CCS Investors v. Brown


Oral Argument
06/04/09 – 06/04/09

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Case Description: This is an appeal from the Superior Court's final judgments denying a motion to dismiss and reversing a decision of the City of Wilmington Zoning Board of Adjustment (“ZBA”). In August 2006, the ZBA granted a use variance to CCS Investors, LLC (“CCS”), permitting CCS to develop the Gibraltar Estate into commercial office space. The Gibraltar Estate is a historic mansion and gardens at 1301 Greenhill Avenue in Wilmington. It is the former home of the Hugh Rodney Sharp family and is now owned by the non-profit organization Preservation Delaware, Inc. (“PDI”). PDI and CCS are the appellants/respondents-below.
The appellees/petitioners-below are David H. Brown, P. James Hahn, Kathyrn A. Pincus and Susan W. Soltys, residents of the surrounding neighborhoods who oppose the development of Gibraltar into office space. In October 2006, the appellees/petitioners-below filed a petition for a writ of certiorari in the Superior Court seeking judicial review of the ZBA's decision to grant the variance. The petition named only the ZBA, not PDI or CCS.
The ZBA filed a motion to dismiss for failure to name a necessary party, asserting that PDI, as the owner of Gibraltar, and CCS, as the prospective developer and variance applicant, were indispensable to the appeal. In June 2007, the Superior Court denied the motion to dismiss and granted the motion of the petitioners-below to amend the caption of the petition and add PDI and CCS as parties. In July 2008, the Superior Court reversed the ZBA's decision to grant the use variance on the grounds that the ZBA improperly granted the variance based on its finding of a hardship that was of the applicant's own making.

Procedural Description: In this appeal, CCS and PDI make four arguments. First, they contend that the Superior Court committed reversible error when it denied their motion to dismiss the appeal of the ZBA decision. They argue that their motion should have been granted because the petitioners-below failed to join the property owner, PDI, an indispensable party to the appeal. Second, they assert that the Superior Court committed reversible error when it permitted the petitioners-below to amend their petition to add CCS as a party after applying the relation back doctrine under Superior Court Civil Rule 15. The appellants assert that the Superior Court erred when it found that the “notice” and “mistake” requirements of the relation back doctrine had been satisfied. Third, they argue that the Superior Court erred when it reversed the decision of the ZBA based on the per se bar against self-imposed hardships. The appellants assert that CCS did not create the hardship and that the ZBA properly found that all of the elements of the unnecessary hardship test had been met. Fourth, they maintain that the Superior Court's adoption of the per se bar to a use variance when the hardship is self-imposed “ignores the public policy underlying the regulatory scheme; ignores the public policy favoring the productive use of land and ignores the consequences a per se bar would have on the implementation of future conservation easements.”

Outcome: The Supreme Court of Delaware held that the property owner is an indispensable party to an appeal from a decision of a municipal zoning board.Because the petition in this case failed to name the landowner-PDI-as a party, the court concluded that the judgment of the Superior Court must be reversed. The court held that the petition for a writ of certiorari seeking judicial review of the ZBA's decision should have been dismissed for failure to name an indispensable party-PDI. The court held that the decision of the ZBA granting CCS the variance should not have been reversed and stands on its merits.


Recording Disclaimer: This proceeding was recorded in full.

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