IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DIANE AND ROBERT
VONDRASEK,

Appellants,

v. C.A. No. Nl 6A-09-007 CEB
BOARD OF ADJUSTMENT OF
THE CITY OF WILMINGTON
AND SAM ROSAURI

D/B/A ROSAURI BUILDERS &
REMODELERS INC.,

Appellees.

Submitted: January 30, 2017
Decided: May l, 2017

.QM
Upon Consideration Oprpealfrom the

Board of Adjustment for the City of Wilmington
AFFIRMED

This lst day of May, 2017, the Court is asked here to review a decision of
the Wilmington Zoning Board of Adjustment (the “Board”) that approved a Zoning
variance for a homeowner to build a second story addition over its previously
approved garage. We will affirm the decision of the Board with the following

explanation.

Factual Background

There are 2 adjoining row houses located at 1817 and 1819 Delaware Ave in
the City of Wilmington. These houses are about 100 years old. From the record, it
appears that they were substantially renovated in approximately 1995 because in
that year, a large garage was built behind the two houses to accommodate vehicles
parking at both properties. That garage construction required a zoning variance in
the setback requirement in that neighborhood. The zoned setback is 15 feet. As a
result of the zoning variance, the garage was permitted to come within 7 feet of the
rear property line. That variance was granted before the incumbent owners
purchased the property. The garage features a roof that peaks at the center, as is
common for duplex style houses in the city.

The homeowners of 1817 Delaware Avenue sought to add a second floor
room over the garage on their side of the property. They hired a contractor,
Rosario Builders, who presented their request for the zoning variance to the City.
They also solicited comment from the president of the local homeowner’s
association, who came to the hearing in support of the petition. The homeowners
also produced 2 neighbors to speak in support of the petition.

As noted, there is already an existing variance in place for the single story
garage. The variance sought here was only to add a second floor on the same

footprint as the first floor garage that was previously approved.

The only opposition to the requested variance came from the adjoining
property owner at 1819 Delaware Avenue, which shares the garage structure with
1817. These neighbors came to the hearing, with counsel, to protest that the
proposed structure was inappropriate for the neighborhood, there was a possibility
of snow or ice build-up where the second story structure at 1817 met the roof of
the garage structure at 1819. These homeowners also protested that some of the
plans suggested the second floor addition at 1817 would alter or move some of the
structural supports on the 1819 side of the garage. Finally, they questioned
whether a proper engineering study had been done to ensure that the existing
garage would support a second floor above it.

After hearing from all parties and the neighbors as noted above, the Board
voted 2-1 to grant the variance as requested. The owners of 1819 Delaware
Avenue have appealed that decision by seeking a writ of certiorari.

Standard of Review

The record reviewable by the Superior Court on a common law writ of
certiorari consists only of the complaint initiating the proceeding, any written
answer or response, and the docket entries.l The Court is limited to a consideration

of the record to determine whether the lower tribunal exceeded its jurisdiction,

 

'See Maddrey v. Justz'ce ofPeace Court 13, 956 A.2d 1204, 1216 (Del. 2008).

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committed errors of law, or proceeded irregularly.2 A decision will be reversed for
an error of law committed by the lower tribunal when the record affirmatively
shows that the lower tribunal has “proceeded illegally or manifestly contrary to

”3 A decision will be reversed for irregularities of proceedings if the lower

law.
tribunal failed to create an adequate record to review.4

Appellant’s Failure to Name the Landowner is Fatal to this Appeal

After Appellants filed their opening brief in this Court, the Board filed an
answering brief attacking Appellants’ failure to name the homeowner as a party.
The Board sought dismissal of the appeal on grounds that this constituted a fatal
error. In reply, Appellants argued that they named the petitioner in the zoning
proceeding below (the contractor for the homeowner), the contractor was the
homeowner’s agent, the Board did not move to dismiss the writ and, if the Court
was unpersuaded by those arguments, it should grant Appellants leave to amend

the appeal, add the homeowners and rule that the amendment “relates back” under

Superior Court Civil Rule 15.

 

21a at *1213.
31d.

4 Chrz'sl‘iana T own Ctr., LLC v. New Castle Cty., 865 A.2d 521 (Del. 2004) (internal citations
omitted).

In DiFebo v. Board of Adjustment of New Castle Counly,5 a neighbor,
dissatisfied with a ruling of the County Board of Adjustment, sought certiorari
review in Superior Court. Appellant’s writ named the Board of Adjustment and
the contractor that presented the case for approval, but not the landowner the
contractor represented. That is precisely what happened here. The landowner is an
indispensible party to a zoning dispute.6

In Difebo, the appellant sought to amend her pleadings to add the landowner.
Here, the Appellants have not done so formally, although they do tell us that they
sent copies of their appeal briefs to the landowners at the same time they filed their
reply briefs in this court.

ln Difebo, the trial court held that the amendment must be made within the
same 30 days as the statute of limitations for filing for the writ. The Delaware
Supreme Court overruled the trial court to this extent: it held that an amendment to
the pleadings could be made pursuant to Rule 4(j) up to 120 days after the appeal
was perfected, but only if the requirements of Rule 15(c) were met. In this case,
the appeal was perfected on September 19, 2016, so under the strictures of Rules 4
and 15, an amended pleading would have to be filed on or before January 19, 2017.

Even today, there is no amended pleading or motion to amend a pleading, and

 

5 132 A.3d 1154 (Del. 2016).

6 See, e.g., CCS lnvestors, LLC v. Brown, 977 A.2d 301, 322 (Del. 2009); Hackett v. Board of
Adjustment of Rehoboth Beach, 794 A.2d 596 (Del. 2002).

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there certainly was no such pleading filed within the 120 days required under Rule
4(j).

Most importantly, in Difebo, the Delaware Supreme Court took on
Appellants’ central argument Rule 15(c)(3) permits relation back of an amended
complaint if the party to be added “knew or should have known that, but for a
mistake concerning the identity of the proper party, the action would have been
brought against [them].” Appellants argue here, as did appellants in Difebo, that
“appellants not naming the owner should be considered an error and not a
deliberate strategy.”7 The Difebo Court said:

The petitioner knew who owned the two properties, having been a
neighbor of the property owners for over fifteen years. And the only
excuse for not naming them is that her attorney did not research who
the owners of the properties were and assumed that the property
owners' engineer, Ramesh Batta_named as the applicant in the
Board's Application for Public Hearing and the Board's Notice of
Decision_was somehow also the owner of the properties despite her
client knowing otherwise and despite the fact that the Application for
Public Hearing clearly states that Batta was the applicant and the
Pavercls and Osbornes were the legal owners That is not the sort of
mistake that supports relation back under Delaware's Rule 15(c)(3).8

So, even if 120 days had not elapsed since the filing of the writ of certiorari,

and even if the Appellants had filed or attempted to file an amended appeal naming

 

7 Appellants’ Reply Br. at 5, citing Brown v. Cily of Wilmington Zonz'ng Ba'. Oan'justment,
2007 WL 1828261 at *10 (Del. Super. June 25, 2007).

8 Difebo, 132 A.3d 311158(1)@1.2016).

the property owners as respondents in the appeal, Appellants would still be out of
Court because the “mistake” of not naming the owner was not a mistake
recognized under Rule 15 in Delaware. The controlling precedent set forth in
Difebo leaves the Court with no choice but to dismiss the appeal.9

Given our holding that the appeal must be dismissed, we would do well
enough to leave the rest alone. But the Court appreciates that a procedural default
with such dispositive consequences for the Appellant is at least unsettling,lo the
Court will add the following findings. While it is probably small solace to
Appellant, the Court is certain that even if we had reached the merits of this
petition, it would have been denied.

Appellant Failed to Pass the Exceptional Practical Difficulty Analysis

The parties are in agreement that the analytical framework for disposition of

the merits of this appeal is provided by the Delaware Supreme Court’s decision in

 

9 While it is surprising that neither party cited the Difebo case to the Court, Difebo is not the only
case holding that failure to name the landowner is an “unamendable defect” under Rule 15. See,
e.g., Hackett, supra, 794 A.2d at 598; Sussex Medical Investors, L.P. v. Delaware Health
Resources Boara', 1997 WL 524065 (Del. Super. Apr. 8, 1997).

10 The Court is acutely aware of the bias favoring decision of issues before it on their merits (see,
e.g., Hackett 794 A.2d at 598) and embraces the Delaware Supreme Court’s decision in Drejka
and its progeny. See, e.g., Drejka v. Hitchens Tire Service Inc., 5 A.3d 1221 (Del. 2010);
Christian v. Counseling Resource Associates, Inc., 60 A.3d 1083 (Del. 2013); Hill v. DuShuttle,
58 A.3d 403 (Del. 2013); Adams v. Aidoo, 58 A.3d 410 (Del. 2013); Keener v. lsken, 58 A.3d
407 (Del. 2013)(where plaintiff’ s claims were dismissed without being heard on the merits, the
court considered the difficulty in balancing the strong policy in favor of deciding cases on the
merits against the needs to resolve the trial courts’ high volume of cases in a timely manner,
holding that it is preferable to decide a case on its merits whenever possible, reserving dismissal
as the ultimate sanction).

Board oan’justrnent ofNew Castle County v. Kwik-Check Realty.ll In that case,
the Court differentiated between variances seeking to change the use of the
property - a so called “use variance” - and one seeking an alteration of, for
example, set back requirements _ an “area variance.” A “use variance” must
undergo a detailed and exacting “hardship” analysis, while an area variance must
pass a more relaxed “exceptional practical difficulty” analysis. The parties are
further in agreement that this case involves an area variance and is therefore
subject to the exceptional practical difficulty analysis.

The exceptional practical difficulty analysis requires the zoning board to
consider the following “Kwick-Check factors”:

T he nature of the zone in which the property lies. Here, the property is in an
R-3 zone, a zone the Board tells us is intended to promote single family homes and
to avoid their conversion to multifamily units.12

T he character of the immediate vicinity ana1 the uses contained therein.
Here, the community is one of mostly single family homes. The requested
variance does not seek any alteration in the character of the vicinity; indeed,
Appellant does not argue otherwise. While Appellant makes the point that the

garage itself - authorized by the 1995 variance - is outsized compared to the

 

11 389 A.2d1289, 1291 (Del. 1978).

12 Board’s Br. at 9.

neighborhood, that is proverbial water over the bridge at this point. Second story
additions over one story garages behind row houses are nothing new to the City of
Wilmington and indeed, the president of the neighborhood association, speaking
on behalf of the homeowners, testified that he had made exactly such an
improvement to his own residence.13

Whether, if the restriction upon the applicant ’s property were removed, such
removal would seriously ajj”ect such neighboring property and uses. ln this case,
the next door neighbors’ complaints are twofold. First, they say there are
structural/engineering issues. But these issues were dealt with by the Board, which
required the applicants to get a certified engineering report that the proposed
addition would not undermine the structure of the garage. The applicants did so.
The second complaint was that the second story addition would be asymmetrical
with the one story garage on their side of the duplex, creating an unsightly lack of
symmetry. Assuming that “symmetry” may be an element that the Board can and
should look at in balancing the “seriousness” of the neighboring property and uses,
it is quite clear that the Board did just that in their questions and deliberations The
real difficulty with Appellant’s position is that they could hold hostage any
improvement to their neighbor’s property that would result in asymmetry with their

own property. That cannot be the rule as it would render every property owner

 

13 Appellant’s Br., Ex. A at 17.

beholden to every adjoining property owner. The zoning board of adjustment
exists exactly for the purpose of balancing the competing rights of these neighbors
so that each can improve their property with the board exercising a meditative
influence on the extremes. Indeed, the proceedings here reflect just such a process
as the Board was careful to consider the character of the other surrounding
properties as well as the input from other community members. Symmetry is
probably preferable if it can be accomplished, but it cannot be the basis for denial
of a variance that is otherwise reasonable

Finally, the Board is to consider 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 to
the character of that use of the property which is a permitted use under the use
provisions of the ordinance In Kwik-Check, the Supreme Court said, “under the
exceptional practical difficulty 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.”14

 

14 Kwik-Check, 389 A.2d at 1291. See also McGlaughlin v. Bd. OfAdjustment of New Castle
County, 984 A.2d 1190, 1192 (Del. 2009)(board should weigh “the potential harm to the
neighboring properties by granting the variance against the potential harm to the property owner
by denying it”).

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Here, the requested dimensional change is minimal - a setback from 15 feet
to 7 feet, consistent with the setback variance already granted for the garage in
1995. ln balancing the harm to the applicant against the harm to the “neighboring
properties,” the Board considered the testimony of two neighbors and the president
of the neighborhood association, all of whom spoke for the variance, as well as the
concerns of the Appellants. The Board concluded that the harm to the applicant
would be greater than the harm perceived by the Appellant. But in balancing these
considerations, the Board exercised a sensitive judgment that is not readily subject
to appellate review. So long as the Board undertook its task in good faith, giving
all parties an opportunity to be heard, and applied the considerations with fidelity,
this Court is not in a position to second guess the Board’s conclusions

The Court well appreciates that these determinations are never simple and,
where there is dissent at the hearing, it is particularly difficult to balance the
interests involved. Home ownership is for many of us our single largest
investment and a source of financial as well as emotional attachment lt is no easy
task for a zoning board of adjustment to consider the competing interests involved,
particularly where it involves adjoining neighbors, and to arrive at a result that
pleases everyone. But the Court is satisfied that the Board considered the factors,

balanced the relevant considerations and arrived at a decision that was within the

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range of appropriate results. This Court will not engage in a de novo review of the
evidence to reverse a board that functioned properly.

IT IS SO ORI)ERED.

 

Judge Charleweg

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