Opinion
No. 440, 2018
07-11-2019
RIVERFRONT HOTEL LLC, ONIX RIVERFRONT LLC, BFC DEVELOPMENT LLC, and BIGGER FISH LLC, Appellants Below, Appellants, v. BOARD OF ADJUSTMENT OF THE CITY OF WILMINGTON, RIVERFRONT DEVELOPMENT CORPORATION OF DELAWARE, BPG WILMINGTON RIVERFRONT HOTEL XXXIV LLC, and BPG WILMINGTON HOTEL XXXIV LLC, Appellees Below, Appellees.
Court Below: Superior Court of the State of Delaware C.A. No. N17A-11-004 Before VALIHURA, SEITZ, and TRAYNOR, Justices. ORDER
(1) By an order dated April 29, 2019, we vacated the Superior Court's decision as to a floor-area variance granted to BPG Wilmington Riverfront Hotel XXXIV LLC ("Buccini/Pollin") by the Board of Adjustment of the City of Wilmington ("the Board") as moot. We also affirmed the Superior Court's decision as to a landscaping variance granted to Buccini/Pollin by the Board of Adjustment.
Riverfront Hotel LLC v. Bd. of Adjustment of City of Wilmington, No. 440, 2018, 2019 WL 1890989, at *1 (Del. Apr. 29, 2019).
(2) Because we concluded that the floor-area ratio variance issue was moot, we did not address an important issue that we had raised sua sponte: do the appellants ("Big Fish") have standing to attack the variances? We conclude that Big Fish does not have standing and, therefore, deny its motion for reargument.
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(3) "Standing is a threshold question that must be answered by a court affirmatively to ensure that the litigation before the tribunal is a 'case or controversy' that is appropriate for the exercise of the court's judicial powers." "[S]tate courts apply the concept of standing as a matter of self-restraint to avoid the rendering of advisory opinions at the behest of parties who are 'mere intermeddlers.'" The party invoking the jurisdiction of a court bears the burden of establishing standing.
Dover Historical Soc'y v. City of Dover Planning Comm'n, 838 A.2d 1103, 1111 (Del. 2003) (quoting Stuart Kingston, Inc. v. Robinson, 596 A.2d 1378, 1382 (Del. 1991)).
Stuart Kingston, 596 A.2d at 1382.
Dover Historical Soc'y, 838 A.2d at 1109.
(4) In order to demonstrate standing in our courts, we have held that a plaintiff must demonstrate standing in accordance with the federal courts' interpretation of Article III standing, as enumerated in Lujan v. Defenders of Wildlife, as well as satisfy the prudential "zone-of-interests" test. To satisfy the "zone-of-interests" test, the plaintiff must possess an interest within the zone of interests protected by a supporting law.
504 U.S. 555 (1992).
Dover Historical Soc'y, 838 A.2d at 1111 (citing Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 904 (Del. 1994)).
Dover Historical Soc'y, 838 A.2d at 1110; Oceanport, 636 A.2d at 904.
(5) In determining whether Big Fish's petition for review of the Board's variance decision, which Big Fish brought under 22 Del. C. § 328, lies within the "zone of interests," we examine "whether the interest sought to be protected by the complainant is arguably within the zone of interests to be protected or regulated by the statute in question." In this case, that statute is the Delaware zoning law, which states that zoning regulations are "[f]or the purpose of promoting health, safety, morals or the general welfare of the community."
Although 22 Del. C. § 328 seemingly provides that "any taxpayer" may petition for review of a board of adjustment decision, we do not read § 328 to permit Big Fish to bypass the ordinary tests for standing in this case, which is one that does not directly implicate taxation or spending.
Gannett Co. v. State, 565 A.2d 895, 897 (Del. 1989); see also Dover Historical Soc'y 838 A.2d at 1115 (applying zone-of-interests test to organizational standing).
22 Del. C. § 301; City of Lewes v. Nepa, --- A.3d ----, 2019 WL 2415047, at *3 (Del. June 10, 2019).
(6) In its reply brief, Big Fish acknowledges its position as an economic competitor and its interests:
The public's interest is in having the law and zoning ordinances upheld. And even if the opposition is from a competitor with a nearby hotel, so
what? Why should one hotel company follow the rule of law and zoning ordinances and another not have to for no valid reason?Thus, Big Fish seems to acknowledge that its interest is chiefly the general public interest in what it perceives to be the proper application of the applicable zoning law. If we give Big Fish's briefing a generous reading, we might also recognize that Big Fish has articulated an economic interest as Buccini/Pollin's competitor.
Reply Br. 9; see also Opening Br. 11 ("perhaps most important, this Court should reverse the Board's decision . . . because it eviscerates this Court's holding in [Kwik-Check]").
(7) Neither the public interest in lawfulness nor an interest in limiting competition is sufficient for zone-of-interests standing in a zoning case. Big Fish thus lacks standing to bring this petition for the review of the Board's decision as to either variance. This disposition vacates both our previous order and the Superior Court's order, leaving in place the variances granted by the Board.
See Citizens for Smyrna-Clayton First v. Town of Smyrna, 2002 WL 31926613, at *5 (Del. Ch. Dec. 24, 2002), aff'd 818 A.2d 970 (Del. 2003) (no standing where neighboring property owner's interest "is no more than a keener variation of the interest of every member of the public in seeing the zoning ordinances enforced.").
Sun-Brite Car Wash, Inc. v. Bd. of Zoning & Appeals of Town of N. Hempstead, 508 N.E.2d 130, 135 (N.Y. 1987) ("zoning laws do not exist to insure (sic) limited business competition"); accord Miller Apple Ltd. P'ship v. Emmet Cty., 2010 WL 446053, at *3 (Mich. Ct. App. Feb. 9, 2010); Patel v. City Council of Peabody, 889 N.E.2d 77 (Mass. App. Ct. 2008); E. Serv. Centers, Inc. v. Cloverland Farms Dairy, Inc., 744 A.2d 63, 67 (Md. App. 2000); Nautilus of Exeter, Inc. v. Town of Exeter, 656 A.2d 407, 408 (N.H. 1995); Nernberg v. City of Pittsburgh, 620 A.2d 692, 696 (Pa. 1993); City of Eureka v. Litz, 658 S.W.2d 519, 523 (Mo. Ct. App. 1983); McDermott v. Zoning Bd. of Appeals of Town of W. Haven, 191 A.2d 551, 553 (Conn. 1963).
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NOW, THEREFORE, IT IS ORDERED that the order of this Court dated April 29, 2019 is VACATED, that the order of the Superior Court dated July 31, 2018 is VACATED, and that the motion for reargument is DENIED.
BY THE COURT:
/s/ Gary F . Traynor
Justice