6/13/2014 Update

The judge who heard our case owns a house 661 feet from our store!

Any reasonable person would question why a judge would hear a case where the disputed property is less than 1,000 feet from his.   Especially a neighbor dispute that was dubbed a “Parking Feud” by the local media before the case was even filed (News Journal 12/23/2011, Page A1).  

It is quite possible that VC Laster did a factual investigation of the area on his own and/or was exposed to secondhand reports (media, tenants, neighbors, family members, friends) about the situation, rather than relying on the evidence presented at trial.

VC Laster should have recused himself.    Or at least disclosed the potential conflict as per Rule 2.11(C) of the Delaware Judges’ Code of Conduct.   We would have not agreed to allow VC Laster to participate if we knew he had an economic interest in such close proximity to our properties.

It is reasonable to assume that his financial interest in 101 Murphy Road may have played a part in his decision making process.

Read the full complaint that was filed with the Court on the Judiciary on 5/13/2014.

Read the News Journal article from 6/13/2014.

6/6/2014 Update

Our Reply Brief was filed in the Superior Court. This is the appeal of the 7/23/2013 decision from the New Castle County License and Inspection Review Board (LIRB).

4/22/2014 Update

We filed our opening brief in the Superior Court yesterday. This is the appeal of the 7/23/2013 decision from the New Castle County License and Inspection Review Board (LIRB).

4/2/2014 Update

Our motion for reargument was denied by the Delaware Supreme Court.

The Delaware Supreme Court penalized us $176,670.47 for expressing our 1st Amendment Rights!

A Delaware woman is held personally responsible for $176,670.47 because she complained to her government.

Three members of a Delaware Limited Liability Company (LLC) are held personally responsible for $176,670.47 when Delaware Law (6 Del. C. § 18-303) states no member of an LLC may be found personally liable in contract, tort, or otherwise for acts taken within the scope of the LLC.

3/13/2014 Update

We filed our Motion for Reargument today in the Delaware Supreme Court. We hope the Justices will consider our arguments that they did not decide in their 2/27/14 Order.

1. The Order Did Not Decide The Issue Of Whether Mary Lou Black Could Be Found Personally Liable.

2. The Order Did Not Decide Whether The Three (3) Other Individual Appellants Could Be Held Personally Liable.

3. The Order Did Not Decide The Issue Of Whether The Driveway May Be Used For Parking Purposes.

4. The Order Adopted A New Basis For Concluding That Counterclaims Were Decided, Which Appellants Can Rebut.

5. The Order Adopted A New Rationale For Finding An Easement Appurtenant Existed, Which Appellants Can Rebut.

6. The Order Adopted A New Rationale For Finding Bad Faith Existed, Which The Appellants Can Rebut.

7. The Order Failed To Decide Numerous Discrete Legal Challenges To The Extent And Amount Of Attorneys Fees And Litigation Costs Awarded.

Please see the Motion for Reargument (PDF file) for details on the above points.

So how often does a trial court judge get a second chance to rewrite their opinion before getting appealed again?

Not very often. It seems that Vice Chancellor Laster took advantage of the opportunity. Read more about the Bolstering of the Bad Faith...

How does this affect you?

Our case sets a dangerous precedent. Smart plaintiff attorneys will have a payday.

If you call 395-5555 to complain to the County about your neighbor’s property, then your neighbor can sue you. If the judge thinks you intimidated your neighbor you will have to pay their attorney fees.

If your neighborhood has deed restrictions and someone from your civic association sends a violation letter or makes a phone call that is misconstrued as being "overbearing" or "harassing" and the case ends up in Chancery Court, your association will have to pay the violator's attorney fees.

Deaf, Dumb, or Blind? Or all of the above?

The Delaware Supreme Court affirms the misinterpretation of our deeds and approves the Chancery Court's economic discrimination!

2/27/2014 - After 14+ months of trying to appeal the Chancery Court decision, the Delaware Supreme Court finally gave us an answer. You can read the full decision here, but here are two excerpts that are noteworthy and disappointing:

Page 2: A two-story triplex building spans lots 1701, 1703, and 1705. One third of the triplex stands on each lot. In front of the triplex is a seventy-two foot wide, twenty-seven foot deep paved area containing seven parking spots (“the Front Parking Area”). In back of the triplex is an equally wide and deep paved area (“the Back Parking Area”), which is accessed by a nine foot wide driveway north of the triplex (“the Common Driveway”) and located on lot 1705. The Blacks are the current owners of those three lots.

The metes and bounds in our 1946 Deeds define two common areas - a "Common Parking and Driveway Area" and a "Common Driveway". This was confirmed by the expert witness from PELSA surveyors hired by the 1707 Concord Pike owners, yet Vice Chancellor Laster decided to create three areas that differ from what is defined in our deeds (see comparison below).

It is astonishing that the Supreme Court would not go back and look at the Deeds (or the PELSA survey) and correct the Chancery Court's misinterpretation of our common areas. And saying we own all three lots (1701, 1703, and 1705), just proves they weren't paying attention. We only own 1703!

Page 8: The Court of Chancery also took into account the Blacks’ conduct as a whole, which the Court described as a “campaign to use their superior financial and technological resources to bully, intimidate, and wear down [the Staffieris] without regard to [the Staffieris’] legal rights.”

Superior financial resources??? We were shocked when Vice Chancellor Laster wrote that in July 2013. We are flabbergasted that the Delaware Supreme Court would repeat it.

At no point were any financial statements or testimony offered during this litigation. Nobody knows how much money either party had. Yet VC Laster jumped to the conclusion that we must be rich. It's like that Chevy Tahoe commercial where the babysitter jacks up the price from $40 to $60 because she thinks the mother is driving a nice car. That's economic discrimination.

We went to our county government for help when our neighbor began construction without a permit. We also asked for their permission to install the fencing in September 2011, which we got. Nobody jumped up and down and told us there might be an easement for 1707 to use our parking lot. The easement was never considered until a county employee (not a Delaware attorney) told our neighbors (and not us) that there might be an easement in Jan 2012 based on his "deed research". And if the County really thought there was an easement for parking next door, why did they issue the first Change of Use permit with the necessary 4th public parking space inside the 1707 building?

So the lesson of our story is: Don't go to your government for help.

It's a sad day for Delaware.

You can read our Opening Brief and Reply Brief. It appears the Delaware Supreme Court did not.

The Delaware Chancery Court really did change our 1946 deeds!

66 years later the two common areas that are very well defined in the metes and bounds of our 1946 deeds have been changed into three common areas!

Since 1946 our deeds have said you can park in the front area (that has 7 striped parking spaces) and you were allowed to drive to the rear to access the back loading area. When these buildings were built in 1946 they were a grocery store, pharmacy/soda counter, and liquor store and the Driveway was designed to allow deliveries to the rear. There are basement, 1st floor and 2nd floor entrances in the rear. There have never been parking spaces back there because the entire area is needed for turning around. Parking cars in the Common Driveway blocks access to the rear of each unit.

Now, according to the Chancery Court, parking is allowed anywhere (including the Driveway) but it would be "most appropriate" to park in the front or back.

1946 Deeds Two Common Areas	VC Laster’s 10/24/2012 Post-Trial Order & 7/24/2013 Comments - Three Common Areas
Area #1 “for parking and driveway purposes” Area #2 “for driveway purposes” *1946 Deed language and common areas confirmed by expert witness from PELSA surveyors hired by 1707 Concord Pike owners. View PELSA report View 1946 Deed for 1705 Concord Pike	10/24/2012: Consequently, plaintiffs, in their capacity as the current owners of 1707 Concord Pike, hold the easement rights set forth in the 1946 Deeds. In front of the Triplex is a seventy-two foot wide, twenty-seven foot deep paved area containing seven parking spots (the "Front Parking Area"). Behind the Triplex is an equally wide and deep paved area (the "Back Parking Area"). The Back Parking Area is reached by a nine-foot wide driveway north of the Triplex and located on lot 1705 (the "Common Driveway"). 7/24/2013: The plaintiffs are certainly entitled to use the Common Driveway and the Front and Back Parking Areas. This includes parking in them, although such a use would be most appropriate for the Front and Back Parking Areas. What the plaintiffs cannot to is prevent other property owners from using the Common Driveway, just as the defendants could not prevent the plaintiffs' use.

Can you believe New Castle County approved this?

Property in question is highlighted in yellow. The parcel is roughly 2,178 square feet in area. The building is 731 sq ft and the front parking area is 604 sq ft. A "Light Auto Service" (auto detailing) use requires 4 parking spaces which do not exist.

New Castle County told us on 12/1/2011 that the building couldn't be used "due to the lack of 4 striped and functional parking spaces necessary for final approval." (see Assistant Land Use Manager Jim Smith's email here).

But then magically a Change of Use was granted to 1707 Concord Pike in July of 2012 - almost 8 months after Jim Smith said it needed 4 striped and functional parking spaces necessary for final approval. Nothing had changed at that point on the 1707 lot.

In August of 2012 we appealed the issuance of the Change of Use Permit to the County's License and Inspection Review Board (LIRB). After months of preliminary jurisdictional hearings followed by a vacancy on the board, we finally had a hearing on April 16, 2013 where the board unanimously voted to revoke the Change of Use Permit.

A week after the LIRB issued their written decision that revoked the first permit, the Land Use Department approved a second change of use permit on 5/20/2013. How did the County issue a new permit when there are outstanding code violations at 1707 Concord Pike?

The County has also given away parking behind our buildings where no parking is allowed. This has become a New Castle County Sanctioned Land Grab.

We filed another appeal to the License and Inspection Review Board (LIRB) on 5/24/2013. We also requested that David Culver, the former General Manager of the County Land Use Department (he was later fired), stay the effectiveness of the new permit until the LIRB heard our appeal and issues a final decision. We never heard back from him.

On July 8th we had the LIRB hearing and the Board voted to reject our appeal. They don't seem to care that there aren't the 15+ required parking spaces on the 1701-1707 properties. We have since appealed that decision to the Superior Court.

1/14/14 Update

Our Reply Brief for the Supreme Court appeal.

10/25/13 Update

The Opening Brief for our new Supreme Court appeal of the Chancery Court decision.

10/25/13 Update

New Castle County Code Official Notice of Rule To Show Cause Decision - 1707 Concord Pike

No Car Washing Allowed.

Mr. Smith indicated that New Castle County Code Enforcement has had an open case on this property regarding discharging of soapy water for several months. Mr. Smith continued to explain that the New castle County Code
Chapter 12, Section 12.08.001, B, 1 states that, "it shall be a violation of this chapter to discharge, or cause to allow to be discharged, sewage, industrial wastes, or other wastes into the storm sewer system, or any component thereof, or onto driveways, sidewalks, parking lots, or other areas draining to the storm sewer system." Mr. Smith referred to a May 29, 2013 letter from Ms. Tracy Surles from New castle County Special Services to the Respondents, informing them that several complaints had been received by New castle County and the letter also reminded them to comply with Section 12.08.001(6)(1) regarding discharging of materlal Into the storm sewer system.

There were three specific notices to the Respondent regarding the prohibition of discharging soapy water from the operations at the property: (1) a September 15, 2011 Waiver for the Respondent indicated no soap to be used in the operations; (2) a May 29, 2013 letter from Ms. Tracy Surles from New Castle County Special Services to the Respondent informing them not to discharge Into the sanitary sewer; and (3) a September 13, Violation Notice to the Respondent to cease all exterior washing operations until a best management practice was approved. On October 9, 2013 a Code Enforcement Officer witnessed and entered into evidence photographs which depict soapy water discharge runoff from the property into the streets to a sewer inlet.

After listening to the testimony from Mr. Smith, Officer Yasik, and Mr. Staffieri, I find the Respondent responsible
for violation #1 as depicted in the September 13, 2013 Violation Notice.

A review of the Hansen files shows the Respondent as having previous code violations and recently assessed
$300.00 from a October 1, 2013 RTSC Hearing under Case #201307544. Additionally, the Respondent was given several directives not to allow soapy water discharge off the property and these directives were not met.
Therefore, the $300.00 Rule to Show cause Hearing Fee will be assessed.

Read the full decision.

10/2/13 Update

New Castle County Code Official Notice of Rule To Show Cause Decision - 1707 Concord Pike

No banner or other free standing signs allowed. No motor vehicle sales allowed.

Officer Yasik continued to explain that he conducted a site inspection on September 14, 2013 and observed a banner advertising window tinting along with a free-standing sign. Officer Yasik continued to explain that he drafted and sent out a September 17, 2013 Violation Notice requiring the property owners to correct the two code violations (window tinting banner sign and a 2002 Lexus ES200 posted for sale) by September 29, 2013. Officer Yaslk continued to explain that a previous Violation Notice for prohibited signs (NCC COde Chapter 40, Section 40.06.040E8) was issued to the property owners on March 22, 2013 and they were required to correct the code violation by April 4, 2013. Officer Yasik explained that they moved the sign into the Delaware Department of Transportation (DELDOT) right-of-way prior to April 4, 2013 and he thought this was now a DELDOT violation. Officer Yasik continued to explain that the property owners moved the sign again from the DELDOT right-of-way back onto their property and submitted photographs of this violation dated September 30, 2013 when he re-inspected the property. Officer Yasik continued to explain that regarding the second code violation depicted in the September 17, 2013 Violation Notice regarding the sale of motor vehicles, he first issued a Violation Notice for this on May 20, 2013 and required the violation to be corrected by June 2, 2013. Officer Yasik indicated that he observed a vehicle for sale on September 14, 2013.

The banner type and moveable signs as depicted in the September 30, 2013 photos submitted by Officer Yasik appear to have no sign permits on file which is a code violation. Therefore, the Respondents are responsible for this code violation.

Regarding Violation #2 in the September 17, 2013 Violation Notice, New castle County Code Chapter 40, Section 40.03.440, A reads, "The display of a motor vehicle for sale is prohibited by this Article at any location except at a private residence where no more than one (1) motor vehicle, owned by a resident of such private residence, may be displayed for sale at one time, or In zoning districts propertv zoned for motor vehiclees so long as the property owner or tenant is properly licensed for such sales. However, in all cases, the display of such motor vehicles for sale in any public right-of-way is prohibited.'' Auto vehicles sales Is not listed as a permitted use as depicted in table 40.04.llA for Commercial Neighborhood (CN) zoned properties. However, the photographic evidence submitted by the Code Officer
did not show any vehicle for sale during the September 30, 2013 site inspection. Therefore, evidence does
not support that the Respondents are responsible for violation #2 as depicted in the September 17, 2013.
However, the Respondents are now noticed that auto sales are not permitted in CN Zoning Districts.

Read the full decision.

7/25/13 Update

Here is the written decision from the New Castle County License and Inspection Review Board (LIRB).

7/19/13 Update

Water Pollution. Videos showing the soap wash water draining untreated into the storm sewer:

Washing vehicle behind the Triplex buildings and polluting our lands:

More washing:

Using a shopvac to try to contain the car wash discharge as the acting General Manager of the County Land Use Dept watches:

7/10/13 Update

This is the video we wanted to show at Monday's hearing but couldn't due to time constraints (no sound on this video):

This video shows the two common areas on the Triplex property as defined by the 1946 Deeds and confirmed in the PELSA expert witness report (paid for by the 1707 property owners).

Common Area #1 is the "Common Parking and Driveway Area" (27 foot x 63 foot area directly in front of the Triplex building). It has the 7 striped parking spaces.

Common Area #2 is the "Common Driveway" (flag shaped area whose 'pole' is 9 feet wide and whose 'flag' is 72 feet wide, which is located on the side and rear of the Triplex building). It is asphalt up to the back of the buildings and the rest is 67 year old concrete.

Per the 1946 Deeds, the "Common Parking and Driveway Area" is "for parking and driveway purposes" and the "Common Driveway" is "for driveway purposes".

The driveway area behind the Triplex buildings is for loading/unloading. When these buildings were build in 1946 they were a grocery store, pharmacy/soda counter, and liquor store and the Driveway was designed to allow deliveries to the rear. You can see the basement, 1st floor and 2nd floor entrances in the rear. There have never been parking spaces back there because the deeds forbid it and the entire area is needed for turning around. Parking cars in the Common Driveway blocks access to the rear of each unit.

The second part of the video is our 18' van (same length as an full-size SUV) traversing the driveway to load/unload behind 1703. That part of the video is at double speed to make it less boring.

If you'd like to see what the 1946 Deeds look like, here is the 1946 Deed for 1705 Concord Pike:

7/9/13 Update

Thank you to everyone who attended yesterday's hearing. It didn't end the way we wanted (the Board voted to reject our appeal) and we didn't get much of an explanation, so we will wait to see the written decision on why they voted to affirm the change of use.

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.

So we're still waiting for an answer - Where will they park?

6/27/13 Update

The auto detailing use has degenerated into illegal auto repairs. The Shanty Town Canopy was removed this morning, but a couple hours later a brake job was performed on a BMW in the rear Triplex driveway. Note the extension cord runs to the 1707 building to provide power:

Click for larger image	Click for larger image
Click for larger image	Click for larger image

The vehicles were parked behind the 1701 and 1703 buildings in the area designated “for driveway purposes” by our deeds.  This is not a parking area nor is it a “work on your car” area.  The owners of the properties (Blackball and Gakis) did not give permission for this activity and do not want to see it again. 

Here is the video:

6/25/13 Update

1707 Concord Pike failed it's eight code enforcement inspection yesterday:

6/22/13 Update

A Shanty Town canopy fashioned from a sailbot sail was erected on Friday June 21st. It is attached to the 1705 building, the telephone pole at the back corner, and a pole on the 1703 property. This structure limits access to the rear of our property (can't drive a van or truck under it) and trespasses on our pole. Here is the letter our attorney wrote regarding the sail.

Click for larger image

Click for larger image

6/17/2013 Update

"We should be cooperating, not fighting” says the lady who sued us and has refused to talk settlement multiple times.

Read the story in today's News Journal.

&

Gary Staffieri trespasses on 1709 Concord Pike lot

This is the owner of 1707 Concord Pike, riding a bicycle around in circles on our 1709 parking lot just after 9pm on June 17, 2013. He has no reason to be on our property and tries to intimidate/harass us by aggressively blocking our front door. Twice. He didn't say a word when asked what he was doing and to leave the property - just stared at us:

6/11/2013 Update

Seven failed code enforcement inspections:

6/4/2013 Update

Now the property owner is washing car mats behind the building and against the residential neighbor's fence.

Watch the video below. What is the yellow chemical cleaner in the bottle? Note he washes all of the soapy discharge back under the fence. Then he climbs the ladder at 3:30 to dump the bottle into the neighbor's yard. Hope the neighbor isn't growing vegetables on the other side of the fence. Read more about how bad car wash discharge is on the EPA's website.

5/24/2013 Update

We have filed an appeal to the License and Inspection Review Board (LIRB) for the second erroneously issued change of use permit for 1707 Concord Pike. We have also requested that David Culver, General Manager of the Land Use Department, stay the effectiveness of this new permit until the LIRB hears our appeal and issues a final decision.

5/21/2013 Update

New Castle County Land Use Department approves second Change of Use Permit!

Within a week of the LIRB issuing their written decision to revoke the auto detailing use and a Stop Work order being placed on the 1707 property, a new Change of Use Permit was issued on 5/17/13 and approved yesterday (5/20/13).

We will be filing a new appeal to the LIRB very soon. Stay tuned for a hearing date. We hope you can all come back again - here are some highlights from the public comments during the April 16th hearing:

There is no parking at 1707 Concord Pike.  This is evident by the building inspector parking his truck at 1709 and walking next door yesterday to do his final inspection of 1707:

Chancery Court Update

We filed our opposition to the attorney fees & costs yesterday in the Court of Chancery.

5/11/2013 Update

The License and Inspection Review Board (LIRB) has published their written decision and
a Stop Work has been placed on the 1707 Concord Pike Change of Use Permit. The auto detailing use is now prohibited.

This week we will filing our opposition to the Chancery Court's award of fees and costs. Our neighbors are now requesting $184,320.47 which includes additional fees for their out-of-state attorney & high school classmate to write their Delaware Supreme Court answering brief when they claimed to be representing themselves (pro se) in the Appeal.

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

In order to justify the discretionary award of Fees and Costs, 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. 

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.

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.

Read more about Bad Faith in the Facts about our Chancery Court Case.

4/17/2013 Update

"The New Castle County License and Inspection Review Board voted to revoke the certificate of occupancy for a Concord Pike auto detailing shop Tuesday, saying the county wrongly allowed the business to open last July."

Read the rest of the News Journal article: Concord Pike auto detailing shop held in violation

4/16/2013 Update

Thank you to everyone who attended today's hearing. The Board voted 3-0 to revoke the change of use permit.

4/1/2013 Update

Yesterday the News Journal published an article entitled "Influence, access taint land-use decisions" that detailed some of the corruption within County and State government during the approval process for the Barley Mill Plaza project.

Notable quotes from the article:

“The land-use system in New Castle County, including DelDOT’s role in it, is horribly broken,” said New Castle County Councilman Bob Weiner. “Access and influence is the key – and in the case of Barley Mill Plaza, Stoltz had it.”

“Watch us,” said Frederick Schranck, attorney for Delaware’s Department of Transportation. “We have enough teeth to give a very strong opinion to the county who makes the land use opinion about whether this goes forward.”

“This is a classic example of the Delaware way, or the hijacking of the Delaware way,” said former GOP Sen. Charles Copeland, who unsuccessfully ran for lieutenant governor in 2008. “Roger Roy was the consummate insider’s insider in the Legislature for decades. Then he represents Stoltz,” Copeland said. “To have a lobbyist be that influential, to basically tell DelDOT what they are going to do on behalf of his client, that’s no way to run a government.”

“I think overall it was a flawed process,” County Executive Tom Gordon said, adding that he believes a more rigorous and comprehensive traffic impact study should have been required. “You can now see by the evidence that it was not a fair process for the public.”

3/21/2013 Update

SIGNS STILL IN STATE RIGHT OF WAY

OUTDOOR WASHING OF VEHICLE

This photo was taken around 11:30pm on 3/21/13. Freshly washed vehicle parked in and blocking the common driveway. Outdoor washing of vehicles is prohibited under Section 12.08.001 of the County UDC - "Discharge, or cause to allow to be discharged, sewage, industrial wastes, or other wastes into the storm sewer system, or any component thereof, or onto driveways, sidewalks, parking lots, or other areas draining to the storm sewer system;" Read more about the law here.

3/14/2013 Update

SAFETY ALERT

Our self-serving neighbor is now endangering everyone who travels the Concord Pike. This is his new 24” x 18” sign frame he installed today - 5 feet from the road and in the middle of the sidewalk. It's clearly in the State right-of-way (his property starts 20 feet from the road).

It makes a nice hazard for pedestrians or cyclists, especially at night. Hit this with your bike and you're going over the handlebars. Or be forced closer to oncoming traffic while walking the dog or pushing the baby stroller.

3/11/2013 Update

No Parking

Our neighbors filed their Answering Brief to the DE Supreme Court on Friday.

In it, they gripe that we "have gone so far as to install no parking signs on the common easement areas".

Guess what? If you read the deeds, there is no parking permitted behind the Triplex.

The 1946 clearly differentiate between "parking and driveway purposes" and "driveway purposes". You can see the overlay on the aerial photo.

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. Even their surveyor, Mr. Paraskewich, testified to this at trial:

Outdoor Washing of Vehicle on Commercial Property

New Castle County Code prohibits the outdoor washing of vehicles on commercial properties (read about it here).

It's okay to wash your car in your driveway at your residence but on a commercial property the washing must be done inside. Car washes and detailing shops have a wash bay where there are floor drains to keep the water from running into the storm sewers.

We thought our neighbors had figured this out but today they had their employee washing a car outside in front of the building.

This was discussed during the depositions and trial with his auto-detailing expert, Mr. Nick Lombardi.    Mr. Lombardi indicated that they would be taking the cars to a carwash prior to detailing during his testimony (see below).

3/9/2013 Update

Our neighbor (the one that sued us) has had a pile of leaves at the back of his property for months. Today, instead of doing the right thing and putting them in bags and getting rid of them, he spread them out along our back property line and watered them down. What's the point? He spent 20 minutes doing this:

Here's the full video:

3/1/2013 Update

We filed our response to the motion to dismiss today.

We will wait to see how the Supreme Court rules. Hopefully we can continue our appeal as scheduled.

Here is this week's Fun Fact:

2/21/2013 Update

On Monday, Joe Wolcott and Connolly Gallagher LLP, Delaware counsel for our neighbors, entered a motion to withdraw from the case, citing the clients' inability to come current with their legal bills. That's the polite way of saying they may still owe him about $30,000 (from what we can tell from their 12/21/12 fee request). He also filed a Motion to Dismiss the Appeal to which we will respond next week.

The Delaware Supreme Court granted the motion for Wolcott to withdraw on Tuesday and said their Answering Brief is now due on March 11th.

We want to thank Joe Wolcott for always being professional and courteous as well as for being receptive to our 3 settlement offers during the course of the litigation. Our offers were ultimately ignored or rejected by his clients and their high school friend (Ms. Cherry) who had made the decision early on to try to take advantage of the situation.

This is evident by looking at Ms. Cherry's invoices in the fee request. She had initially sent our attorney a letter on 2/6/2012 and, instead of waiting for a response (which was sent 2/13/2012), she proceeded to draft the complaint and rack up $4,175 in fees before she could have ever received our response. So much for waiting to see if we could work things out.

By the time they filed the Complaint in April 2012, our neighbors had incurred over $26,000 in legal fees. Why?? This was a simple easement dispute that could have been settled for much less but they decided to go for the jugular.

Ethics Reform in the Department of Land Abuse Today the News Journal published an article (Gordon Pushes Ethics Reform) about County Exec Tom Gordon proposing changes to how the county Land Use Department functions. Top officials would have to disclose more information about their personal business interests, would not be allowed to use their personal cell phones for county business, and FOIA responses would be posted to the county website. We are encouraged by this news and want to thank Mr. Gordon - hopefully these reforms will be implemented and enforced. The citizens of New Castle County need to know what is happening inside the Department and decisions should not be made behind closed doors. In our case, county employees gave our neighbors free legal advice, provided them with deed research, and encouraged them to sue us over a potential easement claim. Our neighbors and their high school friend took it one step further by including a claim for $200,000+ in business damages, their attorneys fees (which add up to a ridiculous amount - $166,483.94) and other various frivolous claims. Ms. Cherry's invoices also indicate that she had plenty of contact with the Land Use Department in the weeks prior to the approval of the Change of Use Permit on 7/27/12. There were two meetings at the Land Use office and several emails and phone calls (including two calls on July 27th). The Change of Use permit had been put on hold on 12/1/2011 "due to the absence of 4 striped and functional parking spaces". Eight months later with no changes made to the property, the permit was magically approved without the 4 parking spaces. And why would Ms. Cherry meet with Land Use Asst. Manager James Smith on September 5th? Their permit was already approved and they could have been open for business. September 5th happens to be the afternoon we had our first LIRB hearing where the Land Use Attorney made an aggressive argument that the Board did not have jurisdiction and delayed our appeal (which is still on hold pending new board members).

Read the article on the News Journal site

2/18/2013 Update

Today Vice Chancellor Laster issued an Order that Vacates The Final Order and Judgment.

This makes his previous "Surprise Order" legally void.

In his order, VC Laster states, "This Court does not have the authority to determine whether an appeal was validly taken to the Delaware Supreme Court. The Delaware Supreme Court is the senior tribunal. Even under Supreme Court Rule 42, this Court only makes a recommendation to the Delaware Supreme Court. It is for the Delaware Supreme Court to determine the scope of its jurisdiction and decide whether to accept an appeal."

So we will wait for the Delaware Supreme Court to rule on the jurisdictional issues and who has the authority to determine if $166,483.94 in fees and costs for an easement dispute is reasonable.

Hopefully we can continue with our original appeal - the attorneys' fees should not have been awarded in the first place and the facts and Plain English meaning of the deeds were overlooked in the Chancery Court decision. Read more: The Facts about our Chancery Court Case.

2/15/2013 Update

Yesterday the owners of 1707 filed their response to our Motion to Reargue and Vacate the "Surprise Order".

You can read their Response here. It details how the flu and a busy schedule kept them from submitting their fee request in a timely fashion, but doesn't explain why it took the high school friend 68+ hours to prep for trial.

We filed our Reply to their Response this afternoon. We wonder how the claimed fees went from $85,000 to $166,483.94 in a couple months.

This case could have been less expensive for everyone if the Plaintiffs had accepted our offer to bifurcate the lawsuit. Early on we had suggested arguing the easement first and then, if necessary, the damages and other frivolous claims (trespass, tortuous interference, etc). Instead they wasted countless hours and tens of thousands of dollars in fees and expenses foolishly chasing a clearly unawardable damages claim for business losses.

The Plaintiffs' attempt to justify a nearly two month delay in submitting an attorneys fees application is implausible and unbelievable. The bills were done. All counsel had to do was copy them, draft a short affidavit, and file them with a brief cover letter to the Court. It is believed that the Plaintiffs intentionally delayed filing their application in the hopes that they could create a procedural quagmire that might end up barring us from prosecuting an appeal.

Hopefully someone will straighten out this mess soon.

2/8/2013 Update

It's been a busy and interesting week. Here is the latest:

Surprise Order from Chancery Court -
VC Laster sticks us with a $166,483.94 judgment

In an unexpected and unprecedented move last Thursday (1/31/12), Vice Chancellor Laster approved the full amount of our neighbors' attorney fee request and entered a $166,483.94 judgment against us and the Millers.

These fees are not reasonable and we argue that Chancery Court does not have jurisdiction at this point since the docket had been transferred to the Delaware Supreme Court prior to the fee request being filed on 12/21/12.

Yesterday we filed a Motion to Reargue and Vacate the "Surprise Order" - in which we make our arguments as to why Chancery has no jurisdiction. We also state our objections to the $166,483.94 fee request.

The amount is absolutely ridiculous - more than 3 times what we spent defending ourselves (and we paid for depositions of their witnesses) and more than what the 1707 building is worth (they paid $155,000 for it in 2000). They chose to have multiple attorneys because their main attorney is a personal injury attorney from Pennsylvania who happens to be a High School Classmate. So they had to hire a Delaware attorney who was qualified to argue in Chancery Court - there was no need to have two attorneys for an easement dispute.

The out-of-state PA attorney / high school classmate alone billed for $113,999 for 380 hours of work! She claims she spent 62+ hours writing pretrial briefs and 68+ hours on trial preparation (for a 2 day, 12 hour trial). We have no idea if any of these fees were ever paid - we assume there is a contingency arrangement. And we find it strange that it took them almost 2 months to submit the fee request. If you had actually spent that much on your attorney, wouldn't you be able to itemize the bill in a few hours and get it to the court within a week?

Delaware Supreme Court Denies Motion to Affirm

In an attempt to dismiss our appeal, our neighbors filed a Motion to Affirm with the DE Supreme Court on 1/31/13.

The Court denied this motion on Wednesday so our briefing schedule resumes.

New Castle County is Corrupt!

On Monday it was national news that there is "evidence of possible wrongdoing by county officials under the previous administration" during the Barley Mill Plaza rezoning.

You can read the story on the Washington Post website.

We are not surprised by this news - many of the County employees who worked on that rezoning were also involved with our neighbors' erroneously issued Change of Use Permit:

+ They magically approved the change of use permit behind closed doors
even though they had halted it 8 months prior.

+ They refused to issue a Stay on the permit when we appealed it

+ They issued a bogus code violation the day before our Chancery Trial
just so they could testify about it in Court.

We are still waiting for that LIRB hearing. It's officially been six months since we filed our appeal. And since the County did not issue a Stay, our auto detailing neighbor is now open for business and we had the pleasure yesterday of his supply truck jamming up our parking lot and blocking the common driveway. Maybe this is why 4 parking spaces are required for this use? Employees, customers, and vendors all need places to park. This vehicle intensive use does not belong at this property.

1/25/13 Update

Snow It's snowing in Northern Delaware and our yellow Where Will They Park? signs really stand out! Onward and Upward! We filed our Opening Brief with the Delaware Supreme Court this week. Still Waiting... We are still waiting to hear from New Castle County regarding our LIRB hearing and our request for a Stay. It's almost been six months since we appealed the Change of Use permit and it's almost been two months since we made our 2nd request for a Stay. See the Rules of Administrative Appeal below.

1/2/13 Update

We've added a "The Facts about our Chancery Court Case" page where we provide more details about some of the topics discussed in the latest Where Will They Park? video.

12/28/12 Update

We went to our government for help and got a $250,000 bill!

In October Vice Chancellor Laster ruled we were responsible for the 1707 property owner's fees and costs - we immediately asked for reconsideration because he had his facts mixed up. He denied that motion so we have appealed to the Delaware Supreme Court and are waiting to be heard.

Last week the owners of 1707 submitted $165,061.60 for consideration. That's more than what the 1707 property is worth and more than double our legal fees. When you add our fees and costs the bill is over $250,000!

All we did was call 395-5555 when the front wall of the 1707 building was knocked down in May 2011 without a permit. Since then New Castle County has just made the situation worse and given the 1707 owners an opportunity to file a frivolous lawsuit against us.

Here's the new video explaining "Successors and Assigns" and where the judge got it wrong:

Documents referenced in the video:
Deeds for 1699 Concord Pike and 1697 Concord Pike (share a common driveway that straddles the property line)
Deeds for 8 York Rd and 1 Hurst Rd (share a driveway on the 8 York Rd property)
1946 Deed for 1705 Concord Pike (like all three Triplex deeds describes common areas)
1980 Deed for 1707 Concord Pike (when it was first sold and rights were not assigned)
10/24/2012 Post-Trial Order from Chancery Court
1994 H&H Brand Farms Opinion (about an easement but much different than our case)
12/21/2012 Request for $165,061.60 in fees and costs from 1707 Concord Pike property owners

12/14/12 Update

Where Will They Park? on WDEL 1150am

Ray Buchta spoke to WDEL's Rick Jensen yesterday regarding our situation on the Concord Pike. Click the link below to listen to the clip:

WDEL 1150am Rick Jensen Show - 12/13/2013

12/13/12 Update

Front page News Journal article about parking in Trolley Square

Seems that we are not the only people with a parking problem!

Today's front page article - 'Parking War' set on collision course - illustrates the parking problem in Trolley Square where surrounding businesses take advantage of free parking from their neighbors without compensation.

The City of Wilmington has different rules and regulations, but in New Castle County any new use of a property must meet parking requirements that are clearly defined in the County Code.

These rules are common sense and help prevent situations like what is happening in Trolley Square or at our corner on the Concord Pike.

When someone proposes a more intensive use - like changing an office building into an automobile detailing center - New Castle County should ensure that their parcel has enough room for the required number of parking spaces. In our case, there is not enough room for the 4 required parking spaces.

The 1707 Concord Pike property owner should have been told to go to the Board of Adjustment to request a parking variance (which the neighbors could oppose at a public hearing if they didn't like it). Instead, the County Land Use Department looked the other way and magically approved the change of use behind closed doors even though they had halted it 8 months prior.

If you are new to this page, please watch the video below in the 12/10 update.

12/10/12 Update

NEW VIDEO - Where Will They Park? Introduction
Good for those of you who are new to this - explains the history of the buildings and what has happened so far with New Castle County:

The Properties:
Below is the annotated aerial photo of 1701 - 1707 Concord Pike that is used in the video.

There is a 20' State Right of Way (yellow tint) between the edge of Concord Pike and the front property lines of the properties.

The "Triplex" (1701 - 1705 attached but each unit owned by different owners) has a common area in front (orange tint) for "parking and driveway purposes" (per the deeds). There are 7 marked parking spaces shared between the 3 stores and 3 apartments on the second floor.

The second common area is the side driveway and rear area for "driveway purposes" (blue tint). No parking allowed since parked vehicles would prohibit access and turnaround space.

We have overlayed 9' x 18' (code compliant) parking spots on the 1707 survey inset. You can see there absolutely no way to park a car behind the building and that if you try to squeeze two parking spots in front of the 1707 building they don't fit. There is only one UDC compliant parking spot on the 1707 parcel. Four (4) are required for an auto detailing use.

The owners of 1707 claim they have rights to park on the Triplex parking area. That is being contested in court, but in the long run, it doesn't matter.

UDC Section 40.22.611, Subsection K states: "The parking spaces for separate buildings or uses may be combined in a single parking lot, provided that the number of parking spaces in the lot shall be equal to or greater than the sum of the parking spaces required for each building and use."

There are only 7 parking spots for the existing 3 stores and 3 apartments. There aren't enough in total for the six Triplex uses plus a new auto detailing use. The July 27, 2012 Change of Use permit should have never been issued by New Castle County.

12/4/12 Update

Official letter dated 11/30/12 from New Castle County stating the License / Inspection Review Board is defunct and we will be notified when our hearing can be scheduled.

We have also added some more Related Cases where property owners went to the Board of Adjustment when they did not have enough parking spaces for their intended use. These include the McDonald's on DuPont Highway and the Wilmington Friends School. These were public hearings and the Board considered comments from the neighbors and surrounding community before granting the parking variances.

11/30/12 Update

More craziness from the New Castle County Land Use Department!

We learned today that one of the members of the License / Inspection Review Board resigned effective Dec 1st.

Now that Board only has 2 members and below the required quorum. No hearings can be scheduled until there are at least 3 members. Hopefully the new Tom Gordon administration will quickly appoint some new members and County Council will approve them but it could be months before we have a hearing to discuss the merits of this case!

We initially requested a Stay of the Change of Use Permit on 9/6/12 (click here to read our request). This was the day after we got bamboozled by recently fired Land Use Attorney James Edwards (News Journal article) who indicated to the Board that they may not have jurisdiction. He was wrong (they voted on 11/14/12 that they did) and he wasted two months of our lives with his games to cover up the Land Use Department's error.

Land Use General Manager David Culver erroneously denied our request for a Stay (click here to read his letter) even though the Department could not demonstrate that "the granting of the stay would jeopardize the health, safety, or welfare of the public." (from County Code Section 6.11.003 Subsection F - full text below).

This permit should have never been issued - there is not enough parking. And this permit should be put on hold until we get our new hearing - there is no jeopardy to the health, safety, or welfare of the public.

In light of the new circumstances, we will be officially re-requesting a Stay next week.

The Rules of Administrative Appeal (from the New Castle County Code)

Subsection B: A public hearing must given within 45 days of the filing of the appeal. We did have an initial hearing on 9/5/12 but then had to wait two months for a follow up on 11/4/12 due to the Land Use Department playing games to try to hide their errors. Now, through no fault of our own, we might wait several more months until the Board is fully staffed.

Subsection F: "The stay will be granted unless the Code Official can demonstrate that the granting of the stay would jeopardize the health, safety, or welfare of the public." There is no reason why our request in September should have been denied.

11/14/12 Update

THANK YOU to the 35+ supporters who attended the 11/14/12 hearing. And thank you to everyone who submitted written comments and best wishes.

The board voted 3 to 0 that they do have jurisdiction to hear our appeal. We will meet with the Board again soon to discuss the merits of the case.

We will post the new meeting date and time as soon as we have it (it will not be tomorrow the 15th as originally posted).

After the vote, the County Land Use Department's attorney hinted that they may appeal tonight's decision.

So why is the Land Use Department working so hard to keep us from talking to the Board?

Because they know there are not 4 parking spaces and they are covering up an internal decision that should have been made by the Board of Adjustment.

We are hopeful the new Gordon administration will replace these folks in the Land Use Department
who do not follow the rules. We need transparency and public input on all development projects.

State Senator Greg Lavelle's letter to the Board

Stay tuned....

Change of Use was granted to 1707 Concord Pike in July of 2012. The parcel still lacks 4 UDC compliant parking spaces yet they are allowed to operate a car detailing business there.

The New Castle County Land Use Department has made every effort to stymie our rights to appeal the erroneously approved permit. We paid $500 (plus attorney fees) for a hearing before the County License/ Inspection Review Board in Sept 2012 only to be told that we need to spend more money with our attorney to write a brief on why we should be able to have that Board hear our appeal.

Our rights as citizens of the State of Delaware are being denied.	Title 9, §1315 of the Delaware Code provides the Board with jurisdiction to hear an appeal from "any person aggrieved by the issuance ... of any County license ..." You can read our entire argument here.
	We are going back to the Board for a hearing on Wednesday Nov 14th at 3:45pm to argue why the Board should hear our appeal. Please join us! If we are successful, we will have another hearing the next day (Thurs Nov 15th) at 3:45pm to argue the merits of the case - something we should have been allowed to do in September.
The hearings will be in the Dept of Land Use office in the County Building at 87 Reads Way, New Castle, DE 19720. Click here for the notice. Sign in at the front desk and ask for directions to the Land Use office.	New Castle County Government Center 87 Reads Way, New Castle, DE 19720 Click here for Google Map Directions.

These are public hearings and we welcome your attendance & support -
please come at 3:30pm so we can start on time.

Older stuff ...

Dec 2012 - Note regarding the News Journal article:
This website is about pointing out the problems with the county's handing of an inappropriate use of a older property and should not be misconstrued as an attack on any individual or business. Thank you for visiting and feel free to email with any questions.

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).

Lack of parking is our primary concern. Read more...

Illegal Pressure Washing is another concern. Read more...

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

We are not anti-business.
We are not asking New Castle County to close a longtime existing business. This business was just created and as far as we know doesn't have a business license.

The property owners brought this on themselves by not consulting with New Castle County prior to beginning construction, not paying their property taxes and not obtaining permits.

We are asking New Castle County to follow the rules and maintain a fair playing field for all businesses at this corner. There is already a severe lack of parking (see arial map) and to allow a use that will demand more parking is unfair to the surrounding property and business owners.

Denying this change of use does not create a hardship on the property owner. The building can still be used as an office as it has been for close to 50 years.

Our question has been and remains unanswered:

Where will they park?

This building was constructed in 1962 as an office. The property is about 9 feet wide at the front (see the survey). There is parking for two cars in front of the the building (one behind the other, in line with the building). The planter box on the left is on the property of 1709 and the yellow wheel stops are on the property of 1701-1705 (the three shops to the right own their parking areas and driveway in common - 1707 has no right to use them according to the deeds). A survey confirmed this on 10/28/2011.

Changing the use of the building requires the property to come into compliance with current county code (it loses its "grandfather" status). County code requires 4 parking spaces per garage bay, so this new use would require 4 parking spaces. We find it physically impossible to create 4 parking spaces that are easily accessible to the general public.

According to a sewer waiver obtained on 9/15/2011, the property owner also plans on illegally pressure washing cars in front of the building (prohibited by county code). This will occupy a parking spot that would normally be open for a customer stopping by to learn about the business. That customer will be forced to park on one of the adjoining lots. Remember most people drop off their vehicle to get detailed and do not wait for it. In most cases this means two cars per customer. The one that getting detailed and the one that is their ride home. And we assume there will be an employee who drives to work as well as other cars waiting to be serviced. Where will they park?

County codes exist because they make good common sense. A property should have enough parking to support any business located on it. Adjacent properties should not be forced to provide parking for people "just going next door". Every parking spot in our lots abused in this fashion is one less spot that can be used by our customers. If customers can't get to our business, we lose money. We also lose money when we waste time asking people to move their vehicles off our parking lot. When there is a confrontation over parking, the Delaware State Police have to respond and the taxpayers lose.