In August 2007, the board denied the art league variances and determined the property was two lots. After a year of legal filings, an appeal was heard by Superior Court Judge T. Henley Graves, who overturned the “one lot/two lot” ruling but upheld the denial of the two variances.

In its appeal to the Supreme Court, the art league makes three arguments for why the Superior Court ruling should be overturned:

The appearance of Henlopen Acres Commissioner David Hill constituted duress, denying the art league a fair hearing.

The board of adjustment prejudged the issues before it.

The Superior Court incorrectly held that the board’s decision was supported by substantial evidence. At the 2007 board hearing, Hill, who owns the property adjoining the art league campus, opposed the variance requests because the changes would bring more noise, light and traffic. In its appeal brief, the art league says Hill’s appearance before the board should be void because his opposition was based on personal interest, not the interest of the town. As town commissioner, the brief says, Hill has power of appointment over the board and town employees.

“His participation improperly influences or, at a minimum, creates a real or perceived threatening environment to town employees and the Henlopen Acres board of adjustment for disagreement with his stated position. Mr. Hill’s participation prohibited town employees and the board of adjustment from separating his personal interests from the interests of the town,” the brief said. The art league goes on to cite case law stating that no state official can represent his own personal interest before the state agency where he is associated. While the state code of conduct does not apply to employees of municipalities, the Superior Court has held that the code is persuasive regarding ethics in government. In its second argument, the art league argues the board prejudged the variance requests, denying a fair hearing. In addition to the influence of Hill’s appearance, the brief says the board also stated it is a goal to grant fewer variances every year. The brief also cites an exchange at the beginning of the 2007 meeting between art league attorney Vince Robertson and members of the board, in which the board members seemed to dismiss the art league’s case before it had been presented.

Finally, the art league said the Superior Court decision should be reversed because there is no substantial evidence supporting the board’s decision. For a use variance, an applicant must prove an unnecessary hardship. The art league cites several ways it qualifies; first and foremost, that the art league was part of the original residential development of Henlopen Acres and the town’s comprehensive plan states that the property’s use is restricted to art galleries, art education facilities or other art-related classes. The art league has asserted, and the board did not refute, that the Chambers Building does not meet current building code, fire marshal or accessibility standards. In addition, the building cannot be renovated to correct its deficiencies without significantly decreasing the usable space. The art collection, which the art league wants to store in an expanded Chambers Building, is now being stored in the Homestead, where the conditions are not suitable for art storage. The Homestead cannot be renovated due to age and its status on the national Register of Historic Places. The art collection also cannot be moved to the Corkran Building at the base of the property because it lies in the flood zone. The art league says it also cannot move the collection off the premises because the town’s comprehensive plan requires the art league to stay in its present location.

In addition, “The RAL is not required, under any standard, to show the feasibility of relocating any of its operation to another location,” the brief says.

The proposed new Chambers Building would expand the old one by 2,073 square feet, and would be set back more than 80 feet from the neighboring property lines. The art league has said it will not expand activities, and the uses would be the same as they currently are, negating the board’s conclusion that the expanded Chambers Building would lead to increased growth.

The brief goes on to argue that the Superior Court based its decision on facts not in the record, citing no specific record evidence to affirm the board’s decision.

In conclusion, the art league says, “The decision of the lower court and the Henlopen Acres Board of Adjustment must be reversed to enable the RAL to comply with the mandate of its founders and the town to preserve and protect its continued existence.”

Karen McGrath, executive director of the art league, said, “I think the whole thing is unfortunate. It’s unpleasant when it doesn’t need to be. We have a building that needs to be replaced.” She said the conditions at the Homestead were not proper for art that is valuable because of its importance to Delmarva’s artistic heritage. “We have a duty to everyone in Delaware to maintain the stuff we have been entrusted with,” McGrath said.

She said moving the classes to the Corkran Building would allay concerns about light from a new Chambers Building, and the art league wants to continue what it is currently doing. McGrath said she would like to sit down and talk with the town commissioners about a solution – something the town has previously refused to do. Robertson said the next step is for the board to file an answer brief, which the art league will also answer. From there, the Supreme Court will either rule on the briefs or ask for oral arguments from both sides’ attorneys.

Hill said he did not have any comment at this time since the town has yet to file its brief, which is due Wednesday, Dec. 23. He said the town does plan on defending the board’s decision as best it can.