WILMNGTON, Del.—August 20, 2009—Bayard P.A., a Meritas® member law firm based in Wilmington Delaware, announced today that the Delaware Supreme Court ruled in favor of its client Preservation Delaware, Inc. (“PDI”), the owner of the historic Gibraltar Mansion once owned by the Hugh Rodney Sharp family, and CCS Investors, LLC (“CCS”), the equitable owner, in a significant land use decision.
“We are thrilled with the court’s decision and are pleased that plans will continue to move forward to rejuvenate this historic landmark,” said Douglas Hershman, a director and President of Bayard, P.A., the law firm representing PDI.
Hershman and Scott Wilcox also of Bayard, represented PDI which had contracted with CCS to sell a part of the Gibraltar property for the construction of commercial office space. CCS and PDI applied to the City of Wilmington Zoning Board of Adjustment (“ZBA”) for a use variance which was granted. Local neighbors appealed the decision to the Delaware Superior Court but failed to name either PDI or CCS in the original petition. The ZBA filed a motion to dismiss the appeal asserting that PDI and CCS were indispensible parties to the appeal and should have been named in the petition. Because the statutory time limit for filing the appeal had past, the neighbors could not re-file the case. The Superior Court denied the motion finding that PDI was not an indispensible party and even if it was, its interests could properly be protected by CCS. The Superior Court ultimately ruled on the merits of the variance and found that the hardship claimed in support of the variance was created by PDI and CCS which created a per se preclusion to the issuance of the variance.
PDI and CCS appealed the decision to the Delaware Supreme Court. In a opinion issued on July 16, 2009, the Delaware Supreme Court reaffirmed, en banc, its prior ruling in Hackett v. Board of Adjustment of Rehoboth Beach, that a “property owner is an indispensable party to an appeal from a decision of a municipal zoning board.” Because the petition in this case failed to name the landowner – PDI – as a party, the Court reversed the judgment of the Superior Court and the decision of the ZBA granting the use variance to CCS was reinstated. The Court further noted that there is no per se bar against self-imposed hardships in Delaware. “Instead, a self-imposed hardship is a factor for the regulatory authority to consider when deciding whether or not to grant the variance.”
PDI and CCS are finalizing matters for the transfer of the property and development is imminent.
Douglas M. Hershman leads the firm’s diverse real estate practice throughout Delaware and the surrounding states, representing both buyers and sellers of commercial and residential properties, borrowers in financing transactions, and lenders making commercial real estate loans. He also is a licensed issuing agent for several national title insurance companies.
Scott G. Wilcox focuses his practice in the area of commercial litigation with an emphasis on real estate, zoning and land use, construction, employment and environmental law matters. His clients include national and regional corporate employers, home builders, commercial land owners, construction companies and state and local government bodies.
Bayard, P.A., a Wilmington, Delaware-based firm, provides legal services in commercial lending, commercial and residential real estate, entity formation, insurance law, family law, tax, estate planning and estate administration, as well as nationally recognized legal services in commercial bankruptcy, corporate and commercial litigation, intellectual property, and securitization and structured finance.
###
