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
Robert Appleby, New Castle Senior Center (applicant)
The meeting was called to order at 8 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 the New Castle Senior Center for property located at 402
South Street, New Castle, Delaware, Parcel Number 21-015.00-057,
seeking a special exception to permit the construction of
an addition to the existing building for a club and lodge
in the historic residence – HR zoning district.
For the purpose of considering this application, the Board
of Adjustment will hold a public hearing on May 3, 2006 at
8 p.m. in Old Town Hall, 2nd Floor, located at 2nd and Delaware
Street, New Castle, Delaware.”
Affadavit of publication was filed in the NewsJournal and
Jeff Bergstrom confirmed it has been posted properly.
Mr. Bergstrom provided a background. The senior center is
proposing an addition and is changing ownership from the State
of Delaware Colonial School District to the New Castle Senior
Center Foundation. They are anticipating an expansion of the
building. They have appeared before the HAC and been approved.
With the change in ownership it is evident that the HR zoning
requires clubs and lodges to be a special exception by the
Board of Adjustment.
The Mayor asked if the State owned the property would it be
required to appear before the Board of Adjustment. He deferred
the question to Mr. Harker.
Mr. Harker responded that the doctrine of sovereign immunity
when it comes to zoning are not easy to decide. Cases seem
to indicate that it comes down to determining whether the
State intended to waive their sovereign immunity by allowing
the submission of the project to zoning requirements to a
particular municipality, thereby making it a case by case
basis. The government is not immune from local zoning ordinance
unless it makes a determination that it usurps that immunity.
He does not know if that is the case here.
The Mayor asked prior to the property being converted from
a used school property to a senior center, were there any
applications to the city for a change in use from a school
property to school or lodge. Mr. Bergstrom indicated there
was an application to the HAC for a change in the physical
structure of the property for building permits. The Mayor
said the State didn’t apply to the city; it was there
under sovereign immunity. Mr. Bergstrom confirmed this.
City of New Castle Board of Adjustment Hearing
May 3, 2006
Page 2
Mr. Robert Appleby informed attorneys for the school and
the Trustees have agreed that if the senior center fails,
the New Castle Trustees will take it over.
Mr. Harker made it clear to the Board and audience that nothing
is before us tonight that deals with the expansion of the
senior center. That is a matter that is to be taken up at
a later date when that proposal is made to HAC. We are only
dealing with whether we would grant this as a special exception
in an HR district.
Public Comments
Richard Evans, 419 South Street – He is concerned that
he would like not to have events serving alcoholic beverages
being served across the street from the fire house and his
residence. He has spoken with Mr. Appleby about his concern.
(The Mayor added he doesn’t think this issue is pertinent
to this hearing.)
Mr. Harker said a special exception is different from a variance.
A special exception is a use that actually is permitted in
that district and the standards for granting a special exception
are much easier to meet than a variance. It only requires
that we indicate it is appropriate use for that district and
it will not be injurious or harmful to the neighborhood. They
do not need to show exceptional difficulties or hardships.
Mary Ann Caven, West 3rd Street – She is concerned
about the size of the expansion and whether it might be turned
into a community center later.
Mr. Appleby said they currently have one room. They can’t
accommodate more than one class because of this. It has never
been their intent to make it into a community center. If the
senior center fails, it would be up to the Trustees to determine
its use.
Mr. Athey asked if we have a definition for senior center.
Mr. Harker said there is nothing in the code or the NAICS
(national code) definition as to a club or lodge or senior
center that he found. Mr. Appleby said that 55 and over is
in their bylaws. Mr. Athey suggested attaching the condition
that members must be 55 and over. Mr. Harker said the Board
is permitted under the code to make conditions on various
restrictions. Mr. Athey asked if the club changed ownership
would that mean the club would still be permitted or does
the decision get revoked? Mr. Harker responded that the use
would continue to be permitted as long as it remained that
use. They can’t change the use to another use other
than a club or lodge.
Mr. Appleby said the deed will state the property is not
to be used to make money.
City of New Castle Board of Adjustment Hearing
May 3, 2006
Page 3
Mr. Harker asked Mr. Appleby if it is intended that the owner
be a qualified tax-exempt charitable organization? He responded
that they qualify but the Trustees
do not. Mr. Harker said that under those circumstances any
property of a defunct charitable organization must go to another
501(c) charitable or government organization.
(Audience) – Noted that presently the membership is
open to those 50 years and over. She wanted to make this clear.
Chandler Gebhart – He identified himself as a past
president and current vice president of the New Castle Senior
Center. He wanted to make it clear that at no point have they
ever talked about becoming a community center. It is strictly
a senior center providing services to people 50 years and
up. Concerning alcohol, he hears the community’s concerns
and encourages residents to contact himself or Mr. Appleby
at any time.
John DiMondi – This deed could change and he doesn’t
feel it would be detrimental if a condition to the exception
was made that the exception remains in place as long as it
remains an age-restricted usage or lose its usage.
Mr. Harker made a motion to approve the special use exception
of the New Castle Senior Center subject to a condition as
permitted by the code that membership be restricted to members
50 years of age or older and that ownership of the building
remain with a qualified charitable organization. Mr. Athey
seconded the motion. The Mayor said that if the senior center
fails and the Trustees find a use not based on age, he is
confident in the Trustees making a wise decision and he is
opposed to adding an age restriction.
Mr. Athey added that none of us has a crystal ball and he
is not casting disparaging comments towards the Trustees.
He does not feel it is a major problem because it could be
changed in the future. The Mayor changed his thoughts on this
matter since it would not be permanent.
Mr. Harker read Section 230-57 of the Code, The Powers and
Duties of the Board of Adjustment.
Mr. Harker’s reasons for his vote would be because
there has been no evidence presented to show it is harmful
to the neighbor, it is in harmony with this district and consistent
with the fact the building was a former school and is a good
use for this facility. Mr. Athey said the only partially negative
comments we have heard we have addressed. The Mayor also agrees
with Messrs. Harker’s and Athey’s comments.
City of New Castle Board of Adjustment Hearing
May 3, 2006
Page 4
Adjournment
The meeting was adjourned at 8:20 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
