Board of Adjustment

MINUTES OF THE BOARD OF ADJUSTMENT December 7, 2022 The meeting was called to order at 6:00 p.m. by Chairman Rodney Slaughter. Board Members present were Frederick Schaber, IV and Sharon Wright. Board member Marie Fontaine St. Pierre and Dwayne Newman was excused. Also present were Senior Planner Jeremy Rothwell and Attorney D. Barrett Edwards was via zoom. Chairman Rodney Slaughter led the Pledge of Allegiance. RECOGNITION OF VISITORS Visitors present in person were Ayesha and Ryan Jamison, and James Harden. ADDITIONS/DELETIONS TO PUBLISHED AGENDA There was none. MINUTES Board Member Schraber, IV made the motion to approve the minutes of December 15, 2022, as presented. Motion was seconded by Board Member Wright and carried unanimously. PUBLIC HEARING A. Ayesha and Ryan Jamison, #22-114, 64 Pebble Creek Drive, 1-17-02801-02-2500- 00001 A public hearing for the application was held on January 25, 2023. Participating in the hearing were Board of Adjustment members Rodney Slaughter, Frederick Schaber, and Sharon Wright. Jeremy Rothwell participated on behalf of the Town, as did attorney Barrett Edwards. The Applicant was represented at the hearing by Ryan Jamison and James Hardin. After being duly sworn, Mr. Rothwell read into the record the dates and locations of the public hearing notices as indicated on the variance data sheet prepared by town staff. The data sheet indicated that the public hearing notice was published in the Delaware State News on January 8, 2023. Notice was posted at Town Hall and on the Property on January 10, 2023. Notice was mailed to the property owner and abutting property owners on January 10, 2023. The Staff Report and exhibits were entered into the record as Exhibit A. Pursuant to Mr. Rothwell’s testimony and the information contained in the Staff Report, the Applicants are seeking to tear down their current deck and construct a slightly larger 12’ by 16’ covered porch. Mr. Rothwell indicated that covered decks are a relatively common amenity, and he felt the main question was what size would be reasonable. Board of Adjustment Page 2 of 3 January 25, 2023 James Hardin was sworn in and testified that not getting the variance would make it difficult for them to have reasonable use of the deck with enough space to move around the deck. He indicated that as twelve-foot deck is the smallest that he typically constructs. He clarified that the porch would be completely enclosed but that a portion of the deck would be unenclosed. Ryan Jamison was sworn in and testified that they were looking to improve their house in order to better enjoy the Property. No one appeared in opposition to the variance request. Section 9.3 of the Zoning Code authorizes the Board to grant variances that “will not be contrary to the public interest where, owing to special conditions, a literal enforcement of the provisions of [the Zoning Code] would result in unnecessary hardship and/or exceptional practical difficulties.” Section 327(a)(3) of Title 22 of the Delaware Code provides that the Board may: Authorize, in specific cases, such variance from any zoning ordinance, code or regulation that will not be contrary to the public interest, where, owing to special conditions or exceptional situations, a literal interpretation of any zoning ordinances, code or regulation will result in unnecessary hardship or exceptional practical difficulties to the owner of property so that the spirit of the ordinance, code or regulation shall be observed and substantial justice done, provided such relief may be granted without substantial detriment to the public good and without substantially impairing the intent and purpose of any zoning ordinance, code, regulation or map . . . In order to grant area variances,1 the Board must find that exceptional practical difficulties exist.2 An exceptional practical difficulty exists “where the requested dimensional change is minimal and the harm to the applicant if the variance is denied will be greater than the probable effect on the neighboring properties if the variance is granted.”3 The Zoning Code identifies the following factors to weigh when making an exceptional practical difficulty determination: (1) Special conditions or exceptional practical difficulties exist which are particular to the land, structure or building involved because, among other reasons, of its size, shape, location or topography and which are not applicable to other lands, structures or buildings in the same district; (2) Literal interpretation of the provisions of the Zoning Code would deprive the applicant of rights commonly enjoyed by other properties in the same district under the terms of this ordinance; 1 Area variances address parcel characteristics such as “height, size or extent of lot coverage, size of the buildings, placement of the building on the site or other restrictions relating to the physical characteristics of the site.” Wawa, Inc. v. New Castle County Bd. of Adjustment, 929 A.2d 822, 830-31 (Del. Super. Ct. 2005). There is no dispute in the record that an area variance is being requested. 2 Bd. of Adjustment v. Kwik-Check Realty, Inc., Del. Supr. 389 A.2d 1289, 1291 (1978). 3 Id. at 1291. Board of Adjustment Page 3 of 3 January 25, 2023 (3) The special conditions and circumstances do not result from the actions of the applicant; (4) Granting the variance requested will not confer on the applicant any special privilege that is denied by the Zoning Code to other lands, structures, or buildings in the same district; (5) The variance requested is the minimum variance that will make possible the reasonable use of land, building and structure; (6) Granting the variance will be in harmony with the general purpose and intent of the Zoning Code; (7) The variance will not be injurious to the neighborhood, or otherwise detrimental to the public welfare; and (8) The variance will not be contrary to the public interest. After the public hearing was closed and the Board had been given an opportunity to ask questions and clarify the details of the requested variance, a motion was made and seconded to approve application 22-114. Based on the information contained in the application, the comments and report from Town Staff, the testimony presented at the public hearing, and for additional reasons specifically outlined herein, the Smyrna Board of Adjustment voted 3 to 0 to approve a variance from the rear yard setback to allow an encroachment of 1.1 feet to allow the construction of a 12’ by 16’ covered porch. The Board Members voted to approve the application because it would be consistent with other properties in the neighborhood. The variance would be an improvement to the Property and would not be detrimental to the surrounding properties. The harm to the Applicant from being denied the variance would be greater than the harm to the neighboring properties resulting from granting the variance and allowing the slightly larger covered porch to be constructed. Board Member Wright made a motion to approve the variance application #22-114. The motion was seconded by Board Member Schraber IV and carried unanimously. The full review and discussion can be viewed starting at 0:0:00:40 on the posted recording. OTHER BUSINESS There was none. ADJOURNMENT Board Member Schraber IV made the motion to adjourn. Motion was seconded by Board Member Wright. Meeting was adjourned at 6:20 p.m. by unanimous vote. clw