Opinion
C. A. No. 01A-11-009 JEB
Submitted: May 17, 2002
Decided: August 8, 2002
Appeal from a Decision of the New Castle County Board of Adjustment.
Affirmed.
Appearances: A. Gary Wilson, Esquire, Wilmington, Delaware. Attorney for Ramona Marvel and Anthony Harvatin.
Lisa B. Goodman, Esquire, Young Conaway Stargatt Taylor, LLP. Attorney for Jose Tejas, Inc.
Brian James Merritt, Esquire, New Castle County Law Department. Attorney for NCC Board of Adjustment.
OPINION
This is the Court's decision on Ramona H. Marvel and Anthony C. Harvatin's appeal from an October 26, 2001 decision by the New Castle County Board of Adjustment (Board) granting an area variance to Jose Tejas, Inc., d/b/a Border Cafe, L/O Newark Associates, L.L.C. (Newark Associates). The variance allows Newark Associates to locate a 150-square foot neon sign, on 28-foot pylons, 10 feet from the property boundary rather than the 40-foot setback required by the New Castle County Zoning Code (Code). For the reasons explained below, the Board's decision is Affirmed.
FACTS
In April 1997, the Catawba subdivision, which fronts the old Christiana-Stanton Road, which runs parallel to Route 7 near the Churchman`s Road overpass in New Castle County, was created from four parcels of land. Two of those parcels which contain residential properties are owned by petitioner Ramona Marvel (Marvel), one parcel is a single residential property owned by petitioner Anthony C. Harvatin (Harvatin), and the fourth parcel is owned by Newark Associates. Upon creating the Catawba subdivision, the interior boundary lines of the contiguous parcels were removed, and the subdivision was given a single tax number by New Castle County.
Sales contracts for the purchase of the Marvel and Harvatin properties by Catawba Corporation, which is owned by the same principal as Newark Associates, upon approval of the subdivision plan by New Castle County, have not been performed an d a separate action for specific performance of those sales contracts is pending in Court of Chancery.
Following the subdivision approval, development of the original Newark Associates parcel occurred, which included building a restaurant now known as Borders Cafe. On June 22, 2001, New ark Associates and its lessee, Jose Tejas, Inc., submitted an application to the Board to construct a 150-square foot neon sign on 28-foot high pylons, 10 feet from the property boundary fronting the old Christiana-Stanton Road, New Castle County, rather than 40 feet as required by the Code. Respondents' claim was that the presence of the old Christiana-Stanton Road, which serves as an access road to several businesses and the Marvel and Harvatin properties, as well as the tree lines around the restaurant, constituted an exceptional practical difficulty to the Newark Associates property and justified the granting of the requested variance.
On September 13, 2001, Marvel and Harvatin appeared before the Board in opposition to granting the variance, and also submitted written opposition to the Board. Marvel and Harvatin argued that 1) the application was improperly before the Board since the property was owned by more than one entity and all requisite signatures were not present on the application, 2) that no exceptional practical difficulty existed, since ample room for a functional sign could have been created by better project design, 3) that the number of cars in the parking lot attested to the ability of patrons to locate the restaurant, and 4) that granting the variance would amount to sanctioning a self-created hardship.
The New Castle County Department of Land Use (Department), through a written submission and testimony by its representative to the Board, concluded the characteristics of the property did not present an exceptional practical difficulty to the applicant and the granting of the variance was not justified.
The Board granted the variance, noting that the requested dimensional change is minimal, the harm to the applicant if denied would be greater than the effect on neighboring properties if granted, the variance would not cause substantial detriment to the public good, nor will granting the variance "substantially impair the intent and purpose of the zoning code." The Board further stated that the issue was a "close call," but concluded that the presence of an access road in front of the applicant's restaurant "constituted sufficient exceptional practical difficulty."
STANDARD OF REVIEW
Upon a Writ of Certiorari from a decision of the Board of Adjustment, the Court must limit its review to correcting errors of law and determining whether substantial evidence supports the Board's findings of fact and conclusions of law. Where substantial evidence exists, the Court must sustain the Board's decision, even though it may disagree with the final outcome. Substantial evidence equates to such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Moreover, the Court must uphold an administrative agency's interpretation of a statute it is empowered to enforce, provided that such construction is not clearly erroneous. Thus, in this context, the burden of persuasion rests upon the party attempting to show that the Board's decision was arbitrary and unreasonable.
Janaman v. New Castle County Bd. of Adjustment, 364 A.2d 1241, 1242 (Del.Super.) aff'd, 379 A.2d 1118 (Del. 1976).
Mellow v. Bd. of Adjustment of New Castle County, 565 A.2d 947, 954 (Del.Super. 1988), aff'd. 567 A.2d 422 (Del. 1989).
Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del.Supr. 1994).
Eastern Shore Natural Gas v. P.S.C ., 637 A.2d 10, 15 (Del. 1994).
Mobil Corp. v. Bd. of Adjustment, 283 A.2d 837, 839 (Del. 1971); Mellow, 565 A.2d at 955.
DISCUSSION
Petitioners raise three issues in this appeal. First, Petitioners argue that the Board found that the presence of an access road located in front of Respondents' restaurant constituted exceptional practical difficulty, and thus the Board failed to apply the proper legal standard in its decision to grant the variance. Second, Petitioners argue there was no substantial evidence to support the Board's decision. Third, Petitioners argue the Board erred as a matter of law when it found that it had the power to grant the variance over the objections of Petitioners as co-owners of the property where the restaurant is located.As to the first argument, the Delaware Supreme Court, in Bd. of Adjustment of New Castle County v. Kwik-Check Realty, Inc. ("Kwik-Check"), stated "[u]nder 9 Del. C. § 1352(a)(3), the Board of Adjustment is authorized to grant a variance . . . where, owing to special conditions or exceptional situation, a literal interpretation of the provisions of any zoning ordinance, code or regulation will result in unnecessary hardship or exceptional practical difficulties to the owner of property so that the spirit of the ordinance, code or regulation shall be observed and substantial justice done, provided such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of any zoning ordinance, code, regulation or map. . . ." To determine if the difficulties presented by the owner are practical rather than theoretical, and exceptional rather than routine, the Board should take into consideration the nature, character, and uses of the property, the effects up on neighboring properties if the restriction was removed, and whether retaining the restriction would create unnecessary hardship or exceptional practical difficulties for the property owner.
389 A.2d 1289 (Del.Supr. 1978)
Bd. of Adjustment of New Castle Co. v. Henderson Union Association, 374 A.2d 3 (Del. 1972).
In the instant case, the Board received written submissions and live testimony both to Respondent's claim of an exceptional practical difficulty and to the opposition to granting the variance, including a written recommendation against granting the variance from the Department. In its decision to grant the variance, the Board noted that 1) "the requested dimensional change is minimal", 2) "harm to the applicant if the variance is denied would be greater than the probable effect on neighboring properties if the variance is granted", and, 3) "[t]he granting of this variance will not cause substantial detriment to the public good, nor will it substantially impair the intent and purpose of the zoning code".
The Board applied the proper legal standard as defined by the Delaware Supreme Court. The Board's statement that the decision was a "somewhat close call" indicates that the Board carefully considered the information before it and determined the presence of an access road in front of the applicant's restaurant constituted sufficient exceptional practical difficulty.
Petitioners also argue that there was no substantial evidence to support the Board's decision. The record provides evidence considered by the Board in granting the variance, including: 1) testimony from those in support and those opposed to the variance, 2) deed records of the relevant parcels , 3) The Department's report, and 4) maps and drawings of the area at issue. The Court concludes that the Board's decision was supported by substantial evidence.
Petitioners' third argument is that the Board erred as a matter of law when it found that it had the power to grant the variance over the objections of Petitioners as co-owners of the property where the restaurant is located. Petitioners claim that as a result of the creation of the Catawba subdivision, wherein internal lot lines were removed, they became co-owners of the entire subdivision, and without their signatures on the application for the variance, the application was fatally flawed. This Court disagrees.
Ownership of land is documented and recorded through the use of deeds and title documents. The record shows that petitioners provided no tangible evidence to support their claim of co-ownership of the subject parcel where the restaurant now exists. The record does show evidence of sole ownership of the subject parcel, namely, a deed of ownership, conveyed to Newark Associates in 1996.
See 25 Del. C. § 121(b).
CONCLUSION
For all these reasons, the Board's decision to grant the variance to Newark Associates, L.L.C. is Affirmed.
It Is So ORDERED.