Opinion
No. 35, 1999.
July 19, 1999.
Appeal from the Superior Court, Sussex County, CA 97A-11-006.
REVERSED.
Unpublished Opinion is below.
KENNETH C. HELLINGS and JOYCE M. HELLINGS, Petitioners Below, Appellants, v. CITY OF LEWES BOARD OF ADJUSTMENT, HARVEY CUPP-CHAIRMAN, WILLIAM STEVENSON, MEMBER and JOSEPH STEWART, MEMBER, Respondents Below, Appellees. No. 35, 1999. Supreme Court of Delaware. Submitted: June 29, 1999 Decided: July 19, 1999
Court Below: Superior Court of the State of Delaware in and for Sussex County, C.A. No. 97A-11-006.
Before VEASEY, Chief Justice, WALSH and HARTNETT, Justices.
ORDER
This 19th day of July, 1999 upon consideration of the briefs of the parties, it appears to the Court that:
(1) Kenneth C. Hellings and Joyce M. Hellings (collectively "the Hellings") appeal a decision of the Superior Court holding that substantial evidence supported the Board of Adjustment of the City of Lewes (the "Board") decision to deny the Hellings' variance request. The Hellings contend that they have met the standard that the Superior Court found should have been applied and the court's finding that hardship was self-imposed should not be a complete bar to relief. The Hellings alternatively argue for adoption of a de minimis doctrine permitting variances to "innocent homeowners whose houses are constructed with minor dimensional violations."
(2) The Hellings own real property located at 213 West Cape Shores Drive, Lot 167, Cape Shores, Lewes, Delaware. The property is located in an R-2 Residential Zone. Section 197-1 of the Zoning Code of the City of Lewes provides in the definition for "height" that:
[for the R-2] Residential District located within the Coastal High Hazard Area or within the Coastal Flood Plain Area and situate on the northeast side of the Lewes and Rehoboth Canal, the vertical distance of a building measured from a point where the center line of the building to be erected intersects with the center line of the street on which the building will face to the highest point of the highest roof shall not exceed 34 feet for all lots created prior to and after September 14, 1987. . . .
The Hellings constructed a residence on their property and prior to construction, a surveyor provided a certificate of elevation which correctly identified the base elevation as 9.8 feet, but did not call attention to any potential height violation. Mr. Hellings is the principal of the company which acted as general contractor in the building of the house. Apparently he did not read the certificate of elevation. Although Mr. Hellings has constructed numerous homes, this was the first he built in Delaware.
Based in part on the certificate of elevation, the plans ultimately drawn for the house failed to take into account that the Zoning Code of the City of Lewes (the "Code") required the elevation to be taken from the center line of the adjacent street. The architect used the existing grade and set the foot base elevation at 10.4 feet rather than the correct 9.8 feet. The City of Lewes issued a building permit after submission of the certificate of elevation and building plans.
(3) After the house was built a subsequent certificate of elevation revealed that the house violated the 34 foot height limit. A second survey confirmed that there was a 0.4 foot violation of the height restriction. Upon notification of the violation by the City Building Inspector, the Hellings applied for a variance. The Board of Adjustment of the City of Lewes concluded, inter alia, that the Hellings were required to demonstrate that "an unnecessary hardship exists with respect to the property before" a variance from the height restrictions could be granted. The Board found that the Hellings had not demonstrated unnecessary hardship and denied the variance. The Hellings appealed the Board's denial of the variance to the Superior Court.
(4) The Superior Court held that the Board erred in employing the unnecessary hardship standard to an area variance request rather than the more lenient exceptional practical difficulty standard. Hellings v. City of Lewes Board of Adjustment, Del. Super., C.A. No. 97A-11-006, mem.op. at 7 (Dec. 31, 1998). The Superior Court then determined that there was substantial evidence in the record to show that the Hellings' hardship was self-imposed and, in any event, failed to meet the exceptional practical difficulty standard. Id. at 8. On this basis the court affirmed the Board's decision.
(5) The Superior Court correctly stated that its standard of review on appeals from the Board is limited to determining whether substantial evidence exists on the record to support the Board's findings of fact and to correct errors of law. Id. at 4; Janaman v. New Castle Cty. Bd. of Adjustment, Del.Super., 364 A.2d 1241, 1242 (1976), aff'd, Del.Supr., 379 A.2d 1118 (1977). When substantial evidence exists, the court may not reweigh it and substitute its own judgment for the Board's. Janaman, 364 A.2d at 1242.
(6) A Board decision based upon the proper legal standard is a prerequisite to the court's performance of a review to determine the existence of substantial evidence. No party to this appeal challenges the Superior Court's ruling that the Board erred as a matter of law in applying the unnecessary hardship standard to the Hellings' variance request. But, having determined that an error of law was made at the administrative level, the Superior Court was not free to review the evidence and apply a different, more lenient, legal standard because to do so would be to substitute its own judgment for that of the Board. See New Castle Cty. Bd. of Adjustment v. White, Del.Supr., No. 349, 1989, 1990 WL 84693 at **2 (May 25, 1990) (ORDER); Janaman, 364 A.2d 1241; Anthony v. Bd. of Adjustment of the City of Lewes, Del. Super., Nos. 97A-09-005, 97A-09-006, 1998 WL 472763 at *7 (May 19, 1998).
(7) Section 38 of the Charter of the City of Lewes provides in part under the heading Municipal Zoning Regulations:
* * *
(b) . . . [t]he City Council shall further provide for the appointment of a Board of Adjustment. The Board shall have all the powers and shall be bound by the same procedure as set forth in Sections 321 through 330 inclusive, Title 22, Del. C. of 1953, as amended. Should any amendment be made to 22 Del. C. § 306 or 22 Del. C. § 321 through 330 inclusive by the General Assembly, the Charter of the City of Lewes shall be deemed amended in order to comply with such amendments.
* * *22 Del. C. § 328(c) provides that in an appeal from a board of adjustment decision, the court "may reverse or affirm, wholly or partly, or may modify the decision brought up for review."
(8) The language of 22 Del. C. § 328(c) has been construed by this Court as not permitting a remand by the Superior Court. Searles v. Darling, Del.Supr., 83 A.2d 96, 99-100 (1951); Auditorium, Inc. v. Bd. of Adjustment of Mayor Council of Wilmington, Del.Supr., 91 A.2d 528, 532 (1952); White, 1990 WL 84693 at **2. Additionally, this Court in 1001 Jefferson Plaza Partnership, L.P. v. New Castle Cty.Dept. of Finance, Del.Supr., 695 A.2d 50, 52-53 (1997) found that the language of 9 Del. C. § 8312(c) that a court "may affirm, reverse or modify the decision of such body and the decision of the [c]ourt shall be final" unambiguously provided for no remand.
(9) Because the Board erroneously applied the unnecessary hardship standard to the Hellings' variance request its decision must be reversed. Absent the power of remand, such a reversal vacates the Board's decision and the applicant may re-apply with the proceedings before the Board beginning anew. See White, 1990 WL 84693 at **2; Miller v. Bd. of Adjustment of the Town of Dewey Beach, Del.Super., C.A. No. 93A-02-009, 1994 WL 89022 at *3 n. 2 (Feb. 16, 1994); Miller v. Bd. of Adjustment of the Town of Dewey Beach, Del.Super., C.A. No. 94A-07-004, 1995 WL 465183 at *1 n. 1 (June 30, 1995); Fairwinds Shopping Ctr., Inc. v. Bd. of Adjustment of New Castle County, Del. Super., C.A. No. 91A-12-5, 1993 WL 258801 at *8-9 (June 4, 1993).
NOW, THEREFORE IT IS ORDERED that the judgment of the Superior Court be, and the same hereby is, REVERSED, with further direction to REVERSE and VACATE the decision of the Board of Adjustment of the City of Lewes.
BY THE COURT:
s/ Joseph T. Walsh Justice