IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

MARK CHAUMP and ERIN
CHAUMP,

Plaintiffs,

V. C.A. No.: N19C-03-290 CEB

BUCK SIMPERS ARCHITECT +
ASSOCIATES, INC.,
A Delaware Corporation

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Defendant.

Submitted: December 20, 2019
Decided: April 14, 2020

On Defendant’s Motion to Dismiss
DENIED.

ORDER

This 14th day of April 2020, the Court makes the following findings in
denying the motion of Buck Simpers Architect + Associates, Inc., (“Defendant”) to
dismiss the Complaint.

1. Mark and Erin Chaump (“Plaintiffs”) hired Defendant to design and
construct renovations to their house on Second Street in Old New Castle. Among
the renovations was an extension on the back of the house, including a porch. The
Complaint alleges that Defendant represented that it would ensure that the design

and build would not interfere with existing zoning requirements.
a The zoning requirements turned out to be a major problem. The
problem was — and still is — that at the back of the Plaintiffs’ property there is a 20-
foot right of way owned by the City and beyond that an unimproved lot, also owned
by the Plaintiffs. The changing legal ownership is not readily visible to the naked
eye as the backyard appears to be an expanse extending to a road even further back.
The town, realizing mid-construction that the new porch encroached on a 25 foot
setback requirement for all rights of way, issued a stop work order. The Plaintiffs
felt they had no choice but to seek a zoning variance from the New Castle City Board
of Adjustment (“Board”) to permit the unintended encroachment into the right of
way. The Board, however, saw it differently and denied the requested variance. The
Plaintiffs were now stuck with a stop work order, a non-conforming porch and a
denied variance request.

3. The Plaintiffs appealed the Board’s denial of a zoning variance to the
Superior Court, but abandoned that appeal before the issue was fully briefed.
Instead, the Plaintiffs sought, and received, an opinion from the town’s “Building
Official” that the right of way in their backyard was actually a “street.” And since
it was a street, the argument went, it had no setback requirement at all. Therefore,
the Plaintiffs were free to build not only within 25 feet, but all the way out to the

property line abutting the “street.”
4. This turn of events, while helpful to the fate of the partly constructed —
and arguably non-complying — porch, did nothing to endear the Plaintiffs to their
next-door neighbors, the Colburns, who felt the new, deeper back porch would
interfere with their “viewscape” across the Strand and to the Delaware River. The
Colburns appealed the opinion of the Building Official to the town zoning Board —
the same Board that had previously denied the Plaintiffs a zoning variance to build
the porch. This time the Board sided with the Building Official that the right of way
was really a street and the encroaching porch was not encroaching after all, a happy
ending for all. Except the Colburns.

5. The Colburns took their complaint to this Court by appealing the ruling
of the Board. This Court reversed the holding of the Board, but the basis for the
reversal was not a conclusive finding whether the subject strip of land was a “street”
or a “right of way.” Rather, the reversal questioned the procedural process of how
the case got to the Courthouse at all.' So, ifthe parties in this matter were expecting
the Court to resolve the street/right of way controversy in the backyards of the houses
on Second Street in Old New Castle, they were surely disappointed.

6. Plaintiffs allege in their Complaint that the contract with Defendant

required Defendant to perform survey work and architectural planning that would

 

' Colburn v. Bd. Of Adjustment of the City of New Castle et al., C.A. No. N18A-04-
007, (Del. Super. October 8, 2019).

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produce a renovation that did not run afoul of the City’s zoning laws. In light of the
City’s stop work order, Plaintiffs were required to alter the architectural plans and
indeed, rework portions of the renovation that had already been built in order to meet
the setback requirement. Thus Plaintiffs allege they suffered financial damage as a
result of Defendant’s failures to properly identify and plan for the city’s right of way
in the Plaintiffs’ back yard.

a. In a motion to dismiss pursuant to Superior Court Civil Rule 12(b)(6)
the Court accepts all factual allegations as true in a light most favorable to the
plaintiff.? If it is possible for the plaintiff to recover under any reasonable set of
circumstances presented from the complaint, the motion must be denied.?

8. The Defendant’s motion argues that the Complaint lacks
“justiciability.” Because the street/alley controversy was not resolved by the Court
in the Colburn litigation, and the last word on the subject is that of the Building
Inspector’s opinion that it is a “street,” that finding is the final word on the subject
and there is therefore no controversy before the Court.

g. But the fact that the Colburn dispute lacked justiciability does not mean
this one does. The dispute here is a simple breach of contract action. The fact that

the alley/street dispute remains unresolved does not mean Defendant is immune

 

* Williams v. Newark Country Club, 2016 WL 6781221, at *1 (Del. Super.
November 2, 2016).
3 Spence v. Funk, 396 A.2d 967, 968 (Del. 1978)

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from liability for breach of contract. Plaintiffs’ claim rests on the fact that Defendant
did not account for the setback requirement; the town of New Castle interrupted the
project, which propelled the parties into litigation, and ultimately resulted in an
amended building scheme that complied with the 25-foot setback. The Defendant’s
design did not account for the setback and it was the Defendant’s design that gave
rise to the problems.

10. The question at the heart of this lawsuit is which party assumed the
responsibility for ensuring that the design and building plan did not interfere with
any setback requirements of the zoning laws. Plaintiffs have alleged it was the
Defendant’s duty to do so. It is not clear that Defendant considered the question
whether the right of way would require a setback requirement or not. Assuming
Plaintiffs can prove up a contractual duty on the part of Defendant, then the failure
to do so would arguably constitute a breach of the contract. Even if we accept the
somewhat dubious proposition that the Building Official’s opinion that the alley is a
“street” and not a “right of way,” is the final word on the subject, the fact is that the
Plaintiffs suffered financial damage getting their improvements completed in the
face of a controversy that, they argue, should never have happened.

11. Certainly other questions remain in addition to the issues of contract
terms and breach. But it is enough here to conclude that Defendant’s argument of

non-justiciability is not well taken. We can accept that the right of way will remain
controversial and still find that Defendant breached its contract with Plaintiffs.
Plaintiffs have alleged that they had to apply for a zoning variance, seek the opinion
of the Building Official and eventually consent to a design within the setback that
was not the original design, all at costs to the Plaintiffs that a jury may find are
recoverable from Defendant.

12. At this early stage of the dispute, the Court finds that discovery should
commence and Plaintiffs will be permitted to determine whether they can make their
case. Defendant’s motion to dismiss is therefore DENIED.

IT IS SO ORDERED.

   

EG

E, Butley

  

&

Judge Charles
