Vondrasek v. Board of Adjustment of the City of Wilmington
N16A-09-007 CEB
| Del. Super. Ct. | May 1, 2017Background
- Two adjoining row houses at 1817 and 1819 Delaware Ave share a large one-story garage behind them; the garage was authorized by a 1995 variance to reduce the rear setback from 15 ft to 7 ft.
- The owner of 1817 sought a variance to add a second-story room above the existing garage footprint on their side; contractor Rosario Builders presented the petition and neighborhood supporters testified in favor.
- The only opposition came from the 1819 owners, who raised aesthetic concerns (loss of symmetry), potential snow/ice buildup, alleged structural/support alterations, and questioned whether an engineering review had been done.
- The Wilmington Board of Adjustment granted the variance by a 2–1 vote after requiring a certified engineering report, which the applicants provided; the 1819 owners filed a writ of certiorari in Superior Court to challenge the Board’s decision.
- The Superior Court dismissed the appeal on procedural grounds because the appellants failed to name the landowner (an indispensable party) in the certiorari writ and did not timely move to amend under Rule 4(j)/15(c).
- The Court also held, alternatively, that on the merits the Board’s grant satisfied the "exceptional practical difficulty" standard applicable to area variances.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Failure to name landowner as respondent | Appellants claimed they named the contractor (agent) and that amendment should be allowed or relate back under Rule 15 | Board argued the landowner is an indispensable party and omission is fatal; no timely amendment was filed | Dismissal: omission is fatal; no amendment filed within Rule 4(j) 120-day window and relation-back not available under controlling precedent (DiFebo) |
| Applicability of relation-back under Rule 15(c)(3) | Omission was an innocent mistake; relation back should apply | Prior precedent limits relation back where plaintiff knew the true owner and failed to name them | Denied: DiFebo controls; the omission is not the type of mistake that permits relation back |
| Standard of review for variance (merits) | Appellants argued variance should be denied due to structural and neighborhood impact concerns (symmetry, ice/snow, structural changes) | Board and applicants argued area variance subject to exceptional practical difficulty test; impacts minimal, engineering report provided, neighborhood support | If reached, Board’s decision affirmed: the Board properly applied the Kwik-Check factors and balanced harms; requested dimensional change minimal and evidence supported grant |
| Whether asymmetry alone justifies denial | Appellants argued loss of symmetry and visual harm to neighboring property warrants denial | Board found symmetry alone insufficient to block reasonable improvements; other neighbors supported project and engineering concerns addressed | Held: Symmetry preference does not require denial; Board reasonably balanced interests and could grant variance |
Key Cases Cited
- Maddrey v. Justice of Peace Court 13, 956 A.2d 1204 (Del. 2008) (limits of record review on certiorari)
- Board of Adjustment of New Castle County v. Kwik-Check Realty, 389 A.2d 1289 (Del. 1978) (establishes exceptional practical difficulty test for area variances)
- DiFebo v. Board of Adjustment of New Castle County, 132 A.3d 1154 (Del. 2016) (failure to name landowner is fatal; Rule 15(c)(3) relation-back narrowly applied)
- McGlaughlin v. Board of Adjustment of New Castle County, 984 A.2d 1190 (Del. 2009) (board must weigh harm to neighbors against hardship to applicant)