Opinion
C.A. No. 2921-VCN.
Date Submitted: August 24, 2007.
August 29, 2007.
John W. Paradee, Esquire D. Benjamin Snyder, Esquire Glenn C. Mandalas, Esquire Prickett, Jones Elliott, Dover, DE.
William W. Pepper, Sr., Esquire, Schmittinger and Rodriguez, P.A., Dover, DE.
Joseph Scott Shannon, Esquire Daniel A. Griffith, Esquire Marshall, Dennehey, Warner, Coleman Goggin, Wilmington, DE.
Dear Counsel:
Before the Court is Petitioners' Motion for Reargument under Court of Chancery Rule 59(f). The Petitioners question that portion of the Court's Memorandum Opinion of August 9, 2007, which concluded that they had not demonstrated a reasonable probability of succeeding in their challenge, under 9 Del. C. § 4959(c), to the retroactive application of Respondent Kent County's Adequate Public Facilities Ordinances ("APFOs"). Specifically, they argue that the Court failed to give sufficient weight to the statutory construction principle that all parts, if possible, of a statute should be given effect "so that no part will be inoperative."
In re Kent County Adequate Public Facilities Ordinances Litig., 2007 WL 2318588 (Del.Ch. Aug. 9, 2007).
See, e.g., Lloyd v. State, 534 A.2d 1262, 1266 (Del. 1987); DiSabatino v. Ellis, 184 A.2d 469, 473 (Del. 1982); Rainey v. Wilmington Parking Auth., 488 A.2d 906, 909 (Del.Super. 1984).
In order to prevail on a motion for reargument, the moving party must demonstrate that the Court "overlooked a decision or principle of law that would have [had] controlling effect or that the Court . . . misapprehended the law or the facts so that the outcome of the decision would be affected."
Miles, Inc. v. Cookson Am., Inc., 677 A.2d 505, 506 (Del.Ch. 1995).
By 9 Del. C. § 4959(c), landowners and developers are protected from the adverse consequences of the "adoption or amendment" under 9 Del. C. ch. 49, subch. II of a "comprehensive plan or element thereof" once they have filed their application for a development permit. The Petitioners claim that the Court in its Memorandum Opinion failed to give independent meaning to the term "element thereof" and should have treated the APFOs, land use ordinances adopted by Kent County, as "elements" of its Comprehensive Plan." First, the Court addressed this contention in some detail in the Memorandum Opinion, and the Petitioners largely simply rehash their previous arguments. Second, although it is desirable that all portions of a statute be given significance, that statement of interpretive principle always carries the qualifier, "if possible." Third, the Petitioners have failed to present any authority or any persuasive argument for the proposition that land use ordinances are part of or "elements" of comprehensive plans. Comprehensive plans and land use ordinances are, as noted in the Memorandum Opinion, distinct legal pronouncements by the Counties, each serving important, but different, purposes. Fourth, drafters of legislation sometimes are careful to make certain that the intent to include certain matters is not in doubt, and, in this instance, the use of the word "thereof" following the conjunction "and" necessarily takes the interpretation of the phrase "element thereof" back to the Comprehensive Plan itself. Ultimately, the "elements" of the Comprehensive Plan consist of several parts or portions of the integrated document. Finally, 9 Del. C. § 4956 provides an important clue as to what the legislature intended by use of the term "element." That section identifies numerous "elements" that are to be included within the Comprehensive Plan. Although certainly not dispositive of the proper interpretation of the phrase "element thereof," this suggests that the elements which are referenced in § 4959(c) are those specifically identified in § 4956 and those which the Levy Court has the discretion to add under § 4956(h). In sum, the Petitioners have not demonstrated that the phrase "element thereof," as used in § 4959(c) can reasonably be extended to include the land use ordinances of Kent County.
See In re Kent County Adequate Public Facilities Ordinances Litig., 2007 WL 2318588, at *6-*7.
The core of the Petitioners' motion depends upon what some would consider a common sense proposition. If protection is to be given to filed land use applications from retroactive application of changes in the Comprehensive Plan, would not it also make sense to protect them from changes in the land use ordinances, especially because the impact ( i.e., as a result of the "force of law" aspect) of amendments of ordinances will frequently be even more onerous? That is a policy argument that may be worthy of consideration; it is, however, a policy that was not implemented through 9 Del. C. § 4959(c). Whether the Petitioners can find refuge otherwise from the retroactive application of the APFOs is not now a question before the Court.
The Petitioners' argument, to be sure, is one that has some merit. Certainly, there is room for reasonable disagreement. The Court, however, is persuaded that land use ordinances are not commonly understood to be an element or component of a comprehensive plan and, furthermore, is cognizant of the obvious proposition, that if the General Assembly had intended to include amendments of land use regulations within the scope of § 4959(c), it would have been easy to have done so.
Accordingly, because the Court neither misapprehended any material facts nor misapplied any established principles of law, the Petitioners' motion for reargument is denied.
IT IS SO ORDERED.