Opinion
C.A. No. 09A-04-009 JEB.
Submitted: December 22, 2009.
Decided: February 17, 2010.
Petition for Review of a Decision of the City of Wilmington Zoning Board of Adjustment Decision REVERSED .
Michael J. Isaacs, Esquire, Wilmington, Delaware, Attorney for Appellant Howard Hamm.
Carol A. Casner, Esquire, Wilmington, Delaware, Attorney for Appellee City of Wilmington Zoning Board of Adjustment.
OPINION
Introduction
Appellant Howard Hamm has petitioned this Court for review of a decision of the City of Wilmington Zoning Board of Adjustment upholding the Zoning Administrator's determination that insufficient evidence exists to show continuity of the nonconforming use of Hamm's apartment building.
Factual Background
On June 24, 2008, Hamm bought a triplex apartment building located at 1310 West 10th Street, Wilmington, Delaware, from the Estate of Anne Dorsey Hall. The previous owner of the triplex, Anne Dorsey Hall, purchased the property in 1946 and resided in the second floor apartment from 1950 until her death on September 27, 2007. During those years, Hall rented out the other two apartments. However, while the triplex had been originally zoned for multi-unit dwellings, in approximately 1980 the area was rezoned for single-family dwellings. Nevertheless, Hall continued to rent out the apartments as a permissible nonconforming use.
In February 2007, approximately seven months before her death, Hall broke her hip at home, was hospitalized at St. Francis Hospital in Wilmington, and then entered an in-patient rehabilitation facility. After her in-patient rehabilitation therapy ended, Hall continued with out-patient rehabilitation therapy at the Maryland home of her niece, Anne Rehfeld. Hall intended to return to her home in Wilmington after her recovery. However, Hall did not recover and died before she was able to return home. Thus, her triplex was sold by her estate.
After his purchase of the triplex in June 2008, Hamm swiftly proceeded to make significant repairs on the property while obtaining the necessary permits and inspections. The repairs totaled approximately $47,000 and complied with historical parameters. In August 2008, Hamm leased two of the three apartments located in the triplex. And, in September 2008, Hamm leased the third apartment. In quickly going forward with the repairs, Hamm's intent was to make sure that he had tenants in the triplex before one year had passed from August 2007, the date the previous tenant departed. Hamm was fully aware of the Wilmington ordinance that does not permit a nonconforming use to continue if one year has passed since the discontinuance of the use.
In addition, soon after his purchase, Hamm attempted to register the triplex with the Department of Licenses and Inspections. Approximately two weeks after his attempt, Hamm was informed by the City of Wilmington Zoning Administrator that he might be in violation of the nonconforming use ordinance and that more information would be required as to the continued use of the property as an apartment building. Hamm provided the Zoning Administrator with an affidavit from Rehfeld indicating that tenants resided in the triplex through 2007 and an affidavit from George Von Kempen who stated that he was a tenant in the triplex until August 2007.
Upon receipt of the affidavits, the Zoning Administrator did not determine that the nonconforming use was lost but only determined that insufficient evidence had been presented to show that the nonconforming use had been continued.
As a result, the necessary occupancy licenses were not issued, and the Department of Licenses and Inspections commenced criminal proceedings against Hamm in the Justice of the Peace Court due to failure to register the three rental units. Yet, at the same time, Hamm could not register the units until a decision was made regarding the nonconforming use. The Zoning Administrator recommended that Hamm request a hearing before the Zoning Board of Adjustment in order to suspend the criminal proceedings.
Therefore, the necessary application was made by Hamm's counsel, and a hearing was held before the Zoning Board of Adjustment on January 14, 2009. Evidence presented at the hearing showed that after Hall's death and prior to the sale of the property, the triplex was appraised as a three-unit dwelling. And, according to witness testimony, New Castle County public records showed the property as having three units. Furthermore, Von Kempen testified that he was a tenant in Hall's triplex on and off from December 2006 through August 2007, the time period during which his own residence was being renovated. Von Kempen also testified that he did minor repair work and painting on the property for Hall and that Hall rented the apartments continuously. However, no leases or records of payment are in evidence. Nevertheless, Von Kempen did not express any interest in the outcome of the controversy.
Further testimony was also heard from neighbors and public figures inveighing against the nonconforming use. City Councilman Samuel Prado testified that he had visited Hall approximately four times during the many years Hall lived there, the last time being in 2006, and that he had not seen any tenants at the triplex during those visits. Prado also stated that he had been contacted by the Vernots, neighbors of Hall, regarding their concern over the zoning controversy. Julie Vernot, in fact, testified as to the large number of current tenants in the triplex and the large number of people — fifteen to twenty at a time — out in the backyard during the summer months. She further testified that she did not see anyone living at the triplex except Hall. Another neighbor, Terry Doordan, who expressed great concern about the number of tenants now living in the triplex and the competition over parking on the street, also testified that he saw no tenants at the triplex.
On the other hand, Greg Luna who lives nearby testified that he was a tenant of Halls from 1999 to about 2004 and that he had signed a lease. Luna further testified that while he was a tenant, he lived in the first floor apartment, Hall lived in the second floor apartment, and the third floor apartment was vacated prior to his departure. Moreover, like Von Kempen, Luna did not claim to have any particular interest in the outcome of the controversy.
The Board upheld the decision of the Zoning Administrator by finding that insufficient evidence exists to show continuity of a nonconforming use or to show that a vacancy was due to circumstances beyond the owner's control and that public opposition to the nonconforming use is significant.
Hamm has timely petitioned the Court to overturn the Board's decision, and briefing is complete.
Contentions of the Parties
Hamm asserts that the decision of the Board should be overturned because 1) his procedural due process rights were violated due to the Zoning Administrator's failure to provide an initial determination before the Board made a decision, 2) no substantial evidence exists to support the Board's decision, and 3) the Board's reliance on public opinion which weighed against the nonconforming use tainted the decision-making process.
The City of Wilmington contends that Hamm's procedural due process rights were not violated because he received notice of the Board's intent to rule on the matter and he had an opportunity to present evidence and argue his claim. The City of Wilmington further asserts that substantial evidence exists to support the Board's decision by way of the testimony of two neighbors stating they saw no tenants and Hamm's failure to register the property as a rental unit and that the Board was legally obligated to consider public opinion.
Standard of Review
An aggrieved person may obtain judicial review of a decision of the Board of Adjustment by presenting a petition to the Superior Court setting forth grounds as to the alleged illegality of the Board's decision. The Court reviews the Board's decision to determine if substantial evidence exists in the record to support the Board's findings of fact and to determine if the Board erred in its application of the law. Substantial evidence consists of "such relevant evidence as a reasonable mind might accept as adequate to support the Board's conclusion." Thus, the Court, in its review of the Board's decision, does not weigh any evidence or make any factual findings but only determines if substantial evidence exists upon which the Board's findings can be legally supported. "This rule does not, however, permit the Board to do whatever it thinks best without a factual basis in the record."
22 Del.C. § 328 (2009).
Janaman v. New Castle County Bd. of Adjustment, 364 A.2d 1241, 1242 (Del. Super. 1976).
Wawa, Inc. v. New Castle County Bd. of Adjustment, 929 A.2d 822, 830 (Del. Super. 2005).
Wawa, Inc., 929 A.2d at 830.
Janaman, 364 A.2d at 1242.
The Court "may reverse or affirm, wholly or partly, or may modify the decision brought up for review." However, a remand for further factual findings is appropriate only where specific findings are necessary for final adjudication.
22 Del.C. § 328 (2009).
Williams v. Board of Adjustment of City of Newark, 1993 WL 331060, *1 (Del. Super. 1993).
Discussion
The burden of proving abandonment of a nonconforming use is on the asserting party. "[Z]oning ordinances, being in derogation of the common law, must be strictly construed in favor of property owners."
Dover Products v. Turner, 1978 WL 22004, *3 (Del. Ch.) (finding that, while the burden of proof should be on the property owner regarding the establishment of a nonconforming use, once the nonconforming use is vested with the property, the burden lies with the governmental authority) (emphasis added); accord Cicchiello v. Bloomsburg Zoning Hearing Bd., 617 A.2d 835, 838 (Pa. Cmwlth. 1992); Washington Arcade Associates v. Zoning Bd. of Review of Town of North Providence, 528 A.2d 736, 738 (R.I. 1987).
Dover Products, 1978 WL 22004 at *2.
Once a nonconforming use is legally established, the right to continue such use runs with the land and is not attached to the person who was the property owner at the time the nonconforming use was established.
Kirkwood Motors, Inc. v. Board of Adjustment of New Castle County, 2000 WL 710085, *4 (Del. Super. 2000) (citing Reid v. Zoning Board of Appeals of Lebanon, 670 A.2d 1271, 1275 (Conn. Supr. 1996) where it states that zoning "variances cannot be personal in nature and may only be based upon property conditions" thereby invalidating any condition that is personally related as opposed to property related); Dover Products, 1978 WL 22004 at *3 (stating that the right to continue with a nonconforming use becomes vested in the property).
Moreover, a nonconforming use can exist where a property owner does not procure the necessary license or permit for the use because licensing is a revenue raising measure and does not control zoning regulations.
Mellow v. Board of Adjustment of New Castle County, 565 A.2d 947, 955 (Del. Super. 1988).
However, "[w]henever a nonconforming use has been discontinued for a period of one year, such use shall not thereafter be reestablished . . . except, that when such discontinuance is on account of any cause beyond the control of the owner. . . ."
Wilm. C. § 48-38(b)(8).
So, while discontinuance or abandonment of a nonconforming use ends such use, abandonment is more than a temporary cessation of the nonconforming use — it requires 1) intent on the part of the property owner to abandon the nonconforming use, and (2) a clear act, or failure to act, to demonstrate such intent. ("The word discontinuance as applied to zoning ordinances is equivalent to abandonment.") And, where a property owner terminates a nonconforming use for a period in excess of the lapse time specified in the zoning ordinance, abandonment is presumed.
Auditorium, Inc. v. Board of Adjustment of Mayor Council of Wilmington, 91 A.2d 528, 534-535 (Del. 1952).
Robinson v. City of Huntsville, 622 So.2d 1309, 1312 (Ala. Civ. App. 1993).
Wilm. C. § 48-38(b)(8); Auditorium, Inc., 91 A.2d at 534-535; Zitelli v. Zoning Hearing Bd. of Borough of Munhall, 850 A.2d 769, 771 (Pa. Cmwlth. 2004) (finding that a zoning ordinance establishes a presumption of intent to abandon a nonconforming use where the ordinance incorporates a discontinuance provision that designates a lapse time).
On the other hand, abandonment is not demonstrated where a lapse of time occurs "between the departure of one lessee and the arrival of another." Moreover, a temporary, even lengthy, lapse of a nonconforming use caused by "circumstances over which the property owner had no control is generally held not to constitute proof of" abandonment.
Latrobe Speedway, Inc. v. Zoning Hearing Bd. of Unity Tp., 686 A.2d 888, 890 (Pa. Cmwlth. 1996).
Robinson, 622 So.2d at 1312; see Cicchiello, 617 A.2d at 838 (quoting the local zoning ordinance where it states that death and involuntary action are impeding events precluding discontinuance of a nonconforming use where the death or involuntary action impedes access to or use of the property); see also Washington Arcade Associates v. Zoning Bd. of Review of Town of North Providence, 528 A.2d 736, 738 (R.I. 1987) (finding no abandonment where cessation of the nonconforming use is not a voluntary act). Circumstances which courts have held to excuse discontinuance of a nonconforming use can include war; government restrictions; the owner's entry into the armed services; lack of required supplies; destruction by fire, hurricane or flood; financial straights; inability to locate a tenant; seasonal use; condemnation; a taking by eminent domain; or the need for necessary repairs. Marchese v. Norristown Borough Zoning Bd. of Adjustment, 277 A.2d 176, 185 n. 9 (Pa. Cmwlth. 1971) (quoting Rathkopf, The Law of Zoning and Planning 61-9 (1960)).
Furthermore, where an owner is ill and subsequently dies, it does not necessarily follow that a nonconforming use is discontinued even though the pace of the use slows or becomes unapparent to neighbors.
See Bd. of Trustees of Williamsburg Twp. v. Krieme, 595 N.E.2d 945, 946-947 (Ohio App. 12 Dist. 1991).
In the matter before the Court, the City of Wilmington is the party asserting that Hamm has abandoned the nonconforming use of his triplex. Since the nonconforming use of the triplex is vested with the property — Hall having rented out the three apartments for over fifty-five years — and not one that Hamm is seeking to establish, the City of Wilmington has the burden of proving the abandonment of the nonconforming use. It is not enough for the City of Wilmington to simply demonstrate that insufficient evidence exists to continue the nonconforming use, but it must affirmatively demonstrate the abandonment of such use. The City of Wilmington has not done so.
Hamm purchased a property with a nonconforming use that was established in approximately 1950, and, therefore, that use runs with the land and did not disappear as a result of Hall's death. Moreover, the fact that Hamm was unable to procure the necessary occupancy licenses for the rental units from the Department of Licenses and Inspections does not affect the nonconforming use of the property. As stated in Mellow, licensing does not control zoning. Therefore, the only way that the nonconforming use of the triplex can be lost under these circumstances is if the nonconforming use is found to be abandoned — either through intent and action or by way of a lapse of one year.
For Hamm to have abandoned the nonconforming use of his triplex he must be shown to have intended to discontinue renting the apartments and to have acted on that intent. Based on the evidence, Hamm did the opposite by taking specific measures to make sure that the nonconforming use continued and quickly seeing to it that tenants were installed in the rental units prior to the lapse of one year from the time the previous tenant departed.
For Hall to have abandoned the nonconforming use of her property, it must be demonstrated that she either intended to discontinue renting the units and acted on that intent or ceased renting the units for one year. Neither of these alternatives has been sufficiently demonstrated by substantial evidence. No evidence at all suggests that Hall intended to stop renting the units and acted on that intent. In fact, Hall's niece provided an affidavit stating that the opposite was true — that Hall intended to return to her home and that she had tenants in the triplex during her final year. Moreover, although two neighbors testified that they did not see any tenants living in the triplex, Von Kempen himself testified that he actually was a tenant during the renovation of his home from 2006 through August 2007. And, while Prado testified that he had never seen any tenants during the years Hall lived in the triplex, based solely on his four visits to Hall, Luna himself testified that he was a tenant of Hall's from 1999 to 2004. So, while it may be that the nonconforming use of the triplex slowed in pace during Hall's later years, the fact that the nonconforming use was not apparent to the neighbors in no way demonstrates its abandonment.
For these reasons, the Court finds that no substantial evidence exists to support a finding of abandonment of the nonconforming use by either Hamm or Hall. The Court further finds that the Board did not correctly apply the law in its finding that not enough evidence exists to show the continuity of the nonconforming use. Hamm is not required to show continuity. The City of Wilmington is required to demonstrate abandonment which it did not do. Thus, the Board's finding is in error.
Furthermore, since the Court finds that the nonconforming use of the property is not abandoned, the Court does not reach the issues as to whether Hamm was denied due process or whether involving public opinion in the decision-making process tainted the proceeding.
Accordingly, the decision of the Zoning Board of Adjustment is REVERSED .
IT IS SO ORDERED.