Board of Adjustment of Sussex County v. Verleysen
2012 Del. LEXIS 81
| Del. | 2012Background
- The Sussex County Board of Adjustment denied the applicants an area variance for 37551 Atlantic Avenue, Rehoboth Beach, based on the claim of self-created exceptional practical difficulty.
- The applicants renovated the property, adding a barbecue area and a sunroof encroaching the ten-foot setback and building a shed within the setback, without permits.
- At the variance hearing, the applicants argued unique property circumstances and public support for the variance, among other justifications for reasonable use.
- The Board concluded the hardship was created by the applicants and that the property was being reasonably utilized without the additional structures.
- The Superior Court reversed the Board, holding the Board erred in not weighing the variance’s effect on the neighborhood against hardship to the owner under Kwik-Check.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does section 6917(3) preclude a variance if the applicant created the difficulty? | Verleysen contends the variance should be allowed per Kwik-Check balancing. | Board argues the statute requires the applicant not to create the hardship, barring relief. | Yes; statute requires no self-created hardship, thus precluding a variance. |
| Should Kwik-Check balancing control Sussex County variance decisions? | Applicants urge Kwik-Check balancing to weigh public/neighborhood impact. | Board contends Kwik-Check does not apply due to textual differences in 6917(3). | No; Kwik-Check does not govern Sussex County under current statutory text. |
| Was the Board's finding that the property can be reasonably used without the added structures supported by substantial evidence? | Applicants argued the added structures were not necessary for reasonable use. | Board found the structures were not necessary for reasonable use and that hardship existed. | Yes; the finding was supported by substantial evidence and legally sound. |
Key Cases Cited
- Kwik-Check, Inc. v. Realty, 389 A.2d 1291 (Del. 1978) (established balancing framework for area variances in New Castle County)
- McLaughlin v. Bd. of Adjustment of New Castle County, 984 A.2d 1190 (Del. 2009) (recognizes factors for exceptional practical difficulty and reasonable use)
- CCS Investors, LLC v. Brown, 977 A.2d 301 (Del. 2009) (reaffirms interpretation of hardship and related variance standards)
- B.E.T., Inc. v. Bd. of Adjustment of Sussex Cty., 497 A.2d 784 (Del. 1985) (hlardship not shown where hardship arises from how appellant would subdivide property)
- Leatherbury v. Greenspan, 939 A.2d 1284 (Del. 2007) (self-imposed or inherent hardship distinctions relevant to land use cases)