Agenda - Planning Commission - 03/01/2012

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Zoning Bulletin January 25, 2012 1 Volume 61 No. 2 The Background/Facts: Ingleside Homes, Inc. ( "Ingleside ") owned the H. Fletcher Brown Mansion (the "Mansion ") in the city of Wilmington, Delaware (the "City ") . Ingleside sought to partially demolish and reno- vate the Mansion for use as a 32 -unit multifamily apartment building for senior citizens. It applied to the City's ZBA for three use variances. The ZBA granted the variances. Thereafter, Friends of the H. Fletcher Brown Mansion ( "Friends ") filed a Verified Petition in Certiorari in the Superior Court. Among other things, Friends argued that the ZBA's composition was impermissible be- cause the statutorily mandated City Solicitor and City Engineer members did not participate in the decision. As such, Friends contended that the ZBA's decision must be invalidated. Friends' argument was based in title 22, § 322(a) of the Delaware Code. Under § 322(a), in cities or incorporated towns that have not ad- opted a home rule charter, the ZBA must: "consist of the chief engineer of the street and sewer department, the city solicitor and the mayor or an authorized agent of the mayor ...." Here, neither the City Solicitor not the City Engineer served on the City's ZBA. The ZBA instead consisted of: the City's Director of Trans- portation in place of the city engineer; the City's First Assistant City So- licitor in place of the city solicitor; and the mayor's authorized agent. The City 'argued that: (1) the statute allowed the Chief Engineer and City Solicitor to appoint agents to serve in their place on the ZBA; and (2) in any case, § 322(a) should be construed in light of the City's Charter, which provided for the performance of department duties by designees. The Superior Court concluded that the composition of the ZBA was permissible, and that the ZBA had properly granted the use variance to Ingleside. Friends appealed. DECISION: Reversed, and matter remanded. The Supreme Court of Delaware (the "Court ") held that the ZBA was improperly composed. Because the ZBA was not properly constituted, the Court held that the ZBA's decision granting Ingleside the variances must be set aside. The Court explained its holding: Under the required strict construc- tion of S 322(a), its plain language allowed the Mayor to appoint an au- thorized agent to serve on the ZBA, The absence of similar language for the Chief Engineer and City Solicitor indicated that the General Assem- bly did not intend for an analogous delegation option to exist for those two members. Accordingly, found the court, "section 322(a)'s plain lan- guage preclude[d] a conclusion that the Chief Engineer and City Solicitor may appoint agents to serve in their place on the ZBA." © 2012 Thomson Reuters 5