DE Supreme Court Holds City was Free to Adopt Stricter Standards for Variance Grants Than Those Under the State Law Governing Municipal Boards of Adjustment

This post was authored by Matthew Loeser, Esq.

The City of Lewes and its Historic Preservation Commission approved Ernest and Deborah Nepa’s plans to renovate a house in the historic district. The Nepas violated the conditions of the approvals by building a two-story addition on the back of the house and increasing its already nonconforming setbacks from neighboring properties. After the City discovered the violations and issued a stop work order, the Nepas applied to the City’s Board of Adjustment for three area variances to complete the unauthorized addition, which the Board denied. The Superior Court reversed the Board’s decision, finding the state law addressing municipal variances had more lenient requirements than those in the City Code. As such, the Superior Court held the City Code was “ultra vires and cannot be applied.”

The Nepas contended that the state statute authorizing the City’s Board of Adjustment contained the exclusive requirements for granting variances, and therefore the City was not authorized to adopt any of its own requirements. Pursuant to the City Code, “legislative bodies of cities or incorporated towns” were authorized to adopt “rules and regulations” for Boards of Adjustment “pursuant to the authority under Chapter 3.” Section 197-92 of the City Code adopted the “rules and regulations” to be applied by the City’s Board of Adjustment when evaluating variances applications. Furthermore, 22 Del. C. § 304 allows a municipality to “provide for the manner in which” its land use “regulations and restrictions … shall be enforced.” Here, the standards dictated by the City to its Board was one manner in which the City enforced its zoning regulations. Accordingly, the court found the City had the authority under state law and its Charter to enact rules and regulations for its Board of Adjustment.

Under the City Code, any effect on neighboring properties must be considered. Conversely, the state standard only required consideration of the effects that seriously affected those properties. Next, the City Code required that the Board find that “the benefits from granting the variance would substantially outweigh any detriment” to the public good; however, under § 327(a)(3), the variance would only need to be in harmony with the public interest. Finally, the City Code expressly acknowledged that it imposed conditions beyond those required by state law. Specifically, under the City Code there were “additional standards,” such as eliminating a property’s nonconforming status as a ground for a variance. Accordingly, the court agreed with the Superior Court that the City Code had stricter standards for granting variances than those in state law.

The court next found that under § 327(a), Boards of Adjustment could grant variances when “special conditions” or “exceptional situations” existed that caused “unnecessary hardship” or “exceptional practical difficulties.” Thus, the General Assembly made clear use of highly restrictive language that variances from uniform land use planning laws should be treated as the exception and not the rule. Here, section 327(a) required that any variance granted by a municipal Board of Adjustment meet the minimum requirements of the state statute, not that a variance must be granted. As such, the City of Lewes was free to adopt stricter standards for variance grants than those under the state law governing municipal Boards of Adjustment. Accordingly, the judgment of the Superior Court was reversed, and the City of Lewes Board of Adjustment decision was reinstated.

City of Lewes v. Nepa, 2019 WL 2415047 (DE 6/10/2019)