C.A. No. 01A-11-001
Submitted: September 5, 2002
December 30, 2002
David N. Rutt, Esquire Moore Rutt, P.A.
Richard E. Berl, Jr., Esquire Smith, O'Donnell, Procino Berl, LLP
This is my decision on Cheryl D. Meyer's ("Meyer") appeal of the Sussex County Board of Adjustment's (the "Board") decision denying her application for three area variances for her home. The Board's decision is reversed for the reasons set forth herein.
Meyer purchased lot number 28 (the "Lot") in the Possum Point subdivision in Millsboro, Delaware on August 7, 2001. The Lot is 30 feet wide, 161 feet long, and was, at the time of Meyer's purchase of it, improved by an old house (the "House"). Possum Point was developed before Sussex County adopted its zoning code in 1970. The Lot and House, when Meyer purchased them, were non-conforming as to the minimum lot size requirements and the side-yard and front-yard building setback requirements. The minimum lot requirements in a General Residential District ("GR") are 75 feet wide and 100 feet long. Each side-yard setback is 10 feet. The front-yard setback is 40 feet. The House encroached 4.9 feet into the south side-yard setback and 5.3 feet into the north side-yard setback. A carport and two sheds were located in front of the House. The carport and two sheds violated both the front-yard and side-yard setbacks. The two sheds were located virtually on the north side-yard property line. The carport and one of the sheds encroached 37.7 feet into the front-yard setback. The carport also encroached 3.5 feet into the south side-yard setback.
None of the encroachments were a problem until Meyer decided to renovate the House. Meyer's renovations, which were done after the issuance of a building permit, included lifting the House off of its foundation, building a new foundation in the same location as the old foundation, and lowering the House back onto the new foundation. Meyer also removed the carport and two sheds and added a five foot wide porch to the front of the House. As part of the renovations, Meyer removed the wall studs so that she could level and straighten the floor. Meyer reinstalled the wall studs after the floor was fixed. While the wall studs were removed, a Sussex County building inspector visited the House and told Meyer that she was no longer renovating, but was instead now engaging in new construction and would have to get variances for the setback encroachments. Meyer did as instructed and applied for 4.9 and 5.3 foot variances from the 10 foot side-yard setback requirements to the south and north sides of the House, respectively. Meyer also applied for a 15 foot variance from the 40 foot front-yard setback requirement.
The Board held a hearing to consider Meyer's variance application on July 23, 2001.
After the presentation of Meyer's variance application, the Board then took the matter under advisement. Later that night, after all of the matters on the agenda had been presented, the Board "tabled" Meyer's variance application until the next regularly scheduled meeting. The Board denied Meyer's variance application by a voice vote after some discussion at the next regularly scheduled meeting on August 6, 2001. The Board issued its written decision on October 4, 2001. The Board's written decision consists of 10 "Finding of Facts."
It is clear, based on the transcript of the hearing and the "Finding of Facts," that the Board denied Meyer's variance application because it found that she had, by removing the wall studs, gone from mere renovation to new construction. This, according to the Board, caused the House to lose its non-conforming status and created the need for the variances. Virtually all of the Board's discussions focus on this. The following statement by the Board's attorney summarizes the Board's reasoning:
"The owner basically would have to build something to conform with the setbacks on that particular property. So the property become unbuildable I suppose — at least that is in keeping with the comments thus far. That's a problem that applicant created herself. If she had not taken the walls down in the first place, they could have just renovated the existing structure and been fine. But they destroyed the non-conforming use and lost the privilege of working on it basically ended."
Of the 10 "Finding of Facts,"seven relate to this issue. The others discuss the zoning of the property, the required setbacks, other properties in the neighborhood not being in compliance with the zoning code, and one property owner's objection to Meyer's variance application because it would impair her view of the river.
See "Finding of Facts" numbers 1, 3, 4, 5, 8, 9, and 10.
II 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). 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. 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 of Adjustment, supra. If there is an error of law or a lack of substantial evidence, the Court may not remand the matter for further proceedings. Id.
III. Discussion of Legal Issues
A. The Matters Before the Board.
Meyer and the Board dispute which matters were before the Board for consideration and which matters are on appeal. Meyer argues that she did not need to obtain the variances because the building inspector's decision was incorrect. The Board argues that Meyer could have appealed the building inspector's decision to the Board, but did not do so. Thus, according to the Board, the only matter before the Board was, and the only matter now on appeal is, Meyer's variance application.
The building inspector decided that Meyer's removal and replacement of the wall studs were new construction and not renovation. This caused the House, according to the building inspector, to lose its non-conforming status and created the need for the variances. Meyer had the right, pursuant to Section 115 — 208(B) of the Sussex County Code, to file an appeal of the building inspector's decision with the Board. Meyer did not do this. She instead filed an application for the three variances. While the Board discussed whether or not Meyer's actions constituted renovation or new construction during its hearing on Meyer's variance application and in its oral and written decisions, this discussion was in the context of whether Meyer's need for the variances was caused by her own actions. Thus, because the building inspector's decision was not appealed by Meyer to the Board, or considered by the Board in the appropriate context, I will not revisit it. This leaves the Board's decision on Meyer's variance application as the only matter on appeal.
B. The Board's Decision on Meyer's Variance Application
The Board's decision to deny Meyer's variance application, notwithstanding brief references to other matters in the "Finding of Facts" section of its written decision, rests solely on its finding that Meyer's hardship was self-created in that she crossed the line from renovation to new construction, resulting in the House losing its non-conforming status and causing the need for the three variances. Meyer argues that the Board, in considering her 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 1289 (1978). Meyer also argues that there is insufficient evidence in the record to support the Board's decision. The Board argues that Meyer simply failed to meet her burden of proof for obtaining the variances.
The five requirements that Meyer had to meet in order to obtain her variances are set forth in 9 Del. C. § 6917(3). These are stated in terms of "exceptional practical difficulty" because the Supreme Court in Kwik-Check held that this was the legal test for an area variance. The Supreme Court also set forth a four-step analysis that a board of adjustment should follow when applying the "exceptional practical difficulty" test when it said:
"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."
I have reviewed the transcript of the hearing and the Board's "Finding of Fact" and concluded that the Board did not make the required analysis. The first factor that the Board should have considered was the nature of the zone in which Meyer's Lot and House lie. The Board, in its Finding of Fact section, noted that the Lot and House lie in an area zoned General Residential. However, the Board never did more than take note of this. The Board did not make an analysis of how the nature of the zone was a factor, one way or another, in its consideration of Meyer's variance application. The second factor that the Board should have considered was the character of the immediate neighborhood and uses contained therein. The Board, in its Finding of Fact section, noted only that there are other properties in Possum Point that are in violation of the zoning code. Again, the Board did not make an analysis of how the fact that there are other properties in Possum Point that are in violation of the zoning code was a factor, one way or another, in its consideration of Meyer's variance application. The Board did ignore the undisputed testimony that Possum Point consists of a number of irregularly shaped lots of various sizes and a variety of home styles, including mobile homes, cottages and two-story homes.
The third factor that the Board should have considered is whether the granting of Meyer's variance application would have seriously affected the neighboring properties. The Board, in its Finding of Fact section, found that a number of people spoke out against Meyer's application and that one complained that Meyer's House blocks her view of the river. While this factor touches on the issue, the Board's conclusions regarding it are misplaced. Meyer had a building permit to increase the height of her house and add on to the back of it. These are the things that the neighbors are complaining about. However, Meyer was not seeking a variance to do these things and complaints related to them cannot be a basis for denying Meyer's variance application. Granting Meyer's variance application, as to the two-side yard encroachments, would have merely legitimized what has been in existence for 30 years, and as to the front-yard encroachment, would have resulted in a substantial reduction. To say that the granting of Meyer's variance application would harm her neighbors in light of this is illogical. The fourth factor that the Board should have considered is whether Meyer would have faced an exceptional practical difficulty in using her Lot and House in compliance with the zoning code. The Board, in its Finding of Fact, did recognize that Meyer will be left with an unbuildable lot if her variance application is not granted. Despite recognizing this, the Board failed to consider it.
Instead of considering the appropriate factors, the Board, in reaching its decision to deny Meyer's variance application, relied entirely on its finding that Meyer's hardship was self-created. While this is certainly a consideration, the much better view is that it is but one element to take into consideration when determining the existence of a hardship. Hanley v. City of Wilmington Board of Adjustment, Del. Super., C.A. 99A-12-004 WTQ, Quillen, J. (August 3, 2000) (Letter Op.), Gilani v. Board of Adjustment of New Castle County, Del. Super., C.A. 00A-01-009 JOH, Herlihy, J. (July 27, 2001) (Mem. Op.), Baker v. Connell, Del. Supr., 488 A.2d 1303, 1308 (1985). The 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.
Moreover, the Board's factual finding that Meyer's hardship is self-created is not supported by substantial evidence in the record. The Board made a "Finding of Fact" that any "exceptional practical difficulty" Meyer experienced in complying with the zoning code was caused by Meyer or her building contractor. This finding is, of course, related to Meyer's removal and replacement of the wall studs. It is clear that the Board decided that Meyer would not have had to apply for the variances if only she had limited her work to renovation. While the Board's decision may, in a sense, be accurate in that Meyer's inadvertent actions caused the House to lose its non-conforming status, it fails to take into consideration the rather unique circumstances of this case.
When Meyer purchased the Lot and House, they already violated the minimum lot size requirements and the side-yard and front-yard setback requirements. Meyer did not "create" the exceptionally narrow lot and she did not build the House, carport and sheds too close to the property lines. These deficiencies and encroachments existed long before Meyer purchased the Lot and House. Meyer's work on the House, whether characterized as renovation or new construction, had no effect on the side-yard setback encroachments. They are today as they have been ever since the House was built. The House's encroachment into the front-yard setback has actually been reduced from 37.7 feet to 15 feet by Meyer's removal of the carport and sheds. The Lot, of course, is always going to be too narrow. The Board ignored all of this undisputed evidence when it found, as a matter of fact, that Meyer's hardship was self-created.
C. The Burden of Proof
The Board argues that Meyer failed to carry her burden of proof on at least three of the five factors set forth in 9 Del. C. § 6917(3). I assume, because the Board has not argued otherwise, that the Board concedes that Meyer did meet her burden of proof on the other two factors.
One, the Board argues that Subsection (a) requires that any exceptional practical difficulty claimed by Meyer be traceable to the unique physical characteristics of the Lot. Meyer has certainly offered evidence that would satisfy this requirement. The Lot is only 30 feet wide. A lot in a GR zoning district has to be at least 75 feet wide. Given the 10 foot side-yard setback requirements, Meyer is left with only a 10 foot wide area in which to build a house. The narrowness of a lot, in general, and of this Lot, in particular, can be grounds for a variance. Indeed, it is difficult to think of a more compelling case than this one.
The Board's response is to argue that to allow a variance in this case would contradict and undermine Sussex County's desire to eliminate non-conforming uses. It should be noted that the actual use of the Lot is in conformity with its zoning. The property is zoned for residential purposes and it is being used in that manner. The problem is that the Lot is non-conforming as to size. It is too narrow and will always be too narrow unless combined with another lot. In any event, Sussex County's own ordinances and the Board's arguments in this case undermine its position.
Sussex County allows a building that is non-conforming only as to the height, area or bulk requirements to be altered or extended provided that the alteration or extension does not increase the degree of non-conformity. This would allow a building that is non-conforming as to the various area requirements to remain indefinitely. Indeed, the Board has made it clear in this case that if Meyer had not crossed the line from renovation to new construction that there would not be a problem. The Board's argument is simply not very persuasive when you recognize that regardless of how you characterize Meyer's work on the House, the House and its degree of non-conformity are exactly the same as to the side-yard setbacks as they were when Meyer purchased the House. Moreover, Meyer's work on the House actually reduced the degree of non-conformity as to the front-yard setback. Sussex County's stated policy of eliminating non-conforming uses is certainly commendable. However, when you are dealing with a situation that has been in existence for over 30 years and could, if Meyer's work on the House was treated as a renovation instead of new construction, and which did not increase the degree of non-conformity, continue to exist indefinitely as a non-conforming use, then you have to question whether Sussex County's policy is being advanced by the Board's decision in this case.
Second, the Board argues that under subsection (c) Meyer must show she did not create the exceptional practical difficulty. The Board argues that Meyer created her own problems by remodeling her House in such a manner as to constitute new construction and not renovation. As I said before, this is but one factor for the Board to consider. It is not necessarily determinative by itself. Moreover, the Board's decision, as I noted previously, fails to recognize that Meyer actually reduced the degree of hardship.
Third, the Board argues that Meyer's request for the three variances would alter the essential character of the area. This argument is not supported by the record. This is not a situation where a property owner seeks a variance for something that they wish to construct in the future. In such cases the granting of the variance may well have some effect on the character of the area. This case is entirely different. Meyer's House has been there for over 30 years. The encroachments have been there for over 30 years. The neighbors have all lived with the encroachments for over 30 years. Granting the variances would only legitimize what was done, as far as the encroachments are concerned, many years ago. The one complaint cited by the Board involved a neighbor who was complaining about her view of the river. This involves the back of Meyer's House where there are no setback violations. It is not even a part of the application that was before the Board for consideration and it cannot be relied upon by the Board to support its decision.
The Board's decision is reversed for the reasons set forth herein.
IT IS SO ORDERED.