Auditorium, Inc. v. Board of Adjustment of Mayor & Council of Wilmington
| Decision Date | 10 October 1952 |
| Citation | 91 A.2d 528,8 Terry 373,47 Del. 373 |
| Parties | , 47 Del. 373 AUDITORIUM, Inc. v. BOARD OF ADJUSTMENT OF MAYOR & COUNCIL OF WILMINGTON. |
| Court | Supreme Court of Delaware |
David F. Anderson, of Berl, Potter & Anderson, Wilmington, for appellant.
Herbert B. Warburton, Asst. City Sol., Wilmington, for appellee.
This appeal seeks review of the application of the Building Zone Ordinance of Wilmington by the municipal authorities to the appellant's property. Two basic questions are raised, viz., first, is the appellant's property located within a Business 'B' Zoning District of Wilmington, and, second, in the event the first question is answered in the negative, may the appellant's building be used for the showing of athletic exhibitions?
The appellant is the owner of the premises known as the Auditorium, located at 704 West 11th Street in Wilmington. The Auditorium is a large one-story building with a main entrance on 11th Street and having two small stores on either side of the main entrance. The balance of the building consists of a large room designed for use as a place of public assemply. The premises are located on the southerly side of 11th Street and are about in the middle of the block formed by Madison Street on the east and Monroe Street on the west. They have a frontage on 11th Street of 70 feet and extend between parallel lines in a southerly direction to a depth of 230 feet. The easterly boundary of the premises runs, at a distance of 155 feet from the westerly side of Madison Street, along the westerly side of an alley running parallel to Madison Street through the block from 11th Street to 10th Street. The easterly side of the alley is the rear boundary of the properties fronting on the westerly side of Madison Street between 10th and 11th Streets.
The Auditorium was erected some time prior to 1900 and, thereafter, until 1941, it was regularly used as a place of public assembly for sporting events, dances, automobile shows, roller skating and other similar events.
On July 24, 1924, pursuant to the enabling act of the General Assembly, 1935 Code, Ch. 179 §§ 6228-6236, Wilmington enacted a Building Zone Ordinance. By Section 1 of this ordinance the city was divided into zone districts. The boundaries of the zone districts were declared to be 'established as shown on the Building Zone Map' which accompanied and was declared to be a part of the ordinance.
At the trial of the cause before the Superior Court, a Building Zone Map was exhibited to the court by the Building Inspector of Wilmington. He testified that the map thus shown was kept by him in his office and was used to establish zone boundaries whenever it was necessary to do so in the performance of the duties of his office. The map thus exhibited bore an inscription 'Building Zone Map of Wilmington, Delaware, January, 1924'. The Building Inspector testified that as far as he knew, that map was the original zoning map referred to in the Building Zone Ordinance of 1924.
The Clerk of City Council in whose custody all official papers of the city are held was unable to produce at the trial in the Superior Court the original Building Zone Ordinance enacted in 1924. He testified that in his opinion the map kept in the office of the Building Inspector was the official Building Zone Map of Wilmington.
At the argument of the appeal before this court, by stipulation of counsel, the original Building Zone Ordinance, which had been subsequently located, was submitted for our examination. Attached to this original ordinance was the official Building Zone Map of 1924. The map thus attached is smaller than the map retained in the office of the Building Inspector. We have not seen the Building Inspector's map, since it was not physically put in evidence in the cause below, but counsel stated that it showed on a somewhat larger scale the same data with respect to the block we are concerned with as is shown on the official Building Zone Map attached to the original ordinance of 1924. While the record is unsatisfactory in this respect, by force of necessity and stipulation of counsel we must assume that the zone boundaries for the city are those shown on the map submitted for our inspection.
It appears from an inspection of the Building Zone Map of 1924 that the block bounded by Madison, Monroe, 11th and 10th Streets, contains three building zone districts. The block is divided by a line running north and south between 11th and 10th Streets dividing the block approximately in half. That portion of the block lying to the west of the north-south division line is designated on the map as a Residence 'C' District. That portion of the block lying to the east of the north-south line is divided approximately in half by an east-west line running between a point on the westerly side of Madison Streed and a point on the north-south dividing line. The northerly portion of the easterly part of the block is designated as a Business 'B' District. The southerly portion of the easterly part of the block is designated as an Apartment District.
Neither the property lines nor the alley referred to above are shown on the Building Zone Map. There is nothing in the record before us to indicate the number and types of properties contained within the block, nor to show the property lines of the various properties. The record contains no showing of any distances contained within the block except the dimensions of the appellant's property and its distance from the corner of Madison and 11th Streets. Nor does not record disclose the length of the sides of the block along the four streets enclosing it.
There is testimony that the property located at the corner of 11th and Madison Streets is a business property and that this corner property is the only business property contained within the block, and that the Business 'B' District shown on the Building Zone Map is considered by the city authorities to be confined to the lot boundaries of that corner property. It appears, however, that the corner property does not extend to the south down Madison Street to a point anywhere near the middle of that block.
As we have stated before, the Auditorium was in existence at the time of the first enactment of the Building Zone Ordinance of Wilmington. At that time, it was used for public sporting exhibitions and other uses which required public gatherings. This use was continued by the owners of the building until August 28, 1940 when an order of the Board of Adjustment was entered granting permission to use the Auditorium for furniture exhibitions as an improvement to the neighborhood. This order recited that the Auditorium was located in an Apartment District and also reserved to the appellant the right to use the Auditorium for boxing and wrestling bouts. Thereafter, commencing in the fall of 1941, the Auditorium building was used solely for furniture exhibitions until the present application was made to the Building Inspector seeking permission to make alterations to resume the showing of athletic exhibitions.
The Building Inspector refused the present application and from this refusal an appeal was taken to the Board of Adjustment which affirmed the ruling of the Building Inspector. From that affirmance the cause was taken to the Superior Court of New Castle County by writ of certiorari. The record of the proceedings before the Board of Adjustment consisting of a notice of application, an objection signed by 122 residents of the neighborhood, on objection signed by four doctors who objected to the proposed use on the ground that it would be a disturbing influence to the patients of the Osteopathic Hospital located at 1105 Madison Street, and the ruling of the Board of Adjustment was sent to the Superior Court.
We again observe, as we observed in Searles v. Darling, Del., 84 A.2d 96, 98, that the Board of Adjustment has failed to comply with 1935 Code, § 6234, requiring that the return of the Board of Adjustment to a writ of certiorari 'shall concisely set forth such other facts as may be pertinent and material to show the grounds of the decision appealed from'. The record submitted to the Superior Court contains a statement of the Board's conclusions but omits any statement of the facts upon which they are based. This record, therefore, contains no basis for review. The burden, therefore, was unfairly imposed upon the Superior Court to take testimony to ascertain the facts, since that court has no authority to remand the proceedings to the Board of Adjustment. Searles v. Darling, supra.
The Superior Court held a hearing at which testimony was received to supplement the deficiencies in the record forwarded by the Board of Adjustment. From the testimony of the Building Inspector and of the Chief Engineer of the Street and Sewer Department, who is also a member of the Board of Adjustment, it appears that in the opinion of both of these witnesses it is impossible to determine the exact boundary lines between the zone districts in which the Auditorium may be located from the Building Zone Map because of the small scale of that map. Both witnesses testified that certain zone boundary lines were determined by the application of an unwritten rule established by the Board of Adjustment to the effect that zone boundary lines should be established in doubtful cases by the rear property lines of properties admittedly in one district. Consequently, the Business District clearly appearing from the Building Zone Map on the northeast corner of the block we are concerned with was established as having boundary lines conforming to the boundaries of the corner property, and since the rear line of that property was the easterly boundary of the alley referred to above, the Business Zone was considered as not extending beyond that alley.
The Chief Engineer testified that, to his knowledge, the Board of Adjustment never...
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