Opinion
C.A. No. 99C-07-014
Submitted: April 18, 2002
Decided: July 30, 2002
Upon Plaintiff's Motion for Summary Judgment. Denied.
Upon Defendants' Cross Motion for Summary Judgment. Granted.
David N. Rutt, Esq., of Moore Rutt, P.A., Georgetown, Delaware, For Lowe's Home Centers, Inc.
Dennis L. Schrader, Esq. and David C. Hutt, Esq., of Wilson, Halbrook Bayard, P.A. of Georgetown, Delaware, For the Sussex County Planning and Zoning Commission.
Robert V. Witsil, Jr., Esq., Georgetown, Delaware, For Old Meadows Properties, L.L.C.
ORDER
1. Upon consideration of the submissions of the parties, it appears to the Court that this is Lowe's Home Centers, Inc. ("Lowe's") Motion for Summary Judgment upon its complaint for Declaratory Judgment. Lowe's complaint seeks to reverse the Sussex County Planning and Zoning Commission's ("Commission's") denial of a revised site plan for a water tank. The Commission moves in opposition to Lowe's motion and has submitted its own Cross Motion for Summary Judgment seeking that its decision be upheld. Old Meadows Properties, L.L.C. adopts the motion of the Commission. Because no public hearing was required to review the revised site plan, and because the due process rights of Lowe's have not been violated, Lowe's motion for Summary Judgment is denied and the Commission's Cross Motion for Summary Judgment is granted.
Facts
2. On May 28, 1998, the Commission approved a final commercial site plan for the construction of a Lowe's retail store in Sussex County at the intersection of U.S. Route 9, State Route 1, and County Road 275. Included in that site plan was an approved location for a necessary water tank.
3. For various reasons, Lowe's determined that it needed to enlarge and move the water tank on its site. Consequently, Lowe's filed a revised site plan with the Sussex County Planning and Zoning Office on June 14, 1998. This plan was misplaced or never received, and was not acted upon by the Commission.
See Lowe's Home Centers, Inc. v. Sussex County Bd. of Adjustment, 2001 WL 1729123 (Del.Super.Ct.) (setting forth in detail the facts related to the misplacement of the water tank).
4. This Court previously found that Lowe's went ahead and built the tank in the new location without gaining the proper approvals (on the basis of silence) from the zoning Commission. That act was in violation of Sussex County zoning laws. The tank has now been constructed in the unapproved location and holds over 216,000 gallons of water.
Id.
5. Lowe's alleges that it discovered that the tank was in violation of the approved final plan, and the Sussex County zoning setback requirements, only after completion of construction when the tank was inspected for the issuance of the Certificate of Occupancy. Then, Lowe's realized that the County did not have a record of ever having received the misplaced or lost revised site plan that showed the new tank location.
6. For this reason, a revised site plan (limited only to the relocation of the fire protection water tank) was filed again (almost one year later) and presented to the Commission for consideration at a regular meeting on April 22, 1999. At that meeting, the Commission discussed the technical requirements of the code and whether or not Lowe's site plan complied. In addition, the Commission reviewed findings of fact from the March 26, 1999, decision of the Board of Adjustment (denying a variance to Lowe's for the non-compliant water tank) in order to determine why Lowe's was in violation of the code requirements.
7. The Commission then voted to deny Lowe's revised site plan application. Lowe's representatives were not permitted to give testimony on the revised application until after the Commission made its final decision.
8. Lowe's submitted a Motion for Rehearing and/or Reconsideration which was heard at a later meeting on June 10, 1999. This motion explained Lowe's reasons for relocating the tank without formal approval. The Commission denied the Motion for Rehearing and/or Reconsideration.
Claims of the Parties
9. Despite the fact that the Plaintiff did not raise this issue in its Motion to the Commission for Rehearing or Reconsideration, Lowe's now alleges that the procedures used by the Commission at its April 22, 1999, meeting denied Lowe's its due process rights. This is because Lowe's was not allowed to speak on behalf of its application for a revised site plan when, purportedly, opponents' positions were made part of the record. Moreover, Lowe's argues that the denial of the Motion for Rehearing/Reconsideration compounded this error. It is Lowe's position that the Commission's decision should be reversed and an Order should be entered approving the revised site plan. The Commission does not agree that due process violations occurred, and argues that its decision should be upheld as a matter of law.
Summary Judgment Standard
10. Superior Court Rule 56(c) provides that judgment "shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." The burden is on the moving party to show, with reasonable certainty, that no genuine issue of material fact exists and judgment as a matter of law is permitted. When considering a motion for summary judgment, the facts must be construed in the light most favorable to the non-moving party.
Super.Ct.Civ.R. 56.
See Celotex Corp. v. Cattret, 477 U.S. 317 (1986); Martin v. Nealis Motors, Inc., 247 A.2d 831 (Del.Supr. 1968).
McCall v. Villa Pizza, Inc., 636 A.2d 912 (Del.Supr. 1994).
Discussion
11. The Sussex County Code ("SCC") states that when the Commission reviews a site plan, "[n]o public hearing shall be required . . . ." As the Commission points out, site plan reviews are technical reviews of proposed plans. The Commission must insure that "a site plan is in compliance with all the provisions of the zoning code regarding use and dimensional requirements." When the Commission believes it will be aided in its duty of enforcing the technical requirements of the zoning code, it may conduct public hearings. In the present case, the Commission did not deem it appropriate to consider the Lowe's revised site plan application in the context of a public hearing.12. Lowe's provides two reasons why the Commission should have held public hearings, and by failing to do so violated its due process rights. First, Lowe's argues that because the Commission accepted testimony from various parties at previous hearings (related to prior site plans submitted by Lowe's for this same store) the Commission has thereby authorized the acceptance of such testimony at any subsequent hearing on a Lowe's revised site plan regarding the same store. In other words, the Commission has established a precedent whereby it must accept public testimony at any meeting on any Lowe's revised site plan concerning the store at issue in this case.
At least three site plans were submitted before the final one was approved, and a number of meetings were devoted to the discussion of these other plans. The minutes from these other Commission meetings show that various opposing parties were given the chance to present viewpoints, and that Lowe's representatives were also permitted to speak.
13. Lowe's cites no authority for the proposition that a right to a public hearing can be established by precedent, especially when the statute makes the right discretionary. Moreover, it is debatable whether or not public hearings ever occurred in the previous meetings on Lowe's prior site applications. Nonetheless at all of those previous meetings where the Commission permitted testimony, the Commission always heard both sides. Lowe's was always permitted to speak.
14. These previous meetings can, therefore, be distinguished from the meeting on April 22, 1999. No parties where permitted to speak at the latter meeting. Lowe's cannot be said to have been denied due process by a procedure that did not require a public hearing and by which no testimony or public comment was received.
15. Lowe's disagrees, arguing that the viewpoint of interested opposing parties was received by the Commission. Accordingly, Lowe's counters that even if the Commission established no precedent for accepting testimony by its procedures at prior meetings, the Commission opened the door for Lowe's to speak at this one hearing on April 22nd. Lowe's is adamant that the Commission took testimony from opposing parties, but refused Lowe's a chance to speak.
16. It is Lowe's position that the Commission allowed letters of opposition to be summarized into the record for the Commission's consideration prior to taking its vote. Lowe's maintains that once the Commission considered those letters, it was obligated to conduct a public hearing in accordance with the law. Hence, after the entry of the letters into the record, the denial of the revised site plan on April 22nd, and the denial of the Motion for Rehearing/Reconsideration constituted a denial of Lowe's due process right to have a public hearing.
17. Lowe's mischaracterizes the Commission's use of the letters from opposing parties at its meeting on April 22, 1999. The transcript from that meeting states in pertinent part:
Mr. Abbott: I'm passing down a xerox copy of a couple site plans. This is a revised commercial site plan for the location of the water tank. [Discusses what technical documents comprise the site plan]. Today we received a letter from Scott Bradley which Mr. Schrader has reviewed. If I am right it does not require a public hearing Mr. Bradley states and then we received a lengthy book from the Citizens[`] Coalition I believe Mr. Schrader also reviewed that.
Mr. Allen: Mr. Schrader, do you have any comments on this?
Mr. Schrader: Well, we'll start with the Citizens['] Coalition. Mr. Tyler denies that he was the author of the complete text. Let me say Mr. Chairman that the Citizens[`] Coalition submittal was received in the office on today's date and it addresses five topics, which the Coalition believes are issues to be raised. They include parking area regulations, permissible area usage, storage facilities incidental to the permitted use, dedicated bicycle lanes, and entry repair requirements. None of those five items are items which are the subject matter of the application being proposed or suggested by Lowe's tonight. The second is the letter of Mr. Bradley who is imminently familiar with Lowe's application; he refers to Section 115-222 of the Code for the proposition that there must be a public hearing, however, he neglects to point out that 115-222 refers to approval of conditional uses in RPC's. So since [Lowe's] application is neither of those that refer to the Section, it's not applicable to this particular transaction [currently being addressed].
As long as we're on the topic with what goes on with the commercial site plan review and public comments, I would draw the Chair's attention that I believe it was when this originally came up in 1998, I drafted a letter and forwarded it to the Chair and all members of the Commission about commercial site plan review and how it functions. In that letter without giving you all the gory detail, I refer to the fact that under 219 of the County Code, there are certain uses that are subject to site plan review by the Commission. However, under 219(D), no public hearing shall be required. The language then does not obligate this Commission to hold a public hearing on a commercial site plan review. Although if the Commission chose to do so, it could accept public comment that was pertinent to the actual requirements of the site plan and review. I would believe that that's still applicable for what we are going back to do is amend the original site plan so I don't know of any real reason why this should lead to a public hearing and if the Commission chose to take public comment, it's a privilege that would be extended by the commission and within the commission's decision making power.
Mr. Schrader is Counsel to the Commission.
See Plf.'s Mem. in Support of Mot. for Summary Judgment, Exh. 3, Tr. of Planning and Zoning Comm'n Hr'g on April 22, 1999 (emphasis added).
18. "The standard of review in determining whether the zoning action of local government is appropriate is whether the zoning authority has acted in a manner that can be characterized as arbitrary and capricious." It is very clear from the record that the Commission properly exercised its discretion regarding the holding of a public hearing in this case. The Commission did not consider the opinions of opposing parties, nor did it enter their letters into the record. Mr. Schrader, as attorney for the Commission, simply reviewed them for the Commission and informed the Commission they were irrelevant.
Concord Towers, Inc. v. McIntosh Inn of Wilmington, Inc., 1997 WL 525860 at *6 (Del.Ch.).
19. "There was nothing improper in the [Commission] consulting its attorney before making a decision on the merits of this [application]." Likewise, "[t]here is nothing in the transcript to evidence that the [Commission's] attorney was doing anything more than reviewing the facts and options," as well as informing the Commission that some unrelated letters had arrived from the community. Lowe's due process rights were not violated by the mere mention of the receipt of irrelevant opposing letters. The record is pellucid regarding the material facts. The letters from the Citizens' Coalition, and from Mr. Bradley, did not address the issue of the revised site plan and the Commission did not consider them.
Beaston v. BOA Sussex County, 1991 WL 215651 at *4 (Del.Super.Ct.).
Id.
20. Because the record shows that the Board did consider the technical requirements of the Code, and whether or not the Lowe's revised site plan complied with them (thus meeting the requirements of § 115-219), the Commission did not act arbitrarily and capriciously when it did not consider testimony from Lowe's.
WHEREFORE, the Motion of Lowe's Home Centers, Inc. for Summary Judgment is DENIED, and the Cross Motion of Sussex County Planning and Zoning Commission is GRANTED.
IT IS SO ORDERED.