Opinion
C.A. No. 99A-04-002
Submitted: August 17, 2001
Decided: November 30, 2001
Upon Appeal from a Decision of the Sussex County Board of Adjustment AFFIRMED
David N. Rutt, Esq., of Moore Rutt, P.A., Georgetown, Delaware, For Lowe's Home Centers, Inc.
Richard E. Berl, Jr., Esq., of Smith, O'Donnell, Procino Berl, L.L.P., Georgetown, Delaware, For the Board of Adjustment. Robert V. Witsil, Jr., Esq., Georgetown, Delaware, For Old Meadows Properties, L.L.C.
MEMORANDUM OPINION I. BACKGROUND
This dispute arises from the placement of a Lowe's Home Centers, Inc. ("Lowe's") water tank on Lowe's 17.49 acre site, in violation of Sussex County zoning regulations. On January 14, 1999, Lowe's applied to the Sussex County Board of Adjustment ("Board") for a variance to place a water tank within five-foot rear and side-yard setbacks. By Order dated March 26, 1999, the Board denied Lowe's application and Lowe's appeals. The Board and Old Meadows Properties, L.L.C. ("Old Meadows"), an abutting landowner, oppose the variance.
The property is located between Route 1 and Road 275 in Sussex County, Delaware.
The tank encroaches to the following extent; In Lowe's north side yard, the tank is 1.2 feet from property line, and Lowe's seeks a 3.8 foot variance from the five-foot setback. In the south rear yard, the tank is .6 feet from the property line, and Lowe's seeks a 4.4 foot variance from the five-foot setback. March 1, 1999, Board Hearing Transcript ("Hr'g Tr.") at 3-5.
There are two other companion cases in this matter: Lowe's v. Sussex County Planning Zoning, Del. Super., C.A. No. 99C-07-014; Old Meadows Properties, L.L.C. v. Sussex County Bd of Adjustment, Del. Super., C.A. 99A-07-001. Both are stayed pending resolution herein.
Lowe's makes three arguments on appeal. First, Lowe's maintains that the Board is equitably estopped from denying a variance for the water tank because Lowe's installed it in good faith reliance on the actions or omissions of the Planning Office, and that the equities strongly favor Lowe's. Next, Lowe's claims that the Board erred as a matter of law because it erroneously applied the "unnecessary hardship" standard to Lowe's request. Finally, Lowe's contends that the Board's decision is not supported by substantial evidence.
The Court finds that Lowe's has waived its equitable estoppel argument. Moreover, Lowe's cannot prove that it relied on an affirmative act or omission of the Sussex County government in order to install its water tank; therefore, its estoppel claim must fail. Likewise, Lowe's cannot show that the Decision of the Board is arbitrary and unreasonable because it is free of legal error and supported by substantial evidence on the record. Consequently the Decision is affirmed.
II. FACTS
Prior to the purchase date of March 23, 1998, Lowe's conducted extensive site research. Lowe's knew of at least three development obstacles: (1) the Delaware Department of Transportation would not grant direct access to Route 1; thus, Lowe's required two truck-turnarounds (instead of one); (2) Tidewater utilities could not satisfy Lowe's water needs; therefore, Lowe's would have to install a tank system; and (3) the tank had to be placed within Sussex County setback zones.
No Access to Route One
First, before purchase, Lowe's knew that it did not have direct access to Route 1. Because of Lowe's construction standards (prohibiting trucks from traversing the front of the store), denial of Route 1 access required Lowe's to dedicate more land for specially-paved truck turnarounds at the back of the property. Two were needed to prevent trucks from turning around by driving around the front of the store where the pavement was not reinforced.
If Route 1 access was permitted, trucks could drive in one entrance and out the other behind the store. By September 16, 1997, Lowe's knew access to Route 1 was denied.
Low Water Flow
Secondly, before Lowe's bought this property, Lowe's knew it would need to place a water tank on the land. The 1995 site analysis stated that it was known that water service "[pressures and flows are very low," and that "[a] tank and fire pump are probable requirements for the building sprinkler system and the fire hydrants." Lowe's internal paperwork shows that it intended to put a tank on the property by January 29, 1996. By January 12, 1998, it was clear that Tidewater, the local water utility, could not supply Lowe's fire-protection needs, and that a self-serving tank was required. Formal confirmation occurred on February 24, 1998, when Tidewater informed Lowe's that a tank and booster pumps were necessary. Tidewater also expressed an interest in exploring the possibility of installing, at Tidewater's expense, a larger tank on Lowe's property to provide water storage.
Id See letter from Eric Bryan, Tidewater, to Grant Berry, Columbia, dated January 12, 1998, and Fax from Connie Abernathy, Lowe's Engineering and Construction, to Grant Berry, Tidewater (showing that Lowe's was informed that Tidewater could only provide a flow of 1000 GPM\2O PSI for one-hour; however, the fire flow required was greater—requiring either 1730 GPM/60 PSI (no pump), or 1482 GPM/20 PSI (no tank), with a two-hour storage capacity).
Id Letter from Eric Bryan, Tidewater, to Grant Berry, Columbia, dated February 24, 1998.
Lowe's actively pursued approval for a tank before buying the property. For example, on March 2, 1998, Lowe's applied to the Delaware State Fire Marshall for a fire protection plan review. The water tank approval documents stated that this review did "not reflect the requirements of the local County Building Code."
Id
Water Tank Setback Requirements
Finally, before Lowe's bought the land, Lowe's was on notice that it had to comply with Sussex County zoning for the tank. Prior to purchase, Sussex County Council Planning and Zoning Dept. ("Planning Office") would not accept two preconstruction plans precisely because the water tank violated setback provisions.The first rejected construction plan was a preliminary drawing, dated March 6, 1996. Lowe's was informed, after review by the Planning Office, that the proposed water tank was in violation of setback requirements and the tank had to be moved. Note that this first site plan clearly showed five-foot rear and side-yard setbacks in the spot that Lowe's ended up placing its water tank.
Likewise, a second plan, dated September 16, 1997, was not fully approved because of water tank zoning setback violations. The second plan moved the tank to the back corner of Lowe's property along County Road 275; however, the tank was placed in the intersection of a fifteen-foot side setback and forty-foot front setback. On September 29, 1997, the Planning Office conditioned a preliminary approval of this plan, if the tank was relocated out of the setbacks.
Purchase of the Subject Property
Regardless of the above-noted zoning and access issues, on March 25, 1998, Lowe's bought the 17.49-acre tract and proceeded to develop one-hundred percent of the land. A Lowe's official stated that Lowe's purchased "an adequate site that will allow for [the] building as well as substantial parking."
On May 6, 1998, it appears that a third site plan was developed that moved the water tank out of the fifteen-foot and forty-foot prohibited setback areas and placed the tank in back of the store near Route 1. This plan was given final approval (except for signs and store height which needed Board approval) on May 28, 1998. On May 29, 1998, a building permit was issued, on the basis of the approved construction plan.
Lowe's knew that five-foot set backs applied to the back of its property because it was told this at a hearing (and their own construction plans, noted above, showed their knowledge). At the Board meeting when the third site plan was approved, Lowe's was informed that, although the third revised site plan showed no dimensions or setbacks for the water tank, the County expected the tank to be outside of the five-foot setbacks at the rear of the property, or Lowe's would have to bury the tank below grade. The third site plan was approved with the assumption that the water tank on the approved plans met zoning requirements.
In contrast to the County's understanding, an engineer for Lowe's testified that Lowe's understood the water tank to be a "utility appurtenance" (even though there is no such term in the Sussex County zoning ordinance) which meant that it could be placed into the setback buffer with only an "administrative approval, and not a hearing before the Board." No administrative approval was obtained.
Finalization of Water Tank Size and Placement
On May 29, 1998, Tidewater Utilities met with Columbia, Lowe's engineering firm, to discuss tank size options. Two water tank possibilities were discussed. Lowe's understood that it could either: (1) build its own 130,000 gallon self-serving tank, in which case Lowe's would pay the total cost and maintain the tank; or (2) Tidewater would upsize the tank to 250,000 gallons with Lowe's paying all except the incremental cost increases and Tidewater would provide maintenance.
As a result of this meeting, Columbia undertook to do the layout of the tank and pump house and to get approval from Sussex County for a "negotiated solution" using the larger supplemental tank (apparently per option two discussed above). Columbia intended to revise the water tank plans and get Sussex County site plan approval, which it believed to be an administrative approval.
Ret. on App., Exh. 14. Notes from May 29th meeting show that Columbia set out four items in an action list. One of these was that Columbia needed "to look at [tank] layout for fit."
From the record, it appears that from May 20, 1998 until July 8, 1998, at least, the reason Lowe's intended to install a larger tank than what had been approved by Sussex County, was to supplement Tidewater's system. To that end, on May 20, 1998, Lowe's submitted to Sussex County an in-progress plan for the water tank (which showed the larger tank in the fourth proposed location). At this time Lowe's also requested advice from the County regarding the approval procedure for relocating the tank the fourth time. On July 7'", the State Fire Marshall approved the larger thirty-two-foot-high tank.
Ret. on App., Exh. 14. July 6, 1998 telephone call from Grant Berry to Rusty Collins indicating proceeding along with joint supplemental tank.
Hr'g. Tr. at 46.
By July 8, 1998, Tidewater determined it no longer wanted to use the Lowe's tank to increase Tidewater capacity, and decided to conduct a study before it located a supplemental tank. Lowe's then directed Columbia to "continue to design the Lowe's fire protection system in accordance with the Lowe's requirements."
In spite of this new direction, on July 13, 1998, Columbia sent to the County revised site documents for a larger tank placed in an unapproved location. These documents were received by the Planning Office, but never acted upon. Lowe's built the tank in violation of Sussex County Zoning laws, without a permit, without gaining the approval of the Planning Office, and without ever having checked the status of the revised plans it had submitted to the County for approval.
Lowe's never obtained, or sought further, the administrative approval it thought it needed to proceed. Lowe's never down-sized the tank to the appropriate size necessary for self-service, and never noticed that the size of the tank would cause it to encroach upon the five-foot rear and side-yard setbacks. The actual tank installed was 216, 000 gallons. Lowe's estimated self-serving need was 130,000 gallons. Lowe's engineer testified that when the shop drawings came in, no one reviewed them to make sure the tank was the proper size. It wasn't until after the tank was built, in December of 1998, that Columbia determined that the County had not reviewed or approved the fourth set of revised plans.
Lowe's applied for a variance to the setback requirements a month later. The Board held a public hearing on March 1, 1999. Lowe's representatives testified, County representatives and the Fire Marshall's Inspector testified, as did Robert Wright, the owner of Old Meadows (and the owner of a car dealership next to Lowe's), and other citizen groups. Mr. Wright testified for the abutting landowners on the basis that Lowe's tank was too close to neighbors' property. In essence, Mr. Wright objected to the tank because it was too big and out of character. He had investigated the County's usual tank-size approval and felt that this tank was "way oversized" from what Sussex County would normally approve.
The Board denied Lowe's variance request by Order dated March 26, 1999, and this appeal follows.
III. STANDARD OF REVIEW
On appeals from the Board of Adjustment, the Court must limit its scope of review to correcting errors of law and determining whether substantial evidence exists 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." It is more than a scintilla of evidence, but less than a preponderance. When substantial evidence supports the Board's decision, the Superior Court may not weigh the evidence or substitute its own judgment. The Board, not the Court, has the power to weigh evidence and resolve conflicting testimony and issues of credibility. The party seeking to overturn the Board's decision must show that the decision was arbitrary and unreasonable. "If the Board's decision is fairly debatable, there is no abuse of discretion." Despite the Board's wide discretion, it may not do whatever is equitable without regard to statutory requirements and the need for substantial evidence to fulfill them.
Mellow v. Bd. of Adjustment of New Castle County, Del. Super., 565 A.2d 947, 954 (1988) (citing Janaman v. New Castle County Bd. of Adjustment, Del. Super., 364 A.2d 1241 (1976)).
Wadkins v. Kent County Rd. of Adjustment, Del. Super., C.A. No. 98A-05-003, 1999 WL 167776 at *2, Ridgely, P.J. (Feb. 23, 1999) (ORDER).
McKinney v. Kent County Bd. of Adjustment, C.A. No. 94A-01-001, 1995 WL 109032 at *1, Ridgely, P.J. (Feb. 13, 1995) (Mem. Op.).
Janaman v. New Castle County Bd of Adjustment, Del. Super., 364 A.2d 1241, 1242 (1976).
Mellow, 565 A.2d at 954.
Profita v. New Castle County Bd of Adjustment, Del. Super., C.A. No. 92A-08-013, 1992 WL 390625 at *3, Barron, J. (Dec. 11, 1992) (ORDER).
Mellow, 565 A.2d at 956.
Janaman, 364 A.2d at 1242-43.
IV. DISCUSSION
Lowe's makes three arguments on appeal. First, Lowe's maintains that the Board is equitably estopped from denying a variance for its water tank because Lowe's installed it in good faith reliance on the actions or omissions of the Planning Office, and that the equities strongly favor Lowe's. Next, Lowe's claims that the Board erred as a matter of law because it erroneously applied the "unnecessary hardship" standard to Lowe's request. Finally, Lowe's contends that the Board's decision is not supported by substantial evidence.Equitable Estoppel
Lowe's first argument is that the Board is estopped from denying a variance for the water tank even though Lowe's did not raise the estoppel claim in its application below. Lowe's states that an equitable estoppel argument may be tested on appeal against the record. Lowe's cites Sawers v. New Castle County Rd. of Adjustment for this proposition. In Sawers, however, the equitable estoppel claim was first advanced before the Board; it was not simply raised on appeal.
Del. Supr., No. 144, 1988, 1988 WL 117514, Walsh, J. (Oct. 26, 1988) (ORDER).
Id.
"The general rule is that a reviewing court cannot consider issues and arguments not raised before an administrative agency." Accordingly, the issue of equitable estoppel "not advanced before the Board [is] deemed waived."
Beiser v. Rd of Adjustment of Town of Dewey Beach, Del. Super., C. A. No. 90A-JN6, 1991 WL 236966 at *4, Lee, J. (Oct. 25, 1991) (Mem. Op.) (citations omitted).
Id.
Even if the issue of equitable estoppel were not deemed waived, Lowe's claim does not survive on its merits. The Court is very cautious in invoking the doctrine of equitable estoppel "unless there are exceptional circumstances which make it highly inequitable or oppressive to enforce the regulations."
[A] local government may be estopped from exercising its zoning powers . . . where the property owner, relying in good faith upon some act or omission of the government, has made such a substantial change of position or incurred such extensive obligations and expenses, that it would be highly inequitable and unjust to impair or destroy rights . . . acquired.
Voshell v. Bd of Adjustment of Kent County, Del. Super., C.A. No. 95A-03-003, 1995 WL 656802 at *2, Ridgely, P.J. (Sept. 5, 1995) (ORDER) (citations omitted).
Disbatino v. New Castle County, Del. Ch., 781 A.2d 698, 702 (2000); aff'd, Del. Supr., 781 A.2d 687 (2001).
To apply estoppel against Sussex County, Lowe's must show that (I) Lowe's acted in good faith in reliance upon (2) the affirmative actions or omissions of the government; that (3) expensive and permanent improvements were made in reliance on those acts or omissions; and (4) that the equities strongly favor Lowe's
Id; Miller v. Bd Of Adjustment of Town of Dewey Beach, Del. Super., 521 A.2d 642, 645-46 (1986).
Lowe's posits that it acted in good faith in building its water tank without a permit, in violation of zoning setbacks, simply because Lowe's waited for "feedback" from the County, but none came. The Planning Office (contrary to the dealings Lowe's had with this office previously) never responded to the fourth revised site plan submitted by Lowe's on July 13, 1998. Moreover, County building inspectors watched the tank being constructed and never put a halt to the construction. Lowe's argues that it acted in goodfaith by submitting plans to the Planning Office (which were carelessly lost), and by reliance on County inspectors to alert Lowe's to violations during construction.
The element of good faith implicates the knowledge of the landowner. The threshold question is whose responsibility is it "to know the zoning regulations and how they affect the property in question[?]" "In Delaware, it is the property owner's responsibility." A sophisticated developer, such as Lowe's "cannot invoke the estoppel doctrine if [it] had the means of discovering the truth regarding the facts." In the instant case there is substantial evidence that Lowe's was on notice that it had to comply with Sussex County zoning setback requirements for the water tank. The first preliminary site plan drafted by Lowe's clearly showed applicable five-foot rear and side-yard set backs, into which Lowe's squarely placed the water tank. Two preliminary pre-purchase construction plans were not fully accepted precisely because the water tank did not meet setback requirements. Furthermore, on May 28, 1998, while finalizing the water tank plans, Lowe's submitted an in-progress plan for the fourth proposed site and requested advice regarding the approval procedure for the relocation. Lowe's believed it could not proceed without at least an administrative approval, and never obtained one. "Without gainsaying the Applicants' good faith, it remain[ed] the responsibility of [Lowe's] . . . to know the zoning regulations and how they affect[ed] the property in question."
Disabatino, 781 A.2d 698; Voshellat *3.
Voshell at *3.
Cheng v. D'Onofrio, Del. Ch., C.A. No. 12617, 1994 WL 560866 at *3, Allen, C. (Sept. 20, 1994) (citing Beiser, 1991 WL 236966).
Id; Voshellat *3 (citing Beiser, 1991 WL 236966).
Id.
The second element of an equitable estoppel claim requires Lowe's to prove that it relied on the affirmative actions or omissions of the government in order to make expensive and permanent improvements. The actions or omissions of the government in this case do not rise to the level that would bar the County from enforcing its zoning ordinances.
The County made no affirmative statement, or omission, which showed it had approved the tank. It is true that the County did not acknowledge Lowe's mailing; however, under Delaware law, an "unacknowledged letter [i]s inadequate to establish an affirmative grant of permission." Likewise, the acts of the building inspector(s) in this case, in not instructing Lowe's as to the proper zoning requirements, do not constitute permission to build in violation of zoning ordinances.
Sawersat*2.
The general rule prohibits reliance on a building inspector's incorrect application of the zoning law. Moreover, as soon as the County suspected that the tank was in violation of setback requirements, in December 1998, the County requested a survey. The building inspector could not be expected to "eyeball" the site and know the precise boundaries of the property for Lowe's. Lowe's offered testimony that there were property stakes near the foundation that the building inspector could have noticed; however, without a survey, the inspector could not simply rely on stakes that could represent numerous construction markers, not simply boundary lines. It was not reasonable for Lowe's to rely on a building inspector's perceptions in this case. The County did order a survey when it suspected a problem. In any event, the real issue is that Lowe's was expected to know the boundaries of its property. This was not the inspector's responsibility.
City of Rehoboth Beach v. Shirl Ann Assocs., Del. Ch., C.A. No. 1552, 1993 WL 401876 at *12, Chandler, V.C. (Aug. 31, 1993) (Mem. Op.) (noting that even if inspector issues permit for a prohibited structure, such permit is beyond power of officer to issue); see also Cheng 1994 WL 560866 (holding that Town Manager's misrepresentation about zoning requirements did not estoppelthe town from enforcing zoning ordinance); Beiser, 1991 \VL 236996 (finding that even where applicant relied on building inspector's actions which actively interfered with landowner's application to Board, by stating that certain necessary information was "superfluous," the Board was not estopped from denying the variance); but see Disabatino, 781 A.2d at 704 (citing Allen v. Folsom, Del. Ch., 372 A.2d 200 (1976)) (holding that estoppel is reasonably applied where the applicant relies on government records "kept for the benefit of the public.").
Finally, because Lowe's "is unable to meet the affirmative act prong of the doctrine of equitable estoppel [Lowe's] claim, as a matter of law, must fail." For this reason, the Court cannot apply the doctrine of equitable estoppel against the Board to prevent it from denying Lowe's variance application. Nor does the Court reach the final two prongs of the equitable estoppel doctrine.
Sawers at *2.
Application of Erroneous Standard
Next Lowe's alleges that the Board erroneously applied the "unnecessary hardship" standard instead of the "exceptional practical difficulties" test to interpret the controlling statute here, 9 Del. C. § 6917(3).
This statute authorizes a variance only if the Board finds all of the following:
a. That there are unique physical circumstances or conditions, including irregularity, narrowness, or shallowness of lot size or shape, or exceptional topographical or other physical conditions peculiar to the particular property, and that the unnecessary hardship or exceptional practical difficulty is due to such conditions, and not to circumstances or conditions generally created by the provisions of the zoning ordinance or code in the neighborhood . . .;
b. That because of such physical circumstances or conditions, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance or code and that the authorization of a variance is therefore necessary to enable the reasonable use . . .;
c. That such unnecessary hardship or exceptional practical difficulty has not been created by the appellant;
d. That the variance, if authorized, will not alter the essential character of the neighborhood or district in which the property is located, nor substantially or permanently impair the appropriate use or development of adjacent property, nor be detrimental to the public welfare; and
e. That the variance, if authorized, will represent the minimum variance that will afford relief and will represent the least modification possible of the regulation in issue.
Substantial Evidence
Lowe's argues that the Board did not make its decision based on substantial evidence, because it did not address all the statutory factors of 19 Del. C. § 6917 (3), and ignored evidence proving: (a) Lowe's has an irregular lot; (b) which is not possible to develop in strict accordance with the Code; (c) a hardship was not created by Lowe's; (d) a variance would not alter the character of the neighborhood, nor impair use of adjacent property, nor be detrimental to the public welfare; and (e) Lowe's requested the minimum variance.Again, substantial evidence is relevant evidence that a reasonable mind might accept as adequate. It is more than a scintilla, but less than a preponderance. The Board, not the Court, has the power to weigh evidence and resolve conflicting testimony. The party seeking to overturn the Board must show that the decision was arbitrary and unreasonable. "If the Board's decision is fairly debatable, there is no abuse of discretion."
Wadkins, supra.
McKinney, supra.
Mellow at 954.
Profita, supra.
Mellow at 956.
Lowe's has not shown that the Board's findings were arbitrary or unreasonable with respect to the statutory factors set out in 19 Del. C. § 6917 (3). Moreover, the Board did not have to make findings on all of these factors because the failure of Lowe's to carry its burden on any one prescribes denial of its variance request. Here, the Board found that Lowe's failed on the first four statutory factors. On the basis of the present record there was substantial evidence upon which the Board could deny the variance.
The requirements of 19 Del. C. § 6917(3) a.
This section has two requirements. First, the land must be unique for reasons unrelated to circumstances or conditions created by the zoning ordinance. Second, the uniqueness must contribute to an unecessary hardship or exceptional practical difficulty if the requested variance is not granted.
Uniqueness
Lowe's advances its site is unique because the property is physically restricted by its width, depth, and irregular shape. Lowe's claims other unique characteristics which also limit development of the property. These factors are: (1) that Sussex County required larger parking spaces than Lowe's planned to provide; (2) this site has unusual water requirements that the local utility company cannot fulfill; and (3) the Delaware Department of Transportation's denied Lowe's direct access to Rt. 1.
There is substantial evidence in the record (and the Board made very specific findings of fact, listing some of this evidence) that Lowe's land was not unique in any way unrelated to the zoning ordinances; therefore, the Board did not need to determine if unique characteristics caused an exceptional practical difficulty. (Although, as discussed below, the Board did consider this test.)
The Board stated:
There is nothing unique or unusual about the land itself which would require a variance. In fact, it is apparent that Lowe's developed the property as it desired, including a truck turn around, but failed to properly take into account the location of the water tower. The Lowe's building itself is significant in size, but the Applicant had no difficulty fitting that building onto the property of approximately 17.49 acres. In addition, the Applicant could have reduced the size of its building in order to accommodate other structures, such as the water tower in question.
Lowe's has argued that its available land for development was circumscribed by the County's unusual requirement of extra-large parking spaces; however, Lowe's second construction plan dated September 16, 1997, showed that Lowe's intended to provide over 900 parking spaces. The County allowed them to decrease that amount to just over 700 spaces. For this reason, even if these 700-or-so spots were slightly larger, Lowe's had to provide 200 less than it had planned.
There was extensive testimony and construction data (including Lowe's initial construction plans listing the proper setbacks) showing knowledge, before purchase, that access was limited, and that there were extensive setbacks. Lowe's disregarded these setbacks as it proceeded with plans for its large store, the placement of truck turn-arounds, and while developing the large tank to share. When Tidewater no longer wished to use Lowe's tank, through Lowe's own errors and omissions, the tank was never downsized, nor approved by the County prior to construction.
Lowe's has not shown anything unique about the property, other than the code restrictions themselves (which restrictions cannot be a proper basis for a variance). Lowe's bought this site with knowledge that the tank was subject to zoning requirements, and that there would be no access to Route 1, which limited, somewhat, available land for development.
Exceptional Practical Difficulties Test
Even if the Board had found Lowe's land to be unique, there was substantial evidence before the Board from which it could have determined that such uniqueness did not cause Lowe's "exceptional practical difficulties" under § 6917(3)a.
In the instant case, Lowe's seeks an area variance. Section 6917 (3)a. has been interpreted as providing two different tests (the "unnecessary hardship" test and the "exceptional practical difficulties" test) depending on the type of variance sought. Because of the different purposes and effects of the two types of variances, the standard of "unnecessary hardship" applies to use variances, while the less burdensome standard of "exceptional practical difficulties" applies to area variances.
Bd of Adjustment of New Castle County v. Kwik-Check Realty, Inc., Del. Supr., 389 A.2d 1289, 1291 (1978) (The Delaware Supreme Court defined the distinction between the two types. A use variance changes the character of the zoned district by allowing the land to be used for a purpose otherwise prohibited by the zoning regulations. An example of a use variance is commercial use in a residential district. An area variance, on the other hand, does not involve a prohibited use, and "concerns only the practical difficulty in using the particular property for a permitted use."); Kostyshyn v. City of Wilmington Zoning Rd of Adjustment, Del. Super., 1990 WL 58226 at *1, Del Pesco, J. (Apr. 12, 1990) (stating that "[e]xamples of area variances include modifications of setback lines and yard requirements").
Kwick-Check at 1291.
The exceptional practical difficulties standard, applied to area variances considers "whether a literal interpretation of the zoning regulations results in exceptional practical difficulties of ownership." This standard is satisfied when the difficulties alleged by the owner are practical rather than theoretical and exceptional rather than routine. In order to determine whether exceptional practical difficulties exist, the Board must weigh:
Id.
Id.
(1) the nature of the zone where the property lies; (2) the character and uses of the immediate vicinity; (3) whether removal of the restriction on the applicant's property would seriously affect the neighboring property and its uses; and (4) whether failure to remove the restriction would create unnecessary hardship or exceptional practical difficulty 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.
Id.
Lowe's contends that nowhere in the Board's decision was there any discussion of the exceptional practical difficulties standard, and that in the Board's decision it was stated that any "hardship" was created by the applicant. Lowe's believes that the Board used the unnecessary hardship standard when it denied Lowe's request for an area variance. Lowe's also argues that the Board did not particularize its findings of facts and conclusions of law so as to enable the Court to perform its function of appellate review.
Citing Proffita v. New Castle County Rd of Adjustment, Del. Super., C.A. 92A-08-013, 1992 WL 390625, Barron 1. (Dec. 11, 1992)(ORDER).
As the Board and Old Meadows point out, however, the Board did consider the factors of the exceptional practical difficulties test in this case. The record shows that Board considered the following information, and made the following findings of facts with respect to each element:
The Court may review the record for indication of such consideration. Dexter v. New Castle County Rd of Adjustment, Del. Super., C.A. No. 96A-03-003, 1996 WL 658861 at *3, Toliver, J. (Sept. 17, 1996) (ORDER) (finding the Board heard evidence as to each factor of the substantial practical difficulties test, even though it did not address them in its decision); Voshell, 1995 WL 656802 at *2 (citations omitted) (finding record ""an adequate substitute for a more formal explanation, '"); Beattie v. Babcock, Del. Super., 180 A.2d 741, 744 (1962).
(1) Nature of the zone — There was extensive evidence before the Board (including testimony, site plans and a site analysis report) as to the commercial nature of the zone in which the Lowe's store and water tank are located. The parties stipulated to the commercial zoning of this parcel.
Hr'g Tr. at 26.
(2) Character and uses of the immediate vicinity — On this element the Board heard testimony from Lowe's representatives, from Mr. Wright (the owner of the car dealership next door and representative for the abutting landowners), and from community groups as to the character and uses of the property in the neighborhood.
(3) Whether removal of the restriction would seriously affect the neighboring property and its uses — Lowe's testified that the character of the neighborhood in question is commercial with an older mobile home community, and the tank is a utility appurtenance that is in character for virtually any community for essential water service. Lowe's denies that the variance would impair the appropriate use or development of adjacent properties, and that the tank is in no way detrimental to the public welfare.
For the neighbors, Mr. Wright objected to the tank because it was too big, and out of character. He had investigated the County's usual tank-size approval and felt that this tank was "way oversized" from that which Sussex County would normally approve. Citizen groups testified that if Lowe's had listened to the community and reduced the size of its building to stay in character with the area, there would be available space for the water tank.
There was substantial evidence that Lowe's didn't need a tank this big and didn't need to place it so close to its neighbors, some of which are concerned about their property values as a result. The record shows that a 130,000 gallon tank was sufficient. A Lowe's representative testified that the tank was five to ten feet wider than expected. Pictures of the tank were submitted to the Board from which the Board could find that the tank overwhelmed the small mobile home community. The Board could properly conclude that the tank "would alter the character of the adjacent neighborhood, as it results in the placement of a large structure just one foot from the property line of a small mobile home park with several homes."
(4) Whether failure to remove the restriction would create unnecessary hardship or exceptional practical difficulty — An exceptional practical difficulty must be proven, and self-imposed hardships are not unnecessary or exceptional.
A self-imposed condition or violation which gives rise to a form of selfimposed hardship is generally not such hardship as is sufficient to sustain a variance. To hold otherwise would place this Court in the intolerable position of sanctioning or rewarding code violations and, thus, stimulating their occurrence . . . and substantially derogate the intent and purpose of the zoning ordinance in question.
Janaman at 1243.
Lowe's professes that it did not impose the hardship here as it was not aware of the applicable setback requirements. Lowe's alleges that the testimony purported to establish that neither Lowe's, the developer or its contractor were aware of this issue. Substantial evidence supports the Board's opinion under this prong that:
[a]ny hardship in this case was created by the Applicant. Specifically, the Applicant or its agents assumed the water tower would be considered a "Utility Appurtenance". There is, however, no such term in the Sussex County Zoning Code, and the Applicant or its agents apparently made no effort to confirm its own interpretation with Sussex County. In addition, the Applicant . . . neglected to review "shop drawings' of the water tower when they were received, and an examination of those . . . would have alerted them to its size and the problems. . . .
Lowe's provided testimony that it would suffer a "major hardship" if it had to move the tank. The record shows that, to fix the problem, Lowe's could either close its store for a few days and move the current tank, or keep its store open, build another tank, get it running, shut down the first tank and switch on the second. To determine whether an exceptional practical difficulty exists the Court may look at economic factors. "A variance is not justified merely because [Lowe's] would be better off economically with one than without one." However, economic factors that would cause [Lowe's] to be unable "to improve [its] business, or to stay competitive as a result of area limitations, may be a legitimate "exceptional practical difficulty.'" "The applicant must show circumstances which are peculiarly oppressive to its property." The loss to Lowe's is essentially the cost of the first tank, its removal costs, and legal expenses. The tank cost $147,068, approximately 4.3 percent of the construction costs. While not an insubstantial amount, it is also not an "exceptional" amount in view of the 3.5 million-dollar construction budget. It is not a cost "that would cause [Lowe's] to be unable "to improve [its] business, or to stay competitive as a result.'"
Mavrantonis v. Bd of Adjustment of the City of Wilmington, Del. Super., 258 A.2d 908, 911 (1969) (citations omitted).
Kwik-Chek at 1291.
Mavrantonis at 911.
Kwik-Check at 1291.
The Board balanced the fact that Lowe's costs were self-imposed, against furtherance of the public interest, and the harm to neighboring properties. "The dominant design of the Zoning Code is to promote the general welfare, and to protect and promote the health and safety of the affected people. Stability of the neighborhood and consideration of the property of people in the vicinity . . . are important considerations."
Kostyshyn at *2.
Mavrantonis at 911.
Balancing the cost or harm to Lowe's against the interests of the neighboring properties, the Board had substantial evidence that denial of the requested variance did not result in sufficient harm to Lowe's, so as to be greater than the probable effect in overwhelming neighboring properties if the variance was granted. As noted previously, there was substantial evidence before the Board that allowed it to find that the tank was unnecessarily large and overwhelmed the small mobile home community; therefore, "[a] variance in this instance would alter the character of the adjacent neighborhood."
For the reasons noted above, substantial evidence exists to show that the board considered both the uniqueness of the property and the factors of the substantial practical difficulties test required under 19 Del. C. § 6917 (3)a, and Lowe's does not meet the requirements of this section.
The requirements of 19 Del. C. § 6917(3) b.
Lowe's must show that, without the variance, there is no possibility that the property can be developed in strict conformity with the provisions of the zoning ordinance. To that end, Lowe's alleges it had no choice but to put the tank in its current unapproved site. Lowe's representatives testified that because of Tidewater's inability to provide service, Lowe's was required to put a tank of the current size in the present location, and that adequate water flow could not be established otherwise. Lowe's claims that the tank could not be located to any other area and maintain its function, and if this variance is not granted, the fire protection needs for the Lowe's store cannot be reasonably provided.
The Board found that Lowe's has not shown that a variance was necessary to enable reasonable use of the property (i.e. that Lowe's could not develop the property within the guidelines of the code). Rather, it held that Lowe's had sufficient acreage to develop the property within these requirements. On the record Lowe's has not proven the current tank size and location is required. In fact, the record is more supportive of the conclusion that a tank of this circumference was an oversight and is now to be justified.
The requirements of 19 Del. C. § 6917(3) c.
This section requires that Lowe's did not cause the circumstances leading to the exceptional practical difficulty. Assuming that Lowe's could show an exceptional practical difficulty, Lowe's professes that it did not create the same, and that the testimony purported to establish that neither Lowe's, the developer or its contractor were aware of the applicable setbacks.
For reasons treated extensively above, the Board had substantial evidence to conclude otherwise. The record shows that the County required Lowe's to change their construction plans twice before Lowe's purchased the property because the tank was in setback areas. Even if Lowe's thought a "utility appurtenance" could go into a setback zone, Lowe's was on notice that Sussex County was not treating the tank as a "utility appurtenance" as Lowe's understood the term (because the County was actively prohibiting the tank in setback areas). The onus was on Lowe's to determine how the County classified the tank. Most importantly, however, Lowe's representatives testified that Lowe's believed an administrative approval was required for a "utility appurtenance," yet did not have one before it built the tank.
The requirements of 19 Del. C. § 6917(3)d
To grant a variance the Board must find that the tank would not alter the character of the adjacent neighborhood. As discussed comprehensively above, there was substantial evidence on the record for the Board to find, as it did, that "[a] variance in this instance would alter the character of the adjacent neighborhood, as it results in the placement of a large structure just one foot from the property line of a small mobile home park with several homes."
The requirements of 19 Del. C. § 6917(3) e.
This section requires that the variance, if authorized, will represent the minimum variance to afford relief. Any failure of the Board to specifically state whether or not Lowe's requested the minimum variance necessary was not an error of law. Even if the Court assumes that Lowe's had requested the minimum variance, this finding is irrelevant to Lowe's success because Lowe's cannot show that the Board was arbitrary or capricious with respect to any of the other statutory categories under § 6917(3).
Lowe's must succeed on all five statutory elements. Failure on any one precludes the grant of Lowe's variance in this case. Substantial evidence in the record supports the Board's finding that Lowe's failed on four of the five elements; therefore, the Board did not need to reach § 6917(3)e.
For the foregoing reasons the Decision of the Board of Adjustment is AFFIRMED.
IT IS SO ORDERED.