Board of Adjustment

MINUTES OF THE BOARD OF ADJUSTMENT April 26, 2023 The meeting was called to order at 5:37 p.m. by Chairman Rodney Slaughter. Board Members present were Frederick Schaber, Dwayne Newman, Sharon Wright, and Marie Fontaine St. Pierre. Also present were Senior Planner Jeremy Rothwell, Crystal Wheeler, George DeBenedictis, and Attorney D. Barrett Edwards. Chairman Rodney Slaughter led the Pledge of Allegiance. RECOGNITION OF VISITORS Visitors present in person were Roger Holt, Ed Idell, Nick Marvel, Mike Loftis, Mike Biddle, Bennie Beachy, and Kayla McAlpine. ADDITIONS/DELETIONS TO PUBLISHED AGENDA Board member Newman made a motion to approve the published agenda. Motion seconded by Board member Schaber, IV, and carried unanimously. MINUTES Board Member Newman made the motion to approve the minutes of February 22, 2023, as presented. Motion was seconded by Board Member Fontaine St. Pierre, and carried unanimously. PUBLIC HEARING A. Kayla McAlpine, #SE-2023-126, 334 West Mount Vernon Street, 1-17-01017-01- 5800-00001 A public hearing on the application was held on April 26, 2023. Participating in the meeting were Board Members Rodney Slaughter, Dwayne Newnam, Frederick Schaber, Marie Fontaine St. Pierre, and Sharon Wright. Jeremy Rothwell also participated on behalf of the Town, as did attorney Barrett Edwards. Kayla McAlpine represented herself as the Applicant at the hearing. After being duly sworn, Mr. Rothwell read into the record the dates and locations of the public hearing notices. Notice was posted at Town Hall, on the Property, and mailed to the property owner and abutting property owners on April 11, 2023. The notice was published in the Delaware State News on April 9, 2023. The special exception data sheet prepared by town staff (“Staff Report”) was entered into the record as Exhibit A. The narrative provided by the Applicant was entered into the record as Exhibit B. Board of Adjustment Page 2 of 8 April 26, 2023 As indicated in the Staff Report and the testimony provided by Mr. Rothwell at the hearing, the Applicant is seeking special exception approval for a major home occupation to establish a dog grooming business at the Property. The Applicant will be enclosing a carport to establish this business. She would not be housing dogs over night and she would only have one dog at a time being serviced by her business. Kayla McAlpine was sworn in and testified on behalf of the application. She wants to establish a dog business with hours 8 am to 4:30 pm, Tuesday through Saturday. She only plans to service one dog at a time, but she will have kennels available to house dogs in case someone is late picking up a dog. She indicated that there will not be any signs for the business, and she did not think there would be any issue with parking. She did not anticipate much additional negative vehicular or pedestrian traffic on Mt. Vernon Street as a result of this business. The business would not generate any loud noises or other negative impacts to the area. No one appeared to testify in opposition of this application. The Property is zoned Residential R-2, which zoning district permits major home occupations pursuant to special exception approval. The Board may approve a special exception if it finds under section 9.2 of the Zoning Code that “the particular use will be in harmony with the purpose and intent of the ordinance, will not significantly impair the appropriate use of adjoining or nearby property, and will serve the convenience and welfare of the community.” Section 9.2 also requires the Board to consider, among other things, the following: (1) The volume of existing traffic and the volume of traffic that will be generated by the proposed use; (2) The adequacy or inadequacy of available parking and the possible need for and availability of additional off-street parking; (3) The potential for objectionable or nuisance-causing activities, including but not limited to air pollution (smoke, ash, dust, fumes, vapors or gases), vibration, noise, heat, glare, light, noxious odors, or radio or television interference; (4) The economic and aesthetic effect upon adjoining or nearby properties; (5) The suitability of the proposed use in keeping with the harmony of adjoining or nearby properties; and (6) The amount of pedestrian traffic generated, including the potential for congregation of individuals at or near the property involved. After the public hearing had been closed and the Board Members had an opportunity to discuss the matter, Board Member Newnam made a motion to approve special exception application 23-126, and Board Member Wright seconded the motion. Based on the application, comments from town staff, the testimony presented at the public hearing, and the exhibits incorporated into the record, and for additional reasons specifically outlined herein, the Smyrna Board of Adjustment, by a vote of 5 to 0, voted to approve special exception application 22-126 to allow a major home occupation at the Property. The Board Members approved the Application because it would not have a negative impact on the neighborhood and would be in harmony with the area. The approval was conditioned on her obtaining her parking waiver for 2 of the required 3 parking spaces and her limiting the hours of operation to 8:00 am to 4:30 pm, Tuesday through Saturday. Board of Adjustment Page 3 of 8 April 26, 2023 B. Jack Honeycutt, #V-2023-89, 342 West Glenwood Avenue, 1-17-00920-01-5900- 00001 A public hearing for the application was held on April 26, 2023. Participating in the hearing were Board of Adjustment members Rodney Slaughter, Marie Fontaine St. Pierre, Dwyane Newnam, 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 contractor Benny Beachy. 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 April 9, 2023. Notice was posted at Town Hall and on the Property on April 11, 2023. Notice was mailed to the property owner and abutting property owners on April 11, 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, they are looking to reduce the side yard setback and rear setback from 6 ft to 2 ft to construct an accessory pole barn. Bennie Beachy was sworn in and testified that the property owner would like to place a 30’ x 40’ pole barn building in the rear yard. Board member Newman was concerned that not having a diagram/overlay of where the building is going and how far the building will be in set 4 ft into the required 6ft setback. He asked Mr. Beachy what the dimensions were between the side fence, looking at the house, right hand side to where the existing garage is. Mr. Beachy responded that it will be back 2ft and will still have 10 ft from the house. The building will encroach 2 ft of the rear/side fence. Board member Schaber asked what the difficulty would be if the variance was not granted. Mr. Beachy responded that the project would be dropped or consider cutting the building size in half. The maximum building size, if necessary, would be 20’ x 25’. Board member Newman made a motion to table the application to next month’s meeting due to not having all the information that is needed and that the applicant come in to explain the reasoning for the size of the pole building and the hardship if the variance was not granted. Board member Schaber seconded the motion. The Board would be uncomfortable coming to a decision without being able to see the full dimensions of the property layout, lines, and grades. A survey was provided and were entered in the record as Exhibit B. Board member Slaughter explained that by tabling the application that this will give the contractor an opportunity to talk to the applicant and determine what size would be the minimum that would be acceptable to build. This would also give the Board a better position and understanding. When looking at 2ft, you will need to look at the fire safety and all emergency services getting in and out of such a small area. The Board does not want to make a hardship for the emergency services and for the client in granting variances. C. Rosie Distler, #V-2023-125, 438 North School Lane, 1-17-00916-02-1900-00001 A public hearing for the application was held on April 26, 2023. Participating in the hearing were Board of Adjustment members Rodney Slaughter, Marie Fontaine St. Pierre, Dwyane Newnam, Board of Adjustment Page 4 of 8 April 26, 2023 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 contractor Mike Biddle. 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 April 9, 2023. Notice was posted at Town Hall and on the Property on April 11, 2023. Notice was mailed to the property owner and abutting property owners on April 11, 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, they are looking to construct a covered porch at the front of the Property. Mr. Rothwell indicated that any size front porch added to this Property would require a variance, and this would be a four-foot encroachment into the front yard setback. Mike Biddle was sworn in and testified that the property owner would like an eight-foot by six-foot porch constructed on the front of the Property. He indicated that without the variance, it would not be possible to construct the covered porch, which would create a hardship. The Property owner is seeking the covered porch to have place to shield her from the elements when entering into the house and to give her a place to sit outside. 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. An exceptional practical difficulty exists “where the requested dimensional change is minimal 2 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 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 5 of 8 April 26, 2023 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; (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 23-125. 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 5 to 0 to approve a variance from the front yard setback to allow an encroachment of 4 feet to allow the construction of an 8’ by 6’ covered porch. The Board Members voted to approve the application because it would be consistent with other properties in the neighborhood. The variance will not be detrimental to the neighborhood or welfare of the community and will be in harmony with the surrounding area. 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 covered porch to be constructed. For the reasons stated above and as more specifically described herein, the Board finds all the conditions required to grant the requested variance have been satisfied, and Variance Application 23- 125 is hereby approved. D. Smyrna School District, #V-2023-125, Rabbit Chase Lane, 1-17-02801-05-0100-0000 thru 1-17-02801-05-1500-00001; 1-17-02801-05-5200-00001 thru 1-17-02801-05-5700-00001; and 1-17-02801-05-6800-00001 thru 1-17-02801-05-9400-00001 A public hearing for the application was held on April 26, 2023. Participating in the hearing were Board of Adjustment members Rodney Slaughter, Dwayne Newnam, Marie Fontaine St. Pierre, Frederick Schaber, and Sharon Wright. Jeremy Rothwell participated on behalf of the Town, as did attorney Barrett Edwards. The Applicants were represented at the hearing by Michael Loftus with CDA Engineering, Inc. Board of Adjustment Page 6 of 8 April 26, 2023 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 April 9, 2023. Notice was posted at Town Hall and on the Property on April 11, 2023. Notice was mailed to the property owner and abutting property owners on April 11, 2023. The Staff Report was entered into the record as Exhibit A. Pursuant to Mr. Rothwell’s testimony and the information contained in the Staff Report, the Property is planned to be used for a new intermediate school. Mr. Rothwell explained that the Applicant is locating the school within approximately 12 feet of Graceville Drive to meet the intent of the Zoning Code to be close to the road, but given the required parking and ball fields and playgrounds, it would be difficult to meet the maximum frontage requirements on the entire Property. Mr. Rothwell testified that it would be difficult to meet the tree planting requirements given the requirements for playing fields. As for the loading spaces, based on the information provided by the Applicant, one loading space seemed to be adequate. Roger Holt and Michael Loftus were sworn in and testified on behalf of the Applicant. Mr. Loftus indicated that potential geothermal fields underneath the Property limited the space where trees could be planted. Mr. Holt indicated that they are able to collaborate with the vendors to coordinate deliveries, so based on experiences with other schools, only one loading space is needed to serve the Property. No one appeared to speak in opposition to the application. 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 3.03 of the Subdivision Code authorizes the Board to grant variances “when, due to special conditions or an exceptional situation, a literal application [sic] the provisions of this ordinance will result in unnecessary hardship or exceptional practical difficulty to the owner of the property under consideration. All case law currently existing, and which continues to be made, interpreting 22 Del. C.§ 321 et. seq. shall be adhered to by the board of adjustment.” 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 . . . Board of Adjustment Page 7 of 8 April 26, 2023 4 In order to grant area variances, the Board must find that exceptional practical difficulties exist.5 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.”6 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; (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, Board Member Schaber made a motion to approve the following variances detailed herein for variance application 22-136: • Variances from the maximum 30-foot front yard setback outlined in the bulk standards table in Section 6.14.2 to have a 306.5-foot front yard setback along Rabbit Chase Lane and a 415.7-foot front yard setback along West Deer Run. • A variance from Section 6.1B(1)(h) to have one loading space (in lieu of the required 3 loading spaces). • A variance of 66 trees to plant 132 of the required 198 trees per Section 5.17.c. of the Subdivision Code that requires the planting of one (1) tree per 3,000 sq. ft. The motion was seconded by Board Member Newnam. 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 4 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. 5 Bd. of Adjustment v. Kwik-Check Realty, Inc., Del. Supr. 389 A.2d 1289, 1291 (1978). 6 Id. Board of Adjustment Page 8 of 8 April 26, 2023 of Adjustment voted 5 to 0 to approve these variances from the Town Code as more fully detailed herein. The Board Members voted to approve the variances outlined herein for application 22- 136 because the variances would be in harmony with the other schools and the variances are the minimum variances that will make reasonable use of the Property. For the reasons stated above and as more specifically described herein, the Board finds all the conditions required to grant the requested variances have been satisfied, and Variance Application 22-136 is hereby approved. OTHER BUSINESS There was none. ADJOURNMENT The meeting was adjourned at 6:47 p.m. clw