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Lewes homeowners prevail in lawsuit

Court says city code too burdensome
April 24, 2018

Lewes homeowners who were issued a stop-work order when it was discovered they had violated their building permit have prevailed in a lawsuit challenging their denied variance requests. 

In a decision issued April 11, Superior Court Judge E. Scott Bradley found part of Lewes city code illegal – the part the board of adjustment used to deny three variance requests. If not appealed by the city, Ernest and Deborah Nepa will have another opportunity to seek their requested variances.

“The Nepas feel vindicated with Judge Bradley’s decision,” said Mark Dunkle, the Nepas’ attorney. “It’s very rarely the case that a property owner can fight city hall and prove that the government has been acting illegally.” 

In April 2017, the Nepas applied for three variances for a Dewey Avenue home, which they planned to flip, according to court documents. The variances sought to encroach on an 8-foot side-yard setback and to build within a 10-foot required separation between a home and a garage. 

The board denied each request, saying that the Nepas’ situation was not unique and the benefit of granting the variances did not substantially outweigh the detriment to neighbors.

The Nepas sought variances after the city issued a stop-work order in March 2016. During a routine site visit, assistant building inspector Robin Davis discovered the Nepas had begun work on a rear addition without the necessary approvals. 

At the April 2017 board of adjustment hearing, Ernest Nepa said the addition became necessary when a section of the rear roof collapsed into the kitchen following a nor’easter in February 2016. After stabilizing the structure, he poured a new foundation and began work on a nearly 15-foot addition off the back of the home, which he said could be used as a master bedroom or additional family living space.

“My No. 1 goal was to keep the architectural integrity of the house,” he said at the hearing. “I did not want to tear it down, even if someone said to tear it down.”

Nepa had received approval from the historic preservation commission in July 2015 for exterior changes to the home, including raising the home for leveling purposes, a new roof, new windows and a new porch. An addition was not included in the approval.

Despite the wrongdoing, Bradley determined the board was out of line in its reasoning for its decisions on the variances. In his decision, Bradley often compared this case with a landmark property rights case from 1978, in which Kwik-Check Realty challenged a New Castle County Board of Adjustment decision. The case is the basis for state law. 

Bradley says the city amended its code in 2011 and placed additional, more burdensome requirements on an applicant seeking an area variance, which the city is not permitted to do according to state law. 

“The Nepas’ win is also a win for every historic homeowner in Lewes who wants to renovate and improve the quality of an older home that is burdened with modern setbacks that don’t line up with existing, historic setbacks,” Dunkle said.

Lewes City Solicitor Glenn Mandalas said Lewes Mayor and City Council and the city manager have not had an opportunity to collectively review and consider the opinion yet. They have 30 days to file an appeal. 

“No determination has been made concerning an appeal of the decision or any other option available to the city,” he said. 

Mike Hoffman, the board of adjustment’s attorney, said he’s also reviewing the decision and evaluating options. 

The board of adjustment and mayor and city council will meet in executive session at 2 p.m., Tuesday, May 1, to discuss the case jointly. 

If no appeal occurs, Dunkle said, he looks forward to the Nepas getting a fair process at a new board of adjustment hearing. 

“After all of this time and expense, the Nepas just want a fair chance to finish the beautiful renovation of their historic home using the historic boundary line setback,” he said. “They hope the city will now cooperate in that effort after Judge Bradley’s decision.” 

To view the opinion, go to https://courts.delaware.gov/Opinions/Download.aspx?id=271440.

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