The Facts about our
Chancery Court Case

Our Opening Brief to the
Delaware Supreme Court

Supreme Court Reply Brief

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We are the property and business owners of 1703 and 1709 Concord Pike in Wilmington, Delaware.

We oppose the change of use of 1707 Concord Pike from general office to light auto service (auto detailing).

It has been 706 weeks and 4 days since we first complained to New Castle County about this property.

For all of you who own commercial properties in New Castle County or represent those who do, it seems that changing the use of a nonconforming property to a more intensive use does not require you come up to current code. If you have been spending tens of thousands of dollars to reduce your square footage, engineer parking plans, and/or get variances from the Board of Adjustment, then you have been duped by the Land Use Department.

And for those of you like us who have shared parking, be prepared to be overrun when one of your neighbors changes to a more intensive use. The County will lie to you and then look the other way. In their eyes, "shared parking" means "unlimited parking" and UDC Section 40.22.611 Subsection K does not apply.

Deerhurst - Wilmington, Delaware

Deerhurst in Wilmington, Delaware, was built by W. Percival Johnson and his son Joseph Johnson. They initially operated as Concord Development Company (CDC), a Delaware corporation. In 1942 CDC purchased about 66 acres from the Peirce family and started building homes. During WWII, the federal government froze the sale of new homes, so the homeowners had to rent their homes until the ban was lifted. The Deerhurst Civic Association was originally created as renters' protective organization but was later converted to a homeowners' association. Three commercial buildings were built and sold in 1946 along the Concord Pike. The Triplex buildings (1701, 1703 and 1705) were originally a grocery store, pharmacy/soda counter, and liquor store (with apartments upstairs). There was a public walkway that connected York Rd to the Concord Pike so residents could ride the bus into the City of Wilmington. Johnson plaque at Ward Park in Deerhurst:

November 22, 1942

1959 photo of the Concord Pike & Murphy Rd intersection (click for larger):

2/28/1946 - Newspaper article about the permit for the two-story Triplex building.
1/10/1947 - Grand Opening of Mulrine's Liquor Store at 1701 Concord Pike. The Mulrine's owned the liquor store until March 1969.
2/6/1947 - Grand Opening of Coverdale's Market at 1705 Concord Pike. The Coverdales lived at 1 Peirce Rd.
2/8/1947 - Grand Opening of Bairds' Soda Shop at 1703 Concord Pike. The Bairds' lived at 2 Murphy Road.
Photo from 5/10/1952 of Ephraim and Emma Fine (the "Easy" Fines) and Lou Waller at the Deerhurst Food Market. The Fines owned 1705 Concord Pike from 1949 to 1973.	The Fines again in 1953:

So who can park in your driveway?

Anyone who owns a house (or commercial property) in Deerhurst Area 2!

In his 10/24/2012 order, the Vice Chancellor deduces that "successors in title" gives the homeowners the rights to park in their common driveways.

This is incorrect and leads to the absurd result that anyone who owns a house (or commercial building) built by Concord Development can park in YOUR driveway!

"Successors and assigns" in the Reservation Clause has nothing to do with the homeowners' parking privileges. They are assigned the right in the paragraph directly before the reservation clause (in the "Assignment Clause").

After reviewing all of the residential deeds, we determined the common thread for all Deerhurst properties that have rights to use a common area is: 1) the common area is described in the metes & bounds of their deed and 2) there is an assignment clause in their deed that grants them the rights to use the described common area.

Here is an example from the April 1944 deed for 1699 Concord Pike. You can see where they describe the common area (driveway) in the metes & bounds, then they assign the rights to the new owner and then they reserve the rights to Concord Development Company.

We argue that when the term "successors" follows "Concord Development Company, a corporation of the State of Delaware" it means corporate successors. This protects CDC's interests if they were to sell to or merge with another company (which is what actually happened in 1955). Any reserved rights would flow to the new corporation.

A good example is 1699 Concord Pike (house #1 below) and 1697 Concord Pike (house #2 below). They are the first two houses on the south side of the Triplex and, like almost all of the homes in our section of Deerhurst, share a common driveway that straddles the property line (yellow line below):

If you look at the deeds, House #1 originally sold in April 1944. House #2 sold almost 17 months later in September 1945. When CDC sold the first house, they assigned the rights to the driveway to the new #1 owners, including the half of the driveway on lot #2. They also reserved the rights to themselves so they could later assign them to the new owners of house #2. When they sold #1, they had no idea when they would sell #2 - it could be a week, a few months, a year or, in this case, almost a year and a half later.

If during that period between April 1944 and September 1945 CDC went bankrupt or sold the company, the new successor would need to be able to later assign the rights to the full driveway to the new owners of house #2. That's why "successors" means corporate successors, not successors in title.

If "successors" meant "successors in title" then anyone who bought a property from CDC - the owners of the 4 commercial buildings and roughly 100 houses in Deerhurst - would be able to park any of the common areas in the neighborhood.

This is why we argued that "successors in title" would lead to the absurd result where anyone who owns property in Deerhurst could park in any driveway in Deerhurst.

Again, based on all the residential and commercial deeds, the common thread is: You only have the right to park in the common area that is described in the metes & bounds of your deed and to which rights are assigned to you in your deed.

Click here to watch Video #2 - Successors and Assigns.

Below is the map of Deerhurst Area 2. Please contact us if you'd like to see your original deed.

Click for larger image