Opinion
C.A. No. 02A-06-004.
Submitted: September 12, 2003.
November 18, 2003.
Pamela J. Scott, Esquire, Richard E. Berl, Esquire.
Dear Counsel:
This is my decision on Clear Channel Outdoor's ("Clear Channel") appeal of the Sussex County Board of Adjustment's ("Board") denial of Clear Channel's application for (1) a special use exception for a billboard, and (2) variances related to the size and height of the billboard. The Board's decision is reversed for the reasons set forth herein.
STATEMENT OF FACTS
Clear Channel sought a special use exception for a billboard (the "Billboard") located on U.S. Route 13 near Laurel, Delaware, as well as variances relating to the size and height of the Billboard. Clear Channel filed its application after receiving a notice from Sussex County that Clear Channel's reconstruction of the Billboard had effectively destroyed its prior legal nonconforming status. The Board held a public hearing on March 18, 2002. The Billboard is on property owned by Bruce Hoster ("Hoster"). Hoster owns the Billboard and originally installed it. Clear Channel has a lease with Hoster for the Billboard. Clear Channel's representative testified that the Billboard has been located on Hoster's property for at least 11 years, and possibly as long as 30 years. The Billboard has four faces, each 10 feet by 24 feet in size, and is 35 feet tall. The Billboard is located more than 25 feet from the Route 13 right-of-way, approximately 260 feet from the boundary line of the property immediately to the north and approximately 260 feet from the boundary line of the property directly to the south. The Sussex County records reveal that the property has had a number of commercial uses, the most recent being the "Seaford Show and Sell," which is no longer in business. The Billboard is located in a commercial zoning district. An auto repair shop and a mobile home park lie to the north of the property. The mobile home park is approximately 500 feet from the property. A psychic reader operates a business adjacent to the mobile home park.
In order to maintain the Billboard on the property, Clear Channel requested the following relief:
1. A special use exception pursuant to Sussex County Code Section 115-80C for an off-premises sign not greater than 600 square feet in size;
2. A variance from the requirement of Sussex County Code Section 115-81(A)(2) that the off-premises sign not exceed 600 square feet in order to maintain an existing sign 960 square feet in size; and
3. A variance from the provision of Sussex County Code Section 115-81(B) that no off-premises sign structure exceed 25 feet in height in order to maintain a sign 35 feet in height.
In support of its application, Clear Channel informed the Board that it has leases currently in place with businesses that advertise on the Billboard. Clear Channel's representative further testified that there are other billboards in the vicinity of the property, one approximately three-tenths of a mile to the south, and one approximately one-half mile to the north. Clear Channel's testimony established that each of these signs is larger in area than the Billboard. There was no testimony offered in opposition to Clear Channel's application.
Although Clear Channel's sole relationship to Hoster's property is with respect to the Billboard, the Board focused its attention on past uses of the property and prior issues with Clear Channel concerning other billboards. Clear Channel owns and/or leases more than 400 billboards in Sussex County. At the hearing of March 18, 2002, a Board member recommended that the Board review the property records and defer consideration of the application until April 1, 2002, which the Board did. During the hearing of April 1, 2002, the Board voted 5-0 to deny the requested special use exception and variances. In its May 30, 2002 written decision, the Board based its denial of the application on the following "Findings of Fact":
1. The business previously located on the Property (the Seaford Show and Sell) is no longer in business; that the property has become an eyesore;
2. Several setback violations exist and have never been corrected; and
3. No new variances or permits should be considered because the Property is not otherwise in compliance with zoning regulations.
It is clear, based on the hearing transcript and the "Findings of Fact," that the Board denied Clear Channel's application for a special use exception and variances because it found that the property was an eyesore and was not in compliance with setback requirements.
ISSUE PRESENTED
Is the Board's decision to deny the application supported by substantial evidence in the record and free from legal error?
DISCUSSION
I. Standard of Review
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) (Table), 1999 WL 624114 (Del.Supr.) 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.Ct. 1986), app. dism., 515 A.2d 397 (Del. 1986). If substantial evidence exists, the Court may not reweigh the evidence and substitute its own judgment for that of the Board. Hellings v. City of Lewes Board, 1999 WL at *2, citing Janaman v. New Castle Cty. Bd. Of Adjustment, 379 A.2d 1241, 1242 (Del.Super.Ct. 1976), aff'd, 379 A.2d 1118 (Del. 1977). If there is an error of law or a lack of substantial evidence, the Court may not remand the matter for further proceedings. Id.
II. Discussion of Legal Issues
A. The Board's Decision on Clear Channel's Variance Application
The Board's decision to deny Clear Channel's variance application rests solely on its determination that the property was an eyesore and was not in compliance with setback requirements. Clear Channel argues that the Board, in considering its variance application and in reaching its decision, erred by not applying the four-step analysis for a variance set forth by the Supreme Court in Board of Adjustment v. Kwik-Check Realty, 389 A.2d 1298 (Del. 1978). Clear Channel also argues that there is insufficient evidence in the record to support the Board's decision. The Board argues that Clear Channel failed to meet its burden of proof for obtaining the variances.
9 Del. C. § 6917(3) sets forth five requirements that Clear Channel must satisfy in order to obtain the requested variances. These requirements constitute the "exceptional practical difficulty" test. The Supreme Court recognizes this test for an area variance and set forth a four-part analysis to be considered by the Board when applying the test. More specifically, the Supreme Court provided the following guidance:
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. Therefore, to determine if the difficulties presented by the owner are practical rather than theoretical, and exceptional rather than routine, the Board should take into consideration the nature of the zone in which the property lies, the character of the immediate vicinity and the uses contained therein, whether, if the restriction upon the applicant's property were removed, such removal would seriously affect such neighboring property and uses; whether, if the restriction is not removed, 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.Meyer v. Callaway, 2002 WL 32067547 (Del.Super.Ct.), quoting Kwik-Check Realty, 389 A.2d at 1291.
Upon review of the hearing transcript and the "Findings of Fact," it is clear that the Board did not make the required analysis. The Board did not consider the nature of the zone in which the billboard lies. In fact, the "Findings of Fact" are devoid of any mention of the nature of the zone. The Board also failed to consider the character of the immediate neighborhood and uses therein. The Board only noted that the business formerly on the property is no longer in business. It is clear that the Board did not consider what effect, if any, there would be on neighboring properties if it approved Clear Channel's application. Finally, the Board did not consider whether the restriction would create unnecessary hardship for Clear Channel in relation to its efforts to make normal improvements in the use of the Billboard.
Rather than make the required analysis, the Board primarily focused on the violation notice sent to Clear Channel. It was not until the end of the hearing that the issue of noncompliance with the setback requirements was addressed, although the Board based its decision on this issue. During the hearing, a Board member requested that another Board member look at the property as he recalled, "it's a property in violation for quite some time for the setback requirement." (Tr. at 10). The meeting adjourned and the public hearing was closed. On April 1, 2002, the Board reconvened and ruled against the request. The Board member commented that the property was an eyesore and was not in compliance. More specifically, the Board member stated that:
These people have ceased to do business, but unfortunately, it has become very much an eyesore and they are and have been for quite some time in violation of the setback requirement . . . Now here we got this same property owner here asking for another variance and I don't see where or why we should approve an additional variance when what we approved in the past aren't being properly adhered to. (Tr. at 11).
No public testimony was permitted during the Board's deliberations at its April 1, 2002 meeting. Further, the Board's findings that the property was an eyesore were based on mere opinion, not upon the required analysis or substantial evidence in the record. This Court in Meyer held that "[t]he Board's failure to give consideration to all of the necessary factors is simply not in accordance with the applicable law and resulted in a decision that cannot stand" Meyer, 2002 WL at *4. Similarly, this result cannot stand
B. The Board's Decision on Clear Channel's Special Use Exception Application
In order to grant a special use exception, Section 115-210 of the Sussex County Code requires the Board to consider whether the proposed use will substantially affect adversely the uses of adjacent and neighboring properties. At the hearing of March 18, 2002, Clear Channel presented testimony to support its claim that the proposed use will not substantially affect adversely the uses of adjacent and neighboring properties. Clear Channel testified that the property is zoned commercial and is surrounded by commercial uses. Clear Channel also informed the Board that several other billboard signs exist in the vicinity that are actually larger than the sign at issue. Again, the Board erred by not considering the application on its merits to determine if Clear Channel met the requirements of the ordinance.
C. The Burden of Proof
Even if there was substantial evidence in the record to support the Board's findings that the property is an eyesore and is in violation of the setback requirement, the Board recognizes that it may not, as a matter of law, deny Clear Channel's application based on these findings alone. Instead, the Board claims that its decision was based on Clear Channel's failure to satisfy its burden of proof. The Board claims that Clear Channel failed to show that a denial of the variance would result in exceptional practical difficulties. However, there is no mention of this claim in the Board's written decision and it is necessary to state with particularity the manner in which Clear Channel did or did not meet the standard. Morgan v. Callaway, 2003 WL 1387127 (Del.Super.Ct.), citing New Castle County Council v. BC Dev. Assoc., 567 A.2d 1271, 1277 (Del. 1989).
CONCLUSION
For the foregoing reasons, the decision of the Board is reversed.