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.

The Facts about our Chancery Court Case

Corporate Successors vs. Successors In Title - From #11 of the Post-Trial Order:

In his order, the Vice Chancellor deduces that "successors in title" gives the homeowners the rights to park in their common driveways. This is incorrect.

"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.

1707 Concord Pike claiming a right to use the Triplex common areas based on a blanket "successors in title" reservation has no more merit than the homeowners behind the Triplex on York Rd claiming a right. They too are adjacent to the Triplex and "successors in title" to CDC. They might want to use our common driveway to access their properties from the Concord Pike to avoid driving through the neighborhood.

The Original Property was not just 1701, 1703, 1705 and 1707!

In #1, the Vice Chancellor says the "Original Property" was lots 1701, 1703, 1705, and 1707 Concord Pike. This is incorrect - the "Original Property" was a very large (66 acre) farm.

On December 31, 1942, George and Eva Peirce sold their farmland to Concord Development Company. The 1942 deed references this "Revised Plan of a portion of DEERHURST" (Plat Record 1, Page 27):

This is the "Original Property" and it is about 66 acres. The 1701, 1703, 1705, and 1707 Concord Pike lots are a very small portion of the "Original Property" and are labeled "Commercial" on the above plan (highlighted in red above).

This is why we introduced the residential Deerhurst deeds into evidence and talked about them during the trial. The "Original Property" that was develped by CDC was much larger than the 1701 - 1707 lots.

There are only two common areas on the Triplex property

In #2, the Vice Chancellor says their are three common areas on the Triplex property and he refers to a "Back Parking Area". This is incorrect.

There are only two common areas definied by the 1946 deeds:

#1 is in front of the stores (currently has 7 striped parking spots) and is called “Common Parking and Driveway Area”.  It is “for parking and driveway purposes".
#2 is the L-shaped driveway that runs along the north side of the Triplex and in the rear of the Triplex.  It is called the “Common Driveway” and is "for driveway purposes".

Below is the assignment clause from the Triplex deeds for common area #1 (the area in front of the buildings). It clearly states "for parking and driveway purposes":

Below is the assignment clause from the Triplex deeds for common area #2 (the area on the side and to the rear of the buildings). It clearly states "for driveway purposes":

In other words, no parking in common area #2. Even their surveyor, Mr. Paraskewich, testified to this at trial:

Were they really talking about 1707? - From #8 & #9 of the Post-Trial Order:

Earlier in his order, the Vice Chancellor says the 1946 Triplex deeds clearly evidences the grantor's intent to reserve express easements for the benefit of lot 1707. We disagree.

Nowhere in the three 1946 Triplex deeds does one find "1707 Concord Pike" or any reference to any land areas outside the 1701 to 1705 parcels. It is true that the deeds clearly reserve rights to Concord Development Company but that is a Delaware Corporation. There is no evidence that they were reserving rights to the 1707 lot. At the time the 1946 deeds were written, Concord Development Company still owned several (about 15) homes in Deerhurst. Are we to assume those homes also benefit from this express easement?

Like we discussed above, the reservation to CDC was a personal right (really a corporate asset) which they used as a mechanism to assign rights to the second home (and in the case of the triplex, the 2nd and 3rd units). It was never intended as a long term reservation and only assigned to others via deed.

The Vice Chancellor continues in #9:

Yes! And it is very reasonable. The rights did remain with Concord or it's corporate successor (W. Percival Johnson & Son, Inc. that took over CDC in 1955). They were assets of the corporation - actually very valuable assets if you figure that if they lost the rights for the 1699/1697 Concord Pike driveway before they sold the second house those new owners couldn't use the full driveway.

But just because you buy a property from a corporation, doesn't mean you get their assets. The money in their bank account, their desks & chairs and typewriters & staplers don't automatically become yours. Any right to use the common areas on the triplex would need to be assigned in writing to the new owners of 1707.

And it was not assigned in the 1980 deed. Note below that this deed was signed by Joseph P. Johnson who, along with his father W. Percival, built all of Deerhurst including the 1962 building at 1707. If he wanted to, he could have assigned the Triplex common area rights to the new owners. But he did not.

It is not unreasonable to assume CDC "jeopardized its abilitity to obtain full value in a future sale of lot 1707". In 1946 Percival and Joe Johnson were worried about selling the rest of the homes in Deerhurst and selling the commercial Triplex units. For post-WWII1946 they had built three grand commercial buildings - 1000 sq ft stores on the first floor, nice two bedroom apartments on the second floor, full basements with rear entrances, loading space out back and two parking spaces each out front. They sold these properties for good money to business owners.

The 1707 parcel was a little scrap of land with a small wooden shed that they used for an office. Here is an April 1950 aerial photograph:

And a 1959 photo:

You'll note that it was at the rear of the property, against the 5' pedestrian walkway that connected York Rd to Concord Pike. Joe Johnson built the existing 731 sq ft 1707 building in 1962 (his father Percival died that year). Both men lived in Deerhurst on Pierce Rd and had a short walk to their office.

If CDC truly wanted to make the1707 parcel more valuable, they would have eked out a 4th unit at the Triplex (making it the Quadplex?) and torn down their "construction trailer". Or they would have used very clear language in both the Triplex deeds and the 1707 deed to establish an easement for 1707 on the adjoining property. Much like they did in April 1946 (six months prior to the Triplex) when they gave "a driveway easement for the use and benefit of the owners and occupiers of Lot No 72" on the driveway that is fully located on lot 51. Lot 51 is 8 York Rd and lot 72 is 1 Hurst Rd (click to view the deeds):

A Fence Doesn't Increase Security - From #14 of the Post-Trial Order:

In his order, the Vice Chancellor says our fence "does not add any incremental protection":

Really?? This is what it looked like previously - anyone could easly jump over the 4' chain link fence that separated the residential yard & 1707 and come right into the rear Triplex lot:

The new fence is not perfect - yeah you can shimmy in between the fence and the 1707 building - but it's hard to see that gap from a distance and/or at night. The visual deterrent of the fence help slows down the shenanigans:

Bad Faith? - From #16 of the Post-Trial Order:

In his order, the Vice Chancellor says we "were advised by New Castle County and by plaintiffs' counsel that their claimed rights were contested." This statement is false.

We were never advised by New Castle County regarding 1707 having the rights to use the Triplex common areas. Prior to erecting the fence we asked permission from Dante Tiberi at NCC Dept. of Land Use and were told it was fine - no permit required for the fence. No one from the County ever told us anything about a possible easement.

We first heard from the 1707 property owners in a February 2012 letter from their attorney (five months after we installed the fence). In her letter, the attorney says "it is their intention to detail no more than one car per day" and "they intend to use only those parking spaces that are in front of their building":

Two months later (in April 2012) they sued us for lost business revenue, stating they could do six cars a day and claiming they lost close to $200,000. There's a big difference between "no more than one car" and "six cars" per day. They also sued us for the rights to park in our Triplex parking spaces.

When we deposed the 1707 property owners in August 2012, they admitted that they never knew they might have an easement until Feb 2012 (well after we installed the fencing). That's when Jim Smith (Asst Manager in the County's Land Use Department) sent them the Triplex deeds and his analysis. Here is the testimony of Adria Charles (of 1707 Concord Pike) at our trial in Oct 2012:

Adria Charles Testimony (10/4/2012 - page 204) - Cross

Q. Now, when you bought in 2000, you had no idea that there might be deeds in the triplex property's chain of title that might provide certain rights to use the parking and driveway areas on those adjacent properties, did you?

A. I'm sorry. Can you repeat the question?

Q. When you bought in 2000, you didn't know that there were deeds in the 1701 through 1705 chain of title that might give rights to 1707 to use driveway and parking --

A. That's correct. I did not know about those deeds.

Q. You didn't find out about that, in fact, until Mr. Smith from New Castle County had indicated that he had
reviewed those deeds some time in late 2011?

A. That's correct.

Q. After that you asked Mr. Smith to provide you with copies of the deeds that he had reviewed; correct?

A. That's correct.

Q. And in January or February of 2012, in fact, Mr. Smith provided those to you?

A. That's correct.

Q. And that's the first time you had ever seen those deeds; correct?

A. Correct.

When we installed the fencing we were under the good faith belief (and still believe) that 1707 has no rights to use the Triplex common areas.

First, according to the Triplex deeds, the common areas on the Triplex do not include any portion of the 1707 parcel:

Second, the 1980 deed and all subsequent deeds for 1707 Concord Pike do not include a description of the Triplex common areas or an assignment clause giving 1707 the rights to the Triplex common areas. This is another reason why we submitted all of the residential deeds for the homes in Deerhurst that were built by Concord Development Company.

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.

We know Chancery Court is a busy place and the Vice Chancellor is handling multiple cases. It's possible things just got mixed up and/or he missed some of our testimony.

10/5/2012 Transcript - Page 378

THE COURT: In fact, let's actually take our break there. We'll come back at 11:00. We'll stand in recess until then.

(A short recess was taken from 10:45 a.m. until 11:06 a.m.)

THE COURT: Welcome back, everyone. I apologize for making you wait an extra five minutes.
I have an expedited decision that I have to get out today. So I am juggling that along with this, and I was talking to one of my clerks. So please be seated and let's resume.

The Vice Chancellor also compared us to a 1994 H&H Brand Farms case (click to read the opinion) where the defendant was ordered to pay fees and costs because he plowed under his neighbor's farm to build a wider road. In that case there was a long, well documented dispute over the easement and the defendant was told many times he did not have the rights to widen the road. That's bad faith and when you look at the details, H&H Brand Farms is nothing like our case. Like we said above, we were never advised by the County and we first heard from the plaintiffs five months after the fencing was installed.

Click to read the full 10/24/2012 Post-Trial Order from Chancery Court

Most of the above is in this video:

Read more about Phase Two of our Chancery Court Case: The Bolstering of the Bad Faith - VC Laster tries to strengthen his argument knowing that we are going to appeal again...