Opinion
C.A. No. 00A-03-003 WLW
Submitted: August 14, 2000
Decided: October 31, 2000
Upon Appeal from a Decision of the Kent County Board of Adjustment
Reversed.
Pamela I. Scott, Saul Ewing, LLP, Wilmington, Delaware, Attorney for Appellant.
Crystal Carey, Schmittinger Rodriguez, P.A., Dover, Delaware, Attorney for Appellee.
MEMORANDUM OPINION I. BACKGROUND
Appellant, Mesa Communications Group, L.L.C. ("Mesa"), is in the business of erecting telecommunications towers. These towers serve as "community towers" which support antennas for multiple wireless communications carriers. By allowing several carriers to use the same tower, Mesa is able to minimize the number of new towers needed in a particular area to provide wireless communications services. Mesa applied to the Kent County Board of Adjustment (the "Board") for several variances in order to erect a four hundred foot tower on certain property located on the northwesterly side of Jason Street and the northeasterly side of Grove Street, east of Dover (being Tax Parcel No. ED-00-067.00-01-16.00-000).
Specifically, in order to construct the tower, Mesa sought the following variances:
5. A variance from Article 4, Section 3.12, Item B(1) of the Kent County Zoning Ordinance, which imposes a height limitation of thirty-five feet;
6. A variance from Article 6, Section 5.100, Item 1(d) of the 1991 Kent County Zoning Ordinance as amended on October 14, 1997, which requires a five hundred foot setback from all property lines;
7. A variance from Article 6, Section 5.100, Item 1(d) of the 1991 Kent County Zoning Ordinance as amended on October 14, 1997, which requires a one thousand foot setback from any dwelling located on an adjoining parcel; and
8. A variance from Article 6, Section 5.100, Item 8 of the 1991 Kent County Zoning Ordinance as amended on October 14, 1997, which requires any principal part of an antenna tower to be set back from the street line, any property line, or any line that establishes the site area on which it is located, by a distance of not less than the height of the tower. (Subsequent to the filing of Mesa's application, it was determined that this last variance was not necessary.)
Subsequent to the filing of Mesa's application, it was determined that this last variance was not necessary.
The property where Mesa wishes to erect the tower is owned by others and is zoned "single family residential." This property is a former waste disposal site which has been vacant for more than ten years. It is about twenty four acres in size and is bisected by a feeder creek into Silver Lake known as "Fork Branch," which significantly reduces the property's usable area. Existing ditches, wetlands, streams and woods located on the property also restrict the placement of the proposed tower. Mishoe Towers, a multifamily residential dwelling, adjoins the property to the south. The property is adjoined to the north by a 170 acre wooded farm, to the west by Railroad Avenue, and to the east by lands of the State of Delaware. If the requested variances had been granted, they would have allowed Mesa to construct a tower three hundred sixty-five feet taller than the height limitation of thirty five feet; four hundred thirty five feet closer to a dwelling than the required one thousand foot setback; and one hundred feet closer to two different property lines than the required five hundred foot setback.
The Board held a public hearing on Mesa's application on February 17, 2000. At this hearing, Mesa testified that it had spent fifteen months searching Kent County for a site for the tower that would meet the zoning requirements, but that such a site was simply unavailable. It further declared that the property it chose comes as close as possible to meeting the zoning requirements applicable to towers. According to Mesa, this property is ideally located for providing wireless communications coverage to the downtown Dover area and the growing northern section of Kent County. Mesa also testified as to the need for the new tower in Kent County. Mesa explained that the towers already existing in the area would not be suitable for "co-locating" the antennas of multiple wireless communications carriers, either because the antennas currently on these towers are located at the same heights that would be required for other users, or because these towers are structurally unable to accommodate additional antennas. Mesa indicated that it had letters from four wireless companies that wished to use the proposed tower, because they needed their antennas to be located at least 300 feet in height. The Federal Bureau of Alcohol, Tobacco and Firearms and Kent County Emergency Services were also interested in locating antennas on the proposed tower.
Steve Lee, a Planner for the City of Dover, testified in opposition to Mesa's application. Lee stated that there was not a need for this type of tower and that the requested variances were the result of self-created hardship. Additionally, Lee indicated that there was a multi-family residential use located within one thousand feet of the proposed tower and that the proximity of this tower to the dwelling raised concerns about health, safety and welfare. The Board also received a letter in opposition to Mesa's application from Luna Mishoe, II, President of Mishoe Towers. The letter expressed Mishoe's concern that the tower would cause harmful effects on the environment and on the health of nearby residents because of the radiation it would emit. Mishoe also feared that the tower would set a precedent for the character of the area that would be incompatible with other pre-existing structures.
After considering Mesa's application and the testimony presented at the public hearing, the Board decided by a vote of four to two to deny the variances. In its written decision dated February 25, 2000, the Board explained its reasons for denying Mesa's application:
The Board based their decision from the testimony of a representative from the City of Dover and correspondence from Mishoe Towers and the staff recommendation which follows:
`Although the site may lend itself as a prime candidate for the location of a tower it is too small to be able to meet those requirements set forth under the tower regulations which were adopted by the Kent County Levy Court. The regulations were proposed and adopted to keep in mind the health, safety and welfare of the County and it's [sic] citizens as a whole. The hardship here appears to be one that is self imposed. The applicant must show that there is a hardship and that hardship is other than one of a financial nature and that any variance relief must not substantially impair the intent and purpose of the zoning plan and regulations (Article 7, Section 3, Item 3). The staff therefore recommends that this application be Denied for the aforementioned reasons.'
`Realizing that there have been requests brought before the Board of adjustment [sic] in the past, the Planning staff has a concern for sites on which towers may be permitted. Staff feel that the intent of the language of the tower ordinance was to limit tower location to the following sites and no others.
a.) Church sites, when camouflaged as a steeple or bell tower . . .
b.) Park sites, when compatible with a nature park
c.) Government, school, utility or institutional sites
d.) 500 feet from all property lines and 1,000 feet from any dwelling located on an adjoining parcel.'
In an earlier motion before this Court, Mesa asked the Court to exclude from the appellate record the letter from Luna Mishoe, president of the nearby residential building, Mishoe Towers. Mesa asked that the letter be excluded from the certified record on appeal because it was not entered into evidence during the proceedings below. This Court found that the letter was in the application file for the variance requested by Mesa and therefore part of the public record. As part of the public record, Mesa had opportunity to inspect the letter prior to the hearing and rebut the letter at the hearing. The letter from Mishoe Towers was therefore considered as part of the appellate record.
Mesa Communications Group, L.L.C. v. Kent County Board of Adjustment, Del. Super., C.A. No. 00A-03-003, Witham, J. (June 8, 2000) (Letter Op.)
Mesa filed an appeal to the Board's decision on March 27, 2000. Mesa asserts three principal grounds for its appeal. First, Mesa claims that the Board failed to particularize its findings of fact and conclusions of law and that it did not base its decision on substantial evidence. Second, Mesa claims that the Board applied the wrong legal standard. According to Mesa, the Board incorrectly applied the "unnecessary hardship" standard, which applies to use variances, instead of applying the "exceptional practical difficulties" standard, which applies to area variances. Third, Mesa claims that the Board based its decision to deny the variances on the erroneous conclusion that Mesa had created its own hardship. The Board, on the other hand, maintains that its decision was based on substantial evidence and should be affirmed. The Board agrees that the exceptional practical difficulties standard is applicable to the variances sought by Mesa. However, the Board claims that it correctly applied this standard in the present case. Finally, the Board argues that it properly characterized Mesa's choice of the property in question as a self-created hardship.
II. STANDARD OF REVIEW
On appeals from the Board of Adjustment, the Superior Court must limit its scope of review to correcting errors of law and determining whether substantial evidence exists in 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." It is more than a scintilla of evidence, but less than a preponderance. When substantial evidence exists to support the Board's decision, the Superior Court may not reweigh the evidence or substitute its own judgment for the Board's. The Board, and not the Court, has the power to weigh evidence and to resolve conflicting testimony and issues of credibility. The party seeking to overturn the Board's decision has the burden of persuasion to 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 it considers equitable without regard to statutory requirements and the need for substantial evidence to fulfill those requirements. The Board must particularize its findings of fact and conclusions of law to enable the Superior Court to perform its function of appellate review.
Mellow v. Board of Adjustment of New Castle County, Del. Super., 565 A.2d 947, 954 (1988) (citing Janaman v. New Castle County Board of Adjustment, Del. Super., 364 A.2d 1241 (1976)).
Wadkins v. Kent County Board 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 Board 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 Board of Adjustment, Del. Super., 364 A.2d 1241, 1242 (1976).
Mellow, 565 A.2d at 954.
Profita v. New Castle County Board of Adjustment, Del. Super., C.A. No. 92A-08-013, 1992 WL 390625 at *3, Barron, 1. (Dec. 11, 1992) (ORDER).
Mellow, 565 A.2d at 956.
Janaman, 364 A.2d at 1242-43.
Profita, C.A. No. 92A-08-013, 1992 WL 390625 at *2.
III. DISCUSSION
9 Del. C. § 4917(3) authorizes the Board of Adjustment to grant a variance from the strict application of a zoning ordinance:
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, or exceptional and undue hardship upon, the owner of such property, . . . 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.
In Board of Adjustment v. Kwik-Check Realty, Inc., the Delaware Supreme Court defined the distinction between "use" variances and "area" variances. A use variance is a variance that changes the character of the zoned district by allowing the land to be used for a purpose otherwise proscribed by the zoning regulations. "An example of a use variance is one which permits a 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." "Examples of area variances include modifications of setback lines and yard requirements." 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.
389 A.2d 1289, 1291 (1978).
Id.
Kostyshyn v. City of Wilmington Zoning Board of Adjustment, Del. Super., 1990 WL 58226 at *1, Del Pesco, J. (April 12, 1990).
Id.; Kwik-Check, 389 A.2d at 1291.
Kostyshyn, 1990 WL 58226 at *1.
Kwik-Check, 389 A.2d at 1291.
The 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 only 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 the following factors: (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." Under the exceptional practical difficulties standard, economic hardship is one factor that may help justify granting an area variance. In Kwik-Check, the Supreme Court of Delaware concluded that "[t]he inability to improve one's business, or to stay competitive as a result of area limitations," may qualify as a legitimate "exceptional practical difficulty" that would justify granting a variance. "Such practical difficulty is present where the requested dimensional change is minimal and the harm to the applicant if the variance is denied will be greater than the probable effect on neighboring properties if the variance is granted."
Kwik-Check Realty Co., Inc. v. Board of Adjustment of New Castle County, Del. Super., 369 A.2d 694, 698 (1977).
See Kwik-Check, 389 A.2d at 1291.
Id.
Id.; see J.R. Julian v. Highlands Place Co., LLC, Del. Super, C.A. No. 93A-11-4, Herlihy, J. (May 10, 1990) (Mem. Op.).
Kwik-Check, 389 A.2d at 1291.
Id.
IV. CONCLUSION
Mesa and the Board agree that the exceptional practical difficulties test is applicable to the variances sought in this case. The Court must determine if sufficient evidence existed to support the Board's decision under the Kwik-Check test. The Board is to particularize its findings of facts and conclusions of law to enable the Court to fulfill its function of appellate review. In the present case the Board's decision did not specifically address the Kwik-Check factors making this appellate review more difficult. Both parties are now arguing what was before the Board, what was actually considered by the Board, and what was decided by the Board. The court in Dexter v. New Castle County Board of Adjustment was faced with a similar situation and found that "while the Board failed to address the Kwik-Check II factors in its decision, the Court finds that the Board did hear evidence as to each one of the elements." The Dexter court went on to perform its own evaluation of the record and case law determining that there was not substantial evidence to support the Board's decision. In the case sub judice, the Court finds that while the record did contain evidence addressing each of the factors, the Board's conclusions were not supported by substantial evidence.A. The Board had sufficient evidence before it to decide the first and second factors of Kwik-Check.
The first Kwik-Check factor to be evaluated is the nature of the zone where the property lies. In the Board's decision they state that they made their decision in part based on the recommendation of the Planning Staff Report. The report stated that the area had been zoned RS-1 (Single Family Residential) since 1972 and that the proposed tower is permitted as a Conditional Use. Further, during the testimony and in the Planning Report, the nature of the property was discussed including such things as the land's characteristics (wooded, streams and wetlands making the property difficult to otherwise use) and the land's prior ownership (dumping site).
The second Kwik-Check factor to be evaluated is the character and uses of the immediate vicinity. During the testimony, properties surrounding the site of the proposed tower were discussed. Mishoe Towers, one of those surrounding properties, submitted a letter to the Board detailing their concerns about the proposed tower. Mr. Lee, a planner for the City of Dover, also testified as to the surrounding properties, and the Planning Report included the history and comprehensive plan recommendations for the land. The Board had sufficient evidence before it on both the nature of the zone where the proposed tower is to be placed and the character and use of the immediate vicinity.
B. The Board did not have sufficient evidence before it to decide the third and fourth Kwik-Check factors.
The third Kwik-Check factor to be evaluated is whether removal of the restriction on the applicant's (Mesa) property would seriously affect the neighboring property and its uses. The Board was not presented with sufficient evidence of the "serious affect" granting the variance would have on the neighboring properties. Potential concerns were submitted by Mishoe Towers in a letter, and by Mr. Lee, a planner from the City of Dover, who presented his concern about the effect on the view and potential problems if housing was to go on the Delaware State University property in the future. While the Board heard numerous allegations of "health, safety and welfare concerns", none were clearly articulated or substantiated with evidence. No doubt, health, safety and welfare concerns form part of a general standard that could potentially "seriously affect" neighboring properties and their use; however, no specific health, safety or welfare concerns were articulated or tied to Mesa's variance. At the hearing one specific safety issue was raised by a board member who asked about the possibility of the tower falling and hitting Mishoe Towers, the nearest residence. Mesa replied that towers are engineered not to fall straight over, but even if it did, it would still fall short of Mishoe Towers. The letter from Mishoe Towers voiced concerns about the effect on the character of the area and about radiation as some of the residents have health issues such as pacemakers that might be affected by radiation from the tower. As Mishoe Tower's letter asks, so does this Court, "were any studies done, any experts approached" about the potential harm or effect from the proposed tower? Lacking this evidence and with no other evidence presented as to the effect on neighboring properties, the Board did not have sufficient evidence before it to decide whether or not granting Mesa the variance would seriously affect the neighboring properties.
The fourth Kwik-Check factor to be evaluated is 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 or use of the property. Essentially, this requires the Board to evaluate the requested variance by considering the harm to the applicant if the variance is denied against the probable effect on neighboring properties if the variance is granted. The Board's evaluation could not have taken into account the probable effect on neighboring properties as there was insufficient evidence on any such effects. The Board did have sufficient evidence before it concerning the difficulty that would be caused to Mesa. The Board could not have compared the potential effect on neighboring properties with the exceptional practical difficulty presented to Mesa as there was insufficient evidence presented on any such effects.
The Board specifically asked what Mesa would do if the variance was denied and the response by Mesa was they would continue their efforts to find a suitable location. Mesa also stated that they had been searching for a location for 15 months and there was a lack of sites that would meet the zoning requirements of the city and county. At the hearing, Mesa also highlighted for the Board that the proposed site had few potential uses and that even this site presented building difficulties.
In adopting the Planning Department's recommendation, the Board found that the hardship for Mesa was self imposed. Generally a board will deny a variance request when the hardship has been self-created. Self-imposed or self-created hardships are those that "arise from `difficulties uniquely personal to the owner, rather than intrinsically related to the property itself.'" In Dexter, the court went on to note that the self-created hardship cases "have typically involved some kind of affirmative action on the part of the land owner." No affirmative action has taken place in the immediate case. Mesa is asking for a variance to be able to build the proposed tower. Furthermore, "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." If prior knowledge of the zoning regulations acted as a bar to variance applications, it would be virtually impossible to obtain a variance. The Board can weigh the knowledge as a factor in its decision, but prior knowledge by itself does not make a hardship self-created. The Board was in error in finding that Mesa's hardship was self-created.
Janaman at 1243.
Dexter at *5 (quoting Doebling v. Board of Adjustment, Del. Super., C.A. No. 86A-FE-1, Chandler, J. (Apr. 20, 1987) (Letter Op.) at 4.)
Dexter at *5
Hanley v. City of Wilmington Zoning Board of Adjustment, Del. Super., C.A. No. 99A-12-004-WTQ, 2000 WL 1211173 at *3, Quillen, J. (Aug. 3, 2000) (Letter Op.). The court in Hanley went on to cite 3 Rarhkopf's Zoning and Planning § 38.06 which states that, "it should not be within the discretion of a board of appeals to deny a variance solely because a purchaser bought with knowledge of the zoning restrictions."
Finally, the Board adopted the Planning Department's recommendation which included a finding that "the applicant must show that there is a hardship and that hardship is other than one of a financial nature." The amount of weight given this statement by the Board is not clear; however, this Court would like to clarify the appropriate standard for considering economic hardships. In Homan v. Lynch, the court stated that, "[e]conomic hardship alone, that is, the fact that the owner could use the property more profitably if the variance were granted, is not enough in itself to justify a variance, particularly if the owner had bought the property with full knowledge of the zoning restrictions." The court went on to state that economic hardship is a factor that is proper to consider. Similarly, in Kwik-Check the court further stated that "[t]he inability to improve one's business, or to stay competitive as a result of area limitations, may be a legitimate `exceptional practical difficulty' that would justify a grant of a variance." The Kwik-Check court went on to set forth the following standard: "[s]uch practical difficulty is present where the requested dimensional change is minimal and the harm to the applicant if the variance is denied will be greater than the probable effect on neighboring properties if the variance is granted." Again, without substantial evidence as to the impact on surrounding properties, the Court cannot evaluate the Board's decision in a traditional fashion.
Homan v. Lynch, Del. Supr., 147 A.2d 650, 654 (1959).
Id.
Kwik-Check at 1291.
Id.
The Court's role in appellate review of Board decisions is to evaluate them for errors of law and whether substantial evidence exists in the record to support the Board's findings of fact and conclusions of law. The Board did not have substantial evidence before it as to the impact granting the proposed variance would have on the surrounding properties and incorrectly found that the hardship was self-created. While the better approach would be to remand this matter to the Board to conduct a further hearing consistent with this decision, 22 Del. C. § 328(c) provides that in an appeal from a Board of Adjustment decision, the Court "may reverse or affirm, wholly or partly, or may modify the decision brought up for review."
The language of the statute prevents this Court from remanding to the Board to conduct the appropriate fact finding hearing with the Kwik-Check requirement in mind. For these reasons the Court concludes that the Board erred as a matter of law and must therefore be reversed as to its denial of Mesa's variance.
See Hellinger v. City of Lewes Board of Adjustment., Del. Supr., No. 35, 1999, Veasey, C.J. (July 19, 1999).