Acierno v. Folsom
| Decision Date | 14 March 1975 |
| Citation | 337 A.2d 309 |
| Parties | Frank E. ACIERNO, Plaintiff below, Appellant, v. Henry R. FOLSOM, Jr., Individually and as President of the New Castle County Council, et al., Defendants below, Appellees. |
| Court | United States State Supreme Court of Delaware |
Upon appeal from Court of Chancery. Reversed.
James M. Tunnell, Jr., David A. Drexler and James F. Waehler, Morris, Nichols, Arsht & Tunnell, Wilmington, for plaintiff below, appellant.
Joseph M. Bernstein, New Castle County Dept. of Law, Wilmington, for defendants below, appellees.
Before HERRMANN, C.J., and DUFFY and McNEILLY, JJ.
In this case, the New Castle County Council disapproved the appellant's subdivision plan. The appeal is from the denial by the Court of Chancery of injunctive relief sought by the appellant. Two determinative questions are presented: (1) Did 1 the County Council have lawful authority to reject a subdivision plan approved by the Planning Board? and if not, (2) Was the appellant's subdivision plan approved by the Planning Board as a matter of law i.
The basic facts, as to which the Trial Court found no dispute, and the contentions of the parties are stated at length in a reported opinion upon another facet of the case: see (Del.Ch.) 313 A.2d 904, aff'd 311 A.2d 512. Reference is made to the statement of facts and the contentions of the parties there set forth.
II.
The decision from which this appeal is taken is not reported.
The Court below held that the County Council was authorized to 'reach its own conclusion after its own deliberation and review of the record' and to reject a subdivision plan approved by the Planning Board; that, therefore, the 'official tally of the votes at the Planning Board level' was irrelevant. Accordingly, the Court of Chancery denied the relief sought by the appellant by granting summary judgment in favor of the appellees. We must disagree.
III.
The scope of review of the County Council on appeal to it regarding a subdivision plan was limited by Statute and Regulation which defined the role of the County Council in the regulatory scheme thereby established:
The first echelon in the administrative control of subdivisions in New Castle County was the Department of Planning. By 9 Del.C. § 1345, enacted as part of the Reorganization Act (9 Del.C. Ch. 11) and entitled 'Legal Effect of Subdivision Regulations', the Department of Planning was vested with primary authority to approve subdivisions:
'All proposed subdivisions of land to be made after the adoption of regulations governing subdivision of land shall be submitted to the Department (of Planning) for approval for conformity to the subdivision regulations and no such proposed subdivision shall be made or recorded unless approved by the Department. * * *'
The enabling Statute ( the Reorganization Act) provided for the proposal of subdivision regulations by the Department of Planning and approval thereof by the County Council. 9 Del.C. § 3003. The Statute prohibited the issuance of building or occupancy permits, or the selling of subdivided land, or the recording of plans except in accordance with the Subdivision Regulations. 9 Del.C. §§ 3005, 3006, 3007. The Subdivision Regulations thus duly adopted limited the scope of review of the Planning Board and the County Council over controversies involving subdivision plans.
As to the Planning Board: 2 Section 8.31 of the Subdivision Regulations provided:
'8.3 Appeal
3
And as to the County Council, § 8.32 of the Subdivision Regulations provided:
Several elements, governing appeals in subdivision plan matters, were clear on the face of the Regulations: (1) The Planning Board could only review upon application of a subdivider 'aggrieved' by Department action; (2) County Council could review only a denial of approval by the Planning Board. If the Planning Board approved a subdivider's plan, the Department of Planning was given no right to appeal and the County Council was given no right of review; and in the absence thereof, the subdivision plan was forwarded to County Council for endorsement prior to recordation.
To summarize for the purposes of this case, we view the statutory and regulatory scheme controlling subdivision plans as follows: The Department of Planning was given the primary power to approve subdivision plans. (9 Del.C. § 1345). If there was an approval, there was no further review. If, however, the Department disapproved a proposed plan, the 'aggrieved' subdivider could appeal to the Planning Board which had the power to 'reconsider' the matter and to approve or to affirm disapproval. (Regulation Sec. 8.31). If the Planning Board approved the plan, its decision was final and the Department Director was obliged to register its approval in accordance with the mandate of the Board; but if the Board also disapproved the plan, the disappointed subdivider had recourse on appeal to the County Council which, like the Planning Board, had the power to 'reconsider' and to approve or to affirm the disapprovals. (Regulation Sec. 8.32). The County Council was not given the authority to disapprove an approved plan. Indeed, by necessary implication, such authority was denied to the County Council by the Regulation.
Upon the basis of the foregoing, we have concluded that the Trial Court erred in holding that the County Council was empowered upon appeal to reach its own conclusion, after review of the record, as to approval or disapproval of a subdivision plan, regardless of the action taken by the Planning Board; and that, therefore, the correct vote at the Board level need not be decided.
The Trial Court relied upon 9 Del.C. § 3007(a) 4 in support of its conclusion. That 1965 Statute must be reconciled with the 1967 Reorganization Act and the Regulations duly promulgated thereunder. As thus reconciled, the requisite approval by the County Council of subdivision plans approved by the Planning Department, either initially or pursuant to the mandate of the Board, must be deemed to be a ministerial act. See State ex rel Rappa v. Buck, Del.Super., 275 A.2d 795 (1971).
The appellees contend that, by virtue of 9 Del.C. § 1345, the Planning Department had the sole and exclusive power and authority to approve a subdivision plan; that the Planning Board had consultive authority only under § 1343, and had no power to reverse a disapproval by the Planning Department; 5 that, therefore, the Trial Court did not err in ruling that it was not required to pass on the voting issues.
This argument disregards several persuasive factors: (1) The Regulations, duly promulgated under statutory authority, have the force and effect of statute; (2) Sec. 8.3 of the Regulations, providing for 'reconsideration' by the Board of decisions of the Department unfavorable to an 'aggrieved' subdivider, was entitled 'Appeal'; and the word 'appeal', when used in conjunction with administrative proceedings is deemed, unless otherwise indicated, to be used in its ordinary sense and meaning as when used in conjunction with judicial proceedings, including the power to reverse. See State ex rel Spurck v. Civil Service Board, 226 Minn. 240, 32 N.W.2d 574 (1948); 2 Am.Jur.2d 'Administrative Law' § 546; Kelley v. Hopkinton Village Precinct, 108 N.H. 206, 231 A.2d 269 (1967); (3) the power of 'reconsideration' by the Board of the decision of the Department would be meaningless without the power to reverse the decision of the Department; (4) without the power of reversal in the Board there would be no administrative provision for review of unlawful, arbitrary, or capricious decisions of the Department, a mainfest purpose of the Statute and the Regulations; 6 (5) the obvious design and purpose of the Statutes and Regulations was to resolve administrative matters such as approval of plans at the Department or Board level, and to involve the busy Council in such matters only upon the application of an 'aggrieved' subdivider who stood at the Council's door with a plan disapproved by both the Department and Board.
We conclude that under Regulations Secs. 8.31 and 8.32, an approval of the Planning Board was binding upon the Planning Department; that upon such approval the Director of the Department was obliged to certify that the plan was in conformity with the Regulations; and that upon such certification, the County Council was obliged, as a ministerial function, to register its approval for recordation purposes.
The foregoing conclusion is consistent with the concept that the Planning Board, appointed by the County Executive and confirmed by the County Council, and its Chairman, appointed by the County Executive and answerable directly to him, constitute an arm and agency of the Executive and the Council. This concept explains the obvious administrative scheme, spelled out by the Regulations, under which the Council has delegated to the Board the final decision if a subdivision plan is approved by it, reserving to itself in such case only the statutory ministerial function of approval, and involving itself further only if a subdivider is 'aggrieved'. Compare Great Western Savings Ass'n. v. City of Los Angeles, 31 Cal.App.3d 403, 107 Cal.Rptr. 359 (1973).
If the County Council finds this result unintended, its recourse is revision of its Regulations.
IV.
The foregoing conclusion...
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...it would result in further delay in Champlin's efforts to obtain a decision on its application. Rather, in reliance on Acierno v. Folsom, 337 A.2d 309, 317 (Del.1975), the trial justice simply subtracted the votes of the three disqualified members from the five to five tie vote rendered at ......
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Champlin's Realty Associates v. Tikoian, C.A. No. PC 06-1659 (R.I. Super 2/23/2009), C.A. No. PC 06-1659.
...right of property owners to a final adjudication within a reasonable period would be prejudiced). The Court also finds Acierno v. Folsom, 337 A.2d 309 (Del. 1975) instructive. In Acierno, the chairperson of the Planning Board had acted as an adversary in an earlier appeal by an applicant se......
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Acierno v. Mitchell, 93-7031
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Acierno v. New Castle County
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