Justia Zoning, Planning & Land Use Opinion Summaries

Articles Posted in Delaware Supreme Court
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Under New Castle County, Delaware's Unified Development Code, heavy industrial uses were permitted as of right on land zoned for heavy industry or HI. On August 27, 2019, New Castle County Council adopted Ordinance 19-046 amending the Code, then stating that property owners with HI-zoned property had to obtain a special use permit from the County before expanding Heavy Industry use of their property. Croda, Inc. filed a complaint in the Court of Chancery to enjoin enforcement of Ordinance 19-046, claiming, among other things, that Ordinance 19-046 was invalid because the Ordinance title did not put Croda and the public on notice of the substance of the zoning amendment in violation of state and county law and federal due process guarantees. The Court of Chancery dismissed Croda’s state law claims as untimely under the state sixty-day statute of repose and rejected its constitutional claims because Croda did not have a vested right in a zoning category. On appeal to the Delaware Supreme Court, Croda claimed the Court of Chancery erred because the alleged lack of proper notice tolled the statute of repose, and it did not have to show a vested right to state a procedural due process claim. The Supreme Court affirmed the Court of Chancery’s judgment: the statute of repose was not subject to tolling. "And while our reasoning is different than that of the Court of Chancery, Croda’s procedural due process claim fails because those protections do not apply to the County’s legislative acts adopting the Ordinance." View "Croda Inc. v. New Castle County" on Justia Law

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Jack Lingo Asset Management (“Lingo”) owned and occupied property at 240 Rehoboth Avenue in Rehoboth Beach, Delaware. The second story only covered a portion of the first, leaving a flat roof over the rest of the ground floor. In 2018, Lingo wanted to convert the second floor from residential to office space. As part of this project, it sought permission from the City of Rehoboth Beach (the “City”) to build an unroofed, railed walkway extending from the second floor over the flat roof to a stairway leading down to Christian Street. The exit walkway would not be visible from the main thoroughfare. The City denied Lingo’s application, finding the railings surrounding the walkway would technically expand the Gross Floor Area of 240 Rehoboth Avenue under Section 270 of the City's Zoning Code. This expansion would, in turn, require Lingo to provide an additional parking spot, which it had no room to do. Lingo appealed the denial. The Board of Adjustment of the City of Rehoboth Beach affirmed in two decisions, and the Superior Court agreed. The Delaware Supreme Court reversed, finding that the Rehoboth Zoning Code in effect at the time of Lingo’s application did not clearly and unambiguously establish that the proposed egress structure would increase the Gross Floor Area of 240 Rehoboth Avenue. Applying settled canon that zoning ambiguities be construed in the property owner's favor, the Supreme Court vacated the Board's decision. View "Jack Lingo Asset Management, LLC v. Board of Adjustment of the City of Rehoboth Beach" on Justia Law

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Delmarsh, LLC, a real-estate company, owned six lots in Bowers, Delaware. The lots had long been designated as wetlands on the State Wetlands Map. The Department of Natural Resources and Environmental Control (“DNREC”) removed a portion of the lots from the Wetlands Map in 2013 at Delmarsh’s request. In June 2019, Delmarsh requested that DNREC designate the remaining portion of the lots as non-wetlands. DNREC denied the request, and Delmarsh appealed to the Environmental Appeals Board (“the Board”). The Board affirmed DNREC’s denial. Delmarsh appealed to the Superior Court, arguing that refusal to reclassify the lands as non-wetlands, constituted a taking. The Superior Court affirmed the Board’s decision. The Delaware Supreme Court affirmed: At the time DNREC turned down Delmarsh’s request to de-designate the remainder of the lots as wetlands, the lots were zoned C/A: Conservation–Agriculture. Instead of focusing on the economic impact of the de-designation on the lots as zoned at the time of DNREC’s decision, Delmarsh relied exclusively on the economic impact on the lots as later rezoned to R-1—single-family residential housing. “By its own admission, the rezoning to residential occurred after the denial of its DNREC application. Delmarsh did not offer any argument or evidence that DNREC’s refusal to redesignate the lots caused them to lose any value while they were zoned as C/A. In the absence of such evidence, the Superior Court held correctly that no taking occurred.” View "Delmarsh, LLC v. Environmental Appeals Board of the State of Delaware" on Justia Law

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McGinnis Auto & Mobile Home Salvage, LLC salvaged discarded and dilapidated mobile homes on its property in Kent County, Delaware. According to the Department of Natural Resources and Environmental Control (DNREC), a large and unsightly waste pile, possibly contaminated with asbestos, had accumulated over time. DNREC cited McGinnis for environmental violations and for operating a reclamation facility without a permit. DNREC gave McGinnis a chance to bring the property into compliance, but McGinnis failed to do so. DNREC responded by issuing a cease and desist order requiring McGinnis to remove the waste pile from the property in an environmentally responsible manner. McGinnis appealed the order to the Environmental Appeals Board, arguing that DNREC could order the illegal activity to stop, but could not order McGinnis to take affirmative action to remove the waste pile from the property. The EAB agreed with McGinnis, finding that the order exceeded the scope of its authority. The Superior Court affirmed the EAB’s decision, finding that DNREC did not have the authority under its cease and desist power to require McGinnis to remove the waste pile, direct how the waste had to be removed, or demand documentation. On appeal, DNREC contended that the EAB and Superior Court took too narrow of a view of DNREC’s cease and desist authority. The Delaware Supreme Court agreed: "it follows that the only way to cease and desist from the violation is to remove the contaminated debris from the site. ... the Secretary can require a violator to cease and desist from continuing the illegal storage of solid waste. If the violator ignores the Secretary’s order, Section 6005 provides the possible remedies for a violation of 'any order of the Secretary.' The Secretary may impose monetary penalties. The Secretary may seek injunctive relief in the Court of Chancery. And, in his discretion, the Secretary may opt for conciliation. None of the possible remedies is mandatory or inconsistent with the Secretary’s authority to enter a cease and desist order." View "DNREC v. McGinnis Auto & Mobile Home Salvage, LLC" on Justia Law

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The City of Lewes and its Historic Preservation Commission approved Ernest and Deborah Nepa’s plans to renovate a house in the historic district. The Nepas violated the conditions of the approvals by building a two story addition on the back of the house and increasing its already nonconforming setbacks from neighboring properties. After the City discovered the violations and issued a stop work order, the Nepas applied to the City’s board of adjustment for three area variances to complete the unauthorized addition; the board turned them down. The Nepas appealed the variance denials to the Superior Court, arguing that the City Code provision used by the board to evaluate their variance applications conflicted with a more lenient state law addressing municipal variances. The Superior Court agreed and reversed the board’s decision. On appeal, the City argued the Superior Court erred because the state statute relied on, 22 Del. C. 327(a)(3), only prohibited the City from loosening the state law requirements for granting a variance. The City was thus free to require stricter standards. The Delaware Supreme Court agreed with the City and reversed the Superior Court’s decision. “As long as the variance standards applied by the City of Lewes’ board of adjustment meet the minimum state statutory standards, nothing in the state statute prohibits the City, through its board of adjustment, from applying variance standards stricter than those set by the State.” View "City of Lewes & The Board of Adjustment v. Nepa" on Justia Law

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In this appeal, at issue before the Delaware Supreme Court was whether stipulated court orders agreed to in 2005 by a property owner and the Town of Cheswold prevented the Town from enacting new ordinances affecting the property. Applying res judicata, the Superior Court found that they did, and entered a judgment prohibiting the Town from enacting any ordinance impairing the property owner’s existing development rights. The Supreme Court reversed, holding that the 2005 stipulated orders did not prohibit the Town from enacting future ordinances affecting the property. "If the Town eventually adopts a new ordinance, any future litigation over the property owner’s vested rights should be resolved by applying the balancing test in In re 244.5 Acres of Land, 808 A.2d 753 (Del. 2002)." View "Town of Cheswold v. Central Delaware Business Park" on Justia Law

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In this appeal, Mary DiFebo argued that the Superior Court erred by dismissing her amended petition seeking review of a Board of Adjustment decision that granted a variance application for two land plots located near DiFebo's home to be subdivided into four flag lots. The Superior Court had two related reasons for dismissing the amended petition: (1) that DiFebo had not named the owners of the two properties that were the subject of the Board's proceeding within the thirty-day statute of limitations for commencing a petition challenging a Board decision, and for that reason alone she was foreclosed from proceeding; (2) alternatively, the court found that DiFebo had not met the requirements for relation back under Superior Court Civil Rule 15(c)(3). The Supreme Court concluded that the Superior Court correctly determined that DiFebo did not satisfy all of Rule 15(c)(3)'s requirements to have her amended petition relate back to her initial filing. Accordingly, the Supreme Court affirmed dismissal of DiFebo's amended petition. View "DiFebo v. Board of Adjustment of New Castle County, et al." on Justia Law

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Appellant John Nichols appealed a final Superior Court judgment affirming the order of the State Coastal Zone Industrial Board granting motions to dismiss filed by appellees Diamond State Generation Partners LLC and the Delaware Department of Natural Resources and Environmental Control in response to Nichols' appeal of the grant of a Coastal Zone industrial permit application. Nichols raised two claims on appeal: (1) the Board's vote on whether Nichols had standing to pursue the appeal failed due to the lack of a five-vote majority; and (2) that he possessed standing under the "any person aggrieved" standard of title 7, section 7007(b) of the Delaware Code, or, in the alternative, as a matter of common law. Upon review, the Supreme Court concluded both of Nichols' arguments lacked merit and therefore affirmed the Superior Court. View "Nichols v. State Coastal Zone Industrial Control Board, et al." on Justia Law

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The Supreme Court held that a trial court judge erred in finding that a state agency complied with the state's Real Property Acquisition Act before it moved to condemn petitioners' property. Accordingly, the trial court's judgment was reversed, the orders vacated and the case remanded with instructions to dismiss the condemnation action without prejudice. View "Lawson v. Department of Transportation" on Justia Law

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A group of Dewey Beach property owners appealed the dismissal of their lawsuit against the Town. They sued to challenge the town's authority to enter into what they characterized as a "private zoning arrangement" to violate certain longstanding zoning requirements. The Court of Chancery dismissed the complaint finding it was not filed within 60 days of the notice given following approval of the developer's record plan. Finding that the Court of Chancery lacked jurisdiction, the Supreme Court affirmed. View "Murray v. Town of Dewey Beach" on Justia Law