DRAFT
A New Castle City Board of Adjustment Hearing took place on
May 3, 2006 at
7 p.m. in the City of New Castle’s Town Hall.
Members Present: Mayor John F. Klingmeyer
David Athey, City Engineer
James Harker, City Solicitor
Somasunderam Padmalingam (applicant)
The meeting was called to order at 7:04 p.m. by Mayor Klingmeyer.
Roll call was taken. Mayor Klingmeyer read the Notice of Public
Hearing that states, “An application has been filed
by Somasunderam Padmalingam for property located 222 Chestnut
Street, New Castle, Delaware, Parcel Number 21-015.20-037,
seeking variances from the required minimum 25 foot rear setback
to 19.1 feet in order to permit the construction of a one-story
12 by 15 foot addition to the rear of the residence under
construction.
For the purpose of considering this application, the Board
of Adjustment will hold a public hearing on May 3, 2006 at
7 p.m. in Old Town Hall, 2nd Floor, located at 2nd and Delaware
Street, New Castle, Delaware.”
Building Inspector Jeff Bergstrom was asked if the property
had been properly posted. He responded that it had. The Mayor
informed they had affidavit of publication from the NewsJournal
of 4/18/06 and the Sundays NewsJournal.
Mr. Bergstrom then provided a background of the case. A plan
was submitted showing the rear yard setback of 25 feet that
was based on centerline data from Chestnut Street. During
the course of construction monuments were discovered that
might give a better indication of where property lines were
located. The rear addition appeared to be 19 ft. off the rear
property line and the engineer advised Dr. Padmalingam to
come to the Board of Adjustment to request a variance.
Mr. Sean Tucker, counsel for Dr. Padmalingam, approached
the Board. He introduced civil engineer Carmine Casper. Mr.
Tucker provided a summary involving the deeds on record and
monuments discovered on the site of construction. Because
of this discrepancy there is a 5 ft. delta. There was a minor
error in the first building permit that was submitted that
was approx. a 7 inch delta that we would have needed a variance
for. It was a mistake of the engineer and Dr. Padmalingam
had no knowledge of that error. Mr. Casper appeared before
the Board and acknowledged he was the civil engineer on this
project. He said he relied on the deed saying the property
line began 35 ft. from centerline of Chestnut and based our
topography on that data when doing surveys. (Mr. Tucker questioned
Mr. Casper about deeds, permit plans, centerlines and survey
points. Mr. Casper described the project indepth.)
Mr. Casper estimated the monuments may have been put in approximately
35-36 years ago. Upon learning of the difference in survey
points Mr. Casper did speak with Mr. Bergstrom. He submitted
the “as built” to Mr. Bergstrom. It was set in
historic zoning and historic zoning sets most of the setbacks
based on the site plan that was approved; the rear yard was
always 25 ft. It is not set by the historic district. Mr.
Casper was not involved in the Historic process. If you relied
on the markers the city put in the variance we would be seeking
would be from
City of New Castle Board of Adjustment Hearing
May 3, 2006
Page 2
25 ft. to 19.1 ft. Mr. Casper confirmed this. If we relied
on the original deeds that were used in the first two surveys
it would result in a 2% variance. Mr. Casper
confirmed this also. There was a survey mistake made from
the beginning because the 25 ft. historic setback had not
been discovered. Mr. Casper confirmed this.
Mr. Athey questioned the HAC determination. It appears to
him they would have set the front yard, side yard requirements.
Using a diagram Mr. Carmine showed him what was presented
to the HAC to satisfy his question. He asked if they ever
sought to find other monuments of adjoining properties when
preparing the plan. Mr. Carmine responded that they were looking
for points 35 ft. from centerline and these monuments were
5 ft. away from that. In the normal care they go a foot or
two of where it should be. Mr. Athey asked how they measured.
Mr. Carmine explained and said the distance came within a
reasonable distance.
Mr. Harker asked at what point in the process was the monument
discovered. Mr. Casper responded the foundation work was done
and they were doing the as built. All walls were up and part
of the roof was also up. Mr. Harker asked if the monuments
were buried. Mr. Casper said they were buried.
Mr. Bergstrom confirmed this is consistent with his findings.
Dr. Padmalingam appeared before the Board and answered a
number of questions about the project from his counsel, Mr.
Tucker. He first learned of a discrepancy when he contacted
Mr. Bergstrom about his driveway being larger. He applied
to HAC and it was to be heard on 3/23/06. That day he spoke
with Mr. Bergstrom who informed him of the problem with a
setback. The foundation was done, the walls were almost done
and we were waiting for the roof. He was not aware of any
monuments on the property.
Mr. Harker questioned about the size of the sunroom. Mr.
Casper said the sunroom would be approximately 7 ft. deep
with the 25 ft. setback. He asked how the rear portion (sunroom)
lines up with other houses in the back.
Dr. Padmalingam said he does not have a good observation to
answer. He said if they had known there was a problem before
the plan was approved he would have changed his plans.
Mr. Harker (to Mr. Tucker) said under the code, the Board
is not permitted to grant a variance where it is a self-imposed
hardship. He asked him to address this. Mr. Tucker said they
used quick-check factors, and relied on New Castle County’s
section of state law that mirrors the city’s and municipalities
statewide and is a standard utilized for area variances throughout
the state. He submitted Dr. Padmalingam didn’t create
the hardship. It was an oversight of the engineer
City of New Castle Board of Adjustment Hearing
May 3, 2006
Page 3
based on discrepancies in deed records and actual monuments
later discovered on the property. If you rely on the deeds
it is about a 2% variance; with the monuments it is more like
a 23% variance. Dr. Padmalingam did not create this situation.
Comments from the Floor
David Bird, East 4th Street – This is a substantial
structure. He feels most people know where their rear property
line is located. There is another structure that has been
built that appears to be a wall. He said it was built in the
last 30 days and questioned what the structure is. He stated
numerous professionals were
involved with this construction and have been involved in
other projects. They are typically bonded. He said 25 ft.
is cast in stone for rear yard and he encouraged the Board
to consider this. It may be a hardship, but the owner did
hire professionals to do the job and this could send a message
to other property owners. If someone is responsible, it needs
to be torn down.
Mr. Tucker responded by saying it was an honest mistake by
a professional. It only says that when mistakes are made there
is a relief valve known as the Board of Adjustment. As part
of the quick-check standard it speaks to whether there would
be an adverse impact to neighbors if the variance is granted
and also whether there is an adverse impact to the applicant
if it is not granted. There has been no evidence of impact
on neighboring properties. There would be a significant cost
to the applicant that is a hardship to him through no fault
of his own.
Dr. Padmalingam said the wall was part of the plan that was
submitted. It was constructed by the builder. Mr. Tucker said
the original plan showed the wall and they were not made aware
of any setback issue with the wall. The drawings were approved
and they were not aware of any error in that regard.
Mr. Bergstrom said there are no setbacks for walls.
Dorsey Fisk, 26 E. 3rd Street – She feels this wall
goes further than the end of the sunroom and doesn’t
understand its purpose.
Mr. Tucker said he would gladly speak to this afterwards.
It is an issue between the Building Department and us.
Ms. Fisk – She feels the town should be mindful of
things like this in town.
Mr. Harker said the wall is not part of the application and
is not sure it is relevant to this application. If it violates
the code it is another issue that would have to be brought
to the building code enforcement officer and if it violates
the code, perhaps we might be here another day or it may have
to come down.
City of New Castle Board of Adjustment Hearing
May 3, 2006
Page 4
Nancy Coning, 54 E. 4th Street – At the last HAC meeting
the architect said the plans submitted to HAC changed periodically
from those submitted originally. It was brought to their attention
about three meetings ago that it was overbuilt and extended
beyond the original footprint that was approved.
Mr. Athey asked if the “as built” will be submitted
to Mr. Bergstrom so the plan can check the plan submitted
to HAC and if it is larger there may be an issue that can’t
be addressed here tonight. Mr. Tucker confirmed the plan will
be submitted and that it has not been overbuilt.
Mr. Harker read aloud City Code Section 230-57, Subsection
C, the standard for granting a variance in the City of New
Castle.
Mr. Harker made a motion to approve the variance application.
Mr. Athey seconded the motion. The motion was approved unanimously.
Mr. Athey stated the reason for his vote is that he feels
that while other information could have been found or monuments
found, he disputed using the word “error” as he
didn’t hear any evidence to indicate an error took place.
It is our responsibility to make a rational decision absence
of errors and conflicts.
Mr. Harker said he recognizes the fact that this is an untimely
application in the sense it is an application made after the
fact, but he believes it is an application that is typically
granted in a Board of Adjustment situation where the nature
and size of the real estate, the nature of the use and nature
and circumstances surrounding the construction of the project
would result in unusual hardship to remove it, and there is
no evidence brought before the Board to indicate it is harmful
or injurious to the neighborhood. The Mayor commented the
engineer acted in good faith and that it is the nature of
discrepancies in the historic area to have errors because
of the time we started to keep records on monuments and the
lack of them.
Adjournment
The meeting was adjourned at 7:50 p.m.
Respectfully submitted,
Debbie Turner
Stenographer
Applicant Exhibit 1 – Plan with the amended application
Applicant Exhibit 2 – Deed
Applicant Exhibit 3 – Plans submitted with the original
application
Applicant Exhibit 4 – As built submitted to Historic
Area Commission
