Opinion
C.A. No. 03M-11-017 RSG.
Submitted: March 24, 2004.
Decided: April 7, 2004.
Upon Consideration of Petitioner's Petition for a Writ of Mandamus: DENIED. Upon Consideration of Petitioner's Motion for Summary Judgment: DENIED. Upon Consideration of Respondents' Motion for Summary Judgment: GRANTED.
Richard L. Abbott, Esquire, The Bayard Firm, Wilmington, Delaware, for Petitioner.
Shawn P. Tucker, Duane Morris, LP, Wilmington, Delaware, for Petitioner.
Mary A. Jacbson, Esquire, New Castle County Law Department, New Castle, Delaware, for Respondents.
Scott G. Wilcox, Esquire, Connolly Bove Lodge Hutz, LLP, Wilmington, Delaware, for Respondents.
MEMORANDUM OPINION
This lawsuit, initiated by Frank E. Acierno, seeks the issuance of a Writ of Mandamus commanding the New Castle County Department of Land Use ("Department") to grant final record plan approval to his shopping center site plan. Pending before this Court are summary judgment motions filed by the petitioners and respondents.
PROCEDURAL HISTORY
Petitioner filed suit on November 4, 2003, seeking the issuance of a Writ of Mandamus to compel the Department to grant final approval of its major land development plan for the Christiana Fashion Center ("Plan") and forward the Plan to the New Castle County Council for legislative approval. On February 20, 2004, Petitioner filed a motion for summary judgment. New Castle County ("County") filed a cross-motion for summary judgment on March 2, 2004. Oral arguments were heard on the aforementioned issues before this Court on March 24, 2004.
FACTS
Petitioner submitted a major land development plan to the Department for the property located northwest of the Christina River, east of Delaware Route 1, and south of the Christiana Mall and Christiana Retail Center in New Castle County, Delaware (the "Property"). The Plan proposed construction of a 915,000 square foot shopping mall on the Property known as the Christiana Fashion Center (the "Shopping Center"). Pursuant to the New Castle County Code at the time this action was instituted, section 32-97(d)(5), submission of a record plan shall include a letter of approval from DelDOT concerning provision of streets, curb cuts and other pertinent matters. In April of 2000, DelDOT submitted written comments to the Department concerning the Shopping Center project. At the time, DelDOT indicated that it would withhold all technical related comments related to the site plan until the Department's Division of Planning completed its review of a Traffic Impact Study ("TIS") and formulated recommendations regarding traffic impact. DelDOT, by letter dated February 11, 2002, submitted its technical review of the TIS. DelDOT recommended that the County deny or defer the development requests for the Plan until the State has the resources to contract for needed improvements to Interstate 95 and Delaware Route 1. In addition, DelDOT recommended that if the Department approved the Plan, there were infrastructure, site access, and pedestrian improvements that it should require.
See Petitioner's Exhibit 4.
See Petitioner's Exhibit 5.
Id. at 17.
Id. at 18.
The Department reviewed Petitioner's final record plan submission for the Shopping Center and informed Petitioner, by letter dated March 13, 2002, that the Plan could not be approved because he failed to provide the required letter of no objection from the Delaware Department of Transportation ("DelDOT"). Specifically, the Department indicated that:
See NEW CASTLE COUNTY CODE § 32-97(d)(5) that provides a record plan shall include a "[l]etter of approval from DelDOT relative to provisions of streets, curb cuts and other pertinent matters" which is commonly referred to as a letter of no objection.
The record plan submissions meet all of the requirements of the New Castle County Code except for the lack of a letter of approval from DelDOT relative to provisions of streets, curb cuts and other pertinent matters . . . Without a formal approval of the streets, curb cuts, and other pertinent matter [sic], however, the New Castle County Code does not permit the Department to take any other action except deem the record plan submission unsatisfactory and thereby expire the plan.
Petitioner's Exhibit 2 (citing 1995 NEW CASTLE COUNTY CODE § 32-97(d)(5)).
STANDARD OF REVIEW
The writ of mandamus is a command issued by a court of law having competent jurisdiction, to an inferior or lower court, to a tribunal or board, or to a corporation or person, requiring the performance of some duty named therein, said duty being attached to the official position of the party to whom the writ is directed, or resulting from operation of law. Under Delaware law, mandamus is an extraordinary writ with a very limited scope of available relief. Mandamus is issuable not as a matter of right, but only in the exercise of sound judicial discretion. When directed to an administrative agency, mandamus will issue only to require performance of a clear legal or ministerial duty. For a duty to be ministerial and thus enforceable by mandumus, it must be prescribed with such precision and certainty that nothing is left to discretion or judgment. Issuance of a writ is inappropriate where a petitioner has an adequate remedy at law available to him.Pursuant to Superior Court Criminal Rule 56(c) ("Rule 56"), summary judgment shall be granted if it is shown 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." On motion under Rule 56, the facts must be viewed in a light favorable to the nonmoving party. In a case involving cross motions for summary judgment, the parties implicitly concede the absence of material factual disputes and acknowledge the sufficiency of the record to support their respective positions.
SUPER. CT. CIV. R. 56(c) (2004).
Oliver B. Cannon Sons v. Dorr-Oliver Inc., 312 A.2d 322 (Del.Super.Ct. 1973).
Browning-Ferris, Inc. v. Rockford Enter., Inc., 642 A.2d 820 (Del.Super.Ct. 1993).
DISCUSSION
The record before the Court is undisputed. The parties agree that the Plan was not approved by the County solely because Petitioner failed to provide a letter of no objection from DelDOT. However, Petitioner argues that pursuant to the applicable New Castle Code, section 32-97(d)(5), DelDOT needed only to address: (1) new publicly dedicated streets proposed; (2) the provision of acceleration and deceleration lanes; (3) the necessity for right and left turn lanes; and, (4) subdivision sidewalks. Petitioner submitted his record plan on March 1, 2002. The parties agree that the County did not respond to Petitioner's submission until March 13, 2002. As such, Petitioner alleges that the County's failure to submit a timely response is in direct contravention of county law and Petitioner's statutory rights. Because the County failed to respond within five working days, Petitioner claims that the County was required to accept the record plan as to form and forward the plan to the County Council.Respondents argue that Petitioners are unable to meet the standards set forth for the issuance of a Writ of Mandamus because: (1) other adequate remedies exist thereby rendering mandamus unavailable; (2) the role of the Department in reviewing plans is not purely ministerial; and, (3) the County has no authority to approve the Plan since Petitioner failed to secure a letter of no objection from DelDOT and the Plan has since expired.
Respondents Brief at 3.
In support of its first argument, Respondents claim that there are currently two pending actions that are before Delaware courts relating to the Plan. On July 3, 2003, Acierno filed a Petition for Certiorari in this Court seeking a review of a decision by the New Castle County Planning Board dated May 21, 2002, that found Petitioner's record plan submission did not contain the required DelDOT letter of no objection. Citing In re Hyson, respondents argue that the availability of certiorari defeats this mandamus action. In the second pending case, Acierno filed an action against DelDOT in the Court of Chancery seeking injunctive relief and damages. In the Chancery Court case, Petitioner seeks an injunction compelling DelDOT to issue a letter of no objection and to commit to the necessary improvements necessary to accommodate the development of the property. Respondents argue that since Petitioner is unable to establish that mandamus is the only remedy available, a writ of mandamus does not lie to force the County to approve the record plan.
Respondents Exhibit 4.
In re Hyson, 649 A.2d 807, 808 (Del. 1994) (a writ of mandamus will not issue, unless the petitioner can establish that there is no other adequate remedy available).
Respondents Exhibit 5.
Id. at 4.
Respondents Brief at 4 (citing Woulard v. Lichtenstadter, 2002 W L 31160328 (Del.Super.)).
In response, Petitioner argues that certiorari proceedings are based solely upon the record; therefore, the Court's scope of review is narrowly limited to errors of law, jurisdiction, and procedure. Petitioner concedes that on the face of the record, it is undisputed that DelDOT failed to send a letter to the County containing a specific reference to the New Castle County Code, section 32-97(d)(5). As such, Petitioner indicates that certiorari fails to provide as full and fair scope of review that is available in a mandamus action. In addition, Petitioner argues that a certiorari proceeding is a longer method of review because it only takes into consideration the appellate board decision, rather than the underlying administrative decision. Petitioner also disputes that the pending action in the Court of Chancery provides an adequate legal remedy. Petitioner claims that the analysis set forth for determining whether mandamus is appropriate only looks to remedies available against the same party defendant.
Petitioners Reply Brief at 4 (citing Bramble v. Dannemann, 1980 W L 6366 (Del.Ch.)).
The Court notes that the named defendants in the pending Chancery Court action are Nathan Hayward, III, Secretary of the Department of Transportation of the State of Delaware, and the Department of Transportation of the State of Delaware. See Acierno v. Hayward, Del. Ch. No. 19729-NC filed July 8, 2002. Petitioner indicates that this action has been stayed.
Respondent's second argument is that the act of reviewing record plans for code compliance and approving them is not purely ministerial. Respondents rely on both the Delaware Code and New Castle County Code to support their argument. Respondents assert that because plan review consists of numerous factors and interaction with several many agencies, boards and committees to ensure code compliance and a plan that addresses health, safety and welfare issues that the process is not a ministerial duty, but one that is discretionary. Respondents set forth the holding in Remedio v. Newark, which states that the acts of an administrative agency cannot be considered ministerial if the agency has the authority to determine code compliance, review and approve plans, and implement policies.
See DEL. CODE ANN. tit. 9 Del. C. § 1301 that provides that: "[t]he Department shall enforce compliance with the county subdivision and zoning code and regulations thereunder"; DEL. CODE ANN. tit. 9 Del. C. § 1306 requires that all proposed subdivisions of land be "submitted to the Department for approval for conformity to the subdivision regulations and no such proposed subdivision shall be made or recorded unless approved by the Department.
See NEW CASTLE COUNTY CODE § 32-41 which sets forth the detailed regulations and procedures to ensure conformance with land planning policies. Specifically subsection section 21 provides that: "[t]he transportation needs of major subdivisions or land developments shall be analyzed to ensure that acceptable levels of service are achieved and maintained on roads within the county. The county shall work cooperatively with DelDOT to discourage significant erosion in levels of service and shall take or require action to mitigate adverse traffic impacts."
Remedio v. Newark, 337 A.2d 317 (Del. 1975).
Id. at 318.
In response, Petitioner argues that the determination concerning whether all necessary documents, contained in the New Castle County Code, section 32-97(d) checklist, have been submitted with a final record plan is merely a ministerial duty. Petitioner indicates that DelDOT did, in fact, submit a letter regarding traffic impact which included specific comments relative to streets, curb cuts and other pertinent matters; therefore, the County has a duty to approve the Plan, rendering the act non-discretionary.
Respondents third argument is that the County has no authority to approve the Plan. Respondents claim that Acierno had twenty-one months to obtain the required letter of no objection from DelDOT from the date the County gave preliminary approval to avoid the expiration of the Plan. On February 19, 2002, Petitioner requested the opportunity to address the record plan deficiencies indicated by the Department "before any letter goes out." By letter dated February 22, 2002, the County granted Acierno an extension until March 1, 2002. Petitioner submitted the record plan without the letter of no objection on the March 1, 2002 deadline. Accordingly, the Department informed Acierno that the Plan was officially expired by letter dated March 13, 2002. The County concedes that the written notice to Petitioner was given in eight business days, rather than within the five business days provided in the New Castle County Code, section 32-97(g). However, Respondents disagree with Petitioner's assertion that the three delay delinquency in notification results in a revocation of the County's authority to expire the plan; thereby requiring the automatically forwarding of the Plan to County Council for approval. Respondents claim that Acierno was well aware that the DelDOT letter of noncompliance was required, therefore the three-day delay in notification caused no harm to Petitioner.
See NEW CASTLE COUNTY CODE § 32-97(a)(1) which states that the subdivider shall submit a record plan for recordation within eighteen months after the Department has approved a preliminary plan. This section of the Code permits an additional period of time, not to exceed ninety days. Acierno received conditional preliminary approval on May 12, 2000. Therefore, he had until February 11, 2002 to complete record plan submission to avoid expiration of the Plan.
Respondents Exhibit 7. The Court notes that Petitioner's request for an extension was requested after the February 11, 2002 deadline.
Respondents Exhibit 8.
In response, Petitioner states that he did not agree to any extension of the statutorily imposed deadline mandated by section 32-97(f) of the applicable New Castle County Code. Petitioner disagrees with Respondents claim that the three-day delay caused him no harm. Petitioner submits that it is just as reasonable to argue that the County's approval of the Plan will not cause it any harm.
ANALYSIS
The parties agree that there is no dispute as to the factual record before the Court. It is apparent, as well, that the history between the parties has resulted in a relationship that is strained at best. Pursuant to Rule 56(c), the Court agrees with the parties that based upon the record and oral argument that there is no genuine issue as to any material fact. Finally, the Court agrees with Petitioner that the County's act of approving a record major plan as to form is in fact non-discretionary.
See SUPER. CT. CIV. R. 56(c).
See Christiana Town Center v. New Castle County, 2003 W L 22368856 (Del.Super.) (stating that the sole purpose of the review of the application is to determine if the documentation satisfies the specific requirements of the County Code; if the application meets the requirements of the Code, the review is non-discretionary).
The sole issue before the Court is whether the letter from DelDOT constitutes a letter of "approval" as required by the Code. The content of the letter provided by DelDOT appears to the Court to satisfy the language of section 32-97(d)(6) of the New Castle County Code. However, while DelDOT's letter concerning the technical review of the TIS does contain language relevant to streets, curb cuts, and other pertinent matters, the question remains, does it constitute a letter of approval (emphasis added) in relation to those issues. DelDOT's letter, by its express language, specifically recommended denial or deferment of the development requests made for this project. It is hard to see how a review as to form could reach any decision other than that the Plan lacked a DelDOT letter of approval.
NEW CASTLE COUNTY CODE (d)(6): "[l]etter from DelDOT containing its recommendations and comments on any required traffic impact study."
See 1995 NEW CASTLE COUNTY CODE, § 32-97(d)(5).
Whether DelDOT acted properly is not before the Court in this action, as they are not a party to this proceeding. Petitioner is in a paradoxical situation. For the County to accept DelDOT's letter as approval would require an exercise of discretion to ignore the express language of the letter. If the review allows such discretion, mandamus is not appropriate to force a specific exercise of that discretion.
The only substantive issue in this case is DelDOT's failure to provide the letter of no objection despite Petitioner's repeated requests. Upon reviewing the complaint filed in Chancery Court, it would appear Petitioner has a remedy that could provide appropriate relief. Petitioner, in that case, is seeking injunctive relief requiring DelDOT to issue the letter of no objection. If Petitioner is successful in that equitable proceeding and if it were found that DelDOT improperly caused Petitioner's Plan to expire by withholding the letter, Chancery Court could unexpire the Plan.
See Respondents Exhibit 5. The Court notes that the County agreed at oral argument that a favorable finding for Petitioner against DelDOT in Chancery Court would allow for unexpiring of the Plan by operation of law and; therefore, submission of the Plan to the County Council.
The remaining arguments of the parties are moot as a result of the conclusion that Petitioner does not have a clear legal right to the relief sought by this petition.
CONCLUSION
Issuance of a writ of mandamus is inappropriate for this reason. Petitioner's Motion for Summary Judgment and Petition for Writ of Mandamus are DENIED, and Respondents' Motion for Summary Judgment is GRANTED.