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 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.

Unclean Hands

County code is very specific that "no Land Use Application shall be granted" if the applicant is "not in good standing with the County". So how was the 2nd Change of Use Permit issued 5/20/2013 approved when there were open code violations at the property?

Click for larger photo	Click for larger photo	Click for larger photo
5/20/2013 Pendant flags across telephone poles, signs in right-of-way, vehicle for sale	5/21/2013 Signs moved out of right-of-way but still not permitted. Pendant flags down	5/29/2013 Signs and vehicle back in right-of-way

1707 Concord Pike failed inspections the morning the new Change of Use permit was applied for (5/17), the morning it was approved (5/20) and two days later (5/22). That's six failed inspections so far:

6/11/2013 Update: Now seven failed inspections:

6/25/2013 Update: Now eight failed inspections:

7/17/2013 Update: Now nine failed inspections and RTSC hearing cancelled:

In addition to the above violations, Permit 201305981 to “fix” the lighted sign on the building that has been in violation since Aug 2011 (and was supposed to be covered according to Wendy Danner's Dec 2011 letter) was not complete on 5/20/2013.  In fact the contractor was out on 5/22, two days after the new Change of Use was granted and the permit is still not complete according to nccde.org.

10/2/13 - Finally Had the RTSC Hearing!

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 motor vehiclees 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.

UDC SECTION 40.31.901    PROHIBITIONS

A. Any person who violates any provision(s) of this Chapter or fails to comply with any of the requirements hereof, or who maintains, erects, constructs, alters, or repairs a building, structure or premises in violation of an approved plan or directive of the Department, or of a permit or a certificate issued under this Chapter, shall be subject to any of the enforcement mechanisms and penalties outlined in this Division.

…

D.  Except as provided in Subsection E, no Land Use Application shall be granted by any Board, Department, or Council if any of the following parties, having an interest in the application or the property the application is filed for, are not in good standing with the County:

1. Applicant;
2. Property owner;
3. Equitable owner;
4. Permit holder; and
5. Any individual with a controlling interest in the property (controlling interes means the acquistion of sufficient dominance to determine the operational and financial policies, including disposition of its assets, of any legal entity that is a party listed Subsections 1 through 4, but excluding mortgage holders).

Not in good standing means that at the time of the request, any of the above enumerated parties are delinquent in the payment of monies owed to the County or have been found to be in violation of the New Castle County Code. If a Board, the Department or County Council denies a Land Use Application based upon the fact that a party/parties is not in good standing, such decision must be sent to the party/parties in writing outlining the basis for the conclusion within ten (10) days.

E.  An administrative board may consider and decide a Land Use Application, so long as any of the parties enumerated in Subsection D are not delinquent in their payment of monies owned to the County, where the application is submitted in an effort to resolve an existing Code violation. In such situations, the County will stay enforcement of the Code violation, so long as there is no imminent threat to the health, safety or welfare to the citizens of the County, until the administrative board has issued its written decision on the application.