Case Summary: Hamm v. City of Wilmington

June 2010Newsletters In the Zone

A recent Delaware Superior Court decision deals specifically with the burden of proof in the area of nonconforming uses. In Hamm v. The City of Wilmington , the property owner appealed the City of Wilmington Zoning Board of Adjustments decision upholding the Zoning Administrator's determination that insufficient evidence existed to show the continuity of the non-conforming use of Hamm's apartment building.

Hamm purchased a triplex apartment in Wilmington from the Estate of Anne Dorsey Hall. Hall had purchased the property in 1946 and resided in the second floor apartment from 1950 until her death on September 27, 2007. During those years, Hall rented out the other two apartments. The triplex had been originally zoned for multi-unit dwellings and, in approximately 1980, the area was rezoned for single-family dwellings. Hall continued to rent out the apartments as a permissible non-conforming use. In February 2007, seven months before her death, Hall broke her hip at home, was hospitalized and then entered an in-patient rehabilitation facility. Hall intended to return to her home; however, she died before she was able to do so. The triplex was sold by her estate. Hamm purchased the triplex in June 2008 and proceeded to make significant repairs to the property. In August 2008, he leased two of the three apartments. In September 2008, Hamm leased the third apartment. In moving quickly, Hamm intended to ensure that he had tenants in the triplex before one year had passed before August 2007, the date the previous tenant departed. Hamm was fully aware of the Wilmington ordinance that does not permit a nonconforming use to continue if one year has passed since the discontinuance of the use. Additionally, Hamm attempted to register the triplex with the Department of Licenses and Inspections. Hamm was notified by the City of Wilmington Administrator that he might be in violation of the non-conforming use ordinance and that more information would be required for the Zoning Administrator to determine if the use had in fact been abandoned. Hamm provided the Zoning Administrator with an affidavit from one of the tenants who stated that he was a tenant in the triplex until August 2007. Hamm also submitted an affidavit from Hall's niece indicating that tenants resided in the triplex through 2007.

The Zoning Administrator did not determine that the non-conforming use was lost but only determined that insufficient evidence had been presented to show that the non-conforming use had been continued. As a result, the necessary occupancy licenses were not issued and the Department of Licenses and Inspections brought criminal proceedings against Hamm for failure to register the three rental units. Hamm could not register the units until a decision was made regarding the non-conforming use. Hamm requested a hearing before the Zoning Board of Adjustment. The Board upheld the Administrator's finding that insufficient evidence existed to show continuity of a non-conforming use or that a vacancy was due to circumstances beyond the owner's control. Hamm petitioned the Superior Court to overturn the decision. In its decision, the court noted that the City of Wilmington asserted that Hamm had abandoned the non-conforming use of his triplex. The court ruled that the City had the burden of proving the abandonment of the non-conforming use. "It is not enough for the City of Wilmington to simply demonstrate that insufficient evidence exists to continue the non-conforming use." Rather, the City must affirmatively demonstrate the abandonment of such use, and the City failed to do so. The court further stated "for Hamm to have abandoned the nonconforming use of his triplex he must be shown to have intended to discontinue renting the apartments and to have acted on that intent."

In this case, Hamm did just the opposite by taking measures to ensure the nonconforming use continued and quickly seeing to it that tenants were installed in the triplex prior to the lapse of one year from the time the previous tenant departed. Finally, the court found that no substantial evidence existed to support a finding of abandonment of the non-conforming use by either Hamm or Hall. The court further found that the Board of Adjustment did not correctly apply the law in its finding that not enough evidence exists to show the continuity of the non-conforming use. The court clarified this by noting that Hamm was not required to show continuity; rather the City of Wilmington was required to demonstrate abandonment, which it did not do.

For more information, please contact Michael J. Isaacs at 302.622.4213 or [email protected].