Opinion
C.A. No. 01A-09-003
Date Submitted: March 8, 2002
June 27, 2002
Shawn P. Tucker, Esquire, 15 Ashley Place, P.O. Box 3037, Wilmington, DE 19804.
James F. Waehler, Esquire, Mary Robin Schrider, Esquire, Tunnell Raysor, P.A., P.O. Box 151, Georgetown, DE 19947.
Walter W. Speakman, Jr., Esquire, Brown Shiels Beauregard Chasanov, P.O. Drawer F, Dover, DE 19903.
Dear Counsel:
This is the Court's decision regarding Neon Oyster's ("Petitioner") appeal from a City of Rehoboth Beach Board of Adjustment ("Board") decision. The Board denied the Petitioner's appeal from a Building and Licensing Supervisor's ("Supervisor") decision rejecting Petitioner's application for a permit of compliance regarding a restaurant in First Street Station in Rehoboth Beach, Delaware.
FACTS
In March of 2001, Petitioner entered a lease agreement with Grotto Pizza, Inc. ("owner") to open a restaurant that would occupy 1,361 square feet of space in a commercial complex known as First Street Station in Rehoboth Beach, Delaware. First Street Station is a two-story structure, plus a mezzanine level, that was built upon six separate lots located within the city. Pursuant to Rehoboth Beach's Zoning Code, "the area in a given building devoted to restaurant purposes where alcoholic liquor is consumed on the premises shall not be larger than five thousand square feet of floor space." The Municipal Code of Rehoboth Beach, Ch. 19, Sec. 19-39. A restaurant may not obtain a building permit until the owner or lessee receives a permit of compliance from the City of Rehoboth Beach Commission after a public hearing. The Municipal Code of Rehoboth Beach, Ch. 6, Art. 10, Secs. 6-96 6-99.
On March 6, 2001, Petitioner filed an application for a permit of compliance with the Building and Licensing Department in order to open a restaurant that would serve alcohol. Another applicant, Rehoboth Wings, LLC had already been granted a permit of compliance to open a Hooters restaurant in First Street Station that would occupy 4,758.5 square feet and serve alcohol. On April 10, 2001, the Supervisor denied Petitioner's application. Despite Petitioner's argument that First Street Station was comprised of two buildings, the Supervisor held that First Street Station was one building to which the 5,000 square feet limit applied. She concluded that granting Petitioner's application would result in a total floor area of 6,120.1 square feet in First Street Station devoted to restaurant purposes where alcohol was served, exceeding the 5,000 square feet limit for a single building. In response, Petitioner filed an appeal with the Board. On July 20, 2001, the Board denied Petitioner's appeal and issued its written decision on August 13, 2001. The Board held that only one building existed at the First Street Station, citing three facts in support of its conclusion. First, the owner and architects of the property always considered the structure to be one building. Second, if the structure were two buildings, it would violate a number of Building Code requirements. Third, if the Board granted the appeal, the intent and purpose of the Zoning Code would be substantially impaired. Petitioner filed a timely appeal to this Court, seeking a reversal of the Board's decision.
DISCUSSION
This case turns on the answer to a single, simple question: what constitutes a building? Normally, such a question is easily answered by the average seven year old. But, due to the complexity of zoning in today's development environment, it is a job left to the courts. Petitioner argues that the Board erred as a matter of law when it denied petitioner's appeal. In support of its contention, Petitioner offers two arguments. First, under the Rehoboth Beach Zoning Code, First Street Station consists of two buildings. Therefore, Petitioner claims, the 5,000 square feet limit would apply to each building separately, allowing Petitioner to serve alcohol in its restaurant. Second, the Building and Licensing Supervisor's decision amounted to an unconstitutional taking that violated Petitioner's rights to substantive due process under the Delaware Constitution.
The Supreme Court and this Court repeatedly have emphasized the limited appellate review of the factual findings of an administrative agency. The function of the reviewing court is to determine whether substantial evidence exists on the record to support the Board's findings of fact and to correct errors of law. Hellings v. City of Lewes Board of Adjustment, 734 A.2d 641 (Del. 1999). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Oceanport Ind. v. Wilmington Stevedores, 636 A.2d 892, 899 (Del. 1994); Battista v. Chrysler Corp., 517 A.2d 295, 297 (Del.Super. 1986), app. dism., 515 A.2d 397 (Del. 1986). When such evidence exists, this Court may not reweigh it and substitute its own judgment for the Board's. Janaman v. New Castle Co. Bd. of Adjustment, 364 A.2d 1241, 1242, (Del. Super 1976), aff'd, 379 A.2d 1118 (Del. 1977).
Petitioner's argument that First Street Station is comprised of two buildings is based on its interpretation of the Rehoboth Beach Zoning Code. The code defines "building" as "a structure, usually roofed, walled and built for permanent use, as for a dwelling or for commercial purposes." The Municipal Code of Rehoboth Beach, Ch. 19, Sec. 19-39. A "structure" is defined by the Zoning Code as:
[A]nything constructed or erected, including any part thereof, the use of which requires permanent location on the ground or attachment to something having a permanent location on the ground, including, but without limiting the generality of the foregoing, house trailers, mobile homes, relocatable homes, signs, swimming pools, porches, balconies, decks, canopies, fences, backstops for tennis courts, pergolas, gazebos, heating, ventilating and cooling devices, compressors or pumps and showers, and excluding driveways and sidewalks.
Id. at Ch. 19, Sec. 19-4. Petitioner maintains that the Board ignored the Zoning Code definition, under which, Petitioner claims, First Street Station is comprised of two distinct buildings, not one building.
This Court agrees that the Zoning Code definition controls this dispute, but does not agree with Petitioner's interpretation of the Code. An examination of the Zoning Code reveals that the Board could reasonably conclude that the First Street Station is one building. The Zoning Code defines a building as a "structure." The definition of "structure" is inclusive, not exclusive. The structure in this case is a retail structure including decks and walkways. Petitioner agrees that the Zoning Code broadly defines the term "structure." If a building is a "structure," and if a "structure" is broadly defined, then a wide variety of "structures" may be considered buildings — including the First Street Station. In fact, the only additional, mandatory requirements that a building have beyond those for a "structure" are (1) walls, (2) permanency, and (3) use as a dwelling or for commercial purposes. The First Street Station meets all of the additional requirements. It is obviously a structure with walls, built for permanent use, and used for commercial purposes. Although the structure's middle section is not roofed, the definition does not require a roof for a structure to be considered a building nor does the absence of a roof necessarily imply the existence of two, separate buildings.
While the Zoning Code includes the clause "usually roofed", such language is permissive and not a necessary requirement for a building.
This does not mean, however, that every structure that meets the additional requirements for a building should be considered as such. The Board may consider additional, relevant evidence in making its determination. The Board did so by looking at the architect's intent in designing the structure and the owner's intent in building it. Both parties intended the structure to be a single, contiguous building. While not dispositive, such evidence is persuasive in a case such as this, where the owner's interests aren't furthered and may, in fact, be harmed by the Board's finding that the structure is a single building.
Furthermore, it is within the city's authority to say what a building is or is not through statute. So long as the city does not exceed the statute's parameters, a court may not subsequently override its decision. After examining the owner's application for a building permit, which undoubtedly included the structure's blueprints, the city issued a building permit under the assumption that the structure was one building. In fact, if the structure were submitted to the city as two buildings, it would not have received approval for a building license. Because the city is the regulating body for such matters, the Board properly considered the city's determination in its decision.
Petitioner objects to the Board's consideration of the fact that First Street Station would not meet a number of Building Code requirements if it is viewed as two buildings. By holding that one building exists, the Board was not attempting to avoid the Building Code violations. Instead, the fact that Building Code violations would exist if First Street Station were two buildings only bolsters the idea that the structure was recognized as one building. In light of those facts, this Court holds that the Board's denial of Petitioner's appeal is supported by substantial evidence.
Petitioner argues that the Board's interpretation amounted to an unconstitutional taking and a violation of its right to substantive due process under the Delaware Constitution. In short, the Petitioner maintains that because the Board ignored the Zoning Code definition and relied upon the potential Building Code violations, the Board's decision was irrationally reached and does not substantially advance a legitimate governmental interest. However, the Board could take into account the potential Building Code violations as evidence of the First Street Station comprising one building. Therefore, because the Board's actions upon which the Petitioner rests its constitutional claim were proper, Petitioner's argument fails.
In light of the foregoing, the Board's decision is affirmed.
IT IS SO ORDERED.