IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

ROBERT COLBURN and
DOROTHY COLBURN,

Appellants,
C.A. No. N18A-04-007 CEB
V.

BOARD OF ADJUSTMENT OF
THE CITY OF NEW CASTLE, et al.,

ee ee a ae a ee ee ee ee

Appellees.

Submitted: August 6, 2019
Decided: October 8, 2019

MEMORANDUM OPINION

Petition for Writ of Certiorari and Appeal of Decision of Board of
Adjustment of the City of New Castle
REVERSED and REMANDED

Josiah Wolcott, Esquire, CONNOLLY GALLAGHER LLP, Attorney for
Appellants.

Daniel Losco, Esquire and Geena Khomenko George, Esquire, LOSCO &
MARCONI, P.A., Attorneys for Appellees.

BUTLER, J.
INTRODUCTION

This matter has come to the Court by way of a request for a Writ of Certiorari
and Appeal of a Decision of the Board of Adjustment of the City of New Castle.
The factual and procedural history is somewhat unusual, so I will save the details
here and say only that, after due consideration, the Court is not satisfied that the
matter before the Court is a justiciable controversy. Even if it were, the Board of
Adjustment’s decision upholding the Building Official’s unilateral opinion is bereft
of an articulated rationale that enables this Court to conduct any meaningful review.
The Court therefore has little choice but to reverse the decision of the Board of
Adjustment.

FACTUAL AND PROCEDURAL BACKGROUND

In the historic district of Old New Castle, one will inevitably come upon
Second Street, with quaint houses fronting both sides of the street. Two such houses
are at the center of this dispute: 153 and 155 Second Street, owned by the Colburns
and the Chaumps respectively.'! Standing at the back door of the Chaump or Colburn
houses would yield a view across a grassy field that extends to The Strand — Old
New Castle’s signature street along the Delaware River — and beyond to New

Jersey.”

 

| See D.I. 10 (Transcript of New Castle City Board of Adjustment meeting, at p. 1).
2 See DI. 9 in Chaump v. Board of Adjustment. C.A. N17A-08-001 CEB (record
and transcript of proceedings) Ex. 3, 10, 17, 20, 21; see also D.R.E. Rule

1
There are property lines that partition the expanse of green.’ At the point the
legally described backyards end, there is a 20-foot wide, unimproved right of way
running across both backyards.* Beyond the 20-foot right of way are 2 rectangular
strips of land, the same width as the homeowners’ lots, deeded to these same
homeowners, but referred to as “unimproved building lots.”? They are not part of
the same tax parcel as the residences, but to the naked eye, it all looks like a backyard
field and is routinely mowed and cared for by the homeowners.®

As homeowners will, the Chaumps at 155 Second Street decided they wanted
to build an addition to the back of their house.’ Because this is a historic district,
apparently changing anything about an exterior is no mean feat. It took seven trips
to the Historic Area Committee to get approval of the plans before the Building
Official would issue a permit.? Then, after construction had begun, the Chaumps

learned that the rear porch of the ongoing project would protrude into a 25-foot

 

202(d)(1)(C) (Court may take judicial notice of the records of other proceedings
before the Court).

3 See DI. 10 at p.4, 5.

4 See D.I. 9 in Chaump v. Board of Adjustment. C.A. N17A-08-001 CEB at Ex. 3,
5; see also D.I. 10, p. 3, 4.

DI. 15 at 1.

° Id; D.I. 10 at 5.

7 See D.I. 9 in Chaump v. Board of Adjustment. C.A. N17A-08-001 at p. 1-6.

8 DI. 9 in in Chaump v. Board of Adjustment. C.A. N17A-08-001 CEB, Chaump
hearing transcript p. 7.

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setback requirement at the back of the property.? The Chaumps stopped construction
and sought a variance from the zoning limitation before the New Castle City Board
of Adjustment.'®

The Board of Adjustment consists of three members: the City Solicitor, the
City Engineer and the Mayor.'! In the zoning variance proceeding, however, the
President of the city council sat in place of the Mayor, who was not part of the
proceeding.”

All sides were well aware that building out into the setback area would
interfere with the “viewscape” of the Delaware River for the Colburns next door, a
fact that did not set will with the Colburns. Much of the hearing and argument was
taken up with the extent of the visual interference, the precedent that would be set
generally and the settled expectations of others, like the Colburns, that had not
sought a variance.!? This, one supposes, it to be expected in such a hearing.

One issue raised during the zoning hearing would come back to haunt the later

proceedings. According to the written record of the zoning hearing, “Discussion

ensued with the Building Official Jeff Bergrstrom as to whether the 20-foot wide

 

° Mr. Chaump referred to receiving a building permit despite a zoning violation as
“obviously oversights that occurred.” Id. at p. 6.

10 Td.

11.1. 10, Colburn Transcript at p. 1.

12.1. 10, Chaump transcript at p. 1.

'3 Td.
“alley” is really a paper “street” — if so, the Property has two “front” yards and no
rear yards.”!* There being no setback requirement for a front yard facing a street,
the argument goes, the Chaumps could build all the way back to the rear property
line, unrestricted by any setback requirement.

Apparently, this was the first time the issue was raised and the City Solicitor,
sitting on the Board of Adjustment, said that determining whether the 20-foot right
of way was a street or an alley would require “significant research” and was beyond
the scope of the zoning variance sought in the application.'!° Ultimately, the
Chaumps’ requested zoning variance was turned down by the Board of Adjustment.

Alas, this is not an appeal of the zoning board’s decision. Rather, after the
unsuccessful run at a zoning variance, the Chaumps went back to the Building
Official and brought their best arguments why the Building Official was right during
the zoning hearing and the “alley” really was not really an alley at all, but a “street”
and the 25-foot setback requirement did not apply.'® Since the Chaumps had
“streets” at either end of the property, they could build to the lot line on either or
both sides. This unilateral effort by the Chaumps with the Building Official yielded
a better result than they got at the zoning hearing. The Building Official opined in

writing that the right of way behind the houses was a street and, therefore, the

 

41) J. 9 in Chaump v. Board of Adjustment. C.A. N17A-08-001, Ex. 23 at p. 4.
' Id.
'6 See D.I. 10 at p. 12.
Chaumps need not comply with the 25-foot setback requirement.'’ Next door, the
Colburns, thinking the dispute was over after successfully fighting off the zoning
variance before the Board, learned that the Chaumps had effectively won with the
Building Official what they had lost before the Board of Adjustment. Upset with
the conclusion of the Building Official, the Colburns appealed the decision to the
City’s Board of Adjustment — the same board that denied the Chaumps the zoning
variance.'®

As noted earlier, the Board of Adjustment for the City of New Castle consists
of the City Solicitor, the City Engineer and the Mayor." This time around, however,
the City Solicitor recused himself from ruling, announcing that he had counseled the
Building Official in making his decision.”° Thus, the Board for this hearing was two
members: the Mayor, who was present (and not the city council president) and the
City Engineer.”!

The Board took substantial testimony, from counsel, from the Colburns, as
well as several residents of the neighborhood.” In addition, various maps and

historical records concerning the property were introduced.”

 

'7 Td. at Ex. 3.
DJ. 10 at 2.
19 Td. at 1.
iG.

21 Tq.

22 Td.

23 Td. at Colburn transcript, D.I. 10 Ex. 5-9.
5
We might pause here to discuss the substance of the arguments for and against
calling the right of way a street versus an ally, but the merits matter little to the
Court’s resolution of this dispute and the Court will therefore demur.

What is apparent from the record is that at the conclusion of the testimony,
the now two member Board deliberated.** The City Engineer, believing the Building
Official had erred in concluding the right of way was a street, moved to overturn the
Building Official’s finding.*> In what can only be described as a prophetic comment,
the recused City Solicitor told the Engineer, “I think you need to state on the record
the specific reasons why.*° You said that Mr. Wolcott’s arguments, or at least some
were compelling, but I think you need to create on the Record what grounds to your
decision are.”??. The Engineer then proceeded to articulate his ratio decidendi,
pointing to specific evidence.”

The motion then turned to the Mayor and he explained his vote thus:
“Both sides present intelligent arguments. I believe, however, that we should accept

the opinion of the City Building Inspector, the City Building Official. I believe we

should call it a street.” The City Solicitor, rather than calling upon the Mayor to

 

24 See DI. 10.

25 D1, 10 at p. 21.
26 Id.

27 Td.

28 Id.

29 Id. at p. 22.
articulate his reasons for his decision as he had for the City Engineer, announced
that because the vote was a one-one tie, the motion to overturn the Building
Official’s conclusion did not pass.°° The decision of the Building Official thus
became the final word on the subject.*!

Finally, as if the record were not confusing enough already, at oral argument,
counsel for the Colburns advised the Court that since these hearings, the Chaumps
have acceded to the setback requirement coming out of the zoning hearing and the
home addition has been completed, within the 25 foot setback. According to the
Colburns, the issue may nonetheless raise its head again and, having filed their
appeal, they would like a Court ruling that the Building Official is in error in his
conclusion that the right of way is a street.*”

STANDARD OF REVIEW

The Court is bound to affirm administrative findings provided “substantial

evidence exists on the record to support a zoning board's findings of fact and to

correct any errors of law.”*? “Substantial evidence means such relevant evidence as

 

30 Td.

31 Id; see also Colburn, D.I. 10, Ex. 9 (formal Notice of Decision by the Board).

32 DJ. 15, Appellants Opening Brief at 20.

33 Mackes v. Bd. of Adjustment of Town of Fenwick Island, 2007 WL 441954 *3
(Del. Super. Ct. February 8, 2007)(emphasis added) citing Hellings v. City of Lewes
Bd. of Adjustment, 1999 WL 624114 (Del. July 19, 1999).

7
a reasonable mind might accept as adequate to support a conclusion.”** “Statutory
interpretation is ultimately the responsibility of the courts” and a reviewing court
will not defer to an agency’s interpretation as correct merely because it is rational or
not clearly erroneous.

“A decision will be reversed for irregularities of proceedings if the lower
tribunal failed to create an adequate record to review.°® “It is settled law that a quasi-
judicial tribunal must state the basis for its decision in order to allow judicial

review.”?!

LEGAL ANALYSIS
At the risk of repetition, this is not a controversy over whether the Chaumps
may build an addition to their home beyond the zoned setback requirement. They
have apparently accepted the zoning decision of the Board of Adjustment that they
must abide the setback requirements and have proceeded to complete their
renovation project. Indeed, the Chaumps are not even parties before the Court,

having abandoned their appeal of the zoning order.** Rather, the Colburns are

 

34 Mackes v. Board of Adjustment of Town of Fenwick Island, 2007 WL 441954 *3
citing Holowka v. New Castle County Bd. of Adjustment, 2003 WL 21001026 at *11
(Del. Super. Ct. Apr.15, 2003).

35 Pub. Water Supply Co. v. DiPasquale, 735 A.2d 378, 382-83 (Del. 1999).

36 Yondrasek v. Board of Adjustment of the City of Wilmington, 2017 WL at *1 citing
Christiana Town Ctr., LLC v. New Castle Cty., 865 A.2d 521 (Del. 2004).

37 Reise v. Board of Bldg. Appeals of City of Newark, 746 A.2d 271, 274 (Del Supr.
2000) citing Tate v. Miles, 503 A.2d 187 *Del. Supr. 1986).

38D) I. 26 in Chaump v. Bd of Adjustment, N17A-08-001.

8
pressing this appeal because they do not believe the Building Official’s decision that
the right of way behind their house is a street is correct and the Building Official’s
decision could cause further aggravation to them down the road. While it is certainly
true that the street designation could conceivably have some legal consequence at
some point in the future, the Colton’s have not articulated a specific or immediate
harm to them flowing from the Building Official’s ruling.

A. This dispute is not a justiciable controversy

One of the primary reasons cited by the Building Official in support of his
decision that the right of way was a street was that the unimproved building lots,
facing the right of way on the other side of the backyards of the Second Street homes,
needed to have a “street” to face. If the right of way were considered an “alley,”
homes built on the unimproved lots would be landlocked, an unacceptable
possibility.°° The City Engineer, in voting to overrule the Building Official, found
this to be a false dilemma: “there are other situations in New Castle, where houses
are accessed from an alley, and even if there weren’t, there would be relief from
those three landlocked parcel owners to come and seek relief such that they could

develop their lots.”*°

 

39 PI. 10 at 18.
40! 7. at 2).
Thus, the dispute before the Court concerns whether a right of way is a street
or an alley, but no party before the Court has anything more than a curiosity interest
in the outcome. There is no building application, zoning variance or permit request
in the balance. Indeed, there was none pending before the Building Official when
he pronounced that the right of way was a street save for the Chaumps’ request that
he ponder the matter. Delaware courts do not “entertain suits seeking an advisory
opinion or an adjudication of hypothetical questions ....”*' It is at least possible
that the Declaratory Judgment Act might have been available to resolve this dispute,
but even that is “not to be used as a means of eliciting advisory opinions from the
courts.”4

The residence addition in question is complete; the Chaumps have forsaken
their appeal. The only parties with an interest in this dispute have no direct
financial stake in the outcome. In the fullness of time, perhaps a builder will seek a

ruling on whether the unimproved lots may be improved and if so, what setback

requirement applies. That party will have an interest in this question.

 

41 Rollins International, Inc. v. International Hydronics Corp., 303 A.2d 660, 662

(Del. Supr. 1973).
42 Ackerman v. Stemerman, 201 A.2d 173, 175 (Del. Supr. 1964).
8D I. 17 at 18.

10
Even if the Court were to agree that the thin thread of harm alleged by the
Colburns was sufficient to create a justiciable controversy, there is a second reason
this record is ill suited for review by the Court.

B. ‘The Board of Adjustment failed to articulate its rationale

It is obvious that the issue before the Board of Adjustment was not free from
doubt, regardless of the ultimate decision. As a reviewing Court, my duty is to
consider the deliberative process of the Board and accord it preclusive effect, so long
as the Board demonstrates that it has in fact, deliberated and its decision is supported
by “substantial evidence.”“4 Even this deferential standard requires that the record
demonstrate that the Board show the basis on which it acted.” As the Supreme Court
said in Phelps Dodge Corp.,** “the administrative process will best be vindicated by
clarity in its exercise.””*”

The City Engineer recognized the necessity for clarity and he articulated his

rationale for reversing the decision of the Building Official.“* The Mayor did not do

so when he said simply that he thought he would affirm the decision of the Building

 

“4 Kreshtool v. Delmarva Power & Light Co., 310 A.2d 649, 652 (Del. Super. Ct.
1973).

45 Td. at 655 (“It must be evident from the decision and from the record below that
the Board’s decision was based on a consideration of the relevant factors.”); see also
Phelps Dodge Corp. v. NLRB, 313 U.S. 177, 196 — 197 (1941); Olney v. Cooch, 425
A.2d 610, 613 (Del. 1981).

46 Phelps Dodge Corp., 313 U.S. at 197.

7 Id.

‘8D. 10 at 21.

1]
Official. Neither the Mayor nor the City Solicitor provided an explanation, despite
taking substantial public testimony at the hearing.”

The City argues that the Mayor did “explain” his rationale by endorsing the
Building Official’s rationale that had been extolled in some detail at the hearing.~°
The City likens the Mayor’s ruling to a summary affirmance by an appellate court
for the “reasons cited by the Court below.”°! The Colburns counter that the Board
of Adjustment hearing was de novo and in any event, a prior decision by the Building
Official does not relieve the administrative agency from making its own findings.”

The City’s argument loses much of its attraction when we consider that unlike
many boards and agencies in administrative law, the Building Official did not
engage in a fact finding hearing with the usual attendant due process protections.
There is no evidence in the record that the Colburns even knew that the Chaumps
had approached the Building Official with their novel argument. Thus, there is a fair
question whether the Building Official’s decision ought to receive any persuasive
weight when brought to the Board of Adjustment. Rather than a thoughtful decision
based upon competing arguments, his is a unilateral agreement with the Chaumps

based upon the Chaumps own arguments. Certainly, fact-findings made after

 

” Id.
° DI. 16 at 5.
>" Td. at 15.

DI. 17 at 8, 9.
12
“notice and an opportunity to be heard” are entitled to at least some modicum of
respect on further review, the City cannot say that the Building Official’s findings
enjoy that status in this record.

Moreover, the Board of Adjustment did not sit in appellate review. Rather, it
took a whole new round of testimony concerning the history of the property,
complete with neighbors who remember it back when and historic maps of the area.
To dismiss the new testimony with a simple conclusion that “I believe we should
call it a street” rightly leaves the participants in the inquiry with the question
“Why?”°? The Mayor’s conclusion may serve well when he acts in his executive
capacity: a Mayor’s job is to execute. But when serving in a quasi-judicial capacity,
it is important that his rationale be articulated; the essence of the judicial function.
When our jurisprudence simply answers questions without explaining why, it
undermines our citizens’ confidence in the judicial or quasi-judicial process and such
conclusory opinions are subject to accusations of caprice and whimsy. We must be
particularly sensitive to this criticism when the deliberative body is not law-trained,
lives in the community affected, and serve in political office.

There is more to criticize about the procedural irregularities in this dispute.
Exactly what authority was the Building Official acting under when he unilaterally

opined that the right of way was a “street?” If his opinion is without legal authority,

 

3D J. 10 at 22.
13
what is the consequence when the Board of Adjustment nonetheless undertakes to
affirm it? When a board takes new testimony, is its review of the Building Official’s
findings de novo, or some appellate standard?

Any of these issues could potentially prove fatal to the Court’s review of this
appeal. Suffice it to say that the Board of Adjustment’s ruling cannot stand. Perhaps
there will come a time, after appropriate pleadings, that the Court will have to rule
upon the street vs. alley controversy behind Second Street in Old New Castle. The
Court can only hope that when that time comes, it will be upon an appropriate record
developed by real parties in interest and vetted before a Board with legal authority
to act that articulates its opinion with a reviewable rationale.

CONCLUSION

Based upon the foregoing, the decision of the New Castle City Board of
Adjustments is REVERSED AND REMANDED for further proceedings not
inconsistent with this opinion.

IT IS SO ORDERED.

Judge Charles E. Butla-—

14
