Crawford v. Town of Milton Planning & Zoning Commission

• Court: Superior Court of Delaware
• Decided: January 23, 2024
• Docket: S23A-04-001 MHC
• Status: Published

Opinion

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

STEVEN CRAWFORD, ) ) ) Appellant, ) ) v. ) C.A. No: S23A-04-001 MHC ) TOWN OF MILTON PLANNING & ) ZONING COMMISSION ) ) ) Appellee. )

ORDER

Submitted: November 14, 2023 Decided: January 23, 2024

Upon Consideration of Town of Milton Planning & Zoning Commission’s Motion to Dismiss,

GRANTED.

Stephen Crawford, Milton, Delaware, Pro Se Appellant.

Scott G. Wilcox, Esquire, Giordano, Delcollo, Werb, & Gagne, LLC, Wilmington, Delaware, Attorney for Appellee.

CONNER, J. INTRODUCTION

Before the Court is the Town of Milton Planning & Zoning Commission’s

(“Commission”) Motion to Dismiss an action filed Pro Se by Steven Crawford

(“Crawford”). The appeal raises one ground for consideration: “Non-Compliance

of Due Process Required by the Town of Milton Town Charter in Section 29;

Paragraph 13 when the Land Lease Agreement was executed which will invalidate

the agreement and all subsequent decisions and approvals.”1 Crawford’s action is

untimely and is therefore DISMISSED.

FACTUAL AND PROCEDURAL HISTORY

On December 2nd, 2019, the Milton Town Council unanimously approved a

Land Lease Agreement (“Agreement”) between Cellco Partnership d/b/a Verizon

Wireless (“Verizon”) and the Town of Milton.2 The Agreement was signed by the

Town of Milton on December 4, 2019, and became effective on June 17th, 2020,

when signed by Verizon. It granted Verizon, as lessee, the right to install and

maintain a telecommunications monopole on 210 Front Street, Milton, Sussex

County, Delaware, conditioned on Verizon receiving all other necessary government

approvals for the use of the property. Verizon secured such necessary government

1 Crawford’s Notice of Appeal. 2 Tr. of Dec. 2, 2019, Town of Milton Town Council Meeting. (Unfortunately, it took several months to transcribe the minutes). 2 approval and following a public hearing on March 21 st, 2023, the Commission

unanimously approved Verizon’s final site plan.

On April 20th, 2023, Stephen Crawford filed an appeal claiming to seek

review of the Commission’s March 21st, 2023 approval of Verizon’s final site plan.

However, when reading Crawford’s grounds for appeal and subsequent filing, it

becomes clear that he is not seeking review of the Commission’s March 21st, 2023

site plan approval, but rather the approval of the Agreement by the Milton Town

Council on December 2nd, 2019.

Crawford states that his grounds for appeal are “Non-Compliance of Due

Process Required by the Town of Milton Charter in Section 29; Paragraph 13 when

the Land Lease Agreement was executed which will invalidate the agreement and

all subsequent approvals.”3 He doubles down in his reply brief, writing “[t]he issue

and reason for appeal to Superior Court is where the cell tower is to be located.…”4

STANDARD OF REVIEW

“When reviewing a ruling on a motion to dismiss, we (1) accept all well

pleaded factual allegations as true, (2) accept even vague allegations as ‘well

pleaded’ if they give the opposing party notice of the claim, (3) draw all reasonable

3 Crawford’s Notice of Appeal. 4 Crawford’s Resp. to Def. Mot. to Dismiss at 2. 3 inferences in favor of the non-moving party, and (4) do not affirm a dismissal unless

the plaintiff would not be entitled to recover under any reasonably conceivable set

of circumstances.”5

DISCUSSION It is unclear if this challenge to the decision of the Milton Town Council is

before the Court as a Rule 3(c) appeal de novo, a Rule 72 appeal, or as a writ of

certiorari. Crawford refers to his action as an appeal, yet he fails to provide the rule,

statute, or code section which permits or governs such an appeal.6 Alternatively, the

Commission refers to Crawford’s action as a petition for writ of certiorari. These

forms of appeal and writs of certiorari differ in many ways beyond name, however

the Court need not address all of their distinctions because under all three forms

Crawford’s action is untimely. Because the action is untimely, Crawford is not

entitled to recover under any reasonably conceivable set of circumstances and this

action must be dismissed.

5 Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Hldgs. LLC, 27 A.3d 531, 535 (Del. 2011). 6 The Court is cognizant of Crawford’s position as a pro se litigant. As such it will explain why Crawford’s claims are untimely as a Rule 3(c) appeal, a Rule 72 appeal, and as a petition for writ of certiorari. 4 1. Timeframe under which a party may file an appeal de novo pursuant to

Delaware Superior Court Civil Rule 3(c).

Delaware Superior Court Civil Rule 3(c) governs the commencement of

appeals de novo. “When an appeal de novo is permitted by law, an action is

commenced in the Superior Court by the appellant filing with the Prothonotary a

praecipe within the time prescribed by statute for the filing of an appeal. If no time

is prescribed by statute, the praecipe shall be filed within 15 days from the entry of

the final judgment, order, or disposition from which an appeal is permitted by law.”7

2. Timeframe under which a party may file an appeal pursuant to

Delaware Superior Court Civil Rule 72.

Delaware Superior Court Rule 72 governs appeals to the Superior Court “from

certain commissioners, boards and courts.”8 Such appeals must be permitted by

law.9 “If no time is prescribed by statute, the notice of appeal shall be filed within

15 days from entry of the final judgment, order, or disposition from which an appeal

is permitted by law.”10 “The Court may order an appeal dismissed, sua sponte, or

7 Super. Ct. Civ. R. 3(c). 8 Super. Ct. Civ. R. 72. 9 Super. Ct. Civ. R. 72(b). 10 Id. 5 upon a motion to dismiss by any party. Dismissal may be ordered for untimely filing

of an appeal.…”11

3. Timeframe under which a party may file a petition for a writ of certiorari.

“Although there is no statutorily-imposed time period in which to seek review

under a writ of certiorari, [the Delaware Supreme Court has] ruled that the time for

seeking such review is analogous to the period governing direct appeals....”12

“Generally, a petition for a writ of certiorari must be filed within the time [thirty

days] set for direct appeals.”13 “Delaware courts have held that a writ of certiorari

filed later than thirty days will be excused only under exceptional circumstances.”14

CONCLUSION

Crawford’s challenge is untimely regardless of whether it is analyzed as a Rule

3 appeal de novo, a Rule 72 appeal, or a writ of certiorari. As stated above,

Crawford’s filings explain that he is challenging the location of the monopole by

attacking the process followed “when the Land Lease Agreement was executed”,15

not the March 21st, 2023 site plan approval.

11 Super. Ct. Civ. R. 72(i). 12 Petition of Fridge, 604 A.2d 417 (Del. 1991). 13 Matter of Gunn, 122 A.3d 1292 (Del. 2015). (Internal citation omitted). 14 Id. 15 Crawford’s Notice of Appeal. 6 The Agreement, which ultimately determined where the monopole would be

located was unanimously passed by the Milton Town Council on December 2nd,

2019. On December 4th, 2019, the Land Lease Agreement was signed by the Mayor

on behalf of the Town of Milton. Verizon signed the Agreement on June 17th, 2020

making it effective on that date.

Crawford’s April 20th, 2023 action was filed more than two years beyond the

15-day window in which an appeal of the approval or subsequent execution of the

Agreement may have been filed under Rule 72 or Rule 3(c). Further, Crawford has

not provided the Court with any statute that would extend the window in which a

notice of appeal may be filed beyond 15 days under either rule.

Likewise, Crawford’s April 20th, 2023 action was filed more than two years

beyond the 30-day window in which a writ of certiorari challenging the approval or

subsequent execution of the Agreement should have been filed. Crawford failed to

allege any exceptional circumstances that would excuse a delay of several years in

filing the petition for writ of certiorari in this proceeding. The Court acknowledges

Crawford’s claims that the Milton Town Council’s approval of the Agreement on

December 2nd, 2019 was “done behind the curtain … to avoid public scrutiny” and

not revealed until March 2021 following a FOIA request.16 However, the Court finds

16 Crawford’s Resp. to Def. Mot. to Dismiss at 9. 7 them unavailing as Crawford “agrees the [December 2nd, 2019] meeting was

properly noticed.”17

For the foregoing reasons Crawford’s action is untimely. Therefore, he is not

entitled to recover under any reasonably conceivable set of circumstances and this

/s/ Mark H. Conner Mark H. Conner, Judge

cc: Prothonotary

17 Id. at 7. 8