Henlopen Acres variance denial appealed

December 4, 2023 2

A lawsuit has been filed against the Henlopen Acres Board of Adjustment by the property owners of 23 Tidewaters that argues the board erred when it agreed with the town’s interpretation of town code regarding front-yard setback and when it denied a number of other variance requests during a hearing in June.

According to the board’s official written decision, property owners Stephen and Susie Canton have owned the property since 1999 and would like to expand and modernize with a new dwelling. The general plan would be to utilize the existing footprint of the building, but also add about 450 square feet, a new pool, patio and pool house.

To accomplish this goal, the Cantons appealed the town building official’s interpretation and application of a section of code related to building setbacks. Additionally, requests were made to increase the maximum allowable building area by 2.7%, increase the maximum allowable accessory coverage by 1.3%, decrease the maximum required open space area of a lot by 4% and allow 13 feet of relief for the rear-yard setback of at least 20 feet exclusive of the width of an easement of a bridle path. The board voted unanimously against all requested actions.

The board determined the Cantons had not met the exceptional practical difficulty test, and that in many instances, the requested variances were a result of situations that have been, or will be, self-created.

“In essence,” reads the decision, “the improvements could be minimized, the property could be developed without variances requested and the requests did not meet the standard for exceptional practical difficulty.”

The notice of appeal was filed Sept. 7 in Sussex County Superior Court by attorney Thomas Mammarella. When contacted for comment, Mammarella confirmed the appeal, but had no further comment.

Attorney Rick Berl, who is representing the Henlopen Acres Board of Adjustment, said the briefing schedule has been stayed because the Cantons’ lawyer believes they own additional land to the rear. If so, said Berl, a number of the variances would likely be affected. The Cantons would be filing a petition in Chancery Court to resolve that issue, but as of Nov. 29, Berl said he hadn’t seen it.