SUPERloR COURT
OFTHE

STATE OF DEI_AWARE

E_ SCQTT BRAD|_EY SUSSEX COUNTY COuRTHOuSE
JL/nc:&' 1 THE C|RCLE, SUITE 2
GF_ORGEYOWN, DEl_.AWARE \9947
June 7, 2017

TELEPHONE t302) 856-5256

Paul G. Enterline, Esquire David C. Hutl, fisquire
1 13 S. Race Street R. Eric Hacl<er, Esquire
P.O. Box 826 l\/lorris James Wilson Halbrook
Georgetown, I)E 19947 & Bayard LLP
107 W. Market Street
P.O. Box 690

Georgetown, DH 19947
Jamie P. Sharp, Esquire
l\/loore & Rutt, P.A.
122 West l\/larket Street
P.O. Box 554
Gcorgetown, DE 19947

RE: .Iohn F()rrey, et. aI., v. Sussex County Board ofAdjustment and C anal
Corkmn, LLC, and Jungle Jl`m ’s lnc., d/b/a Jung[e .lim ’sAmusement
Park
C.A. No.: 16A-04-002-ESB
Dear Counsel:

'l`his is my decision on the appeal liled by Appellants John Forrey, et. al., ofthe
Sussex County Board ol`Adjustment’s decision granting an lS-t`oot height variance
for a 6()-1`001 high water slide to be constructed at .ltmgle Jim’s Amusement Park.
Jtmgle Jim’s is a 1`1 1`teen-acre amusement park complex located at 36944 Country
Club Road, Rehoboth Beach, Delaware. Jungle Jim’s applied to the Board ot`

Adjustment for an lS-|`oot variance from the 42-1`001 height limit in order to add 21

new 60-foot high water slide. The proposed water slide has two platforms and live

 

water tubes. The lower platform has three water tubes. The lower platform and its
canopy appear to be well below the 42-foot height limit. The taller platform has two
water tubes. The taller platform is at 47 feet and its canopy is at 60 feet. The
Appellants are neighboring homeowners to Jungle Jim’s Amusement Park. The
Appellants are opposed to the variance because they claim Jungle Jirn’s property is
not unique, that it can be developed without a variance, that the proposed Water slide
will alter the character of the neighborhood, and that the height of the proposed water
slide will reduce the privacy of their backyards. After a hearing on the application,
the Board approved Jungle Jim’s application for a variance The Appellants now
appeal the Board’s decision to this Court.
The Board Hearing

The Board held a public hearing on Jungle Jim’s application on February 15,
2016. Present at the hearing for Jungle Jim’s were David C. Hutt, Esquire, William
D. Lingo (“Bill”), T. William Lingo, and John Barwick. The Board received two
letters in support ofJungle Jim’s application and one letter in opposition to it.

Hutt presented Jungle Jim’s application to the Board. Hutt told the Board that
Jungle Jim’s sought to add a new water slide to the amusement park in the area where
a go-cart track Was located. Specifically, Hutt told the Board that Jtmgle Jim’s sought

an 18-foot variance from the 42-foot height restriction in Section 115~82C of the

Sussex County Code.

Hutt detailed the history of.lungle Jim’s Amusement Park, starting with its
origin in 1974, Hutt told the Board that Jungle Jim’s is a lS-acre parcel of land that
is zoned C~i. Duc to a change in the Sussex County Code in 1992, an amusement
park was no longer a permitted use and instead became a conditional use. llutt
informed the Board that the current owners purchased the property in 1998.

In 2002, Jungle Jim’s, through the purview of the Planning and Zoning
Commission, added two water slides to the park, the Anaconda and the Stampede.
lncluding their canopies, the Anaconda and the Stampede have a height ol`
approximately 60 feet. ln 2008, Hutt told the Board that Jungle Jim’s added a spray
area to the park through a commercial site plan review by the Planning and Zoning
Commission. Hutt stated that Jungle Jim’s is once again looking at keeping the park
modern and attractive to its guests.

Hutt told the Board that the most complained-about feature ofJungle Jim’s are
the go-cart tracks due to the noise and their hours of operation Since 201 1, Jungle
Jim’s began eliminating the go-cart tracks to help alleviate some ol`the noise for the
neighbors Hutt told the Board that jungle Jim’s sought to replace the final go-cart
track with a water slide.

Ai`ter discussions with the water slide manufacturing company1 Hutt told the

Board that it was determined that the minimum height at which the proposed water
slide could function and safely transport a rider from the top to the bottom ofthe slide
would be 47 feet. ln addition to the height ofthe water slide, the platform would also
require a l3-foot canopy. Hutt also told the Board that the distance from the property
line to the back ofthe slide was approximately 80 feet and then another 40 feet or so
from the property line to the back of the nearest neighbor’s house. Hutt stated that
it would not be feasible to relocate the proposed water slide to another area of the
park.

During the hearing Hutt addressed the standards for granting a variance Hutt
stated that ( l ) the property is unique because it is a pre-existing, non-conforming use
as an amusement park and that because ofthe topography ofthe property no portion
of the water slide can be placed below grade, (2) the property can not be otherwise
developed and the variance is necessary to enable the reasonable use ofthe property,
(3) Jungle Jim’s did not create the need for the variance, (4) the addition ofa water
slide will not alter the essential character ofthe neighborhood, and (5) the variance
sought is the minimum necessary that will afford relief.

'l`. William Lingo testified that he is a principle in Jungle Jim’s Amusement
Park and a certified general real property appraiser. l\/lr. l,ingo stated that he also has

been an expert witness in Chancery Court and Family Court. l\/lr. lsingo testified that

 

when the park was developed in 1973 it was surrounded by undeveloped property.
Based upon this, l\/lr. Lingo testified that when the properties surrounding the park
were developed, any negative impact the park would have had on those properties
would have taken place at the time of development. Mr. Lingo also testified that he
would be willing to plant a row oftrees along the rear ofthe property to help reduce
the sound coming from the park.

John Barwick testified on behalfofJungle Jim’s. Mr. Barwick is a consulting
engineer with Karins and Assoeiates. l\/lr. Barwick testified that based upon the
height of the proposed platform and the sight lines into the neighboring yards, it
would be impossible to see through or into an outside shower enclosure. l\/Ir. Barwick
also testified that, as it was explained to him, the proposed height of`the platform was
necessary in order to make the slide into a thrill ride.

Bill Lingo testified on behalf of Jungle Jim’s. Bill Lingo is the general
manager and runs the day-to-day operations of the amusement park. Bill Lingo
testified that the proposed water slide would not create any more noise than what
currently exists. Bill Lingo also testified that the removal of the go-cart tracks has
done away with the noise complaints from the neighbors.

Esther Downs and Bruce Powell spoke in opposition to Jungle Jim’s

application Esther Downs testified that she lives in a house which borders the

southern end of`Jungle Jim’s property. l\/lrs. Downs testified that the proposed slide
serves no altruistic benefit to the community and will negatively impact the
neighboring residents for years to come. Mrs. Downs testified to her concerns about
the proposed water slide in relation to a nearby storm water drainage pond. Mrs.
Downs also testified to her beliefthat the quality oflife to the neighboring residents
will be detrimentally impacted due to noise and privacy concerns

Bruce Powell testified that he believes the placement of the proposed water
slide would be in the worst possible location with respect to noise and the
neighboring properties Mr. Powell testified that when he purchased his home he
believed the amusement park would ultimately fail and be replaced by housing
developments l\/lr. Powell also voiced his concerns about the storm water
management and his beliefthat the proposed water slide would negatively affect his
home’s value.

At the conclusion of the hearing the Board voted to table Jungle Jim’S
application until its next regular meeting The Board revisited Jungle Jim’s
application at its meeting on February 29, 2016, during which time the Board
members discussed the factors necessary for granting a variance and how they related
to Jungle Jim’s application In a 3 to 2 vote, the Board granted Jungle Jim’s

application for a variance. The Board issued its written decision on April 5, 2016.

STANDARD OF REVIEW

The standard of review on appeals from the Board ofAdjustment is limited to
the correction of errors of law and a determination of whether substantial evidence
exists in the record to support the Board’s findings of fact and conclusions oflaw.l
Substantial evidence means such relevant evidence as areasonable mind might accept
as adequate to support a conclusion2 lf` the Board’s decision is supported by
substantial evidence, a reviewing court must sustain the Board’s decision even ifsuch
court would have decided the case differently if it had come before it in the first
instance.3 “'I`he burden of persuasion is on the party seeking to overturn a decision
of the Board to show that the decision was arbitrary and unreasonable.”4 “lf the
Board’s decision is fairly debatable, there is no abuse of discretion.”5 “ln this

process, ‘[t]he Court will consider the record in the light most favorable to the

 

' Jamimcm v. New C,'a.\'/[e (_,`r)unry Board r)_f'/ldjuslmem, 364 A.2d 1241, 1242 (Del. Super.
1976).

2 Mill€r v. Boardqf`Ac_l/`u.s'lmenl q/'Dewey Beach, 1994 WL 89022, *2 (Del. Super. l"eb.
16, 1994).

3 Mellc)w v. Board ofA¢_l/uslment ofNew Castle Counly, 565 /\.2d 947, 954 (Del. Super.
1988), q/‘/""d, 567 A.2d 422 (Del. 1989).

4 Me/low, 565 A.2d at 956.

5 Id.

prevailing party below.”’(’ ln the absence ofsubstantial evidence, the Superior Court
may not remand the Board’s decision for further proceedings, but rather, may only
‘“reverse or affirm, wholly or partly, or may modify the decision brought up for
revievv.”7
DISCUSSION

The Appellants argue that the Board failed to correctly evaluate and apply the
statutory requirements for granting a height variance to J angle J im’s. The Board gets
it power from 9 Del.C. §6917. This section authorizes the Board to hear and grant
variance requests8 The Sussex County Council enacted §115-211 of the Sussex
County Code to implement 9 De[.C. §6917.

Section 115-211(B)ofthe Sussex County Code provides that the Board shall
grant a variance only iffive certain findings are made:

(`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

 

" H¢)lr)wka v. New (`clxl[e (`r)unty Board rgf'Ad/'uts‘lment, 2003 WL 21001026, at *4 (l)el.
Super. /\pril 15_ 20()3) citing (jeneru] Molr)r.s‘ Cc)rp. v. Guy, 1991 WL 190491, at *3 (Del. Super.
Aug. 16,1991).

7 22 net C_ §328(¢).

*‘ 9 D€l_C_ §6917(1).

 

the unnecessary hardship is due to such conditions and not to circumstances or
conditions generally created by the provisions ofthe Zonin g Ordinance or code in the
neighborhood or district in which the property is located

(2) That, because of such physical circumstances or eonditions, 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 ofa variance is therefore
necessary to enable the reasonable use of the property.

(3) "I`hat such unnecessary hardship has not been created by the appellant

(4) That the variance, ifauthorized, will not alter the essential character ofthe
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) 'I`hat the variance, if authorized, will represent the minimum variance that
will afford relief and will represent the least modification possible ofthe regulation
in issue.

l will review the five elements of Section 115-21 1(B) as they pertain to Jungle
jim’s application to see ifthe Board’s decision is supported by substantial evidence

in the record and in accordance with the applicable law.

A. Unique Physical Circumstances

The first element of`Section 115-211(B) which Jungle Jim’s must satisfy for
the granting of a variance is Section 115-211(B)(1), which states “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 to circumstances or conditions generally created by the
provisions of the Zoning Ordinance or code in the neighborhood or district in which
the property is located."

The Board found that the property was unique because it had been used as an
amusement park with water slides since 1974. 'fhis use, according to the Board, is
now a non-conforming use under the current Sussex County Code. This use, also
according to the Board, predated changes in the Sussex County Code and involves
structures which are higher than ordinary structures The Board also found that the
property’s topography prevents Jungle Jim’s from building a portion ofthe proposed
water slide below grade. The Board also found that the property’s history and
physical limitations are unique and created an exceptional practical difficulty for
Jungle Jim’s

ln its application, Jungle Jim’s stated that the maintenance and modernization

10

 

of a pre-existing, non-conforming amusement park presents an exceptional practical
difficulty. Jungle Jim’s witnesses testified that the proposed water slide must have
a minimum height of47 feet for safety. Jungle Jim’s witnesses also testified that the
topography would not lend itselfto placing a portion ofthe water slide below grade,
thus making it impossible to reduce or eliminate the need for a height variance.
Jungle Jim’s argues that prior holdings ofthis Court have repeatedly determined that
a variance application is intrinsically related to the property when the application
seeks relieffrom a zoning restriction which prevents a landowner from undertaking
a permitted use ofa suitable piece of land.9 Jungle Jim’s argues that this principal
applies to it because it is the height restriction which prevents it from building a new
water slide that conforms to the property’s existing structures and traditional use.

The Appellants argue that the Board erred in granting the height variance
because there is nothing in the record to show that the unique physical attributes of
the property in question present any exceptional hardship or difficulty to Jungle
Jim’s The Appellants argue that the property is a large, wide, flat, fifteen acre parcel
of land, which already accommodates a number amusement activities and rides

The Appellants are correct. The fact that the amusement park is now a non-

 

° l.iarako.s' v. New CaxI/e (.‘ozinly Board ofAc]just/nem, 1998 W[, 437135, at *2 (Del.
Super. July 23, 1998); Dexrer v. New (.`a.s'lle ("()unly Board qua§"u.s'lmt/nl, 1996 WL 658861, at
*5 (Dcl. Super. Sept. 17, 1996), q{/""d, 692 /\.2d 414 (Del. 1997)('1`able).

11

conforming use has nothing to do whatsoever with the physical circumstances or
conditions of the property, which are the appropriate criteria under Section 115-
21 1(B)(1). Nothing in the record establishes that Jungle Jim’s property is irregular,
narrow or shallow of lot size or shape lt is not hilly. lt is not narrow. lt does not
have a unique shape to it. lt is a fiat parcel ofland. l\/loreover, §115-211(13)(1)
explicitly states that the unnecessary hardship must be due to such conditions and not
to “circumstances or conditions generally created by the provisions of the Zoning
Ordinance or code in the neighborhood or district in which the property is located.”
'l`he Board’s finding completely ignored this and is contrary to §115-211(}3)(1).
There is quite simply nothing unique about Jungle Jim’s property.

'l`he Appellants also argue that the Board erred when it found that the
topography ofthe site prevented Jungle Jim’s from placing some portion ofthe water
slide below grade This finding is not supported by substantial evidence in the
record. There is nothing more in the record than a statement by l\/lr. Hutt that this was
so.m l\/Ir. Hutt said:

ln this area of Sussex County and that site in particular, there’s
not a means ofthe slide going underground in any way, and so thus this
site does not lend itself to reducing ~ shrinking the slide somehow

underground; the topography would not lend itself to accomplishing a
47-foot high slide in that means

 

'0 l\/fr. llutt’s comments were seconded by one of the l.ingos.

12

l\/lr. Hutt is an attorney. The feasability ofplacing a portion ofthe slide below
grade would seem to be the purview of a structural engineer and/or a soil scientist.
Mr. Hutt’s statement is simply not the type ofstatement that a reasonable mind would
accept as adequate to support the conclusion that the Board reached. Moreover,
§ 1 15-21 l(B)( 1 ) requires the exceptional topographical conditions be particular to the
property in question 1\/fr. Hutt referred to the topographical conditions as both
affecting “this area of Sussex County and that site in particular.” 1\/lr. Hutt’s
statement, at least to some extent, makes the allegedly exceptional topographical
conditions affecting Jungle Jim’s property as also affecting this area of Sussex
County as well, which runs afoul of §115-21 l(B)(l). l\/foreover, while l\/lr. Hutt
mentioned that the exceptional topographical conditions were particular to Jungle
Jim’s property, he never said why that was so. l\/lr. Hutt’s statement is wholly
conclusory. In any event, l find this whole argument rather unusual There is nothing
in the record to indicate that .lungle Jim’s ever considered placing a portion of the
water slide below grade so that it would not need a variance To argue that you
should get a variance for not being able to do something you never even considered
doing is rather unpersuasive

The Board’s finding that Jungle Jim’s satisfied Section 115-211(B)(1) is not

13

in accordance with the applicable law and is not supported by substantial evidence
in the record.
B. No Possibility of Development

The second element ofSection l 15-21 1(B) which Jungle Jim’s must satisfy for
the granting of a variance is Section 1 15-21 1(B)(2), which states 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 ofthe property.

The Board found that due to the “uniqueness ofthe lot and the situation,” the
property cannot be developed in strict conformity with the Sussex County Zoning
Code. The Board noted that the property has been used as an amusement park for 40
years The Board further noted that Jungle J im’s removed the go-cart track and wants
to replace it with a water slide like the other two water slides already on the property.
The Board found that because water slides are the main attraction at Jungle Jim’s,
constructing new slides in a manner consistent with the other slides is necessary for
.lungle Jim’s to reasonably use the property.

On its application, Jungle Jim’s stated that “because the park is a pre-existing

and non-conforming use, there is no ability to install, upgrade and/or update rides in

14

the park in strict conformity with the Sussex County Code Granting the variance for
a ride at the same height as existing rides in the water park will enable the reasonable
use of the property.” During the hearing Jungle Jim’s witnesses testified that the
minimum height needed to make this proposed ride safe is 47 feet.

The Appellants note that Jungle Jim’s is currently being used as an amusement
park, just like it has been for decades. The Appellants also note that the park
aceommodates, and has accommodated in the past, a wide variety of amusements
from golf to go-carts, and can continue to do so in the future.

I have concluded that the Board’s finding that Jungle Jim’s needs a third large
water slide in order to be able to reasonably use its property is not based upon
substantial evidence Frankly, the Board’s decision is not based upon any evidence
at all. l\/lr. Hutt told the Board that Jungle Jim’s needs the proposed water slide, and
the requested variance, to be able to reasonably use the property as it has been used
since 1974. This is just a conclusory statement “lf the property in question can be
reasonably utilized, or is being reasonably utilized, without the existence ofthe non-
conforming structure sought, the applicant cannot establish the necessity of the

variance Reasonable use may exist even ifit is not the applicant’s preferred use.”]1

 

ll The Vl`[luge Q/`Highwuy ()ne v. Br)urd Q/'Adju.s'lmel”// Q/'Su.s',s'ex ( `()un[y, 2015 WL
799536, at *5 (Del. Super. Feb. 23. 2015).

15

Jungle Jim’s property, as a whole, is certainly being reasonably used because a very
successful amusement park is being operated on it. The part of the property in
question was previously used for go-carts. Jungle Jim’s decided to shut down its go-
cart ride Jungle Jim’s could have continued to operate or upgrade its go-cart tracks
lnstead, Jungle Jim’s wants to install a new water slide The proposed water slide has
two platforms that “discharge” riders into water flowing through tubes One ofthe
platforms, including its canopy, is well below the 42-foot height limit. Jungle Jim’s
could have built this part ofthe water slide in question without a variance 'Fhere is
nothing in the record that supports a conclusion that building a smaller water slide in
accordance with the zoning code would not, for some reason, be a reasonable use of
Jungle Jim’s property. The Board’s finding that Jungle Jim’s satisfied Section 115-
21 1(B)(2) is not supported by substantial evidence in the record.
C. Unnecessary Hardship or Exceptional Practical Dif`f`iculty

The third element of Section 115-21 1(B) which Jungle Jim’s must satisfy for
the granting of a variance is Section 1 15-21 1(B)(3), which states “that such
unnecessary hardship has not been created by the appellant.”

The Board held that the exceptional practical difficulty was not created by
Jungle Jim’s The Board found the water park to be a pre-existing and non-

conforming use and that there is no language in the Sussex County Code authorizing

16

any changes to rides located in these areas The Board also found that the ability to
replace rides within the park is limited by the water slide manufacturer’s requirement
that the slide be no less than 47 feet tall.

On its application Jungle Jim’s states that it did not create the water park and
the water park is a pre-existing and non-conforming use Jungle Jim’s also notes that
the Sussex County Code does not allow an amusement park owner to regularly
modernize the rides in a park without a variance Jungle Jim’s argues that the
variance is related to the property’s characteristics including its historical use and
topography. rl`herefore, Jungle Jim’s argues that it did not create the hardship it now
faces

The Appellants argue that the Board should have denied the variance because
the record shows the difficulty for Jungle Jim’s is caused solely by its subjective
desire to acquire this particular water slide

“When the difficulty results from the applicant’s preferred use ofthe land, and
not the particular features of the property, the hardship the applicant suffers is self-
created.”'2 While the property may require an upgrade to allow the property’s use to
continue, it does not necessarily have to be this particular water Slide. Even though

the Board determined that the ability to replace rides within the park is limited by the

 

'2 The l/i'l/age Q/`Highway ()ne, 2015 Wl. 799536, at *6.

17

water slide manufacturer requirements that the slides be no less than 47 feet tall, that
is only for this particular water slide, as evidenced by the architect’s plans in the
record. The portion ofthe proposed water slide with the lower platform and three
water tubes can certainly be built within the 42-foot height limit. Jungle Jim’s can
also continue to operate that area in question as a go-cart track or with a different
water slide that can be accommodated within the 42-foot height restriction. Jungle
Jim’s created the hardship it now faces by proposing to build a water slide higher than
the 42-foot limit. The Board’s finding that lungle Jim’s satisfied Section l l5-
21 1(B)(3) is not supported by substantial evidence in the record.
D. Character of Neighborhood

The fourth element of Section l 15-21 1(B) which Jungle Jim’s must satisfy for
the granting ofa variance is Section l 15-21 1(B)(4), which states “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”

The Board determined that the essential character of the neighborhood would
not be altered ifit granted Jungle Jim’s requested variance 'l`he Board found that the

property had been used as an amusement park for over 40 years and the proposed

18

water slide would be no taller than the two 60-foot water slides that are on the
property. "l`he Board also noted that Jungle Jim’s is a seasonal business The Board
found the Appellants’ arguments on property values, noise, and views unconvincing

Jungle Jim’s witnesses testified that the character ofthe neighborhood would
not be altered with the addition of another water slide to the water park. The height
of the proposed slide is almost identical to the slides the park currently operates
Jungle Jim’s suggested that the character of the neighborhood would be improved
with the removal of the go-carts because it would reduce the primary source of
complaints from the neighbors ln its brief, Jungle Jim’s cites to the testimony ofl\/lr.
Barwick, who stated as a matter ofphysics, the slide would not allow park patrons to
see into the neighbors’ outdoor showers

The Appellants argue that the Board erred when it determined that the
placement of the water slide would not change the character of the neighborhood.
The Appellants argue that installing the new water slide would be comparable to
installing a 47-foot high public observation platform overlooking their backyards
which would reduce their privacy. The Appellants argue that people on the platform
would be able to see into their outdoor showers The Appellants also argue that the
testimony of Jungle Jim’s principle on property valuation should not be given

substantial weight because of"his self-interest in the matter.

19

Jungle Jim’s is a part of the character of the neighborhood lt has been a part
ofthe neighborhood for over 40 years Water slides are a featured amusement ofthe
park. indeed, Jungle Jim’s already has two 60-foot water slides Adding another
water slide to the park would not change anything Jungle Jim’s presented testimony
from an appraiser that opined that the proposed Water slides would have no adverse
impact on property values The Appellants did not present any information which
contradicted the Board’s finding on property values The Board’s finding that Jungle
Jim’s satisfied Section 115-211(13)(4) is based upon substantial evidence and free
from legal error.

E. Minimum Variance Needed

The fifth element of Section 115-211(B) which Jungle Jim’s must satisfy for
the granting ofa variance is Section l 15-21 1(B)(5), which states “that the variance,
if authorized, will represent the minimum variance that will afford relief and will
represent the least modification possible ofthe regulation in issue.”

The Board found that the variance sought was the minimum necessary for the
slide to be safely used while still meeting the goals ofthe amusement park.

Jungle Jim’s witness testified at the Board l'learing that the variance is the
minimum necessary in order for a rider to be safely conveyed down the slide In

support of its argument, Jungle Jim’s presented the testimony of Mr. Barwick, who

20

reiterated that the height was necessary for safety reasons

The Appellants argue that there is a lack ofevidence that a variance is needed
at all. ln support oftheir argument, the Appellants cite to the record where Jungle
Jim’s conceded that if the variance is rejected, they would look at other uses for the
property.

The Board’s decision that the variance was the minimum necessary to grant
reliefis not based upon substantial evidence or free from legal error. The evidence
in the record indicates that Jungle Jim’s was using the property for go-carts. Jungle
Jim’s now seeks to build a new water slide in place ofthe go-carts. There is nothing
in the record that indicates that Jungle Jim’s cannot continue to use the property in
the same manner as it did before The record reflects Jungle Jim’s desire to build a
specific water slide that needs to be 47 feet tall for safety reasons "l`he record
indicates that this new water slide actually consists of two platforms and that the
lower platform appears to fit under the 42-foot height restriction This demonstrates
that the 18-foot variance Jungle Jim’s desires is not the minimum necessary to afford
relief. 'fhe Board’s finding that Jungle Jim’s satisfied Section 115-211(B)(5) is not
supported by substantial evidence in the record

CONCLUS]ON

The record lacks substantial evidence to support the Board’s granting of the

21

 

 

variance for Jungle Jim’s Amusement Park. Jungle Jim’S did not satisfy each and
every element of Section 1 15-21 1(B). By failing to satisfy each and every element
of Section 1 15-21 1(B), Jungle Jim’s cannot demonstrate that a variance is necessary
to enable it to reasonably use its property.

The decision ofthe Sussex County Board of Adjustment is REVERSED.

lT IS SO ORDERED.
Very truly yours,
/¢/
E. Scott Bradley
ESB/sal

cc: Prothonotary

22

