IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR NEW CASTLE COUNTY
CECELIA HOEY AND JEWEL HOEY,
CITY OF WILMINGTON ZONING
BOARD OF ADJUSTMENT,
BEING DAVID BLANKENSHIP,
HAROLD LINDSAY AND
MARK PILNICK, AND
MINISTRY OF CARING, INC.,
a Delaware Corporation,
) C.A. No. N11A-04-010 WCC
Submitted: August 24, 2011
Decided: December 9, 2011
Upon Petitionerâs Complaint for Writ of Certiorari
AFFIRMED IN PART. REVERSED IN PART.
Cecelia Hoey, 1000 Kirkwood Street, Wilmington, DE 19801. Pro se Petitioner.
Jewel Hoey, 1018 Kirkwood Street, Wilmington, DE 19801. Pro se Petitioner.
Gregory V. Varallo, Esquire, Sara T. Toner, Esquire, A. Jacob Werrett, Esquire,
Richards, Layton & Finger, P.A., One Rodney Square, 920 North King Street,
Wilmington, DE 19801. Attorneys for Respondent The Ministry of Caring, Inc.
Martin C. Meltzer, Esquire, City of Wilmington Law Department, 800 N. French
Street, 9th Floor, Wilmington, DE 19801. Attorney for Respondents City of
Wilmington Zoning Board of Adjustment, David Blankenship, Harold Lindsay,
and Mark Pilnick.
Before this Court is a Complaint for a Writ of Certiorari submitted by
Petitioners Cecelia and Jewel Hoey (âPetitionersâ). Petitioners ask the Court to
review and reverse the decision of the City of Wilmington Zoning Board of
Adjustment (âthe Boardâ) to grant four zoning variances to Respondent, the
Ministry of Caring, Inc. (âMinistry of Caringâ). Upon review of the record, the
decision of the Board is hereby affirmed in part and reversed in part.
Ministry of Caring is a non-profit corporation organized under the laws of
Delaware and committed to serving disadvantaged Delawareans. They own land
located at 625 E. 10th Street in Wilmington, Delaware (âthe propertyâ), and this
case concerns Ministry of Caringâs evolving plans for developing the property.
Petitioners live adjacent to the property.
Ministry of Caring purchased the property in 2007, when an abandoned
school building still occupied the site. They determined that renovation would not
be economically feasible and ultimately razed the school building. They initially
drafted plans to develop the property as townhouses for low-income first-time
homeowners (âthe townhouse projectâ) which would have been consistent with the
zoning requirements. However, in light of the recent economic downturn,
Ministry of Caring was unable to secure funding for the townhouse project, even
from lenders with whom Ministry of Caring enjoyed positive, long-term
relationships. After considering alternative uses for the property, Ministry of
Caring decided to build a three-story, 25-unit residential facility for low-income
seniors (âthe senior housing facilityâ). Given Ministry of Caringâs record of
success in building and managing senior housing facilities, public institutions and
private lenders expressed interest in funding or otherwise supporting the new
Because Ministry of Caringâs property was zoned for single family row
houses, they petitioned the Board for a use and three area zoning variances to
build the facility.1 Ministry of Caring needed the use variance in order to use the
property for a purpose not permitted in the R-3 zoning district, specifically, to use
the property for a multi-story apartment building in an area zoned for single family
row houses.2 In addition, they had to obtain the area variances in order to
physically fit the senior housing facility on the site.3 On December 23, 2010,
See W ilm. C. Â§ 48-133 (zoning the R-3 district for one-family row houses).
See Kostyshyn v. City of Wilmington Zon ing B d. of A djustm ent, 1990 WL 58226, at *1 (Del. Super. Apr. 12,
1990) (â[V]ariances are classified under two distinct categories: âuseâ and âareaâ. A âuseâ variance allows the
land to be use d for a purp ose which is no t perm itted within the zoning reg ulations applicable to a specific are a.
An example of a use variance is one which permits a commercial use in a residential district.â)(citations
See id. (âAn âareaâ variance . . . âconcerns only the practical difficulty in using the particular property for a
permitted use.â Examples of area variances include modifications of setback lines and yard requirements.â)
Ministry of Caring applied to the Board for the variances. The Board held a public
hearing on the matter on January 26, 2011.
At the hearing, Ministry of Caringâs counsel and representative told the
Board about their plans for the property. They explained that they sought to build
the facility because the townhouse project was economically unfeasible. The
Board questioned counsel about the proposed projectâs financing requirements and
how the facility would fit with the surrounding community, both aesthetically and
logistically. The Board also heard from members of the community who both
voiced support for, or concern with, the project. Petitioner Cecelia Hoey
addressed the Board and argued that the facilityâs location would be disruptive in a
neighborhood zoned for single family houses.
At the hearingâs conclusion the Board unanimously approved Ministry of
Caringâs application for all four zoning variances. In approving the application,
the Board cited the need for senior housing, the sympathetic appearance of the
proposed facility, and the neighborhoodâs capacity to accommodate the facility.
The Board issued a written decision on March 17, 2011, stating in relevant part:
âAnd the Board having held a public hearing and having heard all the
testimony and considering the location, is of the unanimous opinion that the
application could be granted without substantially impairing the general
purpose and intent of the Building Zone Ordinance and that it would not
adversely affect the character of the neighborhood, and there being
circumstances of hardship or exceptional practical difficulties in that the
property has historically been used for institutional purposes . . . [t]herefore,
it was ordered that the application be granted . . .â4
Petitioners submitted a Complaint for a Writ of Certiorari on April 15, 2011,
pursuant to 22 Del. C. Â§ 328. Petitioners allege that the Board made errors of law
in reaching its decision and assert that the Board did not find that Ministry of
Caring faced circumstances of hardship or exceptional practical difficulty in
complying with the applicable zoning ordinances.
Standard of Review
The Delaware Code states that the Court âmay allow a writ of certiorari
directed to the board to review such decision of the board.â5 Certiorari is a
common law writ that âlies from the Superior Court to inferior tribunals, to correct
errors of law, to review proceedings not conducted according to law, and to
restrain an excess of jurisdiction.â6 The Court will reverse a decision due to errors
of law where, on the record, it appears that the inferior tribunal acted illegally or
where âthere is irregularity in the proceedings normally required to create a proper
Record of the Board Hearing, tab 2.
22 Del. C. Â§ 328 .
1 W OOLEY , D ELAWARE P RACTICE Â§ 896 (19 06).
record.â7 In addition, the Court will reverse a decision for excess of jurisdiction
where evidence of jurisdiction does not appear on the record.8
Under the standard for common law writ of certiorari, this Court has
consistently held that it may not weigh evidence or review the lower tribunalâs
factual findings.9 This standard of review differs from the Courtâs normal review
of administrative appeals and the Court historically has not, on a writ of certiorari
appeal, determined whether substantial evidence exists to support the Boardâs
findings of fact.10
However, this historic standard of review on certiorari has been expanded to
include a substantial evidence analysis for appeals from decisions made by a
Board of Adjustment.11 The Supreme Court and the Superior Court have found
that it was the âintent and purpose of the legislature, in enacting this provision
[Section 328] for a statutory certiorariâ to in effect create a form of appeal similar
Handloff v. City Co uncil of Ne wark, 2006 W L 1601 098, at *7 (Del. Super. June 8, 2006).
See id. (â[A] decision will be reversed for excess of jurisdiction âwhere the evidence of jurisdiction is not spread
upon the record.ââ).
Christiana Tow n Center, LLC v. New Castle Co unty, 2004 WL 2921830, at *2 (Del. Super. Dec. 16, 2004)
An excellent explanation of the difference s between appeal pro cesses is found in Judge Cooc hâs opinion in
Handloff v. City Council of Newark, 2006 W L 1601 098 (D el. Super. June 8, 2006).
See Searles v. Darling, 46 Del. 263, 268-270 (Del. 1951) (noting that authorities differ as to the standard of
review for proceedings before the Board of Adjustment, but adopting the view held âin a majority of states and
favored by the textbooksâ that the Court must sustain the Boardâs decision âif the record below shows that there was
substantial evidence upon which the Board could properly have based its decision, while correctly applying the law
to the facts.â), and Nepi v. Lammot, 52 Del. 281, 284 -285 (Del. Super. 1959 ) (finding that the statutory certiorari
from Bo ard o f Adjustment decisions is, in effec t, in the nature of an appeal), and Coochâs Bridge Civic Assân v.
Pencader Corp., 254 A.2d 608, 609-610 (Del. 1969) (âThe determinative question before us is whether there was
substantial evidence before the Board of Adjustment to support its finding. . .â).
to that from other administrative boards, and for courts to likewise use a standard
of review similar to the standard used for those appeals.12 The present distinction
appears to be that the substantial evidence standard will be applicable to cases that
are given a statutory right of appeal, even if the statute reflects it is only through
the granting of a writ of certiorari. In cases where no statutory right of appeal
exists, the historic certiorari review will apply.
Petitioners have a statutory right to appeal the Boardâs decision.13 Thus, the
Courtâs review is âlimited to correction of errors of law and to determining
whether or not substantial evidence exists on the record to support the Boardâs
findings of fact and conclusions of law.â 14
Section 327 provides the law the Board must apply to authorize zoning
variances. The Board may grant zoning variances âwhere, owing to special
conditions or exceptional situations, a literal interpretation of any zoning
ordinances . . . will result in unnecessary hardship or exception practical
difficulties to the owner of the property.â15 The category of variance at issue
dictates the specific standard the Board must use.16 To grant a use variance, the
Nep i, 52 Del. at 284-285.
See 22 Del. C. Â§ 328 (pro viding that any person aggrieved by a Board decision may present a petition to the
Superior Court setting forth that such decision was illegal).
Jan am an v. New Castle Co unty Bd. Of Adjustm ent, 364 A.2d 1241, 12 42 (Del. Super. 1959 ).
22 Del. C. Â§ 327.
Kostyshyn, 1990 W L 58226, at *1 (explaining the different findings required by the Board in order to grant
area and use variances).
Board must find that the applicant demonstrated unnecessary hardship.17 On the
other hand, to grant an area variance, the Board must find a showing of
exceptional practical difficulties.18
The Court must decide whether the Boardâs decision to grant the variances
conforms to Section 327's requirements. After reviewing the record and
considering the arguments of the parties, the Court finds that, on the face of the
record, the Boardâs decision to grant the use variance was not contrary to the law;
was supported by substantial evidence; and that the Board committed no legal
errors in reaching that decision. However, the Court finds that the Boardâs
decision to grant the area variances failed to comply with the legal requirements
for granting such variances. As such, for the reasons discussed below, the Boardâs
decision will be affirmed in part and reversed in part.
1. The Use Variance
Section 327 authorizes the Board to grant a use variance if the application
of a zoning ordinance would otherwise result in unnecessary hardship to the
property owner.19 The applicant bears the âheavy burden of showing unnecessary
22 Del. C. Â§ 327.
hardship since it is recognized that a prohibited use, if permitted, would result in a
use of the land in a manner inconsistent with the basic character of the zone.â20 To
obtain a use variance, the Supreme Court in Baker v. Connell articulated that the
applicant must prove (1) that the property cannot yield a reasonable return if used
for a permitted purpose; (2) that the applicantâs need for the variance is due to
unique circumstances; and (3) that the use sought will not alter the essential
character of the locality.21
a. Reasonable Return
To satisfy the first element of Baker, Ministry of Caring must show that
their property cannot yield a reasonable return if used for single family row
houses.22 It is worth noting that Ministry of Caring, a 501(c)(3) non-profit entity,
develops property not with the goal of âa reasonable return,â but rather with the
goal of serving the public to the extent the organizationâs budget allows.
Nevertheless, Ministry of Caring presented evidence that they will draw no return
if the property is developed for purposes permitted under its present zoning.
When Ministry of Caring purchased the property at 625 E. 10th Street, the
property was occupied by a severely dilapidated historic school building. After
Baker v. C onn ell, 488 A.2d 13 03, 1307 (Del. 1985).
Id. (citing Hom an v. Lynch, 147 A.2d 65 0 (1959 )).
See W ilm. C. Â§ 48-133 (zoning the R-3 district for one-family row houses).
the purchase, it soon became apparent that restoring and renovating the school
building would be significantly costly and economically infeasible, and would
limit Ministry of Caringâs use of the property to serve the community. As a
result, Ministry of Caring decided to demolish the building and attempt to build
seven townhouses on the property. Under this plan, Ministry of Caring projected
that they would still lose approximately $30,000 per unit even if they sold all
seven townhouses. In spite of this grim economic forecast, Ministry of Caring
proceeded with the townhouse project because of the pressing need for affordable
housing. They demolished the school building, prepared the lot for development,
and drafted architectural plans for the townhouses. It appears that the surrounding
community universally accepted the townhouse project. But Ministry of Caringâs
attempts to secure funding, even from institutions with whom they had long and
productive relationships, were unsuccessful.
Without the necessary funding for the townhouse project, Ministry of
Caring has few alternative options for using the property that comply with
applicable zoning laws. As such, it appears that the property will simply sit vacant
and will yield no return. The Court is convinced, therefore, that the evidence
presented on Ministry of Caringâs need for a use variance is consistent with the
findings required under Baker.23 Ministry of Caring proved that their property
cannot yield a reasonable return if used for a permitted purpose, and as such, the
Court finds that the Boardâs decision was not arbitrary or contrary to the law, and
that there is substantial evidence to support the Boardâs findings as to this
The second element of Baker requires Ministry of Caring to show that their
need for a use variance is due to unique circumstances âand not general conditions
in the neighborhood which reflect the unreasonableness of the zoning ordinance
itself.â24 In other words, the property owner must show that, due to their unique
situation, they cannot reasonably conform to the zoning laws. Ministry of Caring
presented two conditions that they assert satisfied this requirement.
First, Ministry of Caring cites the unique condition of the property when
they purchased it. Ministry of Caring had to demolish a dilapidated school
building at significant cost. This expense, when added to the cost of the original
townhouse project, would have resulted in a debilitating economic loss
exacerbated by the fact that no lenders were willing to fund the project.
See Baker, 488 A.2d at 1307 (requiring a variance applicant to show that their pro perty canno t yield a reasonable
return if used for a permitted purpose).
The second unique circumstance Ministry of Caring points to is its ability,
as a non-profit entity, to obtain federal and state funding to use the property to
improve the community and, in particular, our less fortunate senior population. It
is their track record of community service and a previous record of success that
has generated a unique circumstance that would be unavailable to a private
investor. While it is true that economic hardship alone will not normally justify a
variance, this is not a situation where the owner of the property simply wishes to
receive a variance from the zoning ordinance to gain an additional economic
benefit. Here, without a zoning change, Ministry of Caring has no viable
alternative. It is their unique non-profit status that allows Ministry of Caring
access to state and federal funding to build the senior housing facility that
generally would be unavailable.
Based upon the record, the Court again finds there was substantial evidence
to support the Boardâs decision and that no legal error occurred.
c. Essential Character of the Locality
To satisfy the third and final element of Baker, Ministry of Caring must
prove that developing a senior housing facility on their property would not alter
the essential character of the locality. In other words, the propertyâs use must be
consistent with the âbasic characterâ of the R-3 zone.25
Speaking to the physical character of the locality, Ministry of Caring
advised the Board that the senior housing facility would be sympathetic with the
neighborhood in terms of the buildingâs proportions, materials, and other
structural details. Ministry of Caring presented to the Board the architectural plan
for the facility, which projects that all of the exterior facades of the building that
face the street will be brick. In this way, Ministry of Caring demonstrated their
intent that the facility blend and be in harmony with other neighborhood buildings.
In addition, the architectural plan reflects an attempt to match the style of the
neighborhoodâs windows and cornice details.
At the hearing, Board members expressed concern that the senior living
facility would lead to parking problems for current and prospective residents of
the neighborhood. Ministry of Caring responded by noting that most of the
residents in its other senior housing facility do not own vehicles and that the
facility as planned includes adequate parking for staff and residents consistent
with Ministry of Caringâs experience accommodating vehicles at a similar facility.
See CCS Investors, LLC v. Brown, 977 A.2d 30 1, 318 (De l. 2009) (noting that prohibited uses in certain zones are
inconsistent with the basic character of the zone).
The respondent also pointed out that, while senior housing facilities are not
expressly permitted in the R-3 zoning district, analogous facilities with similar
residential restrictionsâsuch as nursing homes, convalescent homes and type II
group homesâare permitted.
On the basis of this evidence, the Board concluded that the variance âwould
not adversely affect the character of the neighborhood.â The Court can find no
legal basis to disturb this finding and substantial evidence was presented in
support of this conclusion.
Because the Ministry of Caring complied with the requirements set forth in
the Baker decision, the Court finds it has no basis to hold that the Board acted
contrary to the law by approving the use variance for the proposed senior housing
2. The Area Variances
Ministry of Caring also applied for three area variances in order to
accommodate the senior housing facility on the property. The variances requested
shorter building setback and side yards requirements and to provide for a long
loading berth. In order to obtain these variances, Section 327 requires Ministry of
Caring to show that compliance with the applicable setback, side yard, and loading
berth requirements would present exceptional practical difficulties in building the
facility.26 The Court has reviewed the application filed by Ministry of Caring, its
various attachments, and the transcript of the hearing before the Board. Other than
an indication that they are seeking area variances, Ministry of Caring presented
nothing to justify their need for these variances.
At the hearing, Ministry of Caring saidâand the Board askedâlittle to
nothing about exceptional practical difficulties that might result if the Board
denied the area variances. Instead of addressing the technical aspects of the area
variance requests, Ministry of Caring and the Board spent the majority of the
hearing discussing whether the senior housing facility would benefit the
community. In fact, members of the publicâincluding Petitioner Cecelia
Hoeyâwere the first and only hearing attendees to comment on the size of the
facility relative to the size of the property.
In spite of this deficiency, the Board found âcircumstances of hardship or
exceptional practical difficulties in that the property has historically been used for
institutional purposes.â 27 The Boardâs finding seems to imply that, if the site was
not used for row homes before, it need not be used for row homes now. This is
not the justification required by Section 327 to grant an area variance. To approve
See 22 Del. C. Â§ 32 7 (granting the B oard authority to permit variances from zoning ord inance s where , owing to
special conditions, a literal interpretation of the ordinance would result in exceptional practical difficulties to the
Record of the B oard Hearing, tab 2.
an area variance, the Board must find that a literal interpretation of the applicable
zoning ordinances would result in exceptional practical difficulties to the property
The Boardâs decision does reference an earlier finding related to a variance
application Ministry of Caring submitted while still pursuing the townhouse
project. The decision indicates that âthe proposed setbacks and building mass are
consistent with those recently granted for a proposed townhouse development on
the site and with those of other properties in the vicinity.â29 While there may have
been another variance request that the Court is unaware of, unlike use variances,
area variances are unique to the structure being built. A variance granted for one
type of structure on Ministry of Caringâs property does not âcarry overâ to a
different structure. The Boardâs decision seems to imply that the granting of a
previous variance on the property eliminates the need to consider a similar
variance now. That reasoning is not only illogical but also inconsistent with the
legal mandates the Board must comply with. Regardless of whether the lack of
evidence justifying Ministry of Caringâs need for the area variances was due to an
oversight or due to a belief that no evidence was necessary, Ministry of Caringâs
22 Del. C. Â§ 327.
Record of the Board hearing, tab 2.
failure to present any evidence on the subject cannot support the Boardâs decision
to grant the area variances.30
When there is no evidence of exceptional practical difficulties for the Board
to weigh, it is difficult for the Court to find that the Board has undertaken the
process of âwinnowing or siftingâ the facts to make its decision.31 It is an error of
law to draw conclusions concerning matters upon which nothing has been
presented and clearly substantial evidence does not exist in the record to support
the Boardâs decision. The Court appreciates that building a senior housing facility
in a residential community is a controversial topic and it certainly was logical and
appropriate for Ministry of Caring to address that controversy in their
presentation. This does not mean, however, that an area variance is simply a given
that will naturally flow from the granting of a use variance. The Court finds that
the Boardâs decision regarding the area variance is unsupported by even a scintilla
of justification and therefore was erroneous and must be reversed.32
The Co urt also notes, as to the area variance request before the Court, that there was no evidence of the granting
of similar variances for other properties in the area as stated by the Board.
Willde l Rea lty, Inc. v. New Castle Co unty, 270 A.2d 17 4, 178 (De l. Ch. 1970).
Nothing in this decision should be construed as preventing Ministry of Caring from again filing for an area
variance before the B oard and to present appro priate justification of exceptiona l practical difficulties.
The work and goals of Ministry of Caringâs various projects throughout
Delaware are admirable, and their commitment to help those in our community
who are less fortunate is worthy of support. However, neither the Board nor this
Court may circumvent Delaware law to facilitate an altruistic project, even when
that project is strongly supported by the public. For the reasons stated above, the
Court concludes that the decision of the Board to grant the use variance conformed
with the law and will not be disturbed. However, the Boardâs decision regarding
the area variances is not consistent with the requirements of the Delaware Code
and must be reversed.
IT IS SO ORDERED.
/s/ William C. Carpenter, Jr.
Judge William C. Carpenter, Jr.