Opinion
C.A. No. 03A-03-004 THG.
Submitted: June 8, 2004.
July 26, 2004.
Dear Counsel, Ms. Reece, and Mr. Gugno:
Liborio, L.P. ("Appellant") has sued the Sussex County Planning and Zoning Commission ("Commission"), Thaddeus Nowakowski ("Nowakowski"), Christine Reece ("Reece") and William Gugno ("Gugno") due to a decision by the Commission granting a subdivision request. The decision changed alleged recorded open space owned by Nowakowski into a building lot, on which Reece and Gugno plan to build a home. Appellant seeks a reversal of that decision. Appellant contends that the Commission's decision to allow the space to be used as a building lot was in violation of the law, was arbitrary and capricious, and was without any legal or factual justification and violated the Appellant's right. Appellant also contends that the Commission's decision must be reversed and/or remanded because the record and transcript does not present sufficient facts to allow the Court to review the Commission's decision, and that the Commission does not state its findings of facts and conclusions of law with particularity. For the reasons set forth herein, the Court reverses the Commission's decision and remands the case to the Commission for further proceedings in accordance with this decision.
STATEMENT OF THE FACTS
In 1973, Nowakowski, an owner of land in Sussex County, recorded a major subdivision known as Fox Hollow. This subdivision contained 85 lots, a parcel of open space and some commercial land The plan was recorded in Plot Book 15, page 143. The plan provided for a parcel of 1.25 acres of "open space." Nowakowski conveyed the parcel of space described as "open space" to himself and his wife. Nowakowski still owns the plot of land and a survey done for him in October 1987 describes the plot as "open space."
The Deed Restrictions for Fox Hollow call for an Owners Association to assess yearly maintenance fees to take care of the facilities to be owned by the Association, including the open space. However, no Owners Association was formed and Nowakowski never conveyed the open space over to another party. Recently, Nowakowski entered into a contract to sell the plot to Reece and Gugno contingent on their being able to build a home on the land As such, Reece filed an "Application for Major Subdivision Plan Review" before the Commission, which held a hearing on the matter on February 20, 2003.
The Commission heard testimony from Reece, Nowakowski and John Gorecki, a resident of Fox Hollow. The Commission also considered various documents, including the Fox Hollow Record Plan, the survey done in October 1987, letters and a petition from residents of Fox Hollow who supported the land being sold, as well as a letter from the Appellant in opposition to the land not being rezoned. During the hearing, Reece testified that the open space was not maintained and that the residents of Fox Hollow were happy that it would be maintained once sold to her. Nowakowski stated that the "open space" on the Plan meant that it would be open space for his family and that his family had used it for their own purposes throughout the years. Nowakowski also stated that his family paid the taxes for the land and maintained it, telling the Commission that when the Constable was called due to the land being in poor condition, it was his family who was told to cut the grass.
One of the Commissioners stated that "[t]he subdivision approved was a designated patch of open space," and expressed some doubt as to whether they could grant the subdivision request. In response, Mr. Robertson, the County's attorney, stated:
That was one of the questions I was going to look at. If it is open space in the restrictions it talks about, there is a sentence in the first paragraph that says: Open space parcel shall remain a noncommercial use for the benefit of all the residents of the development.
If it is a designated open space and it seems like if you are going to turn it into a residence, that takes it out of the benefit of all the residents of the development. You can't amend those restrictions, it looks like. (February 20, 2003 TR-6).
Later one of the Commissioners stated, "I think the intent was clear that it was intended to not be developed, to sit there." (TR-18). The Chairman, however, expressed a belief that possibly allowing Reece to own the property and "cut the grass down and get rid of the weeds and the vermin and the bugs and the bees and a few other things —" would benefit all the residents of Fox Hollow. (TR-18).
There was some doubt as to whether or not the restrictions on the parcel were recorded and thus, whether or not they were binding. In addition, questions regarding the signatures on the petition were raised by Mr. Gorecki who believed that some of the signatures belonged to renters of the properties rather than owners. Furthermore, there was confusion as to what percentage of homeowners would need to agree to a change in the restriction.
When the Application came up for a vote later that evening, a Commissioner, stated, "I think we ought to let them do it, just to see what happens." (TR-24). The Commission decided instead to table the vote until a later meeting in order to let Mr. Robertson investigate the matter further. On March 13, 2003, the Commission reopened the Application. Mr. Lank stated that Mr. Robertson reviewed the deed restrictions and, paraphrasing a letter written by Mr. Robertson, told the Commission that the language in the recorded restrictions would have little or no effect on the Commission's decision. "It is taking an open area parcel, and they want to create a building lot out of it." (March 13, 2003 TR-2). Without further discussion, the Application was approved. This litigation followed.
STANDARD OF REVIEW
An individual challenging a re-zoning decision has the burden of rebutting the presumption of validity. Tate v. Miles, 503 A.2d 187 (Del. 1986). This Court's role in reviewing a zoning decision is limited to a review of the record to ascertain if the decision is supported by substantial evidence or whether it is in any way arbitrary, capricious or an abuse of discretion. Willdel Realty, Inc. v. New Castle County, 281 A.2d 612 (Del. 1971); Kreshtool v. Delmarva Power and Light Co., 310 A.2d 649 (Del.Super.Ct. 1973); Olney v. Cooch, 425 A.2d 610 (Del.Super.Ct. 1981); Cohen et al. v. Rental Housing Commission, 496 A.2d 603 (D.C.Ct.App. 1985). Arbitrary and capricious has been interpreted as referring to an action:
which is unreasonable or irrational, or to that which is unconsidered or which is wilful and not the result of a winnowing or sifting process. It means action taken without consideration of and in disregard of the facts and circumstances of the case. Action is also said to be arbitrary and capricious if it is whimsical or fickle, or not done according to reason; that is, it depends upon the will alone.Willdel Realty, Inc. v. New Castle County, 270 A.2d 174, 178 (Del.Ch.Ct. 1970).
Generally, the Court will review the record of proceedings before the zoning authority and all factual determinations fairly made by that authority are deemed conclusive. Town of Bethany Beach v. County Planning and Zoning Commission of Sussex County, Del. Ch., 1980 Del. Ch. LEXIS 440, C.A. No. 642-S, Hartnett, V.C. (October 10, 1980). A valid rezoning, however, must be supported by a record sufficient to enable a court to ascertain if the presumption in favor of the County's action arose. Tate, 503 A.2d 187; Steen v. County Council of Sussex County, 576 A.2d 642, 648 (Del.Ch.Ct., 1989). When the record does not show the reason for or allow the Court to ascertain why a zoning change was made, the Court must remand the entire matter for further development of the record. Tate, 503 A.2d 187; Stephen C. Glenn, Inc. v. Sussex County Council, 532 A.2d 80 (Del.Ch.Ct., 1987).
DISCUSSION
The threshold question is whether or not the Commission created a sufficient record for the Court to enable it to evaluate their decision making process. The Commission has failed to adequately articulate the basis for its decision. The present record fails to show the reasoning, thought processes or legal standards applied by the Commission. Furthermore, the record does not explain how, or on what basis, the Commission, whose members repeatedly referred to the land as open space reserved for the benefits of the residents of Fox Hollow, could then vote to change the space into a building lot. The transcripts from the hearings held in February and March do not show a careful inquiry into the facts of the case and subsequent application of Delaware law to those facts, but rather a decision based on "see[ing] what happens." In sum, the Commission failed to create a record of the reasons for its decision. As such, the Court has no way of knowing why the Commission acted as it did.
Thus, the decision of the Commission to change the parcel described as "open space" into a building lot cannot be effectively reviewed by this Court. My only alternative, then, is to remand this case back to the Commission. See Garden Court Apartments, Inc. v. Hartnett, 65 A.2d 231 (Del.Super.Ct. 1949).
CONCLUSION
For the foregoing reasons, the decision of the Sussex County Planning and Zoning Commission is reversed and remanded for further proceedings in accordance with this opinion.