Opinion
C.A. No. 04A-11-002 (THG).
Submitted: June 14, 2005.
July 27, 2005.
Martin J. Cosgrove, Jr., Esquire, Moore Rutt, Georgetown, Delaware.
Richard E. Berl, Jr., Esquire, Georgetown, Delaware.
Dear Counsel:
David Ludema owns a .79 acre piece of commercially zoned property in the North West Fork Hundred, physically located on the Northeast intersection of U.S. Route 13A and Road 642, Lot 1, C. Leon Development, South of the town limits of Bridgeville, Delaware. The property is identified as Sussex County Tax Map Parcel 1-31-10.00-81.01.
On July 12, 2004, Ludema testified before the Sussex County Board of Adjustment in support of his application for a special use exception for the land. Ludema requested permission to erect a ten (10) foot by thirty (30) foot monopole steel billboard on his property. He testified that the double-sided billboard would comply with all relevant setback and height restrictions as required by Sussex County Code. He further testified that, in his opinion, the billboard would not be out of character with the surrounding area because a doctor's office and an Uncle Willie's gas station are located nearby. Ludema noted the presence of a large sign in front of Uncle Willie's, suggesting the sign supported the commercial nature of the property.
The Town of Bridgeville submitted a letter in opposition to Ludema's request for a special use exception. The town stated that there are no other billboards on U.S. Route 13A and 404. The town also argued that a new subdivision was planned for the area across the street from the proposed location for the billboard. It argues that the addition of an advertising billboard would be out of character with the planned residential area.
After tabling the issue until the next meeting, the Board met again on August 2, 2004 and voted to deny Ludema's application for a special use exception. The Board issued a written decision on October 18, 2004. In its decision, the Board found that Ludema failed to carry his burden of showing that the proposed use of the billboard would not adversely affect surrounding properties. In fact, the Board found that Ludema failed to present any evidence on this issue. The Board also found that the billboard would more likely than not affect the property values of the surrounding areas. Citing these reasons, the Board denied Ludema's request. Ludema appealed the decision to this court claiming that the Board failed to cite substantial evidence in its decision.
Delaware courts have repeatedly emphasized the limited appellate review of the factual findings of an administrative agency. A reviewing court's sole function is to determine whether substantial evidence exists on the record to support the Board's findings of fact and to correct any errors of law. Hellings v. City of Lewes Board of Adjustment, 734 A.2d 641 (Del. 1999) (Table), 1999 WL 624114 (Del.). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994); Battista v. Chrysler Corp., 517 A.2d 295, 297 (Del.Super.Ct. 1986), app. dism., 515 A.2d 397 (Del. 1986). If the requisite evidence exists, the Court may not reevaluate the evidence and substitute its own judgment for that of the Board. Hellings v. City of Lewes Board, 1999 WL at *2, citing Janaman v. New Castle Cty. Bd. Of Adjustment, 364 A.2d 1241, 1242 (Del.Super.Ct. 1976), aff'd, 379 A.2d 1118 (Del. 1977). If the Court finds an error of law or a lack of substantial evidence in the Board's findings, the Court may not remand the matter for further proceedings. Id. Instead, the Court "may affirm, reverse or modify the decision of such body and the decision of the court shall be final." 1001 Jefferson Plaza Pshp., L.P. v. New Castle County Dep't of Fin., 695 A.2d 50, 51 (Del. 1997).
The Sussex County Board of Adjustment has the authority to approve the placement of billboards in commercial districts. Code of Sussex County, Section 115-210(A)(3)(p). Billboards are considered non-conforming uses of commercial property and may only be placed with the Board's grant of a special use exception. Code of Sussex County, Section 115-80(C). In deciding whether to grant a special use exception, the Board must find that, "in its opinion, as a matter of fact, such exceptions will not substantially affect adversely the uses of adjacent and neighboring property . . ." Code of Sussex County, Section 115-210. The applicant for the special use exception carries the burden of demonstrating that the proposed use will not adversely affect neighboring property. Rollins Broadcasting of Delaware, Inc. v. Hollingsworth, 248 A.2d 143, 145 (Del. 1968).
The appellant contends that the record does not contain substantial evidence to support the findings of the Board. He argues that the Board members impermissibly based their decision on personal opinions and observations of the proposed location, not the evidence presented at the hearing. Appellant also contends that the letter of opposition entered by the Town of Bridgeville was improperly considered in the record because it was not furnished to the Applicant before the hearing nor properly admitted into the record. However, I find it unnecessary to address either of these arguments because, first and foremost, Mr. Ludema failed to present the Board with sufficient evidence to grant his special use exception.
The applicant failed to present any evidence that the proposed billboard would not substantially affect the surrounding property in an adverse manner as required by Sussex County Code 115-210. Whether or not a special use exception will have an effect on the property which surrounds it should be a primary consideration by the Board. Rollins, 248 A.2d at 145. The "burden of proof in such a request is on the applicant to produce substantial evidence to demonstrate that the proposed use complies with the standards of the Zoning Ordinance." Hudson v. Mitchell, 1985 Del. Super. LEXIS 1268 at *6 (Del.Super.Ct., 1985).
After reviewing the record, I have not found any evidence asserting that the installation of the billboard would not adversely affect property values. During the hearing, the applicant testified as to the presence of other businesses in the area, including a doctor's office and a gas station. He also noted the presence of a large sign, which he did not contend was the same type, size or character of the proposed billboard, in front of the gas station. While it is true that these factors support the commercial nature of the area, they do not shed any light on the billboard's effect on the surrounding properties. A billboard is considered a special use of commercial land. Code of Sussex County, Section 115-80(C). Therefore, the mere fact that a piece of property is zoned and used for other commercial purposes will not suffice to show that a billboard would not adversely affect the surrounding areas. The applicant offered nothing, other than his opinion, to show that the billboard would not adversely affect property values, such as statistics detailing the effect of similar billboards in comparable areas.
Nor was there any evidence presented that indicated the surrounding properties would be harmed by the billboard's installation. During the hearing, the only testimony opposing the billboard was a letter written by the Town of Bridgeville to the Board of Adjustment. In its letter, the Town referenced the lack of other billboards in the same area and the planned residential subdivision to be located across the street from the proposed billboard. But the town offered no material evidence as to the effect of billboards on similar areas. The only evidence presented at the hearing was the opposing opinions offered by the applicant and the Town of Bridgeville.
The members of the Board of Adjustment discussed their personal knowledge of the proposed billboard site during their July and August meetings. They also discussed the Town's objection to the billboard, noting the absence of any similar billboards on the surrounding properties. Based on this evidence, they voted and denied the applicant's request.
In its written decision, the Board noted that the burden of persuasion belonged to the applicant seeking a special use exception. They found that the applicant failed to present any evidence showing that the billboard would not adversely affect surrounding properties. Finally, the Board found that the addition of the billboard would more likely than not adversely affect the property values of the surrounding areas.
The applicant bore the burden of showing that the areas surrounding the proposed billboard would suffer no adverse effect due to its presence. However, Mr. Ludema failed to provide any evidence of the billboard's effect on the area. Having contradictory opinions before it and nothing else, the Board determined that the applicant had not met his burden.
The Board properly denied the applicant's request for a special use exception based on his failure to present any evidence demonstrating the billboard's lack of a negative impact on the surrounding properties. Essentially, the Board based its decision on a lack of evidence presented by the applicant rather than finding that the billboard would or would not affect the area negatively. The applicant's failure to meet his burden of proof is evident in the record and provides substantial and reasonable grounds for the Board's decision. Ganski v. Sussex County Bd. of Adjustment, 2001 Del. Super. LEXIS 93, *8-13. Because the applicant failed to provide the Board with the necessary evidence to carry his burden of proof for a special use exception, the decision of the Sussex County Board of Adjustment is AFFIRMED.