Atlantis I Condominium Ass'n v. Bryson

• Citation: 403 A.2d 711
• Parties: 9 Envtl. L. Rep. 20,798 ATLANTIS I CONDOMINIUM ASSOCIATION, Appellant Below, Appellant, v. John C. BRYSON, Secretary of Department of Natural Resources and Environmental Control of The State of Delaware, Appellee Below, Appellee.
• Decision Date: 23 May 1979
• Court: United States State Supreme Court of Delaware

Page 711

403 A.2d 711

9 Envtl. L. Rep. 20,798

ATLANTIS I CONDOMINIUM ASSOCIATION, Appellant Below, Appellant, v. John C. BRYSON, Secretary of Department of Natural Resources and Environmental Control of The State of

Delaware, Appellee Below, Appellee.

Supreme Court of Delaware.

Submitted March 16, 1979.

Decided May 23, 1979.

Upon appeal from Superior Court. Affirmed.

Robert L. Halbrook, of Wilson, Halbrook, Bayard & Bunting, Georgetown, for appellant below, appellant.

June D. MacArtor, Deputy Atty. Gen., Dover, and James D. Griffin, of Griffin & Hackett, P.A., Georgetown, for appellee below, appellee.

Before DUFFY, McNEILLY and QUILLEN, JJ.

McNEILLY, Justice:

In this appeal from Superior Court, the issues presented are:

(1) Whether the Beach Preservation Act of 1972, 7 Del.C. Ch. 68, invests the Department of Natural Resources and Environmental Control (DNREC) with the authority to issue permits regulating residential construction on private beaches in Delaware; and,

(2) If that authority is found to exist, whether it constitutes a lawful delegation of legislative power to the DNREC.

I

Pursuant to regulations promulgated by the DNREC, Ocean View Properties applied to the Division of Soil and Water Conservation, DNREC, for a permit to build six semidetached condominium apartments on three adjoining, privately owned, beachfront lots, together with a timber bulkhead, to be located seaward of the lots in the primary coastal dune, on State owned property. The initial application was denied and, on appeal to the Secretary of the DNREC, the denial was upheld.

Ocean View Properties modified its plans and submitted a new application for a permit, which the Division granted. The appellant, Atlantis I Condominium Association, appealed the decision to the Secretary of the DNREC. ¹ Following a public hearing on the matter, the Secretary affirmed the order granting the permit on the grounds that the modified plans provided a "high degree of protection for the proposed construction and for adjacent properties." The Secretary's conclusion was supported with specific findings of fact.

The appellant then appealed the Secretary's decision to the Superior Court, which affirmed the Secretary's order. Atlantis I Condominium Association now brings this appeal from the order of the Superior Court.

The appellant contends that the permit issued by the DNREC is invalid because the regulations authorizing its issuance are based upon an unconstitutional delegation of legislative power and exceed the authority of the DNREC. The appellant argues that the purposes of the Beach Preservation Act of 1972 (the Act) are too vague and indefinite to constitute a proper grant of authority to the DNREC to adopt regulations governing residential construction on private beach property. The appellant notes that the Act fails to authorize residential construction on private beach property and that it fails to set forth any standards by which the DNREC could enact regulations governing residential construction on private beaches. Thus, the appellant concludes that, absent any specific language in the Act concerning the regulation of residential construction on private beaches, the DNREC has no authority to issue permits allowing such construction.

II

The Delaware courts have long recognized the necessity for the General Assembly to delegate its regulatory authority to administrative agencies. See State v. Retowski, Del.Ct.Gen.Sess., 175 A. 325 (1934); Hoff v. State, Del.Super., 197 A. 75 (1938). The difficulties arise in trying " . . . to mark the line which separates the legislative power to make laws from administrative authority to make regulations . . . ." Hoff, at 79. As Chief Justice Layton so aptly stated in Hoff, "(T)he true distinction is between the delegation of power to make the law, which necessarily involves a discretion as to what it shall be, and conferring authority and discretion as to its execution, to be exercised in pursuance of the law." Hoff, at 79.

The test for determining the validity of a legislative delegation was stated concisely in State v. Durham, Del.Super., 191 A.2d 646 (1963):

"Generally, a statute or ordinance vesting discretion in administrative officials without fixing any adequate standards for their guidance is an unconstitutional delegation of legislative power. But a qualification to that rule is that where the discretion to be exercised relates to police regulation for the protection of public morals, health, safety, or general welfare, and it is impracticable, to fix standards without destroying the flexibility necessary to enable the administrative officials to carry out the legislative will, the legislation delegating such discretion without such restrictions may be valid. Adequate safeguards and standards to guide discretion must be found in or be inferable from the statute, but the standards need not be minutely detailed, and the whole ordinance may be looked into in light of its surroundings and objectives for purposes of deciding whether there are standards and if they are sufficient." 191 A.2d, at 649-650 (emphasis added); Accord, State v. Braun, Del.Super., 378 A.2d 640 (1977).

"1 The basic purpose behind the nondelegation doctrine is sound: Administrators should not have unguided and uncontrolled discretionary power to govern as they see fit." I Davis, Administrative Law Treatise § 3:15 (2d ed. 1978). Clearly, unbridled administrative discretion was the primary concern of the Court in Durham, supra. That being the case our focus turns toward "the totality of protections against (administrative) arbitrariness, including safeguards and standards", regardless whether those protections are set forth in the legislation itself or in the procedures used by the administrative agency to execute the legislation. Davis, supra. Thus, while the existence of statutory standards is relevant in assessing the validity of a delegation of authority, the "totality of protections", including the existence of safeguards, for those whose interests may be affected is determinative. Meyer v. Lord, Or.App., 37 Or.App. 59, 586 P.2d 367, 371 (1978); See also Horner's Market v. Tri-County Trans., Or.Supr., 471 P.2d 798 (1970).

Where it is not feasible for the General Assembly to supply precise statutory standards without frustrating the purposes of the legislation, the presence of procedural safeguards may compensate substantially for the lack of precise statutory standards. State v. Boynton, Me.Supr., 379 A.2d 994 (1977). The preciseness of the statutory standards will vary with both the complexity of the area at which the legislation is directed and the susceptibility to change of the area in question. State Conservation Department v. Seaman, Mich.Supr., 396 Mich. 299, 240 N.W.2d 206, 210 (1976); United States v. Gordon, 5 Cir., 580 F.2d 827, 839 (1978); Cf. Durham, supra, at 650.

In any event, the authority granted to an administrative agency should be construed so as to permit the fullest accomplishment of the legislative intent or policy. An expressed legislative grant of power or authority to an administrative agency includes the grant of power to do all that is reasonably necessary to execute that power or authority. Kreshtool v. Delmarva Power and Light Co., Del.Super., 310 A.2d 649 (1973). Such implied power may include the power to require a license in an appropriate situation where licensing is " . . . incidental, implied, or necessary and proper in light of the objectives and the power granted . . . ." Carroll v. Tarburton, Del.Super., 209 A.2d 86 (1965).

III

Before proceeding to the Act and the accompanying regulations of the DNREC, we preface our analysis with two guiding principles of statutory construction: That all reasonable doubt must be resolved in favor of the constitutionality of the legislation and that, if a constitutional construction is possible, it should be followed. See 2A Sands, Sutherland Statutory Construction § 45.11 (4th ed. 1973).

Originally, the General Assembly vested jurisdiction in the State Highway Department to perform work to prevent and repair damage from beach erosion and to impose sanctions for the unauthorized alteration of beach structures within the Department's jurisdiction. 17 Del.C. §§ 142, 143 (1970 Cum.Supp., Repealed) (originally enacted as 51 Del.Laws, Ch. 253, effective July 22, 1957).

In enacting the Beach Preservation Act of 1972, the General Assembly elected to transfer jurisdiction of beach erosion control from the Highway Department to the DNREC. 7 Del.C. Ch. 68 (originally enacted as 58 Del.Laws, Ch. 566, effective July 22, 1972). But the Act significantly enlarged the jurisdiction of the DNREC to include the "(a)uthority to enhance, preserve, and protect public and private beaches within the State." ² 7 Del.C. § 6803. Implicit in this transfer and enlargement of jurisdiction is the recognition on the part of the General Assembly that beaches are a vital natural resource whose importance extends well beyond their geographic boundaries. Also implicit in the transfer is an acknowledgment by the General Assembly of the expertise of the DNREC and its superior ability to implement a coordinated regulatory program in regard to beaches within the State.

The basic legislative policy statement is found in section 6801 of the Act:

"The purposes of this chapter are to enhance, preserve, and protect the public and private beaches of the State, to prevent beach erosion, to make certain acts destructive of beaches punishable as crimes, to prescribe the penalties for such acts, and to vest in the Department of Natural Resources and Environmental Control ("the Department") the authority to adopt such rules and regulations as it deems necessary to effectuate the purposes of this chapter." 7 Del.C. § 6801.

To effectuate this broad statement of policy, the General Assembly invested the DNREC with the following express authority:

"(a) Authority to enhance,...