Forrey v. SCBA
S16A-04-002 ESB
| Del. Super. Ct. | Jun 7, 2017Background
- Jungle Jim's Amusement Park (15 acres, C‑1), operating since 1974, applied to Sussex County Board of Adjustment for an 18‑foot height variance from a 42‑foot limit to permit a 60‑foot water‑slide canopy (platform at 47 ft; canopy at 60 ft).
- The proposed slide would replace an existing go‑cart area; a lower platform portion would remain below 42 ft. Jungle Jim’s asserted the slide requires 47 ft minimum for safety.
- Neighbors (Appellants) opposed, citing lack of uniqueness, alternative development options, adverse neighborhood character, noise, privacy, stormwater, and property‑value impacts.
- The Board granted the variance by 3–2 after testimony from Jungle Jim’s representatives and an engineer; Board issued written decision.
- Appellants appealed to Superior Court, which reviews whether the Board's findings are supported by substantial evidence and correct application of law under §115‑211(B) (five variance factors). The court reversed the Board.
Issues
| Issue | Plaintiff's Argument (Appellants) | Defendant's Argument (Jungle Jim's) | Held |
|---|---|---|---|
| 1) Unique physical circumstances under §115‑211(B)(1) | Property is large, flat, not irregular or topographically unique; nonconforming use is not a physical condition. | Property is unique as a pre‑existing nonconforming amusement park with topography that prevents burying slide components. | Court: Held for plaintiff — Board lacked substantial evidence; nonconforming use is not a physical condition and claimant’s topography claim was conclusory and unsupported. |
| 2) No possibility of development in strict conformity §115‑211(B)(2) | Park can be reasonably used without the proposed 60‑ft slide; other amusements or a smaller slide would suffice. | Height restriction prevents installing a slide consistent with other park rides; variance necessary for reasonable use and modernization. | Court: Held for plaintiff — Board’s finding unsupported; record showed park is reasonably used and evidence that a compliant alternative was impossible was lacking. |
| 3) Hardship not created by applicant §115‑211(B)(3) | Any hardship is self‑created by choosing a particular oversized slide; alternatives exist. | Hardship arises from historical use and manufacturer safety requirements for this slide. | Court: Held for plaintiff — finding unsupported; the claimed hardship stems from Jungle Jim’s preferred design, not unique property features. |
| 4) Neighborhood character §115‑211(B)(4) | New tall platform will reduce privacy, alter character, and affect values. | Park (with existing 60‑ft slides) has long been part of neighborhood; another slide will not alter character; removal of go‑carts improves impacts. | Court: Held for defendant — Board’s finding supported by substantial evidence; addition would not alter the essential character. |
| 5) Minimum variance required §115‑211(B)(5) | The requested 18‑ft variance is not minimum: lower platform fits under 42 ft and alternatives were not considered. | Manufacturer and engineer testified height is minimum for safety and needed to achieve ride function. | Court: Held for plaintiff — Board’s finding unsupported; record showed lower platform fits within limit and no proof that full variance was the least necessary. |
Key Cases Cited
- Janaman v. New Castle County Board of Adjustment, 364 A.2d 1241 (Del. Super. 1976) (articulates standard of review for Board of Adjustment decisions and burden to overturn).
- Mellow v. Board of Adjustment of New Castle County, 565 A.2d 947 (Del. Super. 1988) (discusses variance review and criteria for substantial evidence).
- Mellow v. Board of Adjustment of New Castle County, 567 A.2d 422 (Del. 1989) (affirmation related to Board of Adjustment standards).