Fisher v. Pilcher

• Decision Date: 09 June 1975
• Citation: 341 A.2d 713
• Parties: John C. FISHER and Margaret Fisher, his wife, Petitioners, v. Henry O. PILCHER et al., Respondents.
• Court: Delaware Superior Court

Page 713

341 A.2d 713

John C. FISHER and Margaret Fisher, his wife, Petitioners, v. Henry O. PILCHER et al., Respondents.

Superior Court of Delaware, New Castle County.

June 9, 1975.

Appeal from Board of Adjustment of New Castle County.

William E. Wiggin, Richards, Layton & Finger, Wilmington, for petitioners.

Stanley William Balick, Balick & Hearn, P.A., Wilmington, for respondents.

OPINION

O'HARA, Judge.

This is an appeal from a decision of the Board of Adjustment of New Castle County ('Board') granting a special exception to Donna Brown to operate a day care center for as many as twenty-eight children on her property.

The property in question, 1.04 acres in size, owned by Dennis and Donna Brown, is located on Ridge Road, approximately 472 feet northeast of Walnut Lane, in Holly Oak, Brandywine Hundred. It is zoned R--1--C, residential. Although the property fronts on Ridge Road, its access is via an eleven foot wide right of way leading to the Philadelphia Pike. The access is shared in common with petitioners John C. and Margaret Fisher. The Browns' residence is a two and one-half story frame and stucco house containing eleven or twelve rooms on the first and second floors. The proposed day care center would be operated within the home. Additionally, the Browns intend to designate a certain portion of the grounds as a play area for outside activities.

In order to obtain a special exception, pursuant to the New Castle County Zoning Code, the applicant must establish to the Board's satisfaction:

'(1) that a proposed use on a specific lot or parcel is reasonably necessary for the convenience and welfare of the public and (2) that the proposed use on the lot or parcel involved is not detrimental or injurious to the neighborhood or the county . . ..' New Castle County Code § 23--85.

Mrs. Brown petitioned the Board for the special exception on August 5, 1974. A hearing was held on September 12, 1974. At the hearing, the Browns, when confronted with questioning by petitioners' attorney, who is also a resident of the neighborhood where the Browns' property is situated, requested a continuance in order to procure counsel. The Board granted a continuance.

A second hearing was held on October 10, 1974. Mrs. Brown testified, essentially, that she desired to establish a small day care center operated in a home environment, as opposed to the larger institutional-type centers which, in her estimation, were predominately available. She stated that her son had attended two day care centers in the area and that both were overcrowded, necessitating the use of waiting lists for new patrons. She furnished the Board with the names and addresses of parents who had made commitments to place their children, sixteen in all, under her care when and if the center commenced operating. Mrs. Brown testified further that she had hired a teacher to establish a nursery program for the children. That individual, who was present at the hearing but did not testify, furnished the Board with a prepared written statement embellishing upon the advantages of a day care center conducted in a home environment.

Mr. Brown testified that the proposed play area would be located approximately 150 feet from the nearest neighboring home. He further stated that this area would be fenced in and located in the back portion of the property, adjacent to a vacant lot. Mr. Brown also testified that he would be willing to construct a driveway permitting ingress and egress from Ridge Road, and, in fact, a permit from the Highway Department authorizing curb cut access, which would be necessary for a private driveway, was shown to members of the Board.

Appearing in opposition to the Browns' application for special exception were Mr. Theodore A. Cook, the owner of the property on Ridge Road immediately across from the subject property; Mr. Henry Scott, on whose property the Browns' eleven foot right of way is situated; Mrs. Margaret Fisher, a petitioner herein, the Brown's immediate abutting neighbor; Mrs. Marsha Hoernig, the owner of the 'Top of the Hill Nursery', officially named 'Young World, Incorporated'; and William E. Wiggin, Esq., the owner of the premises at 100 East Holly Oak Road, fronting on Ridge Road, and counsel to petitioners.

Mr. Cook testified that he 'would be opposed to the granting of the variance'. Mr. Scott testified that he would not consider enlarging the Browns' easement in order to permit more traffic. Mr. Wiggin stated that school buses pick up children on Ridge Road, directly opposite the Browns' property, every morning and thereby implied that the proposed private driveway would create a hazardous condition on Ridge Road.

Mrs. Fisher's testimony was quite lengthy. She stated that she teaches at the Holly Oak Day School, a half-day kindergarten school operated within a church. The school, according to Mrs. Fisher, is closed for the entire summer. She stated that the school does not provide the type of services contemplated by the Browns. Mrs. Fisher did testify, however, that, presently, three day care centers, including the Holly Oak School, were located in the immediate vicinity, and, among those, one was operated by a Mrs. McGeehan within her own home, located approximately one mile and a quarter from the Browns' residence. The third facility, located at the Top of the Hill Apartments, according to Mrs. Fisher, is housed in a gym which could accommodate twice as many children as are presently enrolled there. Mrs. Fisher further commented that, in her opinion, these vacancies can be attributed to economic reasons, i.e., mothers, in order to save money, attempting to secure free child care assistance from relatives. She stated that there were no small children in the immediate neighborhood and that all of the children cared for by Mrs. Brown would, therefore, come from other neighborhoods.

With regard to the potential detriment to the neighborhood resulting from the operation of a day care center on the Browns' property, Mrs. Fisher, who stated that she teaches and supervised the outside playtime activities of up to eleven children, testified that on previous occasions, during the summer, when she was not teaching, she was disturbed by eight or nine children playing on the Browns' property which is situated, at one point, only five and one-half feet from her home. In a letter written to the Board the day after the hearing, which letter is a part of the record before this Court, Mrs. Fisher elucidated her testimony by referring to the fact that children, allegedly under Mrs. Brown's care, repeatedly wandered onto her property and played thereon without supervision.

Mrs. Hoernig, whose interest in the matter was questioned by the Board insofar as she is not a resident of the neighborhood, testified that most of the day care centers in northern New Castle County are not operating at anywhere near capacity and, therefore, there is no need for the Browns'...