A New Castle City Board of Adjustment Hearing took place
on December 6, 2005 at 9:30 p.m. in the City of New Castle’s
Town Hall.
Present: Mayor John F. Klingmeyer
David Athey, City Engineer
Gerard Kavanaugh, City Solicitor
Lynn Sheridan, Appellant
Mayor Klingmeyer called the meeting to order at 9:30 p.m.
by Mayor Klingmeyer. Roll call was taken. Mayor Klingmeyer
read the Notice of Public Hearing that states, “An application
has been filed by Lynn Sheridan along with 26 other appellants
from the decision of the administrative official issuing an
historic review certificate pursuant to the decision of the
Historic Area Commission approving the addition to 137 East
2nd Street, New Castle, Delaware. The above appellants feel
the approval of the decision was invalid due to a member of
Historic Area Commission not being reappointed so therefore
their vote does not count. The appellants also contend that
the Historic Area Commission did not follow guidelines by
not allowing consideration to neighbors who needed to be heard
and that the Commission did not provide plans before meeting
for review or after for approval.
For the purpose of considering this application, the Board
of Adjustment will hold a public hearing on Tuesday, December
6th, 2005, at 8:30 p.m. in Old Town Hall, 2nd Floor, located
at 2nd and Delaware Street, New Castle, Delaware.”
Ms. Sheridan came forward and spoke on behalf of the appellants.
Ms. Sheridan resides at 143 2nd Street, the property in question
is adjacent. (Copies of her presentation were given to Board
members and she read it aloud.) Board members asked a number
of questions about dimensions of the proposed addition to
137 East 2nd Street. Ms. Sheridan also provided a list of
some of the New Castle area guidelines; on page 2, the size
and mass of this building on this lot is totally not like
anything in the area.
Mr. Kavanaugh asked Mr. Bergstrom if he had the Historic Review
Certificate that would have been received as part of the building
permit. He said he did not have it with him, but the vote
was 3-2. He was asked how members of the Historic Area Commission
(HAC) voted. He informed Bill Hentkowski and Charles Cobb
voted against while the other three members (including the
architect) voted for the project. Ms. Sheridan then presented
Mark Rosenbloom, a restoration architect based in Philadelphia
who is very familiar with New Castle. He agreed to speak to
Ms. Sheridan about the Secretary of Interior standards which
guide areas such as this. Mr. Kavanaugh pointed out that in
Delaware there is no right to light and air. Mr. Rosenbloom
said that this plan is totally inconsistent with the Secretary
of Interior guidelines. Mr. Kavanaugh said that HAC and the
City of New Castle has a book of guidelines that cost $13,000.
Mr. Rosenbloom informed he has reviewed that book and it clearly
states in terms of scale of buildings and the nature of green
space and it is very telling. The streetscape has been altered
and the open space has been closed. (Mr. Rosenbloom continued
with his presentation.) He believes in the fragile nature
of this community as well as the unique character of this
community and it is being severely compromised. This is not
in terms of good historic preservation practice. He asked
that issues be reviewed before action is taken.
New Castle City Board of Adjustment Hearing
December 6, 2005
Page 2
Dorothy Fisk, 26 East 3rd Street, asked who the owner of
record of this house is; has it been transferred to the developer?
(The Board did not know.) She feels that if someone does not
actually own a property and there is no owner of record she
doesn’t understand how HAC can give permission. Mr.
Kavanaugh advised an equitable owner has standing. If there
is a contract of sale, this gives the person who applies a
sufficient ownership interest to allow their application to
be considered. The legal title owner doesn’t necessarily
have to participate as long as there is a contract of sale.
David Bird, 158 East 4th Street, feels what we are talking
about is process.
Ms. Sheridan pointed out the guidelines that were not followed,
the voting that raises a question of validity. We have to
ensure the HAC maintains its integrity and follows it process.
It has been stated very well and he asked the Board of Adjustment
to consider the impact it will have on the neighborhood.
Tom Whitehead, 131 East 2nd Street, pointed out this house
is on the 1868 atlas and it is one of the six oldest structures
in the City.
Atta DiMaio, 313 Harmony Street, questioned demolition of
the rear of the house without a permit. Mr. Bergstrom confirmed
that Tim Skully did apply for a permit. HAC gave him permission
to demolish the rear of this building. (Timeline of permit
demolition was discussed.)
Mr. Kavanaugh (to Mr. Skully) said someone applied to HAC
for permission pursuant to the code to tear down the rear
of this property. Mr. Skully said there was asbestos on the
property and an asbestos contractor was brought in to remove
it.
Ms. Sheridan said she did not see anything noted in HAC minutes
that there was a Historical Certificate issued or approval
for a demolition. When she read the code the code says in
order to get a demolition permit you have to have a HAC certificate.
In minutes from March 2004 to present she did not find anything.
Mr. Kavanaugh asked Mr. Skully if he applied to HAC on behalf
of someone for the permit. He was representing Dr. Dressler
at the time.
Linda C. Brown, identified as the equitable owner of the property,
came forward and presented drawings and photographs of the
property in question to the Board. They are being presented
to provide the exact nature of what she intends to do and
what is there. She informed the audience they would have an
opportunity to view the photographs as well.
Mr. Kavanaugh asked if Dr. Dressler is the legal owner of
the property. She said he is the legal owner and she is the
equitable owner with an agreement of sale.
Ms. Brown disputed Ms. Sheridan’s claim that she did
not have an opportunity to review the plan. Ms. Sheridan said
she went to the Building Department prior to the HAC meeting,
but they were not available for her to see. That was a Freedom
of Information Act violation, but she did not file a FOIA
violation. Mr. Bergstrom did give them to me.
Ms. Brown presented a drawing that she presented at the 10/20/05
HAC meeting that shows three sides that were approved by HAC
on Dr. Dressler’s application prior to her signing an
agreement with Dr. Dressler. She did a lines and grades that
she presented to Mr. Bergstrom and HAC to make sure she conformed.
It was signed by
New Castle City Board of Adjustment Hearing
December 6, 2005
Page 3
an engineer. Mr. Kavanaugh felt this is not in dispute. He
said an appeal has been filed to this Board from the decision
of the HAC and through it the Building Inspector who would
otherwise issue your building permit, but he can’t do
that because the zoning code says there has been an appeal
and everything has been stayed pending this Board’s
ruling or the end of litigation. The arguments being made
by the appellants are multiple; one is that HAC abused its
discretion in approving a project of this size, Ms. Sheridan’s
dissatisfaction to being able to speak to HAC at its meeting
on 10/20/05, and who voted for what. (Mr. Kavanaugh did find
a copy of the voting record attached to the appeal.) Mr. Heckrod
(architect), Ms. Monigle and Ms. Miller voted ‘yes’
while Mr. Hentkowski and Mr. Cobb voted ‘no’.
HAC spent one hour discussing this project. (Discussion about
the plans, including roof lines, submitted to HAC and their
history took place.) Mr. Skully said Dr. Dressler wanted to
raise the roof and he kept returning to HAC with plans to
raise the roof and they would not approve it; Ms. Brown presented
her “smaller” plan without the raised roof and
it was approved with conditions on 3/15/05. (The portion of
minutes of the 3/15 HAC meeting concerning this project were
read aloud.)
(Additional discussion and confusion expressed concerning
various HAC meetings and what occurred at those meetings took
place.)
Sally Monigle, HAC Chairman, feels what happened from March
2004 forward was that we went back and forth with Dr. Dressler
over this project and we could not come to agreement. Mr.
Kavanaugh said HAC approved three sides in March 2005.
Ms. Monigle said she felt this was a contentious process.
We had 13 sessions. Those meetings were regular HAC meetings,
except for one special meeting and notices were given for
those meetings noting this property would be considered.
Mr. Kavanaugh asked if Dr. Dressler withdrew his plans.
Dr. Dressler said he did withdraw his plans. There was a set
of plans presented by his architect (Mr. DuPont) that were
approved without him being present. He did not agree with
those plans and decided to sell the property at that time.
Mr. Athey said it is factual that the last action taken by
HAC regarding your (Dr. Dressler) application was a rejection.
Dr. Dressler confirmed this statement.
Mr. Kavanaugh said the HAC considered and approved this size
structure ultimately after 13 meetings discussing the size
and other matters related to what was being proposed. Ms.
Monigle said the minutes of the meeting with Ms. Brown clearly
states our efforts to get the middle of the house collapsed
and lowered; we gave up with
Dr. Dressler. The back of the house had been removed by him
and open to the weather, but Ms. Brown said ‘no’,
she wanted to build it differently and the vote was 3-2.
Tom Whitehead (to Dr. Dressler) said Dr. Dresler withdrew
his plans, then they came back and it was a 3-2 vote. If they
thought the plans were approved they would never have voted
the second time. Why approve it twice?
Dr. Dressler clarified the plans that were approved were presented
by his architect and he had not seen them. He came back with
a different set of plans with an elevation of 32’ and
HAC rejected those. When Ms. Brown took the plans to HAC it
was down to 28’ and basically the same floor plan Mr.
DuPont had approved.
New Castle City Board of Adjustment Hearing
December 6, 2005
Page 4
David Bird suggested focusing on the issues on appeal. The
nature of the appeal is an abuse of discretion by HAC by approving
this structure which is 60% coverage of the property when
everything else is 33% around it. Another issue is the validity
of the vote and term expirations. Third, did Ms. Sheridan
have adequate time to review the plans prior to the meeting
where they voted and given an opportunity to comment before
a vote was taken; her position was that she didn’t.
Mr. Kavanaugh asked Ms. Sheridan how many of the 13 meetings
she attended. She responded she did not attend any of them
due to personal issues to attend to at home.
(Concern from the audience was expressed that HAC is not following
their guidelines.)
Dick Evans, 419 South Street, attended the 10/20/05 meeting.
He felt HAC was in a difficult position because the developer
did bring up several bad things that would happen if they
didn’t approve it; however, it could be argued that
the lack of allowing Ms. Sheridan the right to testify left
only one viewpoint on the floor at the time of the vote. It
might not have changed the outcome of the vote, but she was
denied due process. Ms. Monigle agreed she was denied due
process and it was her responsibility because she had talked
to her beforehand. Mr. Kavanaugh asked if Ms. Sheridan ever
spoke to the HAC about this project before 10/20/05. Ms. Monigle
said there were comments made. She added there was a change
in membership in HAC that occurred so where there had been
a unanimous vote on a previous plan, the final vote one of
our members changed their vote and a new member had never
voted before.
Mr. Kavanaugh addressed HAC term limits (voter validity).
Mr. Hentkowski said his term had expired and he was a carryover
and he voted against it. Ms. Miller voted for it and her term
had expired, but she has since been reappointed. Mr. Kavanaugh
said under Delaware law they serve until their successor has
been appointed. Neither Mr. Hentkowski nor Ms. Miller did
anything wrong.
Mr. Kavanaugh expressed concern that there were 13 meetings
concerning this project at HAC and Ms. Sheridan went to the
last one. She informed she didn’t become the homeowner
until May. Before that she was required not to get involved;
she had other issues to attend to at home. There was a large
group other than her who opposed this project. Mr. Kavanaugh
asked if HAC was aware of the opposition to this project.
Mr. Whitehead said he has the petition they were prepared
to present at the July 2004 HAC meeting. We had to ask when
we could be heard.
Joe DiAngelo said 11-12 people waited for the discussion to
come up and questioned why HAC wasn’t following the
agenda. They were then informed it had been tabled. Mr. Kavanaugh
asked whether HAC ever received the petition. He responded
‘yes’. Mr. Whitehead said he delivered five copies
of the petition with 26 signatures before the HAC meeting
to Debbie Pullam’s office. Mr. Kavanaugh said the HAC
was aware for months that there was active opposition to this
project. She was aware there were concerns.
New Castle City Board of Adjustment Hearing
December 6, 2005
Page 5
Mr. Kavanaugh asked how early on HAC learned about active
opposition to this project. It appears that by July 2004 the
HAC was considering something similar to this and spent 12
more meetings over the next two years talking about it and
finally voting 3-2 to approve it.
(Additional concern was expressed from the audience about
guidelines not being followed and the citizens not being heard.)
Mr. Kavanaugh said that historically going back to 1987 the
Board of Adjustment has been very reluctant to substitute
its judgment for the HAC on matters such as size, setbacks,
etc. The prerogatives the HAC are set forth in the zoning
code and that is why our scope of review is basically limited
to determining under the facts of this case whether there
was abuse of discretion. The fact you did not get to be heard
until after the vote, he didn’t know if that deprives
you of due process. The HAC was well aware of the opposition
to this project and discussed it at 13 different meetings.
Melissa Pavonne, 158 East 2nd Street, asked what appeal process
can citizens have? Mr. Kavanaugh said the process is working;
26-27 people appealed from the decision of the HAC as it would
be ratified by the Building Administration. If a citizen of
the town considers themselves aggrieved by something the Board
of Commission does, the code provides you appeal to the Delaware
Superior Court and the judge would determine if we had abused
our discretion.
David Bird said he gets the sense the Board is leaning towards
denying the appeal. One of the things you might want to consider
is the duress that HAC was under when they made the decision;
send it back to HAC and have them look at it again.
Mr. Athey asked Mr. Kavanaugh if there is a procedural issue
here or not. He responded ‘no.’ Process was served.
Mr. Athey asked if we have the ability to send it back to
HAC. Mr. Kavanaugh explained that under the terms of the zoning
code, this Board has appellant authority. We can reverse,
affirm (wholly or partially), or modify. As far as the evidence
has shown this mater came properly before the HAC on 13 different
occasions over a period of two years. Members of HAC were
aware of active opposition to this project and voted 3-2 to
approve it. Evidence shows on two earlier occasions they approved
a 28’ elevation.
Mr. Athey said there are clearly members of the public, as
I, concerned that their voices were not heard properly. You
are saying that after 13 meetings everyone had their shot?
Mr. Kavanaugh concurred.
Mr. Kavanaugh said in light of the fact of the 13 meetings
and the fact HAC had considered this project and had their
guidelines, the argument can be made and differences of opinion
can be held regarding what the guidelines require and don’t
require, but ultimately he is reluctant to substitute his
judgment for the HAC. On that basis he moved the appeal be
denied. The Mayor asked Mr. Athey to preside over the meeting.
Mr. Athey called the question. The Mayor seconded the motion,
which passed with a 2-1 vote with Mr. Athey in opposition.
New Castle City Board of Adjustment Hearing
December 6, 2005
Page 6
Adjournment
The meeting was adjourned at 11:35 p.m.
Respectfully submitted,
Debbie Turner
Stenographer
