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January 25, 2010     Cape Gazette
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4 Cape Gazette ..... NEWS FRIDAY, JANUARY 22- MONDAY, JANUARY 25, 2010 13 I ! Acres files answer brief in00a00rt league case Board says Superior Court decision should be upheld By Ryan Mavity ryanm@capegazette.com In a brief filed in Delaware Supreme Court, the Henlopen Acres board of adjustment says the Rehoboth Art League's pro- posed new building is out of character with the neighborhood and reiterated its reasons for denying a variance request. The art league is seeking a use variance and a parking variance for a proposed new Chambers Building studio. The new studio would be used for administration and storage of art pieces current- ly in the Homestead building, The board heard the case in August 2007 and denied the vari- ances in November 2007. The art league filed an appeal in Superi- or Court, which upheld the "Because Mr. Hill participated at the board hearing exclusively in a private capacity, there was no undtie influence over the board and therefore no due process violation," the town brief said. "Elected officials do not lose their rights to speak out on public issues that may affect their own-land." In its second argument, the art league said the board prejudged the issues and failed to analyze the relevant facts and law. To support its argument, the art league pointed to three events at the August 2007 hear- ing: an exchange between two board members where the board members discussed, prior to ar- gument, how they were going to vote; the participation of those board members in the decision to deny the Variances; and a statement by one board member that the town has a goal to re- duce the number of variances granted each year. board's decision. An appeal was In the answer brief the bod then filed in the Supreme Court ..... , " " w " " :saad. When v]e,,ed m thexr Nov. 23, and the town ha dutq_ til proper context, none of these" Dec 28 to file an answer brief v m ' e ents de onstrate that any In its opening brief, the art board member prejudged any is- league argued three reasons why the board's decision should be overturned. First, the Rehoboth Art League argued that Commissioner David Hill's appearance at the board's August 2007 hearing de- nied the art league due process. Hill, who livesnear the art league property, argued against granting the variances. The art league said because Hill, as com- missioner, has voting power over the constitution of the board, his appearance constituted duress upon the board in its decision to vote against the variances. In its answer brief, the board said the art league did not raise this argument at the original hearing and therefore waived the argument on appeal. The art league also did not raise the issue in Superior Court. sue." Regarding the exchange be- tween the two board members, the brief says, when viewed in context, the board members were not expressing their opin- ion as to the merits of the appeal of one particular issue. This point was also supported by the Superior Court. "Because RAL's interpretation of the board discussions and de- liberations is not supported by the record, the Superior Court correctly held that the board was neither biased nor predisposed," the answer brief said. Finally, the art league argued the Superior Court incorrectly held that the board's decision was supported by substantial ev- idence. The art league campus is zoned residential, thus, the uses of the property are nonconform- circumstances that would re- ing, necessitating the need for quire a variance. variances to construct a new "Indeed, RAL's need for a vari- Chambers Building. According ance is not dueto unique circum- to the art league's brief, Hen- stances, but instead because it lopen Acres' comprehensive de- has (allegedly) outgrown its lo- velopment plan states deed re- cation. As a result of growth, strictions allow for the property RAL desires to construct a new to be used for art galleries, art ed- building to display and store its ucation facilities and art-related art collection," the brief said. classes. "That RAL now has more art In support of a new Chambers than it can comfortably accom- Building, the art league says the building is functionally and structurally obsolete and does not meet current building stan- dards. The building cannot be renovated to correct its current conditions and cannot be retro- fitted without decreasing the us- able and functional space. The art collection cannot continue to be stored at the Homestead and cannot be moved to the Corkran Building because that building lies within a FEMA flood zone. The board's brief disagreed; its brief said renovation to the Chambers Building is possible. In addition, the art league did not demonstrate that it cannot store some or most of its collection off-site and did not submit any monetary proof that all uses per- mitted on the land under existing zoning are economically unfeasi- ble. Also, the answer brief said the art league failed to show unique modate at its present location, more members than it can han- dle, or that its many activities at- tract cars with nowhere to park, is not the result of anything unique about the property, but of the RAL's activities over the years." Lastly, the board said the pro- posed new building - 11,275 Continued on page 15 IN-STOCK POOL T.UL$: Save up to $1,100 GAME ROOM' FURNITURE upto 50% OFF FREE DELIVERY FREE INSTALLATION FREE PLAY KIT With the purchase Of any Dilflard table ia stock ;orne exclusions may apply see store for details I I exp 2/18/10 I I w,600Wo,+e Af'N00T T A Neck Road .,L"k. 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