Opinion
Civil Action Number 00A-07-009-JOH
Submitted: March 12, 2001
Decided: July 27, 2001
Upon Appeal from a Decision of the New Castle County Board of Adjustment — AFFIRMED.
Michael J. Goodrick, Esq., of Michael J. Goodrick, P.A., attorney for petitioner
John E. Tracey, Esq., Assistant County Attorney, New Castle County Law Department, attorney for respondent New Castle County Board of Adjustment
MEMORANDUM OPINION
Dr. Javed Gilani appeals the decision of the New Castle County Board of Adjustment granting a variance to Christopher and Mary Ann Conine to maintain an uncovered deck that was constructed in violation of the New Castle Unified Development Code. Shortly after purchasing their home, the Conines constructed a deck that attaches to the back of their house. The deck is two feet from the southerly property line and four feet over the set back line. The Code permits an uncovered deck to extend into the yard as much as half the set back distance or eight feet. Here, the deck is permitted to extend six feet into the yard without the need for a variance. The Conine's deck is two feet from Dr. Gilani's property line. He notified the Board that he did not oppose the variance but conditioned that position on the construction of landscape screen and a ban on normal noise and odors.
The issues before this Court are whether the Board's decision that the Conines suffered from an exceptional practical difficulty is supported by substantial evidence and whether a self-imposed hardship exists sufficient to deny granting a variance. The Court finds the Board's decision was based on substantial evidence and the self-imposed hardship is so minimal that it does not affect the granting of a variance.
FACTUAL BACKGROUND
The Conines purchased their home on February 1, 1985 at 18 Ravine Road in suburban Wilmington, Delaware. The property is located on a 0.35 acre corner lot and faces Ravine Road, but also has access to Big Oak Lane. Shortly after purchasing the property, the Conines constructed, with a proper building permit, an uncovered deck in violation of the Code. Mr. Conine claims he was unaware that the deck was in violation of the Code until he put the house up for sale in 2000, even though Howard L. Robertson conducted a survey depicting the violation eight years earlier in 1992. On April 24, 2000, he filed an application for a variance with the Board.
§ 4.1l0(E)(1)(f).
The deck is constructed off the rear of the house, but because of the lot's corner configuration, the Code classifies it part of the side yard. The Code permits an uncovered deck to extend into the yard as much as half of the set back distance of eight feet, whichever is less. The Conines have a set back distance of twelve feet. That allows an uncovered deck to be built up to a distance of six feet from their house. The deck extends ten feet from the house, so a variance is needed for the extra four feet.
Id.
The property line separating the Conines from their neighbor, Dr. Gilani, is unique. For the most part, it is a straight line, but juts in eight feet towards the Conines' house for forty-eight feet and juts out eight feet again. It has a "]" shape to it. The deck faces the inverted property line. But for this unusual "dip" inward towards the Conines' property, the deck would have complied with the Code. Mr. Conine told the Board that the backyard of his property is heavily wooded and very rocky, which was not conducive to traditional backyard activities.
Dr. Gilani was out of the country on the date of the hearing, but presented his position through a letter. He approved of the granting of the variance provided that two conditions were met: (1) the installation of a shrubbery screen, of which he would approve, to be maintained at the expense of the current neighbor; and (2) disallowance by the Board of future complaints resulting from normal, everyday noise, odors and the like. Lastly, Dr. Gilani stated, "[t]he alternative of asking Mr. Conine to destroy the deck would seem to be expensive and unnecessary."
Dr. Gilani's letter to the Board (May 31, 2000).
The Board also considered a recommendation from the New Castle County Department of Land Use. After commenting on the law, it was the Department's position that the Board grant the variance "because a denial will result in exceptional practical difficulty to the applicant which will outweigh the probable effect on neighboring properties if the variance were granted. The granting of the variance would not cause substantial detriment to the public good, nor would it substantially impair the intent and purpose of the zoning code."
Board Decision (June 27, 2000) at 1.
The Board, in a two-page decision, determined that the variance should be granted. It stated "the requested dimensional change is minimal and the harm to the applicant if the variance was denied would be greater than the probable effect on neighboring properties if the variance were granted." The Board considered the following facts in procuring its decision: (1) the deck has been existence for fifteen years and constructed with a permit; (2) the deck appears to be built off the back of the house, but is treated by the Code as built on the side yard; (3) the property line between the Conines' and Dr. Gilani's property awkwardly shifts inward for forty-eight feet, which results in a smaller yard in the precise area of the deck; and (4) while Dr. Gilani does not object, he did request conditions be imposed.
Id.
Dr. Gilani contends the Conines did not prove an exceptional practical difficulty and they failed to prove that the difficulty was not of their own making. He asserts the only hardship on the Conines would be the economic costs of removing the deck, which is not a necessity for the use of the property. The Conines reply that the Board relied on substantial evidence in determining that the variance should be granted.
STANDARD OF REVIEW
On appeals from the Board, this Court must limit its scope 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 is evidence from which the Board reasonably and fairly could reach its conclusion. The burden of persuasion is on the party seeking to reverse the Board's decision. When substantial evidence exists, the appellate court may not reweigh the evidence and substitute its own judgment for the Board's.
Mesa Communication Group v. Kent County Board of Adjustment, Del.Super., C.A. No. 00A-03-003, Witham, J. (October 31, 2000) citing Janaman V. New Castle County Bd. of Adjustment, Del.Super., 364 A.2d 1241 (1976), aff'd, Del.Supr., 379 A.2d 1118 (1977).
Miller v. Board of Adjustment of the Town of Dewey Beach, Del.Super., C.A. No. 93A-02-009, Lee, J. (February 16, 1994).
Mellow v. New Castle County Bd. of Adjustment, Del.Super., 565 A.2d 947 (1988); aff'd, Del.Supr., 567 A.2d 422 (1999).
Janaman, 364 A.2d at 1242.
DISCUSSION
The Delaware Code permits an owner of property to seek a hearing before the Board for either a use variance or an area variance:
(a) The Board of Adjustment shall be empowered to hear and decide:
(3) In specific cases, such variance from any zoning ordinance, code or regulation that will not be contrary to the public interest, where, owning to special conditions or exceptional situations, a literal interpretation of any zoning ordnance, code or regulation will result in unnecessary hardship or exceptional practical difficulties to the owner to 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.
The Supreme Court in Board of Adjustment of New Castle County v. Kwik-Check Realty, Inc. discussed the differences between a use variance and an area variance: "a use variance changes the character of the zoned district by permitting an otherwise proscribed use, whereas an area variance concerns only the practical difficulty in using the particular property for a permitted use." Here, the Conines are seeking an area variance for an uncovered deck, which is otherwise lawful in their zone, that was built fifteen years ago.
Del.Supr., 389 A.2d 1289 (1978).
Id. at 1291 [citations omitted].
An applicant must show an "exceptional practical difficulty" in order for the Board to grant an area variance. "Such practical difficulty is present where the requested dimensional change is minimal and the harm to the application if the variance is denied will be greater than the probably effect on neighboring properties if the variance is granted." The Court should take into consideration the competing interests: (1) the nature of the zone in which the property lies; (2) the character of the immediate vicinity and the uses contained therein; (3) whether, if the restriction upon the applicant's property were removed, such removal would seriously affect neighboring property and uses; (4) 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.
Id.
Id.
Conway Conway v. Zoning Board of Adjustment Jankowski, Del.Super., 97A-06-0180 [sic], Barron, J. (February 20, 1998) (citing Kwik-Check Realty, 389 A.2d at 1291).
In Janaman, this Court examined the Board's decision to grant a variance where the applicant self-imposed the condition. The Court stated:
A self-imposed condition or violation which gives rise to a form of self-imposed hardship is generally not such hardship as is sufficient to sustain a variance. To hold otherwise would place this Court in the intolerable position of sanctioning or rewarding code violations and, thus, stimulating their occurrence. The perpetuation or noncompliance would substantially derogate the intent and purpose of the zoning ordinance in question. The Board may consider the duration of an existing nonconforming use, but more than a long-standing violation is required to establish the existence of "special conditions or exceptional situations."
Id. at 1243.
The Court continued by clarifying that an unnecessary hardship or an exceptional practical difficulty must be proven and that an economic hardship standing alone is an insufficient showing. However, this Court, noting that area variances are subject to less stringent standards than use variances, has granted variances for applicants who desired to use the property as it existed when they purchased it.
Id. at 1244.
See, e.g., Dexter v. New Castle County Bd. of Adjustment, Del.Super., C.A. No. 96A-03-003, Toliver, J. (September 17, 1996).
There is no question the deck was a self-created condition. It did not exist when the Conines purchased the property. It was built fifteen years ago in violation of the Code. This Court generally looks unfavorably to self-created hardships, but does that mean the Board's decision should be overturned?
See Baker v. Connell, Del.Supr., 488 A.2d 1303 (1985).
The Board did not explicitly address the issue that the hardship here was self-created. In this case, that does not make a difference, in light of the factors the Board did address. It took into consideration the deck was built fifteen years ago, constructed with a permit, and built on the rear of the house, even though it is considered by the Code to be on the side of the house. The Board noted the property line between the Conines' and Dr. Gilani's property awkwardly shifts inward for forty-eight feet, which results in a smaller yard in the precise area of the deck. And, the neighbor, Dr. Gilani, does not object, albeit, he did request conditions be imposed. The Board properly stated "it would not entertain" the requested conditions.
The conditions would not provide much relief for Dr. Gilani anyway. He asked for a landscaping screen that must be approved by him. Mr. Conine never objected, but as the Board found, Mr. Conine indicated past attempts to landscape the area were unsuccessful due to shade from existing trees and animal encroachment (namely Dr. Gilani's dog). Also, Dr. Gilani sought the Board to impose an unorthodox condition that future complaints resulting from normal everyday noise, odor and the like be disallowed. This is simply unenforceable. The conditions are not something that the Board could impose.
Even though this Court looks unfavorably at those who violate the Code and then seek a variance, this is not one of those situations where the application should be denied. Four feet of an uncovered deck, in a wooded unusable backyard is at issue. Several cases that have denied variances due to self-imposed hardship were because: an applicant conducted a commercial business in a residentially zoned district; an applicant utilized an agriculturally zoned barn for commercial storage; after purchasing and subdividing property in violation of a subdivision plan, the applicant sought a variance; and an applicant built a deck without obtaining a permit or consideration for the proper setback which changed the character of the area.
Janaman, 364 A.2d 1241.
Sawers v. New Castle County Bd. of Adjustment, Del.Supr., C.A. No. 144, Walsh, J. (October 26, 1988).
Tufts v. New Castle County Bd. of Adjustment, Del.Supr., C.A. No. 87A-FE-10, Gebelein, J. (April 18, 1988).
Groves v. Board of Adjustment of Sussex County, Del.Super., C.A. No. 86A-MR-4, Lee, J. (November 10, 1987).
Although the condition is self-imposed, the Court finds this to be a unique case where denying the variance outweighs the self-imposed hardship. Permitting the applicant to keep four feet of a deck would not "impair the intent and purpose of the code." Dr. Gilani has even admitted in his letter to the Board that "to destroy the deck would seem to be expensive and unnecessary." And, there is more than just the financial aspect of the evidence. Mr. Conine testified before the Board that the backyard is filled with "boulders and trees. The deck was built for the enjoyment and use of the backyard in conjunction with the house, particularly one in the suburbs. Additionally, this case is unique because the building of the deck does not change the character or nature of the property. This is something normally attached to the back of a house. It is not a commercial business in a residential area, nor did the applicant purchase the property to seek a variance. Lastly, continuing to permit the deck does not create any hardship on Dr. Gilani or any detriment to the public good.
Dr. Gilani letter to the Board (May 31, 2000).
Board Hearing Transcript (June 7, 2000) at 6.
CONCLUSION
For the reasons stated herein, the decision of the New Castle County Board of Adjustment granting a variance is hereby AFFIRMED.
IT IS SO ORDERED.