Mellow v. Board of Adjustment of New Castle County

• Decision Date: 27 May 1986
• Citation: 565 A.2d 947
• Parties: Emil MELLOW, Jeffrey Lott and James Taylor, Appellants, v. BOARD OF ADJUSTMENT OF NEW CASTLE COUNTY, Edward M. Rush, William E. Matthews, Sharon Rolle, William McKinley, George Staats, and John D. Lake, Appellees. . Submitted:
• Court: Delaware Superior Court

Page 947

565 A.2d 947

Emil MELLOW, Jeffrey Lott and James Taylor, Appellants, v. BOARD OF ADJUSTMENT OF NEW CASTLE COUNTY, Edward M. Rush William E. Matthews, Sharon Rolle, William McKinley, George Staats, and John D Lake, Appellees.

Superior Court of Delaware New Castle County.

Submitted: May 27, 1986.

Decided: Aug. 8, 1988.

Perry F. Goldlust, of Greenville, for appellee John D. Lake.

Jeoffrey L. Burtch, of Cooch and Taylor, and Olha N.M. Rybakoff, of Connolly, Bove, Lodge & Hutz, Wilmington, for appellants.

Richard A. Hauge, of New Castle County Law Dept., Wilmington, for Appellate Bd. of Adjustment, et al.

OPINION

GEBELEIN, Judge.

This case basically involves a dispute over whether the New Castle County Board of Adjustment properly held that an automobile repair and restoration business at 15 Lower Snuff Mill Road in Yorklyn was and is a legal nonconforming use in continuous existence since 1954. The property was zoned as R-4, residential, when the County adopted the comprehensive zoning code in 1954.

The case is before the Court upon Appellants' motion for reargument of this Court's March 7, 1986 opinion with respect to three issues. They involve: 1) the Superior Court's authority to remand decisions of the Board of Adjustment pursuant to 9 Del.C. § 1353(f); 2) the scope of the Superior Court's right to require or hear additional evidence upon appeal from the Board pursuant to 9 Del.C. § 1353(e); and 3) the evidence necessary to establish a prior nonconforming use of real property. The opinion was withdrawn when this motion was granted.

The facts of the case are summarized as follows. The Board of Adjustment of New Castle County ("Board") determined that John D. Lake's use of property on Lower Snuff Mill Road for a motor vehicle restoration business was a legal nonconforming use. It found that the business existed when the zoning code of 1954 was adopted, and that it has continued in existence through the present. Thus, it concluded, the use was valid under 9 Del.C. § 2610(a) ¹ and New Castle County Zoning Code Sections 23-20. ²

The Board denied a special exception to allow for an expansion of the nonconforming use. The application was denied because Lake failed to provide appropriate documentation to meet Section 23-20 of the New Castle County Code, supra at note 2. The Board also noted Lake's failure to provide the information required in Section 23-85 of the Code, specifically that: 1) the proposed use of the parcel was reasonably necessary for the convenience and welfare of the public and that 2) the proposed use would not be detrimental or injurious to the neighborhood or county. The Board in denying the application pointed to the belief of area residents that the operation of an auto body shop would have an adverse effect on the residential character of the neighborhood. It suggested that the applicant try to locate a properly zoned site within the county for his shop.

Emil Mellow, Jeffrey Lott and James Taylor (appellants), all residents of Yorklyn, appealed the Board's decision that the auto repair shop was a valid nonconforming use, asserting error on several grounds. First, they alleged that since the Lake's business was not licensed when the Zoning Code was enacted in 1954, that it did not qualify as a nonconforming use. Second, they argued that the casual or occasional use of property in 1954 as a car repair facility did not create a valid nonconforming use. Third, they asserted that even if the business constituted a legal nonconforming use in 1954, the use was discontinued for one year and thus constituted a termination that could not be re-established under the zoning regulation. Appellants also contended that the present use differs in quality and character from the original nonconforming use and thus is prohibited. Finally, Appellants' alleged that the Board's decision was unsupported by substantial evidence.

This Court on March 7, 1986 reversed the Board's decision and remanded the matter for further consideration, ruling that the Board lacked substantial evidence to support its finding of continuous nonconforming use. On April 3, 1986, this Court granted certification of an interlocutory appeal from the March 7th opinion regarding the question of whether this Court had jurisdiction to remand the case to the Board. As a result, the opinions dated March 7 and April 3, 1986, were withdrawn. The motion for reargument was granted as to both opinions on April 7, 1986.

The Appellee Board took no independent position in the appeal, as it asserted no direct interest in the outcome. However, the county did submit a memorandum following this Court's granting of the motion for reargument.

I. Propriety of Remand

Appellants in their motion for reargument assert that the Court is without authority to remand the case to the Board of Adjustment. This position is supported by the county and Appellee Lake.

The applicable statute provides that the Court "may reverse or affirm, wholly or partly, or may modify the decision brought up for review." 9 Del.C. § 1353(f). The Court may also hear additional evidence upon an appeal from the Board. 9 Del.C. § 1353(e). This section basically is a codification of the common law practice allowing a court to receive evidence in an action to review error under a writ. See I Woolley, Practice in Civil Actions in the Law Courts of the State of Delaware, § 897 (1906), citing Cullen v. Lowery, Del.Super., 2 Harr. 292, n. 2 (1837), citing Bailey v. Luff, Del.Supr., unreported (1826). See also the Appellate Handbook Committee, Del.Supr.Ct.Rules Advisory Committee, Delaware Appellate Handbook, p. 25-17 (1984).

The Delaware Supreme Court specifically has interpreted the statute to mean that the Superior Court cannot remand a case to the Board, upon appeal, for the purpose of making specific factual findings, or for conducting further hearing or evidence taking. See Auditorium, Inc. v. Board of Adjustment, Del.Supr., 91 A.2d 528 at 532 (1952). See also Searles v. Darling, Del.Supr., 83 A.2d 96, 99-100 (1951) (statute does not give the Superior Court authority to remand the matter to the Board where the record fails to include a fact essential to the Board's decision).

More recent cases have, in a fashion, followed these early holdings by reversing, rather than remanding, Board decisions unsupported by substantial evidence on the record. See, e.g., Cooch's Bridge Civic Ass'n v. Pencader Corp., Del.Supr., 254 A.2d 608 at 610 (1969); Beattie v. Babcock, Del.Super., 180 A.2d 741, 744-745 (1962); Janaman v. New Castle County Board of Adjustment, Del.Super., 364 A.2d 1241 at 1242 (1976); Gamble v. Board of Adjustment, Del.Super., C.A. No. 86-MY-12, 1987 WL 8691, Martin, J. (February 5, 1987).

Although caselaw specifically states that the Court cannot remand on appeal, and most cases impliedly have followed that rule, a different practice also has developed. Cases are, in fact, often remanded by the Superior Court for the purpose of specific fact findings by the Board. See, e.g., Delaware Appellate Handbook, supra, p. 25-17. See also Kwick-Check Realty Co. v. Board of Adjustment, Del.Ch., 369 A.2d 694 at 699 (1977) (applications for area variances were remanded to the Board due to the Board's failure to provide particularized findings of fact and conclusions of law supporting its denial of the applications). See also Trivett v. New Castle County Board of Adjustment, Del.Super., C.A. No. 84-FE-17, Bifferato, J. (April 16, 1985).

In fact, the Delaware Supreme Court has directed the Superior Court to remand cases to the Board for further proceedings. In Wilson v. Pencader Corp., Del.Supr., 199 A.2d 326 at 330 (1964), the lower Court was instructed to remand the case to the Board of Adjustment since neither the lower Court, or the Board, made any determination on a key issue. The Supreme Court did not address the issue of the propriety of remand; rather, remand was the result of the decision. Likewise, in Application of Emmett S. Hickman Co., Del.Supr., 108 A.2d 667 (1954), the Delaware Supreme Court instructed the Superior Court to remand the case to the Board, but the issue of the availability of remand as an alternative for the Court under the statute was not addressed.

Despite the use of remand in Wilson, Hickman, the Delaware Supreme Court in its only decisions dealing with the issue of remand clearly ruled that the applicable statute does not give the Superior Court authority to remand the matter to the Board. Because this Court is now asked to determine whether remand is appropriate in the instant case, the greater weight will be given to the higher Court's express ruling on the issue.

In addition to the foregoing, Wilson is distinguishable from Mellow in that it involved a complete absence of findings, conclusory or otherwise, on a key issue. The Supreme Court in Hickman instructed the parties to supplement the record after it construed statutory language. In the instant case, the Board considered the key issues; the support for the Board's findings as to those issues is in question.

Several post-enactment (1965) events probably prompted the wider use of remand as an alternative to reversal or the taking of new evidence. These include the increasing caseload of this Court and the growing expertise of the Board of Adjustment. However true this might be, the split of caselaw on the propriety of remand returns our focus to the statute itself for further guidance. And the statute, as previously noted, does not specify remand as an alternative.

The legislature has provided for remand under other statutes. Clearly, it could have added it to § 1353(f) had that been the legislative intent. See 14 Del.C. § 1414 (Court may reverse, affirm or modify a decision of the Board of Education, or remand the cause to the Board for a rehearing). It is accepted that Courts may not engraft upon a statute language which clearly has been excluded therefrom by the...