SUPERIOR COURT
OF THE
STATE OF DELAWARE
T. HENLEY GRAVES SUSSEX COU NTY C OUR THO USE
JUDGE 1 THE CIRCLE, SUITE 2
GEORGETOWN, DE 19947
TELEPHONE (302) 856-5257
February 23, 2015
David C. Hutt James P. Sharp
Morris James Wilson Halbrook & Moore & Rutt, P.A.
Bayard, LLP Attorney for Appellee
Attorney for Appellant 122 West Market Street
107 West Market Street Georgetown, DE 19947
P.O. Box 690
Georgetown, DE 19947
RE: The Village at Hwy One v. Bd. of Adjustment of Sussex Cty.
C.A. No. S14A-07-001 THG
Dear Parties:
Before the Court is The Village at Highway One’s (“Applicant”) appeal from the Sussex
County Board of Adjustment (“Board”). At issue is the Board’s decision to grant a special use
exception to allow for a double-sided off-premise sign1 (“billboard”) to be erected on the property,
but to deny a variance request with regard to the proposed billboard’s height. Based on the facts of
the case and the relevant case law, the Court AFFIRMS the Board’s decision.
FACTS
Procedural History
On March 12, 2014, Applicant filed an application2 for a special use exception to construct
a billboard on Applicant’s property, and for a ten foot height variance from the billboard height
1
Exh. 6.
2
The Application was titled Board of Adjustment Case Number 11382.
requirement. A public hearing was subsequently held on April 21, 2014 to address the application.
At the conclusion of the hearing, the Board voted to table the application until the next meeting on
May 5, 2014. At the May 5 meeting, the Board discussed the application further and decided to grant
the application as to the special use exception, but deny it as to the height variance. On June 3, 2014,
following its determination to grant the application in part and deny it in part, the Board issued a
written decision (“Board’s Decision”) documenting its findings of fact and explaining its reasons for
denying the variance. On July 3, 2014, Applicant filed a Notice of Appeal with regard to the Board’s
denial of the variance request in Superior Court. The Board filed its Return on Appeal on July 30,
2014. Briefing on the case concluded on December 1, 2014. The Court is now addressing
Applicant’s appeal.
Substantive Facts
The piece of property at issue has an interesting past that has played a part in shaping the
physical attributes of the lot. The property is located east of Route 275A Airport Road in Rehoboth,
Delaware at the intersection of Airport Road and Route 1. The property’s identification number on
the tax map is Parcel Number 3-34-13.00-325.02. The piece of land is 20,272 square feet, which is
slightly less than half an acre in square footage. The land lies in a C-1 zone, a commercial zone.
The property is unique in shape, size, location, and with regard to the number of commercial
buildings it houses. First, the property is a very small piece of commercial property, consisting of
less than half an acre of land. Second, the property has a fairly unique shape in that it most closely
resembles a triangle. Third, the property is an island lot, since it is surrounded on two sides by
Airport Road, and on one side by Route 1. Lastly, the land currently houses two businesses, Liquid
Surf and Skate Shop and Big Chill Surf Cantina, a marquee sign, and a parking lot for the two
2
businesses.
The plot has been in use since 1937, potentially housing one structure that year. By 1961,
multiple structures existed on the small plot. By 1992, a great deal of development had occurred in
the area around the lot, and by 1997, the land housed four structures. The plot was purchased by
Applicant in 2004. When purchased, the property housed four buildings, two of which were later
removed from the site by Applicant. The significance of the property’s history is that it shows that
structures have existed on the lot prior to the enactment of the County’s zoning code (“the Code”).
Due to the land’s unique size, shape, location, and development, and the County’s current zoning
code, the lot would be unbuildable, and virtually useless, today.3
At the April 21, 2014 hearing, Applicant, through his counsel (“Counsel”), went through each
of the Code’s requirements to erect a billboard on property in a C-1 zone. According to Counsel
“[e]ach of the requirements, except for the height requirement, is met in [the]application.”4 This
statement was made with regard to Applicant receiving a special use exception.
After discussing the special use exception, Counsel moved on to discussing the height
variance request. The application sought permission to increase the proposed billboard’s height by
ten feet, up to 35 feet, since the Code only allows billboards to have a maximum height of 25 feet.
Counsel explained the two building’s currently located on the lot are 22 feet and 23 feet tall. Counsel
told the Board that the proposed billboard’s dimensions were ten feet by thirty feet; however, he
3
Because of a 60 foot set back requirement for buildings imposed by the Code, no building could be
erected on the pro perty today without the use of a variance. However, it is worth noting that is not the situation here.
There are two businesses on the plot to date.
4
April 21 Hearing Transcript, pg. 11.
3
admitted that “[a]nother common size for a sign of this nature is 12 by 25. . . .”5 Counsel reasoned
that if the Board denied the variance, travelers would only be able to see the top two feet of the sign,
because the billboard would be located behind the buildings, and would therefore be useless. He
argued that if the billboard was raised ten feet, it would be above the sight lines of the buildings and
would be usable for advertising. Counsel then went through the five statutory factual predicates
necessary for granting a variance in Sussex County.
Upon Applicant’s conclusion of its case, the Board sought testimony from those opposed to
the application. The Board only heard from Sanford Hazard (“Hazard”), a neighboring business
owner located adjacent to the property at issue. Hazard’s chief concern was that the billboard would
overshadow his land, business sign, and business. Hazard testified in complete opposition of the
sign,6 stating “. . . I feel that the LLC, Village at Highway One, has enough with the two businesses
on there that with this sign, I think it’s just going to overtax and be detrimental to everybody around
it. . . .”7 He went on to say, “I feel that this commercial property makes enough that they don’t really
need the sign.”8
After Hazard spoke in opposition, the Board decided to table the discussion until its May 5,
2014 meeting. On May 5, 2014, the Board discussed the application further and decided to grant the
application as to the special use exception, but deny it as to the height variance. The Board
5
Id. at pg. 15.
6
Hazard specifically address the special use exception, not the variance. A Boa rd member asked H azard
“Wo uld you say the special use exception that they’re going for will affect adversely the uses of the adjacent and
neighboring properties”? To which Hazard answered “Yes.” Id. at pg. 32.
7
Id.
8
Id.
4
subsequently issued the Board’s Decision on July 3, 2014. The Board’s Decision highlighted the
following relevant findings of fact:
4. The Board found that . . . there are two (2) commercial buildings on the
Property.
5. The Board found that . . . the Applicant purchased the Property in 2004 and
that the buildings have been on the Property since 1954.
6. The Board Found that . . . the Property is unique due to its odd shape.
7. The Board found . . . that under the current Zoning Ordinance the lot would
be unbuildable. . . .
8. The Board found that . . . the area is predominately commercial.
9. The Board found . . . that the proposed billboard will meet all the . . .
requirements and will not exceed the permitted square-footage for a
billboard.
10. The Board found that . . . the use will not substantially adversely affect the
uses of surrounding and neighboring properties.
11. The Board found that . . . there are other billboards in the area.
...
14. The Board found that . . . the proposed sign is consistent with the uses of the
area.
15. The Board found that . . . the height variance is needed to allow the billboard
to be seen over the existing buildings on the Property.
...
23. . . . Mr. Hazard testified that the Applicant’s property is at full capacity and
does not have adequate parking.
24. . . . Mr. Hazard testified that the proposed billboard will overshadow his
business.
...
26. . . . Mr. Hazard testified that the Applicant’s proposed sign will be
detrimental to the neighboring properties.
...
32. Based on the findings above . . . the Board determined that the application
met the standards for granting a special use exception but did not meet the
standards for granting a variance. The proposed billboard at the height of
twenty-five (25) feet does not substantially affect adversely the uses of
adjacent or neighboring properties.
The Property is already heavily developed with two (2) commercial buildings
and a marquee sign and the Applicant has demonstrated that the variance is
needed so that the billboard can be seen over its existing buildings. By
increasing the height of the proposed billboard, the Applicant is creating its
own hardship. The billboard can be placed on the property in strict
conformity with the Sussex County Zoning Code and the variance is not
5
needed (emphasis added).9
STANDARD OF REVIEW
As has been articulated in several other opinions, this Court has limited appellate review of
the factual findings of the Board.10 Superior Court’s review is limited to whether “the agency’s
decision is supported by substantial evidence and whether the agency made any errors of law.”11 The
Court will not “weigh the evidence, determine questions of credibility, or make [its] own factual
findings.”12 The Court does not act as a trier of fact, and will not superimpose its own personal
judgment on that of the Board’s.13
Substantial evidence is “such relevant evidence as a reasonable mind would accept as
adequate to support a conclusion.”14 It is evidence from which an agency could fairly and reasonably
reach the conclusion it came to.15 If substantial evidence exists to support the Board’s decision, the
Court will affirm the decision even if it may have reached the opposite conclusion had the case come
before it in the first place.16 “Absent an error of law, the Board’s decision will not be disturbed as
long as there is substantial evidence to support its conclusions.”17
9
Appendix to Appellant’s Opening Brief, Exhibit A.
10
Yost v. Bd. Of Adjustment of Sussex Cty., 201 1 W L 48 261 12, *2 (Del. Supe r. Sep t. 20, 2011 ); Dexter v.
New Castle Cty. Bd. of Adjustment, 1996 W L 6588 61, *2 (Del. Super. Sept. 17, 1996).
11
Yost, 2011 WL 4826112 at *2.
12
Bd. Of Adjustment of Sussex Cty. v. Verleysen, 36 A .3d 3 26, 3 29 (Del. 201 2).
13
Holowka v. New Castle Cty. Bd. of Adjustment, 2003 W L 2100 1026, *3 (De l. Super. April 15, 2013).
14
Dexter, 1996 WL 658861 at *2.
15
Holowka, 2003 WL 21001026 at *3.
16
Dexter, 1996 WL 658861 at *2.
17
Yost, 2011 WL 4826112 at *2.
6
On review, “[t]he party seeking to overturn the Board’s decision has the burden of persuasion
to show that the decision was arbitrary or unreasonable.”18 “If the Board’s decision is fairly
debatable, there is no abuse of discretion.”19 “In this process, ‘[t]he Court will consider the record
in the light most favorable to the prevailing party below.’”20
DISCUSSION
Requirements for Desired Billboard Construction
The Code provides that billboards are permitted in any C-1 General Commercial District,
“after obtaining a special use exception. . . .”21 A special use exception may be granted by the Board
provided it “finds that, in its opinion, as a matter of fact, such exception[] will not substantially affect
adversely the uses of adjacent and neighboring property.”22 The Code further mandates that a
billboard’s surface space must not exceed more than 600 square feet total (i.e., both sides’ surface
areas must be 300 square feet), and, among other things, not “exceed 25 feet in height from ground
level.”23 However, the Board may, in its discretion, grant:
A variation in the yard requirements in any district so as to relieve practical
difficulties or particular hardships in cases when and where, by reason of exceptional
narrowness, shallowness or other unusual characteristic of size or shape of a specific
piece of property at the time of the enactment of such regulation or restriction or by
reason of exceptional topographical conditions or other extraordinary situation or
condition of such piece of property. . . , the strict application of each regulation or
18
Mesa Commc’n Group v. Kent Cty. Bd. of Adjustment, 2000 WL 33110109, *6 (Del. Super. Oct. 31,
200 0).
19
Id. quoting Mellow v. Bd. of Adjustment of New Castle Cty., 565 A.2d 947, 956 (Del.
Super. 1988).
20
Holowka, 2003 WL 21001026 at *4 citing General Motors Corp. v. Guy, 199 1 W L 19 049 1, *3 (D el.
Super. Aug. 16, 1991 ).
21
Sussex Cty. C. §115-15 9.5 (B).
22
Sussex Cty. C. §115-210.
23
Sussex Cty. C. §115-15 9.5 (B), (C).
7
restriction would result in peculiar and exceptional practical difficulties to or
exceptional hardship upon the owner of the property. 24
Though the Code is willing to grant variances to property owners, such grants are intended to be used
sparingly. The Code states:
Such variance[s] shall comply, as nearly as possible, in every respect with the spirit,
intent, and purpose of this chapter, it being the purpose of this provision to authorize
the granting of variation only for reasons of demonstrable and exceptional hardship
as distinguished from variations sought by applicants for purposes or reasons of
convenience, profit or caprice (emphasis added).25
In order to assure that the spirit of the Code is realized in application, the Board and the General
Assembly26 have created five requirements that must be factually present in order for a variance to
be granted.27 These five factors are:
(1) That there are unique physical circumstances or conditions, including irregularity,
narrowness or shallowness of lot size or shape, or exceptional topographical or other
physical conditions peculiar to the particular property and that the unnecessary
hardship is due to such conditions and not circumstances or conditions generally
created by the provisions of the Zoning Ordinance or code in the neighborhood or
district which the property is located.
(2) That, because of such physical circumstances or conditions, there is no possibility
that the property can be developed in strict conformity with the provisions of the
Zoning Ordinance or code and that the authorization of a variance is therefore
necessary to enable the reasonable use of the property (emphasis added).
(3) That such unnecessary hardship has not been created by the appellant (emphasis
added).
24
Sussex Cty. C. §115-21 1 (A)(1).
25
Id.
26
It is worth explaining that ea ch of D elaware’s three counties’ Bo ards o f Adjustment draw their po wer to
regulate land use from separate statute s.. Verleysen, 36 A.3d at 329. T his has resulted in three materially different
statutes that have d ifferent req uirements for zoning and the grant of variances. Id. at 330.
27
9 Del. C. §6917 (3).
8
(4) That the variance, if authorized, will not alter the essential character of the
neighborhood or district in which the property is located and not substantially or
permanently impair the appropriate use or development of adjacent property nor be
detrimental to the public welfare.
(5) That the variance, if authorized, will represent the minimum variance that will
afford relief and will represent the least modification possible of the regulation in
issue.28
Case Law Interpretation of Variance Elements
At issue in this appeal is whether, based on the record below, Applicant has satisfied all five
requirements for a variance. Specifically, there is contention as to whether Applicant has satisfied
the “no reasonable use” requirement and the “self-created hardship” requirement. The absence of
either requirement is a per se bar to the grant of a variance.29 These two requirements will now be
discussed in turn.
Though only persuasive law,30 the Court finds the distinction between an “area” variance and
a “use” variance to be helpful in explaining what the Applicant is seeking. In Bd. of Adjustment of
New Castle Cty. v. Kwik-Check Realty, Inc., the Delaware Supreme Court adopted the Superior
Court’s view that two types of variances exist.31 It explained “the rationale, which we approve, is
that 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
28
9 Del. C. §6917 (3); 115-211 (B ).
29
See Verleysen, 36 A.3d at 331-33.
30
Verleysen, 36 A.3d at 330-31. “The statute that governs proceedings before the Sussex County Board of
Adjustment is materially different from the statute pertaining only to New Castle County. . . . In particular, the New
Castle County statute d oes not require the Board of Adjustment to find that the ‘unnecessary hardship or exceptional
practical difficulty has been created by the appellant.’” Id. No tably, the statute governing Sussex County
“unambiguously requires the Sussex County Board o f Adjustment to find that the difficulty was not created by the
applicant before it may grant a variance.” Id. at 331.
31
Bd. of Adjustment of New Castle Cty. v. Kwik-Check Realty, Inc., 389 A.2d 12 89,1291 (Del. 1978).
9
property for the permitted use.”32
Reasonable Use
Reasonable use of property is not a determination as to whether the applicant intends to use
its land in a reasonable way. Reasonable use, instead, addresses the value or usefulness of the
property to the owner.33 If the property in question can be reasonably utilized, or is being reasonably
utilized, without the existence of the non-conforming structure sought, the applicant cannot establish
the necessity of a variance.34 Reasonable use may exist even if it is not the applicant’s preferred
use.35 If the applicant fails to demonstrate the property cannot be reasonably used without a variance,
the variance application must be denied.36 In short, the Code contemplates “enable the reasonable
use of the property” to mean that without a variance, the property at issue would be of such minimal
use or value as to virtually render it worthless to its owner.
It must be explained that an owner’s or “preferred use” of its property may in fact be
“reasonable” in that the use is not obscure or outlandish for the given area. However, case law
provides multiple examples of applicants seeking variances for reasonable uses of their properties,
which were later denied because such property was already being reasonably utilized.37 Therefore,
32
Id.
33
B.E.T., Inc. v. Bd. of Adjustment of Sussex Cty., No. 214, 1984, 497 A.2d 784 (Del.
Apr. 29, 1985).
34
Verleysen, 36 A.3d at 332.
35
See B.E.T., Inc., No. 214, 1984, 497 A.2d 784.
36
Verleysen, 36 A.3d at 333.
37
See, e.g., Verleysen, 36 A.3d 326 (holding that the applicant failed to establish the “no reasonable use”
requirement because he did not demonstrate that the property could not be reasonably used without a barbeque area
or shed, and beca use the a pplicant was alread y reaso nably using the land for a swimming p ool); B.E.T., Inc., No.
214, 1984, 497 A.2d 784 (affirming denial of variance because property could be developed for reasonable use, even
if not use applicant wan ted); Yost, 201 1 W L 48 261 12 (finding that app licant co uld no t demonstrate a variance to
10
when a piece of property is already, or can be, reasonably utilized by its owner, an additional
preferred use, even if reasonable, will prevent the applicant from establishing this requirement.
Application
The record makes clear that Applicant is already reasonably utilizing its lot. The evidence
presented at the hearing indicates there are two businesses already located on the small piece of land.
It also shows the property houses a parking lot and a marquee sign. The grant of a special use
exception and the grant of a variance can be, and were here, considered separately. A special use
exception was granted to Applicant, allowing it to use the property for the preferred use of erecting
a billboard, but that does not, by extension, grant Applicant permission to build the billboard in
accordance with its own desired dimensions. Understandably, Applicant wants the proposed
billboard to be a certain height for better viewing by travelers on Route 1, but the property’s worth
is not contingent on Applicant receiving the height variance. Though constructing a billboard on
Applicant’s lot may be a reasonable way to use the property, especially given it is in a C-1 zone and
other billboards exist in the immediate area, the billboard’s height is not necessary for the lot to have
value to the Applicant. The Board properly denied the variance on this ground.
Self-Created Hardship
An applicant for a variance has a self-created hardship if it “[comes] to the restricted subject
property with a particular unpermitted use in mind and mindful of the impossible area restrictions38
preserve a waterfront view was necessary for the “reasonable use” of his property).
38
It should be noted that practically speaking, any prior knowledge of a zoning regulation
that bars the use or variance sought would make obtaining a variance virtually impossible. Mesa,
2000 WL 33110109 at *6. Though a self-imposed hardship is a per se bar to the grant of a
variance, this Court finds the relationship between prior knowledge of the zoning restriction and
the rise of a self-imposed hardship confusing and troubling in that it is circular reasoning.
11
for that use.”39 Further, a self-created hardship arises from “difficulties uniquely personal to the
owner, rather than intrinsically related to the property itself.”40 When a property owner can comply
with the applicable zoning code by amending its plans for the property, but chooses instead to seek
a variance, the hardship is self-imposed (emphasis added).41 Conversely, “a hardship is not self-
imposed if it ‘result[s] from inherent and pre-existing characteristics’ of the property.”42 In sum,
when “[t]he difficulty results from the [a]pplicants’ preferred use of the land, and not the particular
features of the property,”43 the hardship the applicant suffers is self-created.44
Application
Applicant’s ability to establish the “self-created hardship” requirement turns on the
distinction between the Code’s permitted use and Applicant’s preferred use. This is similar to New
Castle County’s distinction between “area” variances and “use” variances. Applicant, by the Board’s
grant of the special use exception, has permission to erect a billboard on its land, a permitted use.
However, Applicant, knowing the height restriction for billboards in a C-1 zone is 25 feet, wants its
billboard to be 35 feet, ten feet higher than the restriction. The Court believes such a request is a
39
Verleysen, 36 A.3d at 332 citing CCS Investors, Inc. v. Brown, 977 A.2d 30 1, 321 (De l. 2009).
40
Mesa, 2000 WL 33110109 at *6 quoting Dexter, 1996 WL 658861 at *5.
41
See Dexter, 1996 WL 658861, at *5 citing Vassallo v. Penn Rose Civic Ass’n, 429 A.2d 168 , 172 (Del.
1981). T he Court believes a better test for determining the existence of a self-imposed hardship would be the
distinction between the Code’s “permitted use” and the applicant’s “preferred use.” This test would make it clear as
to whether an applicant for a n variance is creating its own hardship .
42
Verleysen, 36 A.3d at 332 citing McLau ghlin v. Bd. of Adjustment of New Castle Cty., 984 A.2d 1190,
1193 (D el. 2009).
43
A property’s features are not necessarily limited to only the natural features of the land,
such as elevation, water flow, or rock formation. The property’s features that can create a
hardship also include structures on the land that predate the applicant’s ownership.
44
See Verleysen, 36 A .3d at 332 ; Yost, 201 1 W L 48 261 12 at *4; B.E.T. Inc., No. 214, 1984, 497 A.2d 784;
Groves v. Bd. of Adjustment of Sussex Cty., 1987 W L 2546 9, *4 (Del. Super. Nov. 10, 1987 ).
12
preferred use.45 Applicant can comply with the height restriction for billboards, but because its small
lot is already densely populated with two buildings, a marquee sign, and a parking lot, it wants to
erect a billboard that is ten feet higher than what is permitted(emphasis added). The Applicant can
also amend its plans for the billboard’s surface area dimensions from 10 feet by 30 feet to 12 feet
by 25 feet. This would provide some relief as to the billboard’s visibility. It is also noted that
because the billboard is double-sided,46 the sign’s visibility will not be an issue for one direction of
traffic flow. Applicant’s ability to comply with the Code coupled with its desire to construct a
billboard under its own terms demonstrates that this is a self-created hardship. Applicant, is
therefore, seeking the variance for purposes of convenience, profit, and/or caprice.
Applicant believes that the uniqueness of the small lot in conjunction with the preexisting
buildings makes the hardship not self-imposed. But the hardship is personal to Applicant in that it
has the ability to alter its plans and comply with the Code, but prefers to seek a variance. Applicant
came to the table with the desire to build a billboard to a prohibited height. Applicant’s need for the
variance has everything to do with its preferences for the sign’s visibility and efficient advertising
and nothing at all to do with the physical uniqueness of the lot. “While it is understandable, it does
not mean that the variance is in any way related to some physical circumstance or condition unique
to” the property.47 Thus, even though it is practical to build the billboard ten feet higher than what
the Code allows, that alone, is not sufficient to demonstrate that the hardship is not self-created.
45
This is akin to an “area” variance in that Applicant has the permission and ability,
through the grant of a special use exception, to build a billboard on its land, but wishes to build it
in a way to prohibited by the Code.
46
Ex. 6.
47
Yost, 2011 WL 4826112 at *4.
13
CONCLUSION
Applicant has failed to establish two of the five factual predicates necessary in Sussex County
to grant a variance. The non-existence of either requirement is a per se bar to a variance under
Verleysen. The Court, therefore, has no reason to address the remaining three factual requirements
under 10 Del. C. §6917 (3) and the Code. The Court finds the Board committed no legal error, that
there is substantial evidence supporting its decision, and that a reasonable mind could reach the
conclusion it came to. The decision of the Board is AFFIRMED.
/s/ T. Henley Graves
T. Henley Graves
14