IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STEPHANI BALLARD WAGNER; ) JAMES AND LINDA FRIEDRICHSEN; ) CARL GOLDSTEIN & JUDITH ANNE ) HOUGH-GOLDSTEIN; ) JOHN AND CELIA HUBER; and ) JAMES RENE KANICKY & ELKE ) C.A. No. N19A-09-003 CEB ANJA MICHALAK. ) ) Petitioners, ) ) v. ) ) J & B CONTRACTORS, LLC.; NEW ) CASTLE COUNTY, Department of ) Land Use; and NEW CASTLE ) COUNTY BOARD OF ADJUSTMENT, ) ) Respondents. )
Submitted: July 19, 2021 Decided: August 27, 2021
MEMORANDUM OPINION
Upon Consideration of Petitioners’ Appeal of the Decision of the New Castle County Board of Adjustment, AFFIRMED.
Stephani J. Ballard, Esquire, LAW OFFICES OF STEPHANI J. BALLARD, LLC, Wilmington, Delaware. Attorney for Petitioners.
John E. Tracey, Esquire, YOUNG CONAWAY STARGATT & TAYLOR, LLP, Wilmington, Delaware. Attorney for Respondent, J & B Contractors, LLC.
BUTLER, R.J. This matter comes to the Court after Petitioner Stephanie Ballard Wagner and
others (“Petitioners”) unsuccessfully opposed the subdivision of a property before
the New Castle County Board of Adjustment (“Board”).
FACTUAL AND PROCEDURAL BACKGROUND
The property in dispute is a 1.48-acre, single-family residential lot at 898
Sharpless Road in Hockessin, Delaware (hereinafter, the “Property”). The Property
is zoned NC21 under New Castle County’s Unified Development Code (“UDC”),
requiring a minimum 0.50-acre lot size. It sits on a private drive with ten other
single-family lots that range in lot size from 0.51 acres to nearly 3.0 acres.
J & B Contractors, LLC (“Respondent”) purchased the Property on October
9, 2018 intending to subdivide the parcel into two lots of 0.582 and 0.743 acres and
to construct a single-family home on each lot. Respondent demolished the existing
house and submitted an exploratory plan to the New Castle County Department of
Land Use (“Department”) to subdivide the property.
The Department noted the Property’s presence in the Cockeysville Formation
Drainage Area (“CFDA”). The CFDA is a large water table in northwestern New
Castle County; development within the CFDA triggers additional requirements
under the UDC intended to preserve the county’s water resources.
The Department also noted that a zoning variance would be required before
subdividing could proceed. Respondent revised the plan to meet the Department’s
1 concerns. As revised, the Department found the new plan “conditionally
acceptable,” subject to securing a zoning variance from the Board.
One of the unusual features of the UDC as it relates to land in the CFDA is
that “disturbances” to the land may not exceed fifty percent of the total lot area,
preserving the remainder of the land as open space.1 The UDC further provides that
the lot area must be calculated by excluding the preserved space from the total lot
area.2 Because fifty percent of the lot area must be preserved from disturbance and
may not be included in the total lot area, a half-acre lot becomes a quarter-acre piece
of land that can be “disturbed” by development.
Land zoned in NC21, such as the subject property, has a minimum lot size of
a half-acre. While each of these lots exceeded half an acre, the open space required
by the CFDA may not be considered when calculating the lot size and therefore the
lots were smaller than the minimum size called for in zone NC21.
Respondent filed an application with the Board seeking area variances to
provide a disturbance area of 1) 0.10 acres exclusive of protected resources for Lot
1, and 2) 0.22 acres exclusive of protective resources for Lot 2. The Department
issued its Recommendation to the Board that supported the approval of the requested
variances.
1 UDC Table 40.10.010. 2 UDC § 40.04.110.D. 2 After notice was issued, the Board held a hearing on May 23, 2019. The Board
voted unanimously to grant the two variances. In doing so, the Board rejected the
opponents’ argument that this was a “use variance” and determined that the
appropriate standard to review the application was an area variance standard. In
response to the Board’s ruling, Petitioners filed an appeal with this Court seeking
reversal of the decision.
STANDARD OF REVIEW
The Court’s review of a Board of Adjustment decision is limited to a
determination whether the findings and conclusions are supported by substantial
evidence and free from legal error.3 Substantial evidence is “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.”4 The Court
does not weigh the evidence, determine questions of credibility, or make its own
factual findings.5 The Court must give deference to the experience and specialized
competence of the Board.6
3 Janaman v. New Castle Cty. Bd. of Adjustment, 364 A.2d 1241, 1242 (Del. 1976). 4 Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981). 5 Wawa, Inc. v. New Castle Cty. Bd. of Adjustment, 929 A.2d 822, 830 (Del. Super. 2005). 6 Dempsey v. New Castle Cty. Bd. of Adjustment, 2002 WL 568126, at *4 (Del. Super. Ct. Apr. 17, 2002). 3 ANALYSIS
Petitioners raise three issues on appeal: 1) the Board erred when using the
legal standard for an “area” variance instead of the more stringent standard for a
“use” variance, 2) there was no substantial evidence showing the UDC lot size
restrictions would create “exceptional practical difficulty,” and 3) Respondent failed
to provide adequate public notice of the substance of the proposal at issue.
1. The Variance in Question is an Area Variance.
A use variance permits a property to be used “in a manner otherwise prohibited
by applicable law or zoning regulation.”7 It changes the character of the zoned
district by permitting an otherwise proscribed use, such as a commercial use in a
residential district.
Obtaining a “use variance” is deliberately more onerous than an area variance, as
it constitutes an alteration of the uses to which the land in the adjoining area is put.
Use variances are subject to the “unnecessary hardship” test.8 Proof of an
unnecessary hardship requires a showing that 1) the land cannot yield a reasonable
return if used only for the permissible use, 2) the need for the variance is due to
7 Wawa, Inc., 929 A.2d at 831. 8 Bd. of Adjustment of New Castle Cty. v. Kwik-Check Realty, Inc., 389 A.2d 1289, 1291 (Del. 1978). 4 unique circumstances and not general conditions in the neighborhood, and 3) the use
sought will not alter the essential character of the locality.9
Area variances, on the other hand, generally allow deviations from zoning
restrictions on physical characteristics of the planned improvement.10 Area
variances are subject to the less burdensome “exceptional practical difficulty” test.11
An exceptional practical difficulty considers 1) the nature and zone in which the
property is located, 2) the character of the immediate vicinity, 3) the uses in that
vicinity, 4) if the restrictions were removed, whether there would be a serious effect
on neighborhood property and uses, and 5) if the restrictions were not removed,
Free access — add to your briefcase to read the full text and ask questions with AI
IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
STEPHANI BALLARD WAGNER; ) JAMES AND LINDA FRIEDRICHSEN; ) CARL GOLDSTEIN & JUDITH ANNE ) HOUGH-GOLDSTEIN; ) JOHN AND CELIA HUBER; and ) JAMES RENE KANICKY & ELKE ) C.A. No. N19A-09-003 CEB ANJA MICHALAK. ) ) Petitioners, ) ) v. ) ) J & B CONTRACTORS, LLC.; NEW ) CASTLE COUNTY, Department of ) Land Use; and NEW CASTLE ) COUNTY BOARD OF ADJUSTMENT, ) ) Respondents. )
Submitted: July 19, 2021 Decided: August 27, 2021
MEMORANDUM OPINION
Upon Consideration of Petitioners’ Appeal of the Decision of the New Castle County Board of Adjustment, AFFIRMED.
Stephani J. Ballard, Esquire, LAW OFFICES OF STEPHANI J. BALLARD, LLC, Wilmington, Delaware. Attorney for Petitioners.
John E. Tracey, Esquire, YOUNG CONAWAY STARGATT & TAYLOR, LLP, Wilmington, Delaware. Attorney for Respondent, J & B Contractors, LLC.
BUTLER, R.J. This matter comes to the Court after Petitioner Stephanie Ballard Wagner and
others (“Petitioners”) unsuccessfully opposed the subdivision of a property before
the New Castle County Board of Adjustment (“Board”).
FACTUAL AND PROCEDURAL BACKGROUND
The property in dispute is a 1.48-acre, single-family residential lot at 898
Sharpless Road in Hockessin, Delaware (hereinafter, the “Property”). The Property
is zoned NC21 under New Castle County’s Unified Development Code (“UDC”),
requiring a minimum 0.50-acre lot size. It sits on a private drive with ten other
single-family lots that range in lot size from 0.51 acres to nearly 3.0 acres.
J & B Contractors, LLC (“Respondent”) purchased the Property on October
9, 2018 intending to subdivide the parcel into two lots of 0.582 and 0.743 acres and
to construct a single-family home on each lot. Respondent demolished the existing
house and submitted an exploratory plan to the New Castle County Department of
Land Use (“Department”) to subdivide the property.
The Department noted the Property’s presence in the Cockeysville Formation
Drainage Area (“CFDA”). The CFDA is a large water table in northwestern New
Castle County; development within the CFDA triggers additional requirements
under the UDC intended to preserve the county’s water resources.
The Department also noted that a zoning variance would be required before
subdividing could proceed. Respondent revised the plan to meet the Department’s
1 concerns. As revised, the Department found the new plan “conditionally
acceptable,” subject to securing a zoning variance from the Board.
One of the unusual features of the UDC as it relates to land in the CFDA is
that “disturbances” to the land may not exceed fifty percent of the total lot area,
preserving the remainder of the land as open space.1 The UDC further provides that
the lot area must be calculated by excluding the preserved space from the total lot
area.2 Because fifty percent of the lot area must be preserved from disturbance and
may not be included in the total lot area, a half-acre lot becomes a quarter-acre piece
of land that can be “disturbed” by development.
Land zoned in NC21, such as the subject property, has a minimum lot size of
a half-acre. While each of these lots exceeded half an acre, the open space required
by the CFDA may not be considered when calculating the lot size and therefore the
lots were smaller than the minimum size called for in zone NC21.
Respondent filed an application with the Board seeking area variances to
provide a disturbance area of 1) 0.10 acres exclusive of protected resources for Lot
1, and 2) 0.22 acres exclusive of protective resources for Lot 2. The Department
issued its Recommendation to the Board that supported the approval of the requested
variances.
1 UDC Table 40.10.010. 2 UDC § 40.04.110.D. 2 After notice was issued, the Board held a hearing on May 23, 2019. The Board
voted unanimously to grant the two variances. In doing so, the Board rejected the
opponents’ argument that this was a “use variance” and determined that the
appropriate standard to review the application was an area variance standard. In
response to the Board’s ruling, Petitioners filed an appeal with this Court seeking
reversal of the decision.
STANDARD OF REVIEW
The Court’s review of a Board of Adjustment decision is limited to a
determination whether the findings and conclusions are supported by substantial
evidence and free from legal error.3 Substantial evidence is “such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.”4 The Court
does not weigh the evidence, determine questions of credibility, or make its own
factual findings.5 The Court must give deference to the experience and specialized
competence of the Board.6
3 Janaman v. New Castle Cty. Bd. of Adjustment, 364 A.2d 1241, 1242 (Del. 1976). 4 Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981). 5 Wawa, Inc. v. New Castle Cty. Bd. of Adjustment, 929 A.2d 822, 830 (Del. Super. 2005). 6 Dempsey v. New Castle Cty. Bd. of Adjustment, 2002 WL 568126, at *4 (Del. Super. Ct. Apr. 17, 2002). 3 ANALYSIS
Petitioners raise three issues on appeal: 1) the Board erred when using the
legal standard for an “area” variance instead of the more stringent standard for a
“use” variance, 2) there was no substantial evidence showing the UDC lot size
restrictions would create “exceptional practical difficulty,” and 3) Respondent failed
to provide adequate public notice of the substance of the proposal at issue.
1. The Variance in Question is an Area Variance.
A use variance permits a property to be used “in a manner otherwise prohibited
by applicable law or zoning regulation.”7 It changes the character of the zoned
district by permitting an otherwise proscribed use, such as a commercial use in a
residential district.
Obtaining a “use variance” is deliberately more onerous than an area variance, as
it constitutes an alteration of the uses to which the land in the adjoining area is put.
Use variances are subject to the “unnecessary hardship” test.8 Proof of an
unnecessary hardship requires a showing that 1) the land cannot yield a reasonable
return if used only for the permissible use, 2) the need for the variance is due to
7 Wawa, Inc., 929 A.2d at 831. 8 Bd. of Adjustment of New Castle Cty. v. Kwik-Check Realty, Inc., 389 A.2d 1289, 1291 (Del. 1978). 4 unique circumstances and not general conditions in the neighborhood, and 3) the use
sought will not alter the essential character of the locality.9
Area variances, on the other hand, generally allow deviations from zoning
restrictions on physical characteristics of the planned improvement.10 Area
variances are subject to the less burdensome “exceptional practical difficulty” test.11
An exceptional practical difficulty considers 1) the nature and zone in which the
property is located, 2) the character of the immediate vicinity, 3) the uses in that
vicinity, 4) if the restrictions were removed, whether there would be a serious effect
on neighborhood property and uses, and 5) if the restrictions were not removed,
whether there would be a hardship on the owner to make normal improvements
allowed for the use permitted for that property.12
The difference between the two can be boiled down to this: a use variance
fundamentally changes how the property is used. An area variance relaxes zoning
or building limitations on the property but does not alter how it may be used. Here,
Respondent’s proposed subdivision will still use the property for single-family
purposes, a use that is consistent with NC21. Thus, the Board correctly found that
Respondent was seeking an area variance, not a use variance.
9 Wawa, Inc., 929 A.2d at 831. 10 See id. at 830 (citing Matthew v. Smith, 707 S.W.2d 411, 416 (Mo. 1986)); Kwik- Check Realty, Inc., 389 A.2d at 1291. 11 Wawa, Inc., 929 A.2d at 831. 12 Id. 5 2. There Was Substantial Evidence That the UDC Lot Size Restriction Would Create “Exceptional Practical Difficulty.”
Respondent requested the variance to deviate from the lot size requirement
because under the UDC, the lots had to be calculated exclusive of protected
resources. That is to say: the lots will both exceed the 0.5-acre minimum required
by the UDC; the only variance required was relaxation of the requirement that land
within the protected resource not be counted in the total lot size.
Turning to the exceptional practical difficulty factors, the properties along
Melson Way that adjoin the subject lots consist of an array of half-acre to three-acre
lots. These lots are of equivalent size. As residences, they are consistent with the
surrounding area. These homes, in short, would not differ substantially from other
homes already in place on Melson Way.
Indeed, Petitioners do not take serious issue with the Board’s findings. Rather,
Petitioners argue that the environmental restrictions are mandatory and any lots of
less than 0.5 acres (exclusive of the mandated open space) are prohibited in the NC21
zone located in the CFDA. In Petitioner’s view, the half acre lot size mandated by
the NC21 zone is actually a one-acre lot size in the CFDA due to the requirement
that one half the lot be reserved for open space. And for Petitioner, there can be no
exception, as the lot size and open space requirements are mandated by the UDC.
Petitioner’s argument not only vitiates the plain language of the minimum lot size
permitted for the NC21 zone, but Petitioner’s argument that the Board has no 6 authority to grant an area variance is belied by the statutory scheme created by the
General Assembly and the UDC.
9 Del. C. § 1313 expressly states that the Board is empowered to grant a
variance from any zoning law “that will not be contrary to the public interest, where,
owing to special conditions or exceptional situations, a literal interpretation 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.”13
There is little doubt but that the Board had the authority to grant the variance
notwithstanding the restrictions articulated in the UDC.
The purpose of the CFDA restriction on disturbances to the land is to preserve
the ability of the CFDA to recharge naturally. The subdivision plan was consistent
with that purpose, as more than half of the subdivided lots would be preserved as
open space. Thus, there was substantial evidence supporting the Board’s conclusion
that the variance was required to avoid an exceptional practical difficulty.
3. The Notice Was Sufficient.
Petitioners’ final argument regarding notice is unavailing. Under UDC §
40.31.340, the Department of Land Use is responsible for ensuring notice of public
hearing via 1) notice in the newspaper, 2) mailed notice, and 3) posted notice with a
13 9 Del. C. § 1313(a)(3). 7 sign on the property. The record demonstrates that the Department posted in the
newspaper, mailed notice to neighboring residents, and posted a sign on the property.
The Department, in its review of the exploratory plan, identified the lot size
variances required to accommodate the proposed subdivision. Moreover, the
application itself depicted the 1) lots to be created and 2) the lot area requested
pursuant to the UDC. The notices were adequate under the UDC. Thus, the Board
did not err in finding that the Department gave adequate public notice.
CONCLUSION For the foregoing reasons, the Board’s decision is AFFIRMED. IT IS SO ORDERED.
Charles E. Butler, Resident Judge