Justia Zoning, Planning & Land Use Opinion Summaries

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

New Cingular Wireless PCS (now known as "AT&T") filed an application with the Sussex County Board of Adjustment ("the Board") for a special use exception to construct a 100-foot telecommunications cell tower on a commercially zoned property located just outside of Bethany Beach. A special use exception was required before a cell tower may be erected within 500 feet of a residential zone. The Sea Pines Village Condominium Association of Owners, along with individual residents who lived near the proposed location opposed the application. The Board ultimately denied AT&T's application. On appeal to the Superior Court, the court acknowledged in its opinion that while this appeal was pending "Bethany voted unanimously to reject AT&T's request to use [Bethany's] water tower as an antenna location" and that "Bethany was in fact unwilling to negotiate with AT&T." The trial court did not explain its reasoning for refusing to allow a collocation on the Bethany water tower. The Superior Court affirmed based on the record presented. In its written decision denying AT&T's application, the Board concluded that AT&T "had not met its burden [under the Sussex County Code] of proving that the proposed use would not affect adversely the uses of adjacent and neighboring properties." The Superior Court explained AT&T's burden with similar language. But the Sussex County Code required a lesser burden, "special use exceptions shall be granted unless the Board finds such exceptions will not substantially affect adversely the uses of adjacent and neighboring property." AT&T argued that the Board's decision should have been reversed because the Board failed to apply the correct legal standard. Upon review, the Supreme Court agreed, and remanded the case for further proceedings. View "New Cingular Wireless PCS v. Sussex County Board of Adjustment" on Justia Law

The Board appealed from a Superior Court decision reversing the Board's denial of the area variance application of appellants. Appellants had purchased the property at issue, made renovations and improvements on the property, including adding a barbecue area and building a shed in the setback area. The Board denied the application on grounds that appellants did not satisfy the statutory requirements of title 9, section 6917 of the Delaware Code. The court held that the plain language of title 9, section 6917 precluded the Board from granting a variance where, as here, appellants created the exceptional practical difficulty. The court also held that the decision of the Board that the property was being reasonably utilized without the non-conforming structures was supported by substantial evidence and was free from legal error. Accordingly, the court reversed the decision of the Superior Court. View "The Board of Adjustment of Sussex County v. Verleysen & Kotowski" on Justia Law

Sussex County filed a complaint against DNREC asserting that it exceeded its constitutional and statutory authority in promulgating the PCS Regulations, which were promulgated in 2008 to effect DNREC's Pollution Control Strategy for the Inland Bays Watershed. At issue was the validity of Sections 4 and 5 of the PCS Regulations. The Superior Court held that Section 4, which established the water quality buffer, and the related stormwater control provisions of Section 5, constituted "zoning," and thus directly conflicted with the Sussex County Zoning Ordinance. The Superior Court held those portions of the PCS Regulations were void and ordered that they be stricken. The court concluded that DNREC's "no zoning" argument was contradicted by language in those portions of the PCS Regulations that were at issue. Therefore, the judgment of the Superior Court was affirmed. View "DE Dept. of Natural Resources & Environmental Control v. Sussex County, et. al." on Justia Law

This case arose when the Zoning Board of Adjustment (ZBA) granted three use variances to Ingleside to allow partial demolition and renovation of the H. Fletcher Brown Mansion for use as a thirty-five unit multi-family apartment building for senior citizens. Appellants raised three issues on appeal. The court concluded that the ZBA was not properly constituted and therefore, it was without authority to act. Consequently, there was no need to address the merits of appellants' other two arguments. The judgment of the Superior Court was reversed and the matter remanded for further proceedings. View "Friends of the H. Fletcher Brown Mansion, et al. v. The City of Wilmington, et al." on Justia Law