IN THE SUPREME COURT OF THE STATE OF DELAWARE

ELIZABETH SNYDER and SAVE
OUR DELAWARE BYWAYS, INC.,
Plaintiff in Error Below-

Appellant,

No. 5l9, 2015

Court Below: Superior Court
of the State of Delaware
v.

NEW CASTLE COUNTY, NEW

CASTLE COUNTY BOARD OF

ADJUSTMENT, NEW CASTLE

COUNTY DEPARTMENT OF

LAND USE, and MARY K.

CARPENTER TRUST,
Defendant in Error Below-
Appel1ees.

CA No. N14A-05-003

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Submitted: March 9, 2016
Decided: April 5, 2016

Before STRINE, Chief Justice; HOLLAND and VAUGHN, Justices.
0 R D E R

On this 5‘“ day of April 2016, it appears to the Court that:

(1) Appellants E1izabeth Snyder and Save Our Delaware Byways, Inc. appeal
from a Superior Courtjudgment affirming a decision of the New Castle County Board
of Adj ustment. The Board granted several variances for property owned by the Mary
K. Carpenter Trust (the "Trust"). Appe1lants assert two claims on appeal. First, they

claim that the Superior Court applied an erroneous standard of review. Second, they

claim that under the proper standard of review, the Board erred in granting the
variances.

(2) In December 20l3, the Trust filed an application requesting certain area
variances regarding a twenty acre parcel of land owned by the Trust at 206
Montchanin Road in Wilmington, Delaware. The variances were requested in
connection with a proposed development plan for the trust property, under which the
property would be split into fourteen individual lots, with a cluster subdivision
comprised of twelve lots-each ranging from one-third to one-half acres in size-for
a fifty-five or older community, and two larger lots encompassing the trust property’s
original structures.

(3) First, the Trust requested a variance ii'om a fifteen foot bufferyard
requirement between the trust property and Snyder’ s property, which adj oins the trust
property. The Trust requested that this requirement be reduced to five feet for the
first 150 feet of the common property line. This request was made because the plan
called for a proposed access road to be placed five feet from the common side line
with the Snyder property due to existing intersection geometry with Montchanin
Drive. Under the plan, the bufferyard width beyond 150 feet from Montchanin Drive
would expand from fifty to seventy-five feet. Second, the Trust requested a variance

from Section 40.20.225 of the New Castle County Development Code, which requires

that open space and protected resources be on separate parcels of land.' The Trust
requested this variance only regarding the two larger lots due to the impracticality of
splitting the lots further. In order to accommodate the spirit of the open space
requirement, the Trust would place the protected resources on the larger lots in a
conservation easement. In March 2014, the Board held a public hearing regarding the
requested variances.

(4) In April 2014, the Board issued its decision granting the variances. The
Board determined that the ten foot buffer yard variance would still leave the property
in compliance with the O.2 bufferyard opacity requirement along the common side
line with Snyder. Next, the Board discussed the remaining four variances, which
were technically distinct but substantively the same. The Board found that the
variances regarding open space and "protected resources" were superior to code
requirements because the two larger lots were acting as a transition between zoning
districts; and the mature resources on those lots would be protected by conservation
easements, which satisfied code policy that protected resources and open spaces

remain in the Eiture.

(5) On May 7, 20 1 4, the Appellants filed a petition for a writ of certiorari in the

Superior Court pursuant to 9 Del. C. § 13 l4(a). In its opinion affirming the Board, the

' New Castle Cty. C. § 40.20.255 ("Open space shall be separate parcels of land exclusive of streets
and residential lots.").

Superior Court declined to review the Board’s decision on its merits, and instead,
reviewed the decision "to determine whether the lower tribunal exceeded its
jurisdiction, committed errors of law, or proceeded irregularly."z This appeal
followed.

(6) Appellants contend that the Superior Court applied an erroneous standard
of review. They contend the correct standard is a review to determine whether the
Board’s findings are supported by substantial evidence. They contend that an
application of this standard of review should result in the Board’s decision being
reversed. Specifically, they contend that the variances sought would result in
development inconsistent with the trust property’s zoning and the scenic byway
designation, the variances sought on the application are inconsistent with the
character of the immediate vicinity, the variances will have a deleterious effect on
neighboring properties, and absent the requested variances, the Trust faces no
exceptional practical difficulty inherent in the land.

(7) The Appellants’ contention that the Superior Court applied an incorrect
standard of review is con'ect. "[The] scope of review on appeals from a Board of
Adjustment decision is limited to correction of errors of law and to determining

whether or not substantial evidence exists on the record to support the Board’s

2 Snyder v. New Castle Cty., 2015 WL 5020l55, at *6 (Del. Super. Aug. 24, 2015) (internal
quotation marks omitted).

findings of fact and conclusions of law.":‘ Substantial evidence has been defined as
"such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion."" "Substantial evidence is more than a scintilla but less than a
preponderance."$ The Trust concedes that the Superior Court did not apply the
correct standard of review but contends that the Superior Court’s legal error was
han'nless. In our review of the Board’s decision, we apply the standard of review

which we have just set forth.

(8) In Board of Acijustment of New Castle Coum'y v. Kwik-Check Realty, Inc.,
this Court established the following test to be applied by the Board in evaluating area
variance requests.° This Court explained that:

to determine if the difficulties presented by the owner are
practical rather than theoretical, and exceptional rather than
routine, the Board should take into consideration 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 which is a perrnitted use
under the use provisions of the ordinance.?

3 Jana)uan v. New Castle Cry. Bd. of Acijustnienl, 364 A.2d 1241 , 1242 (Del. 1976).
‘ Olney v. Cooch, 425 A.2d 610, 614 (1981) (intemal quotation marks omitted).

5 Id.

6 389 A.2d 1289, 1291 (Del. 1978).

7 Id.

(9) In this case, the Board explained the basis for its decision as follows:

The requested variances fall into three groupings: the access
road, the conservation easement, the allocation of protected
resources. Development of homes is permitted on this land
whether the zoning is S or SE. For compelling safety reasons
DelDOT has stated that the access road should be located
opposite of Montchan Drive, a determination reached regardless
of the size of the Project. Location of the access road, therefore,
is not a self-created hardship. The protected resources are
inherent in the land and the Applicant is attempting to ensure that
those resources are well~maintained by the use of the
conservation easement. There is little or no negative impact by
this Project on Mrs. Snyder’s narrow strip of land that is adjacent
to the subject property. The character of the community is
maintained by the proposed Project. The scenic byway is
protected by the unusual size of the 125 foot buffer filled with
plantings. This Board does not render a decision on the rezoning
question; that is an issue for the County Council. If County
Council decides against the rezoning request, the Proj ect here will
not be built.

The unique conformation of the property, the unique relationship
of the existing dwellings and outbuilding to one another and to
the varied topography and to the existing protected resources and
stream in relationship to the goals of protecting these valuable
resources while permitting a normal improvement by a reasonable
amount of residential development on the property given the
presence of necessary infrastructure to serve new development
and the unique geometry of the proposed signalized intersection
with Montchanin Drive (which make complying with the side
yard bufferyard opacity requirement problematic) constitute a
special condition and exceptional situation warranting some
flexibility in the Zoning Code. The requested variances will be
consistent with the character of the surrounding community. The
requested relief is modest. The proposed clustered subdivision
with a large percentage of open space and mature trees visible

from Montchanin Road, and natural resources protected by
conservation easement elsewhere on the site, indicate that the
requested relief will be unlikely to adversely affect residential
surrounding properties. If the zoning restriction upon the
Applicant’s property were removed, the removal would not
seriously affect neighboring properties. If the restrictions were
not removed, it would create an exceptional practical difficulty
The reasons to grant the rel ief requested stem from an exceptional
practical difficulty that is inherent in the land. The granting of the
variances would not substantially impair the intent or purpose of
the zoning regulations. "A literal interpretation of the zoning law
result in exceptional practical difficulties of ownership." Kwik-
Check Realty. Inc. v. Board of Adjustment of New Castle Cty.,
369 A.Zd 694, 698 (Del. Super. l977), aff’d, 389 A.2d 1289 (Del.
1978).

Granting the application conditionally, and removing the
restriction, will not seriously affect the neighboring properties.
If the variance was denied, and the restriction not removed, "the
restriction would create . . . exceptional practical difficulty for the
owner in relation to his/her efforts to make normal improvements
on the character of that use of the property which is pennitted use
under the use provision of the ordinance [involved]." Board of

Adjustment of New Castle Cty. V. Kwik-Check Realg. Inc., 389
A.Zd 1289, 1291 (Del. 1978). The granting of this variance will

not cause substantial detriment to the public good, nor will it
substantially impair the intent and purpose of the zoning code.“
(10) We have reviewed the Appellants’ contentions and find them to be
unpersuasive. Based upon our review of the record, we have concluded that the

Board’s careful analysis adequately considers the Kwik-Check f`actors, is supported

by substantial evidence, and is free of legal error.

3 Appellant’s Op. Br. App. at A640-4l.

NOW, TI-[EREFORE, IT lS ORDERED that the judgment of the Superior

Court is AFFIRMED.

BY THE COUR'I`:

 

