Opinion
CIVIL ACTION NUMBER 01A-01-014-JOH
Submitted: October 16, 2001
Decided: January 30, 2002
Appeal from a Decision of the City of Newark Board of Adjustment — REVERSED.
Appellant's Motion to Supplement the Record — MOOT.
M. Edward Danberg, Esq., of Connolly, Bove, Lodge Hutz LLP, attorney for John A. Bauscher.
Roger A. Akin, Esq., City Solicitor, attorney for City of Newark Board of Adjustment.
MEMORANDUM OPINION
The owner of a residential property has appealed a decision of the City of Newark Board of Adjustment denying a two-foot variance from the Newark zoning parking regulations. John Bauscher purchased an investment rental property at 19 Madison Drive, Newark, Delaware. He wanted to convert a garage on the property into a bedroom to make the property more attractive to potential renters. By doing so, one of the two 9' x 18' off-street parking spaces required by the City of Newark would be eliminated, leaving only a 16' x 20' blacktop area in the rear of the property for the two required spaces.
Bauscher sought a two-foot variance from the Board. He claimed that denying the variance would create an exceptional practical difficulty, whereas granting the variance would not cause substantial detriment to the public good. This is a legal standard the Board is required to consider in granting or denying an area variance. The issue is whether the Board erred as a matter of law by not considering that standard when it denied Bauscher's application. The Court finds that the Board erred as a matter of law because it did not consider the applicable legal standard in denying the parking variance. Therefore, the Board's decision is REVERSED.
FACTUAL BACKGROUND
Bauscher is the owner of 19 Madison Drive, College Park, Newark, Delaware. He owns several other investment properties in Newark that he rents for profit; 19 Madison Drive is one of those investment properties. The property has a rental history. It is sixteen feet wide and the entire area in the back of the house is blacktop. The total blacktop area is 16' x 20' and that connects to a service road. The property is zoned RR.
Bauscher applied to the City of Newark for a building permit to convert the garage into a bedroom to make the property more attractive to renters. On November 30, 2000, the City denied the permit to convert the garage. In the letter denying the permit, Junie Mayle, Director of Building for the City, stated that the garage conversion would leave the property without the two approved off-street parking spaces required by the City because Newark Code Chapter 32, § 32-4-(88) requires a parking space to be 9' x 18' and Bauscher's proposed parking spaces in the rear of the property measure only 8' x 20'. The City currently recognizes the garage as one of the two required parking spaces and the entire 16' x 20' blacktop area as the other. Without the garage, the only possible parking area would be the blacktop in the back of the property.
On November 30, 2000, Bauscher filed a notice of appeal with the Board seeking a two-foot variance from the minimum parking space requirements. The matter was heard on December 21, 2000 in front of the Board. At that hearing, Bauscher testified that he wanted to convert the garage into a bedroom. He stated that all of the other properties he owns on Madison Drive have the front rooms of the basement converted into a bedroom, but for this particular property, he wanted to convert the garage into a bedroom instead. He claimed that not getting the parking variance from the Board would cause him exceptional practical difficulty, and granting the variance would not cause substantial detriment to the public good.
To support the claim that the variance would not cause detriment to the public good, Bauscher testified that the 16' x 20' blacktop area is already used to park two cars side-by-side. He testified that many Madison Drive properties use the back area to park two cars. And, he testified that he owns the property next door, 17 Madison Drive, eliminating any possible dispute with that property.
To show the existence of exceptional practical difficulty, Bauscher testified that to add an extra bedroom, either the front basement room or the garage must be converted. To convert the basement, he said, an egress window must be installed below grade, the concrete floor would have to be torn up to provide enough head room, and the conversion could cause water problems in the basement. In light of these problems, the garage makes for a better conversion. Bauscher stated that the Board's decision on the variance will not prevent the property from being rented or prevent Bauscher from adding an extra bedroom, it will only determine whether the front basement room or the garage will be used for the conversion.
At the public hearing, a memorandum from Rich Lapointe, Newark Public Works Director, was given to the Board and conveyed to all those present at the hearing. The memorandum states, "After inspection of 19 Madison Drive, it is my professional opinion that 13 feet of access way, abutting an embankment, does not give ample turning radius maneuverability to allow two eight foot wide parking spaces." Bauscher disputes this opinion. He also objected to the use of the memorandum without the presence of Lapointe to testify and defend his position. The Board did not strike the Lapointe memorandum from the record since it was the regular practice of the Board to consider such reports.
Bauscher offered two witnesses in support of his application for the variance. The first was Vince D'Anna, an expert witness. D'Anna w as once a planner for New Castle County in charge of zoning. H e offered his opinion that using the 16' x 20' area would not present a problem to traffic and two cars could park in the space without difficulty. The other witness was Bruce Harvey, a Madison Drive rental property owner. He stated that parking two vehicles in the back of the Madison Drive homes is a benefit to the neighborhood, and did not object to a variance being granted for Bauscher. No neighbors appeared in opposition.
The Board voted 4-0 to deny the parking variance. The voting Board members attempted to articulate their reasoning for their decision. The following is a transcript of the Board hearing that was used by the Board as its written opinion.
Mr. Berg. Okay. Are there any more questions from the Board? (No response.) If not, I think it's time for us to decide what to do here tonight. Personally, I have heard, I think, all the angles of it. I am personally disturbed by the fact that in this particular address that we're looking at, it's no different than anything else, and why should it have requirements of the parking that are different from any of the others. I am also disturbed by the fact that in the past, the question about parking requirements has been one that the Board thinks ought to be referred to City Council and that the relief should come from City Council and not from the Board. So I am still of that opinion. So I would propose that this request for a variance be turned down and the petitioner referred to City Council.
Ms. Johnston: I think I would agree with you. I think that maybe . . . The parking has been such a contingent issue for so long, and has been worked on for so long by some of these people, and the way the Code is written has been written for a very specific reason. So it does bother me a little bit to step in hear and change it. And I do understand a lot of Mr. D'Anna said, but I do think I agree with you. I think it would behoove us to turn this down and let him go to City Council. Thank you.
Mr. LeJeune: Yes, I agree. I think the way the Code is written and from what Roger read, the only time I feel that we really have any kind of discrepancy is in the (inaudible) of latitude. Other than that, I don't really feel we have any latitude. That's just my personal interpretation. I'm no lawyer, but that's the way I take it.
Mr. Stone: I have given this some deep thought because we're only talking about two square-foot difference when you're looking at total square foot. My concern is about creating a situation for the future and the precedent that would be set if it were granted it could be continued on through every home down there in that area, be it good or bad. I am of the opinion that we don't have, if I'm understanding correctly, the lateral decision to do it. I think it should be reviewed again, as you say, before Council, if that's the proper planning, and if they see fit to adjust it in some manner, that would be a different situation, but the area that we have here and looking at the precedent that would be set, that is my only reason for saying no at this time.
Bauscher raises the suggestion whether this transcription, in lieu of formal written opinion, satisfies the Newark Code requirement that it be a written document which includes findings of fact. Previously, this Court has held that the transcription can so satisfy the code requirement. Schmalhofer v. Board of Adjustment of the City of Newark, Del.Super., C.A. No. 99A-05-010, Quillen, J. (May 9, 2000). The key remains, of course, that the transcript satisfies the Delaware Code requirements of (1) making findings of fact and (2) what each Board member used as a basis for his or her decision.
City of Newark, Delaware, Board of Adjustment Minutes (December 21, 2000) at 21-22.
APPLICABLE STANDARD
On appeals from the Board of Adjustment, this Court must limit its scope of review to correcting errors of law and determining whether the substantial evidence exists in the record to support the Board's findings of fact and conclusions of law. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. When such evidence exists, the Superior Court may not reweigh it and substitute its own judgment for the Board's. The Board must particularize its findings of fact and conclusions of law to enable this Court to perform its function of appellate review.DISCUSSION
The City requires two approved off-street parking spaces for properties zoned RR. The Newark Municipal Code states that "each parking space shall be nine feet by 18 feet (162 square feet in area)." The Board's ability to grant a variance is stated in the Delaware Code:
Authorize, in specific cases, such variance from any zoning ordinance, code or regulation that will not be contrary to public interest, where, owing to special conditions or exceptional situations, a literal interpretation of any zoning ordinances, 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, provide 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.
Bauscher was given a public hearing December 21, 2000 in front of the Board for his variance request to be heard. During the course of that hearing, he argued in favor of granting the variance by citing the proper legal standard to be considered by the Board, "exceptional practical difficulty." The Board heard testimony from Bauscher, D'Anna, an expert planner, and Harvey, a property owner from the neighborhood. All testified in favor of granting the variance. No one objected to the variance and no one disputed the testimony. The only evidence presented against Bauscher was the Lapointe memorandum to which Bauscher objected.
Bauscher's objection is twofold. One, the document is hearsay since Lapointe did not appear before the Board. Two, the Board considered it, over his timely objection, and apparently relied upon it.
The document is hearsay. To that extent, Bauscher is correct. But, should the Board be prohibited from considering it? Bauscher cites this Court's opinion in Barbour v. Unemployment Ins. App. Bd. as authority that the Board should not have admitted Lapointe's memorandum into evidence and considered it. His reliance upon Barbour is misplaced. In Barbour, however, unlike here, the administrative agency relied almost exclusively on hearsay evidence in reaching a significant decision. This Court said that was error, even though an agency can properly consider hearsay evidence.
Del.Super., C.A. No. 89A-MR-4, Herlihy, J. (October 26, 1990).
The Board here, however, did not base its decision on hearsay evidence. It may have used it somewhat, but not to the degree where Bauscher's fundamental rights were affected or to the degree the Board abused its discretion. The use of hearsay before zoning boards is not uncommon. Appropriate or inappropriate, reliance upon hearsay is a matter of degree and no bright line can be drawn. This case did not result in improper reliance upon hearsay because of the reasons the Board used to deny the variance. The Court will now examine those reasons.
See, e.g., Marriott Corp. v. Concord Hotel Management, Del.Supr., No. 2, 1990, Holland, J. (July 13, 1990).
In Board of Adjustment of New Castle County v. Kwik-Check Realty, Inc., the Supreme Court established requirements for a board of adjustment when it considers an area variance. The Court distinguished area variances and use variances, prescribing a less burdensome test where an area variance is in issue. The Court held that the less burdensome standard of "exceptional practical difficulties" must be proved by the property owner to obtain an area variance. Further, the Court held that "the inability to improve one's business, or to stay competitive as a result of area limitations, may be a legitimate exceptional practical difficulty' that would justify a grant of a variance." Bauscher is seeking an area variance.
389 A.2d 1289 (Del. 1978).
Id. at 1291. That this burden is virtually non-existent is epitomized by the Supreme Court's opinion in Marriott Corp. v. Concord Hotel Management, supra. There the property owner, a motel and restaurant operator, sought a parking space variance, as here, albeit, for many more spaces. The owner would have done, however, just as much with the property with the size of the parking spaces as the Code required. Similarly, Bauscher has said he would just convert another part of the house for the new rental unit if his variance application were denied. In reversing this Court on grounds not argued before it, the Supreme Court, nevertheless, said the owner had shown exceptional practical difficulty. The Board of Adjustment in Marriott said the County's parking space size was outdated and could be ignored. This Court said that did not make exceptional practical difficulty and blithely the Board's coup d' etat was overlooked on appeal. The Board in this case fell into the same trap as this Court by deferring any decision to reduce parking space sizes to the Newark City Council.
Id.
Such practical difficulty is present where "the requested dimensional change is minimal and the harm to the applicant if the variance is denied will be greater than the probable effect on neighboring properties if the variance is granted." In determining the owner's exceptional practical difficulties, the Board must consider four factors: (1) the nature of the zone in which the property lies, (2) the character of the immediate vicinity and the uses contained therein, (3) whether, if the restrictions upon the applicant's property were removed, such removal would seriously affect such neighboring property and uses, and (4) whether, if the restriction is not removed, the restriction would create unnecessary hardship or exceptional practical difficulties 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. Bauscher presented undisputed evidence touching on each of the above factors.
Id.; see also Mesa Communications Group v. Kent County Board of Adjustment, Del. Super., No. 00A-03-003, Witham, J. (October 31, 2000).
Id.
Bauscher argued to the Board that "not getting the parking variance will cause exceptional practical difficulty with, I think, without substantial detriment to the public good." This argument articulates the appropriate test that the Board must consider. The Board's reasoning makes it clear that Bauscher's argument of exceptional practical difficulty was not even addressed and the Kwik-Check Realty factors were not considered.
City of Newark, Delaware, Board of Adjustment Minutes (December 21, 2000) at 10.
See Dexter v. New Castle Bd. of Adjustment, Del.Super., C.A. No. 96A-03-003, Toliver, J. (September 17, 1996).
The Board must particularize its findings of fact and conclusions of law in order to enable this Court to fulfill its function of appellate review. The record does not reflect that the Board even acknowledged the fact that there was a legal standard to apply and factors to consider. In fact, the hearing transcript makes it clear that the Board members did not think they had the authority to grant the variance, instead suggesting Bauscher take his case to City Council. This is incorrect since the Delaware Code and case law establishes that the Board is the proper forum and lays out the legal standard to be used by the Board in making its decisions. The Board should have considered the four factors before the variance was granted or denied.
Id.
Kwik-Check Realty, 389 A.2d 1289.
The Board erred as a matter of law by denying the parking variance without considering Kwik-Check Realty factors. The Court does not have the authority to remand to the Board to address those factors. The Delaware Code provides that this Court "may reverse or affirm, wholly or partly, or may modify the decision brought up for review." Therefore, the Board's decision is REVERSED and Bauscher may refile the petition.
22 Del. C. § 328. The Court has no power to remand. This lack of authority continues to deeply trouble this Court and results in unnecessary expense to litigants.
CONCLUSION
Based on the foregoing reasons, the decision of the City of Newark Board of Adjustment denying the parking variance is REVERSED. This disposition moots John S. Bauscher's motion to supplement the record.
IT IS SO ORDERED.