Wagner v. J & B Contractors, LLC

• Court: Supreme Court of Delaware
• Decided: June 15, 2022
• Docket: 300, 2021
• Status: Published

Opinion

IN THE SUPREME COURT OF THE STATE OF DELAWARE

STEPHANI BALLARD WAGNER; § JAMES AND LINDA § No. 300, 2021 FRIEDRICHSEN; CARL § GOLDSTEIN & JUDITH ANNE § Court Below: Superior Court HOUGH-GOLDSTEIN; JOHN AND § of the State of Delaware CELIA HUBER; and JAMES RENE § KANICKY & ELKE ANJA § C.A. No. N19A-09-003 MICHALAK, § § Petitioners Below, § Appellants, § § v. § § J & B CONTRACTORS, LLC; NEW § CASTLE COUNTY, Department of § Land Use; and NEW CASTLE § COUNTY BOARD OF § ADJUSTMENT, § § Respondents Below, § Appellees. Submitted: April 20, 2022 Decided: June 15, 2022

Before SEITZ, Chief Justice; VALIHURA, and VAUGHN, Justices.

ORDER

On this 15th day of June 2022, upon consideration of the parties’ briefs and the

record on appeal, it appears to the Court that:

(1) The Appellee, J & B Contractors, LLC (“J & B”), petitioned the New

Castle County Board of Adjustment (the “Board”) for variances that would allow it

to divide a 1.48-acre parcel into two lots and build a single-family dwelling on each lot. The minimum lot size for a single-family dwelling at the property’s location is

0.5 acre. However, J & B could not count all of the 1.48 acres toward the minimum

lot size for the two lots. The 1.48 acres first had to be reduced by 0.16 acre that lies

within a Delaware Department of Transportation right-of-way for road purposes,

leaving 1.32 acres for the two lots. J & B proposed to divide the remaining 1.32

acres into a 0.6-acre lot (Lot 1) and a 0.72-acre lot (Lot 2). A further reduction in

the calculation of minimum lot size was required, however, because the property sits

in a “Water Resource Protected Area” (“WRPA”) known as the Cockeysville

Formation Drainage Area (the “CFDA”). The CFDA is a large water table in

northwestern New Castle County that drains to grounds underlain by the

Cockeysville Formation. To preserve the County’s water resources, development

within the CFDA triggers several open space requirements: 1) any “disturbances”

to land within the CFDA may not exceed 50% of the total lot area and 2) the amount

of impervious coverage (the total horizontal area of all buildings and paved surfaces)

is limited to 20%.1 The New Castle County Unified Development Code (the

“UDC”) requires that lot area be calculated by excluding the preserved space from

the total lot area.2 When the CFDA requirements were factored into the calculation

of minimum lot size, Lot 1 was left with a lot size of only 0.10 acre and Lot 2 was

1 Opening Br. Ex. B at 2 [hereinafter Bd. of Adjustment Op.]; Opening Br. Ex. C at UDC § 40.01.100 [hereinafter UDC]. 2 UDC § 40.04.110(D). 2 left with 0.22 acre. As a result, J & B needed variances from the 0.5-acre minimum

lot size requirement for each lot. After a hearing, the Board voted unanimously to

approve the variances.

(2) The Appellants are neighboring or nearby property owners who have

opposed J & B’s request for variances. After the Board approved the variance

requests, the Appellants filed a Petition for Review by Writ of Certiorari in the

Superior Court. The Superior Court affirmed the Board’s decision. On appeal to

this Court, the Appellants make two claims. The first claim has a number of

subparts. The Appellants first argue that the Board erred by failing to find that the

variances were not “contrary to the public interest,”3 a finding, they assert, that is

required by the UDC. They also argue that the Board erred by failing to find that

the variance requests were “owing to special conditions or exceptional situations,”4

a finding they also assert is required by the UDC. They further argue that the Board

erred by calculating lot area in an arbitrary manner, in gross derogation of the plain

language of the UDC, for the sole purpose of approving the variance requests.

Finally, as part of their first claim, they argue that the Board erred by considering

the variance requests under the “exceptional practical difficulties” legal standard for

3 Opening Br. at 13. 4 Id. at 15. 3 “area” variances, rather than the more stringent standard of “unnecessary hardship”

for “use” variances.5

(3) As their second claim, the Appellant’s argue that even if the area

variance standard is the correct standard to apply to consideration of the requested

variances, the Board erred by failing to make findings that the UDC created

“exceptional practical difficulties” for J & B’s use of the property. They argue that

the evidence would not support such a finding, if such a finding had been made. For

the reasons that follow, we have concluded that the Superior Court’s judgment

should be affirmed.

(4) The property in dispute is at the intersection of Sharpless Road and

Melson Way in Hockessin, Delaware. At the Board’s hearing on the variance

requests, an issue was raised as to whether J & B was requesting area variances or

use variances. The Board concluded that J & B was requesting area variances

because its proposed use of the premises was residential, which was a permitted use,

and it was seeking only variances from dimensional requirements. The Board

accordingly rejected the Appellants’ argument that the standard for a use variance

applied. In approving the variances, the Board noted the following factors: each of

the proposed lots, inclusive of the protected resources, was larger than the required

minimum lot size in that residential zone and larger than the lots across Melson Way;

5 Id. at 20-34. 4 each lot met the UDC’s limitations on impervious cover and disturbance; there was

no increased traffic burden on Melson Way; and denial of the variances would

prevent J & B from making normal improvements to its lands.

(5) In the Superior Court, the Appellants raised three issues: 1) the Board

erred when using the legal standard for an area variance instead of the standard for

a use variance; 2) there was no substantial evidence showing the UDC lot size

restrictions would create “exceptional practical difficulties;” and 3) the New Castle

County Department of Land Use failed to provide adequate public notice of J & B’s

petition. The Superior Court rejected the Appellants’ contentions and affirmed the

Board’s decision. The Appellants appeal the Superior Court’s findings on the first

two issues.

(6) “The common law writ of certiorari lies to review acts that are judicial

or quasi-judicial in nature. The purpose of certiorari is ‘to correct errors of law, to

review proceedings not conducted according to law, and to refrain an excess of

jurisdiction.’”6 It is “the appropriate cause of action for determining whether”7 the

Board “exceeded its powers or failed to conform to the requirements of law.”8 This

Court reviews the Superior Court’s legal rulings de novo.9 “We limit our review to

6 Dover Hist. Soc’y v. Dover Plan. Comm’n, 838 A.2d 1103, 1106 (Del. 2003) (citations omitted). 7 Id. 8 Id. 9 CCS Invs., LLC v. Brown, 977 A.2d 301, 319-20 (Del. 2009) (en banc). 5 correcting errors of law and determining whether substantial evidence exists to

support the Board’s findings of fact.”10

(7) Appellants’ first arguments are that the Board erred as a matter of law

by failing to find that the variances were not “contrary to the public interest;” by

failing to find that the variance requests were “owing to special conditions or

exceptional situations;” by calculating the lot areas in an arbitrary manner, in gross

derogation of the plain language of the UDC, for the sole purpose of approving the

variance requests; and by applying the standard for approving an area variance rather

than the standard for a use variance. Pursuant to 9 Del. C. § 1313(a), the Board is

vested with the power to hear and decide:

In specific cases, such variance from any zoning ordinance, code or regulation 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, provided such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of any zoning ordinance, code, regulation or map.

(8) We first address the Appellants’ argument that the Board did not make

a determination as to whether the variances would “not be contrary to the public

10 Rehoboth Art League, Inc. v. Bd. of Adjustment, 991 A.2d 1163, 1166 (Del. 2010). 6 interest,” a consideration required by Section 1313(a). Because the variances would

“circumvent”11 environmental regulations, Appellants argue, public interest is

implicated, and the Board had a duty to make specific findings as to how the

variances would affect public interest. The record, however, shows that the approval

of the variances would not be contrary to public interest, and the Board made

findings to that end. These findings include that the proposed lots, inclusive of the

preserved areas, have a bulk size larger than the size required by the zoning in that

area and larger than the lots lying directly across Melson Way; each lot met the

UDC’s limitations on impervious cover and disturbance; there was no increased

traffic burden on Melson Way; and the nonconformities would be visually

imperceptible. The record also shows that the need for variances was owing to

special conditions or exceptional situations; specifically, the combined effect of the

minimum lot size and the requirements of the WRPA would prevent the property

from division into developable lots “that otherwise comply with the U.D.C.’s

environmental standards that protect WRPAs.”12

(9) Appellants next argue that the Board arbitrarily calculated the lot areas

in “gross derogation”13 of the UDC. In its decision, the Board wrote that the

“Applicant plans to create two lots exceeding 0.5 acre inclusive of the protected

11 Opening Br. at 15. 12 Bd. of Adjustment Op. at 6. 13 Opening Br. at 15. 7 resources, but the net size of the lots is reduced to 0.1 and 0.22 acre when the

protected resources are excluded.”14 Appellants argue that the Board fashioned an

arbitrary calculation of lot area out of whole cloth, essentially meeting the lot area

and then “accommodate[ing]”15 the protected resources—which is in derogation of

the UDC’s requirement that lot areas “must be met exclusive of protected

resources.”16 Appellants argue that J & B incorrectly argued, and the Board

incorrectly found, that J & B actually met the lot size requirements, and that the

CFDA triggered additional requirements. The CFDA, Appellants contend, does not

create additional requirements; rather, the incorporation of the protection levels is

an integral part of all calculations, and the Board is required to calculate lot area after

excluding the percentage of land required to be protected.

(10) We do not believe that the Appellants have made a convincing

argument that the Board’s lot calculation was arbitrary or contrary to the UDC. The

UDC tracks both gross and net lot area.17 When the protected resources are

subtracted from the gross lot area, one arrives at what the UDC considers the net lot

area.18 UDC § 40.04.110A provides that in subdivisions of less than 5 lots, protected

resource land is preserved by conservation easements. Thus, while protected

14 Bd. of Adjustment Op. at 3. 15 Opening Br. at 18. 16 UDC § 40.04.110(D). 17 See Answering Br. Ex. 1 at UDC Table 40.05.420. 18 Id.; see also Bd. of Adjustment Op. at 3. 8 resources in a subdivision such as this one remain part of the physical lot and are

maintained by the property owner, they are subtracted from the net lot area

calculation. Therefore, the physical boundary of each lot in this case, inclusive of

the protected land, remains as stated from the outset, 0.72 and 0.6 acre. When

protected resources are subtracted from the gross lot area, one arrives at the what the

UDC considers the net lot area, leading to a need for the variance. We find nothing

in the manner in which the Board calculated the lot area that is arbitrary or contrary

to the UDC.

(11) Appellants’ next argument is that the Board erred by considering J &

B’s variance requests under the legal standard for area variances, rather than the

more stringent standard for use variances. In Board of Adjustment v. Kwik-Check

Realty, Inc., this Court held that the language in 9 Del. C. § 1313(a) separates

variances into two categories: “use” and “area,” and that a less burdensome test of

“exceptional practical difficulties” applies to area variances and that a more stringent

“unnecessary hardship” standard applies to use variances.19 A use variance, this

Court explained, “changes the character of the zone district by permitting an

otherwise proscribed use.”20 An area variance, on the other hand, “concerns only

the practical difficulty in using the particular property for permitted use.”21

19 389 A.2d 1289, 1291 (Del. 1978). 20 Id. 21 Id. 9 (12) Appellants contend that the variances sought in this case “are the type

of major deviations from the letter and spirit of the zoning code that could only be

granted . . . by meeting the ‘unnecessary hardship’ criteria for what has been termed

a ‘use variance.’”22 To support their argument, Appellants first point to Jenney v.

Durham.23 In Jenney, the applicant wished to build two homes on a 5-acre portion

of land that included an erosion-prone “steep slope district” protected by the Steep

Slope Ordinance.24 Under the Slope Ordinance, construction of a single-family

home was prohibited in a steep sloped district.25 The proposed homes would have

been “located in a prohibitive steep slope district,” but “at least one home could be

built on a level portion outside the prohibitive district.”26 This Court affirmed the

Superior Court’s holding that a variance to allow two homes to be built on this land

constituted a use variance because construction of a single-family home was a

proscribed use of the steep sloped district.27 The Appellants argue that J & B’s

request for “drastic deviations”28 from the UDC’s requirements is akin to a rezoning,

like the variance request in Jenney, and should be considered under the test for use

variances.

22 Opening Br. at 25. 23 707 A.2d 757 (Del. Super. 1997), aff’d, 696 A.2d 396 (Del. 1997). 24 Id. at 753-54. 25 Id. 26 Id. 27 Id. at 753. 28 Opening Br. at 22. 10 (13) Appellants also rely on Wawa Inc. v. New Castle County Board of

Adjustment.29 In that case, Wawa sought to retrofit an existing convenience store—

a permitted use for the land—by adding gasoline pumps and storage tanks.30

However, WRPA restrictions on the land prohibited storage and sale of petroleum

products.31 This Court found that a variance to allow for the construction of a gas

station on the property required the heightened use variance standard.32 Appellants

argue that Wawa is similar to the case we have here—although the construction of

single-family homes is a permitted use of the land in this case, additional

environmental requirements have made the construction of two single-family homes

a proscribed use of the land.

(14) We find Appellants’ reliance on these cases to be unpersuasive. In both

Jenney and Wawa, the Steep Slope Ordinance and the WRPA regulations established

additional restrictions and unequivocally prohibited the sought-after uses of the land.

In Jenney, the ordinance prohibited the development of single-family homes on the

prohibitive slope district, and in Wawa, the WRPA regulations restricted the storage

and sale of petroleum. In this case, no provision specifically proscribes the

construction of two single-family homes. As this Court noted in Kwik-Check, a

29 929 A.2d 822 (Del. Super. 2005). 30 Id. at 825-26. 31 Id. at 826. 32 Id. at 827-38. 11 fundamental aspect of the analysis is whether the variance would change the

character of the zoning district.33 Here, building single-family homes is permitted

within the zoning district, and the lot sizes inclusive of the protected area are in

keeping with the surrounding lots. Only dimensional variances are requested.

Therefore, the Board acted appropriately in applying the exceptional practical

difficulties test.

(15) Finally, Appellants argue that even assuming arguendo that an area

variance standard was appropriate, there was not substantial evidence in the record

to meet the exceptional practical difficulties test. The test for an area variance

considers the following: 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 in the use of the property

that is permitted under the code.34

(16) Appellants contend that the application fails this test because the record

is devoid of any evidence of “hardship”35 to J & B. However, the Board did find

evidence of exceptional practical difficulties. That evidence included that the

33 389 A.2d 1289, 1291 (Del. 1978). 34 Id. 35 Opening Br. at 38. 12 variances were in keeping with the nature and zone of the property, as the zoning

designation was intended to protect the residential character of the existing

neighborhood; the proposed buildings were in line with the character of the

surrounding neighborhood because the lots, inclusive of the protected areas, are very

similar in size to lots on the opposite side of Melson Way, which are also used for

residential purposes; the requested variances would not have a serious adverse effect

on the surrounding properties because the resulting “nonconformities”36 would be

visually imperceptible; and, if the variances were not granted, J & B “would be

prohibited from the normal and reasonable subdivision of the Subject Property into

developable, residential lots that otherwise comply with the U.D.C.’s environmental

standards that protect WRPAs.”37

(17) Appellants seem to argue that the Board cannot simply find that

exceptional practical difficulties exist where the code prohibits certain actions;

otherwise, every variance would be granted. However, the Board’s decision was not

made simply because the UDC’s provision prevented the planned subdivision. The

Board looked at the record as a whole and found that the proposed plan complied

with all UDC requirements except the minimum lot size, was consistent with the

surrounding community character, and was unlikely to create significant adverse

36 Bd. of Adjustment Op. at 6. 37 Id. 13 impacts on the neighboring properties. Without the variances, it would be

impossible for J & B to make the “normal improvement” of subdivision of the land.

We find that the there was sufficient evidence for the Board to make its finding that

exceptional practical difficulties existed in this case.

NOW, THEREFORE, IT IS ORDERED that the judgment of the Superior

Court is AFFIRMED.

BY THE COURT:

/s/ James T. Vaughn, Jr. Justice