A
New Castle City Board of Adjustment Hearing (Continuance) took place
on September 29, 2008 at 7 p.m. in the City of New Castle’s
Town Hall.
Present: Mayor
John F. Klingmeyer
Roger A. Akin, City Solicitor
David Athey,
City Engineer
Mayor
Klingmeyer called the meeting to order at 7 p.m. He introduced City
Solicitor Roger Akin and City Engineer David Athey.
The
Mayor read the Notice of Public Hearing that states, “An
application has been filed by Regina Marini for property located at
101 West Third Street, New Castle, Delaware, parcel number
21-018.00-007, seeking an appeal from the Historic Area Commission’s
denial dated 11/19/07 of her plan to construct a single-family
residence on her lot at 101 West Third Street. The Board of
Adjustment met to consider this appeal on July 10, 2008. After
taking certain testimony and receiving additional materials in
evidence, the hearing was recessed. For the purpose of considering
this application, the Board of Adjustment will continue the public
hearing held on this matter on Monday, September 29, 2008, at 7 p.m.
in Old Town Hall, 2nd
floor, located at 201 Delaware Street, New Castle, Delaware.
Mr.
Akin provided a background of the proceedings to date.
(Everyone
providing testimony this evening was sworn in by the Mayor.)
Mr.
John Tracey, counsel (Young, Stargatt, Conaway and Taylor) for
property owner Regina Marini, and Todd Breck, Project Engineer,
presented to the Board. Mr. Tracey believes that most of the
testimony from the applicant’s perspective has been placed into
evidence and provided to this Board. He followed with highlights
from the last hearing. His clients are requesting a reversal of the
Historic Area Commission’s (HAC’s) decision at their 9/07
meeting to deny the concept plan (mass and scale) allowing the
applicant to move towards a building permit and an additional set of
reviews for the HAC’s review.
Mr.
Akin suggested that since this is a continuation hearing, if any
witnesses speaking tonight are either for or against this appeal, Mr.
Tracey should be given an opportunity to address their testimony.
Mr.
James Meek, resident of New Castle, said he can provide evidence of
what the house looked like and what the footprint of the house was.
He is countering prior testimony that there was no evidence of what
the footprint was. On the City’s website there is a link to
the Community History and Archeology Program’s website showing
aerial photos of the 1930’s and 1940’s and an engineering
drawing by the Sanborn Fire Insurance. He is offering as evidence a
drawing dated 1901 giving detail of the property and its relationship
to the properties across the street. (He
spoke of some of the details concerning the property.)
Mr.
Bayard Marin, counsel for Ms. Katherine Klyce and Mr. John Wheeler,
stated that the purpose of this Board is to review the HAC
proceedings and determine whether or not the HAC decision was
arbitrary and capricious. The historic standards to be applied are
not whether the building complies with Code, but whether it fits into
the environment of the historic district. The New Castle area
guidelines pertaining to historic districts state that new
construction should be compatible with neighboring properties. (Mr.
Marin then detailed the rationale for his clients’ objections
to the appeal request.)
Mr.
Akin asked Mr. Tracey if he still feels that Mr. David Bird could not
be an impartial member of the HAC in considering this application.
Mr. Tracey feels that since Mr. Bird had previously expressed his
opinions by endorsing Mr. Wheeler’s statements after the
original hearing, he should have recused himself from the
decision-making process. (Questions
and answers followed.)
Discussion
followed amongst Board members concerning Mr. Bird’s vote at
the HAC proceedings. Mr. Akin stated that the applicant needs a
majority of all votes of those sitting at the final HAC hearing when
a decision was handed down in September 2007. Mr. Bird was one of
three negative votes.
Ms.
Katherine Klyce stated that she had expressed her concerns over this
project at the last hearing and reviewed her concerns again.
Mr.
Wheeler followed with his concerns about this project.
Mr.
Athey questioned Mr. Wheeler’s allegation that many trees will
be destroyed in Battery Park if the home is built as designed. He
stated that roots will be killed and branches will be trimmed to
accommodate construction.
Mayor
Klingmeyer clarified for the record that he has no relationship with
Ms. Marini.
Gene
Dempsey, (sworn in by the Mayor) owns several properties in the City
and respects the City and Battery Park. He testified that Ms. Marini
has a right to build on her own property.
Dorsey
Fiske, 26 East Third Street, (sworn in by the Mayor) stated that the
HAC has been put into place to protect standards of the historic
areas of this town. It is good for the property values of this town.
When you live in a town you are required to live by certain laws.
HAC has done its best to keep historic values of the historic area
and to adhere to federal guidelines.
James
Meek provided a follow-up comment to his earlier statement about the
measurements of the house. He approves of HAC trying to maintain a
feeling for the town.
Jim
Workman, 21 West Third Street, (sworn in by the Mayor) believes you
should be able to do what you want with your land. They have tried
to stay within HAC guidelines, but if someone doesn’t like what
you want to do to your property, the City should be prepared to pay
the fair market value of the land rather than use force to change the
owner’s plan. If the town wants to prevent the use of a
property, it should be prepared to pay.
Tom
Wilson, Second Street, (sworn in by the Mayor) is concerned that the
Board’s decision tonight will set a precedent. He is hearing
that in the future he can’t buy a lot and build on it in the
City because you have to build an old house in the historic district.
If someone plants a tree and it grows onto my property I can’t
trim it back because it might kill the tree. If we establish
footprints I can never put an addition on my house. The Board’s
decision tonight will affect everyone.
Judy
Smith, 38 West Fourth Street, (sworn in by the Mayor) disagreed that
the applicant is being told she can’t build on the land.
Rather, the building must fit in with the spirit and design of the
historic area. Many communities have building restrictions and she
values the HAC watching out for her property and its value.
Karen
Heyman, 207 East Second Street, (sworn in by the Mayor) appreciates
the work that the HAC does. She believes that we live in a
federally-declared historic district and that imposes certain
limitations on the property that is in our care. When you buy
property here it comes with certain restrictions respecting the fact
that we want to maintain the quality, architecture, spirit and
ambience of one of the oldest towns in America.
Lula
Etherton, 2 Plum Alley, (sworn in by the Mayor) said that all of the
houses built around her were not built with sympathy of scale or
style as mentioned earlier, but she has no problem with this. She
referenced a notice left at her home alerting residents that there
were matters of great importance concerning the park and historic New
Castle. She sees this as a complaint by one homeowner. She feels
the applicant should be able to build a home that serves the needs of
her family.
Robert
Smart, Fifth Street, (sworn in by the Mayor) said he was aware of the
impact that HAC would have on improvements he wanted to do to his
home. He feels that homeowners should be able to do what they want
with the property they purchase. He described HAC proceedings and
referenced the lengthy process the applicant has experienced. The
process has been going on for two years and he feels that there is
room for negotiation to come to a decision that is agreeable to both
parties.
Mr.
Tracey was given the opportunity to address new testimony this
evening. He objected to the submission of information that Mr.
Wheeler presented as prepared by Mr. Dill as being inappropriate
since Mr. Dill is not present to attest to how measurements were
calculated in the document. Mr. Akin agreed with Mr.
Tracey’s objection that the document should be stricken from
the record realizing that the Breckstone documentation that has been
submitted has a good deal of information concerning measurements that
is certified. Mr. Marin did not object to the City Solicitor’s
decision to strike Mr. Dill’s information.
Mr.
Akin made a motion that the objection to the exhibit be granted.
Mr. Athey seconded the motion. The motion was approved by
unanimous vote.
Mr.
Tracey addressed several comments that were made during testimony.
Mr.
Athey revisited the issue of Mr. Bird and his vote with the HAC. Mr.
Akin said that since the issue has been raised before this Board we
have an obligation to address it. Mr. Akin referred to page 16 of
the 6/15/06 transcript containing the comments by Mr. Bird
constituting evidence of bias on Mr. Bird’s part in the
proceedings. We must address whether Mr. Bird’s comments
render him unable to fairly participate in HAC proceedings after
those comments. Mr. Akin does not feel the comments establish an
irrevocable bias in Mr. Bird’s mind, nor does it indicate that
he formed an opinion on the application that early in the
proceedings. A decision wasn’t rendered until 15 months later
when Mr. Bird voted ‘no’ as a member of HAC.
Mr.
Athey disagreed with Mr. Akin’s statement. Mr. Bird spoke of
legal issues dealing with the property that need to be resolved, one
of which was set-back requirements. If he was neutral or in favor of
the project, he would not have raised the possibility of legal
issues. Therefore, Mr. Athey does feel Mr. Bird was biased.
Mr.
Athey made a motion to disallow Mr. Bird’s vote at the 9/20/07
HAC meeting because he indicated in the 6/15/06 HAC meeting that he
was biased toward the project and based on case law that Mr. Tracey
presented at our prior meeting, he should have recused himself.
Mayor Klingmeyer seconded the motion.
Mr.
Akin voted against the motion citing as rationale that he is not
convinced that statements made by Mr. Bird on page 16 on the 6/06
transcript do not demonstrate the kind of bias that would preclude
him from serving as a fair-minded member of the HAC. He feels that
Mr. Bird’s statements do not show the level of bias that would
cause his further involvement to have denied due process to the
applicant.
Mr.
Athey voted in favor of the motion. His interpretation is that Mr.
Bird would not have spoken at that meeting if he were not opposed to
the project and therefore carried bias with him when he was appointed
to the HAC.
Mayor
Klingmeyer voted against the motion stating Mr. Bird’s
statements were relatively innocuous. Since he is an attorney, he
was raising questions relevant to the project.
The
motion failed 1-2.
Mr.
Athey asked what the process is for the applicant after HAC denies an
applicant’s request?
Mr.
Akin said that State law provides that decisions of municipal Boards
of Adjustment in Delaware may be appealed to the Superior Court on
the record, not a new trial or hearing. The judge determines whether
the Board of Adjustment acted within its discretion and that the
records support their decision.
Mr.
Athey stated that HAC was created in 1968 and Ms. Marini purchased
this parcel in 1998. Ms. Marini knew or should have known of HAC’s
existence when she made the purchase of the land. Mr. Athey added
that in the past this Board has held that it can overrule HAC on
procedural issues, but this Board has elected not to overrule HAC on
other matters. Mr. Athey feels that although HAC is not perfect, he
believes that they tried to reach a compromise with Ms. Marini
without success. Ms. Marini had an opportunity to return to HAC
again, but chose not to do so. If Ms. Marini seeks further relief,
she should approach City Council. Because Mr. Athey did not find any
procedural missteps on behalf of HAC in this case, he will vote to
support HAC’s decision.
Mayor
Klingmeyer commented that the creation of the HAC was motivated to
protect the historic district. The purpose of the HAC was to
preserve Colonial homes and it meant that people in other homes were
not non-conforming. Every house in the City did not have to be
preserved to its original structure; it only affected Colonial homes.
City Council passed it unanimously and the citizens approved it.
Over the years some members of the HAC have expanded the definition.
The area in question is an open area. HAC tried to amend the law by
removing the name ‘Colonial’ and replacing it with
‘historical’ meaning that almost every home would be
bound by the HAC. It failed because the majority of citizens in the
historic area opposed it. HAC has exceeded its authority over the
years by going into areas where they have no authority. The City
Charter does not take away the right to build. They are property
rights. He will vote in favor of reversing HAC’s judgment to
deny the Marini application.
Mr.
Akin said this Board has raised the issue of dismissing the case
based on timeliness. The HAC ordinance (Section 230-52(c)) says that
upon disapproval of any application the HAC shall forward a written
statement stating the reasons to the applicant. We have searched
records associated with this case and have found none. Either a
disapproval certificate/statement was never issued to the applicant
or the minutes of the 9/20/07 HAC meeting serves this purpose. (He
read aloud the HAC voting on the issue from those minutes. Voting
rationale was vague.) This
was insufficient notice to the applicant. He considered remanding
this case back to the HAC so that the members of HAC could go on
record articulating their votes. He has reconsidered this action
citing that if a transcript of the hearing can be produced and it
indicates why all the members voted why they voted it would be
sufficient. Mr. Tracey’s office had transcripts prepared for
the hearing; therefore, it does not need to be returned to the HAC.
The Board of Adjustment’s function tonight is to determine
whether the HAC acted properly when handing down its decision. Mr.
Tracey and his client are aware for the reasons for disapproval by
the HAC. After reviewing all of the opposing votes and supporting
rationale from the HAC transcript, Mr. Akin feels the members of HAC
stated with sufficient clarity to indicate they followed what they
are mandated to do by way of the City ordinance. Based on the
overall record in the case and how he believes the HAC members voting
‘no’ tried to convey their views of this evolving plan,
in the end they determined that things such as mass, scale,
streetscape and comparative view of the proposed house to neighboring
properties was something that was unacceptable to the HAC. He will
vote in favor of affirming the HAC’s ruling to deny the
applicant’s concept plan.
Mayor
Klingmeyer responded to Mr. Akin’s statement by reciting
Article 7, 230-52, Powers and Duties of the HAC. The last section
addresses granting a historic review certificate is a result of being
compatible with the Colonial period of New Castle. Based on the
original intent of the law, the Mayor feels the HAC has exceeded its
authority.
(Additional
discussion followed about the intent of the law and the duties of the
HAC.)
Mr.
Athey made a motion that this Board deny the applicant’s appeal
from the HAC’s denial dated 9/20/07. Mr. Akin seconded the
motion.
A
roll call vote was called.
Mr.
Athey – voted in favor of the motion
Mr. Akin – voted
in favor of the motion
Mayor Klingmeyer – opposed the motion
The
motion passed by a vote of 2-1.
The
hearing was adjourned at 9:10 p.m.
Respectfully
submitted,
Debbie
Turner
Stenographer
Applicant
Exhibits:
7)
Package of approximately 100 sheets provided by the applicant since
the
July
hearing constituting the various submittals to the HAC
8)
7-page legal memo summarizing historic guidelines supporting HAC’s
decision – prepared by Mr. Marin
9)
Additions and New Construction Guidelines
Public
Exhibits:
City
Exhibit 1) – two (2) aerial photos of New Castle and a 1901
graphic of various City properties (submitted by Mr. Meek)
