The Facts about our
Chancery Court Case

Our Opening Brief to the
Delaware Supreme Court

Supreme Court Reply Brief

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We are the property and business owners of 1703 and 1709 Concord Pike in Wilmington, Delaware.

We oppose the change of use of 1707 Concord Pike from general office to light auto service (auto detailing).

It has been 675 weeks and 5 days since we first complained to New Castle County about this property.

For all of you who own commercial properties in New Castle County or represent those who do, it seems that changing the use of a nonconforming property to a more intensive use does not require you come up to current code. If you have been spending tens of thousands of dollars to reduce your square footage, engineer parking plans, and/or get variances from the Board of Adjustment, then you have been duped by the Land Use Department.

And for those of you like us who have shared parking, be prepared to be overrun when one of your neighbors changes to a more intensive use. The County will lie to you and then look the other way. In their eyes, "shared parking" means "unlimited parking" and UDC Section 40.22.611 Subsection K does not apply.

Delaware Chancery Court & New Castle County Sanctioned Land Grab

As part of the approval process for the 2nd Change of Use Permit issued 5/20/2013, New Castle County has erroneously given away parking rights in the rear of our Triplex (1701-1705) buildings. Below is the 5/17/13 approval by Planner Ken Bieri (KRB) that states the 1707 “owner has rights to use parking in front of and in back of 1701,1703, and 1705 per the 1946 Deeds”. (emphasis added).

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This is completely wrong.

The 1946 deeds strictly prohibit parking Common Area #2. It was designed as a loading/unloading area for the three stores. There are rear entrances and basement entrances. Parking any cars in that area limits the use and access to the other properties.

#1 is in front of the stores (currently has 7 striped parking spots) and is called “Common Parking and Driveway Area”.  It is “for parking and driveway purposes".
#2 is the L-shaped driveway that runs along the north side of the Triplex and in the rear of the Triplex.  It is called the “Common Driveway” and is "for driveway purposes".

Below is the assignment clause from the Triplex deeds for common area #1 (the area in front of the buildings). It clearly states "for parking and driveway purposes":

Below is the assignment clause from the Triplex deeds for common area #2 (the area on the side and to the rear of the buildings). It clearly states "for driveway purposes":

In other words, no parking in common area #2. Even their surveyor, Mr. Paraskewich, testified to this at trial and in his report that was a trial exihibit and given to the County Land Use Dept:

Nor did Vice Chancellor Laster state anything different in his 10/24/2012 post-trial order. See below from Paragraph #1 - VC Laster states that the current owners of 1707 Concord Pike "hold the easement rights set forth in the 1946 Deeds".

Per the 1946 Deeds, the only parking available at the Triplex (1701-1705) is in the front "parking and driveway area" (Common Area #1) where there are currently 7 striped parking spaces.

Please see the annotated version of the original 1946 deed for 1705 Concord Pike.

UPDATE - July 2013:

The Delaware Chancery Court really did change our 1946 deeds!

66 years later the two common areas that are very well defined in the metes and bounds of our 1946 deeds have been changed into three common areas!

Since 1946 our deeds have said you can park in the front area (that has 7 striped parking spaces) and you were allowed to drive to the rear to access the back loading area. When these buildings were build in 1946 they were a grocery store, pharmacy/soda counter, and liquor store and the Driveway was designed to allow deliveries to the rear. There are basement, 1st floor and 2nd floor entrances in the rear. There have never been parking spaces back there because the entire area is needed for turning around. Parking cars in the Common Driveway blocks access to the rear of each unit.

Now, according to the Chancery Court, parking is allowed anywhere (including the Driveway) but it would be "most appropriate" to park in the front or back.

1946 Deeds Two Common Areas	VC Laster’s 10/24/2012 Post-Trial Order & 7/24/2013 Comments - Three Common Areas
Area #1 “for parking and driveway purposes” Area #2 “for driveway purposes” *1946 Deed language and common areas confirmed by expert witness from PELSA surveyors hired by 1707 Concord Pike owners. View PELSA report View 1946 Deed for 1705 Concord Pike	10/24/2012: Consequently, plaintiffs, in their capacity as the current owners of 1707 Concord Pike, hold the easement rights set forth in the 1946 Deeds. In front of the Triplex is a seventy-two foot wide, twenty-seven foot deep paved area containing seven parking spots (the "Front Parking Area"). Behind the Triplex is an equally wide and deep paved area (the "Back Parking Area"). The Back Parking Area is reached by a nine-foot wide driveway north of the Triplex and located on lot 1705 (the "Common Driveway"). 7/24/2013: The plaintiffs are certainly entitled to use the Common Driveway and the Front and Back Parking Areas. This includes parking in them, although such a use would be most appropriate for the Front and Back Parking Areas. What the plaintiffs cannot to is prevent other property owners from using the Common Driveway, just as the defendants could not prevent the plaintiffs' use.