Delaware Supreme Court Invalidates Use Variance Where ZBA was Not Properly Constituted

Following the granting of use variances to allow for partial demolition of a mansion to use as a 35-unit multi-family apartment building for senior housing, petitioners appealed and the superior court upheld the zoning board’s decision. The petitioners then appealed to the Supreme Court alleging that the variances were illegally issued because the zoning board was not properly composed, the variance conflicts with the City’s comprehensive plan, and because the record lacked substantial evidence to support the required finding of unnecessary hardship.

The Supreme Court of Delaware concluded that the zoning board was not properly constituted and that therefore it was without authority to act, and it reversed the judgment of the superior court. As a result, the Court had no reason to consider the remaining two claims. The zoning board of appeals was comprised of three city employees – an employee of the City Department of Real Estate and Housing, an employee of the Department of Public Works, and the First Assistant City Solicitor – and at the conclusion of the hearing on the variance application, the three members unanimously approved the requests.  According to state statute, in cities that do not have home rule charter (such as the City of Wilmington), the zoning board “shall consist of the chief engineer of the street and sewer department, the city solicitor and the mayor or an authorized agent of the mayor.  If the city or incorporated town has no city engineer or city solicitor, then the mayor or chief executive of such city or town shall appoint 2 members…”  Both sides agreed that neither the City Solicitor nor the City Engineer served on the ZBA for purposes of approving the use variance.  The First Assistant City Solicitor sat in for the Solicitor, and the public works employee sat in for the city engineer, while the Department of Real Estate and Housing employee was the mayor’s authorized agent.

The Supreme Court held that while the plain and unambiguous language of the statute allows for the mayor to appoint a designee, and that such language does not exist for the engineer or city solicitor. The court rejected the City’s argument that department heads could appoint someone to represent them.  With respect to the City’s argument that such an interpretation is onerous on the statutorily defined employees, the Court noted that the statute allows for an alternative composition only where the home rule charter city eschews the option of establishing a board of adjustment under the statutory section.  Therefore the statute gave the city a choice as to which option it wished to pursue.

Friends of the H. Fletcher Brown Mansion v City of Wilmington, 2011 WL 6148717 (De. 12/12/2011).

The opinion can be accessed at: http://courts.delaware.gov/opinions/download.aspx?ID=165020