argument.
There’s not a need for any additional record on this issue
so we won’t be taking any testimony with regard to the
procedural issue ahead of us… 111
The Board unanimously voted that it had jurisdiction to hear the Application. 112
Despite Petitioners’ claim that they suffered prejudice because they lacked
the opportunity to potentially appeal a determination made by the Department, the
record indicates that the Board provided Petitioners the opportunity to be heard on
the merits of their argument at the March 13, 2014 hearing. Although Petitioners’
argument that the Department, and not the Board, should have made the
determination might be an appropriate issue to raise on direct appeal, the Court is
mindful of the limited nature of the certiorari proceeding and the function of the
General Assembly in determining that no right of direct appeal exists in this
110
Id. at 19.
111
Id.
112
See supra notes 11-14; 16-18; 23.
35
situation.113 To examine the matter further “undermines the General Assembly’s
authority to determine which administrative agencies are subject to direct appeal
and which are not.”114
VI. CONCLUSION
The Court finds that the Board neither committed legal error nor exceeded
its jurisdiction in reaching its decision. Therefore, the decision of the Board is
hereby AFFIRMED.
IT IS SO ORDERED.
_____________________
Ferris W. Wharton, Judge
113
See Black, 2015 WL 3941464, at *6 (Del. June 29, 2015).
114
Id.
36