Opinion
C.A. No. 06A-10-005 JRS.
Date Submitted: March 17, 2008.
Date Decided: July 21, 2008.
Upon Appeal from a decision of the Wilmington Zoning Board of Adjustment.
REVERSED.
Jeffrey S. Goddess, Esquire, ROSENTHAL, MONHAIT GODDESS, P.A., Wilmington, Delaware. Attorney for Petitioners.
Rosamaria Tassone, Esquire, CITY OF WILMINGTON LAW DEPARTMENT, Wilmington, Delaware. Attorney for City of Wilmington Zoning Board of Adjustment.
Douglas M. Hershman, Esquire and Scott G. Wilcox, Esquire, THE BAYARD FIRM, Wilmington, Delaware. Attorneys for Preservation Delaware, Inc.
Wendie C. Stabler, Esquire, SAUL EWING, LLP, Wilmington, Delaware; and Michael F. Bonkowski, Esquire, COLE SCHOTZ MEISEL FORMAN LEONARD, P.A., Wilmington, Delaware. Attorneys for CCS Investors, LLC.
MEMORANDUM OPINION.
I.
In this opinion, the Court considers a petition for writ of certiorari brought by David H. Brown, P. James Hahn, Kathryn A. Pincus, and Susan W. Soltys ("Petitioners") in which they seek review of a decision by the City of Wilmington Zoning Board of Adjustment ("ZBA") granting a use variance to CCS Invest ors, LLC ("CCS"). The variance allows CCS to construct an office complex on property zoned primarily for residential use. For the reasons that follow, the Court has concluded that the ZBA improperly granted a use variance based on a finding of hardship that was of the applicant's own making. Accordingly, the ZBA's decision to grant a use variance to CCS must be REVERSED.
II.
A. The Property
The property at issue ("Gibraltar") is located at the intersection of Pennsylvania Avenue and Greenhill Avenue within the City of Wilmington. It encompasses several acres of property that run along Greenhill Avenue for two city blocks from Pennsylvania Avenue east northeast to 16th Street. Gibraltar is the site of the Marian Coffin Gardens and several structures, including a historic mansion house and a stone wall that surrounds the property's perimeter. It is on the National Registry of Historic Places and is one of the few remaining walled estates still standing in Wilmington.
Gibraltar is in an area zoned R-1 (residential), although both commercial and residential uses exist in the surrounding neighborhoods. Most of the area immediately around Gibraltar is zoned either R-1, R-2, or R-5B and consists primarily if not exclusively of uses that are permitted in those respective residential zoning designations.
These permitted uses include, but are not limited to, places of residence, places of worship, schools, libraries, museums, art galleries, parks and other outdoor recreational facilities, cemeteries, certain day care and group home operations, fire houses, hospitals and private clubs. Wilm. C. § 48-131(c) and (d); Wilm. C. § 48-132(c) and (d).
B. The Conservation Easement and Proposals to Develop Gibraltar
Preservation Delaware, Inc. ("PDI") "became involved with the preservation of Gibraltar in 1995, primarily in response to neighborhood concerns about the possibility that the property would be demolished to make way for townhouses." In 1997, as part of a deal meant to preserve the property because of its historical significance, the owners of Gibraltar conveyed the estate to PDI in exchange for nominal consideration from PDI and a $1 million grant from the State of Delaware's Open Space Council. The sale was conditioned, inter alia, upon PDI's agreement to execute a Conservation Easement ("the Easement") on the Gibraltar property. The Easement limits any new construction to structures not exceeding 4,000 square feet and requires that such structures "be [placed] on the north side of the existing buildings with the specific location and exterior design subject to express written approval of Grantee." In addition, the Easement protects much of the mansion house, including its main floor, and the gardens from development or alteration. The Easement further provides that much of the maintenance and construction on Gibraltar is subject to State approval and that "[a]ll new construction or rehabilitation . . . shall be consistent with the U.S. Department of the Interior's standards for the treatment of historic properties . . ."
Docket Item ("D.I.") 34 at 7.
D.I. 39, Ex. 7 at 14-15.
Id. at 15.
Id. at 13-15.
In 1997, PDI contracted with Someplace That's Different, Inc. ("SDI") to develop a bed and breakfast and restaurant at Gibraltar, including the construction of a 14 room building near the mansion house. The ZBA unanimously approved a use variance to enable the SDI project to go forward. SDI was unable to finance the project, however, and was forced to withdraw its proposal. Because the plan to develop a bed and breakfast at Gibraltar failed, and no other BB suitors were forthcoming, PDI requested new adaptive reuse proposals in 2004. After receiving several proposals, PDI selected the proposal from CCS to develop Gibraltar for office space.
C. The Hearing On CCS' Application for Variance
Gibraltar's R-1 zoning designation required CCS to apply for a use variance before it could introduce commercial offices into a residential neighborhood. The ZBA conducted a hearing on the application in August, 2006. At the hearing, Rebecca Sheppard, a member of the PDI Board of Trustees and Chair of its Gibraltar Redevelopment Committee, testified that PDI's "advocacy efforts on behalf of [Gibraltar] began with a stipulation that an economically self-sustaining reuse of the building . . . would take place once it was acquired. . . . The idea was to develop an adaptive reuse on the site that would generate a financial stream to support the property." According to Ms. Sheppard, PDI received nine proposals to develop Gibraltar. The full details of these proposals were not provided due to confidentiality concerns. Ms. Sheppard did state that the proposals included plans for townhouses, educational uses and commercial enterprises, such as medical facilities, restaurants or shops. As of the time of the hearing, however, Ms. Sheppard claimed that CCS's proposal was the only viable proposal on the table.
D.I. 34 at 7.
Id. at 10-12.
Id.
The testimony at the hearing revealed that the gardens have been restored and are in good condition but that the mansion is in very poor condition. Witnesses described wood rot, plaster and water damage, roof damage, asbestos, lead paint and mold throughout the house. In addition, "[t]he main floor is occupied by numerous animals," and vandals regularly cause damage to the inside and outside of the house. Given the extensive damage to the home, it was estimated that the total cost to return Gibraltar to its former condition would be between $9,000,000 and $10,000,000. When asked what would happen if the CCS plan did not go forward as proposed, Ms. Sheppard responded that the mansion will continue to deteriorate, which will only increase the cost of restoration, and that the State may find PDI in default of the Easement.
Id. at 18-21, 24, 25, 45, 50, 51, 53.
Id. at 21.
Id. at 22-23.
Id. at 12.
The applicants presented evidence as to why a commercial adaptive reuse plan, specifically a plan like CCS', as opposed to a residential project, was necessary to save Gibraltar. Adrian Fine, Director of the Northeast Field Office for the National Trust Historic Preservation, testified that commercial adaptive reuse plans are effective and even preferred methods for preserving historic buildings that can no longer be used for their intended purpose. Ted Williams, the site engineer, estimated that without the Easement, a total of 18 residential homes could be built at Gibraltar. With the restrictions from the Easement in place, however, he estimated that only two residential lots could be developed. Neil Killian, a commercial real estate broker, testified that, because of the Easement, a residential subdivision of Gibraltar was not an economically viable option:
Id. at 17-18.
Id. at 30, 31.
Id. at 32.
I [looked] at some of the recent, comparable home sales in and around the Gibraltar site, as well as some recent home lot sales in and around the area, and essentially what it reflects is that homes in the area can range anywhere [from] half a million to six million dollars and lots can range anywhere from the low one hundred thousands to as high as six hundred thousand, and just given those parameters and based on [Ted's] analysis of what can actually be done on this site, in a residential capacity, it's very easy to discern that residential is not adequate to generate the return needed to salvage the mansion and gardens.
Id. at 37.
Mr. Killian went on to explain that a 10,000 square foot office building (as opposed to a smaller structure) was needed to generate a rate of return to the developer that would justify the risk to be incurred in the project.
Id.
The applicants went to considerable length to explain the proposal to develop Gibraltar. CCS proposed to use the existing structures at Gibraltar, as well as a newly constructed, two story, 10,000 square foot building, to provide approximately "40,000 square feet" of office space. Michael Looney, the design architect, stated that the anticipated maximum number of tenants would be three — one per building. CCS' counsel explained that her client envisioned a unique tenant, such as a law firm, a "brokerage firm, a real estate brokerage firm, financial firm, [or] trust department," who would place approximately 75 people on site. She also explained that, through various architectural designs and by distributing the parking around the grounds, CCS had attempted to ensure that the project would comport with the residential nature of the neighborhood. In total, she said, CCS's plan contemplated that Gibraltar would accommodate parking for 97 cars, with 23 spaces underground below the new office building. Counsel further explained, and Mr. Williams corroborated, that the main entrance and exit to and from Gibraltar would be at the corner of Greenhill Avenue and 16th Street with a plan to divert exiting traffic onto Pennsylvania Avenue. In addition, she said that CCS hopes to receive permission to construct a right turn lane from Pennsylvania Avenue into the property.
Id. at 16.
Id. at 34.
Id. at 15.
Id. at 6.
Id. at 5.
Id. at 6, 29.
Id.
D. The ZBA's Approval of the Use Variance
The ZBA approved the use variance by a vote of 2-1. The written decision, issued August 9, 2006, states:
[T]he Board having held a public hearing and having heard all the testimony and considering the location, is of the majority opinion that the application could be granted without substantially impairing the general purpose and intent of the Building Zone Ordinance and that it would not adversely affect the character of the neighborhood and there being circumstances of hardship or exceptional practical difficulty . . .
D.I. 39, Ex. 2 at 1.
With respect to its finding that "circumstances of hardship or exceptional practical difficulty" justified the variance, the ZBA enumerated the following factors:
1) Given the renovation costs, the existing building cannot reasonably be used in a manner permitted by the current zoning;
2) the buildings existing on the premises are in a seriously deteriorating condition and the approval of the variance would allow for their restoration and;
3) the buildings on the premises have significant historic value and have been, and would continue to be, an asset to the neighborhood and the city in general, and;
4) considering that there are development restrictions limiting the use of the property that, while self-imposed, were specifically instituted to prevent the destruction of the buildings and grounds, to prevent large scale redevelopment of the site, and to promote the restoration of the historic structures and gardens, and;
5) considering that it had been understood, at the time of the imposition of the restrictions, that some alternative use would be required to sustain and fund the restoration, and;
6) considering that the Board had previously approved such an alternative use (for a hotel/restaurant/bed and breakfast) and that the current proposal is reasonably similar in scope, and;
7) considering that the property owner has considered a number of potential alternative uses, over a period of years, and;
8) considering that the proposed new structures have been designed to limit their visibility to the surrounding area and to be compatible with the residential structures in the area, and;
9) considering that ample parking is to be provided to accommodate the use and that entrances and exits have been designed to funnel traffic to arterial streets and to minimize traffic impact on the residential neighborhood streets, and;
10) considering that there are other commercial and office uses in the area, such that the proposed use would not be entirely inconsistent with the character of the neighborhood.
Id. at 1-2.
The lone vote in opposition to granting the variance was cast by the Chairman of the ZBA, an attorney, who explained his vote as follows: "I, one thing that really concerns me in this particular case is when a property owner puts restrictions essentially on himself, which really gives the property owner a very hard time in conforming to the zoning code, and I think in large part, that's what happened here."
D.I. 34 at 56-57.
III.
Petitioners argue that the ZBA's decision must be reversed because it is tainted by legal error and not supported by substantial evidence. Specifically, they argue that: (1) any hardship established by the Petitioners was self-created and, therefore, a use variance cannot be granted to alleviate the hardship; (2) the deterioration of Gibraltar should not have been considered in support of the decision to grant the variance; (3) CCS did not present substantial evidence to establish hardship; and (4) the CCS project allowed by the variance would alter the essential character of the surrounding neighborhood. Respondents (the ZBA, PDI and CCS) counter that the ZBA applied the correct legal standards and rendered a decision supported by substantial evidence.IV.
In their Opening Brief, Petitioners expected Respondents to propose a standard of review that would require the Court to pay extraordinary deference to the ZBA's findings of fact and conclusions of law. They argued that such deference was not required. After reviewing Respondents' answering briefs, Petitioners now acknowledge that the parties essentially agree on the standard of review applicable to this statutorily prescribed certiorari review of the ZBA's decision. The Court has issued a writ of certiorari calling for the appellate review of the ZBA's decision to grant a zoning variance. In this posture, the standard of review is well settled and mirrors the standard applicable to this Court's review of decisions rendered by other administrative agencies.
See 22 Del. C. § 328.
See Cooch's Bridge Civil Assoc. v. Pencader Corp., 254 A.2d 608 (Del. 1969) (explaining difference in standard of review for statutory and common law certiorari proceedings); Hanley v. City of Wilmington Zoning Board of Adjustment, 2000 WL 1211173 (Del.Super.Ct. Aug. 3, 2000) (setting forth the standard of review for statutory certiorari review of municipal zoning board decision).
When an appeal is brought pursuant to 22 Del. C. § 328, this Court's review is confined to ensuring that the zoning board made no errors of law and determining whether "substantial evidence" supports the board's factual findings. Questions of law that arise from the board's decision are subject to de novo review, which requires the Court to determine whether the board erred in formulating or applying legal precepts. "[F]actual determinations of an administrative agency are binding on appeal if supported by `substantial evidence' in the record." Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Mavrantonis v. Bd. of Adjustment, 258 A.2d 908, 910 (Del.Super.Ct. 1969).
In re Beattie, 180 A.2d 741, 744 (Del.Super.Ct. 1962) (citations omitted).
Id.
Breeding v. Contractors-One, Inc., 549 A.2d 1102, 1104 (Del. 1998).
V.
A. Zoning Variances GenerallyIn Delaware, property owners may obtain relief from zoning restrictions by asking the regulatory authority to grant either an area or use variance. The area variance allows a property owner to make use of his property in conformance with the uses allowed by a zoning restriction but in a manner that would be contrary to a specific building restriction, e.g., a setback or height limitation. The variance amends the building restriction and incorporates the more accommodating restrictions agreed to by the zoning board. To obtain an area variance, the applicant must meet an "exceptional practical difficulties" test that requires a showing that "the property or a structure thereon cannot, as a practical matter, be used for a permitted use without coming into conflict with certain of the restrictions of the ordinance."
Bd. of Adjustment of New Castle county v. Kwik-Check Realty, Inc., 389 A.2d 1289, 1291 (Del. 1978).
Kwik-Check Realty, Inc. v. Bd. of Adjustment of New Castle County, 369 A.2d 694, 698 (Del.Super. 1977) (citations omitted), aff'd, 389 A.2d 1289 (Del. 1978).
A use variance permits the owner to utilize his property in a manner (or for a use) that is otherwise proscribed by the zoning restriction, e.g., allows a commercial use in a residential district. In recognition that a use variance actually "changes the character of the zoned district by permitting an otherwise proscribed use," the law requires the applicant to meet the more onerous "unnecessary hardship" test. Under this test, the applicant is obliged to establish that: (1) the land cannot yield a reasonable return if used only for the permitted use; (2) the need for the variance is due to unique circumstances and not general conditions in the neighborhood which reflect unreasonableness of the zoning ordinance itself; (3) the use sought will not alter the essential character of the locality; and (4) all uses permitted on the land under existing zoning are economically unfeasible. The parties agree that the variance at issue in this case is a use variance because CCS is seeking to develop an office complex in an area zoned residential. CCS was required, therefore, to meet the unnecessary hardship test to obtain its variance.
Id. (citations omitted).
Bd. of Adjustment of New Castle County v. Kwik-Check Realty, Inc., 389 A.2d at1291.
Baker v. Connell, 488 A.2d 1303, 1307 (Del. 1985).
B. Use Variances Are Not Available to Remedy Self-Imposed Hardships.
PDI presented a case of hardship to the ZBA predicated upon the basic proposition that the Easement on Gibraltar rendered any use permitted under the R-1 zoning economically impracticable. Residential development was not possible because the Easement placed building restrictions on the property that would allow only two lots to be developed. The proceeds from such a project would fall woefully short of what is needed to rehabilitate Gibraltar in the manner required by the Easement. PDI's good faith search for an adaptive reuse plan yielded only one alternative (the CCS proposal) that would allow PDI and the developer to stay true to the Easement and still generate the proceeds of development necessary to save and preserve Gibraltar as contemplated by the Easement. Such was the predicament confronting the ZBA when CCS presented its application for a use variance.
In Delaware, a landowner has no right to a use variance when the hardship is self-imposed. The hardship will be deemed self-imposed if it results from a voluntary, affirmative act of the landowner. While no Delaware court has expressly characterized this prohibition as a per se rule, as explained below, the absolute nature of the "self-imposed hardship" doctrine flows in logical sequence from other well-settled, unequivocal pronouncements of Delaware land use law.
See Baker, 488 A.2d at 1308; Jenney v. Durham, 707 A.2d 752, 753 (Del.Super.Ct. 1997), aff'd, 696 A.2d 396 (Del. 1997); Dexter v. New Castle Bd. of Adjustment, 1996 WL 658861 *5 (Del.Super. Sept. 17, 1996), aff'd, 692 A.2d 414 (Del. 1997); Haley v. Potter, 1995 WL 790980, at *4 (Del.Super.Ct. Nov. 30, 1995), rev'd on other grounds, 683 A.2d 59 (Del. 1996); Leager v. Bd. of Adjustment, 1986 WL 16288, at *2 (Del.Supr.Ct. Jan. 22, 1986). The Superior Court has also distinguished between use and area variances, saying that while "a self-imposed hardship defeats any right to a use variance . . . there is no such per se rule for area variances . . ." Haley, 1995 WL 790980, at *4. See also 83 AM.JUR.2d Zoning and Planning § 799 (2003)("A property owner or applicant is not entitled to a use variance where the hardship suffered because of the zoning restriction is self-inflicted or self-created.").
Dexter, 1996 WL 658861 at *6 ("[A] self-created hardship is one created by affirmative action on the part of the applicant which resulted in a condition requiring the variance."). It has also been suggested that self-imposed hardships "are those which arise from difficulties uniquely personal to the owner, rather than intrinsically related to the property itself . . ." Id. at *5 (citation omitted). See also Baker, 488 A.2d at 1303 (The Court distinguished between "prior knowledge of . . . existing zoning restrictions" which are "merely an element to be considered in determining the existence of a hardship" and "voluntary acts" which themselves are self-imposed and, if the basis of the application for variance, disqualify the landowner from zoning relief.).
As stated, a use variance cannot be granted unless the applicant satisfies the unnecessary hardship test. This rule is without exception; the court must reverse a zoning authority's grant of a use variance if it is the product of any standard other than the unnecessary hardship test. Not only is the unnecessary hardship test the only route that leads to a use variance, each element of that test must be satisfied before the applicant may secure the desired variance. When the landowner himself creates the hardship upon which his application for a use variance is based, he cannot, as a practical matter, and as a matter of law, in any instance, satisfy all of the essential elements of the unnecessary hardship test. This circumstance is illustrated by Jenney v. Durham where the court found, and the Supreme Court later affirmed, that the first and second prongs of the unnecessary hardship test could not be satisfied because the landowner "created a situation where he [needed] a variance to build" when he agreed to grant a conservation easement on a portion of his land . Because a self-imposed hardship cannot be utilized to satisfy any element of the unnecessary hardship test, and because each element of the test must be satisfied to secure a use variance, the presence of a self-imposed hardship, as a matter of law, will preclude the applicant from prevailing on an application for a use variance.
Jenney, 707 A.2d at 757.
Id. (reversing the grant of a use variance based on the "exceptional practical difficulties" test).
See Baker, 488 A.2d at 1307 (explaining that each element of the unnecessary hardship test is considered "prerequisite proof" which must be satisfied before a use variance can be granted); Anthony v. Bd. of Adjustment, 1998 WL 472763, at *7 (Del.Super.Ct. May 19, 1998) (stating that "the unnecessary hardship test is a conjunctive test requiring [satisfaction of] all three elements of the test").
See Jenney, 707 A.2d at 758.
Id. (noting that the applicant could not satisfy the "reasonable return" aspect of the first prong, or the "unique circum stance" aspect of the second prong of the unnecessary hardship test when the need for a variance is prompted by a self-imposed restriction). To reiterate, the first element requires the applicant to demonstrate that "the land cannot yield a reasonable return if used only for the permitted use;" the second element requires a showing that "the need for the variance is due to unique circumstances and not general conditions in the neighborhood which reflect unreasonableness of the zoning ordinance itself." See Baker, 488 A.2d at 1307. In this case, CCS also satisfied the fourth element by virtue of the self-imposed hardship — that "all uses permitted on the land under existing zoning are economically unfeasible." Id.
The rationale of this per se rule finds its roots in the purpose of the regulatory scheme that gives rise to zoning ordinances and in the purpose of the remedy at issue — the zoning variance. Zoning ordinances exist "to promote the general welfare." While constitutional safeguards apply, the State may exercise, through its police powers, the right to limit the property rights of its citizens in order to "make the locality a better place in which to live, to protect the value of the property and provide for the health and safety of those who live there." The basis for this authority "is found in the conception that it was never intended that individuals should be granted the right to interfere with the State in the adoption of such measures as are reasonably necessary for the general protection of society and to preserve the peace, good order, safety, health and morals of the members of society."
In re Auditorium, 84 A.2d 598, 602 (Del.Super. 1951).
Id. at 602-03.
Id.
Variances serve as an "escape valve" when strict application of a particular zoning ordinance would result in an unnecessary burden upon a landowner. "The purpose of a variance is to protect [a] landowner's rights from the unconstitutional application of zoning law." A board of adjustment should grant a variance from a zoning restriction where "strict application would amount to an unconstitutional taking. . . ." The variance "is intended to strike a balance" between preserving the public's interest in regulating land use and protecting the landowner's interest in exercising his property rights free from unconstitutional deprivations by the government.
Miller Son Paving, Inc. v. Wrightstown Tp., 451 A.2d 1002, 1007 n. 7 (Pa. 1982).
83 AM. JUR. 2d Zoning and Planning § 750 (2003).
101A C.J.S. Zoning and Planning § 301 (2005).
Id. See also Greenawalt v. Zoning Bd. of Adjustment, 345 N.W.2d 537, 541 (Iowa 1984).
In performing its regulatory function, the zoning board must not ignore that its "paramount consideration is the public interest." This is particularly true when the board endeavors to determine whether strict application of a zoning ordinance will result in "unnecessary hardship." "[E]ven in the face of an alleged hardship, the Board must observe the spirit of the challenged zoning ordinance and do substantial justice. Those legal principles are to be given effect in accordance with the facts of each case." The burden that must be overcome to receive a variance is great because "it is recognized that a prohibited use, if permitted, would result in a use of the land in a manner inconsistent with the basic character of the zone."
Baker, 488 A.2d at 1307.
Id.
Id.
Id.
In applying for a variance, a landowner seeks permission to violate a regulation enacted by the government for the public good. Granting a use variance to a landowner who created the hardship from which he seeks relief frustrates the purpose of both zoning ordinances and zoning variances. The variance is a remedy designed to provide relief from an unnecessary hardship that arises from the government-imposed ordinance or regulation, as opposed to an outside influence or internally created conflict. The balancing of interests between the landowner and the government — the essence of land use regulation — is not implicated when the hardship confronted by the landowner is of the landowner's own making separate and apart from the government-imposed restrictions.
See Town of Atherton v. Templeton, 17 Cal. Rptr. 680, 684-85 (Cal.Dist.Ct.App. 1961) (finding that a variance cannot be granted when the hardship is self created because it would allow a landowner to bring the hardship upon himself and later seek a variance for the current circumstances as he created them).
See 83 AM.JUR. 2d Zoning and Planning § 799(2003). See also Wilm. C. § 48-70 (b)("The zoning board of adjustment may . . . grant a variance from the requirements of this chapter . . .") (emphasis added).
See Baker, 488 A.2d at 1307 (explaining that a variance may be granted when a " literal enforcement of the ordinance will result in `unnecessary hardship.'") (emphasis added). See also Booe v. Zoning Board of Appeals, 202 A.2d 245, 246 (Conn. 1964)("When the claimed hardship arises because of the actions of the applicant, the board is without power to grant a variance.").
While the Court recognizes the potentially harsh results that may result from enforcement of a per se rule, the prospect that an owner might purposefully manipulate zoning restrictions by affirmatively creating a circumstance that causes perceptibly untenable hardship in the use of his property within a zoning designation cannot be countenanced. As one court has observed:
[T]he court must wholly ignore all conditions which resulted from the plaintiff's actions. If this were not so, then any landowner could violate a zoning ordinance with impunity, secure in the knowledge that, by just going far enough, by devoting his land to unrestricted uses, and by creating a situation in which enforcement would result in hardship to him, he could obtain a judgment that the ordinance is unconstitutional as applied to then existing circumstances as changed by his actions.
While a plaintiff may ignore an unconstitutional ordinance, this does not, and cannot, mean that a person may proceed contrary to an ordinance and then claim that it is unconstitutional because of the result and effects of his own actions in disregard of the ordinance.
Town of Atherton, 17 Cal. Rptr. at 685 (emphasis in original) (citation omitted). The Court acknowledges that none of the parties in this litigation have challenged the constitutionality of the zoning ordinance governing the Gibraltar property. The Court is also aware that, in Delaware, a landowner need not prove that the zoning ordinance is unconstitutional to obtain a variance from that ordinance. Town of Atherton is cited here only to illustrate that other courts have recognized the danger that, but for the self-imposed hardship doctrine, a landowner might create a hardship for the purpose of obtaining a variance so that he can use his property in a manner not otherwise permitted.
PDI acquired Gibraltar knowing full well that its ownership would be subject to the restrictions of the Easement. This was the state of its ownership from the time it acquired the property through the time it sought to partner with CCS to build offices on Gibraltar in contravention of the prevailing zoning restrictions. The fact that PDI could not build enough residential units, consistent with the R-1 zoning, to yield an adequate return to preserve Gibraltar is a direct, proximate result of the restrictions imposed by the Easement. Thus, the hardship that allowed CCS to claim it had satisfied the first, second and fourth elements of the unnecessary hardship test was self-imposed and not the product of any "unique circumstances [or] general conditions in the neighborhood." As a matter of law, however, the hardship flowing from the Easement cannot be considered in the unnecessary hardship analysis. The ZBA committed legal error by finding unnecessary hardship and granting a use variance based on a hardship that was self-imposed.
See Baker, 488 A.2d at 1307; Jenney, 707 A.2d at 758.
See Baker at 1308.
The Court acknowledges that PDI has made extraordinary efforts in its fight to preserve Gibraltar. With the Easement in place, however, PDI is fighting with one hand tied behind its back. The Easement and the R-1 zoning designation for Gibraltar leave PDI with few options. But neither PDI nor the other Respondents have directed the Court to any authority that would suggest that PDI's good faith effort to secure an appropriate reuse solution, or the ongoing deterioration of Gibraltar, are factors that overcome the dispositive fact that the restriction on PDI's ability to make full use of the property within the R-1 zoning designation is a circumstance of its own making. This unfortunate circumstance cannot be remedied by a use variance.
Indeed, if not for the fact that the hardship was self-imposed, the Court would have no hesitation in concluding that the applicants satisfied the "unnecessary hardship" test. Gibraltar is in decay and needs to be saved. After an exhaustive search, CCS and PDI have offered a solution that, while at odds with the R-1 zoning, would result in a use of the property that will salvage the existing structures in a manner that would not materially alter the character of the surrounding community. In this regard, but for the legal error herein identified, the Court is satisfied that the ZBA decision is supported by substantial evidence.
Re-zoning the area to allow for commercial development, pursuant to Wilm. C. §§ 48-51 and 48-52, is an option PDI might wish to explore. As long as the proper procedures are adhered to, the possibility of having the area rezoned is not insurmountable. See e.g., Co. Council of Sussex Co. v. Green, 516 A.2d 480, 481 (Del. 1986)("At a minimum, such proceedings require adequate notice to all concerned; full opportunity to be heard by any person potentially aggrieved by the outcome; a decision which reflects the reasons underlying the result and, most importantly, an adherence to the statutory or decisional standards then controlling.").
VI.
For the reasons set forth above, the decision of the ZBA granting a use variance to CCS to construct an office park on Gibraltar must be, and hereby is, REVERSED.
IT IS SO ORDERED.