White v. Wilmington Zoning Board of Adjustment, et al.

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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE IN AND FOR NEW CASTLE COUNTY MAUREEN K. WHITE, and WAYNE A. WHITE, Appellants, v. ZONING BOARD OF ADJUSTMENT OF THE CITY OF WILMINGTON and MCCLAFFERTY PRINTING, INC., Appellees. ) ) ) ) ) ) ) ) ) ) ) ) ) C.A. No. 01A-08-005 HLA Date Submitted: April 12, 2002 Date Decided: April 16, 2002 ORDER UPON APPELLANTS APPEAL FROM THE ZONING BOARD OF ADJUSTMENT OF THE CITY OF WILMINGTON DENIED Francis J. Trzuskowski, Esq., Trzuskowski, Kipp, Kelleher & Pearce, P.A., Wilmington, Delaw are, Attorne y for Appe llant. Rosam aria Tasson e, Esq., Ass istant City Solicitor, C ity of Wilming ton Law Departm ent, Wilming ton, Delaw are, Attorne y for Defen dant Zon ing Board of Adju stment of th e City of Wilmington. Melanie K. Sharp, Esq., Young Conaway Stargatt & Taylor, LLP, Wilmi ngton, D elawa re, Attorney for Defendant McClafferty Printing, Inc. ALFORD, J. White v. Zoning Bd. of Adjustment, et al. C.A. No. 01A-08-005 HLA April 16, 2002 Page 2 On this 16th day of April 2002, upon consideration of Appellant s Motion for Reargum ent, it appears to the Court th at: (1) On March 28, 2002, the Court denied Appellant s appeal from the Zoning Board o f Adjustm ent of the C ity of Wilming ton. App ellant raised thr ee argum ents in their appea l: (1) the Boa rd improp erly granted the variance b ecause M cClaffer ty failed to seek a variance under Wilmington Code § 48-445, which makes parking inadequate; (2) the Board erred in granting the variance because the addition will be detrimental to the health and welfare of the neighborhood, exacerbate existing parking problems and depreciate existing property values; and (3) the license between M cClafferty and Lynam s Service S tation is facially inad equate, thus the Board erred in relying o n it. The Co urt in applying the correct standard of re view determined that all three of Appellant s contentions failed.1 As a result of its review, the Court found that substantial evidence supported the Board s decision with no legal error contained therein.2 1 The correct standard of review for an appeal from the Zoning Board of Adjustment of the City of Wilmington is for the Court only to determine whether substantial evidence supports the decision below and the decision contains no legal error. Kirkwood Motors, Inc. v. Bd. of Adjustment of New Castle County, C.A. 99A-12-009, 2000 WL 710085, at *2 (Del. Super. May 16, 2000). The Court will affirm the decision if the record shows substantial evidence upon which the Board could properly have based its decision, while correctly applying the law to the facts. Richards v. Turner, 336 A.2d 581, 583 (Del. Super. 1975); Marrantonis v. Bd. of Adjustment, 258 A.2d 908 (Del. Super. 1969). 2 White v. Zoning Bd. of Adjustment, et al., C.A. No. 01A-08-005, Alford, J. (March 28, 2002) (Mem. Op.). White v. Zoning Bd. of Adjustment, et al. C.A. No.01A-08-005 HLA April 16, 2002 Page 3 (2) On motion for reargument the only issue is whether the [C]ourt overlooked someth ing that w ould ha ve cha nged th e outco me of the und erlying de cision. 3 A motion for rear gume nt is not in tended to rehas h argum ents alre ady decid ed by the [C]ou rt. 4 Nor is it a device for raising new arguments or stringing out the length of time for making an argum ent. 5 A party seeking to have the Court consider the earlier ruling must demonstrate new ly discovered evidence, a cha nge in the law or m anifest injustice. 6 (3) The issues raised in Appellant s Motion for Reargument were considered by the Court in making its original decision. These contentions are mere restatements of the argumen ts raised in A ppellant s A ppeal and are not prop er for the C ourt to cons ider in ruling on a Motion for Reargument; as they have been considered and rejected by the Court. 7 For t he fo rgoing re ason s, Ap pella nt s M otion for Reargu men t is he reby DENIED. 3 McElroy v. Shell Petroleum, Inc., Del. Super., No. 375, 1992, Moore, J. (Nov. 24, 1992) (ORDER). 4 Id. 5 Eisenmann Corp. v. General Motors Corp., C.A. No. 99C-07-260, Quillen, J. (Feb. 24, 2000) (Letter Op.). 6 State v. Spicer, Del. Super., C.A. Nos. 98M-12-008, 98M-12-009, Stokes, J. (May 11, 1999) (ORDER) (quoting E.I. duPont de Nemours Co. v. Admiral Ins.. Co., Del Super., 711 A.2d 45, 55 (1995)). 7 McElroy, at *1. White v. Zoning Bd. of Adjustment, et al. C.A. No.01A-08-005 HLA April 16, 2002 Page 4 IT IS SO ORDERED. ______________________________________ ALFORD , J. Prothonotary s Office - Civil Div.

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