                                   SUPERIOR COURT
                                         OF THE
                                 STATE OF DELAWARE

E. SCOTT BRADLEY                                                          1 The Circle, Suite 2
             JUDGE                                                   GEORGETOWN, DE 19947
                                    August 16, 2016


Richard E. Berl, Jr., Esquire                     James P. Sharp, Esquire
Berl & Fineberg, LLP                              Moore & Rutt, P.A.
Dartmouth Business Center, Suite 3                122 W. Market Street
34382 Carpenter’s Way                             P.O. Box 554
Lewes, DE 19958                                   Georgetown, DE 19947

      RE: Gannos, LLC, v. Sussex County Board of Adjustment, et. al.
          C. A. No. S15A-12-002 ESB

Dear Counsel:

      This is my decision on the appeal filed by Gannos, LLC, of the Sussex County

Board of Adjustment’s decision to grant a special use exception and variances for a

billboard to be located on a property owned by 19366 Coastal Highway, LLC

(“Applicant”). The Applicant is the owner of a parcel of property located on the

southbound side of Delaware Route 1 at 19366 Coastal Highway, Rehoboth Beach,

Delaware. The Applicant filed with the Sussex County Board of Adjustment an

application for a special use exception to erect a billboard on its property and for five

variances related to the billboard. Gannos is the owner of the Rehoboth Marketplace,

a shopping center which sits immediately west of the Applicant’s property. Gannos

is opposed to any modification to the Applicant’s existing billboard. After a hearing
on the application, the Board approved the application for a special use exception and

the five variances with the only change being to the square footage variance. Gannos

now appeals the Board’s decision to this Court.

                                 The Board Hearing

      The Board held a public hearing on the application on August 3, 2015. Present

at the hearing for the Applicant were David Hutt, Esquire, and Patricia and James

Derrick, members of the Applicant. Present for Gannos, LLC, were Richard Berl,

Esquire, and Gregory Fisher, the property manager for the shopping center.

      Hutt presented the application. Hutt told the Board that the Applicant wanted

to replace an old billboard. The Applicant’s property is zoned commercial and

currently houses a billboard, the Sea Shell Shop, a miniature golf course, and a

parking lot. The property is triangularly shaped and the topography is unusual in that

the Sea Shell Shop sits up high on the property while the billboard sits on one of the

lowest points of the property. A Sussex County pump station is located immediately

north of the property and sits on higher ground than where the billboard sits. The

existing billboard consists of telephone poles and plywood, and is approximately 500

square feet. The Applicant is seeking to replace the existing billboard with a steel

monopole structure.

      Thomas and Patricia Derrick purchased the property in 1993. At the time of

                                          2
the 1993 purchase, a billboard was already on the property and located in the same

area. In 1995, the Derrick’s filed an application to modify the billboard, which was

granted by the Board. In 2010, the property was transferred to the Applicant.

      During the hearing Hutt addressed both the standards for granting a variance

and a special use exception. The Applicant sought (1) a variance of 42 feet from the

side-yard setback requirement, (2) a variance of 89 feet from the separation distance

requirement from another billboard located across Route 1, (3) a variance from the

separation distance requirement from public lands, (4) a variance of six feet from the

height requirement, and (5) a variance of 276 feet per side from the maximum square

footage requirement. In his presentation for the special use exception, Hutt told the

Board that the proposed billboard would not substantially adversely affect the uses

of adjacent and neighboring properties because (1) there is an existing billboard on

the property in the same location, (2) the replacement of the existing billboard is

consistent with the surrounding highly-developed commercial area of Route 1, and

(3) the proposed billboard is consistent with other replacement billboards that have

been brought before and approved by the Board.

      Berl spoke on behalf of Gannos. Gannos submitted a letter of objection signed

by the owners or store managers of the tenants of the Rehoboth Marketplace. The

letter claims that the proposed billboard will block the view of its main pylon sign

                                          3
heading north on Route 1 and it will block the view of the shopping center from

Route 1. Gannos believes this will result in a loss of customers for the stores in the

shopping center.    Gannos stated that because many of the leases in the shopping

center expire this fall, some of its tenants may look for properties that are closer to

Route 1 and possess a greater roadside exposure. Gannos argues that the change in

the billboard would potentially affect the uses of adjacent properties in an adverse

manner. Gannos did acknowledge that everyone in the shopping center has gotten

used to the current billboard. Gregory Fisher affirmed that Berl’s statements to the

Board were correct. At the conclusion of the hearing the Board voted to table the

application until its meeting on October 5, 2015.

      The Board revisited the Application at its meeting on October 5, 2015, during

which time the Board members discussed the arguments raised by the parties at the

initial hearing. The Board discussed the height of the billboard in depth and found

no problem with the height. The Board discussed its concern about the size of the

variance for the additional square footage of the billboard. Ultimately, the Board

denied the extra square footage but allowed the Applicant to keep the proposed

billboard the same size as the existing one. The Board unanimously approved the

special use exception under Sussex County Code §115-210 and the five variances

under Sussex County Code §115-211(B), with the exception being a reduction in the

                                           4
square footage variance. The Board issued its written decision on November 17,

2015.

                                   STANDARD OF REVIEW

         The standard of review on appeals from the Board of Adjustment 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.1

Substantial evidence means such relevant evidence as a reasonable mind might accept

as adequate to support a conclusion.2            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.3 “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 “If the

Board’s decision is fairly debatable, there is not [an] abuse of discretion.”5 “In this



         1
             Janaman v. New Castle County Board of Adjustment, 364 A.2d 1241, 1242 (Del. Super.
1976).
         2
        Miller v. Board of Adjustment of Dewey Beach, 1994 WL 89022, *2 (Del. Super. Feb.
16, 1994).
         3
         Mellow v. Board of Adjustment of New Castle County, 565 A.2d 947, 954 (Del. Super.
1988), aff’d, 567 A.2d 422 (Del. 1989).
         4
             Mellow, 565 A.2d at 955.
         5
             Id. at 956.

                                                 5
process, ‘[t]he Court will consider the record in the light most favorable to the

prevailing party below.’”6 In the absence of substantial evidence, the Superior Court

may not remand the Board’s decision for further proceedings, but rather, may only

“reverse or affirm, wholly or partly, or may modify the decision brought up for

review.”7

                                       DISCUSSION

       Gannos argues that the Board (1) did not follow the proper procedure in

approving the special use exception, (2) erred in granting the special use exception,

and (3) erred in granting the height and square footage variances. The Board gets its

power from 9 Del.C. §6917. This section authorizes the Board to hear and grant

variance requests. 8 The Sussex County Council enacted §115-210 and §115-211 of

the Sussex County Code to implement 9 Del.C. §6917.

I. Proper Approval

       Gannos argues that the Board did not follow the proper procedure in approving

the special use exception. Gannos argues that when Mr. Mills made the motion to



       6
         Holowka v. New Castle County Board of Adjustment, 2003 WL 21001026, at *4 (Del.
Super. April 15, 2003) citing General Motors Corp. v. Guy, 1991 WL 190491, at *3 (Del. Super.
Aug. 16, 1991).
       7
           22 Del. C. § 328(c).
       8
           9 Del.C. § 6917(1).

                                               6
approve the five variances he failed to mention the special use exception. In making

the motion, Mr. Mills stated “[s]o the motion I would make is the variance of 42 feet

from the side yard setback requirement, a variance of 89 feet separation distance from

another billboard across Route 1, a variance for public lands, county pumping station

which exists within 300 feet of the sign, a variance of 6 feet to allow the sign to be

31 feet high, and a variance of 180 square feet per square footage.”9 Directly after

making the motion and prior to it being seconded by Mr. Workman, Mr. Mills

explained his reason for making a motion to approve the five variances and the

special use exception. Furthermore, after having the motion seconded, Mr. Callaway

states “Thank you Mr. Mills. Okay. So we got a motion by Mr. Mills and a second

by Mr. Workman that we approve case no. 11612, one, for the special use exception

with the requested variances except for the 180-foot instead of 276; is that correct,

Mr. Mills?”10 Mr. Mills answered affirmatively, making his intent to include the

special use exception in his motion clear.11

      The record does not support Gannos’ argument that the special use exception

was not properly approved. In its written decision, the Board stated it reviewed the


      9
          Transcript of Sussex County Council Meeting at 27 (October 5, 2015).
      10
           Id. at 30.
      11
           Id.

                                                 7
testimony and evidence presented at the public hearing and the public record and

granted the special use exception after a finding that the sign would not substantially

affect adversely the uses of neighboring and adjacent properties. The Board’s own

Rules dictate that it is the written decision that is controlling, not the oral vote. Rule

14.8 states “Following a decision by the Board on an appeal or application, a copy of

the written decision shall be sent to the appellant or applicant, or the agent or attorney

for the appellant or applicant. Any oral discussion of or vote upon the application by

the Board shall be deemed in the nature of preliminary deliberations to the rendering

of a final written decision and only the written decision, as adopted by a majority of

the Board, shall constitute a decision of the Board.”(Emphasis added). The Board’s

approval of the special use exception is recognized in its written decision.           As

established by its own rules, the Board’s written decision determined what was and

what was not passed. The record fully supports the finding that the Board’s approval

process was not arbitrary or unreasonable, and any oral discussion on the application

simply constituted preliminary discussions prior to the rendering of the final written

decision. Procedurally, the Board’s process was proper and free from legal error.

II. Substantial Evidence

      Gannos argues that the Board erred in approving the special use exception.

Gannos argues that the Applicant failed to prove that the new billboard would not

                                            8
substantially affect adversely the uses of neighboring and adjacent properties. In

support of the special use exception, the Applicant stated (1) that a billboard already

exists in the same location as the proposed billboard, (2) that the replacement

billboard is consistent with the surrounding area as it is a highly developed

commercial area, and (3) that the proposed billboard is consistent with other

replacement billboards that take aging and obsolete billboards and replace them with

safer and more aesthetically pleasing billboards.

      In order to grant a special use exception the Board must find that “such

exceptions will not substantially affect adversely the uses of adjacent and neighboring

property.”12 Specifically, §115-210 states that “[i]n order to provide for adjustments

in the relative location of uses and buildings, to promote the usefulness of these

regulations and to supply the necessary elasticity to their effective operation, special

use exceptions, limited as to locations described in this Article, and special yard and

height exceptions are permitted by the terms of these regulations. The following

buildings and uses are permitted as special exceptions if the Board finds that, in its

opinion, as a matter of fact, such exceptions will not substantially affect adversely the

uses of adjacent and neighboring property...”

      In its decision the Board noted (1) that there is already a billboard in the same


      12
           Sussex County Code §115-210.

                                            9
location and no evidence was presented that the existing billboard had any substantial

adverse effect on neighboring and adjacent properties, (2) the location is a well-

traveled commercial zone with other billboards located in the area, (3) the new

billboard would be a safety and aesthetic improvement from the current billboard, (4)

that the proposed sign will meet Department of Transportation requirements, and (5)

that the concerns presented by Gannos are general in nature and do not rise to the

level of substantial evidence. The Board noted that some members of the shopping

center had been tenants since 1989 and if an adverse effect from the billboard existed,

then there would be evidence of it. The Board also determined that the shopping

center’s sign is visible from the South and was not convinced that the proposed

billboard would have any effect of the views of the shopping center’s sign. On

discussing the view of the shopping center from the highway, Mr. Mills stated that

he believed that the application has “no visual impact on the shopping center in that

with certain – you know, before you even get to the property, you see the shopping

center. You see its signage and so forth. You have the existing – I don’t think it’s

going to block – in fact, it will probably block whatever shopping center – view to the

shopping center less by raising it.”13 Mr. Workman stated that he didn’t “think it’s




      13
           Transcript of Sussex County Council Meeting at 2 (October 5, 2015).

                                                 10
going to block any of those stores or anything else.” 14 The photographic evidence

submitted into the record supports their statements.

      The evidence in the record established that the current billboard has had no

discernable impact on the shopping center.         The evidence before the Board

demonstrates that the proposed billboard will be the same size as the one it is

replacing and in the same location. The only difference is that the proposed billboard

will be six feet taller. The evidence also establishes that the proposed billboard is

consistent with the surrounding area and would be a safety and aesthetic

improvement. While it was not their burden, no specific evidence of adverse affects

was presented by Gannos, presumably because none existed. It is unrealistic to

expect the Applicant to have to produce evidence of the hypothetical negative effects

the proposed billboard would have on the shopping center, as Gannos appears to have

suggested. For example, Gannos argues that the new billboard could have an impact

on which tenants renew their leases, but that information would be purely

hypothetical at this point in time and it may not have anything to do with the

proposed billboard. In its brief, Gannos argues that the new billboard is going to be

far more intrusive than the older one but there is no evidence in support of that

allegation.      In fact, the photographs submitted into evidence disproves Gannos’


      14
           Id. at 10.

                                           11
claims. Gannos acknowledged that its tenants have also become accustomed to the

current billboard so it is unclear how a modest increase in height would adversely

affect the shopping center. If anything, the increase in height will allow passing

motorists to see more of the shopping center. All of Gannos’ claims are theoretical

at best with no basis in fact. A review of the Board’s decision demonstrates that it is

based upon substantial evidence and free from legal error.

III. Granting Variances for Height and Square Footage

        Gannos argues that the Board erred in granting two of the five variances.

Specifically, Gannos argues that the Board erred in granting the height and square

footage variances because (1) the Applicant failed to demonstrate that the property

cannot be reasonably used without the variances, and (2) the hardship in complying

with the code is self-created.15 The Board may, in its discretion, grant:

        A variation in the yard requirements in any district so as to relieve
        practical difficulties or particular hardships in cases when and where, by
        reason of exceptional narrowness, shallowness or other unusual
        characteristics of size or shape of a specific piece of property at the time
        of the enactment of such regulation or restriction or by reason of
        exceptional topographical conditions or other extraordinary situation or
        condition of such piece of property or by reason of the use or
        development of property immediately adjacent thereto, the strict
        application of each regulation or restriction would result in peculiar and
        exceptional practical difficulties to or exceptional hardship upon the


        15
           The Court will not examine the other factors necessary for approval of a variance for
error as they are not being challenged.

                                                   12
      owner of such property. Such granting of variance shall comply, as
      nearly as possible, in every respect with the spirit, intent and purpose of
      this chapter, it being the purpose of this provision to authorize the
      granting of variation only for reasons of demonstrable and exceptional
      hardship as distinguished from variations sought by applicants for
      purposes or reasons of convenience, profit or caprice.16

Section 115-211(B) provides that the Board shall grant a variance only if five certain

findings are made.

              (1) That there are unique physical circumstances or conditions,
      including irregularity, narrowness or shallowness of lot size or shape, or
      exceptional topographical or other physical conditions peculiar to the
      particular property and that the unnecessary hardship is due to such
      conditions and not to circumstances or conditions generally created by
      the provisions of the Zoning Ordinance or code in the neighborhood or
      district in which the property is located.

             (2) That, because of such physical circumstances or conditions,
      there is no possibility that the property can be developed in strict
      conformity with the provisions of the Zoning Ordinance or code and that
      the authorization of a variance is therefore necessary to enable the
      reasonable use of the property.

             (3) That such unnecessary hardship has not been created by the
      appellant.

            (4) That the variance, if authorized, will not alter the essential
      character of the neighborhood or district in which the property is located
      and not substantially or permanently impair the appropriate use or
      development of adjacent property nor be detrimental to the public
      welfare.

               (5) That the variance, if authorized, will represent the minimum


      16
           Sussex County Code §115-211(A)(1).

                                                13
      variance that will afford relief and will represent the least modification
      possible of the regulation in issue.

A. Reasonable Use

      Gannos argues that the Board erred in granting the height and square footage

variances because the Applicant is able to reasonably use the property without them.

Gannos argues this is evidenced by the fact that the Applicant operates the Sea Shell

Shop, a miniature golf course, and a seasonal ice cream shop on its property. The

Board found that the evidence presented at the hearing indicates that the property is

unique in terms of shape and topography. The Property is triangular in shape and

uneven, as evidenced by the multi-level parking lot. The Board found that a billboard

currently sits on the property in an area that is much lower than other portions of the

property, and several feet lower than Route 1. Because of the location of the current

billboard, the Board found that the Applicant is unable to construct a billboard that

is the same height as other nearby billboards. The Board found that the unique shape

of the property limits the placement and options for the billboard. The Board found

that the current billboard is a wooden billboard that is in need of repair. Due to the

uniqueness of the property, the Board found that it cannot be developed in strict

conformity with the Sussex County Code. The Board found that the variances for

height, shape, and location are necessary to enable the reasonable use of the property



                                          14
as the variances will allow the new billboard to be constructed. The Board also found

that the variance request for the height of the billboard is consistent with the spirit of

the Sussex County Zoning Code. The Board was not convinced that the maximum

square footage variance was the minimum necessary to afford relief. Rather, the

Board found that a variance of 180 square feet per side would allow the Applicant to

build a billboard the same size as the one it was replacing. The Board also found that

the shopping center’s sign is quite visible from the South and the proposed billboard

should not have any effect on the views of the shopping center sign.

      I have concluded that the Board properly found that the Applicant could not

reasonably use the property without the variances. The Board properly considered

the shape and topography of the property, the history of the billboard, the placement

of the current billboard, the surrounding area, and the uniqueness of the lot in relation

to the Sussex County Code. Gannos relies on Village of Highway One17 for support,

but in that case there was no preexisting billboard. That is a big difference from the

current situation where the billboard already exists with its placement on the property

several feet below the road level. Another big difference from Village of Highway

One is that the applicant in that case was trying to go higher than the surrounding



      17
        The Village of Highway One v. Board of Adjustment of Sussex County, 2015 WL
799536 (Del. Super. Feb. 23, 2015).

                                            15
billboards and above the 25-foot height limit. The Applicant in this case is not trying

to get permission to go higher than other nearby billboards. It is merely trying to go

to the same height as the other billboards due to the fact its billboard sits at a lower

elevation than the surrounding area. Gannos has failed to show that the Board’s

decision was arbitrary or unreasonable. The Board thoroughly reviewed the evidence

and made its findings based upon that evidence. The Board’s findings are based upon

substantial evidence and free from legal error.

B. Self-Created Difficulty

       Gannos argues that any hardship faced by the Applicant in complying with the

Sussex County Code was self-created. Gannos argues that the Applicant’s need for

a height variance is due to its own decision to place the current billboard in a low spot

back in 1995 instead of interfering with existing improvements. Gannos also argues

that the Applicant could comply with the size requirement but chooses not to do so

for economic reasons. Gannos concedes that the portion of land where the billboard

sits is unsuitable for other uses.

       The Board found that the exceptional practical difficulty was not created by the

Applicant. The Board found that the Applicant did not (1) create the shape or

topography of the property, (2) place the billboard on neighboring lands, or (3) erect

the existing billboard on the property.     The Board also found that the existing

                                           16
billboard needs repair and the replacement billboard will be safer and more

aesthetically pleasing.

       I have concluded that the Board properly found that the hardship faced by the

Applicant was not self-created. The Board properly considered the history of the

billboard, the condition of the billboard, and the shape and topography of the property

in reaching its decision. In Verleysen, the Court stated a “self-imposed hardship

exists where a party “[comes] to the restricted subject property with a particular

unpermitted use in mind and mindful of the impossible area restrictions for that use.”

By contrast, a hardship is not self-imposed if it “result[s] from inherent and pre-

existing characteristics” of the property.”18          When the Derrick’s purchased the

property in 1993, a billboard already existed on the property. In 1995, the Derrick’s

replaced the billboard, but kept it in the same location. The Applicant now seeks to

replace the wooden billboard with a steel billboard, while keeping it in the same

location. What the Applicant is not doing is attempting to place a billboard on its

property for the first time. The billboard and its location pre-existed the arrival of the

Derrick’s and the Applicant as owners of the property. The Applicant’s desire to

continue to use the property as it existed when they purchased it is a problem that is

intrinsically related to the property itself, and not one created by the Applicant.


       18
            Board of Adjustment of Sussex County v. Verleysen, 36 A.3d 326, 332 (Del. 2012).

                                                17
Gannos has failed to show that the Board’s decision was arbitrary or unreasonable.

The Board thoroughly reviewed the evidence and made its findings based upon the

evidence. The Board’s findings are based upon substantial evidence and free from

legal error.

                                 CONCLUSION

       The Sussex County Board of Adjustment’s decision is AFFIRMED.

       IT IS SO ORDERED.

                                             Very truly yours,

                                             /s/ E. Scott Bradley

                                             E. Scott Bradley

ESB/sal
oc: Prothonotary




                                        18
