Opinion
Civil Action No. 00A-09-014 SCD
Submitted: February 20, 2001
Decided: June 26, 2001.
Upon Appeal from the New Castle County Board of Adjustment
William E. Manning, Esquire, Richard A. Forsten, Esquire, Francis X. Gorman, Esquire, Klett Rooney Lieber Schorling, Wilmington, Delaware, attorneys for Diversified Holdings, Inc.;
Daniel R. Losco, Esquire, William P. Brady, Esquire, Losco Marconi, Wilmington, Delaware, attorneys for J. Fran Dell, Inc.;
Megan K. D'Iorio, Esquire, John Edward Tracey, Esquire, Assistants County Attorney, New Castle County, Delaware, attorneys for New Castle County Department of Land Use and New Castle County Board of Adjustment; and
Marybeth Putnick, Esquire, Daniel G. Atkins, Esquire, Wilmington, Delaware, attorneys for Amicus Curiae Disabilities Law Program of Community Legal Aid Society, Inc.
OPINION
The sole issue in this appeal is whether Independence Way, a roadway which provides exclusive access to the facility in question, is a collector street as that term is defined under the New Castle County Unified Development Code ("UDC"). I conclude that the segment of the road pertinent to the appellant's operation is a collector street and reverse the decision of the New Castle County Board of Adjustment.
FACTS AND PROCEDURE
Appellants, Diversified Holdings, Inc. ("Diversified") and J. Fran Dell, Inc. ("Fran Dell"), appeal the New Castle County Board of Adjustment (the "Board") decision of September 14, 2000. In a split decision, the Board upheld the findings of the New Castle County Department of Land Use ("Land Use") to restrain or prohibit appellants from conducting certain educational and institutional programs at a property located at 11 Independence Way in New Castle County due to non-compliance with the New Castle County Unified Development Code ("UDC").
Amicus curiae briefs were also filed supporting the appellants' position. Although the Court appreciates these submissions, they were not considered as they only addressed the question of variance, an issue not reached by the Court.
Diversified is the owner and lessor of real property located on Independence Way in New Castle County. The property, which consists of three parcels totaling 19 acres, is leased to Fran Dell. Independence Way bisects the three lots, with parcel 2 lying on the western edge of the street and parcels 1 and 3 on the eastern side. Fran Dell has an option to purchase the property and desires to use the property for certain educational and institutional uses.
See attached drawing. [EDITIOR'S NOTE: THIS DRAWING IS ELECTONICALLY NON-TRANSFERRABLE.]
The improved, or developed, property consists of approximately 7.73 acres and is currently zoned NC40 (Neighborhood Conservation). The property was improved with a 73,053 square foot facility ("facility") in the early 1990s. The facility was used as a head injury rehabilitation center that operated pursuant to a special exception granted by the Board in 1987. Patients at the facility either stayed overnight or arrived and left on a daily basis to undergo educational and vocational therapy as part of a program designed to help them recover from severe head injuries. The rehabilitation center filed for protection under the Bankruptcy Act in the mid-90s, and Diversified acquired the property from the lender who had foreclosed. For several years, the property remained vacant because Diversified was unable to locate an interested buyer or tenant who could take advantage of the special features and size of the facility. During this period, New Castle County drafted and adopted the Uniform Development Code ("UDC") which replaced the County's prior zoning code.
See New Castle County Code, Uniform Development Code § 40.02.241. NC40 is the neighborhood type formerly called single family detached.
Under the zoning code in effect in 1987, the Board could grant a special exception to allow a use in a zoning district that was not permitted by right. New Castle County Code § 23-85 (1982, Supp. No. 2). In 1987, the parcel was zoned R-2 (Residential). Pursuant to the standards of granting special exceptions, the Board granted the special exception finding there was a need for the hospital for the convenience and welfare of the public and the proposed use as a head injury center would not be detrimental or injurious to the neighborhood or the County. The right to use the facility as a head trauma center still exists under the special exception granted by the Board on November 19, 1987.
The facility is accessed via Independence Way, a 60-foot wide dedicated, 36-foot wide paved, privately maintained public right-of-way which originally terminated just beyond the driveway into the facility. Later, Independence Way was extended to provide the only present and possible access to Southridge, a 54-unit adult condominium community located at the end of the street. The extension of Independence Way was not built to the same width and standards as the original section. Independence Way leads to West Chestnut Hill Road, a twolane street classified as a "collector" street by Land Use under the UDC.
See Letter from State of Delaware Department of Transportation to Karins and Associates dated October 24, 2000.
The Southridge community is on a parcel of 25.8 acres. Thus far, only 2.5 acres has been developed. Because the parcel backs up to Interstate 95, Independence Way will be the only route of ingress and egress.
See New Castle County Code, Unified Development Code § 40.33.300, which provides in relevant part: " Street, collector. A street which serves or is designed to serve as the connection from minor streets to the arterial street system, such as the main entrance street of a residential development, or as a secondary connection between arterial streets."
Currently, Diversified leases the property to Fran Dell. Fran Dell operates the "New Beginnings" and the "First State" programs at the facility. The programs provide educational, rehabilitative, therapeutic, and family support services to "at-risk" and disabled adolescents. The New Beginnings program involves the daily transportation by bus of approximately one hundred (100) at-risk students from their respective public schools to the facility. The First State program involves the attendance of approximately fifty (50) severely handicapped children, approximately half of whom will be full-time residents of the facility.
Prior to leasing the property, Fran Dell sought to verify that the property could be used for educational and institutional purposes. Fran Dell was informed that the uses requested by Fran Dell were permitted as "limited uses" under the UDC, and would be permitted only if the property contained at least 5 acres of land and was accessed via a collector street. Land Use confirmed that the property met the acreage requirement and that it was accessible via West Chestnut Hill Road and Independence Way. Fran Dell commenced operations at the property on June 28, 2000.
The parties agree that pursuant to the New Castle County Unified Development Code ("UDC"), the use of the facility for both programs is classified as a combination of Institutional Residential Type II and School. See New Castle County Code, Unified Development Code § 40.33.230(B) and (F). These uses are permitted only as "limited uses" in the NC40 zoning district. See New Castle County Code, Unified Development Code § 40.03.110. A limited use is permitted only upon the determination of Land Use that locational, design, and other criteria of the UDC have been met for the proposed site or the specific land use. The UDC permits an Institutional Residential Type II use in a NC40 zoning district if: (1) the site is at least 5 acres, and (2) access is taken from a collector street. See New Castle County Code, Unified Development Code, § 40.03.210, Table 40.03.210(B).
On July 10, 2000, Land Use informed Fran Dell that they were in violation of the UDC which required the issuance of a limited use permit certifying compliance before the limited use was lawfully permitted. Land use directed Fran Dell to cease operations immediately and vacate the facility by July 11, 2000. On July 19, 2000, Fran Dell submitted a Limited Use Permit Application to Land Use. On July 26, 2000, Land Use advised Fran Dell that access to the facility via Independence Way was in violation of the UDC because Independence Way was not a collector street, but a "minor street." Fran Dell filed suit against the County in Chancery Court seeking temporary and permanent injunctive relief to prevent the County from enforcing the Land Use decision. On August 7, 2000, the Court of Chancery restrained New Castle County from restraining or prohibiting the operations at the facility pending resolution in the Superior Court.
See New Castle County Code, Unified Development Code § 40.33.300, which provides in relevant part: " Street minor. A street which serves or is designed to serve primarily as access to abutting properties."
Fran Dell appealed the Land Use decision to the Board of Adjustment. On August 18, 2000, the Board held a hearing. At the conclusion of the hearing, the four Board members present were equally divided on the issue of whether or not the County's administrative decision should be reversed. Therefore, pursuant to the Rules of the Board, the County's decision was upheld.
ISSUE ON APPEAL
Fran Dell argues that the decision of the Board is an error of law because it did not properly interpret the definition of "collector street" in that although Independence Way (referring to the original portion of the road) may not currently serve as a collector street, it was designed to serve as a collector street when the property was developed. They note that at the time Independence Way was built, plans existed for the creation of a residential development consisting of townhomes or apartments. They also note that Independence Way was designed to meet DelDOT's collector street construction standards.
In response to Fran Dell's appeal, Land Use contends that Independence Way does not meet the UDC definition of a collector street because it fails to connect Chestnut Hill Road to any other streets and it was not designed to serve as a collector street. In addition, Land Use asserts the DelDOT definition of collector street is irrelevant and only the UDC definition is controlling.
STANDARD OF REVIEW
Upon appeal from a Board decision, this Court's scope of review "is limited to the correction of errors of law and to determining whether or not substantial evidence exists on the record to support the Board's findings of fact and conclusions of law." The Court may affirm or reverse in whole or in part, or may modify the Board's decision. Factual determinations of the board are binding on appeal if supported by "substantial evidence" in the record. Substantial evidence is defined as "evidence from which an agency fairly and reasonably could reach the conclusion it did." When such substantial evidence exists on the record being considered by the Board in reviewing the application, the Court "may not re-weigh it and substitute its own judgment for the Board's." The party aggrieved by the Board's decision carries the burden of persuasion to demonstrate to the Court that such decision was arbitrary and unreasonable. In addition, any ambiguities in the meaning of a statute or land use regulation must be resolved in favor of the landowner.
New Castle Co. Dept. of Land Use v. New Castle Co. Bd. of Adjustment et al., Del. Super., 1999 WL 743330, C.A. No. 98A-12-006, Gebelein, J. (July 8, 1999) (citing Janaman v. New Castle Co. Bd. of Adjustment, Del. Super., 364 A.2d 1241, 1242 (1976), aff'd without opinion, Del. Supr., 379 A.2d 1118 (1977)).
See Brandywine Park Condominium Council v. City of Wilmington Board of Adjustment, Del. Super., 534 A.2d 286 (1987); Reagan v. Heintz, Del. Super., 246 A.2d 710 (1968); Sutton v. Bd. of Adjustment, Del. Super., 200 A.2d 835 (1962); In re Beattie, Del. Super., 180 A.2d 741 (1962).
Mellow v. New Castle Bd. of Adjustment, Del. Super., 565 A.2d 947 (1988), aff'd, Del. Supr., 567 A.2d 422 (1989).
Janaman v. New Castle Co. Bd. of Adjustment, Del. Super., 364 A.2d 1241, 1242 (1976), aff'd without opinion, Del. Supr., 379 A.2d 1118 (1977).
Mobil Oil Corp. v. Bd. of Adjustment, Del. Supr., 283 A.2d 837, 839 (1971); Mc Quail v. Shell Oil Corp., Del. Supr., 183 A.2d 572, 578 (1962).
Mergenthaler v. State, Del. Supr., 293 A.2d 287 (1972).
DISCUSSION
Fran Dell points to two UDC sections in support of its position that Independence Way is a collector street. Section 40.33.300 of the UDC provides that a "collector street" is "a street which serves or is designed to serve as the connection from minor streets to the arterial street system, such as the main entrance street of a residential development, or as a secondary connection between arterial streets." A "minor street," as defined under the same UDC section, is "a street which serves or is designed to serve primarily as access to abutting properties. Fran Dell maintains that the UDC definition of "collector street" provides for the designation to be used either when a street actually serves the function of a collector street or was initially designed and built to serve that function regardless of its subsequent use.Fran Dell bolsters its argument with concurrence from DelDOT that Independence Way is a "minor collector street" under its system. In a letter dated August 14, 2000, DelDOT states that under its Rules and Regulations for Subdivision Streets, there are four street classifications: minor streets, minor collector streets, major collector streets and industrial park streets. They note that each designation has minimum right-of-way requirements and minimum standards for pavement design. The letter provides in relevant part:
Independence Way, from West Chestnut Hill Road to the entrance to the head injury facility, has a dedicated right of way of 60 feet, a paved width of 36 feet and a pavement section with a structural number of 3.42. Therefore, based on our review of the approved plan, Independence Way was designed to meet the technical standards of a minor collector subdivision street.
Letter from David B. DuPlessis, Manager, Development Coordination, State of Delaware Department of Transportation, to Richard A. Forsten, Klett Rooney Lieber Schorling 1 (Aug. 14, 2000) (Opening Brief of Appellants, Exhibit K).
The letter also notes that DelDOT's regulations only include technical requirements for street design, and that the UDC may include additional standards that relate the proposed land use to the function or design of the street.
Id.
At the appeal hearing before the Board, Fran Dell produced several expert witnesses who testified that Independence Way was designed to serve as a collector street according to both the UDC and the Delaware Department of Transportation ("DelDOT"). Although Independence Way is not formally accepted under the DelDOT classification system, it is a recorded street that went through DelDOT's approval process when the facility was originally built and it was recorded as a minor collector roadway. One witness noted that the paved roadway is 36 feet wide and tapers down to 24 feet wide at the entrance to Southridge, even though the street was not designed to take that configuration. The witness confirmed that although Independence Way was designed with a 60-foot right-of-way for its full length, the paving was tapered after the entrance to the facility as a convenience and a money-saving device for Southridge which privately maintains the street. In addition, the Fran Dell witnesses testified that, contrary to Land Use's interpretation of the relevant section, collector streets do not have to connect directly to an arterial street, but can connect to other collector streets. The witnesses also stated that Independence Way meets the UDC definition of a collector street because it serves as the main entrance street for the Southridge residential development. In addressing the Land Use argument that Fran Dell could comply with the Code by providing access to the facility from West Chestnut Hill Road, the Fran Dell witnesses testified that due to the configuration of the intersection, safety considerations would not allow for an entrance to be built on West Chestnut Hill Road.
Hearing TR. at 43 ([In accordance with DelDOT's standards] [w]e designed [Independence Way] as a 60 foot wide residential subdivision street that would be conceived minor collector road.)
Hearing TR. at 43, 46 (Testimony of Mr. Politowski). See also Hearing TR. at 65 (Testimony of Mr. Paim).
Hearing TR. at 44.
Hearing TR. at 46.
Hearing TR. at 49.
Hearing TR. at 48.
In a letters dated September 22, 2000 and October 24, 2000 respectively, DelDOT and Karins and Associates Consulting Engineers state that Fran Dell would not be permitted to place and additional entrance to the facility on West Chestnut Hill Road. The Karins letter provides that there are several safety reasons for not permitting an entrance on Chestnut Hill Road, including: (1) not enough distance from Independence Way; (2) no room to construct the necessary deceleration or acceleration lane; (3) Chestnut Hill Road is a major collector road and the number of points of access onto the road must be limited; and (4) westerly sight distance is compromised by the existence of Independence Way.
Land Use asserts that the UDC, which focuses on the function of streets within the system, solely controls the street designation for Independence Way. Under their interpretation of UDC § 40.33.300, Land Use claims that collector streets must connect minor streets to the arterial street system, and that Independence Way functions as a minor street providing access to the abutting properties. In distinguishing the UDC from DelDOT street designations, Land Use witnesses testified that while DelDOT's primary concern is the building and future maintenance of roads, the UDC focuses on how roads function in light of surrounding land uses. Thus, since Southridge was not developed into a townhouse or singlefamily home residential community, the technical design specifications of Independence Way are irrelevant and only the actual function of the street should be observed.
The facts are not in dispute. The parties differ on the application of the facts to the law. According to DelDOT regulations, the status of the roadway depends on its specifications, and under the UDC, it depends on its usage. Independence Way and the facility on the Fran Dell parcel were designed and built several years before the Southridge community was conceived and developed in 1997. It would lead to an unreasonable result for a subsequently developed parcel of land which requires the same access as the earlier developed parcel to control the usage of the first parcel.
In its current configuration, the original part of Independence Way meets the UDC definition of a collector street between the intersection of West Chestnut Hill Road to the driveway of the facility. After the driveway, it, in effect, becomes and therefore connects to a minor street, built to less rigorous specifications. The original part of Independence Way was designed to comply with DelDOT's requirements for a minor collector road. It was also designed to meet the requirements for the support of further development on adjacent parcels, and it does provide the main entrance to a residential development.
CONCLUSION
The Board's conclusion that Independence Way is not a collector street is incorrect as a matter of law and is REVERSED.
Upon Appeal from the New Castle County Board of Adjustment
ORDER
For the reasons set forth in this Court's Opinion of June 26, 2001, the decision of the New Castle County Board of Adjustment is hereby REVERSED.
IT IS SO ORDERED this 26th day of June, 2001.