               IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

JOHN D. HARTIGAN,                   :
     Appellant,                     :
                                    :
      v.                            :     C.A. No.: S17A-08-003 RFS
                                    :
SUSSEX COUNTY BOARD OF              :
ADJUSTMENT, IMMANUEL                :
SHELTER, INC., and FAITH            :
UNITED METHODIST CHURCH, INC., :
      Appellees.                    :
___________________________________ :_________________________________________
                                    :
KENNETH BARTHOLOMEW and             :
JOHN R. ZAWISLAK,                   :
      Appellants,                   :
                                    :
      v.                            :     C.A. NO.: S17A-09-001 RFS
                                    :
SUSSEX COUNTY BOARD OF              :
ADJUSTMENT, IMMANUEL                :
SHELTER, INC., and FAITH            :
UNITED METHODIST CHURCH, INC., :
      Appellees.                    :


                               MEMORANDUM OPINION


                             Date Submitted: February 22, 2018
                              Date Decided: March 28, 2018


          Upon Appeal from the Decision of the Sussex County Board of Adjustment.
                                        Reversed.


       John D. Hartigan, 33060 East Light Drive, Lewes, Delaware 19956, pro se, Appellant

       Timothy G. Willard, Esq., Fuqua, Willard, Stevens & Schab, P.A., 26 The Circle, P.O.
Box 250, Georgetown, Delaware 19947, Attorney for Appellants Kenneth Bartholomew and
John R. Zawislak

      David C. Hutt, Esq. & R. Eric Hacker, Esq., Morris James Wilson Halbrook & Bayard,
107 W. Market Street, Georgetown, Delaware 19947, Attorneys for Appellee Immanuel Shelter
   James P. Sharp, Esq., Moore & Rutt, P.A., 122 W. Market Street, P.O. Box 554,
Georgetown, Delaware 19947, Attorney for Appellee Faith United Methodist Church, Inc.




   STOKES, J.
                                              I.       INTRODUCTION

         Presently before the Court are two appeals from a decision of the Sussex County Board of

Adjustment (“BOA” or “Board”).1 The first appeal was brought by John D. Hartigan. The second

was brought by Kenneth Bartholomew and John R. Zawislak (all three men referred to collectively

as “Appellants”). Appellants seek to reverse the BOA’s decision to grant Immanuel Shelter, Inc.

(“Immanuel Shelter”) a special use exception to operate a homeless shelter on a site zoned for

agricultural residential use (AR-1). The Court REVERSES the decision of the Board for the reasons

discussed below.

                              II.      FACTS AND PARTIES’ CONTENTIONS

         Immanuel Shelter is a non-profit organization that offers services to homeless individuals in

Sussex County. Immanuel Shelter now seeks to open a “small transitional living facility to help

individuals achieve the stability of permanent housing.”2 Therefore, it submitted an application for a

special use exception in order to operate the homeless shelter at 32490 Lewes-Georgetown Highway

in Lewes, Delaware, which is located near the Five Points Intersection. The property is zoned for

agricultural residential use; therefore, in order to operate a homeless shelter on the premises,

Immanuel Shelter sought a special use exception. Faith United Methodist Church is the record owner

of the property in question, but Immanuel Shelter, as the contract-purchaser, is the equitable owner.

         The BOA held a public hearing on May 15, 2017. At the hearing, Immanuel Shelter provided

general information on homelessness and gave an overview of the project. Glenn Piper, a certified

real estate appraiser with Landmark Associates, testified for Immanuel Shelter. He stated that the

proposed use would not negatively impact property values or use in the surrounding area.



1
  The appeals were not consolidated, but have run along parallel filing schedules. The facts and issues presented in both
appeals are identical. Therefore, the Court addresses both the Hartigan and Bartholomew appeals in this joint decision.
2
  Resp’t Immanuel Shelter’s Answering Br. 3.

                                                           1
Additionally, Janet Idema, President of the Board for Immanuel Shelter, testified that the shelter

would utilize a strict vetting process to ensure that only certain individuals be permitted to stay on the

premises. At that time, she believed that potential residents could be processed at Delaware State

Police Troop 7 to ensure that they had not been convicted of violent felonies and were not Tier Two

or Tier Three Sex Offenders. Ms. Idema additionally explained that individuals staying at the shelter

would be required to perform chores, seek work, and find stable housing. A person would only be

able to stay for a maximum of 90 days. Seven additional individuals spoke in support of the shelter.

       Seventeen individuals spoke out against the shelter. A large number of those speaking in

opposition were residents of the nearby Henlopen Landing and Lewes Crossing housing

developments. John Hartigan is a resident of the Henlopen Landing neighborhood, but he did not

speak at the public hearing. Kenneth Bartholomew is also a resident of Henlopen Landing. He spoke

in opposition to the shelter at the public hearing. John Zawislak is a resident of the Lewes Crossing

neighborhood. He did not testify at the hearing. The residents’ main concern was that the presence

of homeless individuals would lead to increased panhandling at the entrances of Henlopen Landing

and Lewes Crossing, which would deter prospective homebuyers and decrease property values.

Residents also expressed concerns for their safety as well as the possibility of increased traffic in the

area. In addition to concerns about the impact of increased traffic volume on traffic flow, residents

voiced their concern about the safety of people staying at the shelter who may be walking on the

congested roadway in order to get to the nearby DART bus stop.

       The Board voted by a three to one margin to approve the application. It found that the shelter

would not substantially adversely affect uses of nearby properties, thereby meeting the standard for

granting a special use exception. The BOA gave the following explanations in support of its finding.

According to the Board, property values are unlikely to decrease in response to opening the shelter.



                                                    2
Appraiser Glenn Piper testified to such, and members of the opposition did not present expert

testimony, reports, or studies from a qualified individual to counter his assertion. Additionally, the

BOA relied on Immanuel Shelter’s representations about the vetting process for potential residents to

find that sufficient safeguards would be in place to ensure the safety of those living in nearby

neighborhoods.3 Moreover, the Board relied on DelDOT’s opinion that the traffic impact from the

shelter would be negligible to find that the shelter would not have a substantial impact on traffic in

the area. As a result, the BOA granted the special use exception.

         In response, Appellants appealed the Board’s decision to this Court. The appeals raise the

same issue: whether the BOA used the proper statutory basis to grant the special use exception and

whether, pursuant to the applicable statute, the homeless shelter could be considered a “tourist

home.”4 The statutory bases for the Board’s action are Sussex County Code § 115-15 and § 115-23.

§ 115-15 states that “…permitted uses are listed for the various districts. Unless the contrary is clear

from the context of the lists or other regulations of this chapter, uses not specifically listed are

prohibited.”5 § 115-23 lists the permitted circumstances for a special use exception. One of the

permitted exceptions is for a “tourist home.”6 § 115-4B defines a tourist home as “a dwelling having

not more than six rental rooms for guests. No cooking facilities shall be permitted in individual guest

rooms.”7 The Sussex County Code also includes bed-and-breakfasts, rooming houses, boarding


3
  In later submissions to this Court, Immanuel Shelter explained that Troop 7 will not be able to screen potential
residents, as represented to the BOA. As an alternative, Immanuel Shelter plans to vet people by fingerprinting through
the State Bureau of Identification and internet searches. According to Immanuel Shelter, the material parts of the
vetting process will remain unchanged. Yet, pause arises given that there was an innocent, but material, misstatement
of the process to the BOA. While Immanuel Shelter plans to have fingerprinting run through the State Bureau of
Identification, this process takes considerable time. Consequently, the process will fall short of the representation made
to the BOA and ruled upon in its decision. This may directly impact the safety aspect of this case. However, given the
Court’s ruling, there is no need to consider this issue further.
4
  Sussex Cty. C. § 115-23 was not discussed in the Board’s decision. The Board noted that the legality of the special
use exception was questioned in paragraph 80 of its decision, but did not delve into the specifics of § 115-23 or the
definition of tourist home.
5
  Sussex Cty. C. § 115-15.
6
  Sussex Cty. C. § 115-23.
7
  Sussex Cty. C. § 115-4B.

                                                            3
houses, and lodging houses in the definition of tourist home. Thus, the central question presented by

the appeals is whether the shelter is a tourist home.

        However, Immanuel Shelter counters by claiming that this argument was waived by

Appellants’ failure to assert this point before the Board. Additionally, Immanuel Shelter argues that

the homeless shelter would fit into the definition of tourist home, and is, therefore, deserving of a

special use exception.

                                       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 a determination of whether substantial evidence exists in the record to

support the Board’s findings of fact and conclusions of law. 8 Substantial evidence means such

relevant evidence as a reasonable mind might accept as adequate to support a conclusion.9 If the

Board’s decision is supported by substantial evidence, a reviewing court must sustain the Board’s

decision even if such court would have decided the case differently if it had come before it in the first

instance.10 “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.”11 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.”12

                                                 IV.     ANALYSIS

        It is well settled law that “a reviewing court cannot consider issues and arguments not raised

before an administrative agency.”13 However, contrary to Immanuel Shelter’s assertions, the issue of


8
  Janaman v. New Castle County Bd. of Adjustment, 364 A.2d 1241, 1242 (Del. Super. Ct. 1976).
9
  Miller v. Bd. of Adjustment of Dewey Beach, 1994 WL 89022, at *2 (Del. Super. Ct. Feb. 16, 1994).
10
   Mellow v. Bd. of Adjustment of New Castle County, 565 A.2d 947, 954 (Del. Super Ct. 1988), aff’d, 567 A.2d 422
(Del. 1989).
11
   Id. at 556.
12
   22 Del. C. § 328(c).
13
   Beiser v. Bd. of Adjustment of Dewey Beach, 1991 WL 236966, at *4 (Del. Super. Ct. Oct. 25, 1991).

                                                         4
the homeless shelter’s legality under § 115-23 was presented to the BOA. In comments submitted to

the Board prior to the public hearing, both George Ladny and Larry Anzinger raised concerns about

the legality of granting a special use exception to a homeless shelter, specifically whether the statutory

power existed to take such action.14 Additionally, paragraph 80 of the Board’s decision notes that

Mr. Ladny testified at the hearing that he was unsure of the legal authority on which Immanuel

Shelter’s application was based.15 Thus, it is clear that the arguments based upon § 115-23 were

raised at the administrative level; therefore, the argument is not waived.

         Despite the relatively broad interpretation given to the term, the Court finds that it is simply

too far of a stretch to say that a homeless shelter is a tourist home. It is clear from the definition listed

in § 115-4B and the context of the other categories of tourist home that the Sussex County Code

contemplates those types of living arrangements where the resident is paying some form of rent in

order to temporarily stay at the premises. In fact, the statutory definition explicitly states that a tourist

home should not contain more than six rental rooms for guests.16

         Therefore, the concept of a homeless shelter does not fit into this characterization. The

residents of the shelter will not be required to pay rent in order to live at the shelter. This key

difference makes it so a homeless shelter is not akin to the other examples of a tourist home given in

the Sussex County Code. As a result, the shelter does not fall into one of the permitted categories

listed in § 115-23. Section 115-15 clearly states that uses not specifically listed are prohibited. Nor

can the use be clearly implied in context from the list of recognized uses.17 Thus, the homeless shelter

must be denied a special use exception at this time.



14
   Bartholomew Reply Br. AR1; AR2.
15
   Id. AR4.
16
   Sussex Cty. C. § 115-4B (emphasis added).
17
   This is consistent with the idea that standards are required and an administrative board like the BOA does not have
carte blanche authority. Kathryn L. Moore, The Lexington-Fayette Urban County Board of Adjustment: Fifty Years
Later, 100 Ky. L. J. 435, 465 (2012) (“In the years since the Dukeminier-Stapleton study, the Kentucky Court of

                                                            5
         As it stands, the only way for a homeless shelter to be established in an AR-1 zone would be

via amendment to the permitted uses for a special use exception or, potentially, for the shelter to have

a rental component in its operation.18

                                                V.       CONCLUSION

         For the foregoing reasons, the Court finds that the Board committed legal error in granting a

special use exception to Immanuel Shelter for the operation of a homeless shelter. Therefore, the

finding of the Board is REVERSED.

         IT IS SO ORDERED.




Appeals has repeatedly stated that ‘a zoning ordinance must contain standards to be used in determining whether to
permit or deny a conditional use, so as not to invest absolute and arbitrary power in the administrative agency.’”).
18
   See Stork v. Talbot Interfaith Shelter, Inc., 2016 WL 4978454 (Md. Ct. Spec. App. Sept. 15, 2016) (The Town
Council for Easton, Maryland passed an ordinance adding homeless shelters to the list of special use exceptions).

                                                           6
