Opinion
C.A. No. 01A-10-002-WCC
Submitted: April 2, 2002
Decided: July 30, 2002
On Appellant's Appeal from New Castle County Board of Adjustment. Denied.
Leo John Ramunno, Esquire, 1205 N. King Street, Wilmington, DE 19801. Attorney for Anthony Scalia.
Brian J. Merritt, Esquire, Assistant County Attorney, Government Center, 2nd Floor, 87 Reads Way, New Castle, DE 19720. Attorney for New Castle County Board of Adjustment.
OPINION
This is an appeal by Anthony Scalia ("Appellant") of the New Castle County Board of Adjustment's decision regarding two area variance requests submitted by the Appellant. After reviewing the record and the briefs of the parties, the Court hereby affirms the Board's decision.
A. Facts
On June 14, 2001, Appellant filed an application with the New Castle County Board of Adjustment ("Board") seeking approval for two area variances relating to the property located at 504 N. DuPont Road, Wilmington, Delaware. The application requested variances from ordinances requiring: (1) uncovered driveways to be set back a minimum of two feet from any lot line; and (2) the 20 foot maximum height requirement for accessory structures. The Appellant requested the variances so he could construct a second floor on a detached garage, which would extend the garage height 10 feet higher than the 20-foot maximum allowed and to pave his driveway up to the southeasterly side property line. The Board held a hearing on the Appellant's application on August 9, 2001. In addition to the Appellant's presentation, the two neighbors whose properties abut the southeasterly property line presented testimony in opposition to the requested variances. The New Castle County Department of Land Use's recommendation to the Board was to deny the variance with respect to the detached garage but to grant a variance to within one foot from the side lot line with respect to paving. The Board voted to accept the recommendation finding that the Appellant had failed to establish the exceptional practical difficulty to justify the height variance request but the driveway variance to within one foot of the property line would not cause substantial detriment to the public good nor substantially impair the intent and purpose of the zoning code. The Appellant has appealed this decision.
Application No. 01-079-A.
New Castle County Zoning Ordinance § 40.04.110(E)(1)(e).
New Castle County Department of Land Use Ordinance § 98-062.
B. Standard of Review
In reviewing a petition for a writ of certiorari from a decision of the Board of Adjustment, this Court is limited to correction of errors of law and to determine whether or not substantial evidence exists on the record to support the Board's findings of fact and conclusions of law. Substantial evidence is evidence from which an agency fairly and reasonably could reach the conclusion it did. Therefore, if the record below contains substantial evidence in support of the Board's findings, that decision will not be disturbed.
Jenny v. Durham, 707 A.2d 752, 756 (Del.Super. 1997).
Mellow v. Board of Adjustment of New Castle County, 565 A.2d 947, 954 (Del.Super. 1988), aff'd 567 A.2d 422 (Del.Super. 1989).
C. Discussion
A request for an area variance is subject to the "exceptional practical difficulty" standard established in the case of Board of Adjustment of New Castle County v. Kwik-Check Realty, Inc. Under this standard, the Board of Adjustment must consider four factors to determine the appropriateness of the application. They are: (1) the nature of the zone in which the property lies, (2) the character of the surrounding community and the uses contained therein, (3) whether, if the restriction upon the applicant's property were removed, such removal would create unnecessary hardship or seriously impact the character of the surrounding community and the uses therein; and (4) whether, if the restriction were retained, it would create exceptional practical difficulty for the owner in relation to his efforts to make normal improvements in the character of a permitted use on his property. A review of the Board's decision indicates that it appropriately applied the Kwik-Check factors in making its decision.
389 A.2d 1289, 1291 (Del.Super. 1978).
Id.
First, there is no dispute that the property is located in a residential area and the requested variances are generally consistent with the nature of that zoning. Second, with respect to whether the proposed garage would be in keeping with the character of the community, the New Castle County Department of Land Use advised the Board in their recommendation that a brief inspection of the neighborhood did not reveal any special condition or exceptional situation that distinguished the Appellant's property from others to allow the variance. The Appellant failed to provide evidence of any similarly sized garages within the community and candidly admitted that none existed. Further, the Appellant failed to provide the Board with persuasive testimony on whether the proposed driveway would be in character with the area except to argue that several properties across the street had nonconforming driveways. While such information is relevant and potentially helpful to the Board in making their decision, it alone does not make the proposal consistent with the surrounding community. It is also fair to infer that if only two non-conforming properties were identified by the Appellant, that most properties in the neighborhood had the required setback. At best, the argument can be characterized as "he did it so why can't I."
Appellant was asked by the Chairman of the Board whether he could provide the Board with photographs or measurements of any similarly sized garages and he responded that he could not.
The photographs were different from the properties on Appellant's side of the street and were likely to be considered nonconforming because Ordinance No. 98-062 became effective on September 28, 1998. Therefore, driveways that were constructed before the adoption were permitted to remain that way unless replacement was necessary.
Next, with respect to whether removing the height restriction for the garage would affect the neighboring communities, clearly a structure of this size would be out of character with the neighborhood and would significantly affect the appearance of the area. The sense one gets from reading the testimony before the Board is the proposed structure would be like putting a commercial building in the middle of a residential neighborhood. The adjacent neighbors rightly objected and the Appellant produced nothing to rebut their objections. However, it is also clear that the Board viewed the driveway paving in a more favorable light. There were other properties in the neighborhood that did not meet the setback requirements and a six-foot wooden fence minimized the impact on the adjacent neighbor. In considering applications for zoning ordinances the Board is not, however, bound to an all or nothing decision. It is allowed to fairly balance the interest of the Appellant and neighboring properties and establish conditions or modifications that appropriately take into account the general interest of all affected parties. This is what occurred here. A reasonable adjustment to the setback would not seriously impact the community but limiting it to one foot fairly considered the property line dispute with the neighbor. The Court also notes that based upon a review of the evidence presented to the Board the Appellant should feel fortunate the Board granted any setback variance. It is clear the Board attempted to strike a fair resolution that would assist the Appellant in spite of the lack of evidence to support his request.
Finally, the Appellant's primary reason for seeking the height variance was compelled by personal motivations, rather than circumstances resulting from exceptional practical difficulties. It is rare that personal motivations constitute exceptional circumstances to justify the exceptional practical difficulties standard, particularly when there is no intrinsic relationship to the property itself. Here, the owner simply wanted more storage space and to build a wrestling room for his children. While the Court appreciates the Appellant's desire to provide this opportunity for his sons, this does not meet the fundamental requirement of unnecessary hardship or exceptional practical difficulty.
Eastburn v. New Castle County Board of Adjustment, C.A. No. 00A-10-006, 2001 WL 541479, at *3, Cooch, J. (Del.Super. May 18, 2001) (citing Doebling v. Board of Adjustment of Lewes, C.A. No. 86-FE-1, 1987 W.L. 10274, slip. Op. At *3, Chandler, J. (Del.Super. April 20, 1987)).
In conclusion, the presentation before the Board failed to establish the required practical difficulty standard and was simply a request by the Appellant to modify the zoning because he wanted to. More than personal desire is required, and the Board's decision was not only supported by substantial evidence and consistent with the law but was generous and a favor to the Appellant. As such, the Board's decision is affirmed.
IT IS SO ORDERED.