IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

FRANCIS J. FIERRO and CAROLYN )
F. FIERRO,

Appellants,

C.A. N0. Nl 7A-02-010 RRC

BOARD OF ADJUSTMENT OF THE
CITY OF NEWARK, DELAWARE,

CITY OF NEWARK, DELAWARE and )
TIMOTHY M. CHOPKO and CECILIA )
J. CARROLL, also known as CECILIA )
J. CHOPKO. )
)
)

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Appellees.

Submitted: October 25, 2017
Decided: January 18, 2018

On Appeal From a Decision of the Board of Adjustment. AFFIRMED.

M

J ames P. Curran, Jr., Esquire, Law Offlce of J ames P. Curran, Jr., Newark, Delaware,
Attorney for Appellants Francis J. Fierro and Carolyn F. Fierro.

Bruce C. Herron, Esquire, Losco & Marconi, P.A., Wilmington, Delaware, Attorney
for Appellees Board of Adjustment of the City of Newark, Delaware, City of

Newark, Delaware.

COOCH, R.J.

This 18th day of January, 2018, upon consideration of Appellant’s appeal
from the decision of the Board of Adjustment of the City of Newark, Delaware, it

appears to the Court that:

l.

Francis J. Fierro and Carolyn F. Fierro (“Appellants”) have appealed a
decision of the Board of Adjustment of the City of Newark, Delaware
(“the Board”) granting Timothy M. Chopko and his wife Cecilia J.
Carroll (“the Chopkos”) a variance from a Newark Zoning Code
provision to build a garage in their front yard. On appeal, Appellants
argue that the Board should not have granted the variance because the
relief obtained was essentially a rezoning of the area, which is beyond
the scope of a variance. Alternatively, Appellants argue that the Board
committed an error of law in granting the Chopkos’ variance request
because the Chopkos failed to demonstrate that they would suffer a
hardship if the variance request was denied. However, the Court finds
that the decision by the Board is supported by substantial evidence and
is free from legal error. Accordingly, this Court AFFIRMS the decision

of the Board.

The Chopkos are owners of property at 250 Dallam Road in Newark,
Delaware. They applied for a permit to construct a four-car detached
garage in the front of their property in early 2016. The proposed
dimensions of the garage were 42 feet by 36 feet. The City of Newark
denied the Chopkos’ application for a building permit in a letter dated
April 28, 2016. The letter set out that, “[a] private garage constructed
as an accessory use in a residential district shall be subject to the
following special provisions in regard to its location: it may be
constructed within a rear yard provided it is distant at last three feet
from any lot line[,]” pursuant to Newark Zoning Code Section 32.48.
The Chopkos then sought a Newark Zoning Code variance from the
Board in order to construct a four-car garage in the front yard of their
property.l

In their variance request, the Chopkos explained the claimed unique
characteristics of their property that they believed supported their
request, They stated that their front yard comprises 85% of the total lot
space, which, they stated, is the only property in Newark with such a
uniquely large front yard. The Chopkos contend that construction of a

 

l Appellees’ Answ. Br. at 3-4.

garage in their back, or side, yards is not feasible given the minimal
remaining lot space. They also stated in their variance request that the
location of storm drains and electric easements prevented the
construction of the garage on other areas of their property. The
Chopkos’ plan for the garage was to use it to store their antique car
collection.2

4. The Board held a hearing on the Chopkos’ variance request on October
20, 2016. The Board entered into evidence three letters from neighbors
of the Chopkos, all of whom supported the variance request, The
Chopkos’ next door neighbors, Appellants, testified in opposition of the
variance request, stating that the garage would negatively affect
Appellants’ property value.3 The Board granted the Chopkos’ variance
request in a 4-0 vote.4 Appellants now appeal that decision to this
Court.5

5. On appeal, Appellants argue that the Board should not have granted the
variance because, by granting the variance, the Board has, in effect,
amended the Newark Zoning code.6 In the alternative, Appellants argue
that the Chopkos failed to demonstrate “hardship or exceptional
practical difficulty” consistent with the law as stated in the seminal case
of Bd. OfAdjustmem of New Castle Cty. v. sz`k-Check Really, Inc.7
The failure to do so, Appellants contend, is an error of law.8

6. In response, the Board maintains that its decision should be affirmed
because substantial evidence exists in the record to support the Board’s
findings of fact and conclusions of law and because the Board
committed no error of law.9

7. In reviewing the decision of the Board, “[t]he function [this] Court is
limited to determining whether substantial evidence supports the

 

2 Ia'. at 3.

3 Appellants’ Op. Br. at 5-6.

4 Appellees’ Answ. Br. at 4-5.

5 The Chopkos did not participate in this appeal.

6 Appellants’ Op. Br. at 11.

7 Id. at 7-8 (citing 389 A.2d 1289, 1290-91 (Del. 1978)).

8 Appellants’ Reply Br. At 5-6.

9 Appellees’ Answ. Br. at 6 (citing Janaman v. New Castle Cty. Ba'. oan’justment, 364 A.2d 1241,
1242 (Del. Super. Ct. 1976), ajj‘"d, 379 A.2d 1118 (Del. 1977)); id. at 8.

3

Board’s decision regarding findings of fact and conclusions of law and
is free from legal error.”10 Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to support a
conclusion.ll If the Board’s decision is supported by substantial
evidence, this Court must sustain the Board’s decision even if this Court
would have decided the case differently if it had come before it in the
first instance.12 This Court does not sit as trier of fact, nor should this
Court replace its judgment for that of the Board.13 “The 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 In this
process, “the Court will consider the record in the light most favorable
to the prevailing party below.”15

8. The Board decision below was supported by substantial evidence and
thus will be affirmed. The Board applied the Kwik-Check test to
determine that the Chopkos’ Zoning board variance request should be
granted.'6 The Kwik-Check test requires that the Board consider four
factors in deciding whether to grant a zoning variance:

the nature of the zone in which the property lies, the character of
the immediate vicinity and the uses contained therein, whether, if
the restriction upon the applicant's property were removed, such
removal would seriously affect such neighboring property and uses;
whether, if the restriction is not removed, the restriction would
create unnecessary hardship or exceptional practical difficulty for
the owner in relation to his efforts to make normal improvements
in the character of that use of the property[.]17

9. The Record shows that the Board conducted a thorough
examination of the Kwik-Check test. As such, substantial evidence

 

10 Holowka v. New Castle Cty. Ba'. of Adjustment, 2003 WL 21001026, at *3 (Del. Super. Ct. Apr.

15, 2003) (citing 29 Del. C. § 10142).

:; Forrey v. Sussex Cly. Ba’. ofAdjustment, 2017 WL 2480754, at *3 (Del. Super. Ct. June 7, 2017).
Ia’.

13 Holowka, 2003 WL 21001026, at *4.

'4F0rrey, 2017 WL 2480754, at *3 (quoting Mellow v. Bd. of Aa'justment of New Castle Cly., 565

A.2d 947, 955 (Del. Super. Ct. 1988)).

'5 Holowka, 2003 WL 21001026, at *4 (quoting Gen. Motors Corp. v. Guy, No. C.A. 90A-JL-5,

1991 WL 190491, at *3 (Del. Super. Ct. Aug. 16, 1991)) (internal brackets omitted).

16 Appellants’ Op. Br. at 7-8 (citing Kwik-Check, 389 A.2d at 1291).

'7 Kwik-Check, 389 A.2d at 1291.

10.

11.

12.

exists that support the Board’s decision to grant the Chopkos’ variance
request,

First, the “nature of the zone where the property lies” and “the character
of the immediate vicinity” were both reviewed in detail at the Board
hearing.18 One of the Board members stated, “[t]he nature of the zone
in which the property is located _ is residential RS[]” and “[t]he
character of the immediate vicinity of the subject property and the uses
of the property within that immediate vicinity - is residential and the
Oakland’s community and is a very nice area.”19

Second, the Board also specifically asked Mr. Chopko about the effect
the garage construction would have on his neighbors’ properties.20
Also, given that three of the Chopkos’ neighbors supported the
construction of the garage, substantial evidence exists in the Record that
support the Board’s finding that “removal of the restriction on [the
Chopkos’] property would seriously affect the neighboring propert[ies]
and [their] uses.”21 The letters written by the three neighbors were
received by the Board and acknowledged during the hearing.22 One of
the Board members stated, “[granting the variance] would not be an
issue and would not adversely affect the character of the neighborhood
. . . [I]t would enhance the neighborhood.”23

Finally, the Board addressed the “unnecessary hardship or exceptional
practical difficulty” for the Chopkos if the Board did not grant the
variance request.24 One of the Board members stated, “the [Chopkos]
would have considerable difficulty if the variances were not granted.”25
Another Board member commented that the Chopkos’ “lot is oddly
shaped and preceded modern zoning requirements for setbacks.”26

 

18 App. of Appellants’ Op. Brief at 28-29.

19 ld. at 23.

20 Id. at 29.
211d. at 15-18.
22 Ia'. at 25.

23 Ia’. at 23.

24 Ia’. at 29.

25 Id. at 24.

26 Id

13.

14.

The role of this Court in review of a decision the Board is limited to
determining whether the Board’s decision is supported by substantial
evidence and is free from legal error. The Board’s decision to grant the
Chopkos’ variance request is supported by substantial evidence in the
Record. Further, the Court finds no legal error in the Board’s analysis
of the Kwik-Check test. The Board’s minutes reflect that the Board
considered all four factors of the sz`k-Check test.27 When it reviews a
Board decision on appeal, this Court will consider the record in the light
most favorable to the prevailing party below. The Court does not weigh
the evidence, determine questions of credibility, or make its own factual
findings.28 Therefore, this Court does not review the sufficiency of
evidence in the Board hearing.

This Court will not disturb the decision of the Board below absent a
showing of legal error or that the Board’s decision was unsupported by
substantial evidence, As there was no legal error and the findings below
were supported by substantial evidence in the record, the decision of
the Board is AFFIRMED.

IT IS SO ORDERED.

Richard R. Cooch

 

cc: Prothonotary
Board of Adjustment of the City of Newark, Delaware

 

27 Id. at 23-24.

28 Holowka, 2003 WL 21001026, at *3.

