Acierno v. Folsom

• Decision Date: 10 May 1973
• Citation: 313 A.2d 904
• Parties: Frank E. ACIERNO, Plaintiff, v. Henry R. FOLSOM, Jr., Individually and as President of the New Castle County Council, et al., Defendants.
• Court: Court of Chancery of Delaware

Page 904

313 A.2d 904

Frank E. ACIERNO, Plaintiff, v. Henry R. FOLSOM, Jr., Individually and as President of the

New Castle County Council, et al., Defendants.

Court of Chancery of Delaware, New Castle County.

May 10, 1973.

On Reargument May 24, 1973.

James M. Tunnell, Jr., David A. Drexler and James F. Waehler of Morris, Nichols, Arsht & Tunnell, Wilmington, for plaintiff.

Harvey B. Rubenstein, Asst. County Atty. of New Castle County, and Thomas F. Luce, County Atty. of New Castle County, Wilmington, for defendants.

MARVEL, Vice Chancellor:

Plaintiff is the long term lessor of a large part of a parcel of land consisting of some forty acres situate in New Castle County and located near the intersection of Interstate Highway 95 and Route 273. He also owns in fee simple a small parcel of land adjoining the leased tract which parcel fronts on Route 273. The entire parcel of some forty acres here in issue is zoned M--1 and C--2 under New Castle County laws and regulations.

Plaintiff seeks relief from this Court after having failed to gain approval of his plans to build a shopping center on the tract in issue in administrative proceedings provided for in regulations based on the provisions of 9 Del.C. § 1341 et seq., which regulations set up procedures for land use applications such as plaintiff's. Having exhausted his administrative remedies, plaintiff now seeks equitable relief on the ground that rejection of his building plans by the County was arbitrary and unlawful.

On May 11, 1971, plaintiff filed with the Department of Planning for New Castle County a so-called exploratory sketch plan for the construction of his proposed shopping center as a preliminary step towards obtaining approval of his project. This initial plan was then followed up on August 8, 1971, as required by regulations, with a preliminary-tentative building plan, which plan was thereafter disapproved by the Department of Planning on October 22, 1971. Plaintiff thereupon appealed to the Planning Board which reversed the ruling of the Department of Planning. Thereafter, on January 24, 1972, a final plan for plaintiff's contemplated shopping center was filed with the Department of Planning. On February 24, 1972, however, the Department of Planning denied approval of plaintiff's final plan (1) because of its alleged conflict with the general comprehensive development plan adopted for New Castle County, (2) because the shape of the tract in issue allegedly makes it unsuitable for the construction of a shopping center, and (3) because of the impact on the area in question of the increased traffic which would allegedly result from the erection of the proposed shopping center. Plaintiff thereupon appealed to the Planning Board, which, after a final hearing, informed plaintiff on April 26, 1972 that it had voted to sustain the Department of Planning's disapproval of plaintiff's plan.

Thereafter, pursuant to applicable regulations, a hearing on plaintiff's application was held on August 22, 1972 before the County Council at which Dr. V. Eugene McCoy, chairman of the Planning Board, allegedly improperly participated in opposing plaintiff's plans, having, it is claimed, placed on record his opposition to plaintiff's proposed plan and having allegedly argued that plaintiff's appeal should be dismissed notwithstanding the fact that he had sat on the application below as chairman of the Planning Board.

However, before a decision was reached by the County Council, a stipulation was entered into between County Council, the Planning Department, and plaintiff under the terms of which it was agreed that plaintiff's application should be returned to the Department of Planning for the receipt of additional evidence on three aspects of plaintiff's proposed shopping center, namely: (1) whether or not the comprehensive development plan of the County precluded approval of plaintiff's final plan, (2) whether or not such final plan was of suitable internal design, and (3) whether or not plaintiff's proposed shopping center would allegedly have an adverse effect on highway traffic in the vicinity of such proposed shopping center.

Following such rehearing, the Department of Planning found against plaintiff on all three of the above questions submitted for consideration. Thereupon, plaintiff again appealed to the Planning Board. A hearing was then held by such agency, which, after receiving legal advice, decided (1) 6 to 0 in favor of plaintiff as to the alleged incompatibility of plaintiff's plan with the County's comprehensive development plan, (2) 4 to 2 for plaintiff in overruling the Department's rejection of plaintiff's plan on the ground of unsuitable internal design of his project, and (3) 3 to 3 to sustain the Planning Department's rejection of plaintiff's plan on the ground that it would have an adverse effect on vehicular traffic in the area. ¹

After the taking of the vote at the conclusion of the hearing, in which Chairman McCoy and two other Board members voted to affirm the ruling of the Department of...