W & C Catts Family Limited Partnership v. Town of Dewey Beach

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR SUSSEX COUNTY

W & C CATTS FAMILY
LIMITED PARTNERSHIP,
Property owners in the City of
Dewey Beach,

Appellants,
C.A. N0. SlSA-OS-OOI RFS

V.

THE TOWN OF DEWEY BEACH and
THE BOARD OF ADJUSTMENT OF
THE CITY OF DEWEY BEACH,
DELAWARE, a Delaware

Municipal corporation,

Appellees.
MEMORANDUM OPINION
Date Submitted: August 20, 2018
Date Decided: Novernber 30, 2018
Upon Appeal from a Decision ofthe Dewey Beach Boara’ of Adjustment.
Ajj‘z`rmed.
John W. Paradee, Esq., Glenn C. Mandalas, Esq., and Daniel F. McAllister, Esq.,
Mandalas & Brockstedt, 6 S. State Street, Dover, Delaware 19901, Attorneys for Appellant
Veronica O. Faust, Esq., Morris James, LLP, 19339 Costal Highway, Suite 300,
Rehoboth Beach, Delaware 19971; and Michael J. Hoffrnan, Esq., Tarabicos Grosso, LLP, 100

W. Commons Blvd., Suite 415, New Castle, Delaware 19720, Attorneys for Appellees

STOKES, R. J.

I. INTRODUCTION

Presently before the Court is an appeal from a decision of the Dewey Beach Board of
Adjustment (“BOA” or “Board”) brought by W&C Catts Family Limited Partnership
(“Appellant” or “Catts”). Appellant seeks to reverse the BOA’s decision that Appellants have
abandoned a non-conforming use of their property. Appellants also seek to reverse the BOA’s
decision based on the BOA’s flawed interpretation of the Flood Damage Reduction Ordinance
and § 185-59 of the Dewey Beach Code. The Court AFFRIMS the decision of the BOA for the

reasons discussed beloW.

II. FACTS

Catts is the owner of the property in dispute, Ed’s Chicken and Crabs (‘Ed’s Chicken”)
located at 2200 Coastal Highway, Dewey Beach, Delaware. The property is located Within
Resort Business District 2 zoning district and also Within the AO-2 floodplain district as
described in Chapter 101 of the Delaware Code.

On August 9, 2016, a drunk driver crashed into Ed’s Chicken, causing a fire Which
completely destroyed the structure located on the property. Catts then submitted a letter to the
Town of Dewey Beach Building Inspector, requesting a determination of non-conforming use for
the property on the basis that Catts used the property, prior to its destruction by fire, as an
outdoor eatery and never abandoned this legal non-conforming use. The Town of Dewey Beach
(“Town”) responded that Catts had abandoned the non-conforming use once Catts began using
structures With indoor cooking facilities. In November of 2017, Catts began discussing With the
Town construction Within the former structure’s existing building footprint. Catts submitted a

building permit for a structure of essentially the same configuration as the one that had been

destroyed by the fire. The Town’s Building Inspector denied the permit on the basis that the
plans submitted did not conform with the standards required for the AO-2 floodplain district.

Catts appealed both of these decisions and requested a hearing before the BOA. At the
hearing, Ed Riggin (“Riggin”) testified on behalf of Catts. Riggin, the former proprietor and
namesake of Ed’s Chicken, testified that he started Ed’s Chicken in 1978 or 1979. He also
testified that Ed’s Chicken exclusively served chicken cooked outside for the first five years that
Ed’s Chicken was open, through the mid 1980’s. At some point in the mid l980’s, Riggin built a
shack and put in picnic tables. Riggin further testified that Ed’s Chicken hosted at least two or
three pig roasts over the years, and furthermore that approximately five years ago, when a fire
destroyed the hood system to the indoor stove, Riggin cooked chicken outside for an entire
summer. Riggin also testified that he never intended to cease cooking outdoors and that no one
from the Town told him that by building an indoor kitchen and applying for a business license as
an “eatery” he would abandon his right to cook outdoors.

With respect to outdoor cooking Riggin confirmed that Ed’s Chicken occasionally would
return to its open air roots and prepare food on outdoor grills whenever other equipment was
unusable. Riggin further stated, “it wasn’t needed” when asked if he stopped cooking outdoors
when the signature shack, with indoor cooking equipment, and picnic tables were erected in the
mid l980’s.

Rusty Catts (“Rusty”) also testified on behalf of Catts. Rusty testified that his father and
Riggin went into business with one another in the late 70’s and early 80’s. Rusty’s father was a
silent partner in the restaurant business and Riggin was the managing partner. After his father’s
death, Rusty made an agreement with Riggin that Rusty would become a landlord only and

Riggin would own Ed’s Chicken and mechanical equipment inside of Ed’s Chicken. Rusty

testified, based on his personal knowledge, that outdoor cooking occurred on the property on a
periodic basis. Furthermore, Rusty defined how often a periodic basis was as, “because of fire”,
“we did a pig”, and “whenever we felt the need to”.

After hearing all of the evidence presented the BOA upheld the Building Inspector’s
decisions that Catts had abandoned the non-conforming use for outdoor food preparation and that
the reconstruction of the building must comply with Chapter 101 or § 101-121 of the Dewey
Beach Code “the Code”. The Board reasoned that Catts abandoned the non-conforming use
because (l) Catts intended to abandon outdoor cooking when Catts erected walls, changed the
character of the business, and was licensed as an eatery; and (2) that Catts abandoned the use of
open air cooking for a continuous period of at least one year when the business moved its food
preparation to an indoor cooking facility, even though there were occasional examples of open
air food preparation since the late 1980s

In making its determination the BOA determined that Chapter 101, the Flood Plain
Ordinance which requires minimum building elevation levels for building constructed in FEMA

flood plain designated areas, applies notwithstanding § 185-592 of the Code. The BOA reasoned

1 The Town of Dewey, Delaware, Municipal Code § 101-12 states in relevant part:

A. Structures existing in any special flood hazard area prior to the initial enactment of this chapter (June 18,
1982), but which are not in conformance with these provisions, may continue to remain subject to the
following:

2. Any modification, alteration, addition, reconstruction, repair, or improvement of any kind to an
existing structure, the cost of which equals or exceeds 50% of the market value, shall only be
undertaken in full compliance with the provisions of this chapter.

2 The Town of Dewey, Delaware, Municipal Code art. IX, § 185-59 states in relevant part:

If a nonconforming building is damaged by fire, storm, infestation, or other peril not caused intentionally by the
property owner, it may be repaired or reconstructed to essentially the same configuration as existed prior to the
damage, provided that application for all required building permits be made within one year and six months of
the date of the damage. If a different configuration or an expansion of the original building is proposed, it must
conform to all applicable regulations, including all applicable setbacks, height and elevation requirements

B. Except that in the process of repairing or reconstructing a residential use structure located in a flood-prone
area (e.g. a FEMA-designated VE, AE, or AO flood zone) that does not conform to the required setbacks in
any respect and does not meet the Town building elevation standards and has suffered substantial damage,

3

that the laws of statutory interpretation should apply in order to decide whether § 185-59, § 101-
12, or both statutes should govern the reconstruction of the structure. The BOA stated that it
must give effect to the intent of the legislators and determine whether the statute is ambiguous.
lt also stated that where a statute is unambiguous the plain meaning of the statutory language
controls and when a statute is ambiguous the statute must be construed as a whole, in a way that
gives effect to all of the provisions of the statute and avoids absurd results. Furthermore, it
stated that if there are two reasonable interpretations of the statute, the interpretation to follow is
the one that favors the landowner controls. Ultimately, the BOA decided that § 101 -12
controlled because § 101-12 was adopted after § 185-59, the legislative intent of the Town was
for § 101-12 to control if there were conflicting statutes, and that § 101-12 and § 185-59 could be
read as a whole in order to avoid absurd results. Finally, the BOA reasoned that § 101-12 and §
185-59 could be read as a whole because § 101-12 operates to provide an additional requirement
that any reconstruction of 50% or more of a building under § 185-59 must comply with the
applicable height and elevation requirements of § 101-12 because that reading of the ordinance

would give effect to all of the statutory provisions and avoid absurd results.

III. STANDARD OF REVIEW

The standard of review for appeals from a Board of Adjustment decision is limited to the
correction of errors of law and determination of whether substantial evidence exists in the record
to support the Board’s findings of fact and conclusions of law.3 Substantial evidence means such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.4 If the

said structure shall be elevated to the relevant minimum building-elevation requirement as per § 185-60B
of this chapter

3 Janaman v. New Castle County Bd. Oan'justment, 364 A. 2d 1241, 1241 (Del. Super. Ct. 1976).
4 Miller v. Bd. Of Adjustment of Dewey Beach, 1994 WL 89022, at *2 (Del Super. Ct. Feb 16, 1994).

4

Board’s decision is supported by substantial evidence, a reviewing court must sustain the
Board’s decision even if such a court would have decided the case differently if it had come
before it in the first instance.5 “The burden of persuasion is on the party seeking to overturn a
decision [based on a question of fact] of the Board to show that the decision was arbitrary and
unreasonable.”6 Questions of law are reviewed de novo.7 In its appellate review, the Superior
Court after examining the record may “reverse or affirm, wholly or partly, or may modify the

decision brought up for review.”8

IV. DISCUSSION
a. Abandonment

i. Catts Established a Non-Conforming Use of Outdoor Open Air Food
Preparation.

The first issue in determining abandonment is Whether Catts has established the non-
conforming use of outdoor open air food preparation The initial burden of proof is on the
property owner to establish a non-conforming use.9 lt is clear that Catts has met this initial
burden and has established the non-conforming use.

The record clearly shows that Ed’s Chicken served food directly from an outdoor
barbeque pit and grill until the mid-1980s Furthermore, the BOA has confirmed in its decision
that Catts has established a legal non-conforming use by stating, “the record clearly establishes
,,10

that while this use became non-conforming when the town was incorporated in 1981. . .

Appellees assert that Catts failed to present evidence that established a non-conforming use

5 Mellow v. Bd. OfAdjustment ofNew Castle County, 565 A. 2d 947, 954 (Del. Super. Ct. 1988), aff’d, 567 A. 2d
422 (Del. 1989).

6 Id. at 556.

7 Teckstrom, Inc. v. Savla, 2006 WL 2338050, at *4 (Del. Super. Ct. 2006).

8 22 Del. C. § 328(¢).

9Dover Products v. Turner, 1978 WL 22004, at *3 (Del. Ch. 1978).

'° Compendium of Documents Constituting the Stipulated Record, Exhibit 20 at 4.

5 .

relying on open-air food preparation. This assertion is contrary to undisputed facts, the BOA’s
decision, and the fact that the Appellees, in their own brief, admit that Catts did establish a legal
non-conforming use for relying on open-air food preparation. Based on these facts it is clear that
Catts has established a legal non-conforming use for open-air food preparation.
ii. The Board Relied on Substantial Evidence to Determine that Catts
Abandoned the Non-Conforming Use of Open Air Outdoor Food
Preparation for a Period of at least One Year.

As mentioned above the initial burden of proof is on the property owner to establish a
non-conforming use. ll But, once the property owner has met this initial burden, as Catts has
here, the burden then shifts to the Town to prove that the property owner has abandoned the non-
conforming use.12 Abandonment of a non-conforming use can be found under the following two
circumstances: (1) where there is intent by the property owner to abandon the non-conforming
use with an accompanying clear act, or failure to act, to demonstrate such an intent; or (2)
abandonment is presumed where a property owner terminates a non-conforming use for a period
in excess of the time specified in the zoning ordinance.'3 The Town Code provides a period of
one year in determining abandonment of a non-conforming use.14 The testimony of Riggin was
enough to provide the Board with substantial evidence that the Town established that the non-
conforming use of outdoor open-air food preparation had been abandoned for a continuous
period of at least one year.

Riggin was the proprietor of the restaurant from the early 1980’s, at which time Ed’s

Chicken relied solely on outdoor open-air food preparation, through when the Town was

ll Dover Products, 1978 WL 22004, at *3.

12 Id.
13 Hamm v. City of Wilmington Zoning Bd. OfAdjustment, 2010 WL 547413, at *4 (Del. Super. Ct. 2010).
14 The Town of Dewey, Delaware, Municipal Code art. IX, § 185-58.

,, ,_ ____,i,,§,_

incorporated, at which time outdoor open-air food preparation became a permissible non-
conforming use, and up until the fire in 2016. As the proprietor of the restaurant Riggin was in
the best position to testify to the nature of the business from the relevant period of 1980-2016.
Per Riggin’s testimony, in the late 1980’s, Ed’s Chicken incorporated an indoor kitchen facility.
When asked if he continued to cook outdoors after the completion of the indoor kitchen Riggin
responded, “there was no need to”. In addition to this testimony, Riggin stated that he cooked a
few pig roasts over the years outdoors, that outdoor cooking occurred on a periodic basis, and
that he cooked outside for an entire summer five or six years ago due to a kitchen fire.
Furthermore, the business substantially changed when Ed’s Chicken constructed an indoor
kitchen. The business transformed from one that solely relied on outdoor cooking to a business
that would use outdoor cooking for special occasions such as pig roasts or in the event of indoor
equipment failure. The nature of Ed’s Chicken became an eatery as defined by the Town Code.15
Catts argues that the BOA has flipped the burden onto him to prove that he has not
abandoned the non-conforming use of open air food preparation But, the BOA has met its
burden of ajj‘irmatively proving abandonment/6 through the testimony of Riggin. The BOA is
not required to provide its own witness to demonstrate that the non-conforming use was
abandoned Riggin’s own testimony as outlined above established the substantial evidence
needed to conclude that the non-conforming use of outdoor open-air food preparation had been

abandoned for a period of at least one year and that the nature of the business and non-

conforming use had changed. Based on this testimony, it is clear to see that the nature of the

15 This Court is not relying on the fact that Ed’s Chicken Was granted the license of an eatery to establish that Ed’s
Chicken had become an eatery. The Court merely is looking at the nature of the business of Ed’s Chicken and
confirming that when an indoor kitchen facility was added, Ed’s chicken began to operate as an eatery as defined by
the Town Code, which is confirmed by Riggin’s testimony that he “no longer needed to [cook outdoors]” once the

kitchen was built.
16 Hamm, 2010 WL 547413, at *4.

nonconforming use has changed since the building of an indoor kitchen facility, making this case
similar to New Castle County v. Harvey.17 Furthermore, the testimony provides substantial
evidence that the BOA could find that the non-conforming use of outdoor open-air food
preparation was altogether abandoned for a continuous period of l year, despite periodically
cooking outdoors for special occasions such as a few pig roasts and in the event of indoor
kitchen equipment failure.

Next, Catts asserts that the BOA impermissibly relied on the receipt of a business license
as an eatery to determine that the nature of Ed’s Chicken had changed. Catts contends that the
BOA’s reliance on the business license as an eatery results in legal reversible error. lt is clear,
from the BOA’s written decision, that “the actions of the property owner in erecting walls and
changing the character of the business evinced an intent to convert [the business] from a food
service business with open air food preparation to a business with indoor kitchen facilities”. This
language makes it clear that the BOA made its decisions based off of Catts’ actions and not his
business license. Furthermore, the testimony from Riggin clearly established that the nature of
the business changed when an indoor kitchen facility was created as the business changed from
entirely cooking outdoors to periodically cooking outdoors for special occasions or in the event
of kitchen equipment failure. Therefore, the BOA did not rely on the property owner’s business
license in making it’s decision, but rather it permissibly relied on the actions of the property
owner in establishing that the nature of the business changed.

Finally, Catts contends that the BOA presented no evidence that Catts intended to

abandon the legal non-conforming use of outdoor cooking. Catts states that Riggin’s testimony

17 315 A. 2d 616 (Del. Ch. l974)(holding that the nature of the defendant’s business had changed from garbage to
bussing, and therefore the nature of the nonconforming use had changed, and that a new or substituted use, differing
in quality or character, is a prohibited use unless the ordinance otherwise provides.).

8

“I did not intend to abandon the non-conforming use of outdoor cooking” is the only evidence
that the BOA can permissibly look at to show abandonment As mentioned above, the Delaware
Superior Court has held that abandonment of a non-conforming use can be found where the
property owner intended to abandon the non-conforming use, or where the property owner has
abandoned the non-conforming use for a period of time specified in the zoning ordinance, here
one year.18 The BOA was correct in stating that the actions of building walls and creating an
indoor cooking facility evinced an intent to change the nature of the business. Furthermore,
Riggin’s testimony corroborates the fact that the business had changed when the indoor cooking
facilities were constructed. The Town need not prove both abandonment and intent, but rather
only abandonment for a period of 1 year or intent to abandon.

The BOA has relied on the substantial evidence of Riggin’s testimony in determining that
the non-conforming use of outdoor cooking has been abandoned for a period of 1 year. The
BOA has further relied on the substantial evidence of the actions of Ed’s Chicken in erecting
walls and creating an indoor kitchen that the nature of the business has substantially changed

since its inception and Ed’s Chicken intended to abandon outdoor cooking.

b. Interpretation of Town Ordinances
i. Standard of review
As previously noted questions of law are reviewed de novo.19 The standard of review
that the Court will apply to the question of interpretation of a zoning ordinance is de novo

review.20 A Board decision which reviews clear and unambiguous ordinance, but misinterprets

18 Hamm, 2010 WL 547413, at *4 (Del. Super. Ct. 2010).
19 Teckstrom, Inc., 2006 WL 2338050, at *4 (Del. Super. Ct. 2006).
20 Oceanport Ind. v. Wilmington Stevedores, 636 A. 2d 892, 899 (Del. 1994).

9

the language, may be subject to reversal as an error of law.21 In that case, “it is the intent of the
ordinance and the plain meaning of its language that are controlling.”22 Furthermore, the
Board’s interpretation of an ambiguous ordinance “should be given great weight and should not
be overturned unless contrary to law.”23 An ambiguous ordinance is one that is reasonably
interpreted two different way or renders an absurd or unreasonable result.24 Additionally, when
ambiguities arise, the Court “must keep in mind that zoning laws are to be interpreted in favor of
the occupants of the land.”25

ii. The Board of Adjustment had the authority to consider Chapter 101

of the Town Code.
Catts contends that the BOA is only endowed with limited jurisdiction.26 Specifically,

Catts argues that the BOA has no jurisdiction to act outside the parameters of 22 Del. C. §§
327(a)(1)27 and 30128, and can only hear zoning issues.29 Catts argues that by interpreting § 101-
12 alongside of § 185-59 the BOA exceeded its jurisdiction because § 101-12 is not a zoning
ordinance. Catts points out that Chapter 101 of the Code, which contains § 101-12, is not

included in the Town’s zoning chapter, is named the “Flood Damage Reduction Ordinance”, and

21 Kulin Living Trust v. Board of Adjustment of T own of Fenwick Island, 2005 WL 1077742 (Del. Super 2005).
22 4th Generation, Ltd. v. Board of Adjustment, 1987 WL 14867 (Del. Super Ct. 1987).
23 Id.
24 Dir. OfRevenue v. CNA Holdings, 818 A. 2d 172, 175-76.
25 Mergenthaler v. State, 293 A. 2d 287, 288 (Del 1972).
26 Jenny v. Durham, 707 A. 2d 752, 756 (Del. Super. Ct. 1997), ajj"d, 696 A. 2d 396 (Del. 1997).
27 22 Del. C. § 327 states in relevant part:
(a) The board of adjustment may:
(1) Hear and decide appeals where it is alleged there is error in any order, requirement, decision or
determination made by an administrative official in the enforcement of this chapter or of any
ordinance adopted pursuant thereto;
28 22 Del. C. § 301 states:

For the purpose of promoting health, safety, morals or the general welfare of the community, the legislative
body of cities and incorporated towns may regulate and restrict the height, number of stories and size of
buildings and other structures, percentage of lot that may be occupied, the size of yards, courts and other
open spaces, the density of population, and the location and use of buildings, structures and land for trade,
industry, residence or other purposes.

29 Id. at 757.

10

is not named as a zoning ordinance. Catts further states that local ordinances do not supersede,
side-step or otherwise substitute for legislative jurisdictional requirements30 Catts contends that
the BOA is limited to applying only § 185-59 to the present case. Catts then cites to Arbour Park
Civic Ass ’n, Inc. v. Ba'. Oan'justment of Cily of Newark3 1 to demonstrate what a zoning
ordinance is. The Court, in Arbour Park, held that the Board did not have jurisdiction to grant a
variance where sidewalks would not be required because the construction of sidewalks is not a
subject of zoning, but rather a subdivision regulation.32 The Court cited to out of state cases to
define what a zoning issue is.33
The BOA had the jurisdiction to determine the applicability of Chapter 101 and § 185-59
of the Town Code as they are applied to this matter. As mentioned above by Catts the BOA may
hear appeals pursuant to 22 Del. C. § 327(a)(1) and 22 Del. C. § 301, but the BOA may also
hear appeals pursuant to 22 Del. C. § 324.34 Interpreting all of the parts as a whole, in viewing

the applicable case law and the statutes above, the decision of the building inspector is within the

reviewing authority of the BOA.35 It is clear under the language of 22 Del. C. § 324 that the

30 Jenney, 707 A. 2d at 752.

31 1969 WL 99824, at *4 (Del. Super. Ct. 1969).

32 Ia'.

33 See DiPalma v. Zoning Board of Review, 50 A. 2d 779 (R.I. 1947) (holding that the erection of gasoline pumps
upon a sidewalk or curb was a matter solely within the power of the town and the zoning board did not have
jurisdiction over such a question.); Warren v. Marion County, 353 P. 2d 257 (Or. 1969) (holding that building code
regulations, involving less serious restrictions upon the property owners’ use, were not zoning issues); T own of
Jaffi”ey v. Hejj‘ernan, 183 A. 2d 246 (N.H 1962) (holding that an ordinance requiring dwelling houses erected after
the enactment of an ordinance to have a minimum setback of 30 feet from any public highway was not a zoning
ordinance, but rather a “setback” regulation within the general police power).

34 22 Del. C. § 324 states in relevant part:

Appeals to the board of adjustment may be taken by any person aggrieved or by any officer, department,
board or bureau of the municipality affected by any decision of the administrative officer.

35 See Brandywine Park Condominium Council v. Members of City of Wilmington Zoning Board of Adjustment, 534
A. 2d 286 (Del Super. Ct. l987)(holding that an erosion control plan is within the reviewing authority of the Board
because the Board accepts appeals from any decision of an administrative officer)

ll --

Board accepts appeals from any decision of an administrative officer. Because the Building
lnspector is an administrative officer the BOA rightfully considered this appeal.
Furthermore, the height requirements implemented by Chapter 101 make it a
zoning ordinance, despite Catts’ attempts to define Chapter 101 as something other than a
zoning ordinance by citing Arbour Park. Here, the elevation requirements of Chapter 101
differentiate this case from the construction of sidewalks as in Arbour Park. The enabling
legislation for Town of Dewey Beach Code § 185 (Zoning) is authorized by 22 Del. C. §
301. 22 Del. C. § 301 states, “For the purpose of promoting health, safety, morals or the
general welfare of the community, the legislative body of cities and incorporated towns
may regulate ana1 restrict the height, number of stories and size of buildings and other
structures . . . .” The minimum height requirements set forth in the Flood Plain Ordinance,
Chapter 101, clearly falls within the definition of “zoning” as defined by the language of
22 Del. C. § 301, and are not similar to the “setback regulations” or “subdivision
regulations” mentioned in Arbour Park.36 Despite Chapter 101 not having the specific title
of “zoning ordinance” the elevation requirement does in fact create a zoning ordinance.
Because Chapter 101 is a zoning ordinance and the BOA was hearing a decision
from an administrative officer the BOA had the authority to consider Chapter 101 in

hearing this appeal.

iii. The Board of Adjustment Correctly Interpreted Chapters 101 and
185 of the Town of Dewey Beach Code.

The final issue is whether the BOA correctly interpreted § 185-59 and § 101-12 correctly.
The BOA found that, at the very least, there is a conflict between the two provisions and that the

BOA had to ascertain the legislative intent of the Town Council. ln reaching its decision the

36 Arbour Park, 1969 WL 99824 at *4.
-12

BOA concluded that the legislative intent of the Town Council in adopting § 101-12(B)(2)’s
requirement that structures reconstructed at a cost equal or exceeding 50% of the market value of
the structure comply with the height provisions of Chapter 101 was for this requirement to apply
notwithstanding § 185-59. Chapter 101 was adopted after § 185-59 and in amending Chapter
101 on December 13, 2014, the Town Council expressly provided that, “[a]ny and all ordinances
and regulations in conflict herewith are hereby repealed to the extent of any conflict.” Moreover,
§ 101-5 provides, “[t]hese regulations are not intended to repeal or abrogate any existing
ordinances including subdivision regulations, zoning ordinances, or building codes[; but] [i]n the
event of a conflict between these regulations and any other ordinance, the more restrictive shall
govem.” Further, the BOA stated, that construing the Town Code as a whole and in a way that
gives effect to all of the statutory provisions avoids absurd results and superfluous language.
Finally, the BOA concluded that while § 185-59 allows reconstruction of the structure to
essentially the same configuration, thereby allowing encroachment into building setbacks, as
applicable, Section 101-12(B)(2) operates to provide an additional requirement that any such
reconstruction comply with the requirements of Chapter 101 , including applicable height and
elevation requirements

Catts contends that the plain language and legislative history of § 185-59 evince a clear intent
to create an exception to § 101-12(B)(2). By not allowing Catts to reconstruct his structure to the
same exact configuration, Catts argues that the BOA has repealed § 185-59. Catts contends that
after broadly allowing for the reconstruction of existing non-conforming structures to essentially
the same configuration, § 185-59(A) contains a single exception for residential structures in
designated flood zones. Catts argues that § 185-59 creates an exception to compliance with the

Town Code and that § 185-59(A) creates an exception to the exception, that is applicable only to

13 _

residential properties, in designated flood zone areas, by requiring that the properties be elevated
to the minimum building elevation requirements of § 101-12(B)(2). Catts contends that the
reconstruction of residential non-conforming property is the only type of property that must
comply with § 101-12(B), and more specifically that commercial non-conforming structures do
not have to comply to § 101-12(B).

Furthermore, Catts argues that expressio unius est exlusio alterius is particularly applicable
in this case.37 Catts argues that because the amendment to § 185-59 was only applied to
residential structures and not all structures that the omissions were intended by the Town Next,
Catts argues that the BOA’s reading of § 185-59 creates surplusage and that all of § 185-59(A)
would be considered surplusage Catts then argues that § 185-59 and § 101-12(B)(2) are not in
conflict. Catts contends that the BOA focused solely on § 101-12 and its legislative history,
while it completely ignored § 185-59. Catts argues that because the ordinances are not in
conflict the BOA made a legal error when it looked into the legislative history in determining
which statute applied. Catt instead contends that the BOA should have applied the principles of
statutory interpretation Finally, Catts contends that even if § 185-59 and § 101-12 are in conflict
the BOA did not reconcile the two ordinances properly. Catts contends that if there are two
reasonable interpretations of the ordinance, the interpretation that favors the landowner controls38
and that the more specific ordinance should apply over the more general ordinance.39 Catts

argues that the BOA did not find ambiguities in his favor and that § 185-59 is more specific than

§101-12.

37 Leatherby v. Greenspun, 939 A. 2d 1284, 1291 (Del. 2007) (defining expressio unius est exclusio alterius as
applied to statutory interpretation as “[w]here a form of conduct, the manner of its performance and operation, and
the persons and things to which it refers are affirmatively or negatively designated, there is an inference that all
omissions were intended by the legislature ").

38 Chase Alexa, LLC v. Kent County Levy Court, 991 A. 2d 1148, 1152 (Del. 2010)(citations omitted).

39 Shellburne Civic Ass 'n Inc. v. Brandywine Sch. Dist., 2006 WL 4782500, at *3 (Del. Ch. 2006).

14

The Town on the other hand contends that § 185-59 was amended to restrict residential
structures to the minimum elevation required by Chapter 101. The Town argues that § 185-59
was amended in the wake of resident opposition to the Town’s interpretation of the interplay
between the two ordinances in the case of Laira’ v. Board of Adjustment of the T own of Dewey
Beach.40 The Building lnspector in Laira' concluded that § 185-59, when read in conjunction
with Chapter 101, restricted the property owners’ ability to elevate their structure beyond the
minimum elevation required by Chapter 101. The Board reversed the decision of the Building
Inspector and the Superior Court affirmed the decision of the Board, albeit for different reasons
than those stated by the Board.41 The Court held that the Building Inspector’s conclusion, that
raising a home to the minimum requirements of Chapter 101 did not constitute a reconfiguration
of the homes parts but raising the structure a few feet above the minimum requirement did
constitute a reconfiguration of the homes parts, did not make any sense.42 The Court then stated
that the Dewey Beach Code did not define what a reconfiguration was, used the common
definition of configuration43, and held that the Court did not see how the mere raising of a
structure amounts to a change in the arrangement of its parts.44 The Town further argues that
Laira' stands for the proposition that non-conforming structures reconstructed in the Town must
comply with the height requirements of Chapter 101 and that an elevated structure would be
reconstructed to essentially the same configuration

The Town contends that Catts misinterprets the plain language of § 185-59, and that the plain

language, in light of Laird, restricts residential properties to the relevant minimum building

40 2014 WL 6886953 (Del. Super. Ct. 2014).
41 Id. at *2.

42 Id. at *3.
43 Merriam-Webster’s Ninth New Collegiate Dictionary 275 (911‘ ed. 1986) (defining configuration as, “a relative

arrangement of parts or elements”
44 Laira’, 2014 WL 6886953 at *3.

_ 15 _

elevation in spite of the holding in Laira'. Furthermore, the Town contends that it clearly did not
intend for only residential structures to be subject to the minimum height requirements of
Chapter 101. Particularly, in light of the amendments to Chapter 101 by way of Ordinance 710,
the plain language illustrates that the intent was for all structures to continue complying with
Chapter 101 , with the caveat that residential property owners cannot elevate their structures
beyond what is minimally required. Catts disputes the Town’s reading of Laira1 and argues that
the Town and the Board have committed inverse error in interpreting the relevant statutes. Catts
contends that just because Chapter 101 provides no exception to the requirements of § 185-59, it
does not follow that § 185-59 provides no exception to Chapter 101.

Next, the Town contends that § 185-59 and § 101-12 must be read in conjunction with one
another. The Town argues that Catts reading of the ordinances would wholly negate Chapter 101
and create absurd results. Further the Town contends to the extent that there is ambiguity, the
ambiguity is resolved by legislative history, which unequivocally requires compliance with the
minimum height elevation requirements of Chapter 101. Finally, the Town agrees with Catts
that § 101-12(B)(2) and § 185-59 are harmonious. But, the Town argues that if there is a conflict
with the two ordinances, then § 101-12(B)(2) Would supersede § 185-59 because Chapter 101
has clearly laid out that “in the event of a conflict between these regulations and any other
ordinance, the more restrictive shall govern”45 and that “any and all ordinances and regulations
in conflict herewith are hereby repealed to the extent of the conflict”.46

To interpret the ordinances at hand the Court must determine whether the ordinances are

clear or ambiguous An ambiguous ordinance is one that is reasonably interpreted two different

45 The Town of Dewey Beach, Delaware, Municipal Code art. I, § 101-1.5.
461¢1. at101-8.3 §3.

_ ,,1,6_,_-__,.,,,,,,,

ways or renders an absurd or unreasonable result.47 As mentioned above, where a BOA decision
that reviews clear and unambiguous ordinances, but misinterprets the language, the BOA may be
reversed as an error of law and the intent of the ordinance and the plain meaning of its language
are controlling.48 But, the Board’s interpretation of an ambiguous zoning ordinance should be
given great weight and should not be overturned unless contrary to law.49 However, the Court is
free to correct clear errors of law and must keep in mind that ambiguous zoning ordinances are to
be interpreted in favor of the land owner.50
As both parties have agreed it seems clear that the plain language of § 185-59 and § 101-12
can be read in harmony. The relevant language in § 185-59 is that non-conforming structures,
that have been destroyed at no fault to property owner, may be reconstructed to “essentially the
same configuration”. As the Town has argued, the Court in Lairo’, has defined what a
configuration or reconfiguration of a building would be. Specifically, the Court held that the
mere raising of a structure did not amount to a change in the arrangement of its parts, and
therefore a building could be elevated to the minimum height requirements of Chapter 101 while
still conforming to the requirement of § 185-59 that the property may be reconstructed to
essentially the same configuration This Court follows the Court’s holding in Laira’, and
determines that Catts can raise his structure to the minimum height requirements set forth in
Chapter 101 while still complying with the “essentially the same configuration” requirement of §
185-59. Therefore, the BOA’s conclusion that “while § 185-59 allows reconstruction of the
structure to essentially the same configuration, thereby allowing encroachment into building

setbacks, as applicable, § 101(B)(2) operates to provide an additional requirement that any such

47 Dir. OfRevenue, 818 A. 2d at 957.

48 Kulin, 2005 WL 1077742 at *2.

49 4th Generalion, Ltd., 1987 WL 14867 at *7.
50 Mergenthaler, 293 A. 2d at 288.

reconstruction comply with the requirements of Chapter 101, including all applicable height and
elevation requirements”, is correct.

However, assuming arguendo that § 101-12 and § 185-59 were in conflict with one another,
Chapter 101 would apply because the Town intended for it to apply and reading the statutes in
the manner Catts suggests would create an absurd result. As mentioned above great weight
would be given to the Board’s interpretation of an ambiguous ordinance.51 Catts’ interpretation
of the statutes would have of forcing residential homes complying with the elevation
requirements of Chapter 101, but perplexingly would not hold commercial reconstruction to the
same standards. The purpose of elevating structures in flood prone areas is to protect the people
of Dewey Beach and to reduce insurance premiums for the people of the Town living in those
areas52 lt is clear that the amendments to Chapter 101 and § 185-59 were the Town’s response
to the Court’s decision in Laird and clearly are not intended to grant an exclusion for non-
conforming commercial businesses to reconstruct destroyed property below the minimum flood
plain level. Interpreting the ordinances in the way urged by Catts would clearly create an absurd
result, which would create ambiguity.53 Consequently, the BOA’s decision should be given great
weight and the reconstruction of Catts’ building must comply with § 101-12(B)(2) height and
elevation requirements Furthermore, the town intended for Chapter 101 to apply. As mentioned
in Catts’ arguments above the amendments of Chapter 101 clearly point out the Towns intention
for Chapter 101 or the most restrictive ordinance to apply in the event of conflict. ln making this

decision the Court has looked at both ordinances and read them as a whole.

51 4th Generation, Lta'., 1987 WL 14867 at *7.
52 The Town of Dewey, Delaware, Municipal Code art. 1, § 101-1.2(N).
53 Dir. OfRevenue, 818 A. 2d at 175-76.

,13~

Finally, and hopefully without the risk of undue repetition, Catts’ argument that the Town’s
interpretation of the ordinances would create surplusage fails to recognize that his interpretation
would create an absurd result. Courts must ascribe a purpose to the use of language, if
reasonably possible.54 The interpretation that Catts proposes is not reasonable and would in fact
create an absurd result and the Court has held that ordinances must be read in a way to avoid it.55
Furtherrnore, Catts argument about expressio unius est exclusio alterius that the omission of
commercial structures from § 185-59(A) completely ignores the fact that the residential
structures language was added in response to Laira'. The intention was not to exclude

commercial structures from compliance with Chapter 101 , but rather to ensure that residential

structures were not built over or under a certain height.

V. CONCLUSION
This Court finds that the BOA’s decision is supported by substantial evidence and is free
from legal error. Accordingly, the decision of the BOA is AFFIRMED.

IT IS SO ORDERED.

54 Leatherbury, 939 A. 2d at 1291.
55 Chase Alexa, LLC, 991 A. 2d at 1152.