Opinion
C.A. No. 97A-06-017 RSG
Submitted: March 19, 1999
Decided: April 15, 1999
OPINION AND ORDER
On May 30, 1997, the New Castle County Board of Adjustment ("the Board") denied the application of Material Transit, Inc. ("Appellant") for an extension of a temporary permit for a watchman's trailer. On April 29, 1998, this Court issued an opinion reversing the Board's decision because there was no testimony on the material changes in conditions effecting public health and safety or the effect on values of adjoining and abutting property. This Court also appointed a referee to take evidence on this matter consistent with the New Castle County Code and to report the findings and conclusions for the Court's determination. On March 19, 1999, Court Commissioner Michael Reynolds issued an opinion finding that Appellant met the burden of proof for extension of a temporary permit in accordance with prior holdings of this Court. This Court accepts, in whole, the Commissioner's findings that the Board erred in denying Applicant's permit.
I .
This background section is wholly compiled from Material Transit, Inc. v. New Castle County Board of Adjustment, Del. Super., C.A. No. 97A-06-017-RSG, Gebelein, J. (April 29, 1998) (Mem. Op.) and Material Transit, Inc. v. New Castle County Board of Adjustment, Del. Super., C.A. No. 97A-06-017-RSG, Reynolds, Comm'r. (Mar. 19, 1999)(Referee's Report).
On December 16, 1993, the Board granted Appellant a three year temporary permit for a watchman's trailer for the industrial-zoned premises located on the south side of Lambson Lane, east of East Avenue, Holloway Terrace, New Castle, Delaware. At the time the appeal was filed, the premises was used as a parking lot for the company's equipment, and construction was underway for an industrial building on the site. The watchman's trailer had remained on the property for three years and was occupied by a security guard that lived there permanently to prevent dumping, vandalism, destruction of property and other mischief. The temporary permit expired on December 16, 1996, and on March 6, 1997, the New Castle County Office of Complaints cited Appellant for maintaining a structure in violation of the applicable zoning regulations after the expiration of a conditional permit. In response, Appellant immediately applied for a three year extension of the permit.
New Castle County Code § 2-259(7)(b) (hereinafter "N.C.C.").
N.C.C. Code § 2-259(7).
On May 8, 1997, the Board held a hearing on Appellant's application for an extension. Appellant presented testimony regarding the need for a watchman's trailer on the premises.
In a written decision, the Board denied Appellant's extension of the permit based on the Board's "concerns that applicant was taking advantage of a Code provision designed to provide only temporary relief" The Board relied on Appellant's witness' testimony that he (the witness) was utilizing temporary permits to continue using the security trailer without plans for a permanent security facility.
Appellant appealed the Board's decision, contending that the permit extension was erroneously denied. Appellant asserted that the Board recognized only a fraction of the standard to be applied to an application for extension of a temporary permit under New Castle County Code § 2-259. Appellant argued to this Court that "taking advantage" of the availability of temporary permits is not a valid reason for denial. Appellant also asserted in his brief that the reason there were no plans for a security booth was because such a booth would not be needed once the industrial facility was built.
On April 29, 1998, this Court reversed the Board's decision because of the absence of testimony on the material changes in conditions effecting public health and safety or the effect on values of adjoining and abutting property. Because the Board at issue in this case is the Board of Adjustment, this Court also appointed a referee to take evidence on this matter consistent with the New Castle County Code and to report the findings and conclusions for the Court's determination. At the evidentiary hearing on September 25, 1998, the parties stipulated that there had been no material changes in conditions effecting public health and safety or on the effect on values of adjoining and abutting property. Accordingly, on March 19, 1999, Court Commissioner Reynolds determined that as a result of the stipulated lack of material changes in conditions, Appellant met the burden of proof for extension of a temporary permit, and therefore, the Board erred in denying the permit. This Court accepts, in whole, the Commissioner's findings.
While this Court may reverse, affirm, or modify the decision brought up for review, it may not remand to the Board of Adjustment. Mellon v. Bd. of Adjustment, Del. Super., 565 A.2d 947 (1988). However, 9 Del. C. § 1353(e) allows that:
If, upon the hearing, it should appear to the Court that testimony is necessary for the proper disposition of the matter, it may take evidence, or appoint a referee to take such evidence as it may direct, and report the same to the Court together with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determination of the Court may be made.
10 Del. C. § 512(b)(1)(b) (d). According to the statute, within 10 days after being served with a copy of proposed findings and recommendations under § 512(b), "any party may serve and file written objections to such proposed findings and recommendations." Court Commissioner Reynolds' recommendations and findings were filed on March 19, 1999. As such, the time for which the parties to object has passed.
II .
In an appeal from the Board of Adjustment's decision, this Court's scope of review is limited to correcting errors of law and determining whether substantial evidence exists on the record to support the Board's findings of fact and conclusions of law. Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.The New Castle County Code states that the Board of Adjustment has authority to:
[g]rant by conditional permit the temporary placement of the following, subject to a finding that the proposed use will not materially endanger the public health or safety and that the use will not substantially injure the value of the adjoining or abutting property, not to exceed three years: . . . (b) Security trailer, office trailer and storage trailer on a lot zoned for commercial, office or industrial use. . . . Such conditional permit may be extended with planning department approval, provided conditions existing on and in the vicinity of the subject lot have not materially changed since the issuance of the original permit.
The record of the proceeding shows that the Board did not apply these standards for an extension of a temporary permit. The Board stated that the standard to apply is whether the proposed use will materially endanger the public health and safety or "substantially injure the value of adjoining or abutting properties." On May 8, 1997, the Board was charged with determining whether to grant an extension of this permit; clearly, therefore, the proper standard requires an inquiry into whether conditions have changed since the original permit.
NC.C. Code § 2-259(7). This is also the standard for granting a temporary permit, a standard which Appellant met in 1993 at the time of the original permit.
N.C.C. Code § 2-259(7).
Despite the Board's recognition of the applicable standard, its decision did not address whether conditions had changed since the original permit, nor did the decision address the standard they applied to the renewal — public safety and injury to neighbors. In fact, neither party presented any evidence concerning a change in the conditions of the property or the vicinity which would effect a decision to grant the extension. And, rather than determining whether or not the conditions existing on and in the vicinity of the property have materially changed since the original permit was issued in 1993, the Board found that Appellant was "taking advantage" of the temporary permits by failing to build a permanent security booth.
Court Commissioner Reynolds, pursuant to this Court's Order, conducted an evidentiary hearing to determine whether conditions had changed and to consider possible public health and safety concerns. At the hearing, the parties stipulated to no material changes and to no effect on values of property. With regard to the stipulation, this Court agrees with Court Commissioner Reynolds' finding that in light of this Court's previous holding that "the proper standard requires an inquiry into whether conditions have changed since the original permit," the parties' stipulation at the hearing to a lack of material changes would seem dispositive of the application for extension of the temporary permit under the Code.
N.C.C. Code § 2-259(7). Material Transit, supra n. 1, at 3-4.
However, contrary to this Court's previous decisions on the issue, the Board wrongfully required an increased standard for granting use variances by requiring that an applicant establish some special hardship which would justify the extension of the permit granted. In the case sub judice, the Board argues that the special hardship standard may properly be imposed because the County Planning Department has incorporated the standard into its application form as authorized to enforce the intent of the Code. On the contrary, the intent of the Code as previously construed by this Court is that the standard for extensions is no more rigorous than the standard for initial temporary permits. Moreover, the New Castle County Code clearly states that the appropriate standard to be applied to an application for extension of a temporary permit is whether the conditions have materially changed since the original permit.
Appoquinimink Sch. Dist. v. Bd. of Adjustment, Del. Super., C.A. No. 98A-01-002-NAB, Barron, J. (May 28, 1998) (Mem. Op) (Board found no material endangerment to public health or safety and no injury to value of adjoining properties, but denied application on basis that number of extensions is limited); Di Criscio v. Bd. of Adjustment, Del. Super., C.A. No. 88A-NO-12, Gebelein, J. (Mar. 21, 1990) (Mem. Op)(stating, "in basing its decision on the standard of hardship, the Board applied the stricter standard for use variances. . . . therefore, [the Board] erred in applying an incorrect standard of proof.")
In the case sub judice, the Board clearly demonstrated a prejudice against granting extensions even before any evidence was presented and before the appropriate standard was applied. At the beginning of the hearing a member of the Board, referring to temporary permits, asserted "[t]hey are 3 years and we frown on extending them." Record of the Proceedings at 3.
Appoquinimink Sch. Dist., supra n. 12, at 3.
14 N.C.C. Code § 2-259(7).
III .
Pursuant to 10 Del. C. § 512(d), this Court accepts, in whole, the findings and recommendations made by Court Commissioner Reynolds. Accordingly, the Board's decision is REVERSED and an extension shall be GRANTED.IT IS SO ORDERED.