Opinion
CIVIL ACTION NUMBERS 00A-03-003-JOH, 00M-03-103-JOH.
Submitted: July 27, 2000. Argued: September 8, 2000.
Decided. November 21, 2000.
Petition for Writ of Certiorari DENIED Petition for Writ of Mandamus DENIED
Thomas D. Whittington, Jr., Esq., (argued) of Whittington Aulgur, attorney for plaintiffs.
Wendy Rising Danner, Esq., (argued) Assistant County Attorney, New Castle County Department of Law, attorney for County defendants.
MEMORANDUM OPINION
There are two interrelated matters pending before this Court. Both arise out of a subdivision application made by Dragon Run Farms, Inc., to develop a plot of land. In one action, Dragon Run asks this Court to compel New Castle County to act on its application. That request is premised on a provision in the New Castle County Zoning Code [former code] in effect when Dragon Run first filed the application, but which has since been repealed, which provided that County Council had jurisdiction over appeals from the County Planning Board.
In the other action, Dragon Run, by certiorari, seeks review of a decision of the New Castle County Planning Board which held that Dragon Run's original application had expired, since a required deadline was missed, and that it now had to restart under the County new Unified Development Code [UDC]. It is the UDC which also abolished County Council's involvement in subdivision appeals and left the route of review from Board decisions to certiorari actions in this Court.
Dragon Run raises several arguments in these two actions. First, it says state law and the former code provided grandfather protection to its application. That being so, its application should have been considered by County Council after the Planning Board's decision. Since County Council declined to act, Dragon Run asks this Court, by way of mandamus, to act. Second, it claims that if its application did expire, as the Board found, and if it did miss any deadline, County representatives misled it into doing so. They should be estopped, therefore, from invoking that deadline. Third, it challenges the constitutionality of the enactment process for the UDC.
The Court holds that (1) Dragon Run's application had expired, (2) that the County did not mislead Dragon Run into missing the deadline, (3) by missing the deadline, Dragon Run's application lost any grandfathering protection and is governed by the UDC and (4) Dragon Run has not shown the UDC to be unconstitutionally enacted. This holding results in Dragon Run's petition for writ of mandamus being DENIED, the Planning Board's decision being upheld and the writ of certiorari being DENIED.
FACTUAL BACKGROUND
Despite the two pending matters involving a zoning matter, the Court has been presented with an extensive record. Even though the legal standards differ for reviewing a writ of certiorari and a writ of mandamus, the factual background in this case reveals an interrelated record common to both. It must be set out in some detail. Much of the record presented comes from proceedings before the Planning Board.Dragon Run owns a parcel of land in the vicinity of Wrangle Hill Road and Kirkwood-St. George's Road west of Delaware Route 1 and north of the Chesapeake and Delaware Canal. Development of some or all of this site for housing had been under consideration for a number of years. On April 10, 1996, Dragon Run's development partner forwarded to it schematic plans prepared by Tetra Tech, Inc., the subdivision development engineering firm. In the forwarding letter, the partner mentioned other plans that had been prepared for the site to be developed.
Under the zoning code in existence in 1996, the former code, the first official step for a developer in a major subdivision process such as Dragon Run was to submit to the County an exploratory sketch plan. That requirement was embodied in an ordinance which provided:
(a) an exploratory sketch major plan shall be submitted to the department of planning for informational discussion between the subdivider and the department. The intent of the sketch plan is to gain an idea of the concept the subdivider has in mind with regard to major dispositions of land and land uses, traffic access points, internal vehicular circulation, configuration of open spaces, sewerage disposal, storm water management, preservation of historic resources, if any, and other similar matters.
Former Subdivision Code § 32-92.
On October 10, 1996, Dragon Run submitted an exploratory sketch major subdivision plan for its site. It proposed to build 136 single family homes on approximately 95 acres. The County acknowledged receipt of this submission on October 22, 1996 in a letter to dragon Run's engineer, Tetra Tech:
The Department of Planning has the following comments on this plan.
1. The minimum required open space is 25 percent. This figure includes only open space that is at least 75 feet wide at any point and in parcels at least 15,000 square feet. It may not include stormwater management areas. The majority of open space must be highly visible with convenient access to all residents of the development. Open space must have substantial street frontage. While this plan preserves wetland and floodplains as open space, the cluster regulations are also intended to provide for improved open space and recreation opportunities than those typically resulting from conventional zoning requirements. Open space in a cluster development is also intended to be more closely integrated with and among dwellings in unified design. Residents should be able to see, access and enjoy their open space in close proximity to their homes. The plan must be revised significantly to incorporate these elements as well as others expressed in Section 40-80.
3. To achieve the goals of the cluster provisions, lot sizes should be reduced to the minimum permitted.
4. For the number of lots proposed, the minimum active recreation area is 0.936 acres.
5. Provide a stub street for possible connection to the property to the north.
6. Conditional use applications for Water Resource Area, floodplain and steep slopes must be submitted and approved prior to submission of a preliminary plan for review by the Subdivision Advisory Committee.
7. Provide for landscaping around all basins outside areas required by the Department of Public Works for maintenance and access.
8. Both entrance streets must be 60-foot collectors.
9. Delete the proprietary note. All documents submitted to New Castle County for plan review are public information.
10. Provide a distance from the proposed subdivision to the nearest street or road intersection.
11. Sidewalks shall be provided on both sides of all streets shown on the plan. Sidewalks construction within the street right-of-way shall be a minimum of four feet in width and shall be constructed of Portland cement concrete.
Subsequent to compliance with the above, a Revised Exploratory Sketch Plan may be submitted in accordance with Section 32-92 of the Subdivision and Land Development Regulations.
Letter from Michael J. Bennett (October 22, 1996).
In accordance with this last directive, Dragon Run submitted a revised exploratory major sketch plan on October 29, 1996. The County wrote to Tetra Tech on November 22, 1996 stating:
The Department of Planning has the following comments on this plan.
1. Open space assumptions used to calculate permitted density bonus are incorrect. For the minimum required open space and for the bonus, only open space that is at least seventy-five feet wide at any point may be used. The inclusion of a strip of land for a trail or greenway is at this department's discretion and would not be acceptable as proposed, nor may extraneous strips of land around stormwater management areas by included. However, since fewer lots are proposed than permitted by the maximum base density, further detailed revision of the density calculation may not be necessary. Confirm that the non-developable land area includes floodplain as well as wetland acreage. Show that the minimum required 25% open space consists of acceptable dimensions.
2. Provide open space access at Lot 38 and at Lots 33 and 34. These locations and that between Lots 108 and 109 must be approximately one hundred feet wide. Allow for pedestrian access between Pond 2 and Lot 22. Open space, especially in cluster developments, must be highly visible and integrated with the development. Residents must have the opportunity to have views of, and easy access to, their open space.
3. The Water Resource Protection Area Conditional Use Application must also include examples and detailed information that substantiate the viability of a proven method of recharge. Examples should include actual maintenance schedules and costs.
Subsequent to compliance with the above and review and approval of conditional use application(s), a Preliminary Major Subdivision Plan may be submitted in accordance with Section 32-95 of the Subdivision and Land Development Regulations.
Letter of Michael J. Bennett (November 22, 1996).
Under the former code, this letter meant the County had "accepted" Dragon Run's exploratory major sketch plan. The next step was provided in the former code § 32-95, cited in the letter:
(a) Submission of a plan for review. intent. The preliminary major plan shall be submitted to the department for planning for review and approval by the department and review by the subdivision advisory committee. The intent of the preliminary major plan is to show in detail proposed land disposition, including lot lines, plus locations of proposed community facilities, roads, etc. The preliminary major plan must be submitted for review within 12 months of the date of approval of the exploratory sketch plan or the plan must be resubmitted for review in accordance with section 32-92.
Former Subdivision Code § 32-95.
Dragon Run representatives and County representatives met in December 1996 and January 1997 to discuss the plans. Dragon Run is in a R-2 zone, a residential zone. Under the former code, it was also designated as a limited growth area which meant that its proposed arrangement of the houses into a cluster was not permitted. Around this time, the County was also undertaking significant revisions in its comprehensive plan. Both the old and possibly new zoning provision were discussed by Dragon Run and the County in their meetings about Dragon Run's submission. These discussions are reflected, in part, in the following letter:
Pursuant to our TIS scoping meeting on Friday, December 27, 1996, I checked the Department of Planning's files to determine whether the above properties are located in a growth area. The concept map approved with the current 1988 Comprehensive Development Plan shows that the subject properties are outside the growth area. However, you mentioned that, in a conversation with this department's staff, you understood that these properties were included in the proposed "Infill" area of the Central Pencader Land Use Study. The map you may be referring to is Figure I on Page XIV-27 of the Draft Comprehensive Plan Update, the July 23, 1996, edition. Please not that these lines are conceptual and in draft form as stated in the Comprehensive Plan text, Page XIV-26. Until the Comprehensive Plan Update is adopted by County Council and the subject properties are placed in a growth area, the level of service standard that must be applied is that established for limited growth areas.
Section 32-367(c)(2) of the County Code establishes that, for projects located in limited growth areas, the minimum acceptable level of service for intersections and roadway segments within the area of influence of a proposed development is the existing level of service, but in no case exceeding level of Service C. In other words, if the existing level of service is A, A must be maintained upon completion of the development. If the existing level of service is D, or worse, the development plans cannot be approved unless mitigation measures are proposed that would bring the level of service up to C.
I have also discussed this matter with Herb Blackwelder of the Planning Services Division. He asked that I also advise you that since both of these properties are currently located in a limited growth area, the cluster provision of the Zoning Code do not apply. As such, a preliminary plan will not be accepted for review until the Comprehensive Plan is amended to place the projects in a growth area or the exploratory sketch plans are revised to depict a noncluster development layout.
Letter from John Janowski (January 2, 1997).
A subsequent County letter revealed the same nature of these discussions in another meeting.
I am writing to follow-up on our meeting of last Wednesday regarding this project. The Department of Planning will grant your request and allow this project to proceed through the subdivision process. Be advised however, that the Department will not approve a record plan until the use of the cluster option becomes lawful through the adoption of the updated comprehensive plan or an amendment of cluster regulations. Should you choose to advance the plan, you do so at your own risk. The Department cannot provide you with any assurances that the necessary comprehensive plan or zoning code amendments will occur, or occur within the time frames you anticipate for plan approval.
Letter from Herbert v. Blackwelder, Jr. (January 21, 1997).
There were additional meetings between the involved parties. Dragon Run, however, did not submit a preliminary major subdivision plan within the required twelve-month span following November 22, 1996. That, as noted, is the date the County "accepted" its revised exploratory sketch major subdivision plan. All parties agree to that. Dragon Run, however did not submit its Preliminary Major Subdivision Plan until June 12, 1999. The County, however, rejected Dragon Run's 1999 submission stating:
Exploratory Sketch approval for this project was given on November 22, 1996. Section 32-95(a) of the former subdivision regulations required the submission of a Preliminary Plan within twelve months of exploratory approval. The exploratory approval is thus void and deemed to have expired. Under the terms of Division 1.100 of the [UDC], development of this property may only be considered in compliance with the UDC. There is no provision for the continuing review of a project resubmitted after two years, seven and one-half months have elapsed.
We recommend that an Exploratory Sketch Plan be submitted in accordance with Article 31 of the Appendix of the UDC. This is a final decision of the Department that can be appealed to the Planning Board. See UDC 31.510; Table 30.110. Please be advised that the Planning Board is precluded form considering materials outside those already within the Department's file, and an appeal must be filed within twenty (20) days from the receipt of this letter. UDC 31.510; 31.511.
Letter from Michael J. Bennett (July 19, 1999).
The rejection letter cites the UDC which became effective on December 31, 1997. Under the UDC and the former code, Dragon Run's next step was to go to the Planning Board. After a hearing and briefing, the Board upheld the County's position that Dragon Run had not timely submitted its preliminary major subdivision plan.
Under the former code, Dragon Run's next step was to appeal to County Council. It did but the County Council rejected Dragon Run's appeal citing it no longer had jurisdiction to entertain it under the UDC. That decision prompted Dragon Run's petition for writ of mandamus to have this Court direct that County Council act on its application.
Former Subdivision Code § 32-9.
Since the UDC provided no right to appeal after the Board acted, Dragon Run filed for a writ of certiorari. In short, it has invoked alternative means of relief out of an abundance of caution about which remedy is available to it.
PARTIES' CONTENTIONS
Dragon Run refers to a state statute and a provision in the former code that grandfathers plans once submitted to and accepted by the County. It argues, once the County accepted its exploratory sketch plan on November 22, 1996, anything that occurred thereafter is protected and controlled by the former code. Its failure, however, to follow the next step by submitting within twelve months the preliminary major subdivision plan was due to negotiations with the County and being misled into believing the twelve-month deadline was not going to be applied. In short, the County should be estopped from invoking the twelve-month bar.
Dragon Run also asserts that the former code permitted it to resubmit another exploratory plan and that the former code contained no deadline for doing so. In this way, there is no twelve-month deadline to meet and nothing expires, if it is not met. Finally, Dragon Run contends the UDC was not adopted in conformity with due process since insufficient notice was given to it.
The County responds by arguing that Dragon Run's failure to submit a preliminary major development plan in twelve months resulted in the lapsing of its 1996 submission. The grandfathering protection, therefore, is not available as there was nothing to protect once Dragon Run failed to take the next step in a timely fashion. To argue that it could always resubmit an exploratory plan even after twelve months had gone by is to render that deadline meaningless.
Further, the County notes estoppel is not applicable. Its representatives never said the twelve-month requirement was waived or could be ignored. Instead, Dragon Run openly perceived the risk of relying upon a submitted plan that was contrary to former code provisions in hopes the UDC would be adopted in time and also allow it to build its cluster development. Finally, the County asserts the UDC was constitutionally adopted and that Dragon Run's challenge is untimely.
APPLICABLE STANDARDS
A writ of mandamus is issuable in the exercise of sound judicial discretion. It is used in an instance such as this to compel a public agency to exercise its authority when it has a duty to do so. The petitioner must show that he has a clear legal right to the performance of that duty and has no other adequate remedy.
Schagrin Gas Co. v. Evans, Del.Supr., 418 A.2d 997, 998 (1980).
In re Boardley's Petition for Writ of Mandamus, Del.Supr., 545 A.2d 619, 620 (1988).
Clough v. State, Del.Supr., 686 A.2d 158, 159 (1996).
The standard of review on certiorari, however, differs from mandamus and even from an appeal. Certiorari is on the record and this Court cannot review the Planning Board's factual findings. The writ of certiorari is a means of seeking a limited review of the Board's decisions and is generally confined to jurisdictional matters, errors of law or irregularity of proceedings which appear on the face of the record.
Reese v. Ed. of Building Appeals of the City of Newark, Del.Supr., 746 A.2d 271, 274 (2000).
In the Matter of Butler, Del.Supr., 609 A.2d 1080, 1081 (1992).
Goldstein v. City of Wilmington, Del.Supr., 598 A.2d 149, 152 (1991).
DISCUSSION A
Dragon Run's position in both actions is basically the same. It is that once the County accepted its exploratory sketch major plan on November 22, 1996, its rights were locked into the former code. All procedures, zoning regulations and any appeals, therefore, were and are to be governed by that code.It relies upon two provisions to make this argument. First, it relies upon the following grandfathering provision in the former code.
(b) Any subdivision and/or development plan that has been officially accepted in writing for review at the time of the effective date of any revision, modification, or amendment shall not be subject to the requirements of such revision, modification, or amendment and shall continue to be reviewed under previous regulations through recordation of a plan.
Former Subdivision Code § 32-8.
Second, it relies upon a state statute found in the enactment requiring the counties to develop comprehensive plans:
(c) Any application for a development permit filed or submitted prior to adoption or amendment under this subchapter of a comprehensive plan or element thereof shall be processed under the comprehensive plan, ordinances, standards and procedures existing at the time of such application.
It is undisputed Dragon Run submitted a proposed plan which the County accepted on November 22, 1996. But, it is also undisputed that in the twelve months that followed, Dragon Run did not adhere to the next requirement of the former code by submitting a preliminary major plan.
The first issue, therefore, involves a matter of statutory construction. When interpreting a statute, the Court's role is to determine and give effect to the legislative body's intent. Where a statute is unambiguous and there is no reasonable doubt as to its meaning, this Court must give effect to its literal meaning. If uncertainty exists, the statute must be viewed as a whole and the Court must seek to harmonize it and avoid mischievous or absurd results. Statutes must be read in pari materia.
Coastal Barge Corp. v. Coastal Zone Ind. Control Bd., Del.Supr., 492 A.2d 1242, 1246 (1985).
Zimmerman v. State, Del.Supr., 628 A.2d 62, 68 (1993).
Burpulis v. Director of Revenue, Del.Supr., 498 A.2d 1082, 1087 (1985).
Watson v. Burgan, Del.Supr., 610 A.2d 1364, 1368 (1992).
Section 32-95 of the former code required Dragon Run to submit a preliminary major play by November 22, 1997. It did not do so. The issue is whether its failure to do so meant it lost the grandfathering protection of former code § 32-8 and/or 9 Del. C. § 2659 (c). The Planning Board decided that it did. That is a legal decision reviewable by certiorari. If that decision is correct, the UDC applies and County Council was divested of jurisdiction to hear Dragon Run's appeal and mandamus cannot issue.
The former code contained a series of steps in the zoning process. First, was the submission of the exploratory sketch major plan. Next came the submission of the preliminary major plan and later the record plan. These were the well-established and well-known steps any major subdivider had to undertake to reach the ultimate goal of gaining approval for its proposal.
Former Subdivision Code § 32-97.
But, a developer was not locked into proceeding to any next step. It could stop at any time. Further, the rules were known going in. Dragon Run knew that it had twelve months to submit a preliminary major plan. For this Court to interpret that requirement as allowing Dragon Run to drag out submitting the preliminary major plan obliterates the twelve-month deadline. Reading together the various steps and stages in the former code shows that deadline was there for a reason. In part, the reason was to protect the developer so that the County would not prolong the review process.
Even though arguing that missing the twelve-month requirement did not result in the expiration of its application, Dragon Run still contends its application was protected by state and county laws. The protection of the State statute, 9 Del. C. § 2659 (c), is that any application submitted under a former code is processed under the provisions of that code and not the new comprehensive plan and code. In this case, that means once the County accepted Dragon Run's application in November 1996, the former code processes came into operation. But, those processes also included following the staged submission procedures and the deadlines. One such deadline was that the preliminary plan had-to be submitted in a year. While Dragon Run invokes the former code's protection, it must also be governed by its requirements. Its failure to meet those requirements removed the protection provided by the state statute.
The same reasoning applies to the grandfathering provision, in the former code, § 32-8. Initially protected, Dragon Run had to follow its requirements to remain protected. Its failure to do so stripped away that protection.
Also, in adopting the UDC, County Council addressed the problem of applications already in the mill. The UDC provides all applications submitted to the Planning Department on or before July 1, 1997 shall be processed and reviewed under the former code unless it had "expired." County Council even defined "expired" as a plan not timely processed by the former code and once deemed "expired," a plan has no legal effect. The intent of County Council, therefore, was to permit applications submitted under the former code to be protected and processed under that code. As long as the application was timely processed, this protection lasted until completed. Dragon Run's application was not timely processed because it missed the November 22, 1997 deadline and, therefore, was deemed to expire. The UDC took effect on December 31, 1997.
Former Subdivision Code § 01.120(A).
Unified Development Code § 33.300.
Dragon Run submitted its major plan twenty months after the deadline had passed. There could be any number of reasons why a developer chooses not to submit the plan within the next window, such as change in market, economic viability, economic status of the developing parties, etc. But, the then-controlling ordinance states the preliminary major plan must be submitted within twelve months. Dragon Run seeks to avoid that requirement, however, by arguing that the same former code provision, § 32-95, also indicated that in the alternative, the plan can be resubmitted for review in accordance with former code § 32-92. That is the provision relating to step one, the exploratory sketch plan.
This argument is unavailing for three reasons. One, the record shows that Dragon Run never did that. It never resubmitted an exploratory sketch plan that restarted its twelve-month clock. Two, as noted earlier, its argument renders § 32-95 circular in a way that would allow the process to continue forever. An absurd result of statutory construction is to be avoided. Three, its argument could lead to what happened here, a preliminary plan submitted twenty months late or even worse.
Snell v. Engineered Systems and Designs, Inc., Del.Supr., 669 A.2d 13, 20 (1995).
But, Dragon Run offers additional reasons for avoiding the result of its failure to comply with the twelve-month requirement. It argues that to do all the County required of it to bring its plan into conformity with the former code, such as plans for sewer connections, traffic surveys, etc., would take more than twelve months to accomplish. This argument is also unpersuasive. As a developer, it knew the requirements when it started and the record shows its planning for this site was not last minute. Dragon Run has offered no reason why it could not do in twelve months what any other developer was required to do in the same time.
The reason it does offer, however, is that County officials misled it into believing the UDC would permit what the former zoning code would not, namely, cluster development or that the twelve-month requirement would be waived. In short, it contends the County is estopped from interposing the twelve-month requirement due to the actions of its representatives. It relies upon the January letters from County officials.
Section 32-367(c)(2) of the County Code establishes that, for projects located in limited growth areas, the minimum acceptable level of service for intersections and roadway segments within the area of influence of a proposed development is the existing level of service, but in no case exceeding level of Service C. In other words, if the existing level of service is A, A must be maintained upon completion of the development. If the existing level of service is D, or worse, the development plans cannot be approved unless mitigation measures are proposed that would bring the level of service up to C.
I have also discussed this matter with Herb Blackwelder of the Planning Services Division. He asked that I also advise you that since both of these properties are currently located in a limited growth area, the cluster provision of the Zoning Code do not apply. As such, a preliminary plan will not be accepted for review until the Comprehensive Plan is amended to place the projects in a growth area or the exploratory sketch plans are revised to depict a noncluster development layout.
I am writing to follow-up on our meeting of last Wednesday regarding this project. The Department of Planning will grant your request and allow this project to proceed through the subdivision process. Be advised however, that the Department will not approve a record plan until the use of the cluster option becomes lawful through the adoption of the updated comprehensive plan or an amendment of cluster regulations. Should you choose to advance the plan, you do so at your own risk. The Department cannot provide you with any assurances that the necessary comprehensive plan or zoning code amendments will occur, or occur within the time frames you anticipate for plan approval.
The elements for equitable estoppel have been outlined by the Supreme Court:
To establish an estoppel, it must appear that the party claiming the estoppel lacked knowledge and the means of knowledge of the truth of the facts in question, that he relied on the conduct of the party against whom the estoppel is claimed, and that he suffered a prejudicial change of position in consequence thereof.
Wilson v. American Ins. Co., Del.Supr., 209 A.2d 902, 904 (1965).
An estoppel may not rest on a mere inference; it must be proven by clear and convincing evidence. Estoppel is actionable only where the conduct of one party has induced another party to change their position for the worse. Only in rare instances do Delaware courts estop local governments from issuing zoning ordinances. Usually the only time Delaware courts enforce estoppel is when the plaintiffs have either expended on permanent improvements or there is no other use for the land.
National fire Ins. Co. v. Eastern Shore Laboratories, Inc., Del.Super., 301 A.2d 526, 529 (1973).
Nathan Miller v. Northern Ins. Co., Del.Super., 39 A.2d 23, 25 (1944).
Acierno v. New Castle County, D.Del., C.A. No. 92-385 (SLR), Robinson, J. (May 23, 2000).
Of most concern is whether these letters by John Janowski and Herb Blackwelder misled Dragon Run into believing the twelve-month time limit was tolled. Again, this Court, while not weighing the evidence, agrees with the Board that there was no misleading. The County did not mislead Dragon Run. Mr. Janowski's letter advised a preliminary plan would not be accepted until cohering to the law. Although this may have been incorrect it did not mislead Dragon Run to believe additional time was added to the twelve-month deadline. Additionally, Mr. Blackwelder's letter only warned Dragon Run about the cluster options not being available in a "limited growth" area. There is no evidence that the Board committed an error of law. The Board weighed the evidence and it is not this Court's duty to review it.
In the record submitted to the Planning Board, Dragon Run included a February 7, 1997 letter to Dragon Run's Lawyer. It recites the Blackwelder letter and says, "[t]hat the County would be willing to allow us to proceed through the subdivision process with a cluster plan at our own risk." What this letter confirms is not the County misleading Dragon Run. It does show that Dragon Run was consciously aware that its application did not meet former code requirements, but it openly accepted the risk that the UDC would allow its proposal and be enacted in time to permit it. That choice is not misleading by County officials.
George Beer letter to Thomas Whittington (February 5, 1997).
In short, Dragon Run cannot say it was misled. The County is not estopped from relying upon the twelve-month requirement in former code § 32-95. Within that twelve-month span, the review process proceeded under the former code. When Dragon Run failed to timely submit a preliminary major plan, its exploratory major sketch lapsed and expired on November 22, 1997. When the UDC became effective thereafter, Dragon Run had to comply with its provisions both in regulation of land use and review procedure. The expiration of its plan meant there was nothing to grandfather.
B
Next, Dragon Run argues that since the County did not give effective notice of the proposed zoning map changes, due process violations occurred barring enactment of the UDC. Normally, actions challenging the validity of zoning maps shall be brought within sixty days from the publication in a newspaper of general circulation. However, constitutional challenges like Dragon Run asserts are held to three-year statute of limitations. Zoning is a legislative action presumed to be valid unless clearly shown to be arbitrary and capricious because it is not reasonably related to the public health, safety, or welfare. The decisions of the County Council carry a presumption of validity and the burden of rebutting that presumption is placed upon the challenging party.
9 Del. C. § 2606 (repealed July 13, 1998), provided:
(a) After receiving the certification of a zoning plan from the Department of Planning and before the adoption of any zoning regulations, the county government shall hold a public hearing thereon, of the time and place of which at least 30 days notice shall be given by 1 publication in a newspaper of general circulation in the County. Such notice shall state the place at which the text and maps certified by the Department of Planning may be examined.
* * *
(c) No change in or departure from text or maps, as certified by the Department of Planning, shall be made unless such change or departure shall first be submitted to the department of Planning for its approval or disapproval or suggestions. The Department of Planning shall have 45 days from and after such submission within which to send its report to the county government, but the county government shall not be bound by the report.9 Del. C. § 2607 states, in part:
(b) . . . the Department of Planning shall hold at least 1 public hearing, notice of which hearing shall be published at least 7 days before the date of the hearing in a newspaper of general circulation in the County. . . .
(c) . . . the county government shall not be bound by the report of the Department of Planning. Before finally adopting any such changes, the county government shall hold a public hearing thereon, at least 15 days notice of the time and place of which shall be given by at least 1 publication in a newspaper of general circulation in the County.
10 Del. C. § 8126 (a) states:
No action, suit or proceeding in any court, whether in law or equity or otherwise in which the legality of any ordinance, code regulation or map, relating to zoning, or any amendment thereto, . . . is challenged, . . . shall be brought after the expiration of 60 days from the date of publication in a newspaper of general circulation, . . . .
Amico v. New Castle County, D.Del., 101 F.R.D. 472, 480 (1994) (held the sixty-day requirement of 10 Del. C. § 26(a) to challenge the legality of any ordinance, code, regulation or map relating to zoning does not apply when the plaintiff challenges the validity as a violation of constitutional protections. Instead, 10 Del. C. § 8106 provides for a three-year statute of limitations to apply.
Willdel Realty, Inc. v. New Castle County, Del.Supr., 281 A.2d 6112, 614 (1971).
New Castle County Council v. BC Dev. Assocs., Del.Supr., 567 A.2d 1271, 1275 ( citing McQuail v. Shell Oil Co., Del.Supr., 183 A.2d 572 (1962)).
Several notices of the proposed changes were given. In the News Journal on December 17, 1997, notice was given. The notice stated a public hearing would be held to repeal Chapter 32 (former code). On January 12, 1998, the News Journal published an article stating the former code was repealed and the UDC was enacted. From the record, Dragon Run had not met the burden of proof to show the adoption of the UDC was arbitrary and capricious. Although confusing at times, there was no evidence presented that the proposed zoning change was adopted after considering none of the facts. Several hearings were held so the community could voice opinions on the subject matter. The zoning maps were also on display at certain public libraries throughout New Castle County as outlined in the December 17, 1997 publication in the News Journal. These maps were eventually revised and Dragon Run contends this constitutes insufficient notice for due process requirements. The rezoned maps actually help Dragon Run because instead of the property being in a "limited growth area," it has been rezoned to a "growth area."
Further, as evidenced by its discussions in January 1997 with County officials, Dragon Run was aware of the looming UDC. It also was aware that the UDC might allow it to build its cluster proposal. That was the risk it consciously chose. Further, its argument here that the County misled it by suggesting the twelve-month requirement was waived because of the looming UDC lends a hollow ring to its constitutionality argument.
Additionally, Dragon Run's argument is not ripe for decision. In Baldini West, Inc. v. New Castle County, the plaintiff argued the defendant illegally amended its zoning laws because plaintiff did not receive sufficient notice. The plaintiff alleged violations of the U.S. Constitution and state and county statutes. The Court held the case was not ripe for review. The adoption of the ordinance does not constitute a final or even preliminary determination regarding what the plaintiff may build on its land. The plaintiffs' intended use might be permitted by zoning officials through a variance. Here, the adoption of the UDC does not affect Dragon Run's property rights. It has been told to apply under the UDC, which has not even been attempted.
D.Del., 852 F. Supp. 251 (1994).
Id. at 254.
Id.
In summary, Dragon Run's application expired or lapsed. It was no longer controlled by the provisions of the former code. Whatever proposed use or application now exists or to be made must proceed under the UDC. The Planning Board did not err, as a matter of law, in reaching that same conclusion. The writ of certiorari must be denied. Since the UDC divested County Council of jurisdiction over Planning Board decisions, it acted correctly in declining to act on jurisdictional grounds. Dragon Run has no legal right for this Court to enforce against County Council. The writ of mandamus is likewise dismissed.
CONCLUSION
For the reasons stated herein, the petition of Dragon Run Farms, Inc. for a writ of certiorari is DENIED and its petition for writ of mandamus is DENIED.