Opinion
C.A. No. 01A-11-002
Submitted: April 24, 2001
Decided: July 31, 2002
Upon Appeal from a Decision of the Kent County Board of Adjustment.
AFFIRMED.
Michael W. Arrington, Esq., of Parkowski Guerke, P.A., Dover, Delaware, For Plaintiffs in Error.
Crystal L. Carey, Esq., of Schmittinger and Rodriguez, P.A., Dover, Delaware, For the Kent County Board of Adjustment, Defendant in Error.
Michael J. Malkiewicz, Esq., of Barros, McNamara, Malkiewicz Taylor, P.A., Dover, Delaware, For J. Earle Teat, Jr. and Nancy C. Teat, Defendants in Error.
ORDER
Upon review of the submissions of the parties, it appears that this is an appeal by Clarence W. McKinney, Sr., and Jerry L. McKinney (the "plaintiffs" or "McKinneys") from a decision of the Kent County Board of Adjustment (the "Board") granting a variance to Nancy C. Teat and Earle Teat, Jr. (the "Teats") to expand their legal nonconforming structure. Because the Kent County Code ("KCC") §§ 205-218A, 205-218B are not violated, and because the Teats experience a substantial practical difficulty in the normal improvement of their lot, the decision of the Board of Adjustment is AFFIRMED.
Facts
1. The record indicates that the property to be expanded or enlarged upon is located north of the City of Dover on the corner of U.S. Route 13 and Smith Road. It was purchased by the Teats in October of 2000 for use as a retail music store. Prior to the purchase, the Teats' had two retail music locations. One shop was located in Delmar and is still in operation there. The second establishment was set up at the Dover Farmers' Market. Teat lost his lease at the Farmers' Market and was given approximately sixty days to relocate the 8000 sq. ft. of merchandise he kept there. As a result the Teats chose to purchase the property at issue here.
There was testimony before the Board that this property is outside of the city limits of Dover.
2. The drawings and site plan attached to the Teats' expansion application show that there is currently a principal building near the middle of the lot with a total square footage of 9,115.02 sq. ft. An accessory structure comprising 502.25 sq. ft. is located on the front corner of the lot that is bordered by Route 13 and Smith Street. The property approximates a square in shape and is close to an acre in size. The sides of the lot facing Route 13 in the front and Smith Street on the side are subject to larger setbacks than the non-street-bordered sides.
It appears that two smaller properties were combined through tax assessment.
3. The principal and accessory buildings on the lot do not comply with the General Business ("BG") zoning requirements for the property. First, both buildings encroach into the required front setback area. The principal structure encroaches approximately twenty-five feet into the front-yard setback. The accessory structure intrudes even further into the front-yard setback, and violates the side-yard setback requirements as well. Secondly, the contents of the accessory building are in violation of the code. "Merchandise may not be located within the required setback in any zoning district, except the IG General Industrial District." The testimony before the Board established that the accessory building on the property is currently used for storage of merchandise — i.e. retail music wares.
The principal structure is approximately fifty feet from the right-of-way of Route 13. KCC § 174(B) requires that the building line (beyond which a building cannot be located — see KCC § 206-6) be at least seventy-five feet from the right-of-way of Route 13. The complaint alleges that the Teats also violated the 100-ft. setback requirement for "BG" properties bordering Route 13 under § 205-37. That section does not control the instant property, however, because it only applies to properties created after the enactment of the present code. The Teats' property was created before.
It appears that KCC § 205-175(D)(2) requires that the accessory structure be seventy feet from the front lot line or street right of way, and § 205-175(E)(1) requires that it be seventy feet from Smith Street. The parties have not provided the exact setback impingements for the accessory structure because no expansion of this building has been sought. The accessory building continues to exist as a legal nonconforming use under § 205-214.
Merchandise is defined as "[a]ll goods which persons usually buy and sell, whether at wholesale or retail; wares and commodities such as are ordinarily the objects of trade and commerce." KCC § 205-6.
KCC § 205-22(B).
4. In spite of these violations of the current code, the buildings on the Teats' lot are legal nonconforming structures under KCC §§ 205-214A, 205-214B. These sections state the intent of the code regarding nonconformities.
See infra note 26.
5. The Teats have applied to the Board to expand the size of the principal structure on their lot. To that end, an application on behalf of the Teats was submitted to the Board by Bruce Hoster, a civil engineer, requesting a twenty-five percent enlargement to the building. The application did not indicate that the Teats were seeking a variance. Nevertheless, the application stated that they experience an exceptional practical difficulty not created by them which is "the small size and shape of the lots and corner setbacks."
The Board must find an exceptional practical difficulty exists to grant an area variance. Bd. of Adjustment of New Castle County v. Kwik-Check Realty, Inc., 389 A.2d 1289 (Del. 1978).
6. A hearing was held on the Teats' expansion application on October 18, 2001. Testimony at the hearing addressed the business need for the enlargement. Mr. Hoster testified that Mr. Teat uses his Dover store as his main receiving, but he has limited storage at that location. He uses the accessory building for storage, but this only has about 500 sq. ft. of storage space. He uses the first and second floors for a showroom and music classrooms. He has a second story which is not adequate for receiving freight and heavy equipment. Consequently, he does not have enough room to store his instruments and musical items. He would like an enlarged area on the same floor as the showroom so that the heavier equipment can be stored without having to "heft" it up and down stairs. For this reason he would like to add an extension of 2,400 sq. ft. to his principal building. The enlargement will be added to the north, right next to the existing building, and connected with a breezeway between the two.
The County views the proposed addition as part of the principal building — not as a separate building. See KCC § 205-24B.
7. Neighbors of the Teats objected to the expansion. First, Mr. Jerry McKinney, a resident in the housing development behind the Teats' store, recited the various code provisions the Teat building currently violates. The Board responded that the current nonconformities were legal under the nonconforming uses section of the code.
See KCC, § 205, Article XVI, Nonconforming Uses.
8. Jerry McKinney also expressed concerns about an abandoned and unfilled septic system. He used a diagram to show that the Teats were trying to put a building directly on top of a septic system. Another neighbor, Mac McKinney, the proprietor of the transmission business across Smith Street, also testified about the unfilled cess pool on the property.
9. Answering for the Teats, Hoster testified that the unused part of the old septic system (which is under the proposed expansion) is the drain field. This can be abandoned legally and filled. He stated that he would not be "dumb enough" to build a building on top of a septic tank. Moreover, he is licensed to fill in a cess pool, and that would be part of the normal building process in this case. On the other hand, the working septic system is at the back of the property and cannot be built over. The Teats must expand into the front setbacks because of the working septic in the back. Hoster stated that there is no other place to put a building on this lot that will give the Teats the appreciable storage necessary for the conduct of their business. Testimony showed that the lot does not have access to the city sewer system and, therefore, relies on its own septic tank.
10. The Board responded that the Teats would have to get the proper permits after any variance was granted; therefore, any septic issues would be addressed by DNREC before a building permit would be issued.
11. Jerry McKinney next argued that if the Teats expand within the setback areas as proposed, the degree of nonconformity would be illegally increased. The Board responded that the proposed expansion would not be coming any closer to the highway than the existing structure; therefore, the expansion would not be increasing the degree of nonconformity.
KCC § 205-218B prohibits the enlargement of any nonconforming structure if the degree of nonconformity will be increased by the enlargement.
12. Jerry McKinney's most strenuous argument, however, was that the Teats had not shown an exceptional practical difficulty so as to allow the grant of a variance. He testified that there was nothing physically unique about the Teats' lot making it different from any other corner lot zoned BG along Route 13. He questioned how the Board could grant a variance if the Teats could not establish a hardship.
13. A third witness against the enlargement, Mr. Clarence McKinney, a resident of Wilson Street (the next street off of Smith Street), testified that he was concerned about water run off. He stated that drainage was very bad now, and he expected it to be worse if the Teats enlarged their building. Upon questioning by the Board, it was determined that no more than seventy-five percent of the lot would be impervious to water penetration after the expansion. This is permissible by the code.
14. Joanne McKinney, the owner of the house directly behind the Teats' store, also testified. She stated that the children in the neighboring residences play on Smith Street; therefore, if the Teats put in a warehouse, a child will be harmed by increased truck traffic. Her testimony was contradicted by Mrs. Hoster who noted that, due to the expansion, McKinney Transmission can no longer tow vehicles and park them on property they rent from the Teats. Consequently, there will be less big-truck traffic. McKinney Transmission will no longer have big tow rigs running on Smith Street. In addition, she testified that the lot to be built upon is currently vacant except for broken-down cars (towed there by the McKinneys), broken glass and debris. She testified that the addition will not degrade the area for the children, but will clean up a dangerous lot where the children now play.
15. After the hearing on the Teats' application, at its next business meeting on October 23, 2001, the Board voted to grant the Teats' application. Prior to the vote, the septic concerns were reviewed by the Board. The Board Secretary stated that he believed that the Teats would have to deal with DNREC regarding the septic issues and location. Thus, it was moved to grant the Teats' application and to allow the expansion.
Claims of The Parties
16. By motion for Certiorari, the McKinneys have in essence sought an appeal of the decision of the Board. Their first argument for appeal is that the Teats' proposed enlargement or extension exceeds twenty-five percent of the gross square footage of the principal structure in violation of KCC § 205-218A. Secondly, it is alleged that the proposed enlargement of the already nonconforming structure increases the degree of the nonconformity in violation of KCC § 205-218B. Finally, the McKinneys maintain that the record does not contain substantial evidence that the Teats will experience an exceptional practical difficulty. This is required before the Board may grant a variance of the allegedly-violated sections.
17. Not surprisingly, the Board and the Teats deny that the proposed enlargement exceeds twenty-five percent of the allowable gross square footage under KCC § 205-218A. Nor do they agree with the McKinneys that the proposed enlargement increases the degree of nonconformity in violation of KCC § 205-218B. Finally, the Board and the Teats assert that the record contains substantial evidence of consideration of the proper factors, thus allowing the granting of a variance.
Standard of Review
18. On appeals from the Kent County 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. "The Court may reverse or affirm, wholly or partly, or may modify the decision brought up for review." "Zoning laws are to be interpreted in favor of the occupants of the land." This Court's review of statutory interpretation performed by the Board is plenary. Likewise, this Court's decision is reviewed de novo.
Mellow v. Bd. of Adjustment of New Castle County, 565 A.2d 947, 954 (Del.Super.Ct. 1988) (citing Janaman v. New Castle County Bd. of Adjustment, 364 A.2d 1241 (Del.Super.Ct. 1976); aff'd 379 A.2d 1118 (Del. (1977)).
Mergenthaler v. State, 293 A.2d 287, 288 (Del. 1972).
Pub. Water Supply Co. v. DiPasquale, 735 A.2d 378 (Del. 1999).
Di's, Inc. v. McKinney, 673 A.2d 1199, 1204 (Del. 1996).
19. In contrast, the Board's conclusions of fact will be undisturbed if supported by substantial evidence. "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.
Janaman, 364 A.2d at 1242.
Wadkins v. Kent County Bd. of Adjustment, 1999 WL 167776 (Del.Super.Ct.).
McKinney v. Kent County Bd. of Adjustment, 1995 WL 109032 at *1, (Del.Super.Ct.), aff'd sub nom. Di's, Inc. v. McKinney, 673 A.2d 1199 (Del. 1996).
Janaman, 364 A.2d at 1242.
Mellow, 565 A.2d at 954.
20. 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. The Court's power of plenary review is invoked to review the statutory interpretation performed by the Board.
Profita v. New Castle County Bd. of Adjustment, 1992 WL 390625 at *3 (Del.Super.Ct.).
Mellow, 565 A.2d at 956.
Janaman, 364 A.2d at 1242-43.
Pub. Water Supply Co., 735 A.2d 378.
Discussion
21. The first two issues on appeal involve the interpretation of the zoning provisions governing legal nonconforming uses under the Kent County Code.Argument One — KCC § 205-218A.
22. The McKinneys' first reason to appeal the decision of the Board is that the Teats' proposed enlargement or extension exceeds twenty-five percent of the gross square footage of the principal structure, allegedly in violation of KCC § 205-218A2. Under that section, the Board "may authorize the extension or enlargement of a nonconforming use, with or without conditions, provided that: . . . The extension or enlargement does not exceed 25% of the gross square footage in use at the time of the creation of the nonconformity."23. It is arguable that this section does not apply to the current situation because KCC § 205-218A clearly states that it applies to extensions or enlargements of nonconforming uses. The Kent County Code clearly states that the term nonconforming use "shall" mean: "A nonconforming situation that occurs when property is used for a purpose or in a manner made unlawful by the use regulations applicable . . . ." "Where the intent of the legislature is clearly reflected by unambiguous language in the statute, the language itself controls."
KCC § 205-212 (emphasis added); see e.g. Miller v. Bd. of Adjustment of Dewey Beach, 1995 WL 465183 at *6 (Del.Super.Ct.) (distinguishing between two Dewey Beach zoning code sections, one applied to nonconforming uses and one was applicable "to the building itself"; cf. Vivari v. Francis, 1991 WL 79472 at *2 (Del.Ch.) (finding Rehoboth Beach zoning code "somewhat simplistic" thus resorting to Black's Law Dictionary for definition of "legal non-forming use," which definition lumped together dimensional nonconformities and nonconforming uses; therefore, Rehoboth's "simplistic" code applied indiscriminately to both); Schmalhofer v. Bd. of Adjustment of the City of Newark, 2000 WL 703510 (Del.Super.Ct.) (emphasis added) (applying Newark zoning code § 32-51(a), which also indiscriminately appertained to a "building, structure, or use," and prohibited alterations and additions "more than 20 percentum of the cubical content of the building").
Di's, Inc., 373 A.2d at 1204 (citing Spielberg v. State, 558 A.2d 291, 293 (Del. 1989)).
24. Under the clear language of the statute, the Teats' property is a dimensional nonconformity and is not "used for a purpose or in a manner made unlawful by the use regulations . . . ." Accordingly, it appears to the Court that only § 208-218B applies in the present case. Otherwise, the § 205-212 definitions are surplusage. Moreover, the Board uses and accepts the § 205-212 definition of "nonconforming use" for some code provisions. It should apply the definition throughout.
KCC § 205-212 (emphasis added).
See e.g. Tr. of Bd. of Adj. Pub. H'rg, October 18, 2001 at 4 (stating that nonconforming uses are "entirely separate from the structure" and that dimensional nonconformities are not nonconforming uses, and applying § 205-212 definition of "nonconforming use" to the interpretation of § 205-217C (misquoted as § 205-217A3 by Mr. McKinney).
25. If the Court were to apply § 205-218A to the expansion request for the subject property, however, the Teats' application complies with its provisions. As previously set forth, this section requires that an "extension or enlargement does not exceed 25% of the gross square footage in use at the time of the creation of the nonconformity." The code defines the term "use" as "[t]he purpose for which a building, structure or parcel is designed, used or intended to be used for." Thus § 205-218A2 allows the Teats an extension that does not exceed twenty-five percent of the gross square footage of the retail music business for which the parcel is used. Here the principal and accessory structures on the parcel are both being used in the business, and together total 9,617.27 sq. ft. Under § 205-218A, the Teats may expand up to 25 percent of that amount or expand up to 2,404.32 sq. ft. The proposed building is 2,400 sq. ft., and does not violate the requirements of § 205-218A2. Consequently, the real issue in this case is the application of § 205-218B and/or the need for a variance.
KCC § 205-218A(2) (emphasis added). See supra. note 26.
KCC § 205-6 (emphasis added).
The Court also notes that the calculation of square footage in use as submitted by the McKinneys does not comport with the definition of "Floor Area" defined in the code. See KCC § 205-6. The Court finds that there is substantial evidence on the record showing that the current square footage "in use" is the "floor area" (9,617.27 sq. ft. as calculated by Mr. Hoster, and accepted by the Board), not simply the building area (see § 205-6 "Area, Building"). "If the Board's decision is fairly debatable, there is no abuse of discretion." Mellow, 565 A.2d at 956.
Argument Two — § 205-218B
26. The McKinneys allege that the proposed enlargement of the already nonconforming structure increases the degree of nonconformity in violation of KCC § 205-218B. Under that section, "[a]ny nonconforming structure may be enlarged, provided that the enlargement does not increase the degree of nonconformity." Using a building area calculation, the McKinneys show that the Teats intend to expand into setback areas. Within the setbacks, the current principal structure has a building area of approximately 1,250 sq. ft. The addition will add 1,000 sq. ft. of new construction that will fall squarely into the same setback area. Accordingly, the McKinneys are adamant that the Teats will increase the degree of nonconformity with their enlargement.
See Id.
27. It appears that the Board's usual interpretation of the intent of § 205-218B, is that any enlargement of a nonconforming structure cannot encroach any further into the setbacks than the current structure; the expansion, however, may encroach as much. "[W]here an agency interpretation is longstanding and widely enforced, a reviewing court would ordinarily accord greater weight to the underlying agency interpretation of the statute in determining, for itself, the optimal interpretation." This is especially true where, as here, the statute itself does not define the material terms at issue.
Pub. Water Supply Co., 735 A.2d at 383, N.8.
28. The issue for this Court to determine is whether or not the Board properly interpreted the statute forbidding nonconforming structures to increase the degree of nonconformity. The code stipulates that unless otherwise provided, "all words shall have the customary dictionary meaning." Webster's Third New International Dictionary defines the terms increase and degree. The nonconformities at issue here are defined in the § 205-212 definitions set forth above. Customary dictionary definitions show that "to increase" (i.e., "the act of increasing") means "to become greater in some respect (as in . . . degree . . .)." Degree is defined as "a grade or point observed in a measuring or estimating of an action . . . ."
§ 205-218B.
KCC § 205-5.
Webster's Third New Int'l Dictionary 1145, 594 (1981).
See supra note 26.
Webster's Third New Int'l Dictionary at 1145.
Id.
Id at 594.
29. Applying these definitions to the case sub judice, the Court must consider whether the Teats' proposed expansion will cause the current nonconforming structure to "become greater" in terms of "a grade or point observed in a measuring or estimating of" the enlargement. The measuring or estimating in this case may be calculated or assessed by either a straight-line or square-foot method. The Board has chosen to measure the degree of nonconformity in terms of linear setback requirements, not by degree of square-foot impingement into a setback area.
30. The Court cannot say that the Board's decision is arbitrary in its interpretation of the intent of the zoning code. 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." The Court cannot say as a matter of law that it is wrong to measure the degree of nonconformity by a straight-line, or linear calculation.
Profita, 1992 WL 390625 at *3.
Mellow, 565 A.2d at 956.
The Board's interpretation of § 205-218A also appears to limit any area intrusion (i.e. the degree of square-ft. intrusion) by a maximum of 25 percent of the property in use. Even if this Court would not apply § 205-218A to the expansion of nonconforming structures, and would choose to measure an increase in the degree of nonconformity under § 205-218B by square feet, not linear measure, the Court finds that the application of these provisions is more appropriately within the purview of the Kent County Levy Court. That body may balance the needs of the community of residents with the needs of the community of business lot owners. The legislative perspective of the Levy Court is more likely to develop a congruent, harmonious approach for the whole County. This Court cannot, on the basis of one case, decide that Kent County must measure nonconformity by square feet not linear feet. Finally, if the County is going to apply § 205-218A to dimensional nonconformities, that should be clear in the wording of § 218A.
31. In view of the ambiguity of the code regarding how the Board must measure the degree of increase of nonconformity, and the fact that the Board's long-standing, widely-enforced agency interpretation of § 205-218B is "in favor of the occupants of the land," the Court cannot find that the decision in this case was arbitrary or unreasonable. Wherefore, the decision of the Board that the proposed enlargement does not increase the degree of legal nonconformity under § 205-218B will be upheld.
Mergenthaler v. State, 293 A.2d 287, 288 (Del. 1972).
Argument Three — Exceptional Practical Difficulty
32. Because the Court finds that § 205-218 is not violated here, the expansion may proceed without a variance; therefore, the Court is not required to determine if there is substantial evidence on the record showing the need for a variance. Even if the Court were to find that the Teats' proposed expansion violated the nonconforming uses section of the code, and especially §§ 205-218A, 205-218B, the Court cannot agree with the McKinneys that the Teats are not eligible for a variance. 9 Del. C. § 4917(3) states in pertinent part:
Where by reason of exceptional narrowness, shallowness or shape of a specific piece of property at the time of the enactment of the regulations, or by reason of exceptional topographic conditions or other extraordinary and exceptional situation or condition of such piece of property, the strict application of any regulation . . . would result in peculiar and exceptional practical difficulties to . . . the owner of such property, to authorize, upon an appeal related to such property, a variance from such strict application so as to relieve such difficulties or hardship; provided such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of the zoning plan and zoning regulations.
The McKinneys maintain that the record does not contain substantial evidence showing the Board considered the proper factors in order to grant the Teats a variance under this section.
Exceptional Practical Difficulties Test
33. There was substantial evidence before the Board from which it could have determined that the Teats experienced "exceptional practical difficulties" under § 4917(3). In the instant case, the Teats would require an area variance. Section 4917(3) 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.
Kwik-Check Realty, Inc., 389 A.2d at 1291 (defining the distinction between a use variance which changes the character of the zoned district by allowing the land to be used for a purpose otherwise prohibited and an area variance, which does not involve a prohibited use, and "concerns only the practical difficulty in using the particular property"); Kostyshyn v. City of Wilmington Zoning Bd. of Adjustment, 1990 WL 58226 at *1 (Del.Super.Ct.) (stating that "[e]xamples of area variances include modifications of setback lines and yard requirements").
Kwik-Check Realty, Inc. at 1291.
34. The exceptional practical difficulties standard 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.
35. As the Board and the Teats point out, the Board did consider the factors of the exceptional practical difficulties test in this case. The record shows that Board considered the following information, with respect to each element:
The Court may review the record for indication of such consideration. Dexter v. New Castle County Bd. of Adjustment, 1996 WL 658861 at *3 (Del.Super.Ct.) (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 v. Bd. of Adjustment of Kent County, 1995 WL 656802 at *2 (Del.Super.Ct.) (citations omitted) (finding record "an adequate substitute for a formal explanation"); Beattie v. Babcock, 180 A.2d 741, 744 (Del.Super.Ct. 1962).
(1) Nature of the zone — There was extensive evidence before the Board regarding the general business nature of the zone in which the Teats' store is located. This was discussed at the Board meetings and in the staff report.
(2) Character and uses of the immediate vicinity — If there was any element upon which there was extensive testimony, this was it. Five different witnesses testified in great detail about the character of the neighborhood and how it is utilized by resident and commercial neighbors alike.
(3) Whether removal of the restriction would seriously affect the neighboring property and its uses — The testimony at the hearing sufficiently covered this element. The neighbors that were likely to be affected by the expansion testified regarding serious possible effects of septic problems and water impenetrability. The Board analyzed this testimony in view of code restrictions (such as the 75% impervious requirement), and allocation of proper authority for septic concerns. The Board found, specifically, that a variance would not change the character of the neighborhood. The Board could have accepted Mrs. Hoster's testimony that the neighborhood's character might be improved. Certainly, there was substantial evidence concerning this element on the record.
(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 self-imposed 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, 364 A.2d at 1243.
36. On the other hand "the fact that an applicant has prior knowledge of the existing zoning regulations applicable to the land does not preclude the right to a variance; it is merely an element to be considered in determining the existence of hardship."
Mesa Comm. Group, LLC v. Kent Co. Bd. of Adjustment, 2000 WL 33110109 at *6 (Del.Super.Ct.); see e.g. New Castle Development Co. LLC v. New Castle County Bd. of Adjustment, 1996 WL 659481 (Del.Super.Ct.) (finding that awareness of forty-foot setback by purchaser of used car lot did not "equate to a self-imposed hardship sufficient to deny the variance request" as a matter of law without further inquiry into the facts).
37. To determine whether an exceptional practical difficulty exists the Court may look at economic factors. "A variance is not justified merely because [The Teats'] would be better off economically with one than without one." However, economic factors that would cause [The Teats'] to be unable "to improve [their] 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."
Mavrantonis v. Bd. of Adjustment of the City of Wilmington, 258 A.2d 908, 911 (Del.Super.Ct. 1969) (citations omitted).
Kwik-Check Realty, Inc. 389 A.2d at 1291.
Mavrantonis 258 A.2d at 911.
38. In the present case, putting the enlargement anywhere else requires moving or reworking the current septic system. In other words, expansion anywhere else on the lot will be more costly to the Teats than the location presented to the Board. The Teats have misstated the exceptional practical difficulty — the application states that it is "the small size and shape of the lots and corner setbacks." The McKinneys correctly point out that this is not a hardship inherent, unique, or peculiarly oppressive to the land. What is oppressive in this case (the difficulty that other lots along Route 13 within the City of Dover are not likely to experience) is the abandoned system coupled with the lack of a public sewer and the competing need for land to run a proper septic system. Hoster, a civil engineer, testified that the placement of the functioning septic system requires that the enlargement be constructed as proposed. Otherwise, the Teats cannot obtain any appreciable building space.
39. The Board's decision stated that it was based on the (substantial) testimony at the public hearing as well as the staff report (that confirmed a hardship if the variance were not granted). The Board addressed the septic system issue several times in the public meetings. It is obvious that the Board saw this as an issue and determined that the Teats would experience exceptional practical difficulty in making normal improvement to the property because of it. The Board found that this difficulty was only magnified due to the size of the lot and corner setbacks. The Board did not find that the small size of the lot and setbacks were the cause of the hardship.
Bd. Dec. of October 30, 2001, at 2.
Id.
40. The testimony showed that the Board considered the neighborhood objections to this variance. The Board balanced the fact that the business owner should be able to make normal improvements to his property, against the public interest which was put before them. It determined that the expansion would not change the nature of the neighborhood. This Court cannot say that the Board did not uphold "[t]he dominant design of the Zoning Code [which] is to promote the general welfare, and to protect and promote the health and safety of the affected people," or that it did not consider the "stability of the neighborhood and consideration of the property of people in the vicinity . . . ."
Kostyshyn, 1990 WL 58226 at *2.
Mavrantonis, 258 A.2d at 911.
Id.
41. For all of the reasons noted above, substantial evidence exists to show that the Board considered all the factors of the substantial practical difficulties test required under 9 Del. C. § 4917(3).
WHEREFORE, the Decision of the Board of Adjustment is AFFIRMED.
IT IS SO ORDERED.