Tony Ashburn & Son, Inc. v. Kent County Regional Planning Commission

962 A.2d 235, 2008 Del. LEXIS 546, 2008 WL 5114981
CourtSupreme Court of Delaware
DecidedDecember 5, 2008
Docket68, 2008
StatusPublished
Cited by9 cases

This text of 962 A.2d 235 (Tony Ashburn & Son, Inc. v. Kent County Regional Planning Commission) is published on Counsel Stack Legal Research, covering Supreme Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Tony Ashburn & Son, Inc. v. Kent County Regional Planning Commission, 962 A.2d 235, 2008 Del. LEXIS 546, 2008 WL 5114981 (Del. 2008).

Opinions

JACOBS, Justice,

for the Majority:

Tony Ashburn & Son, Inc. (“Ashburn”), appeals from a Superior Court judgment affirming a decision of the Kent County Regional Planning Commission (“Commission”) denying Ashburn’s application for subdivision approval. On appeal, Ashburn argues that the Superior Court erroneously upheld the Commission’s decision, which was contrary to law and not based on substantial evidence. Because we conclude that the Commission acted contrary to law and reverse on that ground, we do not reach Ashburn’s alternative claim that the Commission’s decision lacked eviden-tiary support.

FACTUAL AND PROCEDURAL BACKGROUND2

Ashburn owns 254.33 +/- acres of land (the “property”) located in an unincorpo[237]*237rated area of Kent County, Delaware. On July 27, 2006, Ashburn filed an Application for Subdivision Plan Approval (“application”) 3 with the Kent County Department of Planning Services (the “Planning Office”) to subdivide the property in order to develop a single family residential subdivision (the “subdivision”). The property is zoned Agricultural Conservation (“AC”), which permits the development of single family houses at a density of up to one unit per acre. Ashburn’s proposed subdivision would consist of 214 lots with a density of .84 units per acre and would be served by an on-site water and septic system provided by private utilities. It is undisputed that Ashburn’s application complied with all applicable planning and zoning requirements.

On September 7, 2006 the Planning Office, having concluded that the application complied with the Kent County Comprehensive Plan and Zoning District Provisions, recommended approval of the application, subject to certain recommendations. On that same day, the Commission held a public hearing,4 at which Ashburn presented testimony that the proposed subdivision complied with State and County criteria for protecting the health, safety and welfare of Kent County residents. Several residents testified against the application, arguing that the subdivision was outside the so-called Growth Zone,5 and would cause the schools to become overcrowded and would unduly increase the traffic in the area.

The Commission solicited comments from various state agencies about the impact of Ashburn’s proposed development. That took place as part of the Preliminary Land Use Service process (“PLUS Review”).6 The Office of State Planning Coordination (“OSPC”) filed comments with the Commission, emphasizing that the proposed development was located in an “Investment Level 4” area, in which the State will only support agricultural preservation, natural resource protection, and continuation of the rural nature of that area. New development in an Investment Level 4 area is not supported. OSPC further claimed that development of Ash-burn’s site would be inappropriate, because the cost to the State of providing services in the area would be wasteful and inefficient, there being no existing plan to invest in infrastructure in the area aside from necessary maintenance.

Other state agencies made similar comments. The Department of Transportation (“DelDOT”) announced that the State planned to maintain only existing transportation in the area, and that DelDOT wished to avoid creating isolated areas that could not be effectively or efficiently served by public services. The Department of Natural Resources and Environmental Control (“DNREC”) took the position that granting Ashburn’s subdivision would interfere with DNREC’s preservation goals, because the subdivision would [238]*238sit atop a groundwater recharge area and create water drainage problems. The Department of Agriculture also voiced opposition to the plan, as did the Smyrna School District, which stated that it did not have the capacity to absorb the additional students who would move into new developments in Kent County.

On September 14, 2006, the Commission voted to deny Ashburn’s application, citing three reasons: (1) the infrastructure was not in place, (2) the property was outside the Growth Zone, and (3) the application would negatively affect the health, safety and welfare of the community. The Commission based its denial on the comments it had received from the PLUS Review and from the aforementioned state agencies.

On September 19, 2006, Ashburn appealed the Commission’s decision to the Kent County Levy Court.7 Before the Levy Court, the Commission argued that: (1) 9 Del. C. § 4961 8 required rejection of the application because of concerns voiced by the local school district regarding school capacity; (2) increased traffic on neighboring roads would create a safety hazard; and (3) the water supply in the area would be negatively impacted. After a hearing, the Levy Court upheld the Commission’s denial of Ashburn’s subdivision application, based on the opposition of the state agencies that had previously submitted comments on Ashburn’s application.

Ashburn then appealed to the Superior Court, claiming that as a matter of law the Commission lacked the power to reject a subdivision application that complied with all applicable Kent County Subdivision and Zoning Code requirements. Ashburn argued that: (1) the Commission exceeded its powers as a matter of law; (2) preliminary site plans that comply with all applicable subdivision code provisions are entitled to approval; and (3) the Commission’s reasons for denying Ashburn’s application were both inappropriate and inadequate to support the denial. Additionally, Ashburn argued that (4) the Levy Court erred in relying solely on 9 Del. C. § 49619 as the statutory basis for upholding the Commission’s decision.

The Superior Court concluded that the Commission is vested with discretion under both the Delaware and Kent County Codes to ensure that land development proceeds in a manner consistent with the Kent County Comprehensive Plan,10 the County Zoning Code, and the Delaware Code. The Superior Court concluded that a subdivision application that complies with the subdivision code is not automatically entitled to approval, and that the Commission has discretion to deny even a conforming application. Reviewing the Commission’s denial of Ashburn’s application [239]*239for abuse of discretion, the Superior Court concluded that the record before the Levy Court provided ample basis to support the Commission’s denial. Accordingly, the Court affirmed the decision of the Levy Court.

Ashburn timely appealed to this Court. On June 18, 2006, while this appeal was pending, Kent County introduced ordinances amending its County Code. Those amendments created specific, mandatory standards relating to traffic, schools, emergency services and water that must be satisfied in order for a subdivision plan to be approved. The ordinances relating to traffic and school capacity were adopted on March 27, 2007 with an effective date retroactive to the date of their introduction (June 13, 2006). Under these new ordinances, a subdivision plan similar to Ash-burn’s would no longer comply with the Kent County Code.

ANALYSIS

On appeal, Ashburn reiterates the claims of error it advanced to the Superior Court.

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Tony Ashburn & Son, Inc. v. Kent County Regional Planning Commission
962 A.2d 235 (Supreme Court of Delaware, 2008)

Cite This Page — Counsel Stack

Bluebook (online)
962 A.2d 235, 2008 Del. LEXIS 546, 2008 WL 5114981, Counsel Stack Legal Research, https://law.counselstack.com/opinion/tony-ashburn-son-inc-v-kent-county-regional-planning-commission-del-2008.