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.

20+ Reasons why there is no easement for 1707 at the Triplex

1. No easement language in 1707 Concord Pike deed

2. 1946 Deeds for the Triplex do not make any reference to 1707

3. The Triplex common areas do not include any part of the 1707 lands

4. In 1947, a small, old wooden shed building was situated on 1707, at the very rear of the parcel. It was not possible to drive behind the 1707 building, so there was no need to assign driveway easement rights to 1707. It would be a driveway to nowhere.

5. Circa 1946, 1707 enjoyed 6.5 feet of frontage on Concord Pike, with the 5-foot wide Walkway providing a total of 11.5 feet for vehicular access and maneuvering.At that time, Concord Pike was a 2-lane road; it was not expanded to 4 lanes until the 1950's. The Plan for Deerhurst dedicated additional right-of-way to the State, which provided an area for vehicles to decelerate in order to make a right turn into 1707 from Concord Pike.

In the 1942 Certificate of Incorporation for Concord Development Company, the principal office for Concord Development Company (CDC) was 915 Shipley Street in Wilmington. 915 Shipley St was a building owned by George Peirce and also housed the offices for his family's real-estate company. George Peirce had control of his family's 66 acre farm and sold it to CDC in Dec 1942.

1707 Concord Pike did not become CDC's principal office until well after the Triplex was built and the old wooden shed was improved.

According to phone records at the time, the triplex was fully occupied in November 1946 and both W Percival Johnson and Concord Development Company are listed at 2 York Rd (not 1707 Concord Pike):


November 1946 Wilmington Telephone Directory (click here for full image)

Mulrine's Liquors at 1701 Concord Pike:





Baird's at 1703 Concord Pike:



Coverdale at 1703 Concord Pike:




W Percival Johnson and Concord Development Company use 2 York Rd in both the 1946 white and yellow pages (not 1707 Concord Pike):

6. In front of the 1962 office building constructed on 1707, there were two striped parking spaces and a concrete curb to provide for "head-in" parking. Additional asphalted area on 1707 allowed for "stacked parking" - i.e. other cars parking behind those situated in the lined parking stalls. And the 20-foot wide paved area located in the State Right-Of-Way, which was not in the Concord Pike lanes of travel, allowed for adequate backing movements for vehicles to exit 1707. Consequently, sufficient parking and maneuverability area existed on 1707 standing alone.

7. The Johnsons (who owned the 1707 building) lived in Deerhurst (the neighorhood behind that they built) and could walk to work via the public walkway that connected York Rd and Concord Pike.

8. Marvin Redmond ("Redmond") owned 1703 and ran a barbershop there between 1958 and 1978. He testified that:

8a. When Joseph Johnson built a new building on 1707, the three owners of the Triplex Properties paid equal shares to repave their parking and driveway areas, but Johnson only paid enough to cover repaving 1707.

8b. Redmond also testified that the Johnsons would park their cars on 1707 when they used the Old Shed and the 1962 office building. If the Johnsons needed to park in the parking spaces on the Triplex Properties, they would ask Redmond for permission to park there briefly.

9. Testimony was also provided by Susan Rosen, who operated a business known as The Baker's Rack at 1705 Concord Pike from 1983 to 1993. Her first husband, Ed Jacobs, owned 1707 at one time. And her second husband, Fred Rosen, purchased 1707 from Mr. Jacobs, to use it for his accounting business office. Ms. Rosen testified that the businesses and visitors to 1707 parked on 1707, and not on the Triplex Properties or behind the building on 1707. The only cars that parked on the Triplex Properties were tenants or visitors associated with the Triplex Properties.

10. Ray Buchta testified that: 1) Blackball's closing attorney for the purchase of 1703 provided him with a copy of the title search; 2) the Deeds for 1707 said nothing about using any areas on the Triplex Properties; and 3) his attorney, David Matlusky, Esquire, advised that the Triplex Properties and 1707 were separate and independent of one another.

11. Buchta also did some independent research regarding 1707 and the Triplex Properties after litigation commenced. He discovered that: 1) when the Old Shed was on 1707, it had about 20 feet of additional parking area versus present day; 2) an 1988 MLS listing showed 1707 had two striped, head-in parking spaces; 3) the 1994 MLS listing also indicated that 1707 had two (2) off-street parking spaces; and 4) the parking situation on 1707 was the same in 2000 (when the Staffieris purchased).

12. Buchta also testified that fencing was installed in the rear along the driveway for security reasons, and the roll stops were placed in the front to keep the driveway unobstructed.

13. Buchta prepared an exhibit showing an aerial view of 1701 through 1709, with an overlay of the 20-foot State right-of-way that permitted continued access to 1707 regardless of the roll stops. He also prepared an exhibit which established that 1707 only has one (1) UDC compliant parking space.

Click for larger image

14. Finally, Buchta prepared an exhaustive search of CDC Deeds for the 111 residential homes in Deerhurst.
The houses had shared driveways that straddled adjacent lot lines. Id. Twenty-three (23) pairs of Deeds contained reservation language similar to the 1946 Deeds, while 26 Deeds excluded the reservation language (i.e. the second home of the pair). In addition, one Deed dated April 13, 1946 contained language providing:

"UNDER AND SUBJECT, however, to a driveway easement for the use and benefit of the owners and
occupants of Lot No. 72, Section B, adjoining the hereinabove described premises on the East, for
driveway purposes, said driveway easement being more particularly bounded and described as follows,
to-wit:"

Finally, two (2) Deeds for adjacent, shared driveway parcels contained no reservation language at all. So CDC knew how to reserve easements appurtenant and also made dozens of mistakes in its Deeds.

15. In 1946 1707 had at least 3 parking spaces for its small shed building.

2/28/1946 Newspaper Article about permit being issued to build the two-story Triplex building.

16. In 1946 the Triplex Properties shared 6 total parking spaces for the 3 businesses and 3 apartments

17. CDC knew to use the terms "easement" and "covenant running with the land" or to reserve rights to a parcel of land in order to create an easement appurtenant;

18. In the 1946 Deeds, CDC did not use language it used in other documents like "easement," "covenant running with the land," or benefitting specific lands.

19. Only the Triplex Properties' businesses needed to get to the rear, for deliveries.

20. Notably, CDC chose not to establish an express easement by affirmative written grant, even though it easily could have since it originally owned all 4 parcels: 1701-1707. Nor did CDC use the terms "easement," "covenant,"
"servitude," the phrase "covenant running with the land," or any other language which would have established an intention to create a real property interest appurtenant to 1707. Indeed, CDC did not even use the term "successor
in interest," which is defined as "[o]ne who follows another in ownership or control of property," which "retains the same rights as the original owner."

21. Any ambiguity regarding the meaning of the term "assigns" should be resolved in favor of Blackball, the "grantee" of title to 1703. Thus, "assigns" should be construed to mean persons who receive a written assignment, by Deed or other instrument.

22. The rights reserved specifically to CDC and its corporate successors or written assignees do not constitute a "profit appurtenant" or a "servitude appurtenant." Such appurtenant rights only arise where the right is accessory or attached to a piece of land, for the benefit of that identified land. The 1946 Deeds do not indicate that CDC's reservation of rights to use the parking and driveway areas on the Triplex Properties is for the benefit of 1707. Consequently, only a personal right for CDC to use the driveway and parking areas was created, which was abandoned pursuant to the 1980 Deed.