IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

FRANCIS G. MARKERT JR., )

)

Appellant, )

)

v. ) C.A. No. S22A-02-003 CAK

)

BOARD OF ADJUSTMENT OF THE ) On Appeal from Decision of

CITY OF REHOBOTH BEACH; ) Board of Adjustment of the 

AQUABA INVESTORS, LTD; ) City of Rehoboth Beach

JOHN N. PAPAJOHN TRUST; ) Dated January 24, 2022 

BELHAVEN INVESTMENTS, INC.; )

and JOHN N. PAPAJOHN; )

)

Appellees. )

Submitted: September 8, 2022

Decided: September 26, 2022

Verified Petition for Issuance of a Writ of Certiorari and Appeal for Judicial 

Review of the Decision of the Board of Adjustment of the City of Rehoboth 

Beach

AFFIRMED

MEMORANDUM OPINION AND ORDER

William B. Larson, Jr., Esquire and Tye C. Bell, Esquire, Manning Gross + Massenberg 

LLP, 1007 North Orange Street, Suite 711, Wilmington, DE 19801, Attorneys for 

Appellant. 

Richard A. Forsten, Esquire and Pamela J. Scott, Esquire, Saul Ewing Arnstein & Lehr 

LLP, 1201 North Market Street, Suite 2300, Wilmington, DE 19899-1266, Attorneys for 

Appellees Aquaba Investors, Ltd., John N. Papajohn Trust, Belhaven Investments, Inc., 

and John N. Papajohn.
2

Frederick A. Townsend, III, Esquire, Hudson, Jones, Jaywork & Fisher, LLC, 34382 

Carpenter’s Way, Suite 3, Lewes, DE 19958, Attorney for Appellee Board of Adjustment 

of the City of Rehoboth Beach.

KARSNITZ, R.J.
3

I. INTRODUCTION

This case reveals the fault lines that sometimes exist between the requirements of 

an existing municipal zoning code and the evolving vision of the municipality for its 

future development. The former may not have kept pace with the latter. Nonetheless, 

zoning code requirements exist for a number of important reasons, and Delaware law 

carefully scrutinizes variances from those requirements. The question before me is 

whether such a variance granted earlier this year – which may align with Rehoboth 

Beach’s future development vision – also passes muster under the Rehoboth Beach 

zoning code under Delaware zoning and variance law. In my view, it does, for the 

reasons articulated below.

II. FACTUAL AND PROCEURAL BACKGROUND

Appellant, Francis G. Markert, Jr. (“Appellant”) is the owner of 520 New Castle

Street, Ext., Rehoboth Beach, DE 19971, and a taxpayer and resident of the City of 

Rehoboth Beach (the “City”). The Board of Adjustment of the City (the “Board”) is a 

five-member body appointed by the Mayor and Commissioners of the City, whose 

powers are specifically defined within the City zoning code (the “Zoning Code”). 

Aquaba Investors, LTD (“Aquaba”) is the owner of Sussex County Tax Parcel 334-

14.18-21.00. The John N. Papajohn Trust (the “Trust”) isthe owner of Sussex County Tax

Parcel 334-14.18-20.00. Belhaven Investments, Inc. (“Belhaven”) is the owner of Sussex 
4

County Tax Parcel 334-14.18-35.00.

1

(These three tax parcels shall collectively be 

referred to as the “Property.”) John N. Papajohn (“Papajohn”) is the applicant before the 

Board (the “Applicant”) and the principal of the entities that own the Property. (The 

Board, Aquaba, the Trust, Belhaven, and Papajohn, collectively, shall be referred to as 

“Appellees.”)

On September 24, 2021, Applicant applied for a variance (the “Variance”) in 

connection with the construction of a hotel on the Property. The application sought one 

area variance: a 50% variance of the Floor Area Ratio (“FAR”)2from the authorized 2.0 

FAR as authorized in the Zoning Code to a total of 3.0 FAR, an addition of approximately

38,475 square feet of gross floor area. The Board held a public meeting on November 

22, 2021 to consider the application. 

In advance of the public hearing, 116 residents, including Appellant, submitted 

detailed written comments opposing the Variance. 

At the Board hearing, the following members of Applicant’s team appeared as 

proponents of the Variance: Applicant, Applicant’s attorney, Applicant’s son, 

Applicant’s architect, and Applicant’s hospitality consultant. Several members of the 

1 These three tax parcels include 5, 7, 9, 13, and 14 Wilmington Avenue, Rehoboth Beach, DE 19971.

2 Floor area ratio (FAR) is the measurement of a building’s floor area in relation to the size of the 

lot/parcel that the building is located on. FAR is expressed as a decimal number, and is derived by 

dividing the total area of the building by the total area of the parcel (building area ÷ lot area). FAR is 

an effective way to calculate the bulk or mass of building volume on a development site, and a higher 

FAR indicates a greater building volume.
5

public appeared as opponents of the variance: a neighboring property owner expressed 

his concerns about the fire buffer and fire safety, a Planning Commissioner questioned 

whether Applicant should seek Planning Commission review,3and a City Planning 

Inspector stated that the variance could set a bad precedent for future development. Other 

members of the public opposed the project as “turning the CDP4 on its head” and 

expressed the opposition of the Rehoboth Beach Homeowners Association (the 

“Association”), which represents hundreds of City homeowners. Yet other members of 

the public supported the project as consistent with the CDP.

At both the public hearing held on November 22, 2021, and in a written decision 

dated January 24, 2022, the Board voted 3 to 1 to grant the Variance. On February 23, 

2022, Appellant filed a Petition for the Issuance of a Writ of Certiorari and an Appeal 

for Judicial Review of the Decision of the Board.5I issued the Writ of Certiorari the next 

day. On March 30, 2022, Appellees Aquaba, the Trust, Belhaven, and Papajohn filed 

their Response to the Petition. On May 24, 2022, the Board filed its record of the 

proceedings, including transcripts of the hearings held on October 25, 2021 and 

November 22, 2021. On June 22, 2022, the parties added an additional document to the 

record and stipulated and agreed to the documents constituting the record. Appellant filed 

3 The City Solicitor stated that such review was not required at the variance stage of the development process, 

and that the granting of a variance would not eliminate the need for the redevelopment project to go before the 

Planning Commission for site plan approval before a building permit was issued.

4

2010 Rehoboth Beach Comprehensive Dev. Plan (“CDP”).

5 Pursuant to 22 Del. C. § 328(a).
6

his Opening Brief on June 27, 2022. Appellees Aquaba, the Trust, Belhaven, and 

Papajohn filed their Answering Brief on July 21, 2022. The Board also filed its 

Answering Brief on July 21, 2022. Appellant filed his Reply Brief on August 3, 2022. I 

held oral argument on August 30, 2022. On September 8, 2022, the Board by letter 

submitted additional briefing at my request. This is my opinion on the Appeal.

III. STANDING

With respect to an appeal to this Court from a Board decision:

Any person or persons, jointly or severally aggrieved by any decision of the 

board of adjustment, or any taxpayer or any officer, department, board or 

bureau of the municipality may present to the Superior Court a petition, duly 

verified, setting forth that such decision is illegal, in whole or in part, 

specifying the grounds of the illegality. Such petition shall be presented to the 

Court within 30 days after the filing of the decision in the office of the board.

[Emphasis supplied]6

Appellant has the burden of establishing his standing.7 He argues that he has standing 

both as a taxpayer and as an aggrieved person, although either status would be sufficient 

in and of itself.

Appellees, however, argue that Appellant lacks standing. First, Appellant has 

standing only when his “interest in the controversy [is] distinguishable from the interest 

shared by other members of a class or the public in general”8 or within the “zone of 

interests to be protected or regulated by the statute in question.”

9 Second, in accordance 

6

22 Del. C. § 328(a).

7 Dover Historical Soc'y v. City of Dover Planning Comm’n, 838 A.2d at 1109 (Del. 2002).

8

Stuart Kingston, Inc. v. Robinson, 596 A.2d 1378, 1382 (Del. 1991).

9 Dover Historical Soc'y, 838 A.2d at 1111 (Del. 2002) (citing Oceanport Indus., Inc. v. Wilmington
7

with that basic rule, Delaware courts have dismissed appeals from boards of adjustment 

where appellant lacked standing even though appellant was a taxpayer. For example, in 

Riverfront Hotel, LLC v. Board of Adjustment of City of Wilmington,

10 a corporation 

owning a hotel appealed a landscaping variance granted by the Wilmington board of 

adjustment to another hotel. The corporation was a taxpayer, but its only other interest 

was that of an economic competitor of the hotel. The corporation made no allegations 

that any of its “interests” involved the purpose of the zoning laws in promoting health, 

safety, morals, or the general welfare of the community. Our Supreme Court held that 

neither a general public interest in lawfulness nor an interest in limiting competition were 

sufficient for standing in a zoning case.11 To allow taxpayers standing in all such cases, 

argue Appellees, including those where taxation and spending are not at issue, would 

render the “aggrieved” component irrelevant. 

Appellant argues that Appellees have ignored: 1) the genesis and history of 

Section 328(a) (which he briefed at length); 2) the plain language of that statute, which 

has been interpreted in favor of “taxpayer” standing without the addition of the 

“aggrieved person” component; and 3) relevant Delaware case law. He also 

distinguishes Riverfront Hotel, LLC. In the instant case, unlike Riverfront Hotel, LLC, 

Stevedores, Inc., 636 A.2d 892, 904 (Del. 1994)).

10 213 A.3d 89 (Del. 2019) (Table).

11 In footnote 8 the Supreme Court stated that, although 22 Del. C. § 328 seemingly provides that “any 

taxpayer” may petition for review of a board of adjustment decision, it did not read § 328 to permit [the 

corporation] to bypass the ordinary test for standing in this case, which is one that “does not directly 

implicate taxation or spending.”
8

Appellant is a natural person who alleges that Applicant’s proposed hotel would 

negatively impact his health and safety, which the zoning code is designed to protect, 

including, among other ways, by increasing vehicle traffic, with an increased risk to 

Appellant’s safety as a pedestrian. He also alleges that he is personally affected because 

the aesthetic benefit he enjoys under the zoning code, particularly for the iconic 

Rehoboth Boardwalk, will be diminished. The Board has conceded that the hotel would 

be located at an “iconic” location for City residents. Appellant had no anti-competitive 

purpose here, and seeks to protect his own personal interests and not simply the interests 

of the general public. 

Appellant cites Marriott Corporation v. Concord Hotel Management,

12 in which

our Supreme Court reversed the Superior Court’s decision to overturn a board of 

adjustment’s grant of a variance, but explicitly affirmed the Superior Court’s ruling that 

the plaintiffs had standing (one appellant was a natural person, the other appellant was 

an artificial entity). As to standing, the Superior Court stated: 

It is a rule of statutory construction that where the language of the statute is 

clear and unambiguous, it must be held to mean what it clearly states. There 

is no reason to resort to statutory construction where there exists no doubt as 

to its meaning or where the language is unequivocal. The statute clearly grants 

standing to three categories of persons to challenge any decision of the Board, 

[including to] any taxpayer ....Based on the clear and unambiguous language 

of the statute, there is no room to argue that, as a taxpayer, plaintiffs lack 

standing.... 13

12 578 A.2d 1097 (Del. 1990) (Table).

13 Concord Hotel Mgmt. v. Marriott Corp., 1989 WL 167403, at *3 (Del. Super. Dec. 28, 1989) (internal 

citations omitted).
9

I am persuaded that the Superior Court standing decision in Marriott Corporation, as 

expressly affirmed by our Supreme Court, indicates that Riverfront Hotel was not 

intended to sub silentio overrule Marriott Corporation’s approval of taxpayer standing. 

In addition, standing for taxpayers qua taxpayers was recognized in Wallace v 

Board of Adjustment of Odessa,

14 where the Superior Court applied the clear language 

in Section 328(a) to find two natural persons had standing as taxpayers. No Delaware 

decision has rejected Wallace. 

I find that Appellant has standing to bring this action both as a taxpayer and as an 

aggrieved person within the meaning of 22 Del. C. § 328(a).

IV. STANDARD OF REVIEW

My review of Board decisions is limited to “the correction of errors of law” and 

determining “whether substantial evidence exists in the record to support the Board’s 

findings of fact and conclusions of law.”15 Our Supreme Court has defined substantial 

evidence as “that which a reasonable mind might accept as adequate to support a 

conclusion. It is greater than a scintilla and less than a preponderance.”16 Substantial 

evidence is “a low standard to affirm, and a high standard to overturn.”17 Unlike the 

14 1988 WL 97899 (Del. Super. Sept. 15, 1988).

15 Dexter v. New Castle County Bd. of Adjustment, 1996 WL 658861, at *2 (Del. Super. Sept. 17, 1996), 

aff’d. 692 A.2d 414 (Del. 1997); W & C Catts Family, L.P. v. Town of Dewey Beach, 2018 WL 6264709, 

at *7-8 (Del. Super. Nov. 30, 2018) (citing Janaman v. New Castle County Bd. of Adjustment, 364 A.2d 

1241 (Del. Super. 1976)).

16 Gala v. Bullock, 250 A.3d 52, 69 (Del. 2021) (citations omitted).

17 Dover Land Holdings, LLC v. Kent County Bd. of Adjustment, 2016 WL 3951699 (Del. Super. July 
10

preponderance of the evidence standard, substantial evidence does not require a finding 

of “the greater weight of the evidence” for a particular party.18

However, the Board's discretion is not without limits. The Board may not "do 

whatever it thinks best without a factual basis in the record."19 To enable me to fulfill 

my function of appellate review, “[t]he Board must particularize its findings of fact and 

conclusions of law in order to enable [me] to fulfill [my] function of appellate review.”20

As part of the substantial evidence review, I “will not weigh the evidence, 

determine questions of credibility, or make [my] own factual findings.”21 I will defer to

the Board’s factual findings that are supported by substantial evidence.22 I will uphold 

a decision supported by substantial evidence “even if such a court would have decided 

the case differently if it had come before it in the first instance.”23

The burden is on the applicant to present sufficient evidence to warrant the 

granting of the Variance.24 I must determine if the evidence is legally adequate to 

support the Board's factual findings.25 After determining whether substantial evidence 

exists on the record to support the Board's decision and whether the Board's decision is 

15, 2016).

18 Taylor v. State, 748 A.2d 914 (Table) (Del. 2000).

19 Dexter, 1996 WL 658861, at *2.

20 Id. at *3.

21 New Cingular Wireless PCS v. Sussex County Bd. of Adjustment, 65 A.3d 607, 610 (Del. 2012) 

(citation omitted).

22 Clark v. Packem Assoc., 1991 WL 36470 at *24 n.14 (Del. Ch. Mar. 6, 1991) (citation omitted).

23 Id.

24 Fairwinds Shopping Center, Inc. v. Bd. of Adjustment of New Castle County, 1993 WL 258801, at *4 

(Del. Super. June 4, 1993).

25 Wawa, Inc. v. New Castle County Bd. of Adjustment, 929 A.2d 822, 830 (Del. Super. 2005).
11

free from legal error, I may reverse, affirm wholly or in part, or modify the Board's 

decision, but I may not remand the case to the Board for further determinations.26

V. ANALYSIS

A. The Kwik-Check Test

Municipal Boards of Adjustment were created by the General Assembly to:

[a]uthorize, in specific cases, such variance from any zoning ordinance, code 

or regulation that will not be contrary to the public interest, where, owing to 

special conditions or exceptional situations, a literal interpretation of any 

zoning ordinances, code or regulation will result in unnecessary hardship or 

exceptional practical difficulties to the owner of property so that the spirit of 

the ordinance, code or regulation shall be observed and substantial justice 

done, provided such relief may be granted without substantial detriment to the 

public good and without substantially impairing the intent and purpose of any 

zoning ordinance, code, regulation or map.

27 [Emphasis supplied]

Delaware courts recognize two types of “variances” from zoning code 

requirements: (i) a “use variance,” where a property owner seeks to use their property 

for a particular use not permitted by the zoning classification; and (ii) an “area variance,” 

where a property owner seeks relief from a dimensional requirement or limitation. Here, 

a use variance is unnecessary because the hotel and other commercial uses of the 

Property are permitted by the existing zoning classification. Rather, Applicant sought an 

area variance, as they sought relief from the floor area limitations imposed by the 2.0 

FAR requirement. 

26 9 Del. C. § 1314(f); Dexter, 1996 WL 658861, at *3.

27 22 Del. C. §327(a)(3).
12

In Board of Adjustment v. Kwik-Check Realty, Inc.,

28 the Delaware Supreme Court 

held that the less burdensome “exceptional practical difficulty” test applies to area 

variances, and the more burdensome “unnecessary hardship” test applies to use 

variances. The Court set forth a four-factor test to determine whether an area variance 

should be granted. Those four factors (often referred to as the “Kwik-Check test”) are: 

(1) the nature of the zone in which the property lies;

(2) the character of the immediate vicinity and the uses contained therein;

(3) whether, if the restriction upon the applicant's property were removed, such 

removal would seriously affect such neighboring property and uses; and,

(4) whether, if the restriction is not removed, the restriction would create ... 

exceptional practical difficulty for the owner in relation to his efforts to make 

normal improvements in the character of that use of the property which is a 

permitted use under the use provisions of the ordinance.29

I will consider each of the Kwik-Check factors separately, although in my view in 

the final analysis they must be viewed collectively and holistically rather than 

mechanically or mathematically. 

First, the Variance has been requested to redevelop the Property for hotel and retail 

use. This is consistent with the commercial zoning classification of the Property, and 

28 389 A.2d 1289 (Del. 1978).

29 Kwik-Check, 389 A.2d at 1291.
13

Appellant appropriately concedes that this standard has been satisfied.30

Second, granting the Variance would enable the redevelopment of the Property in 

a way that conforms to the character of the immediate vicinity and the uses contained 

therein. The character of the immediate vicinity near the Property, and the uses contained 

therein, include restaurants, hotels, parking lots, and retail uses. If the Variance is 

granted, the redeveloped Property would include underground parking and retail shops 

at the street level; if the Variance is not granted, the redeveloped Property would include 

surface parking at the street level and no retail shops. Either way, the redevelopment of 

the Property would conform to the existing character of the immediate vicinity and the 

existing uses contained therein.

Third, granting the Variance would not seriously (or negatively) affect 

neighboring properties and uses. Only one neighboring property owner testified at the 

hearing. Although he was generally in favor of the redevelopment project, he expressed 

concerns about potential fire safety issues. However, there was testimony that the State 

Fire Marshall was not opposed to the redevelopment project. In my view, fire safety 

issues are not directly related to the Variance request, but will be fully vetted and 

addressed with the State Fire Marshall as the redevelopment proceeds. Neither would 

granting the Variance eliminate the need for the redevelopment project to go before the 

30 Op. Br. 15-16.
14

Planning Commission for site plan approval before a building permit was issued.31

Concern was expressed at the hearing and in written submissions that the redevelopment 

project would block sky and ocean views. Notably, the CDP states, “The current height 

restrictions of 42 feet for any building that faces the Boardwalk appear adequate to assure 

that new buildings do not shade the beach during the day.”32 Since the redeveloped

Property will conform to the CDP height standards, these concerns are unfounded. 

Appellant contends that a 3.0 FAR hotel would overwhelm the surrounding vicinity and 

the immediate area. However, the height, the bulk, and the footprint of the building 

would be essentially the same under either FAR; i.e., any dimensional change is 

minimal. To put it succinctly, the harm to Applicant if the Variance is denied outweighs 

any harm to Appellant – and other neighboring properties – if the Variance is granted.

The fourth, and perhaps most difficult, factor is the “exceptional practical 

difficulty” factor. The standard that applies to area variances considers “whether a literal 

interpretation of the zoning regulations results in exceptional practical difficulties of 

ownership.”33 This standard is satisfied only when the difficulties alleged by the owner 

are practical rather than theoretical and exceptional rather than routine.34 In Kwik31 The City Solicitor stated that such review was not required at the variance stage of the development 

process, and that the granting of a variance would not eliminate the need for the redevelopment project 

to go before the Planning Commission for site plan approval before a building permit was issued.

32 2010 Rehoboth Beach Comprehensive Dev. Plan, 35.

33 Kwik-Check Realty Co., Inc. v. Board of Adjustment of New Castle County, 369 A.2d 694, 698

(Del. Super. 1977).

34 Kwik-Check, 389 A.2d at 1291.
15

Check, the Supreme Court of Delaware concluded that “[t]he inability to improve one's 

business, or to stay competitive as a result of area limitations,” may qualify as a 

legitimate “exceptional practical difficulty” that would justify granting the 

Variance.35 An exceptional practical difficulty exists “where the requested dimensional 

change is minimal and the harm to the applicant if the variance is denied will be greater 

than the probable effect on the neighboring properties if the variance is granted.”36

Both parties acknowledge that a hotel could be built on the Property without 

increasing FAR from 2.0 to 3.0 and, since it would cost less to build, Applicant would 

actually obtain a greater return on investment than by building a 3.0 FAR hotel. Since 

no economic difficulty would be suffered by Applicant if the Variance is denied, argues 

Appellant, there is no exceptional practical difficulty for Applicant. Applicant can still 

build a Zoning Code-compliant hotel with 110 rooms, surface parking, no street level 

retail shops, smaller rooms and balconies, and no meeting rooms, restaurant, or bar.

Building an upscale hotel of one’s dreams is not a “normal improvement in the character 

of that use of the Property” when a less upscale hotel will suffice under the Zoning Code.

Applicant counters that, without the Variance, its aesthetic vision for the hotel 

could not be realized. That vision includes a few additional (116) rooms, greater 

architectural detail, underground parking, street level retail shops, larger balconies with 

35 Id.

36 Id.
16

awnings, meeting rooms for conventions and conferences, a restaurant, and a bar. 

Applicant claims that the high cost of building underground parking cannot be borne 

without the higher room and amenity revenues from a 3.0 FAR hotel offsetting that cost. 

Thus, if the 2.0 FAR restriction is not removed, it would create exceptional practical 

difficulty for Applicant in relation to its efforts to build an overall better hotel, more in 

keeping with the surrounding character of the area, offering increased economic benefits 

to the City, and consistent with the goals of the CDP. 

This raises the issue of whether the inability of a developer to realize its aesthetic 

vision for a redevelopment project constitutes an “exceptional practical difficulty,” since 

it is imposed by the developer on itself and not by the municipality or its zoning code on 

the developer. The Kwik-Check test does not address what subjective factors may or may 

not be motivating Applicant. Appellant’s argument that an “upscale” project is not a 

“normal” improvement is another way of saying that Applicant’s desire to build an 

“upscale” hotel is a “self-created” hardship and therefore the Variance should be denied. 

However, Delaware courts have held that a “self-created” hardship is not a per se bar to 

the grant of a variance. In Dexter v. New Castle County Bd. Of Adjustment,

37 a 

homeowner wanted to partially convert a garage into a residence. The Superior Court 

reversed the board of adjustment’s denial of a variance based on the exceptional practical 

difficulty test:

37 1996 WL 658861 (Del. Super. Sept. 17, 1996).
17

[T]he Board suggests that because the structure satisfies the code 

requirements if it is utilized as a garage, the mere fact that Appellants want to 

use it as a residence makes their hardship self-created. However, a self-created 

hardship is one created by affirmative action on the part of the applicant which 

resulted in a condition requiring the variance. Alternatively, the hardship 

arises out of the applicant's personal desire to use the property in a particular 

manner which is prohibited by the provisions of the applicable zoning code as 

opposed to a problem inherent in the property itself. Moreover, the Court notes 

that to some degree every application for a variance request is “self-created” 

as the application necessarily arises from the applicant's personal desire to use 

the property in a certain manner. Given this interpretation, the Court must 

conclude that the Board incorrectly applied the “self-created” hardship 

doctrine to the facts of this case and erred as a matter of law in concluding 

that the Appellants did not experience exceptional practical difficulty.38

Our Supreme Court has stated that, in Delaware, there is no per se bar against a 

variance for a self-imposed hardship. The question is whether an applicant has 

adequately demonstrated that his difficulty justifies the grant of a variance.39

Another Delaware Supreme Court case affirmed the grant of an area variance 

driven by aesthetic concerns. In Marriott Corp. v. Concord Hotel Management, a Div. 

of Concord Towers Inc.,

40 the Delaware Supreme Court reversed a Superior Court 

decision and upheld the grant of a variance that would permit slightly smaller and fewer 

parking spaces, thereby increasing the amount of open space and landscaping on the 

site.41 It was undisputed that the two proposed hotels (and a small restaurant) could be 

built with the larger parking spaces and additional parking spots, and there was no 

38 Id, at *6.

39 McLaughlin v. Board of Adjustment of New Castle County, 984 A.2d 1190, 1193 (Del. 2009) (citation 

omitted).

40 578 A.2d 1097 (Del. 1990) (Table, text available at 1990 WL 109878).

41 Id., at *2.
18

evidence that the proposed hotels could be operated less profitably without the variances. 

The only reason for the requested variance was the applicant’s desire to provide better 

aesthetics and landscaping with the additional open space created by slightly smaller and 

fewer parking spaces. The Supreme Court affirmed the Board’s decision, quoting from 

the Board’s decision that:

[T]he Board is convinced that the applicant is suffering exceptional practical 

difficulty so as to justify the relief requested . . . the harm to the applicant if 

the variance is denied would be greater than the probable effect on 

neighboring properties if it's granted.42

In so affirming, the Supreme Court made no suggestion that a desire for greater aesthetics 

was an improper basis for a variance and found the Board had properly applied the KwikCheck test. 

In this case, Applicant argues that the essential aesthetic difference between the 

2.0 FAR hotel and the 3.0 FAR hotel is that the former would have street level parking 

and no retail shops, and the latter would have underground parking and street level retail 

shops. In addition, the 3.0 FAR hotel would have conference space and other amenities, 

allowing the hotel to function year-round as a conference center, and a quality restaurant 

and bar. I find that these aesthetic considerations of Applicant are not a bar to the Board’s 

grant of the Variance, particularly when taken into consideration along with the other 

Kwik-Check factors discussed herein. 

42 Id., at *3.
19

Rather, in my view this case comes down to the exceptional practical difficulty of 

Applicant paying for the significant cost of underground parking without being granted 

relief to build to a higher density above-ground, such that the redeveloped Property will 

generate sufficient revenue to offset that cost. Perhaps the case most on point is Boyd v. 

Heffron,

43 in which the developer requested a variance from the Wilmington Board of 

Adjustment to increase FAR from 3.5 to 5.9 (a 68% increase) to build a luxury apartment 

complex with larger rooms. Testimony was given to explain the requested FAR variance. 

It was stated that there was a process between development costs and project economics 

which dictates a certain level of rentable square footage to make the project viable. Due 

to certain fixed costs (e.g., land costs, building equipment costs, site improvement costs), 

reducing the number of rental units does not reduce the cost per unit. However, 

increasing the number of rental units does reduce the cost per unit by spreading the fixed 

costs over the entire project. Initially, the developer's plan conceived of a building 

housing 250 to 300 units. However, due to design criteria and economic feasibility, the 

plan was scaled down to its present number of 250 units. This number was a compromise 

which addressed the builder's concern of his fixed costs and the top dollar rental cost the 

market could absorb. This variance request to allow a FAR of 5.9 was not a variance 

intended to increase the number of units requested, but rather one to accommodate the 

increased size of each apartment unit, with the concomitant higher rent. The developer 

43 1987 WL 28314 (Del. Super. Dec. 11, 1987).
20

was interested in a luxury apartment complex, appealing to those middle to upper income 

city workers with families. Should the variance not be granted, testimony revealed that 

the project as it was conceived would not be economically feasible and probably would 

not proceed. It was technically possible to build 250 units and meet the 3.5 FAR 

requirement. However, that would require apartment size to be drastically reduced. 

These smaller units would not be marketable, nor would they be compatible with the 

surrounding neighborhood community. 

The higher 5.9 FAR was also a consequence of the zoning code requirement which 

required on-site parking. Needing to maximize the on-site parking without resorting to 

a three-level above grade lot (the plan allowed for two parking levels), the builder 

increased the portion of the lot to house the parking, and decreased the lot area of the 

apartments. Therefore, decreasing the lot area while increasing the area of the living 

units created the higher FAR requested.

The Superior Court found that the increased FAR would not adversely impact the 

surrounding community. FAR is the method used to control density. The larger the FAR 

the greater the density and the larger number of units that can be accommodated by the 

building mass. Here, although the builder had requested a higher FAR, it had not sought 

to increase the number of units, which would have detrimentally raised the population 

density of the residentially zoned area. The Superior Court concluded that the Board was 

within its rights when it concluded that increasing this FAR would not seriously affect 
21

the neighborhood property. Despite a much greater FAR, there was no evidence that 

there would be an impairment of the value of the homes in the adjoining single-family 

neighborhood. The Board by its decision found the builder's desire to accommodate 

family living in upscale, large sized apartments to be to the community's benefit, and that 

requiring the developer to abide by the 3.5 FAR would stagnate, or halt altogether, the

project to the detriment of both the developer and the surrounding community.

The Superior Court found that there was sufficient evidence before the Board to 

justify its granting of a variance permitting the 5.9 FAR in the residential zone and upheld 

the variance. 

In this case, the proposed 3.0 FAR is not just designed for more or larger rooms, 

but to allow for underground parking and provide a conference center, amenities, and 

ground-level retail shops. Even so, the overall height and mass will be essentially the 

same.

B. Zoning Code vs. CDP

At oral argument, counsel for the Board indicated that Delaware courts have 

stricken county and municipal ordinances found contrary to applicable comprehensive 

development plans. This statement was made in connection with an argument that, to the 

extent the City’s Zoning Code was inconsistent with the CDP, the CDP might govern. I 

asked counsel to provide those cases, which he did by a letter dated September 8, 2022. 

The other parties have not yet filed responses to this letter. 
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At the Board’s public hearing, the former Chair of the City Planning Commission 

stated that the 2.0 FAR plan has “no merit” and was “inconsistent with the CDP.”44 He 

further urged the Board to grant the requested variance to allow the 3.0 FAR alternative, 

explaining that “[t]his is a unique opportunity for the City of Rehoboth to allow exactly 

what the 2010 CDP intended.”45

I have reviewed the cases which counsel submitted and thank him for his 

submission. I have not yet heard from the other parties. However, since I have decided 

this case within the four corners of the Zoning Code and applicable law pertaining to 

variances therefrom, in my view the issue of whether the CDP can override the Zoning 

Code is moot and, under settled issues of judicial restraint, need not be addressed or 

decided at this time, but can wait for another day.

C. Substantial Evidence on the Record

As discussed above, my job is not to evaluate the merits and demerits of the 

proposed redevelopment of the Property. My job is to determine whether there is 

substantial evidence on the record before me to support the Board’s decision.

Appellees point out that there are thirteen findings of fact by the Board, all of 

which are supported by a significant amount of testimony, letters, exhibits and other 

documents. 

44 Tr. at 150.

45 Tr. at 151.
23

Appellant states that there is a dearth of technical and scientific data to support 

Appellees’ claims, but rather self-serving statements from Applicant and his team. 

Appellant complains that there was “no consideration of the contrary evidence or Board 

findings of fact resolving conflicting testimony and evidence.”

46 However, I am unaware 

of any requirement that the Board must discuss all the evidence presented before it, and 

Appellant cites no authority for that proposition. Rather, the Board’s failure to discuss 

adverse statements may simply be indicative of the fact the Board did not credit those 

statements, or its recognition that such statements were without merit or not credible. In 

any event, the Board’s decision will be upheld where it is supported by “more than a 

scintilla but less than a preponderance” of the evidence.47

After a thorough review of the record, I am of the view that there is more than 

sufficient evidence on the record to support the decision of the Board. 

D. Errors of Law

Appellant asserts that the Board also erred as a matter of law by failing to even 

cite in its analysis the relevant Kwik-Check legal test or its four factors, much less 

provide an actual analysis of those four factors based upon substantial evidence. 

Appellant urges me to reverse on that ground alone. While it might have been helpful if 

the Board had expressly cited the Kwik-Check test and applied its four factors in a 

46 Op.Br. at 14- 15.

47 Olney v. Cooch, 425 A.2d 610, 614 (Del. 1981) (citations omitted); Mellow v. Board of Adjustment, 

565 A.2d 947, 954 (Del. Super. 1988), aff'd, 567 A.2d 422 (Del. 1989) (Table).
24

fulsome legal analysis, in my view this is not essential. The Board is not required to be 

composed of lawyers and the decision of the Board is not a legal opinion. It is an 

administrative decision. As such, so long as the four factors of the Kwik-Check test were 

in fact applied to the facts of the case, and that application was consistent with KwikCheck, there is no legal error. In my view the Board addressed the appropriate factors 

validating its decision.

VI. CONCLUSION

For the reasons discussed above, the Decision of the Board of Adjustment of the 

City of Rehoboth Beach is AFFIRMED.

IT IS SO ORDERED.

/s/ Craig A. Karsnitz

cc: Prothonotary