Opinion
C.A. No. 01A-07-008-RSG
Date Submitted: April 2, 2002
Date Decided: August 28, 2002
Upon Petition for Writ of Certiorari, Decision of The Board of Adjustment — AFFIRMED
MEMORANDUM OPINION
This is an appeal from a decision of the New Castle County Board of Adjustment ("Board") interpreting the New Castle County Code, Unified Development Code § 40.02.111. Badell Auto Body ("Badell") is the developer of the property at issue. B D Realty Company is the owner of the land. The Board denied Badell's application to expand the use of its commercially zoned property because the access road leading to it and the land over which it traverses are zoned for residential use. For the reasons set forth below, the decision of the Board is AFFIRMED.
I.Facts
This appeal arises from a dispute regarding an interpretation of the zoning code rendered by the New Castle County Department of Land Use ("Department") which affects Badell's one acre parcel of land and the land surrounding it, namely, the access road. The property at issue is located off an access road, namely, Limousine Drive, in Wilmington, Delaware. Although this property is zoned for commercial use, it is entirely encircled by residentially zoned property. To the north of the parcel lies a CSX railroad track and right-of-way. To the south of the parcel lies a right-of-way for Interstate 95. Presently, the property contains a 6,000 square foot building in which a limousine service business ("Dave's Limousines") is located. Travel to and from the property is negotiated via the aforementioned access road, Limousine Drive, which serves as a connector road to Marsh Road. Limousine Drive is completely contained within the railroad right-of-way.
The parcel at issue and its environs have sustained a long and winding zoning history, which is further complicated by a succession of owners whose interests in the property were just as diverse. The following background information is provided in an effort to lend understanding to this decision.
At some time during the 1950's, William Dupont owned a 13-acre parcel of land, except for the railroad right-of-way, extending between the BO Railroad tracks and the Old Carr Road in the vicinity of Marsh Road in Wilmington, Delaware. Mr. Dupont donated most of this land to the State for the construction of I-95 but retained a one-acre parcel for the transportation of his racehorses via the railroad. Mr. Dupont had access to the parcel from the train by way of a road that lay in the path of the proposed I-95 highway. The Delaware Department of Transportation ("DelDot") and Mr. Dupont agreed to exchange this access road for a new, reconstructed access road running along the right-of-way line of the BO Railroad. However, before that exchange occurred, Mr. Dupont died. In 1976, the Dupont family conveyed the one-acre parcel to the Fragomeles. In 1978, the New Castle County Council enacted an ordinance whereby 12 of the original 13 acres, including the access road, were down zoned from commercial to residential. Hence, the parcel in issue retained its commercial zoning although the remaining acreage, including the easement, was zoned for residential use. In 1982, the State conveyed a Deed of Easement for the access to the subject parcel. The Fragomeles conveyed the one-acre parcel to Phillip Eckstrand, who in turn applied to the Board of Adjustment to use the rezoned land for access to the commercially zoned land. The Board denied the variance in October 1984. Leonard Berkowitz purchased the parcel in 1986. Mr. Berkowitz wanted to construct a medical office on the property but was advised that the easement/access road was zoned for residential use, thus triggering his application to the Board for a variance. On June 20, 1991 the Board denied the application and the decision was appealed to the Superior Court. The key issue was whether the New Castle County Code allowed the use of a right-of-way through a residentially zoned land for access to a commercial parcel. The Court held that the Code did not prohibit a commercial right-of-way across a residentially zoned property. Shortly thereafter, in 1993, the County enacted legislation that effectively reversed the Court's decision and barred the use of residentially zoned property to access a commercial parcel. In 1997, the New Castle County Unified Development Code ("UDC") was passed to establish a comprehensive statutory scheme for the implementation of zoning laws throughout New Castle County. On July 7, 1998, zoning maps adopted pursuant to the UDC identified and classified Badell's parcel and the surrounding 12 acres as NC6.5, which is residential zoning. The then owner of the parcel contacted the Department and argued that the zoning of the parcel at issue should be zoned CR, meaning commercial, and not NC6.5. No request was made to change the district boundary line to the centerline of the railroad right-of-way. On September 4, 1998, the zoning maps were corrected to show that the one acre parcel was zoned CR. Landowners seeking to correct errors in the zoning map were given the opportunity to do so by submitting their written requests to the Department no later than the deadline of March 22, 2001. No request for a corrective rezoning regarding the parcel in issue was ever filed.
Berkowitz v. Board of Adjustment, 1992 W L 240423 (Del.Super.), aff'd., 625 A.2d 278 (Del. 1993).
See Unified Development Code § 40.02 .110C.
On January 27, 1999, Badell filed an application with the Department for an expansion of the building floor area. The application was denied. The Department notified Badell of the decision by letter on February 23, 1999, stating that the requested expansion could only be approved if the entire site was brought into conformity with the current regulations. Because of the code deficiencies present on the parcel, the Department denied the application. Once again, on February 1, 2000, Badell was informed that he was not permitted to expand the use of the parcel unless the property is rezoned or a variance is acquired. On March 22, 2000, the Department issued a final decision denying Badell's application due, in part, to the fact that the only access to the commercial site was through residentially zoned property, which constituted a violation of the zoning code. Badell appealed that decision to the Board on April 25, 2000, claiming that the Department misidentified the location of the zoning district boundary line. A public hearing was held on May 24, 2001, at which the parties submitted evidence and offered testimony to the Board. On June 27, 2001, the Board issued its decision affirming the Department's interpretation of the location of the zoning district boundary line.
See Unified Development Code § 40.08.130B.1.
Appendix to Appellee's Answering Brief, Tab C.
Id.
Appendix to Appellee's Answering Brief, Tab A.
On July 27, 2001, Badell petitioned this Court for a Writ of Certiorari seeking reversal of the Board's decision. According to Badell, the Department erroneously interpreted the UDC. He argued that the district boundary line for the disputed parcel should extend to the centerline of the railroad right-of-way. Badell relies for support of this proposition on the UDC, which provides, in relevant part, as follows:
Sec. 40.02.111. District boundaries.
The following rules shall be used to determine the precise location of any zoning district boundary line shown on the zoning map:
A. Boundaries shown as following, or approximately following, streets, alleys, or railroads shall be construed as following the centerline of such features.
B. Boundary lines shown as following, or approximately following, lot lines, section lines, survey or other property lines, or municipal boundaries shall be construed as following such lines. Where a dimension is used on the zoning map, and no more than fifty (50) feet of a lot is cut off by a zoning line, the entire property shall be considered to be within the zoning district with the largest area.
Unified Development Code § 40.02.111.
Badell asserts that § 40.02.111A controls, and argues that the district boundary line for his parcel should run to the centerline of the railroad right-of-way. This interpretation would mean that the access road, Limousine Drive, would be entirely located within the CR zoning district, thus allowing for commercial traffic to and from Badell's parcel.
The Board found this contention to be without merit and found that § 40.02.111B is the dispositive provision. In support thereof, the Board asserts that both Ordinance No. 78-12 and the zoning maps indicate that the CR district boundary line follows the northern lot line of Badell's parcel. Therefore, according to the Board, because the zoning district boundary line follows a lot line, as opposed to streets, alleys or railroads, Badell's CR district boundary line is coterminous with the NC6.5 boundary line. Thus, the CR district boundary line extends to the northern lot line of the parcel and the NC6.5 boundary line meets the CR boundary line at the northern lot line of Badell's parcel. The Board additionally asserts that if Badell thought that the Department erred in determining the location of the CR district boundary line, it should have made a request pursuant to the UDC for corrective rezoning. The Board argues that despite receiving repeated notices from the Department, well within the timeframe for corrective rezoning, Badell neglected to utilize the prescribed procedures for relief and, effectively, sat on his rights. Therefore, the Court should refrain from entertaining Badell's untimely appeal.
See Unified Development Code § 40.02.110.
II.Standard of Review
The standard of review by the Court of a decision rendered by an administrative agency is a limited one. A reviewing court is limited to correcting errors of law and determining 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." The interpretation of zoning ordinances is a question of law. Questions of law are reviewed de novo. A decision of the Board will be reversed when it is contrary to law. If the Board's decision is fairly debatable, the Court will defer to the discretion of the Board. This is because it is for the agency, and not the court, to weigh evidence and resolve conflicting testimony and issues of credibility. The Court is not authorized to remand a case to the Board of Adjustment.
Industrial Rentals, Inc. v. New Castle County Board of Adjustment, 2000 W L 710087 (Del.Super.), rev'd on other grounds, 776 A.2d 528 (Del. 2001).
Janaman v. New Castle County Bd. of Adjustment, 364 A.2d 1241 (Del.Super. 1976), aff'd., 379 A.2d 1188 (Del. 1972).
Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892 (Del. 1994).
Fantasia Restaurant Lounge, Inc . v. New Castle County Board of Adjustment, 735 A.2d 424 (Del.Super. 1998), aff'd, 734 A.2d 641 (Del. 1999).
Di's Inc. v. McKinney, 673 A.2d 1199 (Del. 1996).
Janaman v. New Castle County Board of Adjustment, 364 A.2d 1241 (Del.Super. 1976), aff'd, 379 A.2d 1118 (1977).
Mettler v. Board of Adjustment, 1991 W L 190488 (Del.Super.)
Mellow v. Bd. of Adjustment, 565 A.2d 947 (Del.Super. 1988), aff'd, 567 A.2d 422 (Del. 1989).
Petrucelli v. New Castle County Bd. of Adjustment, 1997 W L 817891 (Del.Super.).
III. Discussion
New Castle County is granted its authority to make zoning regulations by the State legislature. The Delaware General Assembly has conferred upon New Castle County Council the authority to enact zoning regulations. All zoning ordinances establishing zone district boundaries must do so with reasonable certainty to ensure that the zone districts will have definitive boundaries reasonably susceptible of being ascertained by the public and the administrative bodies charged with the enforcement of the ordinance. Thus, the establishment of zone district boundaries may not be left to the uncertainty of proof by extrinsic evidence. Rather, the boundaries must be definitively established by the ordinance itself. When applying a statute, the Court is responsible to give effect to legislative intent. In the event that the statute is unambiguous, the role of the Court is to apply the literal meaning of the words. It is only when a statute is ambiguous that a Court must turn to the various methods of statutory interpretation to divine the intent of the legislature.County Council utilizes various procedures to establish or rezone parcels of land and these means are memorialized in relevant provisions of the Delaware Code. Before a change in zoning can be effectuated, notice to the public followed by a hearing and County Council approval is required. The New Castle County Unified Development Code, adopted on December 31, 1997, was a major overhaul of the land use regulations for the County. Under the UDC, zoning districts are bounded and defined as represented on zoning maps.
Del. C. ANN. tit. 9 Del. C. § 2601 et. seq.
Id. at § 2607.
Kirkwood Motors, Inc. v. Board of Adjustment, 2000 WL 710085 (Del.Super.).
Unified Development Code § 40.02.100.
The Court finds that there is substantial evidence in the record in support of the Board's decision and the decision is free from legal error. Pursuant to the zoning map, adopted on September 22, 1998, and New Castle County Ordinance 78-12, adopted on April 27, 1978, the parcel in dispute has been zoned for commercial use, designated as "CR," for many years. It is clear from the zoning map that, in this case, the district boundary line dividing Developer's commercially zoned parcel from the residentially zoned property surrounding it follows a lot line. Accordingly, UDC § 40.02.111B is the controlling provision for purposes of determining the zoning district boundary line of Badell's parcel. The clear and unambiguous language of that provision holds that the zoning boundary line follows the property line. Because the Court finds that the UDC clearly defines the methods employed to determine district boundary lines and the Board, basing its decision on the facts of the case correctly applied the relevant provision to the case sub judice, that ruling will not be disturbed.
Id. at § 40.02.111B.
IV. Conclusion
For the reasons set forth above, the decision of the New Castle County Board of Adjustment is AFFIRMED.
IT IS SO ORDERED.