Opinion
C.A. No. 00A-03-003.
Submitted: June 2, 2000.
Decided: June 8, 2000.
Upon Plaintiff In Error's Motion to Take Exception to a Portion of the Record of Proceedings-Denied .
Dear Counsel:
Before the Court is Plaintiff in Error's Motion to Take Exception to a Portion of the Record of Proceedings.
A public hearing was held before the Kent County Board of Adjustment ("Board") on February 17, 2000 to consider the application of Mesa Communications Group, L.L.C. ("Mesa Communications") for a variance in order to build a communications tower. At the hearing, evidence was entered into the record for consideration by the Board. However, according to the Plaintiff in Error, a letter from Luna I. Mishoe, II, President of Mishoe Towers, Inc., dated January 15, 2000 was never officially entered into evidence at the hearing, yet it is now included as part of the appellate record. The letter was ultimately relied on by the Board in their determination and, according to counsel for the Defendant in Error, was available for public inspection for approximately one month before the public hearing. Currently, the Plaintiff in Error is taking exception to the inclusion of the letter from Luna I. Mishoe, II as part of the certified record on appeal because it was not entered into evidence during the proceedings below.
29 Del. C. § 10112. Public Information.
(a) Each agency shall make available promptly to the public upon request, for inspection, originals or legible copies of the following:
(1) Its regulations, orders, decisions, opinions and licenses;
(2) Any documents, papers and other materials considered by the agency in taking agency action; or
(3) Any records of the agency reasonably specified by the requesting person.
To the contrary, the Defendant in Error submits that since the letter was available for public inspection before the hearing and since the Board relied on the letter in coming to their determination, that the letter did not have to be formally entered into evidence to become part of the record. The Defendant in Error also contends that since the entire file for a variance is part of the record, and the letter was part of the application in this file, it must, in turn, be part of the record. This Court agrees with this position.
Plaintiff in Error relies on New Castle Dev. Co., L.L.C. v. Condouris, C.A.-No. 96A-02-006, Herlihy, J. (Aug. 13, 1996) (Mem. Op.), in support of its position. This case is easily distinguishable from the instant matter. In Condouris, the Court was confronted with an appeal from the Board of Adjustments. In the underlying matter, one of the board members had personal knowledge of the site in question which was not part of the evidence introduced at the hearing. The contention on appeal was that the personal knowledge of the board member influenced his decision.
This is far different than what the Court is confronted with in the case at bar. The Plaintiff in Error contends that since the letter was not entered into evidence that it cannot be part of the certified record on appeal. The facts of Condouris do not stand for the proposition that this letter must have been entered into evidence in order to be part of the appellate record. In Condouris, the board member had personal knowledge that was outside the scope of the hearing. That is not the case here. At the underlying hearing, the letter, as well as other pertinent evidence, was discussed that dealt with the height of the tower. This was not a case of a board member relying on knowledge that was acquired from somewhere outside the hearing and unknown to the parties. This is a case dealing with the formality of entering a piece of evidence into evidence that was relied on by the Board in coming to their decision. Therefore, Condouris is not applicable.
In the case sub judice, the letter in question was in the application file for the variance requested by Mesa Communications. In the public notice that is dispersed by the Kent County Planning Commission noticing the hearing, it is stated that the file for this application is a public record and is available for inspection by the public at any time before the hearing date. As such, the application file was available at the Kent County Planning Office before the date of the public hearing. Since this letter was part of the public file, it was obviously available for inspection by Mesa Communications before the time of the hearing. This Court also believes that since this letter was relied on by the Board in making their decision that it must have been part of the application file, and as such, must have been available to the Plaintiff in Error before the commencement of the public hearing. Therefore, Mesa Communications did have an opportunity to inspect this letter before the hearing and examine the letter at the hearing to attack the weight to be given to it by the Board.
The argument espoused by counsel for the Plaintiff in Error that Mesa Communications was unrepresented at the hearing does not carry any weight before this Court because although the entity proceeded without counsel at the hearing, it is still held to the same standard as if it had been represented by counsel before the Board. Regardless of whether Mesa Communications was represented at the hearing, the entity still had the opportunity to inspect the Mishoe letter for at least one month prior to the hearing. Therefore, the Plaintiff in Error's Motion To Take Exception To A Portion of The Record of Proceedings filed in this case is denied and the letter of Luna I. Mishoe, II dated January 15, 2000 will be deemed part of the appellate record.
IT IS SO ORDERED.