Opinion
C.A. No. 02A-11-006 SCD.
Submitted: July 11, 2003.
Decided: July 21, 2003.
Decision of Respondent's Motion to Dismiss — GRANTED
Amy Evans, Esquire, Law Office of Richard H. Cross, Jr. LLC, for Petitioners Donald E. Cave, Jr., James W. Brown, and John Mantakounas;
Scott G. Wilcox, Esquire, New Castle County Law Department, for Respondents New Castle, County Council;
Richard H. Morse, Esquire, and John E. Tracey, Esquire, Young Conaway Stargatt Taylor, LLP, for Respondents Churchmans Crossing, LLC and Leon N. Weiner Associates.
ORDER
For the reasons set forth in the Memorandum Opinion attached hereto, Respondent's Motion to Dismiss for lack of standing is — GRANTED.
IT IS SO ORDERED.
MEMORANDUM OPINION
the Petitioners have filed a Writ of Certiorari seeking review of a decision of New Castle County Council. This Court granted the Writ. Respondents filed a motion to dismiss which has been fully briefed and argued. I conclude that the motion must be Granted.
"the writ of certiorari is a writ of error. The writ lies from the Superior Court to inferior tribunal, such as a county council, to review proceedings that determine legal rights and are capable of legal error. The writ exists to review only errors of law, not errors of fact. The review is confined to the record, and the Court must not re-decide the merits of the case."
Mell v. New Castle County, 2003 WL 1919331, *8 (Del.Ch. April 11, 2003)( citing WOOLLEYs PRACTICE IN CIVIL ACTIONS, vol. 1, §§ 895-97).
Churchman's Meadows, a project by Leon M. Weiner, consists of approximately 33.16 acres of land located in White Clay Creek Hundred. It borders State Route 7 and is located southeast of 1-95, northeast of the Christiana Town Center, and west of the Christiana Mall and Road A.
An aerial view best illustrates the location and is attached hereto as Ex. A.
Petitioners own property near but not adjacent to Churchman's Meadows.
In 1997 a report was issued called the Churchmans Crossing Study. The study was undertaken to "develop a transportation/land use plan that supports the vision of Churchmans Crossing." One of the "New Roadway Connections Recommended for Future Consideration" was a bypass ("Bypass I") that would connect Route 273 through Route 7 to Road A, which borders the Christiana Mall. DelDOT has not granted any right-of-way based on the Bypass I recommendation.
Ex. B, Pet. Opening Br. at i.
Id. at 39.
On August 28, 2002, the General Manager of the New Castle County Land Use Department approved a Record Major Land Development Plan, known as the Churchman's Meadows Plan ("Plan"). Such approval means that the General Manager concluded that the Plan, which contemplates the construction of 145 houses on Churchman's Meadows, complied with the New Castle County Development Code. the Plan includes a bypass ("Bypass II) that connects Route 273 and Road A in a manner different than contemplated by the Churchmans Crossing Study. Bypass II appears to be advantageous to Churchman's Meadows and, to some degree, detrimental to Frank Acierno, owner of the parcel next to Churchman's Meadow known as Acierno Parcel B.
NEW CASTLE COUNTY UNIFIED DEVELOPMENT CODE § 40.31.114(B) ("U.D.C.")
Reference to Bypass I and Bypass II is strictly for ease of discussion in this opinion. This is not the nomenclature used by the parties.
An aerial view best illustrates the location and is attached hereto as Ex. B.
After a Land Use Committee meeting on September 3, 2002, DelDOT gave its approval to the Plan, including Bypass II.
On September 10, 2002, the Plan was reviewed at a New Castle County Council meeting. the Council heard a presentation by William J. Rhodunda, Jr., Esquire, on behalf of Acierno. In order to develop his land, Acierno would be responsible under either proposal for building part of a bypass. Mr. Rhodunda raised the question of whether the Churchman's Meadow Plan, particularly Bypass II, would comply with the U.D.C. § 40.21.111 (local circulation plan). Mr. Rhodunda also raised concerned that the Plan did not comply with
Ex. A, Resp't Answer Br.
He stated that Bypass I contemplated under the Churchmans Crossing Study clearly met this provision, as evidenced by a letter from County attorney Wendy Danner. This letter also said that any change in the Bypass's point of connection would be acceptable provided the change would work as well as the original. Mr. Rhodunda was not certain that the change in location contemplated under the Churchman's Meadow Plan would work as well as the original. Id. at 5-6.
U.D.C. § 40.20.230 (streets). In response, DelDOT Secretary Nathan Hayward III testified that the Plan, and Bypass II, did comply with U.D.C. § 40.21.111 and U.D.C. § 40.20.230.
He stated that the viability of Bypass II in the location proposed by the Plan was questionable considering the presence of wetlands in that area. Ex. A, Resp't Answer Br. at 7.
Secretary Hayward stated that Bypass II under the Plan was "consistent with this network of connector roads" in the Churchmans Crossing area. Id. at 14. This testimony was consistent with previous testimony at a Land Use Committee meeting by General Manager Charles Baker, who stated that the Bypass under the Plan was as effective as the bypass proposed under the Churchman's Crossing Study. Ex. B, Resp't Answer B.R. at 34.
Secretary Hayward testified that Bypass II was feasible and that the wetlands issue could be resolved by building a bridge, a method that has been used extensively throughout the state. Ex. A at 12, Resp't Answer Br.
There was also testimony by a local resident who opposed the Plan and another who supported it.
Id. at 22, 27.
At the end of the meeting a vote was taken; the Plan was approved by a vote of five to one with one abstention.
Id. at 3l.
The New Castle County Council's function in reviewing land use plans is fixed. When the Council receives a plan approved by the General Manager of the Department of Land Use ("Department"), it can approve the plan, table it no more than two times on two consecutive meetings, or send it back to the Department. In order to send it back to the Department, the Council must have specific questions regarding the plan's compliance with the U.D.C. and relevant regulations. If the Department reaffirms the plan, the Council must approve it unless further questions about the plan's compliance require that it be sent back to the Department. If the Department reaffirms compliance a second time, the Council must adopt it.
U.D.C. § 40.31.114(C)
The Respondents argue that Petitioners lack standing to challenge the Council's action. Standing can be granted by statute. Otherwise, a party must have an interest distinguishable from the public in general in order to obtain standing.
See Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 903-04 (Del. 1994).
Comm. of Merchants and Citizens Against Proposed Annexation, Inc. v. Longo, 669 A.2d 41, 44 (Del. 1995) (citing Stuart Kingston, Inc. v. Robinson, 596 A.2d 1378, 1382 (Del. 1991)).
In this case, there is no statutory grant of standing for Petitioners. In Oceanport Industries, Inc. v. Wilmington Stevedores, Inc., the statute at issue stated that "substantially affected" parties could challenge an environmental decision made by DNREC. The U.D.C., which Petitioners allege the Council neglected, does not contain any similar grant of standing. U.D.C. § 40.31.920 discusses enforcement, but it does not convey a right for nearby property owners to enforce the U.D.C. Enforcement is the responsibility of the General Manager or his or her designee, the County Attorney, or a Code Enforcement Officer. Furthermore, the remedies included in the same section include, inter alia, refusal to issue permits or certificates of occupancy or the issuance of fines. Similarly, 9 Del. C. § 2659 does not provide for cause of action. While 9 Del. C. § 2609(d) discusses private rights of actions, both § 2659 and § 2609(d) relate to zoning, which is not an issue in this case.
Oceanport Indus., Inc., 636 A.2d at 899 nn. 3-4.
U.D.C. § 40.31.920(A), § 40.31.920(B), § 40.31.920(C).
DEL. CODE ANN. tit. 9 Del. C. § 2659 (Supp. 2002).
Because there is no statutory grant of standing, Petitioners must show that their interest is distinguishable from the interest of the public in general. In Citizens for Smyrna-Clayton First, the Court of Chancery concluded that residents who lived nearby or adjacent to a proposed WalMart distribution center had no standing to challenge the town's approval of the site because they could not demonstrate that they had any greater interest in seeing Smyrna zoning ordinances enforced than other residents or property owners in the town of Smyrna. Similarly, in this case, Petitioners cannot demonstrate that their interest in seeing the New Castle County U.D.C. and its traffic management ordinances enforced is distinguishable from that of any other county resident or property owner.
Comm. of Merchants and Citizens Against Proposed Annexation, Inc, 669 A.2d at 44.
Citizens for Smyrna-Clayton First, 2002 WL 31926613, *5 (Del.Ch. 2002) (citing LeMay v. New Castle County, 1992 WL 101136 (Del.Ch. 1992), aff'd, 818 A.2d 970 (Del. 2003)).
General Motors Corp. v. New Castle County, 701 A.2d 819, 823-24 (Del. 1998) (describing standing as requiring 1) an injury-in-fact and 2) an interest within the zone of interests the ordinance seeks to protect. Petitioners fail the in injury-in-fact test because they merely assert, rather than demonstrate via affidavits, that the Plan will result in additional traffic that will harm them); see also Oceanport Indus., Inc., 636 A.2d at 904-05.
Petitioners have also alleged due process violations. It is clear from the briefs and comments at oral argument that the due process argument is deficient. It is uncontested that New Castle County gave adequate notice of the hearing, allowed public comment, and made all documents pertinent to the decision available, although nobody sought the opportunity to examine them. The Petitioner's argument that Secretary Hayward had an obligation to make available for inspection materials beyond the Plan on which he based his opinion is without merit and finds no authority in the U.D.C.
The meeting was advertised in the News Journal, memos were sent to all residents within 300 feet of the property, and a sign was posted in a conspicuous location.
There being no error of law, the Petitioner's Writ of Certiorari is Dismissed.
IT IS SO ORDERED.