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Karman v. Board of Adjustment of Sussex County4/26/2005
Date Submitted: April 15, 2005
Dear Counsel
This is my decision regarding Robin A. Karman's Motion to Re-Open. For the reasons set forth herein, the Motion is denied.
STATEMENT OF THE CASE
In November and December of 2000, Chartan Solsnes ("Solsnes") made improvements to his dwelling, including tearing down a first floor overhang and adding a second floor addition. He also built a shed and a gazebo. He applied for a building permit for these improvements, but failed to note that they violated Sussex County zoning setback requirements. In addition, the first floor encroachment was the subject of a license agreement entered into on April 17, 1998 between Solsnes and Robin A. Karman ("Karman"). See Petition for Writ of Certiorari, Ex. C. The license permitted the overhang to encroach upon Karman's land.
On December 20, 2000, Karman filed a Complaint in the Chancery Court seeking a permanent and preliminary injunction to have Solsnes remove the second floor addition. She alleged that he constructed the addition in violation of the setback requirements and that the second floor addition encroached upon her property. On March 1, 2001 Solsnes applied for a variance for all of the setback violations.
The Sussex County Board of Adjustment ("the Board") issued a decision, dated August 6, 2001, in which it was agreed that the shed and gazebo would be moved into compliance. It found, however that the second floor addition was only vertical and did not extend beyond previously existing walls. The Board had sought an independent legal opinion, in which it was stated that any increase in non-conformity would require a variance. The Board had been previously interpreting the ordinance contrary to this interpretation, however, and because of Solsnes' reliance on that interpretation, it determined the issue was moot and that no variance was required.
On September 5, 2001, within the 30 day statutory time limit, Karman filed a Writ of Certiorari pursuant to 9 Del. C. ยง 6918 in Superior Court, challenging the Board's decision. She also filed a Verified Complaint for Preliminary and Permanent Injunction asking that Solsnes be compelled to remove any new construction that encroached upon Karman's property. Karman did not demand a transcript be included in the return, however, and none was included by the Board.
When a transcript had still not been filed on June 14, 2002, a letter was sent to Karman stating that one must be filed by July 15, 2002 or the case would be dismissed. Allegedly, Karman contacted her attorney, who told her he would take care of providing the transcript to the Court. No transcript was filed and the case was dismissed by Order, dated August 27, 2002, because no action had been taken by the Plaintiff in accordance with a court directive. Ms. Karman's Counsel then apparently told her that he had made a mistake and had not filed the transcript. He informed her again that he would take care of it. Nothing further was filed in this case until November 15, 2004.
In Chancery, a Motion for Summary Judgment was filed on August 6, 2004 by Solsnes. He alleged that not only had Karman failed to establish that there had been a trespass and that the encroachment did not violate the Sussex County Ordinance, but also that the suit should be barred by res judicata and collateral estoppel because it had already been resolved by the Board and in the Superior Court. On August 17, 2004 Karman's counsel, Sean Bellew of Cozen O'Connor filed a Motion for Leave to Withdraw as Counsel. The Motion was granted on August 19th.
Karman obtained new counsel, Shawn P. Tucker, and on November 16, 2004, she filed
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