Gannos, LLC v. Sussex County Board of Adjustment
S15A-12-002 ESB
| Del. Super. Ct. | Aug 16, 2016Background
- Applicant (owner of 19366 Coastal Highway) sought a special use exception and five variances to replace an existing wooden billboard with a steel monopole on a commercially zoned, triangular, uneven parcel near Route 1.
- An existing billboard of approximately the same footprint had been in place on the parcel since before the Derrick family bought it in 1993; a prior modification was approved in 1995.
- Gannos, owner of the adjacent Rehoboth Marketplace, opposed the replacement, arguing the new sign would block the center’s pylon sign and reduce business. Tenants submitted an objection letter.
- At public hearings the Board considered location, topography, photographic evidence, DOT compliance, and claims of visual impact; the Board reduced the requested square-footage variance but otherwise granted the special use exception and variances (including a 6-foot height variance).
- Gannos appealed to Superior Court, arguing procedural defects, that the special use exception lacked substantial evidentiary support, and that the height and square-footage variances were improper (including that hardship was self-created).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Proper procedural approval of the special use exception | Board failed to include the special use exception in the motion/vote | Oral vote is preliminary; the Board’s written decision controls and shows approval | Court held procedure proper; written decision governs and included the special use exception |
| Whether special use exception was supported by substantial evidence | Applicant failed to prove the new billboard would not substantially adversely affect adjacent uses (blocked signage, tenant harm) | Existing billboard in same location; area commercially developed with other billboards; replacement is safer/aesthetically improved and DOT-compliant; photographic evidence does not show blockage | Court held Board’s approval was supported by substantial evidence and not arbitrary |
| Height variance: necessity and self-created hardship challenge | Property can be reasonably used without the height variance (existing uses operate); hardship attributed to prior placement of the sign | Unique lot shape/topography and the billboard’s low elevation make standard compliance impracticable; billboard pre-existed current owners, so hardship is not self-created | Court held variance necessary for reasonable use and hardship was not self-created |
| Square-footage variance: extent of relief | Requested maximum variance excessive; argues Board erred in granting size relief | Board limited relief to allow replacement at same size as existing (reduced variance) | Court affirmed Board’s reduction and allowance of billboard at same size as existing; decision supported by evidence |
Key Cases Cited
- Mellow v. Board of Adjustment of New Castle County, 565 A.2d 947 (Del. Super. 1988) (standard that reviewing court must uphold Board findings supported by substantial evidence).
- Board of Adjustment of Sussex County v. Verleysen, 36 A.3d 326 (Del. 2012) (distinguishes self-imposed hardship from hardships resulting from inherent, pre-existing property characteristics).