John J. Cain, Jr. v. Sussex County Council
This text of John J. Cain, Jr. v. Sussex County Council (John J. Cain, Jr. v. Sussex County Council) is published on Counsel Stack Legal Research, covering Court of Chancery of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
JOHN J. CAIN, JR., JANE L. CAIN, ) DAVID PAPE, MELISSA PAPE, ) CHARLES MOORE, SR., JOHN ) DILLON, MARY E. GRANGER, ) JOSEPH W. AYRES, PAUL BRASURE, ) NELLIE BRASURE, JULIE A. ) CUMMINGS, CAROL BUCHLER, ) GARY C. MEIKLEJOHN, ANNA G. ) MEIKLEJOHN, JOHN L. ) MEIKLEJOHN, RICK EVANS, ) ROBERT C. ACKERSON, ) LIONEL F. WEEKS, ROBERT D. ) SIKES, SR., DIANE R. HUBER, and ) BATSON CREEK ESTATES ) COMMUNITY ASSOCIATION, INC., ) ) Plaintiffs ) ) v. ) C.A. No. 2019-0077-SG ) SUSSEX COUNTY COUNCIL, ) ANTHONY CRIVELLA, and OA ) OAKS, LLC, ) ) Defendants. )
MEMORANDUM OPINION
Date Submitted: January 2, 2020 Date Decided: May 4, 2020
Robert V. Witsil, Jr., of ROBERT V. WITSIL, JR., P.A., Georgetown, Delaware, Attorney for Plaintiffs.
David N. Rutt, of MOORE & RUTT, P.A., Georgetown, Delaware, Attorney for Defendant Sussex County Council. Richard A. Forsten and Pamela J. Scott, of SAUL EWING ARNSTEIN & LEHR LLP, Wilmington, Delaware, Attorneys for Defendants Anthony Crivella and OA Oaks, LLC.
GLASSCOCK, Vice Chancellor This Memorandum Opinion resolves a challenge to a Sussex County Council
(the “Council”) decision rezoning a parcel of real property. Until the rezoning, the
parcel was designated AR-1 and is mostly tillable land. It is bounded by the Batson
Branch of Bearhole Creek, at the headwaters of Dirickson Creek. The property is
just north-west of the now-developed area along the eastern portions of State Routes
20 and 54, and is located a few miles by road from Fenwick Island.1 The rezoning
is necessary to the purpose of the parcel’s owners: the creation of an apartment-
housing complex. Those of us growing up in eastern Sussex County in the 1960s
and 70s would have been surprised at the idea that someone would want to build an
apartment building in the Roxanna-Bayard area of Baltimore Hundred, let alone that
opposition to such a construction would become a matter for this Court. Yet here
we are.
The Plaintiffs are property owners in the general neighborhood of the parcel
in question. They make two principal arguments that the ordinance should be struck.
First, per Plaintiffs, the rezoning is impermissible as incompatible with the Sussex
County Comprehensive Development Plan. Second, that the ordinance was enacted
arbitrary and capriciously.2 I note that the Council is a legislative body, and its
ordinances are entitled to a presumption of validity. Accordingly, it is not my role
1 The record is replete with references to the proximity of the parcel to development and the nearby beach; I also take judicial notice of the location. 2 The Plaintiffs also argue that the ordinance is the result of impermissible spot or contract zoning.
1 to substitute my judgment for that of the Council. The Council is bound to comply
with the Comprehensive Development Plan in zoning matters—where a rezoning is
challenged on that basis my role is to ensure that the Council made a determination
of compliance based upon substantial evidence. Where a decision of the Council is
said to result from caprice, I must limit my review to a determination of whether the
action taken resulted from a reasoned consideration of the record. Should I find
these standards fulfilled, I must uphold the ordinance. Again, respect for notions of
separation of powers dictate that I not substitute my judgment, or my belief as to the
best outcome, for that of the legally-compliant and deliberative acts of the Council.
The Plaintiffs seek a declaratory judgment that the ordinance is void, and to
enjoin the current owner of the property and the proposed developer (along with the
Council, the Defendants here) from developing the property. The matter is before
me on Cross-Motions for Summary Judgment. Here, I find, the ordinance in
question passes the limited review before me. Accordingly, the Defendants are
entitled to a judgment. My reasoning follows.
2 I. BACKGROUND3
A. The Property and the Parties
The parcel of land that is the focus of this Action is a 14.8455 acre parcel with
a posted address of 36161 Zion Church Road, Frankford, Delaware 19945 (the
“Property”).4 The Property is Sussex County Tax Map #533-11.0-82.00.5
The Plaintiffs are twenty individuals—and one incorporated community
association—who are owners of land located adjacent or proximate to the Property.6
Defendant Council is a political subdivision of the State of Delaware and the
governing body of Sussex County, Delaware.7
Defendant Anthony Crivella is an individual and the owner of the Property.8
Defendant OA Oaks, LLC (“OA Oaks”) is the applicant for the proposed
change of zone for the Property and the proposed developer of the Property.9
3 The facts are primarily drawn from exhibits submitted by the Plaintiffs and the Defendants in support of their respective Motions for Summary Judgment. I cite to the Plaintiffs’ exhibits as “PX __, at [page]” and Defendants’ exhibits as “DX __, at [page].” I also cite to the Plaintiffs’ Verified Amended Complaint, D.I. 6 (“Am. Compl”), where necessary. 4 PX 1, at 1. I note that while the postal address is Frankford, the Property is in rural Baltimore Hundred, just east of Bayard and west of Little Assawoman Bay. It is physically closer to the beach resorts of Bethany Beach and Fenwick Island than to Frankford. 5 Id. 6 Am. Compl., ¶ 1. 7 Id. ¶ 4. 8 PX 1, at 1. 9 Id.; PX 15, at 1.
3 B. PLUS Application
On October 5, 2017, OA Oaks and Crivella submitted a Preliminary Land Use
Service (“PLUS”) application to the Delaware Office of State Planning
Coordination.10 Under 29 Del. C. Ch. 92, a proposed rezoning, identified in the
PLUS application, is reviewed in the first instance by the Office of State Planning
Coordination, a public meeting is held, and the Office of State Planning
Coordination must “furnish to the applicant and the local jurisdiction a written
compilation of all comments received at the meeting.”11
The PLUS application for the Property identified the then-present zoning of
the Property as AR-1 and the proposed zoning as HR-1.12 The proposed use
identified is for a residential apartment complex with 178 units and a clubhouse.13
The PLUS application identifies 4.90 forested acres, of which .30 acres would be
10 DX G. The PLUS application identifies an entity other than OA Oaks, Ocean Atlantic Communities, LLC, as the developer, but neither party disputes that OA Oaks submitted the PLUS application. See Pls.’ Opening Br. in Support of their Cross-Mot. for Summ. J. (“Pls. Opening Br.”), at 5; Defs.’ OA Oaks, LLC’s and Anthony Crivella’s Answering Br. in Response to Pls.’ Mot. for Summ. J. and Opening Br. in Support of Defs.’ Cross-Mot for Summ. J (“Defs.’ Answ./Opening Br.”), at 5. Therefore, for purposes of the Cross-Motions for Summary Judgment I assume that OA Oaks is the developer on the PLUS application. I also note that the Council has joined the briefs of the other Defendants and has not submitted briefs of its own. See Letter, D.I. 32. 11 See 29 Del. C. § 9204. 12 DX G, at 2. The Sussex County Code defines AR-1 as an “Agricultural Residential District” and HR-1 and a “High-Density Residential District.” Sussex Cty. C. § 115-5. 13 DX G, at 2.
4 removed, and 2.1221 acres of non-tidal wetlands, but notes that the wetlands would
not be directly impacted.14
The Office of State Planning Coordination released its comment letter in
response to the PLUS application on November 27, 2017 (the “Comment Letter”).15
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IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
JOHN J. CAIN, JR., JANE L. CAIN, ) DAVID PAPE, MELISSA PAPE, ) CHARLES MOORE, SR., JOHN ) DILLON, MARY E. GRANGER, ) JOSEPH W. AYRES, PAUL BRASURE, ) NELLIE BRASURE, JULIE A. ) CUMMINGS, CAROL BUCHLER, ) GARY C. MEIKLEJOHN, ANNA G. ) MEIKLEJOHN, JOHN L. ) MEIKLEJOHN, RICK EVANS, ) ROBERT C. ACKERSON, ) LIONEL F. WEEKS, ROBERT D. ) SIKES, SR., DIANE R. HUBER, and ) BATSON CREEK ESTATES ) COMMUNITY ASSOCIATION, INC., ) ) Plaintiffs ) ) v. ) C.A. No. 2019-0077-SG ) SUSSEX COUNTY COUNCIL, ) ANTHONY CRIVELLA, and OA ) OAKS, LLC, ) ) Defendants. )
MEMORANDUM OPINION
Date Submitted: January 2, 2020 Date Decided: May 4, 2020
Robert V. Witsil, Jr., of ROBERT V. WITSIL, JR., P.A., Georgetown, Delaware, Attorney for Plaintiffs.
David N. Rutt, of MOORE & RUTT, P.A., Georgetown, Delaware, Attorney for Defendant Sussex County Council. Richard A. Forsten and Pamela J. Scott, of SAUL EWING ARNSTEIN & LEHR LLP, Wilmington, Delaware, Attorneys for Defendants Anthony Crivella and OA Oaks, LLC.
GLASSCOCK, Vice Chancellor This Memorandum Opinion resolves a challenge to a Sussex County Council
(the “Council”) decision rezoning a parcel of real property. Until the rezoning, the
parcel was designated AR-1 and is mostly tillable land. It is bounded by the Batson
Branch of Bearhole Creek, at the headwaters of Dirickson Creek. The property is
just north-west of the now-developed area along the eastern portions of State Routes
20 and 54, and is located a few miles by road from Fenwick Island.1 The rezoning
is necessary to the purpose of the parcel’s owners: the creation of an apartment-
housing complex. Those of us growing up in eastern Sussex County in the 1960s
and 70s would have been surprised at the idea that someone would want to build an
apartment building in the Roxanna-Bayard area of Baltimore Hundred, let alone that
opposition to such a construction would become a matter for this Court. Yet here
we are.
The Plaintiffs are property owners in the general neighborhood of the parcel
in question. They make two principal arguments that the ordinance should be struck.
First, per Plaintiffs, the rezoning is impermissible as incompatible with the Sussex
County Comprehensive Development Plan. Second, that the ordinance was enacted
arbitrary and capriciously.2 I note that the Council is a legislative body, and its
ordinances are entitled to a presumption of validity. Accordingly, it is not my role
1 The record is replete with references to the proximity of the parcel to development and the nearby beach; I also take judicial notice of the location. 2 The Plaintiffs also argue that the ordinance is the result of impermissible spot or contract zoning.
1 to substitute my judgment for that of the Council. The Council is bound to comply
with the Comprehensive Development Plan in zoning matters—where a rezoning is
challenged on that basis my role is to ensure that the Council made a determination
of compliance based upon substantial evidence. Where a decision of the Council is
said to result from caprice, I must limit my review to a determination of whether the
action taken resulted from a reasoned consideration of the record. Should I find
these standards fulfilled, I must uphold the ordinance. Again, respect for notions of
separation of powers dictate that I not substitute my judgment, or my belief as to the
best outcome, for that of the legally-compliant and deliberative acts of the Council.
The Plaintiffs seek a declaratory judgment that the ordinance is void, and to
enjoin the current owner of the property and the proposed developer (along with the
Council, the Defendants here) from developing the property. The matter is before
me on Cross-Motions for Summary Judgment. Here, I find, the ordinance in
question passes the limited review before me. Accordingly, the Defendants are
entitled to a judgment. My reasoning follows.
2 I. BACKGROUND3
A. The Property and the Parties
The parcel of land that is the focus of this Action is a 14.8455 acre parcel with
a posted address of 36161 Zion Church Road, Frankford, Delaware 19945 (the
“Property”).4 The Property is Sussex County Tax Map #533-11.0-82.00.5
The Plaintiffs are twenty individuals—and one incorporated community
association—who are owners of land located adjacent or proximate to the Property.6
Defendant Council is a political subdivision of the State of Delaware and the
governing body of Sussex County, Delaware.7
Defendant Anthony Crivella is an individual and the owner of the Property.8
Defendant OA Oaks, LLC (“OA Oaks”) is the applicant for the proposed
change of zone for the Property and the proposed developer of the Property.9
3 The facts are primarily drawn from exhibits submitted by the Plaintiffs and the Defendants in support of their respective Motions for Summary Judgment. I cite to the Plaintiffs’ exhibits as “PX __, at [page]” and Defendants’ exhibits as “DX __, at [page].” I also cite to the Plaintiffs’ Verified Amended Complaint, D.I. 6 (“Am. Compl”), where necessary. 4 PX 1, at 1. I note that while the postal address is Frankford, the Property is in rural Baltimore Hundred, just east of Bayard and west of Little Assawoman Bay. It is physically closer to the beach resorts of Bethany Beach and Fenwick Island than to Frankford. 5 Id. 6 Am. Compl., ¶ 1. 7 Id. ¶ 4. 8 PX 1, at 1. 9 Id.; PX 15, at 1.
3 B. PLUS Application
On October 5, 2017, OA Oaks and Crivella submitted a Preliminary Land Use
Service (“PLUS”) application to the Delaware Office of State Planning
Coordination.10 Under 29 Del. C. Ch. 92, a proposed rezoning, identified in the
PLUS application, is reviewed in the first instance by the Office of State Planning
Coordination, a public meeting is held, and the Office of State Planning
Coordination must “furnish to the applicant and the local jurisdiction a written
compilation of all comments received at the meeting.”11
The PLUS application for the Property identified the then-present zoning of
the Property as AR-1 and the proposed zoning as HR-1.12 The proposed use
identified is for a residential apartment complex with 178 units and a clubhouse.13
The PLUS application identifies 4.90 forested acres, of which .30 acres would be
10 DX G. The PLUS application identifies an entity other than OA Oaks, Ocean Atlantic Communities, LLC, as the developer, but neither party disputes that OA Oaks submitted the PLUS application. See Pls.’ Opening Br. in Support of their Cross-Mot. for Summ. J. (“Pls. Opening Br.”), at 5; Defs.’ OA Oaks, LLC’s and Anthony Crivella’s Answering Br. in Response to Pls.’ Mot. for Summ. J. and Opening Br. in Support of Defs.’ Cross-Mot for Summ. J (“Defs.’ Answ./Opening Br.”), at 5. Therefore, for purposes of the Cross-Motions for Summary Judgment I assume that OA Oaks is the developer on the PLUS application. I also note that the Council has joined the briefs of the other Defendants and has not submitted briefs of its own. See Letter, D.I. 32. 11 See 29 Del. C. § 9204. 12 DX G, at 2. The Sussex County Code defines AR-1 as an “Agricultural Residential District” and HR-1 and a “High-Density Residential District.” Sussex Cty. C. § 115-5. 13 DX G, at 2.
4 removed, and 2.1221 acres of non-tidal wetlands, but notes that the wetlands would
not be directly impacted.14
The Office of State Planning Coordination released its comment letter in
response to the PLUS application on November 27, 2017 (the “Comment Letter”).15
The Comment Letter notes that the Property is “located in Investment Level 3
according to Strategies for State Policies and Spending” and that Investment Level
3 “reflects areas where growth is anticipated . . . in the longer term future.”16 The
Comment Letter “encourage[s] [the parties] to design the site with respect for the
environmental features which are present.”17
Among comments from other agencies, the Delaware State Housing Authority
(“DSHA”) supported the rezoning in the Comment Letter. DSHA noted that the
Property “is in close proximity to the many services, markets, and employment
opportunities available in the coastal resort area – where there is a severe lack of
housing.”18 DSHA continued that in assessing maps based on data such as school
performance and racially/ethnically concentrated areas of poverty, it determined the
Property is in “an ‘Area of Opportunity’ where environmental conditions and
resources exist that are conducive to helping residents achieve positive life
14 Id. 15 DX H. 16 Id. at 1. 17 Id. 18 Id. at 15.
5 outcomes. These areas tend to be strong, high-value markets that contain little or no
affordable housing.”19 Finally, DSHA noted that due to a “significant market shift”
it is “critical that communities move away from large lot single family-detached
housing and proactively provide a variety of housing options to meet market
demand.”20
C. Planning and Zoning Commission Review
On May 4, 2018, OA Oaks and Crivella submitted their application for a
zoning amendment for the Property to the Sussex County Planning and Zoning
Commission (the “Zoning Commission”) under file #CZ1858 (the “Application”).21
The Zoning Commission, established under 9 Del. C. Ch. 68, was tasked with issuing
a non-binding recommendation on the proposed zoning change to the Council. In
other words, the role of the Zoning Commission is informative; its recommendations
do not bind the elected members of the Council in considering rezoning
applications.22
19 Id. at 15–16. 20 Id. at 16 (emphasis in original). DSHA noted that baby boomers are “looking to downsize into something more manageable” and consequently “a large amount of suburban homes [will] be placed on the market” combined with a “decline in households in age ranges that typically seek large homes.” Id. 21 PX 1. The proposed zoning in this application is HR-1 – RPC, rather than simply HR-1—under the Sussex County Code, the RPC designation allows for certain specifications, such as smaller minimum lot area and width. See Sussex Cty. C. Ch. 115, Art. XVI. 22 See Sussex Cty. C. § 115-216.
6 The Sussex County Planning and Zoning Director submitted a staff analysis
of the Application to the Zoning Commission for its review prior to the October 11,
2018 Zoning Commission Meeting.23 The analysis noted that the 2008 Sussex
County Comprehensive Plan Update (the “Comprehensive Plan”) indicates that the
Property is designated an Environmentally Sensitive Developing Area (“ESDA”).24
Per the analysis, the ESDA designation “recognizes that a range of housing types
should be permitted including single family, townhouses, and multi-family. . . .”25
The analysis identifies the zoning of the properties to the south (GR and B-1), the
east (AR-1 and B-1), the west (AR-1 and C-1), and that there is a conditional use for
an event venue in the area.26 The analysis concludes that “[b]ased on the analysis of
the land use, surrounding zoning and uses, the Change of Zone to allow from AR-1
. . . to HR-1 – RPC . . . could be considered consistent with the land use; however,
it would be considered inconsistent with the area zoning and uses.”27
Additionally, the Sussex County Community Development & Housing Office
(“CD&H”) submitted comments to the Zoning Commission at the Zoning
Commission’s request.28 CD&H specifically commented on conditions attached to
thirty-six of the 178 proposed units, targeting eligible tenants earning 70% of the
23 PX 7. 24 Id. at 1. 25 Id. 26 Id. 27 Id. 28 PX 6.
7 Area Median Income, and discussed further, infra.29 CD&H noted that the project
is not part of a County-administered affordable housing program, and that
consequently, CD&H viewed the Application as “solely a land use decision.”30
CD&H ultimately offered replacement language for the proposed condition
regarding an examination by an independent certified public accountant to ensure
the conditions related to the income of certain tenants are followed, but stated that
its own role in the project “should be limited” and that CD&H “does not have the
staff or capacity to administer projects outside of the County programs . . . .”31
The Zoning Commission held a meeting on October 11, 2018 at which it
discussed the Application for the zoning change.32 Representatives from the
Delaware Restaurant Association and the Community Development for Housing
Alliance Delaware spoke in favor of the zoning change, with one opining that “there
is an affordable housing crisis” in Sussex County.33 A number of individuals,
including a number of the Plaintiffs here, spoke out against the zoning change.34 The
Zoning Commission “discussed” the Application, deferred action, and kept the
record open in order to allow time for the staff to solicit comments.35
29 I note that the proposed language purported to be in the Application is not in the record. 30 PX 6, at 1. 31 Id. 32 PX 8, at 13. 33 Id. at 18. 34 Id. at 19. 35 Id.
8 At a subsequent meeting on November 29, 2018 the Zoning Commission
again discussed the Application.36 A member of the Zoning Commission remarked
on certain features of the proposed development and the surrounding area. For
instance, he noted that “housing can be unaffordable for a lot of the workforce” in
eastern Sussex County forcing long commutes and increased traffic and that this
development “will provide affordable housing to Sussex County residents with low
to moderate income levels who are a large part of the workforce in eastern Sussex
County.”37
A condition proposed in the the Application was discussed by the Zoning
Commission, under which 36 of the units would be “Restricted Units” available to
low and moderate income residents who qualify for workforce housing.38 The
restriction was to last for 30 years and required the Restricted Units to be “rented to
tenants with gross household incomes equal to or less than 70% of the area median
income for Sussex County (‘Qualifying Tenants’) . . . .”39 “During lease-up and for
a period of 2 years, [OA Oaks] must actively seek to lease available units to
Qualifying Tenants at a rate equal to or greater than the ratio of Restricted Units to
market rate units.”40 However, OA Oaks would not be prohibited from leasing
36 PX 15, at 1. 37 Id. at 2. 38 Id. at 3. 39 Id. 40 Id.
9 Restricted Units to non-Qualifying Tenants when less than 36 Restricted Units are
leased as long as any vacant units are first offered to Qualifying Tenants.41 The
Restricted Units must “be fully integrated into the community and shall not be
substantially different in external or internal appearance and fit-out from market rate
units.”42
The Zoning Commission voted against the proposed zoning change 3-2, and
the minutes of the November 29, 2018 meeting note that is “equivalent to
disapproval” of the Application.43
D. Sussex County Council Proceedings and the Ordinance
In between the Zoning Commission’s initial hearing on the Application and
its disapproval, on November 13, 2018, the Council held a meeting where it
considered the proposed ordinance implementing the rezoning (the “Proposed
Ordinance”).44 It was noted that the Council had received almost two hundred letters
in opposition to the rezoning and two letters in support.45 Most of the letters in
opposition “referenced concerns with traffic, character of the area, noise from the
proposed use, lighting from the proposed building, concerns with storm water
management and drainage and wildlife impacts.”46 An attorney representing OA
41 Id. 42 Id. 43 Id. at 5. 44 PX 3; PX 12. 45 PX 3, at 4:7–4:10. 46 Id. at 4:11–4:17.
10 Oaks made a presentation to the Council and the Plaintiffs’ counsel in this Action
also made a presentation.47 Numerous opponents to the Proposed Ordinance—
including many Plaintiffs in this Action—spoke at the meeting.48
At the end of the meeting, Councilman Cole, Vice President of the Council,
remarked on a letter from the Delaware Department of Transportation (“DelDOT”)
that estimated the project “would generate more than 50 vehicle trips per weekly
peak hour or 500 vehicle trips per day, and would be considered to have a Minor
impact to the local area roadways.”49 The letter recommended that OA Oaks be
required to perform a Traffic Impact Study (“TIS”) for the project but also stated
that per DelDOT’s Development Coordination Manual: “where a TIS is required
only because the volume warrants are met, and the projected trip generation will be
less than 200 vehicle trips per a weekly peak hour and less than 2,000 vehicle trips
per day, DelDOT may permit the developer to pay an Area-Wide Study Fee of $10
per daily trip in lieu of doing a TIS.”50 DelDOT stated that it would permit OA Oaks
to pay an Area-Wide Study Fee of $12,020 “if the County were agreeable,” while
noting that payment of such fee “does not relieve a developer from having to make
or participate in off-site improvements.”51 Noting the offer for OA Oaks to pay the
47 Id. at 94:6–124:15. 48 Id. at 124:19–156:16. 49 Id. at 157:13–158:1; PX 13, at 1. 50 PX 13, at 1. 51 Id. at 1–2.
11 Area-Wide Study Free in lieu of a TIS, Councilman Cole asked: “[a]re we agreeing
to these? I never knew we were in the process of that” and remarked: “I just don’t
understand that.”52 Councilman Cole asked Ms. Cornwell, the Sussex County
Planning & Zoning Director, to get a clarification from the DelDOT representative
who authored the letter.53
The Council met again on December 11, 2018—after the Zoning
Commission’s disapproval—in order to consider whether to approve the Proposed
Ordinance.54 Proposed findings of fact, which were ultimately incorporated into the
Ordinance (as defined below) as the Council’s findings of fact, were read into the
record.55 The findings of fact include:
• The Land Use Classification per the Comprehensive Plan is in the ESDA, which is a Growth Area, and that according to the Comprehensive Plan, “a wide range of housing types can be appropriate, including multi-family units”56
• The development is “intended to create modern, safe, affordable and fair housing options for the residents in the area” and that Sussex County “faces a severe shortage of affordable rental units”57
52 PX 3 at 157:20–158:1. Mr. Cole also stated: “Because I don’t know. We don’t agree or disagree. We are not even part of it, I don’t think, when it comes to them paying a fee in lieu of a study; at least I never knew we were.” Id. at 158:8–158:11. 53 Id. at 158:5–158:6. 54 PX 4. 55 Id. at 3:14. 56 PX 16, at 5, 8. It also noted that the property remains in a growth area under a 2018 Comprehensive Plan. Id. at 5. 57 Id. at 5.
12 • That the 2018 update to the Comprehensive Plan states that “the housing vision is to ensure the provision of decent, safe, affordable and fair housing opportunities to improve communities and quality [of] life of residents of Sussex County” and that “most housing on the eastern side of the County is new and often unaffordable to low income families, seasonal employees, entry level workers, or recent college graduates”58
• The site “is in close proximity to many services, markets, and employment opportunities available in the coastal resort area where there is a lack of rental houses”59
• The project will maintain approximately 10 acres of open space— roughly two-thirds of the parcel—there would be a 20-foot buffer along the boundary of the site, and 96% of the woodlands would be preserved60
• That the units would “create a housing option for lower and moderate income residents” and that 36 of the units would be designated as workforce housing units61
• “With the conditions and stipulations placed upon it, the RPC designation is appropriate, since it allows the creation of a superior environment through design ingenuity while protecting existing and future uses”62
• The development is in accordance with Sussex County policy to “[e]ncourage the creation of a full range of housing choices,” “[e]ncourage the production of affordable rental units,” “[a]ssure that rental units are dispersed throughout the County,” and “[e]ncourage
58 Id. at 6. 59 Id. at 7, 9. 60 Id. at 7. 61 Id. at 8. 62 Id. at 9.
13 development in Growth Areas as defined within the County’s most current Comprehensive Plan and Areas of Opportunity as defined by the Delaware State Housing Authority to include a minimum percentage of affordable rental units on public water and sewer systems.”63
Additionally, a condition was added to the Proposed Ordinance subsequent to
the prior Council meeting relating to penalties for the Restricted Units.64 That
condition reads:
In the event that more than 142 of the units are rented at Market Rate because fewer than 36 units are leased to Qualified Tenants (the ‘Excess Market Rate Units’), [OA Oaks] or owner of the project shall be required to pay to Sussex County the monthly market rent collected from any Excess Market Rate Units. Any such funds collected by Sussex County shall be used and administered for housing purposes by the Sussex County Office of Community Development and Housing.65
At the November 13 meeting Councilman Burton had asked pointed questions about
enforcement of the affordable housing element of the project.66 OA Oaks’
representative proposed a fine for any Restricted Units rented at market rates “equal
to the money we’re bringing in on the market rents relative to the money that we
would have been bringing in on the discounted units . . . .”67 However, the penalty
in the enacted Ordinance (as defined below) is not the spread between the market
rent and the discounted rent—it is the entire amount of rent received for any Excess
63 Id. 64 DX L., ¶ 3. 65 PX 16, at 3. 66 PX 3, at 75:7–75:11. 67 Id. at 76:5–76:8.
14 Market Rent Units. Councilman Burton has submitted a sworn statement that “[i]t
was at [his] request, based on [his] questioning of the applicant at the public hearing,
that a financial penalty be added as one of the conditions to the rezoning. The actual
wording of the condition was drafted by County staff.”68
The Proposed Ordinance also included a deed restriction limiting the density
of the Property to AR-1 if the Property was not built to the zoning density specified.
The deed restriction, per the Ordinance (as defined below), reads:
On the 11th day of December, 2018, the Sussex County Council rezoned this 14.84 acre parcel to an HR-1/RPC for the specific purpose of developing a 178-unit apartment development as depicted on the RPC Preliminary Site Plan submitted as part of CZ #1858. In the event the RPC is not developed and is declared null and void by Sussex County pursuant to §99-9B or §99-40A of the Sussex County Code, which are incorporated into §115-218 of the Zoning Code regarding RPCs by reference, then the permitted density of this 14.84 acre parcel shall not exceed 2.178 units per acre, representing the density prior to the approval of CZ #1858. This restriction shall not be amended nor modified without the approval of the Sussex County Council.69
At the December 11, 2018 meeting, after a spirited discussion, by a 3-2 vote—with
Councilmen Artlett, Burton, and Vincent voting in favor—the Council approved the
Proposed Ordinance and rezoning with the findings of fact discussed herein
throughout.70
68 DX L, ¶ 3. 69 PX 16, at 4. 70 PX 4, at 37:14; PX 16.
15 E. Procedural History
Ordinance 2621 (the “Ordinance”) was enacted on December 11, 2018.71 On
February 1, 2019 the Plaintiffs filed their original complaint in this Action.72 On
March 12, 2019 the Plaintiffs filed their amended complaint (the “Amended
Complaint”).73 Count I of the Amended Complaint asks for a Permanent Injunction
under various theories discussed in detail in Section II, infra—the Amended
Complaint asks that the Defendants be enjoined from taking any further
development action based on the Application and Ordinance.74 Count II of the
Amended Complaint asks for a declaratory judgment that the Council’s approval of
CZ #1858 was “arbitrary, capricious, and illegal” and that this Court “should declare
the approval of the rezoning application and the Council’s Ordinance void and of no
force or effect.”75 The Plaintiffs moved for Summary Judgment on May 16, 2019
and the Defendants cross-moved for Summary Judgment on June 17, 2019.76 I heard
Oral Argument on the Cross-Motions on December 18, 2019, at the conclusion of
which I asked the Plaintiffs to submit a supplemental memoranda and offered the
Defendants the right to respond.77 The final supplemental memorandum was
71 PX 16. 72 Verified Compl., D.I. 1. 73 Am. Compl. 74 Id. ¶ 65. 75 Id. ¶ 69. 76 Pls.’ Mot. for Summ. J, D.I. 14; Defs.’ OA Oaks, LLC’s and Anthony Crivella’s Cross-Mot. for Summ. J., D.I. 28. 77 Oral Arg. Tr., D.I. 40 (“Oral Arg. Tr.”), at 63:18–64:12.
16 submitted on January 2, 2020 and I considered the matter submitted for decision on
that date.78
II. ANALYSIS
The parties have submitted Cross-Motions for Summary Judgment. To
prevail on their Motion, “each party must show that there is ‘no genuine issue as to
any material fact’ and that it is ‘entitled to judgment as a matter of law.’”79 “Where
the parties have filed cross motions for summary judgment and have not presented
argument to the Court that there is an issue of fact material to the disposition of either
motion, the Court shall deem the motions to be the equivalent of a stipulation for
decision on the merits based on the record submitted with the motions.”80 However,
a court must deny summary judgment if a material fact dispute exists and the moving
party bears the burden of showing there is no material question of fact.81 “If the
movant puts in the record facts which, if undenied, entitle him to summary judgment,
the burden shifts to the defending party to dispute the facts by affidavit or proof of
similar weight.”82 “Summary judgment will not be granted when the record
reasonably indicates that a material fact is in dispute or ‘if it seems desirable to
78 Letter, D.I. 41. 79 Comet Sys., Inc. S’holders’ Agent v. MIVA, Inc., 980 A.2d 1024, 1029 (Del. Ch. 2008) (quoting Ch. Ct. R. 56(c)). 80 Ch. Ct. R. 56(h). 81 Comet Sys., 980 A.2d at 1029. 82 Id. (quoting Tanzer v. Int’l Gen. Indus., Inc., 402 A.2d 382, 385 (Del. Ch. 1979)).
17 inquire more thoroughly into the facts in order to clarify the application of law to the
circumstances.’”83
The Plaintiffs in this Action challenge the change of zone of the Property from
A-1 to HR-1 – RPC. The only residential use permitted in AR-1 zoned land is
“[d]etached single-family dwellings on individual lots.”84 Subject to conditions,
HR-1 zoning permits multifamily dwellings, townhouses, rooming, boarding, and
lodging houses, as well as hotels, motels or motor lodges, as well as lesser uses.85
The RPC overlay permits clustering of dwellings beyond what would be permitted
otherwise.86
“Zoning is a legislative action presumed to be valid unless it is clearly shown
to be arbitrary and capricious because it is not reasonably related to the public health,
safety, or welfare.”87 A party challenging a rezoning decision has the burden of
rebutting such presumption of validity and of showing the action was arbitrary and
capricious.88 “The Court’s role in reviewing a zoning decision is limited to a review
of the record to ascertain whether the decision is supported by substantial evidence,
or whether it is in any way arbitrary, capricious, or an abuse of discretion.”89 “If the
83 Id. (quoting Ebersole v. Lowengrub, 180 A.2d 467, 470 (Del. 1962)). 84 Sussex Cty. C. § 115-20. 85 Id. § 115-45. 86 See id. Ch. 115, Art. XVI. 87 Concerned Citizens of Cedar Neck, Inc. v. Sussex Cty. Council, 1998 WL 671235, at *4 (Del. Ch. Aug. 14, 1998). 88 Id. at *5. 89 Id.
18 reasonableness of the zoning change . . . is ‘fairly debatable’, the judgment of the
legislative body must prevail; and it thereupon becomes the duty of the courts to
affirm even though there may be disagreement as to the wisdom of the change.”90
Here, the Plaintiffs have challenged the Council’s adoption of the Ordinance
under four different legal theories: (1) that the Ordinance is inconsistent with and
contrary to the Comprehensive Plan, (2) that the adoption of the Ordinance was
“arbitrary and capricious,” (3) that the zoning change here constituted contract
zoning between the Council and OA Oaks, and (4) that the rezoning is spot zoning
and is thus invalid.91 Below, I analyze each theory, in turn.
A. The Rezoning is Consistent with the Comprehensive Plan
9 Del. C. Ch. 69 mandates the adoption of a comprehensive plan by Sussex
County.92 The same chapter permits Sussex County to regulate land use—but the
power “may only be exercised to adopt or amend regulations that are in accordance
with the approved, adopted comprehensive development plan.”93 Zoning
90 Willdel Realty, Inc. v. New Castle Cty., 281 A.2d 612, 614 (Del. 1971). 91 Pls.’ Opening Br. 92 See 9 Del. C. § 6953(a)(2) (“The County shall have power and responsibility . . . (2) to adopt and amend comprehensive plans, or elements or portions thereof, to guide its future development and growth.”). 93 Green v. Cty. Council of Sussex Cty., 508 A.2d 882, 889 (Del. Ch. 1986), aff’d, 516 A.2d 480 (Del. 1986) (internal citations and quotation marks omitted); see 9 Del. C. § 6904(a) (“Regulations adopted by the county government, pursuant to the provisions of this subchapter, shall be in accordance with the approved comprehensive development plan and shall be designated and adopted for the purpose of promoting the health, safety, morale, convenience, order, prosperity or welfare of the present and future inhabitants of Sussex County . . . .”).
19 regulations adopted pursuant to the delegation of power in 9 Del. C. Ch. 69 must be
“consistent with or in accordance with the particular scheme portrayed in the adopted
comprehensive development plan.”94 Here, therefore, I must examine the record in
light of the Comprehensive Plan, and in light of the presumption of validity of the
Ordinance. If the Council’s determination that the rezoning here accords with the
Comprehensive Plan is supported by substantial evidence, even if its decision is
reasonably debatable, I must sustain the Ordinance. If, on the other hand I determine
that substantial evidence is lacking to support the Council’s determination “after
reviewing the record and the substance of the adopted plan itself,” I must find the
Ordinance void.95
The pertinent determination is whether the Ordinance is inconsistent with the
Comprehensive Plan or that it does not serve the goals of the Comprehensive Plan.96
In Glassco v. County Council of Sussex County, Chancellor Allen emphasized that a
comprehensive plan is a “planning document” and that it is unreasonable to
“interpret a planning document as one would interpret a statute or regulation.”97
“Trade-offs between the various goals of managing development are contemplated
by, and therefore consistent with, the [Comprehensive] Plan.”98 Therefore, in order
94 Green, 508 A.2d at 890. 95 Id. at 890–91. 96 Concerned Citizens of Cedar Neck, Inc. v. Sussex Cty. Council, 1998 WL 671235, at *5 (Del. Ch. Aug. 14, 1998). 97 Glassco v. Cty. Council of Sussex Cty., 1993 WL 50287, at *8 (Del. Ch. Feb. 19, 1993). 98 Id. at *6.
20 for the Plaintiffs here to establish an inconsistency between the Ordinance and the
Comprehensive Plan, the Plaintiffs “must show that the rezoning does not serve the
goals of the plan in that it fails to strike a reasonable balance between these various
goals. In this setting a balance is reasonable if it represents a conclusion supported
by substantial evidence.”99 Upon review, I find that the Council’s determination of
consistency between the Ordinance and the Comprehensive Plan is based on
substantial evidence.
To begin, the Plaintiffs have argued that the Council improperly relied upon
the 2018 Update to the Comprehensive Plan, which had not yet been enacted at the
time the Ordinance was adopted.100 9 Del. C. § 6959(c) mandates that “[a]ny
application for a development permit filed or submitted prior to adoption or
amendment under this subchapter of a comprehensive plan or element thereof shall
be processed under the comprehensive plan, ordinances, standards and procedures
existing at the time of such application.”101 There is no dispute that the 2018 Update
did not take effect until April 1, 2019—after the adoption of the Ordinance—and
that, consequently, the Ordinance must be consistent with the 2008 Comprehensive
Plan (defined above as the “Comprehensive Plan”) in order to be valid. However,
99 Id. 100 The Plaintiffs argue that the Council “erroneously relied upon the recommendations of an unapproved 2018 Plan while disregarding all of the . . . recommendations of the current Comprehensive Plan . . . .” Pls.’ Opening Br., at 47. 101 9 Del. C. § 6959(c).
21 there is nothing disabling in the Council’s citation to the 2018 Update to the
Comprehensive Plan in the Ordinance.102 My task is to determine whether
substantial evidence supports consistency with the 2008 Comprehensive Plan.103
As I interpret their briefing, the Plaintiffs essentially offer three discrete
alleged inconsistencies between the zoning change and the Comprehensive Plan that,
in their view, render the Ordinance inconsistent with the Comprehensive Plan. The
Plaintiffs argue that: (1) the rezoning is inconsistent with the “purpose” of High
Density Residential Districts as defined in the Sussex County Code § 115-44, (2) the
approved density is inconsistent with the maximum density for Environmentally
Sensitive Developing Areas (ESDAs) permitted by the Comprehensive Plan, and (3)
that the Council did not apply appropriate scrutiny as they allege is required because
the Property is in an Investment Level 3 Area. I analyze each, and whether
consequently an inconsistency exists with the Comprehensive Plan, below.
1. There is Substantial Evidence that the Property is an “Appropriate Area” for HR-1 Zoning
The Plaintiffs first argue that the character of the Property is inconsistent with
the purpose of HR-1 zoning, as defined in the Sussex County Code, and instead is
consistent with the purpose of AR-1 zoning, which was the pre-Ordinance zoning of
102 See PX 16, at 6. 103 See Green v. Cty. Council of Sussex Cty., 508 A.2d 882, 890–91 (Del. Ch. 1986), aff’d, 516 A.2d 480 (Del. 1986).
22 the Property. The Plaintiffs contend the change of zone must be consistent with the
purpose laid out in §115-44 of the Sussex County Code, because “the provisions of
the Sussex County Zoning Ordinance are . . . regulations enacted to implement
elements of the Comprehensive Plan.”104 Thus, per Plaintiffs, an inconsistency with
a “purpose” provided in the Sussex County Code is also an inconsistency with the
Comprehensive Plan. Assuming (without deciding) that this assertion is correct, and
that a rezoning that conflicts with the “purpose” of another ordinance is void, I
conclude that the Plaintiffs nonetheless have failed to show such conflict. Per Sussex
County Code § 115-44 “purpose” of HR-1 districts is to:
[P]ermit variety in housing types and provide for residential densities appropriate for areas which are or will be served by public sanitary sewer and water systems and which are well-located with respect to major thoroughfares, shopping facilities and centers of employment.105
The Plaintiffs argue that Opponents of the Ordinance presented evidence that
“clearly indicates that the proposed site is proximate to woodlands, natural areas and
the marshlands and Federal wetland areas,” and that there are no “shopping facilities
or centers of employments . . . in the vicinity of the rural site.”106
104 Pls.’ Opening Br., at 41. 105 Sussex Cty. C. § 115-44. 106 Pls.’ Opening Br., at 41. I also note that while the Plaintiffs do not argue that Route 20, on which the Property is located, is not a “major thoroughfare,” they point out that no public transportation services exist on Zion Church Road. Id. at 40–41; see PX 18. However, nowhere does the Sussex County Code nor the Comprehensive Plan require that a road have public transportation to be a major thoroughfare.
23 The Plaintiffs contend that the Ordinance was also not in compliance with the
“purpose” provision of AR-1 zoning, because the pre-Ordinance zoning status of the
property was consistent with the “purpose” of AR-1 zoning:
[T]o provide for a full range of agricultural activities and to protect agricultural lands, as one of the county’s most valuable natural resources, from the depreciating effect of objectionable, hazardous and unsightly uses. They should also protect established agricultural operations and activities. These districts are also intended for protection of watersheds, water resources, forest areas and scenic values and, at the same time, to provide for low-density single-family residential development, together with such churches, recreational facilities and accessory uses as may be necessary or are normally compatible with residential surroundings. The AR regulations seek to prevent untimely scattering of more-dense urban uses, which should be confined to areas planned for efficient extension of public services.107
The AR-1 status, in the Plaintiffs’ argument, is proper due to the characteristics of
the surrounding area, and to deviate from such status is in itself inconsistent with the
Comprehensive Plan.
Contrary to the Plaintiffs’ assertions, I find that the Council could rationally
conclude that the Property was an appropriate location for HR-1 zoning, consistent
with Sussex County Code §§115-19, 44, because the Ordinance’s findings contain
substantial evidence supporting such conclusion. To begin, the Council’s findings
explicitly contradict the Plaintiffs’ assertions on the character of the area: “Council
found that the site is in close proximity to many services, markets and employment
107 Sussex Cty. C. § 115-19.
24 opportunities available in the coastal resort area where there is a lack of rental houses
. . . .”108 The Plaintiffs argue that there is no public transportation in the area, but
that is not part of the “purpose” of HR-1 zoning. Further, the Plaintiffs do not contest
that the development will be served by public sanitary sewer and water systems and
the Council found that “[t]he County Engineering Department has indicated that
adequate wastewater capacity is available for the project as an HR-RPC. Central
water will also be provided.”109
In fact, the Council specifically found that “[t]he proposed development
creates residential housing . . . in an area served by County sewer and Central water
which is near major roads, shopping and centers of employment consistent with the
purpose of the HR Zoning District.”110 The Plaintiffs argue that the area’s rural
character is incompatible with HR development. That is their sincere opinion, and
is rational, if debatable. But stating that opinion is insufficient to the Plaintiffs’
purpose here. It is the Plaintiffs’ burden to challenge the Council’s conclusion as
not supported by substantial evidence—it is insufficient for the Plaintiffs to merely
disagree with the characterization of the area. The Council’s finding that the
Property is near centers of employment is supported by its further finding that
eastern Sussex County is “a tourism hub and relies on workers in the service and
108 PX 16, at 7. 109 Id. at 8. 110 Id.
25 retail industry.”111 On proximity to both employment and shopping centers, the
Delaware State Housing Authority’s comments in the PLUS Comment Letter
support the Council’s conclusion: “[t]his site is in close proximity to the many
services, markets, and employment opportunities available in the coastal resort
area.”112 The Plaintiffs argue that the Property is not “well-located” with respect to
shopping areas and employment, and is thus inconsistent with § 115-44 of the Sussex
County Code. The Council’s determination that the Property was “well-located”
with respect to employment and shopping was supported by substantial evidence,
and I have no basis to disregard that finding. I find the Council’s conclusion that
rezoning was consistent with the Code was reasonable, and consequently consistent
with the Comprehensive Plan.
2. The Approved Density is Consistent with the Comprehensive Plan
The Comprehensive Plan Future Land Use Map identifies the Property as
within an Environmentally Sensitive Developing Area (ESDA).113 Sussex County
Code § 115-94.3 implements the ESDA designation by identifying “all lands
designated as the ‘Environmentally Sensitive Developing Area’” in the
Comprehensive Plan as the Environmentally Sensitive Development District.114
111 Id. at 6. 112 DX H, at 15. 113 PX 10. 114 Sussex Cty. C. § 115-194.3(A)
26 That Section further specifies that “the maximum density shall be the allowable
density of the underlying zoning district for developments using a central water and
wastewater collection and treatment system.”115 The Plaintiffs argue that the density
of 11.99 units per acre approved for the Property in the Ordinance is inconsistent
with purported density restrictions in the Comprehensive Plan.116
The Plaintiffs, in alleging that the rezoning is inconsistent with the
Comprehensive Plan, point to the following the definition of Environmentally
Sensitive Growth Areas: “[t]hese are areas around the inland bays, where 2 units
per acre should be the based density with the option to go to four units per acre using
the Density Bonus/Open Space program noted above.”117 There is no dispute that
the Density Bonus/Open Space program was not used in the rezoning to boost the
density of the Property. The Plaintiffs also reference Table 8 of the Comprehensive
Plan, which is entitled “Recommended Densities and Uses” and lists
“Environmentally Sensitive Developing Area” under the heading of “Low to
Medium Density”, which does not include HR-1 zoning as an “Applicable Zoning
District.”118 The Plaintiffs argue that the Comprehensive Plan’s text and Table 8
“when read together, indicate that the Application’s proposed density is grossly in
115 Id. § 115-194.3(C)(3) 116 See PX 16, at 9. 117 PX 11, at 1-2. I note that the page numbers in the Comprehensive Plan have the number format #-#, and the hyphen does not indicate a page range. 118 PX 19, at 3-21. This PX is likewise from the Comprehensive Plan.
27 excess of the [Comprehensive] Plan’s regulations for the Environmentally Sensitive
Developing Areas.”119 In other words, they argue that no property in an ESDA can
exceed two (or in circumstances not pertinent here, four) units per acre.
It is, I note, disputable the extent to which the density of the Property
permitted in the Ordinance is inconsistent at all with the Comprehensive Plan. The
Defendants point out that the Comprehensive Plan states that in Environmentally
Sensitive Growth Areas “2 units per acre should be the base density” and that
“[m]ost of the Environmentally Sensitive Developing Areas should continue to
allow 2 homes per acre. The option should exist to go up to 4 units per acre if the
developer uses optional density bonuses.”120 Likewise, Table 8, cited to by the
Plaintiffs, is entitled “Recommended Densities and Uses.”121 The Defendants argue
that “Should” and “Recommended,” as used here, are not words of compulsion.
Plaintiffs’ counsel at Oral Argument strenuously disagreed, on grammatical and
textual grounds.122 However, even giving the Plaintiffs the benefit of their reading
119 Pls.’ Opening Br., at 44. 120 PX 11, at 1-2, 3-16 (emphasis added). 121 PX 19, at 3-21 (emphasis added). 122 Oral Arg. Tr., at 8:16–8:24 (“And I emphasize the word ‘should’ is used there, as did Mr. Forsten. Mr. Forsten’s brief suggests that ‘should’ is not ‘shall.’ But ‘should’ is the past tense of ‘shall.’ And shall ordinarily implies duty or obligation, as does should. That’s a Black’s Law Dictionary definition. And as you know, the first rule of the statutory construction is to use ordinary meanings of words. ‘Should’ implies an obligation or a duty.”). I note that “shall” and “should” are auxiliary verbs, that “shall” implies future behavior, and that “should” (as shall’s past tense) functions as an indication of future obligation or certainty from the perspective of the past: thus, “I know once I am a judge I shall have to write footnotes” versus “I knew once I was a judge I should have to write footnotes.” But in common usage, I also note, shall, not should, is the
28 of the Comprehensive Plan, because the Comprehensive Plan is a “planning
document,” I am not to interpret it “as [I] would interpret a statute or regulation.”123
The Comprehensive Plan contemplates “trade-offs between the various goals of
managing development” and in order to invalidate the Ordinance, the Plaintiffs must
demonstrate that the rezoning “fails to strike a reasonable balance between these
various goals.”124 It is not enough to show that a rezoning conflicts with a single
goal if it reasonably promotes the various goals of the Comprehensive Plan. Thus,
even if a restriction of 2 to 4 units per acre density and the exclusion of H-1 zoning
on Table 8 for ESDAs are clearly-stated goals of the Comprehensive Plan, the
rezoning may still be consistent with the Comprehensive Plans if it strikes a
reasonable balance between these density restrictions and other goals for ESDAs
expressed in the Comprehensive Plan.
Notably, the Comprehensive Plan states that the Environmentally Sensitive
Developing Area designation “recognizes two characteristics of these areas. First,
these regions are among the most desirable locations in Sussex County for new
housing . . . Second, these regions contain ecologically important wetlands and other
coastal lands that help absorb floodwaters and provided extensive habitat for native
imperative: “among the factors that should be considered” is less imperative than “among the factors that shall be considered.” 123 Glassco v. Cty. Council of Sussex Cty., 1993 WL 50287, at *8 (Del. Ch. Feb. 19, 1993). 124 Id. at *6.
29 flora and fauna.”125 “The challenge” for ESDAs, notes the Comprehensive Plan, is
“to safeguard genuine natural areas and mitigate roadway congestion without stifling
the tourism and real estate markets that: a) provide many jobs; b) creates business
for local entrepreneurs; and c) help keep local tax rates reasonable.”126 Consistent
with Glassco’s directive than a rezoning will be inconsistent with a Comprehensive
Plan only where the rezoning fails to strike a reasonable balance between competing
goals, the Comprehensive Plan’s own language outlining the goals for ESDAs is
written in terms of a balance, between economically beneficial development, on one
side, and ecological preservation on the other.
The Comprehensive Plan states that ESDAs can “accommodate development
provided special environmental concerns are addressed.”127 A “range of housing
types should be permitted” including single-family homes, townhouses and multi-
family units.128 The Comprehensive Plan continues: “[c]areful mixtures of homes
with light commercial and institutional uses can be appropriate to provide
convenient services and to allow people to work close to home. Major new industrial
uses are not proposed in these areas.”129 On density, beyond what the Plaintiffs have
quoted, the Comprehensive Plan states that “[s]maller lots and flexibility in
125 PX 11, at 3-15. 126 Id. 127 Id. at 3-16. 128 Id. 129 Id.
30 dimensional standards should be allowed if the developer uses a cluster option that
results in permanent preservation of a substantial percentage of the tract.”130
Furthermore, “[c]entral water and sewer facilities are strongly encouraged. If central
utilities are not possible, permitted densities should be limited to 2 units per acre.”131
Here, notably, the Council considered that central water and sewer are available,
wetlands and woodlands will be protected, and that the ESDA designation
contemplates multi-family housing. It noted that two-thirds of the parcel would
remain open space.
In addition to goals and considerations specific to ESDAs, the Comprehensive
Plan lists “important goals” on which “Sussex County’s future land use policies are
based”:
• Direct development to areas that have community services or can secure them cost effectively
• Conserve the County’s agricultural economy by promoting farming and preserving agricultural land values
• Protect critical natural resources, such as the inland bays and others, by guarding against over-development and permanently preserving selected lands
• Encouraging tourism and other responsible commercial industrial job providers to locate and invest in the County
• Expand affordable housing opportunities, particularly in areas near job centers
130 Id. 131 Id.
31 • Ensure that new developments incorporate preserved usable open space and other best practices in subdivision design
• Make Sussex County’s growth and conservation policies clear to relevant Delaware State agencies, neighboring counties and Sussex County’s incorporated municipalities132 These goals, while not specific to ESDAs, are necessarily part of any zoning
consideration implicating ESDAs, because the Council must determine whether the
rezoning of the ESDA is consistent not only with the goals of ESDAs, but also with
the overarching goals of the Comprehensive Plan. A review of the findings of fact
made by the Council shows that they specifically considered, and presumably
balanced, these goals.
The Ordinance notes a finding that of the approximately 4.9 forested acres on
the site only .18 acres would be removed and 96% of the woodlands would be
preserved.133 10 acres of open space will be maintained, and the plan “includes large
wooded buffers on both sides of the site.”134 Moreover, the Council found that there
are 2.12 acres of non-tidal wetlands located at the rear of the Property and that the
development plan provides for a minimum 40-foot buffer along the wetland line.135
Further, the Council found that “there are no known historical or endangered species
132 Id. at 3-7–3-8 (listing the “important goals”). 133 PX 16, at 7. 134 Id. at 9. 135 Id. at 7.
32 on the site.”136 The Council found that while taking these safeguards to protect the
environment, the development will provide for “housing opportunity for the
workforce” and that “without an adequate supply of affordable rental housing in
close proximity to employment and town centers, the County’s workforce must
commute a great distance for work which has a negative effect on the environment
and transportation . . . .”137
Moreover, the density guidelines for ESDAs in the Comprehensive Plan
explicitly permit multi-family housing (such as is contemplated here), and state that
“[s]maller lots and flexibility in dimensional standards should be allowed if the
developer uses a cluster option that results in permanent preservation of a substantial
percentage of the tract.”138 The Council found that the RPC designation (permitting
clustering) is “appropriate, since it allows the creation of a superior environment
through design ingenuity while protecting existing and future uses.”139 The Council
also found that adequate wastewater capacity exists and central water is provided in
accordance with the Comprehensive Plan’s emphasis on central water and sewer as
a condition for moving beyond a 2 unit per acre density.140
136 Id. 137 Id. at 5–6. 138 PX 11, at 3-16. 139 PX 16, at 9. 140 See PX 11, at 3-16.
33 Beyond recognizing and accounting for the balance required in the
Comprehensive Plan for ESDAs, many of the Council’s findings touch on the more
general “important goals” for Sussex County future land use. The Council found
that the Property “is near major roads, shopping and centers of employment,” and
Comprehensive Plan has a goal of “direct[ing] development to areas that have
community services.”141 The Council’s findings regarding the tract preservation and
buffers cited to above relate to the goals of “[p]rotect[ing] critical natural resources”,
and “[e]nsur[ing] that new developments incorporate preserved usable open space
and other best practices in subdivision design.”142 The Council had before it
evidence indicating that the project would “[e]ncourag[e] tourism” by providing
workforce housing in eastern Sussex County, which is “a tourism hub and relies on
workers in the service and retail industry.”143 The Council noted the need for
affordable housing in the area, consistent with the Comprehensive Plan’s stated goal
of “[e]xpand[ing] affordable housing opportunities, particularly in areas near job
centers.”144
In conclusion, the Comprehensive Plan is a planning document in which
trade-offs are contemplated and the Ordinance may only be held as inconsistent with
141 PX 16, at 8; PX 11, at 3-7. 142 PX 11, at 3-7–3-8. 143 Id. at 3-8; PX 16, at 6. 144 PX 11, at 3-8.
34 the Comprehensive Plan where it “fails to strike a reasonable balance between these
various goals.”145 I find that the 11.99 units per acre density approved by the Council
in the Ordinance was not inconsistent with the Comprehensive Plan because the
evidence before the Council was sufficient for it to find the Ordinance to be a
reasonable balance between the competing goals of the Plan—specifically with
regard to ESDAs and generally with regarding to the overarching goals of the
Comprehensive Plan. In other words, the Council’s decision to authorize the density
was supported by substantial evidence. 146
3. The Plaintiffs Have Failed to Articulate What “Special Scrutiny” Would Require Beyond the Council’s Actions Here
Finally, the Plaintiffs argue that the Council did not properly consider the
Application considering that the Property is in an Investment Level 3 Area.147 I
confess to not fully comprehending this argument. The Comprehensive Plan
incorporates a scheme of four Levels of Investment from the “Delaware Strategies
145 Glassco v. Cty. Council of Sussex Cty., 1993 WL 50287, at *6 (Del. Ch. Feb. 19, 1993). 146 I note that in their supplemental memorandum, the Plaintiffs point to 9 Del. C. § 6956(g)(1), which states that “[t]he plan shall include standards to be followed in the control and distribution of population densities and building and structure intensities . . . [and] [e]ach land use category shall be defined in terms of the types of uses included and standards for the density or intensity of use.” See Letter, D.I. 39. Per the Plaintiffs, this renders the Ordinance inconsistent with the Comprehensive Plan. To the extent this argument was not waived, that section does not convert the two-to-four units per acre standard from precatory to mandatory, but merely requires that the Comprehensive Plan have such standards and that they are defined in certain terms. That language does not alter the requirement that compliance with the Comprehensive Plan must be analyzed in light of whether the rezoning fails to strike a reasonable balance between the various goals of the Comprehensive Plan. See Glassco, 1993 WL 50287, at *6. 147 See PX 16, at 5.
35 for State Policies and Spending” which “clarify the State’s policies and priorities for
the expenditure of State funds on infrastructure.”148 The Plaintiffs cite the following
language regarding Investment Level 3:
In Sussex County’s case, much of the Environmentally Sensitive Developing Area is designated as Level 3. This designation acknowledges that these areas are part of the County’s future growth zone. However, this designation also suggests that special scrutiny should be applied to spending decisions and development proposals within these areas to ensure these activities are consistent with State and local development and preservation policies.149
In line with this language, the Plaintiffs “contend that the Council did not apply
‘special scrutiny’ on deciding to rezone [the Property].”150 The Plaintiffs further
state that “neither the Council’s oral deliberations nor the Findings in [the
Ordinance] evidence a balancing test of the regulations and guidelines of the Plan or
the [a]pplication of ‘special scrutiny’ to determine if the proposed development was
consistent with the County’s development policies.”151
Notwithstanding the Plaintiffs’ citation of the language above, the Plaintiffs
have offered no case-law, nor even a suggestion as to how I should review the
Ordinance and the record to evaluate compliance with the Comprehensive Plan’s
“suggest[ion] that special scrutiny should be applied” to lands designated as
148 PX 11, at 3-12. 149 Id. at 3-13. 150 Pls.’ Opening Br., at 45. 151 Id.
36 Investment Level 3. The Plaintiffs fail to identify State spending or projects required
by the zoning change. The language here is precatory. There is simply no basis to
challenge the Ordinance based on the “special scrutiny” provision to which the
Plaintiffs cite.
B. The Council’s Actions Were Not Arbitrary and Capricious
Even if the Ordinance is compatible with the Comprehensive Plan, argue the
Plaintiffs, it must nonetheless be struck down because the Council’s actions were
“arbitrary and capricious.” Our Supreme Court has stated that “[t]he decision of a
County Council on a rezoning ordinance is presumed to be valid unless it is clearly
shown to be arbitrary and capricious.”152 The Plaintiffs have the burden to rebut this
presumption and of demonstrating clearly that the action is arbitrary and
capricious.153 “The role of the court in reviewing a zoning decision is narrow and
focused, with the purpose being ‘to determine whether [Council’s] acts are supported
by a ‘record of substantial evidence’ and whether its ultimate determination is
arbitrary and capricious.”154
A zoning decision will be deemed arbitrary and capricious “where it is the
product of ‘an unreasoned, irrational or unfair process.’”155 In Save Our County,
152 Barley Mill, LLC v. Save Our Cty., Inc., 89 A.3d 51, 60 (Del. 2014) (citing Tate v. Miles, 503 A.2d 187, 191 (Del. 1986); Willdel Realty, Inc. v. New Castle Cty., 281 A.2d 612, 614 (Del. 1971)). 153 TD Rehoboth LLC v. Sussex Cty. Council, 2017 WL 3528391, at *6 (Del. Ch. Aug. 11, 2017). 154 Id. (quoting Save Our Cty., Inc. v. New Castle Cty., 2013 WL 2664187, at *9 (Del. Ch. June 11, 2013), aff’d sub nom., Barley Mill, 89 A.3d 51)). 155 Id. (quoting Save Our Cty., 2013 WL 2664187, at *9).
37 Inc. v. New Castle County,156 this Court offered several ways in which a legislative
act of the Council can be found arbitrary and capricious:
For example, the action can be whimsical or fickle or not done according to reason. This Court may find an action arbitrary [] if it was unconsidered or taken without consideration of and in disregard of the facts and circumstances of the case. The [] Council must also act rationally and fairly apply its zoning code and regulations and not in an arbitrary fashion that subjects some property owners to unwritten, subjective restrictions that the Council is not willing to impose on similarly situated property owners.157
Consistent with the deference afforded to the Council’s legislative determinations,
the court “must focus on the decision made by Council, as expressed by its members,
when determining whether the bases for that decision can be discerned from the
record and whether it was ‘arbitrary and capricious.’”158 In reviewing the record to
determine if the rezoning is arbitrary and capricious, “it is enough that Council states
its reasons with sufficient clarity that the court is not left to guess why the decision
was made and is able to make the requisite determination that the decision was not
the product of arbitrary or capricious reasoning.”159
The Plaintiffs have offered what boils down to three reasons why the
Ordinance was arbitrary and capricious. First, the Plaintiffs argue that the workforce
housing element was not part of Sussex County’s existing workforce housing
156 2013 WL 2664187. 157 Id. at *9 (internal citations, quotation marks, and ellipses omitted). 158 TD Rehoboth, 2017 WL 3528391, at *6. 159 Id. at *7.
38 program and approval of the Ordinance based on these separately negotiated
workforce housing conditions must therefore be arbitrary and capricious. The
Plaintiffs also argue that the Council ignored the recommendations of its Planning
Director, the Zoning Commission, and CD&H. Finally, the Plaintiffs contend that
the three councilmembers voting in favor did not adequately address the
requirements of 9 Del. C. § 6904. I address each argument below.
1. Approval Based on the Workforce Housing Element Was Not Arbitrary and Capricious
The Plaintiffs contend that the Ordinance would not have been passed without
the workforce housing conditions and that, because the workforce housing in the
Ordinance was not part of Sussex County’s existing Sussex County Rental Program
(the “SCRP”), reliance on workforce housing to justify passing the Ordinance was
“arbitrary and capricious.”160 The Plaintiffs cite Councilman Arlett’s belief that
Sussex County has a “moral obligation” to provide affordable housing and
Councilman Burton’s “passion for the workforce/affordable housing issue.”161 In
the Plaintiffs’ view, the Council’s rezoning decision “was based upon perceived
moral obligations and upon a belief that the County’s affordable housing legislation
160 See Sussex Cty. C. Ch. 72. 161 See Pls.’ Opening Br., at 48–49.
39 was ‘not working,’” and that the Council should have revised the SCRP in order to
permit the HR-1 – RPC zoning designation granted in the Ordinance.162
Before turning to the substantive argument, I note that Plaintiffs have placed
into the record two items: a Cape Gazette article detailing an affordable housing
town hall that Councilman Burton attended163 and a picture of an “Artlett for Senate”
sign on the Property.164 Plaintiffs, I assume, wish me to void the vote in favor of the
Ordinance because of the self-interest of two Councilmen, without the vote of whom
the Ordinance would not have passed. Plaintiffs cry “bias” against Mr. Burton
because OA Oaks’ spokesperson also attended that affordable housing town hall,
and thus Mr. Burton has a “bias toward approval of a proposal that includes private
affordable housing.”165 As for Mr. Artlett the Plaintiffs note: “Mr. Artlett’s vote
may have been unduly influenced by the existence of an ‘Artlett for Senate’ political
sign upon the [Property].”166 The Plaintiffs offer no other evidence in their attempt
to tar two members of the Sussex County Council with voting bias. The Plaintiffs’
counsel attempts to distance himself from the Artlett calumny, thus: “Plaintiffs have
directed the undersigned attorney to express their strong concern that Mr. Artlett’s
vote may have been unduly influenced . . . .”167 I find that neither item, without
162 Id. at 52. 163 PX 20. 164 PX 21. 165 Pls.’ Opening Br., at 51. 166 Id. at 49. 167 Id.
40 more, is sufficient to infer bias on the part of Messrs. Burton and Artlett. Quite the
contrary. The suggestions of public corruption on such threadbare assertions I find
frivolous and invidious. I turn, then, to the allegations that the Council’s actions
were arbitrary and capricious.
The Council’s findings provide ample support for approving the Ordinance in
reliance on the affordable housing element. The Council specifically found that the
County had not received any applications for SCRP since amendments to the
program in 2016.168 This supports the conclusion, expressed by Councilman Vincent
that “we have a program in the County that we’ve had for years that has not worked.
I think we have to try something that hopefully will work.”169 The Council found
that the 36 Restricted Units to be offered in the development here would create
housing opportunities for low and moderate income Sussex County residents who
qualify for workforce housing.170
The Plaintiffs point out, correctly, that the Council approved a workforce
housing scheme outside of the SCRP, but fail to explain how that should compel a
finding that the Council’s actions were arbitrary and capricious. The rezoning
decision was not “unconsidered or taken without consideration of and in disregard
168 PX 16, at 6. 169 PX 4, at 37. 170 PX 16, at 9.
41 of the facts and circumstances of the case.”171 The Council found that “Sussex
County rents had inflated far beyond the ability of an average wage earner to pay.”172
The Council approved the workforce housing scheme in the Ordinance in an attempt
to remedy this problem and the record suggests that they had reason to believe it
would do so. The attempt to remedy an identified problem through a creative
exercise of the Council’s zoning powers does not render the Ordinance arbitrary and
capricious. The Plaintiffs may wish that the Council provided for workforce housing
through the SCRP exclusively, and had not rezoned the Property. Certainly, the
Council’s actions represent a policy with which citizens and property owners may
strongly disagree, as the Plaintiffs do here. But that is not the analysis I must employ.
Considering the deference I must afford the Council’s rezoning decision, the
Council’s decision to approve the workforce housing element of the Ordinance
outside of the established SCRP was based on evidence of record, considered by the
Council members in a reasoned process.173 It was therefore not arbitrary or
capricious.
171 Save Our Cty., Inc. v. New Castle Cty., 2013 WL 2664187, at *9 (Del. Ch. June 11, 2013), aff’d sub nom., Barley Mill, LLC v. Save Our Cty., 89 A.3d 51 (Del. 2014)) (internal quotation marks omitted). 172 PX 16, at 6. 173 See Barley Mill, 89 A.3d at 60 (Del. 2014).
42 2. The Council Did Not Arbitrarily or Capriciously Ignore Recommendations
The Plaintiffs argue that the Council arbitrarily and capriciously ignored the
advice and recommendations of CD&H, the Planning & Zoning Director, and the
Zoning Commission.
The letter to the Zoning Commission from CD&H stated that its target range
for low-to-moderate income is 30%–80% of Area Median Income (“AMI”); the
Restricted Units here are available to those earning up to 70% of AMI.174 CD&H
also stated that the workforce housing program in the Ordinance is not included in
SCRP.175 Finally, CD&H stated that it viewed the Application as “solely a land-use
decision” because it was not part of SCRP.176 CD&H does not have the authority to
veto a zoning change, nor did it attempt to do so here.177 The Ordinance does not
reflect some of the recommendations made by CD&H, but that does bear on whether
the Council’s actions are arbitrary or capricious. The latter contention must be
analyzed by reference to the record, the Council’s findings of fact and the stated
174 PX 6, at 1. 175 Id. 176 Id.. 177 See Sussex Cty. C. Ch. 72 (concerning CD&H’s authority); Sussex Cty. C. § 115-216(A) (“The County Council may from time to time amend, supplement or change, by ordinance, the boundaries of the districts or the regulations herein established. Any such amendment may be initiated by resolution of the County Council or by motion of the Planning and Zoning Commission or by petition of any property owner addressed to the County Council.”).
43 reasons for council members’ votes, an issue I address elsewhere in this
Memorandum Opinion.
In any event, the Council did not ignore CD&H. CD&H reviewed the
conditions on the Restricted Units and proposed new language pertaining to
examination by an independent certified public accountant.178 The Council did not
ignore this recommendation; this language was ultimately incorporated into the
Ordinance.179
The Plaintiffs also argue that the Council ignored the Planning and Zoning
Director’s statement that the change of zone would be “inconsistent with area zoning
and uses.”180 Again, the conclusions of Planning and Zoning, and its director, are
not binding on the Council, which is the legislative body charged with addressing
rezoning applications.181 In any event, the Director’s staff analysis letter is not
unequivocal. It goes on the state that the change of zone “could be considered
consistent with land use.”182 The Council’s findings methodically discuss the zoning
of the land in the surrounding area and that the Property “is near major roads,
shopping and centers of employment consistent with the purpose of the HR Zoning
District.”183 At best, the record reflects a disagreement between the Planning and
178 PX 6, at 1–2. 179 PX 16, at 3. 180 PX 7, at 1. 181 Sussex Cty. C. § 115-216(A). 182 PX 7, at 1. 183 PX 16, at 5, 8.
44 Zoning Director and the Council. This Court noted in Hudson v. County Council of
Sussex County184:
Much of plaintiffs’ argument consists of contentions that there is evidence contradicting the findings of the Council. This Court, however, will not disturb the factual findings of a council even if it may deem the evidence supporting a contrary conclusion to be more compelling than that which the Council apparently accepted, provided that the reasonableness of the rezoning is fairly debatable. Rather, the question is whether the evidence in support of the Council’s decision, taken alone, is sufficient to sustain it. Such decisions are presumed to be correct.185
Here, there is sufficient evidence to support the Council’s findings that the proposed
development is consistent with surrounding land uses and thus consistent with the
HR Zoning District. The evidence included that the surrounding properties were
zoned GR, B-1, and C-1—in addition to AR-1—the zoning does not create an island
of non-AR-1 zoning in the middle of an AR-1 sea.186 The record reflects that the
Council was aware of and considered the surrounding area and determined that the
rezoning was appropriate—the Plaintiffs strongly disagree, but this does not bear on
the issue of whether the Ordinance was arbitrary and capricious.
The Plaintiffs also argue that the Council ignored the decision of the Zoning
Commission. As the analysis above makes clear, the decisions of the Zoning
184 1988 WL 15802 (Del. Ch. Feb. 24, 1988), aff’d, 549 A.2d 699 (Del. 1988). 185 Id. at *5 (internal citations and quotation marks omitted). 186 GR is “General Residential District,” B-1 is “Neighborhood Business District,” and C-1 is “General Commercial District.” Sussex Cty. C. § 115-5.
45 Commission are neither binding nor determinative of whether the Council acted
appropriately. A review of the Zoning Commission’s own minutes reflect no
reasoning for its disapproval of the Application.187 Thus, the Plaintiffs ask me to
strike down the Ordinance, supported by over five pages of factual findings, because
it ignored a non-binding recommendation without any record of the reasons for its
disapproval. As discussed throughout, the Council offered sufficient support for its
rezoning decision such that its decision was not arbitrary and capricious.
Disagreement with a 3-2 non-binding disapproval of the Application offers no
ground to determine that the Council’s actions were arbitrary and capricious.
3. The Council’s Findings Adequately Address the Requirements of 9 Del. C. § 6904
The Plaintiffs’ final argument that the adoption of the Ordinance was arbitrary
and capricious is that the three Councilmembers who voted to approved the
Ordinance did not adequately address 9 Del. C. § 6904(a) and (b). Those Sections
read:
(a) Regulations adopted by the county government, pursuant to the provisions of this subchapter, shall be in accordance with the approved comprehensive development plan and shall be designated and adopted for the purpose of promoting the health, safety, morale, convenience, order, prosperity or welfare of the present and future inhabitants of Sussex County, including, amongst other things, the lessening of congestion in the streets or roads or reducing the waste of excessive amounts of roads, securing safety from fire, flood, and other dangers, providing adequate light and air, preventing on the one hand excessive
187 See PX 15.
46 concentration of population and on the other hand excessive and wasteful scattering of population or settlement, promoting such distribution of population and such classification of land uses and distribution of land development and utilization as will tend to facilitate and provide adequate provisions for public requirements, transportation, water flowage, water supply, water and air pollution abatement, drainage, sanitation, educational opportunities, recreation, soil fertility, food supply, protection of the tax base, securing economy in governmental expenditures, fostering the State’s agricultural and other industries, and the protection of both urban and nonurban development.
(b) The regulations shall be made with reasonable consideration, among other things, of the character of the particular district involved, its peculiar suitability for particular uses, the conservation of property values and natural resources and the general and appropriate trend and character of land, building and population development.
The Plaintiffs contend that the Councilmembers did not consider the “the lessening
of congestion in the streets or roads” as required by 9 Del. C. §6904. They support
this argument by referring to the DelDOT letter discussed, supra, and Plaintiffs’
traffic-related objections to the Application. Additionally, the Plaintiffs cite the
concerns raised at the November 13, 2018 meeting by Councilman Cole regarding
the DelDOT letter discussing the option for the developer to pay a fee in lieu of a
TIS. To my mind, Councilman Cole’s concerns appear to address the procedure at
issue—the proposed practice of DelDOT to permit the developer to pay a fee with
the County’s approval, and thus avoid a TIS—rather than traffic issues specific to
the rezoning. Additionally, rather than ignoring the DelDOT letter, as the Plaintiffs
suggest, the Council found that “the applicant is permitted to pay an area-wide study
47 fee.”188 Additionally, DelDOT’s letter stated that the development “would be
considered to have a Minor impact to the local area roadways”—mitigating any
argument the Plaintiffs have that the development will cause untold traffic
problems.189
The record reflects that the Council gave due consideration to traffic effects
of the development. The Council found that DelDOT will require a Right-of-Way
dedication; that OA Oaks will be required to establish a 15-foot permanent easement;
that the site entrance will be required to conform to DelDOT standards and that
DelDOT reserves the right to require a Traffic Operational Analysis.190 The Council
also found that “road improvements were done to Route 54 as part of the Americana
Bayside development.”191 Route 54, I note, is the roadway that would carry traffic
to and from the businesses in the beach resort of Fenwick Island. None of this
evinces a disregard of §6904(a)’s directive that regulations be adopted to lessen
congestion. Of course, the statute directs regulations to consider a large number of
considerations, and not simply traffic, in any event.
The Plaintiffs note that the public comments to the rezoning were mainly
negative. The Plaintiffs certainly would have weighed these statements (in addition
188 PX 16, at 7. 189 PX 3, at 157:13–158:1; PX 13, at 1. 190 PX 16, at 7. 191 Id.; see PX 3, at 157:13–158:11; PX 13.
48 to the remainder of the record before the Council) differently from the way the
Council itself viewed them. This is of no moment so long as the actions of the
Council were not arbitrary. “The testimony of lay witnesses concerning the future
of the area to be affected by a proposed rezoning has probative value and may be
considered by the Legislative Body . . . the Council was free to weigh the credibility
and value of all the evidence before it, including the testimony of the non-expert
witnesses and the findings of its staff.”192 The question is whether the Ordinance “is
the product of ‘an unreasoned, irrational or unfair process,’” not whether the
Plaintiffs disagree with the Council regarding the traffic impact of the development,
whether the evidence could rationally support another outcome, or, for that matter,
whether the Plaintiffs could persuade the Court to prefer a different outcome.193 The
consideration by the Council of the impact of the Ordinance on traffic was not
arbitrary or capricious.
The Plaintiffs also argue that Councilman Burton did not address traffic issues
or any elements of 9 Del. C. § 6904, and that he has consequently not left a
reviewable record as required by Delaware law. However, the Ordinance states:
WHEREAS, on the 13th day of November 2018, a public hearing was held, after notice, before the County Council of Sussex County and the 192 Bayville Shore Dev. Corp. v. Cty. Council of Sussex Cty., 1992 WL 14957, at *3 (Del. Ch. Jan. 9, 1992) (internal citations omitted). 193 TD Rehoboth LLC v. Sussex Cty. Council, 2017 WL 3528391, at *6 (Del. Ch. Aug. 11, 2017) (quoting Save Our Cty., Inc. v. New Castle Cty., 2013 WL 2664187, at *9 (Del. Ch. June 11, 2013), aff’d sub nom., Barley Mill, LLC v. Save Our Cty., 89 A.3d 51 (Del. 2014)) (internal quotation marks omitted).
49 County Council of Sussex County has determined, based on the findings of facts, that said change of zone is in accordance with the Comprehensive Development Plan and promotes the health, safety, moral, convenience, order, prosperity and welfare of the present and future inhabitants of Sussex County.194
In approving the Ordinance, Burton “found that the Change of Zone was appropriate
legislative action based on the . . . Findings of Fact.”195 Plaintiffs’ argument is
foreclosed by Deskis v. County Council of Sussex County196:
The plaintiffs’ contention that each County Council member must articulate his or her individual reasons for voting for the Ordinance (over and above voting for the findings of fact) finds no basis in Delaware statutory or case law. The Council members specifically voted for those . . . findings of fact, which articulate why the County Council voted collectively for the Ordinance. Under Delaware law that is sufficient.197
Thus, the Council, including Councilman Burton, found that the change of zone
“promotes the health, safety, moral, convenience, order, prosperity and welfare of
the present and future inhabitants of Sussex County.”198 Contrary to the Plaintiffs’
assertions that Councilman Burton’s decision “reflected an arbitrary and capricious
decision-making process based exclusively upon Sussex County’s need for
provision of affordable housing,” Councilman Burton found that the Ordinance
194 PX 16, at 5. 195 Id. 196 2001 WL 1641338 (Del. Ch. Dec. 7, 2001). 197 Id. at *5. 198 PX 16, at 5.
50 conforms with 9 Del C. § 6904 in accordance with the findings of fact. Therefore,
Councilman Burton’s vote was not arbitrary and capricious.
C. The “Penalties” Provision is Not Contract Zoning
The Plaintiffs next argue that the “Penalties” provision associated with the
affordable housing element constitutes illegal “contract” zoning. That provision
reads:
In the event that more than 142 of the units are rented at Market Rate because fewer than 36 units are leased to Qualified Tenants (the ‘Excess Market Rate Units’), [OA Oaks] or owner of the project shall be required to pay to Sussex County the monthly market rent collected from any Excess Market Rate Units. Any such funds collected by Sussex County shall be used and administered for housing purposes by the Sussex County Office of Community Development and Housing.199
The Plaintiffs contend that this provision is “a private agreement between the
Applicant and the County, offered in consideration for approval of the Application
and accepted by [the] Council” constituting contract zoning.200
“Contract zoning occurs when a landowner and a zoning authority agree to
alter zoning to the landowner’s benefit in exchange for other promises.”201 The
necessary element of an impermissible contract zoning is a bargained-for
commitment to rezone, outside the public zoning legislative process.202 “[C]ontracts
199 Id. at 3. 200 Pls.’ Opening Br., at 57. 201 Port Penn Hunting Lodge Ass’n v. Meyer, 2019 WL 2077600, at *7 (Del. Ch. May 9, 2019), aff’d, 222 A.3d 1044 (Del. 2019). 202 Id.
51 between a municipality and a developer to rezone in accordance with mutual
promises are . . . per se invalid in Delaware” because “[i]t is elementary that the
legislative function may not be surrendered or curtailed by bargain or its exercise
controlled by the considerations which enter into the law of contracts.”203 In other
words, the Council may not sell the application of its legislative function; it may not
bargain away the power delegated to it from the legislature to impose zoning in the
public interest, in return for other consideration.
The prohibition against contract zoning is illuminated by Hartman v.
Buckson.204 In that case a developer’s application for a subdivision of 88 townhouses
on 9.671 acres was rejected as non-compliant with the town’s zoning ordinance.205
When the developer threatened to sue regarding the zoning ordinance, the Town
Council of Camden agreed to a settlement that gave the developer the right to build
68 homes on 8.193 acres.206 In other words, the Town ceded its power to zone in
the public interest for a benefit—withdrawal by the developer of a threatened legal
action. This Court found that the settlement was invalid because the Town Council
“may not, under the guise of compromise, impair a public duty owed by it” by
“bargain[ing] away part of its zoning power to a private citizen. [The town] simply
203 Id. (quoting Hartman v. Buckson, 467 A.2d 694, 700-01 (Del. Ch. 1983)). 204 467 A.2d 694 (Del. Ch. 1983). 205 Id. at 696. 206 Id.
52 does not possess the authority to normally contract such authority. . . . [T]he
contractual agreement is deemed an invalid ultra vires exercise of municipal
authority.”207
The “Penalties” clause at issue here is not contract zoning under Delaware law
because there is simply no “bilateral agreement committing the zoning authority to
a legally binding promise.”208 It is not contract zoning, because there was no
contract, just the rezoning itself. The “Penalties” clause supports one of many
conditions in the Ordinance, and relates to the affordable housing element of the
development. The Council did not bargain away its future use of the police power.209
Instead, the “Penalties” clause simply requires OA Oaks to pay Sussex County the
rent collected from any Excess Market Rate Units. As subsequent case-law makes
clear, the gravamen of contract zoning is the bargained-for concession to rezone,
outside the public rezoning process.210
207 Port Penn, 2019 WL 2077600, at *8 (quoting Hartman, 467 A.2d at 699–700). 208 See Wilmington Sixth Dist. Cmty. Comm. v. Pettinaro Enters., 1988 WL 116496, at *4 (Del. Ch. Oct. 27, 1988). 209 See 3 Rathkopf’s The Law of Zoning and Planning § 44:11 (4th ed.) (“Today, illegal contract zoning is likely to be found only where there is an express bilateral agreement that bargains away the local government’s future use of the police power.”). 210 See Port Penn, 2019 WL 2077600, at *8 (“The pleadings before me do not indicate that the County rezoned any land as part of the settlement agreements, which is a necessary element of . . . contract zoning”); Pettinaro Enters. v. Stango, 1992 WL 187625, at *5 n.9 (Del. Ch. July 24, 1992) (stating that a binding agreement prior to official consideration of the rezoning is a requirement of illegal contract zoning).
53 Here, there was no bilateral bargain. The owner and developer sought a
rezoning of the Property, and the Council held public hearings, created a record, and
granted the rezoning. It is true that the Council has imposed conditions on the
rezoning, including that OA Oaks rent a portion of its units to lower-income
individuals, which was among the reasons that the Council approved the rezoning.
It is also true that Council put in place a penalty as an incentive to OA Oaks’
compliance with the condition. Missing, however, is a bargained-for promise by the
Council to rezone: “there is no evidence that the Council bound itself, prior to the
official consideration of the request, to grant the re-zoning.”211 Without such a pre-
deliberation contract, there is no illegal contract zoning. In fact, far from ceding its
future application of its authority, the Council provided that if the apartment
development were not constructed as contemplated, the zoning would revert to AR-
1.212
In the same ultra vires vein, the Plaintiffs also argue that the “Penalties” clause
“extends beyond the authority granted to the County by the General Assembly in 9
Del. C. § 6902, which zoning powers, however broadly defined, do not include
imposition of fines for business activities.”213 In support of this proposition, the
Plaintiffs cite scattered provisions of the Sussex County Code that do provide the
211 Pettinaro Enters., 1992 WL 187625, at *5 n.9. 212 PX 16, at 4. 213 Pls.’ Reply Br., D.I. 33 (“Pls.’ Reply Br.”), at 27.
54 Council with explicit authority to impose conditions.214 The Plaintiffs also argue
that the Application did not include a Conditional Use element pursuant to Article
XXIV of Chapter 115 the Sussex County Code, and even had the Application done
so, the Plaintiffs argue, the Council could have only regulated “location and site plan
aspects of the proposal,” not incentivize business practices on the Property.215
The Plaintiffs citation to Article XXIV of Chapter 115 the Sussex County
Code is inapposite, because that Article is to “provide for certain uses which cannot
be well adjusted to their environment in particular locations” including drive-in
theatres, borrow pits, livestock auction markets, cemeteries, crematoria, marinas,
yacht clubs, swimming clubs, tennis clubs, manufactured home parks, parks or
campgrounds.216 Nowhere does this Article limit conditions that the Council may
impose on an RPC development as an incentive for compliance with a permitted use.
The Plaintiffs’ citations to other Sections of the Sussex County Code likewise do not
pertain to this matter.
Contrary to Plaintiffs’ arguments, 9 Del. C. § 6902 implies the Council’s
power to impose conditions. It provides that “[t]he county government may . . .
regulate . . . the location and uses of buildings . . . .”217 Existing provisions of the
214 See id. at 27–28 (citing Sussex Cty. C. §§ 115-125, 115-218 E). 215 Id. at 28. 216 Sussex Cty. C. Ch. 115, Art. XXIV. 217 9 Del. C. § 6902.
55 Sussex County Code providing for financial penalties for violations of the Code
support this conclusion.218 The Plaintiffs have offered no contrary authority other
than to cite to Sections of the Sussex County Code specifically enabling the use of
conditions in particular circumstances. None of those authorities support the
Plaintiffs’ position that imposing a financial incentive to encourage compliance with
a condition to approval of a rezoning is outside of the Council’s powers pursuant to
9 Del. C. § 6902, and I find that the Council’s action in this regard was not ultra
vires.219
D. The Rezoning Was Not Spot Zoning
As what appears to me to be a final “Hail Mary,” the Plaintiffs argue that the
rezoning should be invalidated because it constitutes unconstitutional or
impermissible spot zoning. At common law, the maximum development of real
property was encouraged, and property owners’ rights to develop were limited only
by tort concepts such as nuisance and trespass. As zoning codes were adopted, states
and municipalities began to limit the use to which owners could put property, in the
interest of the perceived public good. However, regard for due process required that
218 See Sussex Cty. C. §§ 115-191.2, 115-191.7, 115-229. 219 I note that this argument departs from the main thrust of the Plaintiffs’ objections to the rezoning and the statements of objectors at the public hearings. None, so far as I am aware, were concerned with the mechanism for enforcement of the low-income housing component of the proposed development, though the Plaintiffs aver that they had “no opportunity to comment on the proposed ‘Penalty,’ as it was submitted after the public hearing and addressed by [the] Council immediately prior to their vote.” Pls.’ Opening Br., at 56.
56 the property owners be free, at least, from arbitrary or discriminatory seizures of
property rights. It is this concern that animates the requirement that rezoning
applications not be acted upon arbitrarily or capriciously, and, before the widespread
adoption of comprehensive development plans to guide zoning decisions, it
animated the prohibition against spot zoning, as well.
In McQuail v. Shell Oil Co.,220 the Delaware Supreme Court stated that spot
zoning is “generally defined as an attempt to wrench a small lot or a small area from
its environment and give it a new rating that disturbs the tenor of the community.
Normally, spot-zoning benefits a private interest and has no relation to the general
public interest.”221 This Court observed in Scarborough v. Mayor and Council of
Town of Cheswold222 that “[t]he hallmark of spot zoning is the extension of special
treatment, usually preferential, to the owner of a small parcel of land which differs
in no reasonable regard from that of his neighbors.”223 In evaluating whether a
rezoning alleged to be spot zoning is valid, several factors may be considered
including “whether the differently-zoned land was unfit for the uses allowed in the
surrounding lands or was inherently distinguishable from those lands” and “is
whether the land whose zone differs from neighboring land, or the neighboring land
220 183 A.2d 572 (1962). 221 Id. at 579 (internal citations omitted). 222 303 A.2d 701 (Del. Ch. 1973). 223 Id. at 705.
57 itself, is host to a nonconforming use.”224 Notably, my research indicates that spot
zoning has never been employed to invalidate a zoning ordinance in Delaware.225
Spot zoning is most likely to occur in the absence of a formally-adopted
comprehensive plan. In that case, rezoning decisions are essentially ad hoc, yet due
process requires that zoning decisions are consistent with some overarching plan or
design; otherwise, the rezoning represents an arbitrary exercise of power. Thus, our
Supreme Court in McQuail stated that “[t]he requirement that there be a plan is
satisfied if the change of zoning classification bears some reasonable relation to the
scheme of zoning adopted in the basic zoning code.”226
But post-McQuail, Delaware has imposed a Comprehensive Plan on Sussex
County, and I have found the rezoning here compatible with that plan.227 In such a
case, to my mind, the spot zoning prohibition is subsumed within the requirement
that the Council act consistently with the Comprehensive Plan. Such a reading
comports with the review of spot zoning claims in sister states. While spot zoning
224 Hudson v. Cty. Council of Sussex Cty., 1988 WL 15802, at *4 (Del. Ch. Feb. 24, 1988), aff’d, 549 A.2d 699 (Del. 1988). 225 Deibler v. Sea Gate Vill., 1983 WL 142507, at *2 (Del. Ch. Aug. 24, 1983). 226 McQuail, 183 A.2d at 578. 227 See Friends of the H. Fletcher Brown Mansion v. City of Wilmington, 2013 WL 4436607, at *10 n.101 (Del. Super. July 26, 2013), aff’d, 85 A.3d 88 (Del. 2014) (“In many states, a comprehensive plan is not a separate or distinct document. In these states, courts instead infer a plan from zoning rules. In 1962, but not today, Delaware was among these states, and in McQuail v. Shell Oil Co., the Supreme Court held that ‘[t]he requirement that there be a plan is satisfied if the change of zoning classification bears some reasonable relation to the scheme of zoning adopted in the basic Zoning Code.’ A plan is thus the spirit of zoning rules, and this relationship does not end just because local governments must now reduce their plans to writing under Delaware law.” (internal citations omitted)).
58 is defined differently across states, generally the term refers to a rezoning of a tract
of land that does not reasonably further the general welfare or that is not reasonably
consistent with the overarching comprehensive zoning plan.228 Likewise, many
states hold that zoning in accord with a comprehensive plan—that is, an inferred
scheme of zoning regulations, not a formally adopted plan—cannot be spot
zoning.229 In Green v. County Council of Sussex County,230 this Court held that to
comply with the Federal Constitution, a zoning regulation must be in accordance
with “a comprehensive plan,” i.e., “ascribable to or consistent with some rational
plan or purpose” and “it is this requirement that is violated when a zoning regulation
is struck down as impermissible ‘spot zoning.’”231 Green then continues that where
a formal comprehensive development plan has been adopted, such as in Delaware,
zoning regulations must not only be “ascribable to some rational scheme that seeks
to achieve the public welfare”—that is, “non-arbitrary” and consistent with a
228 3 Rathkopf’s The Law of Zoning and Planning § 41:2 (4th ed.). 229 Loh v. Town Plan & Zoning Comm’n of Town of Fairfield, 282 A.2d 894, 897 (Conn. 1971) (“Since the change of zone, as we have previously indicated, is in harmony with the comprehensive plan, it cannot be classified as spot zoning.”); Evans v. Teton Cty., 73 P.3d 84, 89 (Idaho 2003) (“A claim of ‘spot zoning’ is essentially an argument the change in zoning is not in accord with the comprehensive plan.”); Town of Juno Beach v. McLeod, 832 So. 2d 864, 867 (Fla. Dist. Ct. App. 2002) (citing S.W. Ranches Homeowners Ass’n v. Broward Cty., 502 So.2d 931, 935 (Fla. 4th DCA 1987 for the proposition that a “zoning change [was] not spot zoning because it was consistent with the purposes of the comprehensive plan.”); Walus v. Millington, 266 N.Y.S.2d 833, 839 (Sup. Ct. 1966), aff’d sub nom. Walus v. Gordon Realty Corp, 297 N.Y.S.2d 894 (N.Y. Sup. Ct. App. Div. 4th Department 1969) (“[i]f the change accords with a comprehensive plan, it is not spot zoning even though the amendment benefits a single plot . . . .”). 230 508 A.2d 882 (Del. Ch. 1986), aff’d, 516 A.2d 480 (Del. 1986). 231 Id. at 889.
59 comprehensive plan, per the above—but also “consistent with or in accordance with
the particular scheme portrayed in the adopted comprehensive development plan.”232
Green proceeded to review the zoning change solely under the more stringent
standard of compliance with the Sussex County Comprehensive Development Plan.
Thus, by stating that spot zoning occurs when zoning regulations are not
“ascribable to or consistent with some rational plan or purpose” Green defines spot
zoning for purposes of Delaware law as violating that lower standard of proof against
which zoning regulations are examined where a formal comprehensive plan has not
been enacted.233
Because Delaware law mandates the adoption of a formal comprehensive
development plan, it is unsurprising that McQuail’s “reasonable relation” standard
has fallen into desuetude; Green itself stated that McQuail’s standard was
“inapposite” when assessing conformity with a particular previously-adopted
plan.234 I conclude that, where a zoning change has been found to be consistent with
the particular adopted comprehensive plan and not arbitrary or capricious, it would
be redundant to subject such rezoning to additional spot zoning review. That is
because review under the particular comprehensive plan—under Green—is more
searching than the McQuail standard. Additionally, any potential daylight for a spot
232 Id. at 890. 233 Id. at 889–90. 234 Id. at 890.
60 zoning claim between the Green standard and a review under McQuail’s “reasonable
relation” standard is covered by a review of whether the rezoning is arbitrary or
capricious.235 Therefore, since the rezoning here is both consistent with a formally
adopted comprehensive plan and not arbitrary or capricious, it is not spot zoning
under Delaware law.
III. CONCLUSION
The Plaintiffs, via their steadfast opposition at public hearings, through their
pleadings, and by the arguments of their counsel, have consistently voiced their
opposition to this rezoning. It is clear that they sincerely wish to preserve the
environment and natural heritage of a beautiful area of Sussex County, and have, I
presume, understandable concerns for their property values. The Plaintiffs,
however, were afforded the opportunity to make their opposition known to the
legislative body with the authority to approve this rezoning. They did so. The
constraints on the Council are two-fold; legal, by which the County is bound to act
based upon a sufficient record, state the reasons for its action, and not act in a manner
that is violative of law or arbitrary and capricious; and political. I have examined
235 See id. at 889 (“Any regulation that discriminates, as zoning regulations inevitably do, must, in order to satisfy the equal protection clause of the federal constitution, be ascribable to or consistent with some rational plan or purpose. It is this requirement that is violated when a zoning regulation is struck down as impermissible ‘spot zoning.’”).
61 the record and determined that the Council acted in accord with the first constraint.
That is the limit of my authority here.
For the foregoing reasons, the Defendants’ Motion for Summary Judgment is
granted, and the Plaintiffs’ Motion for Summary Judgment is denied. The parties
should submit a form of order consistent with this Memorandum Opinion.
Related
Cite This Page — Counsel Stack
John J. Cain, Jr. v. Sussex County Council, Counsel Stack Legal Research, https://law.counselstack.com/opinion/john-j-cain-jr-v-sussex-county-council-delch-2020.