Opinion
C.A. No. 10A-03-003 (RBY).
Submitted: January 28, 2011.
Decided: April 20, 2011.
Upon Consideration of Plaintiff's Writ of Certiorari, DENIED.
Richard L. Abbott, Esq., Abbott Law Firm, Hockessin, Delaware for Plaintiffs.
William W. Pepper, Sr., Esq., Schmittinger Rodriguez, Dover, Delaware for The City of Dover.
R. Brandon Jones, Esq., and D. Barrett Edwards, IV, Esq., Hudson, Jones, Jaywork Fisher, LLC, Dover, Delaware for The Maple Dale Country Club, Inc.
Collins J. Seitz, Jr., and Max B. Walton, Esq., Connolly, Bove, Lodge Hutz, LLP, Wilmington, Delaware for The Maple Dale Country Club, Inc.
OPINION AND ORDER
SUMMARY
This action was initiated by Petitioners, Francis L. Donelly and Joe L. Pinson ("Petitioners"), pursuant to the filing of a writ of certiorari challenging the City of Dover Planning Commission's unanimous approval of the Preliminary Subdivision Plan for Villages of Maple Dale Senior Housing Community. The Respondents, Maple Dale and the City of Dover ("Respondents"), filed a Motion to Dismiss on the grounds that the thirty day common law statute of limitations for filing a Petition ran. This Court denied the Respondent's Motion to Dismiss in a July 21, 2010 Order. Before the Court now is the writ of certiorari. Because the lower tribunal did not exceed its jurisdiction, commit errors of law, or proceed irregularly the Plaintiff's Writ for Certiorari is DENIED.
FACTS
The pet itioners, Francis L. Donnelly ("Donnelly") and Joe L. Pinson ("Pinson") are nearby landowners to the development project that is being challenged in this action. Donnelly is the owner of a home situated on a 1.20 acre parcel of land located at 99 Pine Valley Road in Dover, Delaware. Pinson is the owner of a home located on a .97 acre parcel of land at 88 Pine Valley Road in Dover, Delaware. The subdivision in which they reside is known as the "Retreat," a low density residential community zoned R-10.
The respondent, the City of Dover is a municipal corporation of the State of Delaware created and empowered by a Charter issued to it by the General Assembly. Regarding municipal powers and duties, the City of Dover is governed by the provisions of Title 22 of the Delaware Code regarding municipal powers and duties.
77 Del. Laws, c.130.
The respondent, Maple Dale is a Delaware corporation, which is the owner of approximately 152.19 acres of land ("Project Site"). Maple Dale submitted a Planned Neighborhood Design Plan ("PND Plan") to the City of Dover. The Project Site includes the PND Plan, the golf course, pool, tennis courts, and related amenities. Maple Dale seeks to develop 13.7 acres of this Project Site into a senior citizen housing option community. The Senior Citizen Housing Option includes only the PND Plan. Pursuant to city charter and code, the City of Dover approved Maple Dale's plan to build a Planned Neighborhood Design ("PND") for a Senior Citizen Housing Option on the said 13.7 acres.
The 152.10 acres shall be referred to as the "Project Site" (which includes the PND Plan, the golf course, pool, tennis courts, and related amenities) while the 13.7 acres shall be referred to as the "PND Plan" (which only includes the PND Plan for the senior housing community, which is at issue in this case).
The subject property is zoned RC-Recreational Commercial. Pinson's backyard directly abuts the subject property; Donnelly lives on the other side of the street directly facing the subject property.
Maple Dale's PND Plan consists of eighty four residential units, thirty townhouses and fifty four condominium units. The project's density statistically would be approximately 6.13 units per acre for the 13.7 acre development site and 0.55 units per acre for the entire 152.19 acre site. Included in the PND Plan is the Senior Housing option, which was approved as a conditional use in a recreational commercial ("RC") zone. The area that surrounds the property is an area which is a mix of zoning districts and densities.
The City of Dover includes the following projects which have been approved: Across the street there is a condominium project approved for 24 units on 2.34 acres or a density of 10.25 units per acre. Additionally the surrounding area is zoned R-10, RM-2, RG-3 and RM-1. RM-1 zoning permits 6 dwelling units per acre. RM-2 zoning permits 8 dwelling units per acre.
The City of Dover has adopted a Comprehensive Plan. The most recent version of the comprehensive plan was adopted by the Dover Planning Commission on December 2, 2008; adopted by City Council on February 9, 2009; and certified by the State on April 24, 2009. The City's comprehensive plan refers to Maple Dale Country Club as an example of private open space and states: "lands shown on the Land Development plan as Open Space are not proposed for re-zoning. They will remain as zones as of this printing. Once an Open Space is developed, some areas will be proposed for re-zoning to this designation."
On April 24, 2009, the planning director of the City of Dover conducted a pre-application meeting with the representatives of the Maple Dale to discuss its plans for the planned neighborhood design for the senior citizen housing option. On May 15, 2009, the applicant Maple Dale, submitted a General Sketch Plan to the Planning Director to begin the review process for the senior citizen housing option project. The planning staff began an application summary to be forwarded to City Council for consideration at the June 8, 2009 council meeting. At the meeting, Council recommended that the project be forwarded to the Planning Commission for review.
On July 13, 2009, Dover's planning staff and Maple Dale's design professional met to discuss the submission of the Conditional Use and Preliminary Subdivision Site Plan applications. Over the next two weeks Maple Dale submitted information on their proposed Active Recreation plan, including a plan sheet and the list of amenities. Staff reviewed the information submitted, and prepared a summary report for review by the Parks Recreation and Community Enhancement Committee ("PRCE") of Dover City Council at an August 10, 2009 meeting.
The PRCE Committee met and approved Maple Dale's Active Recreation Plan. An active recreation plan is required in order to fulfill a PND Plan's open space requirement. In order for the PND Plan to be approved, 0.53 acres of recreation is required. Maple Dale sought approval of its active recreation plan, which included 137 acres of recreation. The 137 acres of recreation consists of a golf course, tennis courts, swimming pool, putting green, driving range, clubhouse, and other amenities.
The Parks Recreation and Community Committee meeting minutes acknowledged that "[t]he Village of Maple Dale Senior Housing Community consist[e]d of approximately 149.2 acres of land, with a project site area of approximately 12 acres."
Significantly, it was noted at the meeting that there was no precedent for accepting existing amenities in lieu of providing additional amenities. Nevertheless, the PND plan met "all the requirements that would be required of a new development of this nature."
On August 7, 2009, Maple Dale filed a Conditional Use Application for the Village of Maple Dale and a Preliminary Subdivision Plan application. On September 3, 2009, the Development Advisory Committee met to review the Conditional Use application. On September 4, 2009, the Development Advisory Committee issued a report, later meeting with Maple Dale on September 10, 2009. Thereafter, a final report was prepared for a September 21, 2009 Planning Commission meeting.
Those present at the meeting include the following: planning staff, agencies from inside City government, Public Utilities Department, the City Fire Marshall, the Parks and Recreation Department, and agencies from outside the City that provide input on development applications.
On September 21, 2009, the Planning Commission held a public hearing to review the Conditional Use and Conceptual Planned Neighborhood Design Plan. The Commission voted to grant conditional approval of the Plan. On October 2, 2009, Maple Dale re-filed its preliminary subdivision plan application in compliance with the zoning ordinance, which requires a two-step review process by the planning commission. On October 28, 2009, the Safety Advisory and Transportation Committee of City Council met. It also approved Maple Dale's application. On November 16, 2009, the Planning Commission conducted a Public Hearing and Review, ultimately granting the conditional approval of the plan.
In November 2009, the Planning Commission held a Preliminary Subdivision Plan Review and public hearing for Maple Dale's PND Plan. At both the September and November meetings, the City of Dover Planning Department presented lengthy oral reports summarizing the PND Plan's details. Additionally, the Planning Department addressed the Comprehensive Plan in a written report. Neither the oral nor the written reports noted any legal deficiencies precluding approval of the PND Plan.
During both the September and the November meetings, members of the public could question the PND Plan and submit written comments to the City of Dover. The record indicates that Donnelly commented extensively on the PND Plan, raising his concerns. Additionally, he submitted written comments that "[t]he Comprehensive Plan be changed before this project goes any further . . ." and "[t]he club property according to the Dover Comprehensive Plan is open space and therefore would have to be changed . . ." Pinson requested at the hearing that Maple Dale build the "condos in somebody else's backyard." At the conclusion of the November Meeting, and after the Planning Commission approved the PND Plan, Donnelly requested a response to his comment made during the hearing. The Planning Commission unanimously approved Maple Dale's PND Plan, which included the active recreation plans.
STANDARD OF REVIEW
The Delaware Supreme Court has held:
A writ of certiorari invokes one of the oldest common law writs, and its origins are obscure in the history of medieval England . . . The purpose of the writ is to permit a higher court to review the conduct of a lower tribunal of record. Review on certiorari is not the same as review on appeal because review on certiorari is on the record and the reviewing court may not weigh evidence or review the lower tribunal's factual findings. The reviewing court does not consider the case on its merits; rather, it considers the record to determine whether the lower tribunal exceeded its jurisdiction, committed errors of law, or proceeded irregularly. A decision will be reversed on jurisdiction grounds only if the record fails to show that the matter was within the lower tribunal's personal and subject matter jurisdiction. A decision will be reversed for an error of law committed by the lower tribunal when the record affirmatively shows that the lower tribunal has proceeded illegally or manifestly contrary to law.
Christiana Town Center, LLC v. New Castle County, 865 A.2d 521 (Del. 2004).
Narrow standards exist for reversing a lower tribunal's decision based on error of law, irregularity of the proceedings, or a tribunal exceeding its jurisdiction. The Delaware Supreme Court held that a lower court's record in a common law writ of certiorari "is nothing more than the initial papers, limited to the complaint initiating the proceedings, the answer or response (if required), and the docket entries."
Id.
Maddrey v. Justice of the Peace Court 13, 956 A.2d 1204, 1216 (Del. 2008).
PARTIES' CONTENTIONS
The Petitioners raise three arguments, all of which they contend are errors of law: (1) Maple Dale's plan violates 22 Del. C. § 702(d), because it conflicts with the comprehensive development plan designating the land as open space; (2) approval of the plan violated Article 3, § 24.47of the zoning code, because the proposed development density was not compatible with nearby development patterns and density; (3) approval of the plan contravenes the provisions of zoning code Article 3, § 24.61, which requires an active recreation area and open space area within a proposed subdivision.Maple Dale responds with the following arguments: (1) petitioner's are precluded from questioning the PND Plan's consistency with the comprehensive plan, because this question was not adequately raised before the planning commission; and, regardless, the Commission legally approved the plan; (2) reviewing the plan's consistency with the community is beyond the permissible scope of a common law writ of certiorari, because it improperly requires review of the Commission's factual findings.
The City of Dover contends: (1) the planning commission's decision should be affirmed, because the planned neighborhood design is consistent with the City's overall comprehensive plan; and (2) the approval of the plan did not violate Article 3 § 24.47 or § 24.61 of the City of Dover Zoning Ordinance.
DISCUSSION
A. The Plan does not violate 22 Del. C. § 702(d) .
The Petitioners contend that case precedent establishes that, in order to determine if a PND plan is in compliance a city's comprehensive plan, the plan's map must be the guiding post. The Petitioners assert that the map in this case indicates that the property in question was zoned as open space, thus making the Maple Dale PND Plan inconsistent with this open space requirement.
"As a condition on their exercise of zoning power delegated by the State, municipalities enacting zoning ordinances are expected to prepare and adopt comprehensive plans." The comprehensive plans provide the basis for municipal zoning regulations and serve as guides for future growth within the community. Once adopted the comprehensive plan "shall have the force of law and no development shall be permitted except as consistent with the plan." Development must be consistent with the comprehensive plan and failure to stay consistent "is, of course, no mere technicality . . ."
O'Neill v. Town of Middletown, 2006 WL 205071, *31 (Del. Ch., Jan. 18, 2006); see 22 Del. C. § 702(b) ("Comprehensive plan means a document in text and maps, containing at a minimum, a municipal development strategy setting forth the jurisdiction's position on population and housing growth within the jurisdiction, expansion of its boundaries, development of adjacent areas, redevelopment potential, community character, and the general uses of land within the community, and critical community development and infrastructure.").
O'Neill, 2006 WL at *31 (citing Lawson v. Sussex County Council, 1995 WL 405733, at *4 (Del. Ch. June 14, 1995)
A city's comprehensive plan is intended to serve as a "large scale and long term" planning document. It "cannot . . . serve unyieldingly as guide[s] to detailed questions of zone designation." A comprehensive plan "necessarily addresses many issues of land use that inevitably involve tension among inconsistent though desirable goals and thus lead to conflict . . ."
As a result, challenges to zoning decisions as not consistent with the comprehensive plan must be reviewed with an eye toward flexibility; yet, the legislature's mandate that comprehensive plans are to carry `the force of law' militates against analysis so flexible as to render such plans a nullity. Courts must balance these considerations in crafting an appropriate standard of review.
Lawson, 1995 WL 405733, at *4.
Id.
O'Neill, 2006 WL at *32.
Pursuant to 22 Del. C. § 703(b), the Delaware Code states that a Comprehensive Plan consists of both text and maps. The City of Dover's Comprehensive Plan labels the property in question on the Land Development Map as "open space." According to the Comprehensive Plan, all property designed as "open space" is to be used in any way authorized by the Zoning Code.
22 Del. C § 702 (b) state:
Comprehensive plan means a document in text and maps, containing at a minimum, a municipal development strategy setting forth the jurisdiction's position on population and housing growth within the jurisdiction, expansion of its boundaries, development of adjacent areas, redevelopment potential, community character, and the general uses of land within the community, and critical community development and infrastructure issues.
The issue which is presented is that the city's comprehensive plan map labels the property as "open space," yet, the comprehensive plan's text explains the following: lands designated as open space "are not proposed for rezoning . . . [t]hey will remain as zones as of this printing. Once an Open Space Zone is developed, some areas will be proposed for rezoning to this designation." Furthermore, the classification of a location pursuant to the comprehensive plan is not intended to supersede the zoning assigned to that area. Rather, the comprehensive plan and the zoning are to act in flexible amalgamation.
Comprehensive Plan, 163 (2009).
The Petitioners rely on O'Neill v. Town of Middletown, in support of their argument that specific designations override general amorphous designations. According to the Petitioners, the open space designation of the property in question on the map overrides the property's actual zoning designation, RC-Recreational Comprehensive. The Petitioner's argument is flawed, because their reliance on O'Neill is misguided.
In O'Neill, the Court was careful to describe that "the Delaware Code provides only that `the land use map or map series' have the force of law with respect to county plans, while a municipality's entire comprehensive plan carries the force of law." Unlike comprehensive plans for counties, where 9 Del. C. § 4958(a) governs, stating that only land use maps have the force of law, the text and the map of a municipal comprehensive plan have the force of law pursuant to 22 Del. C. § 702.
O'Neil v. Town of Middletown, 2006 WL 205071, fn 272 (Del. Ch. 2006).
Id.
The text of the comprehensive plan expressly states that the open space areas will remain as zoned, unless the areas are included in the proposed open space zone. Otherwise, the comprehensive plan authorizes all areas designated as open space be read in conjunction with their existing zoning classification.
It is undisputed in this case that the property in question is zoned RC-Recreational and Commercial. The property is designated on the Comprehensive Plan as "open space." The City's Comprehensive Plan authorizes property designated as open space to be used as authorized by the zoning code. As such, and according to the reasoning explained above, the PND Plan does not violate 22 Del. C. § 702. Furthermore, the Planning Commission did not act manifestly contrary to law by approving the PND Plan, and by finding that it is consistent with the Comprehensive Plan, embodied in the text and map.
B. The Plan does not violate Article 3, § 24.47
Next, the Petitioners contend that Maple Dale's PND Plan is not compatible with the density pattern of the surrounding locale. The Respondents reply that the record does not indicate that the Planning Commission committed an error of law by approving the PND plan, because the PND plan is surrounded by zoning districts allowing similar and higher density development. Furthermore, the respondents contend that the Petitioner's arguments are barred, because they are improperly seeking judicial review of the Planning Commission's factual findings regarding the PND Plan's compatibility.
The standard of review as stated above, directs this Court to consider only the record on a common law writ of certiorari to "determine whether the lower tribunal exceeded its jurisdiction, committed errors of law, or proceeded irregularly." An error of law is committed when the lower tribunal proceeds illegally or manifestly contrary to law. This Court may not weigh evidence or review the Planning Commission's factual findings on a writ of certiorari proceeding.
Christiana Town Ctr., 2004 WL 2921830, at *2.
Id.
Id.
Pursuant to Article 3, § 24.47 a PND Plan is required to contain open space and an active recreation area within its plan. Section 24.47 of the Zoning Code states that at the planning commission stage, the applicant has the burden to "demonstrate to the satisfaction of the Planning Commission that the project density proposed is compatible with the development pattern and density potential of the surrounding area in general, and with that of adjoining properties in particular."
§ 24.47.
The Planning Commission determined, based on its factual findings, that the PND Plan is compatible with the surrounding area. The Planning Commission considered the current development and the potential densities allowed under the Zoning Code for the surrounding locale in reaching its conclusion. Zoning districts surrounding the PND plan allow similar or higher density development than what the PND plan proposes. Therefore, the Planning Commission's determinations will not be disturbed.
C. The Plan does not violate Article 3, § 24.61
Finally, the Petitioners contend that the PND plan for the senior development housing fails to comply with the open space and active recreation requirements of section 24.61. The Respondents rejoin contend that the Planning Commission decided as a matter of fact that the Active Recreation Plan satisfied the requirements of the zoning code, on a writ of certiorari from challenging the Commission's decision. In addition, the Respondents point out that the Planning Commission's approval of the active recreation plans was unique to the facts of this case.
The recreation area approved for the senior development housing included the Maple Dale golf course, tennis courts, pool and other amenities. For purposes of satisfying the active recreation plan requirements, these amenities were included in calculating the area reserved for open space and active recreation. The planning commission specifically found that the Maple Dale golf course and amenities were part of the 152 acres of Maple Dale's overall Project Site.
This action arose from the Planning Commission's specific approval of Maple Dale's PND Plan for Senior Housing Development. The PND Plan was viewed, to a certain extent, in conjunction with Maple Dale's overall 152 acre project site. The issue raised now by the Petitioners is that the Planning Commission erred in incorporating the amenities of Maple Dale's entire project site as fulfilling the PND Plan's open space requirement for the active recreation of the Senior Housing Development.
Pursuant to Article 3, § 24.61 of the Zoning Code, all PND plans must include common open space. The open space must be "readily accessible and usable for active and passive recreation." The "open space shall be interspersed with residential areas so as to provide pedestrian access and a visual amenity." Section 24.61 provides that Senior Citizen Housing Option plans must provide usable open space in accordance with area requirements set forth in Article 5 § 10.16 of the Zoning Code. In addition § 24.61(b) states:
Article 3 § 24.61.
Id.
Id.
Section 24.61 provides in full the following area requirements for the open space:
(b) Senior citizen housing option. Useable open space shall be provided in accordance with the area requirements set forth in article 5, section 10.16 of this ordinance. The location, dimensions and orientation shall be designed to afford maximum accessibility and convenience for the residents of the development. Open Space areas shall include landscaped walkways with park benches, patios, and garden areas, and may include other active recreation amenities suited to the needs, abilities and preferences of the anticipated service population. The open space area requirements may be reduced or waived by the planning commission if it is determined that the property on which a senior citizen housing option is proposed is within one-quarter mile walking distance of a public park which offers pedestrian amenities and appropriate recreation opportunities for senior citizens.
The location, dimensions, and orientation [of open space] shall be designed to afford maximum accessibility and convenience for the residents of the development. Open space areas shall include landscaped walkways with park benches, patios, and garden areas, and may include other active recreation amenities suited to the needs, abilities, and preferences of the anticipated service population.
Article 3 § 24.61.
Zoning Code Article 5, § 10 explains that active recreation areas must be located on-site and not on other lands. Section 10.11 states that the purpose is "to ensure that active recreation areas are provided as an integral design element within residential developments . . ." § 10.15 requires that the recreation areas remain dedicated and maintained.
Id.
Id.
Id.
The Petitioners claim that the record reflects that zero acres of active recreation area are provided for in the 13.7 acre site area subdivided by the plan. The Petitioners maintain that reliance on the 140 acre remaining country club portion of the Project Site post-subdivision is misguided, because those lands constitute the private property of Maple Dale Country Club. As such, this area is unavailable for usage by residents of the Maple Dale senior housing development, unless they join the private club, paying the associated fees. Therefore, Petitioners contend that the purported active recreation area is a mere illusion.
Petitioners' argument follows that the Open Space and Active Recreation Areas required under § 24.61(b), must be easily accessible and usable by the residents of the subdivision; but that in accordance with the PND Plan the golf course and other amenities are not easily accessible to all prospective residents. Therefore, the argument goes, the Planning Commission erred in finding that Maple Dale's PND Plan met the requirement with the Maple Dale country club amenities.
It is undisputed that the active recreation and open space areas required by the zoning code for the PND plan constitute .53 acres. When the matter was before the Planning Commission regarding the arguments the Petitioner raises, the discourse proceeded as follows:
MR. HEMMIG: My question then arises, the recreation facilities that are being utilized are not owned by the people who own the land. In other words, the HOA and the people who buy these townhouses will own the land, will own the houses, they do not own Maple Dale. And therefore, how can we utilize or say that Maple Dale is part of their property for purposes of recreation and fulfilling that requirement when the two are going to be separate owned entities?
MRS. TOWNSHEND: They had proposed to include deed restrictions that would entitle the property owners to membership in Maple Dale and include that in their condominium and homeowner fees.
MR. HEMMIG: But those deed restrictions will be on the townhouse lots, not on Maple Dale Country Club. Is that right? Is there any legally binding document that says Maple Dale Country Club has to provide the recreational facilities for these fee simple town homes?
MR. MOORE: There will be agreements on both sides, binding these townhouses and the condos to Maple Dale and requiring the owners who purchase be members. . . .
(Dept. Hr'g Tr. 69-71)
Furthermore, the Planning Commission on the record explained the following in addressing the future recreational and open space of the residential community:
When the-If, in the future, something were to come back with a development application, it would have to have an active recreation component to it if it were residential. But any type of development application, it's going to be on the record that those facilities were part of the active recreation plan for this residential development. So if they were to be taken away, they would have to be replaced in time.
Id.
"[T]he Court on certiorari has no power to correct a mistake of facts or an erroneous conclusion from the facts, even though the interpretation given to the facts or the law by the governmental agency or the lower court may have been erroneous." The record indicates that the Planning Commission made factual findings in approving the active recreation plan in accordance to the zoning code. Accordingly, review of the factual findings is beyond the scope of review in a writ of certiorari proceeding by this Court.
Capano Invs., 1988 WL 139892, at *2.
By voting to approve the active recreation plan, the Planning Commission determined that as a result of the nature of the PND Plan and the membership guarantees in place for the PND Plan unit owners, the facts established that the recreation area of the entire Maple Dale Project Site, was substantially integrated within and a part of the PND Plan for the senior housing development. The Planning Commission clarified at both the PRCE Committee meeting and the September Meeting that all PND Plan unit owners would be members of Maple Dale through various agreements that would guarantee them access to the active recreation plan amenities. For purposes of the active recreation plan and the satisfaction of the zoning code requirements, the Planning Commission did not exceed its jurisdiction or commit error of law by approving the PND Plan.
CONCLUSION
The record establishes that the Planning Commission did not exceed its jurisdiction, commit errors of law, or proceed irregularly in approving the Preliminary Subdivision Plan for Villages of Maple Dale Senior Housing Community. Therefore, Petitioner's Writ of Certiorari is DENIED.SO ORDERED.