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 674 weeks and 6 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.

New Castle County Department of Land Use

This page chronicles some of our experiences with the New Castle County Department of Land Use.

10/25/13 Update

New Castle County Code Official Notice of Rule To Show Cause Decision - 1707 Concord Pike

No Car Washing Allowed.

Mr. Smith indicated that New Castle County Code Enforcement has had an open case on this property regarding discharging of soapy water for several months. Mr. Smith continued to explain that the New castle County Code
Chapter 12, Section 12.08.001, B, 1 states that, "it shall be a violation of this chapter to discharge, or cause to allow to be discharged, sewage, industrial wastes, or other wastes into the storm sewer system, or any component thereof, or onto driveways, sidewalks, parking lots, or other areas draining to the storm sewer system." Mr. Smith referred to a May 29, 2013 letter from Ms. Tracy Surles from New castle County Special Services to the Respondents, informing them that several complaints had been received by New castle County and the letter also reminded them to comply with Section 12.08.001(6)(1) regarding discharging of materlal Into the storm sewer system.

There were three specific notices to the Respondent regarding the prohibition of discharging soapy water from the operations at the property: (1) a September 15, 2011 Waiver for the Respondent indicated no soap to be used in the operations; (2) a May 29, 2013 letter from Ms. Tracy Surles from New Castle County Special Services to the Respondent informing them not to discharge Into the sanitary sewer; and (3) a September 13, Violation Notice to the Respondent to cease all exterior washing operations until a best management practice was approved. On October 9, 2013 a Code Enforcement Officer witnessed and entered into evidence photographs which depict soapy water discharge runoff from the property into the streets to a sewer inlet.

After listening to the testimony from Mr. Smith, Officer Yasik, and Mr. Staffieri, I find the Respondent responsible
for violation #1 as depicted in the September 13, 2013 Violation Notice.

A review of the Hansen files shows the Respondent as having previous code violations and recently assessed
$300.00 from a October 1, 2013 RTSC Hearing under Case #201307544. Additionally, the Respondent was given several directives not to allow soapy water discharge off the property and these directives were not met.
Therefore, the $300.00 Rule to Show cause Hearing Fee will be assessed.

Read the full decision.

10/2/13 Update

New Castle County Code Official Notice of Rule To Show Cause Decision - 1707 Concord Pike

No banner or other free standing signs allowed. No motor vehicle sales allowed.

Officer Yasik continued to explain that he conducted a site inspection on September 14, 2013 and observed a banner advertising window tinting along with a free-standing sign. Officer Yasik continued to explain that he drafted and sent out a September 17, 2013 Violation Notice requiring the property owners to correct the two code violations (window tinting banner sign and a 2002 Lexus ES200 posted for sale) by September 29, 2013. Officer Yaslk continued to explain that a previous Violation Notice for prohibited signs (NCC COde Chapter 40, Section 40.06.040E8) was issued to the property owners on March 22, 2013 and they were required to correct the code violation by April 4, 2013. Officer Yasik explained that they moved the sign into the Delaware Department of Transportation (DELDOT) right-of-way prior to April 4, 2013 and he thought this was now a DELDOT violation. Officer Yasik continued to explain that the property owners moved the sign again from the DELDOT right-of-way back onto their property and submitted photographs of this violation dated September 30, 2013 when he re-inspected the property. Officer Yasik continued to explain that regarding the second code violation depicted in the September 17, 2013 Violation Notice regarding the sale of motor vehicles, he first issued a Violation Notice for this on May 20, 2013 and required the violation to be corrected by June 2, 2013. Officer Yasik indicated that he observed a vehicle for sale on September 14, 2013.

The banner type and moveable signs as depicted in the September 30, 2013 photos submitted by Officer Yasik appear to have no sign permits on file which is a code violation. Therefore, the Respondents are responsible for this code violation.

Regarding Violation #2 in the September 17, 2013 Violation Notice, New castle County Code Chapter 40, Section 40.03.440, A reads, "The display of a motor vehicle for sale is prohibited by this Article at any location except at a private residence where no more than one ( 1) motor vehicle, owned by a resident of such private residence, may be displayed for sale at one time, or In zoning districts propertv zoned for motpr veblde yles so long as the property owner or tenant is properly licensed for such sales. However, in all cases, the display of such motor vehicles for sale in any public right-of-way is prohibited.'' Auto vehicles sales Is not listed as a permitted use as depicted in table 40.04.llA for Commercial Neighborhood (CN) zoned properties. However, the photographic evidence submitted by the Code Officer
did not show any vehicle for sale during the September 30, 2013 site inspection. Therefore, evidence does
not support that the Respondents are responsible for violation #2 as depicted in the September 17, 2013.
However, the Respondents are now noticed that auto sales are not permitted in CN Zoning Districts.

Read the full decision.

7/25/13 Update

Here is the written decision from the New Castle County License and Inspection Review Board (LIRB).

5/24/2013 Update

We have filed an appeal to the License and Inspection Review Board (LIRB) for the second erroneously issued change of use permit for 1707 Concord Pike. We have also requested that David Culver, General Manager of the Land Use Department, stay the effectiveness of this new permit until the LIRB hears our appeal and issues a final decision.

5/23/2013 Update

The County has also given away parking behind our buildings where no parking is allowed. This has become a New Castle County Sanctioned Land Grab.

5/21/2013 Update

New Castle County Land Use Department approves second Change of Use Permit!

Within a week of the LIRB issuing their written decision to revoke the auto detailing use and a Stop Work order being placed on the 1707 property, a new Change of Use Permit was issued on 5/17/13 and approved yesterday (5/20/13).

We will be filing a new appeal to the LIRB very soon. Stay tuned for a hearing date. We hope you can all come back again - here are some highlights from the public comments during the April 16th hearing.

5/11/2013 Update

The License and Inspection Review Board (LIRB) has published their written decision and
a Stop Work has been placed on the 1707 Concord Pike Change of Use Permit. The auto detailing use is now prohibited.

4/16/2013 Update

Thank you to everyone who attended today's LIRB hearing. The Board voted 3-0 to revoke the change of use permit.

11/30/12 LIRB Member Resigns - Board is Defunct

Official letter dated 11/30/12 from New Castle County stating the License / Inspection Review Board is defunct and we will be notified when our hearing can be scheduled.

11/14/12 LIRB Hearing - Board agrees they have Jurisdiction

THANK YOU to the 35+ supporters who attended the 11/14/12 hearing. And thank you to everyone who submitted written comments and best wishes.

The board voted 3 to 0 that they do have jurisdiction to hear our appeal. We will meet with the Board again soon to discuss the merits of the case.

We will post the new meeting date and time as soon as we have it (it will not be tomorrow the 15th as originally posted).

After the vote, the County Land Use Department's attorney hinted that they may appeal tonight's decision.

So why is the Land Use Department working so hard to keep us from talking to the Board?

Because they know there are not 4 parking spaces and they are covering up an internal decision that should have been made by the Board of Adjustment.

We are hopeful the new Gordon administration will replace these folks in the Land Use Department 
who do not follow the rules. We need transparency and public input on all development projects.

State Senator Greg Lavelle's letter to the Board

10/26/2012 - Still no Sign Permit, Violation Closed, and Sign is on Every Night

We also recently discovered that New Castle County Code Enforcement closed the 8/16/2011 violation (see notice). The violation was for using an Unlicensed Contractor, Lack of Sign Permit, and no Change of Use Permit. You can see from the log that two extensions were given and then it was magically closed on 10/26/2012. There is no evidence on the Parcel Page that a sign permit was ever issued.

The property owners were told in a 12/12/2011 letter from recently fired County Solicitor Wendy Danner (News Journal article) that "the unpermitted sign is required to be covered". This is also the letter where she suggests the property owner sue us instead of going to the Board of Adjustment to request a parking variance.

It doesn't matter if the owner of 1707 has the rights to park on the lot next door - there are only 7 parking spots for the existing 3 stores and 3 apartments. There aren't enough in total for all 7 uses.

"The parking spaces for separate buildings or uses may be combined in a single parking lot, provided that the number of parking spaces in the lot shall be equal to or greater than the sum of the parking spaces required for each building and use." 
UDC Section 40.22.611, Subsection F

10/3/2012 - Bogus Code Violation Issued

On 10/3/12 the Dept of Land Use issued a bogus code violation to the Millers the day before our Chancery Trial just so they could testify about it in Court.

In his 12/1/11 email, Jim Smith said had said no enforcement action would be taken. Why the change of heart ten months later?

9/5/2012 - LIRB Hearing - Jurisdiction Challenged

At our first License, Inspection and Review Board (LIRB) hearing the county attorney (James Edwards) argued that the LIRB did not have jurisdiction to hear our appeal. The hearing was continued and we submitted a brief on 10/15/12 detailing why the LIRB has juristiction.

The day after the hearing, we requested a Stay. Land Use General Manager David Culver erroneously denied our request (click here to read his letter) even though the Department could not demonstrate that "the granting of the stay would jeopardize the health, safety, or welfare of the public." (from County Code Section 6.11.003 Subsection F - full text below).

7/27/2012 - Change of User Permit Magically Approved

Change of Use was granted to 1707 Concord Pike in July of 2012 - almost 8 months after Jim Smith said it needed 4 striped and functional parking spaces necessary for final approval. Nothing had changed at that point on the 1707 lot.

We file an appeal with the License, Inspection and Review Board (LIRB).

12/1/2011 - Email from Jim Smith, Assistant Land Use Manager

May 2011 - The "Redevelopment" - No Permits, Taxes Not Paid

Demolition and construction was started with no permits in May 2011 (interior walls were removed earlier than that). We complained to New Castle County, the overdue property taxes were paid on 5/18/2011 (see county parcel info), and a permit was issued on 6/13/2011 and posted on the property. Code enforcement closed our complaint on 6/16/2011 - we were told it is not illegal to have a garage door on an office and a change of use permit would only be required if a vehicle was parked inside the building.

The lighted wall sign was removed during installation of the garage door. It was later reinstalled on 8/12/2011 at a higher position without the required permit (and by an unlicensed contractor). The sign now advertises an auto related use and a phone number to make an appointment. Here is the letter we received 8/22/2011 stating that the property is in violation. Two extensions have been granted so far - click here and enter 201126608 to check the status of this complaint.

A permit was issued on 10/3/2011 to change the use of the building to an auto detailing business. At this point the 2011 property taxes were overdue (see county parcel info).

This permit was issued when the county permit requirements clearly state:

Property taxes and sewer billing fees must be paid on the property for which you are requesting a building permit and on any tax parcel that such landowner owns in New Castle County prior to building permit submission (New Castle County Code 06.03.012.H). This will be verified as part of the application process.

Why was this permit issued when the taxes and sewer fees weren't paid?