                                  SUPERIOR COURT
                                         OF THE
                                STATE OF DELAWARE

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


                                    April 11, 2018


Mark F. Dunkle, Esquire                           Daniel F. McAllister, Esquire
Parkowski, Guerke & Swayze, P.A.                  Baird, Mandalas, Brockstedt, LLC
116 West Water Street                             6 South State Street
P.O. Box 598                                      Dover, DE 19901
Dover, DE 19903

Michael J. Hoffman, Esquire
Tarabicos Grosso, LLP
One Corporate Commons
100 W. Commons Blvd.
New Castle, DE 19720

      Re:    Nepa v. The Board of Adjustment of the City of Lewes, et al.,
             C.A. No: S17A-06-003 (ESB)

Dear Counsel:

      This is my decision on the appeal filed by Ernest M. and Deborah A. Nepa

(“the Nepas”) of the denial of their request for three area variances for their historic

home in the City of Lewes by the Lewes Board of Adjustment. The Nepas’ home

encroaches 4.8 feet into their sideyard setback. The Nepas want to make certain

additions to their home, which cannot be done without area variances from their

sideyard setback and a requirement that their house and garage be at least ten feet

apart. So, the Nepas filed an application for the necessary three variances. Area
variances are governed by the Delaware Supreme Court’s Kwik-Check decision. In

Kwik-Check, the Supreme Court stated:

              Such practical difficulty is present where the requested
       dimensional change is minimal and the harm to the applicant if the
       variance is denied will be greater than the probable effect on the
       neighboring properties if the variance is granted. Therefore, 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 permitted use under the
       use provisions of the ordinance. [citations omitted].1

       The Delaware Supreme Court, in subsequent decisions, has referred to the

exceptional practical difficulty test as a weighing analysis, stating that when

considering the four factors, the Board of Adjustment should weigh “the potential

harm to the neighboring properties by granting the variance against the potential harm

to the property owner by denying it.”2

       The Board denied the Nepas’ variance application, reasoning that (1) the

       1
         Board of Adjustment of New Castle County v. Kwik-Check Realty, Inc., 389 A.2d 1289,
1291 (Del. 1978). (“Kwik-Check”).
       2
         McLaughlin v. Board of Adjustment of New Castle County, 984 A.2d 1190, 1192-93
(Del. 2009); Accord Board of Adjustment of Sussex County v. Verleysen, 36 A.3d 326, 330 (Del.
2012). (“Verleysen”).

                                              2
Nepas’ Property was not unique, (2) the fact that the Nepas’ Property was

nonconforming could not alone justify the variances, and (3) the benefit to the Nepas

in granting the variances did not substantially outweigh the detriment to the

neighboring properties. I reverse the Board’s decision, concluding that the Board (1)

required a finding of “uniqueness” that is not required by Kwik-Check, (2) required

a more stringent weighing test than does Kwik-Check, (3) permitted a lesser

“detriment” to neighboring properties than does Kwik-Check, and (4) eliminated the

nonconforming nature of a property as being a reason for granting a variance, which

Kwik-Check does not do.

                                 BACKGROUND

      The Nepas are the owners of the real property located at 116 Dewey Avenue,

Lewes, Delaware (the “Property”). The Property is located within the R-4(H),

Residential Medium-Density (Historic) Zoning District. When the Nepas purchased

the Property, it was improved by a two and one-half story dwelling, a portion of

which was only one and one-half stories (the “House”), with attached enclosed

porches and a detached garage. The Property was legally non-conforming under the

Lewes Zoning Code (the “Zoning Code”) due to existing encroachments, which

varied from 4.6 feet to 4.8 feet within the sideyard setback. The Nepas purchased the

Property to renovate it and then re-sell it. The Nepas obtained Historic Preservation

                                          3
Committee approval and a building permit to renovate the House. The approved

renovations included rebuilding the House’s roof, siding, windows, and the porch, as

well as squaring the House so it would be level.

      During the renovation, the Nepas discovered damage to the House as a result

of puff beetles and fire. In February 2016, a rain storm caused water damage,

resulting in the back roof collapsing, and causing the Nepas to use chains to hold the

House in place.    Subsequently, the Nepas resumed construction on the House.

However, in addition to repairing the storm damage, the Nepas chose to enlarge the

House, which increased the Property’s dimensional non-conformities, and exceeded

the parameters of the building permit, without seeking permission or approval from

any authority.

      The Nepas converted a 1.5 story portion of the House into two stories, and

constructed a new addition on the back of the House, totaling approximately 521

square feet.     These additions extended the approximately 4.8 foot sideyard

encroachment rearward approximately 14.8 feet, and created a new encroachment of

approximately 4.3 feet in the required minimum ten-foot separation from the House’s

detached garage. On March 22, 2016, Robin Davis, Assistant Building Official,

conducted a site visit to review the status of construction and discovered that work

outside the scope of the permit was being performed. He immediately issued a Stop-

                                           4
Work Order.

      Eleven months after the Stop-Work Order was issued, on February 17, 2017,

the Nepas filed a request for three variances: (1) to verify and approve the

construction of new additions that expand an existing nonconforming structure; (2)

to verify and approve the construction of new additions that encroach approximately

4.8 feet into the required minimum eight-foot sideyard setback; and (3) to verify and

approve the construction of a new addition that encroaches approximately 4.3 feet

into the required minimum ten-foot separation from the nearest garage.

      The Nepas’ principal reason for justifying their variance request was that the

521 square foot addition was necessary so that they could install a first floor master

bedroom to permit “aging in place.”       The Board denied the Nepas’ variance

application, reasoning that (1) the Nepas’ Property was not unique, (2) the fact that

the Nepas’ Property was nonconforming could not alone justify the variances, and (3)

the benefit to the Nepas in granting the variances did not substantially outweigh the

detriment to their neighbors.

                                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




                                          5
exists in the record to support the Board’s findings of fact and conclusions of law.3

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

as adequate to support a conclusion.4            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. 5 “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.”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

                                        I. Variance History

         The General Assembly has granted municipalities and the three counties the



         3
             Janaman v. New Castle County Board of Adjustment, 364 A.2d 1241, 1242 (Del.Super.
1976).
         4
        Miller v. Board of Adjustment of Dewey Beach, 1994 WL 89022, *2 (Del. Super. Feb.
16, 1994).
         5
         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).
         6
             Mellow, 565 A.2d at 956.
         7
             22 Del. C. § 328(c).

                                                 6
authority to regulate zoning as well as variances to zoning requirements.8 As noted

in Board of Adjustment v. Verleysen (“Verleysen”),9 although the counties and

municipalities all have these powers, the extent of those powers differ. Of

significance here are a municipality’s powers, which are limited to those granted by

the legislature in Chapter 3 of Title 22, of the Delaware Code.10

       There are two basic kinds of variances: use variances and area variances.

       In the 1970s, the New Castle County Board of Adjustment was empowered to

grant variances

       ... where owing to special conditions or exceptional situations, a literal
       interpretation of the provisions of any zoning ordinance, code or
       regulation will result in Unnecessary hardship or Exceptional practical
       difficulties to the owner of property so that the spirit of the ordinance,
       code or regulation shall be observed and substantial justice done,
       provided such relief may be granted without substantial detriment to the
       public good and without substantially impairing the intent and purpose



       8
        22 Del. C. §§ 301, 321 and 327; 9 Del. C. § 2601 and § 1311-1313; 9 Del. C. § 4901
and §§4913-17; 9 Del. C. § 6902 and §§ 6913-6917.
       9
           36 A.3d 326, 329 (Del. 2012).
       10
            22 Del. C. § 321, which provides:

         The legislative body of cities or incorporated towns shall provide for the
       appointment of a board to be known as the board of adjustment and in the rules
       and regulations adopted pursuant to the authority of this chapter shall provide that
       the board may, in appropriate cases and subject to appropriate conditions and
       safeguards, make special exceptions to the terms of the ordinance in harmony with
       its general purpose and intent and in accordance with general or specific rules
       therein contained.

                                                   7
       of any zoning ordinance, code, regulation or map.11

       The Supreme Court, in Board of Adjustment of New Castle County v. Kwik-

Check Realty, Inc. (“Kwik-Check”),12 ruled that the nature of the variance determined

the standard to be applied in deciding whether to grant the requested variance. If the

requested variance is a use variance, then the applicable standard is the more stringent

one of unnecessary hardship. If the requested variance is an area variance, then the

applicable standard is the less onerous one of exceptional practical difficulties. The

standards differ because “a use variance changes the character of the zoned district

by permitting an otherwise prohibited use, whereas an area variance concerns only

the practical difficulty in using the particular property for a permitted use.”13

       The elements for the unnecessary hardship standard are as follows:

            1) the land cannot yield a reasonable return if used only for the

                  permitted use;

            2) the need for the variance is due to unique circumstances and not

                  general     conditions       in   the   neighborhood   which   reflect


       11
         The decision in Board of Adjustment of New Castle County v. Kwik-Check Realty, Inc.,
389 A.2d 1289, 1290-91 (Del. 1978) sets forth the statute which, at that time, was located at 9
Del. C. § 1352(a)(3). The current statute is located at 9 Del. C. § 1313(a)(3), and it remains
unchanged.
       12
            389 A.2d 1289 (Del. 1978).
       13
            Id. at 1291 (citations omitted).

                                                      8
                 unreasonableness of the zoning ordinance itself; and

            3) the use sought will not alter the essential character of the locality.14

       The elements of the exceptional practical difficulties standard are as follows:

            1) the nature of the zone in which the property is located,

            2) the character of the immediate vicinity,

            3) the uses in that vicinity,

            4) whether, if the restrictions were removed, would there be a

                 serious affect on neighborhood property and uses, and

            5) if the restriction(s) were not removed, would there be a hardship to the

                 owner to make normal improvements allowed for the use permitted in

                 the zoning regulations for that property.15

       Before 1985, the authority given municipalities to grant variances provided

that a Board of Adjustment may:

          Authorize upon appeal in specific cases such variance from the terms
       of the ordinance as will not be contrary to the public interest, where
       owing to special conditions a literal enforcement of the provisions of the
       ordinance will result in unnecessary hardship, and so that the spirit of
       the ordinance shall be observed and substantial justice done. (Emphasis

       14
         Baker v. Connell, 488 A.2d 1303, 1307 (Del. 1985); Rehoboth Art League, Inc. v.
Board of Adjustment of the Town of Henlopen Acres, 2009 WL 3069672, * 4 (Del. Super. Aug.
20, 2009), aff’d, 991 A.2d 1163 (Del. 2010); Johnson v. McWilliams, 1997 WL 817868, *2 (Del.
Super. Nov. 19, 1997).
       15
            Kwik-Check, 389 A.2d at 1291.

                                                9
       added.)16

Then, in 1985, 22 Del. C.§ 327 was amended to provide that the Board of Adjustment

of a municipality may:

          Authorize, in specific cases such variance from any zoning ordinance,
       code or regulation that will not be contrary to the public interest, where,
       owing to special conditions or exceptional situations, a literal
       interpretation of the provisions of any zoning ordinances, code, or
       regulation will result in unnecessary hardship or exceptional practical
       difficulties to the owner of property so that the spirit of the ordinance,
       code, or regulation shall be observed and substantial justice done,
       provided such relief may be granted without substantial detriment to the
       public good and without substantially impairing the intent and purpose
       of any zoning ordinance, code, regulation or map.17

       Thus, the General Assembly changed the statute granting power to municipal

Boards of Adjustments to render it identical to the statute examined in Kwik-Check.

Where statutes are similar, the case law interpreting one of the statutes applies to the

other.18 Consequently, a municipality’s Board of Adjustment must apply the standard

set forth in Kwik-Check when considering an area variance.19


       16
            22 Del. C. 1953, §327(a)(3).
       17
            22 Del. C. § 327(a)(3); 65 Del. Laws, Ch. 61, §1 (1985).
       18
         Cooch’s Bridge Civic Ass’n v. Pencader Corp., 254 A.2d 608, 609 n. 4 (Del. 1969);
Williams v. Board of Adjustment of City of Newark, 1993 WL 331060, *1 n. 1 (Del. Super. July
9, 1993); Coastal Resorts Properties, Inc. v. Board of Adjustment of City of Rehoboth Beach, 558
A.2d 1105, 1107 n. 2 (Del. Super. 1988).
       19
         Vondrasek v. Board of Adjustment of the City of Wilmington, 2017 WL 1735402, *3
(Del. Super. May 1, 2017).

                                                   10
                        II. The Lewes Variance Ordinance

      I now turn to the Lewes Zoning Code. In 2011, the City of Lewes amended its

Zoning Code. The provision regarding variances, §197-92, states:

      A.     Definition: relief from the strict application of the provisions of
             this chapter when, owing to special conditions or exceptional
             situations, a literal interpretation of this chapter will result in
             exceptional practical difficulties to the property owner.

      B.     Required findings. Pursuant to 22 Del. C. § 327(a)(3), the Board
             of Adjustment shall determine whether each variance application
             meets the following criteria:

             (1) The variance relates to a specific parcel of land, and the
             hardship is not shared generally by other properties in the same
             zoning district and vicinity.

             (2) The variance can be granted without substantial detriment to
             the public good.

             (3) The benefits from granting the variance would substantially
             outweigh any detriment.

             (4) Approval of the variance would not substantially impair the
             intent and purposes of the Comprehensive Plan or this chapter.

      C.     Additional considerations. The Board of Adjustment shall also
             consider the following factors in reaching its decision on each
             variance application:

             (1) Nature of the zone where the property lies.

             (2) Character of the immediate vicinity.

             (3) Whether the restrictions, if lifted, would affect neighboring

                                          11
             properties and uses.

             (4) Whether the restriction would tend to create a hardship on the owner
             in relation to normal improvements.

      D.     Additional Standards.

             (1) Use variances not authorized. These provisions governing
             variances shall not be construed to permit the Board of
             Adjustment, under the guise of a variance, to authorize a use of
             land not otherwise permitted in this chapter.

             (2) Nonconforming situations not grounds for variance.
             Nonconforming lots, structures, uses or signs shall not be
             considered grounds for granting variances.

      There are several matters to note. First, Subsection C largely codifies the Kwik-

Check factors. Second, parts of Subsections B and D impose additional requirements

on an applicant seeking an area variance in Lewes which render the test for granting

an area variance more burdensome than 22 Del. C. § 327(a)(3) allows.

      Section197-92 has four factors that are different than the Kwik-Check factors

and analysis. Specifically, §197-92 (1) requires a finding of “uniqueness” that is not

required by Kwik-Check, (2) requires a more stringent weighing test than does Kwik-

Check, (3) permits a lesser “detriment” to neighboring properties than does Kwik-

Check, and (4) eliminates the nonconforming nature of a property as being a reason

for granting a variance, which Kwik-Check does not do.




                                          12
                                   III. Kwik-Check

      In Kwik-Check, the Delaware Supreme Court said that under the exceptional

practical difficultly test “[a] practical difficulty is present where the requested

dimensional change is minimal and the harm to the applicant if the variance is denied

will be greater than the probable effect on neighboring properties if the variance is

granted.”20 The Supreme Court went on to list four factors that must be considered

when applying this test.

      1. The nature of the zone in which the property lies;

      2. The character of the immediate vicinity and the uses contained therein;

      3. Whether, if the restriction upon the applicant’s property were removed, such

removal would seriously affect such neighboring property and uses; and

      4. Whether, if the restriction is not removed, the restriction would create

hardship for the owner in relation to his efforts to make normal improvements in the

character of that use of the property which is permitted use under the use provisions

of the ordinance.21

      As I noted before, the Delaware Supreme Court has referred to the exceptional

practical difficulty test as a weighing analysis, stating that when considering the four


      20
           389 A.2d at 1291.
      21
           Id.

                                           13
factors, the Board of Adjustment should weigh the potential harm to the neighboring

properties by granting the variance against “the potential harm to the property owner

by denying it.”22

      Put another way, if the Board grants a variance, then it must have considered

the applicable factors and found that the benefit to the applicant was greater than the

harm to the neighboring properties.

                                       Uniqueness

      Section 197-92 (B)(1) states that the Board must determine whether “[t]he

variance relates to a specific parcel of land, and the hardship is not shared generally

by other properties in the same zoning district and vicinity.” This “uniqueness”

requirement seems to be drawn from the second prong of the “unnecessary hardship”

test, which is applicable to “use variances” and states “the need for the variance is due

to unique circumstances and not general conditions in the neighborhood which reflect

the unreasonableness of the zoning itself.”         Kwik-Check does not have this

“uniqueness” requirement for an area variance.

      The Board noted in its written decision that the Nepas’ Property “has a standard

lot, on a standard street, with a standard situation for this community; namely the



      22
        McLaughlin v. Board of Adjustment of New Castle County, 984 A.2d at 1192-93.
Accord Verleysen, 36 A.3d at 330.

                                           14
renovation of a nonconforming historic structure.” Requiring a property to be unique

in order to get a variance imposes a burden not found in Kwik-Check for no apparent

reason and would alone seemingly defeat the Nepas’ request for the three variances.

                                  The Weighing Analysis

      Section197-92 (B)(3) states that the Board must determine that “[t]he benefits

from granting the variance would substantially outweigh any detriment.” This is a

more stringent standard than what is required by Kwik-Check. In Kwik-Check, the

Delaware Supreme Court said that under the exceptional practical difficulty test “[a]

practical difficulty is present where the required dimensional change is minimal and

the harm to the applicant if the variance is denied will be greater than the probable

effect on neighboring properties if the variance is granted.”23 This seems to be a

simple preponderance standard. Section197-92(B)(3) requires the benefit of granting

the variance to the applicant to substantially outweigh any detriment to the applicant’s

neighbors, a much more stringent standard than required by Kwik-Check.

                               Permitting a Lesser Detriment

      Section 197-92 (C)(3) requires the Board to consider “[w]hether the

restrictions, if lifted, would affect neighboring properties and uses.” This is a lesser

“detriment” than required by Kwik-Check. In Kwik-Check, the Delaware Supreme


      23
           389 A.2d at 1291.

                                            15
Court stated that one of the factors was “whether, if the restriction upon the

applicant’s property were removed, such removal would seriously affect such

neighboring property and uses.24 ” Section197-92 (C)(3) uses “affect” where Kwik-

Check uses “seriously affect.” Thus, §197-92 (C)(3) requires the removal of the

zoning restriction to only “affect” neighboring properties while Kwik-Check requires

the removal of the zoning restriction to “seriously affect” neighboring properties.

Thus, the effect of this is to make it more difficult to get a variance than Kwik-Check

requires.

                                    Nonconforming Lots

       Section 197-92(D)(2) provides that nonconforming lots, structures, uses, or

signs shall not be considered grounds for granting a variance. Kwik-Check does not

exclude nonconforming structures from consideration. The Nepas’ House, through

no fault of their own, is a nonconforming structure because it was, in all likelihood,

built long before Lewes ever had a zoning code which required sideyard setbacks.

Having a nonconforming structure often gives an applicant a good reason for

obtaining a variance. The Nepas’ House is nonconforming because it was built in the

sideyard setback, which setback did not exist when the Nepas’ House was built. This

is, in all likelihood, the problem that prevents the Nepas from expanding their House.


       24
            Id. (emphasis added).

                                            16
The Nepas’ lot is a normal size. The Nepas’ House is a normal size. The Nepas’

proposed expansion to their House is modest. But for the fact that the Board is

precluded from considering the nonconforming nature of the Nepas’ House, the

Nepas could probably make a good argument for a variance. The Board said that it

“struggled to identify other bases of support for the variance” other than the fact that

the Nepas’ House is nonconforming. The Nepas’ did struggle and they struggled

largely because §197-92(D)(2) prohibits the Board from considering the one factor

– nonconformity – that was their best argument for getting a variance. Obviously,

this makes it difficult to expand their house and maintain the same look and

appearance. Kwik-Check does not eliminate nonconformity as a ground, but §197-92

(D)(2) does.

      All of these issues flow into the Board’s decision. The Board found that (1)

the Nepas’ Property was not unique, (2) the benefit to the Nepas in granting the

variances did not substantially outweigh the detriment to the neighboring properties,

and (3) the fact that the Nepas’ House is nonconforming alone is not sufficient to

support a request for a variance. Arguably, the Board of Adjustment gave this last

matter some consideration even though §197-92 prohibits it.

                              IV. The Board’s Decision

      I have excerpted, underlined and footnoted those portions of the Board’s

                                           17
decision showing where the Board applied §197-92 in violation of Kwik-Check.

            The Board concludes that the Applicants have not demonstrated
      an exceptional practical difficulty sufficient to warrant granting their
      request for variances to verify and approve the construction of additions
      as proposed during the March 21, 2017 and April 18, 2017 hearings on
      this matter and as identified in the Applicants’ submission and exhibits.

             The Board examined the nature of the zone in which the property
      lies – Residential Medium-Density (Historic) – including a review of
      similarly situated historic properties along Dewey Avenue and
      concludes that the Applicants’ request is not unique and would represent
      a deviation from the spirt [sic] and intent of the Zoning Code.25
      Although the Property includes a nonconforming structure, per Section
      197-92 (D)(2) of the Zoning Code, that fact alone is not sufficient to
      support a request for variances.26 The Board struggled to identify other
      bases of support for the variances.

            The Property has a standard lot, on a standard street, with a
      standard situation for this community; namely the renovation of a
      nonconforming historic structure.27

            Regarding the exceptional practical difficulty standard, the Board
      does not find that the Property and circumstances necessitating the
      variances are unique.28 Nor does the Board find that the variances can
      be granted without substantial detriment to the public good, and thus in
      weighing the impact, the Board cannot agree that the benefit in granting
      the variances substantially outweighs the detriment.29 Indeed, the
      variances sought are significant, representing considerable

      25
           Uniqueness.
      26
           Nonconforming structure.
      27
           Nonconforming structure.
      28
           Uniqueness.
      29
           Heightened weighing standard.

                                           18
      encroachments and expansions. Lastly, the Board finds that there is not
      sufficient evidence supporting a deviation from the requirements of the
      Zoning Code, which requirements have not been challenged by the
      Applicants.

             There is little doubt that this Board’s decision to deny the
      requested variances leaves the Applicants in a difficult position
      concerning returning the structure to its compliant status. This position,
      however, is entirely self-created. Had the Applicants applied for the
      subject variances before construction, the record would contain little
      evidence of a sufficient hardship compared to normal improvements,
      aside from a Code-based hurdle to pursuing a personal preference as to
      layout and features in the renovated dwelling. The Board does not find
      evidence within the record supporting a contention that the Applicants
      are presented with a hardship sufficient to prevent them from making
      normal improvements in the character of the use permitted under the
      Zoning Code and Comprehensive Plan.

              Given the above, the Board concludes that the Applicants have
      failed to satisfy the elements required under the exceptional practical
      difficulty standard and the requirements set forth in the City of Lewes
      Code for a variance.

      In summary, the Board (1) used a heightened exceptional practical difficulty

test by requiring the benefit to the Nepas in granting the variances to substantially

outweigh the detriment to the neighboring properties, (2) imposed a “uniqueness”

requirement not required by Kwik-Check, and (3) excluded nonconformity as a reason

for granting a variance, which Kwik-Check does not do.

      The last excerpted portion of the Board’s decision, where the Board states “that

the Applicants have failed to satisfy the elements required under the exceptional



                                         19
practical difficulty standard and the requirements set forth in the City of Lewes Code

for a variance,” make it clear that the Board imposed conditions on the Nepas’

variance application that are not part of the Kwik-Check requirements.

       The Board argues that § 197-92 does not impose a more stringent standard than

Kwik-Check provides. Instead, the Board argues that additional requirements are

allowed under the Kwik-Check standard. I have concluded that it is clear that the

Board imposed a more burdensome standard than the Kwik-Check standard. It treats

an area variance more like a use variance.

       The more stringent standard is not allowed unless there is statutory authority

granting such, as the municipality must conform with standards established by the

General Assembly.30 The Board argues that such authority appears in 22 Del. C. §

307. This statute provides:

       Conflict with other laws.

           Wherever the regulations made under authority of this chapter
       require a greater width or size of yards or courts, or a lower height of
       building or less number of stories, or a greater percentage of lot to be
       left unoccupied, or impose other higher standards than are required in
       any other statute or local ordinance or regulation, the regulations made


       30
          Verleysen, 36 A.3d at 330-31. See New Castle County Council v. BC Development
Associates, 567 A.2d 1271, 1275-76 (Del. 1989) (delegated power must be exercised in
accordance with the delegation); County Council of Sussex County v. Green, 516 A.2d 480, 481
(Del. 1986) (with regard to rezoning issues, County Council must conform with standards
established by the General Assembly) .

                                              20
       under authority of this chapter shall govern. Whenever any other statute,
       local ordinance or regulation requires a greater width or size of yards or
       courts, or a lower height of building or a less number of stories, or a
       greater percentage of lot to be left unoccupied, or imposed other higher
       standards than are required by the regulations made under authority of
       this state, such statute, local ordinance or regulation shall govern.
       (Emphasis added.)

       This statute requires that the more stringent law pertaining to a certain parcel’s

use be applied. For example, a more lenient municipal law cannot preempt the State’s

Wetland’s Act.31 Two Superior Court decisions have interpreted this provision to

mean that a municipality may develop its own standard for granting an area variance

and if that standard is more stringent than Kwik-Check, then the municipalities’

regulations govern: Hellings v. City of Lewes Board of Adjustment32 and Dale v. Town

of Elsmere.33

       The problem with these decisions, however, is that they did not examine the

limiting language of the statute qualifying that the regulations had to be made under

authority of Chapter 3 of Title 22, of the Delaware Code. As examined above, a

municipal zoning board is authorized only to impose a standard for granting an area



       31
         Route 26 Land Development Ass’n v. State, Natural Resources and Environmental
Control, 1989 WL 5168, *4 (Del. Super. Jan. 12, 1989).
       32
         Hellings v. City of Lewes Board of Adjustment, 1998 WL 960710 (Del. Super. Dec. 31,
1998), rev’d on other grounds, 734 A.2d 641, 1999 WL 624114 (Del. 1999) (Table).
       33
            Dale v. Town of Elsmere, 1988 WL 40018 (Del. Super. Apr. 20, 1988).

                                                21
variance which contains the Kwik-Check factors. While case law supports the

conclusion that the General Assembly “has expressed its intention that regulation and

planning of the land use in incorporated municipalities be left as far as is possible to

local government,”34 the municipality’s participation in zoning matters must conform

with standards established by the General Assembly.35 Thus, the Code provision at

issue here, which imposes a more stringent standard, is ultra vires and cannot be

applied.

       Finally, only the offending portions of § 197-92 need be stricken pursuant to

the severability provision of the Code.36 Since Subsection C largely codifies the

Kwik-Check factors, that portion of the Code may stand to the extent it complies with

Kwik-Check.


       34
         Scarborough v. Mayor and Council of the Town of Cheswold, 303 A.2d 701, 707 (Del.
Ch. 1973). Accord Richardson v. Board of Adjustment of New Castle County, 1989 WL 112527
(Del. Super. Sept. 25, 1989), aff’d, 577 A.2d 751 (Del. 1990).
       35
            See County Council of Sussex County v. Green, 516 A.2d at 481.
       36
            In § 197-17, it is provided:

       Severability.

       A. The Mayor and City Council hereby declares that the sections, paragraphs,
       sentences, clauses and phrases of this chapter can be separated from one another.

       B. Should a court decide that any section or provision of this chapter is
       unconstitutional or invalid, such decision shall not affect the validity of this
       chapter as a whole or any part other that [sic] the part judged unconstitutional or
       invalid.

                                                   22
                                CONCLUSION

      The City of Lewes Board of Adjustment’s decision denying the application for

three area variances by Ernest M. and Debra A. Nepa is REVERSED.

      IT IS SO ORDERED.

                                     Very truly yours,

                                     /s/ E. Scott Bradley

                                     E. Scott Bradley

ESB/sal
oc: Prothonotary




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