            IN THE SUPERIOR COURT OF THE STATE OF DELAWARE


DOVER LAND HOLDNGS, LLC,                     :
a Delaware limited liability company,        :     C.A. No: K16A-01-003 RBY
                                             :               K16A-01-004 RBY
              Petitioner,                    :     In and for Kent County
                                             :
      v.                                     :
                                             :
KENT COUNTY BOARD OF                         :
ADJUSTMENT,                                  :
                                             :
              Respondent.                    :


                              Submitted: June 16, 2016
                               Decided: July 15, 2016


                   Upon Consideration of Petitioner’s Appeal from
                       the Kent County Board of Adjustment
                                   AFFIRMED

                                        ORDER


Mark F. Dunkle, Esquire, Parkowski Guerke & Swayze, P.A., Dover, Delaware for
Petitioner.

Noel E. Primos, Esquire, Schmittinger & Rodriguez, P.A., Dover Delaware for
Respondent.




Young, J.
Dover Land Holdings, LLC v. Kent County Board of Adjustment
C.A. No. K16A-01-003 RBY & K16A-01-004 RBY
July 15, 2016

                                         SUMMARY
      Before the Court is the appeal of Petitioner Dover Land Holdings, LLC
("DLH") from a pair of decisions by Respondent Kent County Board of Adjustment
("the Board"). The decisions at issue denied Petitioner's applications for two
variances that would allow construction of oversized billboards on certain real
property. After careful consideration of the record and the submissions by the parties,
the decisions of the Board are AFFIRMED for the reasons set forth below.
                                   BACKGROUND
      On October 5, 2015, Petitioner filed Applications A-15-43 and A-15-44 (the
"Application(s)") with the Kent County Department of Planning Services ("the
Department") for variances from Section 205-266 of the Kent County Code ("the
Code"). Each Application corresponds to one of two contiguous parcels of land
owned by Petitioner and located between Bay Road and Delaware Route 1. If granted,
the Applications would allow Petitioner to place an oversized billboard on the
parcels. The Code provides for a maximum billboard height of 35 feet and size of 288
square feet. The variances sought would allow Petitioner to erect a billboard 65 feet
in height and 576 square feet in size.
      The Department issued a Staff Recommendation Report (the "Staff Report")
that recommended denial of Petitioner's variance Applications. The report stated that
Petitioner did not demonstrate an "exceptional practical difficulty" that would justify
the variances, and expressed additional concerns about maintaining "a consistent
visual aesthetic throughout Kent County." The Staff Report noted that although the
Board granted a prior variance application for a similarly sized billboard in 2002, the

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Dover Land Holdings, LLC v. Kent County Board of Adjustment
C.A. No. K16A-01-003 RBY & K16A-01-004 RBY
July 15, 2016

Board hearing that application specifically admonished that "this request was very
site specific and would not set a precedent." The Staff Report also describes five
similar variance requests for properties in the surrounding area. Four variance
requests for signs ranging in size from 96 to 313 square feet were approved, and one
for a sign of 600 square feet in size was denied.
      On November 19, 2015, the Board held a public hearing on the Applications.
Counsel for Petitioner made an initial presentation regarding the need for the
proposed billboard size. The property owner then testified to the difficulty in using
the property because of its irregular shape. Another witness for Petitioner testified to
the commercial desirability of the oversized billboard. The same witness also asserted
that a larger size was needed in order for the billboard to be read safely, given the
Code's minimum setback distance and the speed of traffic on Route 1. No witnesses
gave testimony and no evidence was offered in opposition to the Applications.
      Ultimately, the Board denied each Application by a vote of 5-1. The Board
explained that its decisions were based on the Department's recommendation and the
fact that no other billboards along stretches of Route 1 with speed limits of 65 miles
per hour in Kent County exceed 288 square feet.
      Petitioner appealed the Board's decision to this Court on January 20, 2016. In
its Opening Brief, Petitioner first argues that substantial record evidence satisfies the
"exceptional practical difficulty" test for granting variances. Additionally, Petitioner
asserts that the Board's contrary conclusion and denial of the Applications are not
rational and should be reversed.
      Petitioner's second argument is that the Board's decision is "an arbitrary

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Dover Land Holdings, LLC v. Kent County Board of Adjustment
C.A. No. K16A-01-003 RBY & K16A-01-004 RBY
July 15, 2016

conclusion not supported by competent evidence," and, therefore, legally defective.
       Third, Petitioner argues that the Board's chairperson tainted the proceedings
with preexisting bias against granting the variance, denying the Petitioner a fair
hearing.
       In its Answering Brief, the Board first argues that substantial record evidence
supports the conclusion that no exceptional practical difficulty existed. The Board
determined that it correctly applied the relevant legal standard in reaching this
conclusion. Additionally, the Board argues that Petitioner did not show that the denial
of their Applications was arbitrary. Finally, the Board rejects Petitioner's argument
that the Chairperson tainted the fairness of the proceeding.
       Petitioner subsequently submitted a Reply Brief raising additional arguments
in support of its original positions. Respondent replied with a Supplemental Brief,
reasserting that the Board's decision was legally sound and distinguishing the
additional case law included in Petitioner's Reply Brief.
                                  STANDARD OF REVIEW
       An appeal from an administrative board's final order to this Court is
restricted to a determination of whether the Board's decision is free from legal error
and whether the Board's finding of facts and conclusions of law are supported by
substantial evidence in the record.1 Substantial evidence is that which "a reasonable
mind might accept as adequate to support a conclusion."2 It is more then a scintilla,

       1
           29 Del. C. §10142(d); Avon Prods. v. Lamparski, 203 A.2d 559, 560 (Del. 1972).
       2
      Olney v. Cooch, 425 A.2d 610, 614 (Del. Super. 1981) (citing Consolo v. Fed. Mar.
Comm’n, 383 U.S. 607, 620 (1966)).

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Dover Land Holdings, LLC v. Kent County Board of Adjustment
C.A. No. K16A-01-003 RBY & K16A-01-004 RBY
July 15, 2016

but less than a preponderance of the evidence.3 It is a low standard to affirm, and a
high standard to overturn. If the record contains substantial evidence, then the Court
is prohibited from re-weighing the evidence or substituting its judgment for that of
the Board.4 Questions of law are reviewed de novo.5
                                           DISCUSSION
         Pursuant to 9 Del. C. § 4917(3), the Board may, under exceptional
circumstances, authorize a variance from the strict application of zoning ordinances
where such application would result in "peculiar and exceptional practical
difficulties" or cause "exceptional and undue hardship upon" the property owner.
Whether exceptional practical difficulty exists is determined by a weighing of the
so-called Kwik-Check factors.6 These factors include: (1) the nature of the zone where
the property is located; (2) the character and uses of the immediate vicinity; (3)
whether removal of the property restriction would seriously affect the neighboring
property; and (4) whether failure to remove 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 the use of the property which is a



         3
        Breeding v. Contractors-One-Inc., 549 A.2d 1102, 1104 (Del. 1988) (citing DiFilippo v.
Beck, 567 F. Supp. 110 (D. Del. 1983)).
         4
             Janaman v. New Castle County Bd. of Adjustment, 364 A.2d 1241, 42 (Del. Super.
1976).
         5
             Anchor Motor Freight v. Ciabattoni, 716 A.2d 154, 156 (Del. 1998).
         6
             Bd. of Adjustment v. Kwik-Check Realty, Inc., 389 A.2d 1289 (Del. 1978).

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Dover Land Holdings, LLC v. Kent County Board of Adjustment
C.A. No. K16A-01-003 RBY & K16A-01-004 RBY
July 15, 2016

permitted use under the applicable ordinances.7
        The Board considered the evidence presented at the hearing in light of the
applicable legal factors. During the vote at the close of the hearing, members of the
Board explained their reluctance to approve the Applications for billboard size
variances based on a number of factors. First, multiple members cited the extreme
size of the billboard as objectionable under the Code. The Board chairperson noted
that the Code dictates precise, adequate size limits for signs. In this way, the Code
guided the Staff Report and the Board's subsequent decision. Second, the Board did
not find that Petitioner had shown exceptional practical difficulty justifying the
variances. Finally, the Chairperson also stated that granting the Applications was not
a good choice for the community. The single Board member who voted against
denying the Applications opined that economic development opportunities could
justify granting the variances.
        Petitioner appeals the decisions of the Board denying the Applications for
variances. In reaching those decisions, the Board considered the zoned business
nature and the character of the relevant property, as well as the mixed business and
residential uses of that property and neighboring ones. The Board further
contemplated the impact that granting the variances would have on neighboring
property, including the inevitable construction of the oversized billboard on the plot.8

        7
            Id. at 1291.
        8
          In that regard, perhaps the Board had in mind a distortion of Ogden Nash’s words: “I
think that I shall never see a billboard lovely as a tree. If billboards are allowed to grow, no trees
will grace Kent’s fine tableau.”


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Dover Land Holdings, LLC v. Kent County Board of Adjustment
C.A. No. K16A-01-003 RBY & K16A-01-004 RBY
July 15, 2016

Finally, the Board concluded that no unnecessary hardship or exceptional practical
difficulty resulted from denial of the Applications, as Petitioner remains free to erect
a billboard sized to conform with the Code.
      The Board assessed the Applications, determining that substantial record
evidence supported denial of the variances requested, in part because no exceptional
practical difficulty exists preventing Petitioner from erecting billboards on the
relevant property for business purposes. The Board's decisions are supported by
substantial evidence, which prevents this Court from any re-weighing of evidence or
independent fact-finding on review. Consequently, the Board's decisions are neither
arbitrary nor legally defective. Thus, Petitioner's arguments to the contrary are
rejected. Because Petitioner's additional submissions merely reassert that the Board's
decisions were in error, they are rejected as well. The Board's decisions are
AFFIRMED.
                                   CONCLUSION
      For the foregoing reasons, the Board's decisions are AFFIRMED.


                                               /s/ Robert B. Young
                                                      Judge

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