Liborio, L.P. v. Sussex County Planning and Zoning Commission, C.A. No. 03A-03-004 THG (DE 7/26/2004)

• Decision Date: 26 July 2004
• Docket Number: C.A. No. 03A-03-004 THG.
• Parties: Liborio, L.P. v. Sussex County Planning and Zoning Commission; Christine Reece, William Gugno; and Thaddeus Nowakowski.
• Court: United States State Supreme Court of Delaware

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Liborio, L.P. v. Sussex County Planning and Zoning Commission; Christine Reece, William Gugno; and Thaddeus Nowakowski.

C.A. No. 03A-03-004 THG.

Superior Court of Delaware for Sussex County.

Submitted: June 8, 2004.

July 26, 2004.

T. Henley Graves, Resident Judge.

Dear Counsel, Ms. Reece, and Mr. Gugno:

Liborio, L.P. ("Appellant") has sued the Sussex County Planning and Zoning Commission ("Commission"), Thaddeus Nowakowski ("Nowakowski"), Christine Reece ("Reece") and William Gugno ("Gugno") due to a decision by the Commission granting a subdivision request. The decision changed alleged recorded open space owned by Nowakowski into a building lot, on which Reece and Gugno plan to build a home. Appellant seeks a reversal of that decision. Appellant contends that the Commission's decision to allow the space to be used as a building lot was in violation of the law, was arbitrary and capricious, and was without any legal or factual justification and violated the Appellant's right. Appellant also contends that the Commission's decision must be reversed and/or remanded because the record and transcript does not present sufficient facts to allow the Court to review the Commission's decision, and that the Commission does not state its findings of facts and conclusions of law with particularity. For the reasons set forth herein, the Court reverses the Commission's decision and remands the case to the Commission for further proceedings in accordance with this decision.

STATEMENT OF THE FACTS

In 1973, Nowakowski, an owner of land in Sussex County, recorded a major subdivision known as Fox Hollow. This subdivision contained 85 lots, a parcel of open space and some commercial land. The plan was recorded in Plot Book 15, page 143. The plan provided for a parcel of 1.25 acres of "open space." Nowakowski conveyed the parcel of space described as "open space" to himself and his wife. Nowakowski still owns the plot of land and a survey done for him in October 1987 describes the plot as "open space."

The Deed Restrictions for Fox Hollow call for an Owners Association to assess yearly maintenance fees to take care of the facilities to be owned by the Association, including the open space. However, no Owners Association was formed and Nowakowski never conveyed the open space over to another party. Recently, Nowakowski entered into a contract to sell the plot to Reece and Gugno contingent on their being able to build a home on the land. As such, Reece filed an "Application for Major Subdivision Plan Review" before the Commission, which held a hearing on the matter on February 20, 2003.

The Commission heard testimony from Reece, Nowakowski and John Gorecki, a resident of Fox Hollow. The Commission also considered various documents, including the Fox Hollow Record Plan, the survey done in October 1987, letters and a petition from residents of Fox Hollow who supported the land being sold, as well as a letter from the Appellant in opposition to the land not being rezoned. During the hearing, Reece testified that the open space was not maintained and that the residents of Fox Hollow were happy that it would be maintained once sold to her. Nowakowski stated that the "open space" on the Plan meant that it would be open space for his family and that his family had used it for their own purposes throughout the years. Nowakowski also stated that his family paid the taxes for the land and maintained it, telling the Commission that when the Constable was called due to the land being in poor condition, it was his family who was told to cut the grass.

One of the Commissioners stated that "[t]he subdivision approved was a designated patch of open space," and expressed some doubt as to whether they could grant the subdivision request. In response, Mr. Robertson, the County's attorney, stated:

That was one of the questions I was going to look at. If it is open space in the restrictions it talks about, there is a sentence in the first paragraph that says: Open space parcel shall remain a noncommercial use for the benefit of all the residents of the development.

If it is a designated open space and it seems like if you are going to turn it into a residence, that takes it out of the benefit of all the residents of the development. You can't amend those restrictions, it looks like. (February 20, 2003 TR-6).

Later one of the Commissioners stated, "I think the intent was clear that it was intended to not be developed, to sit there." (TR-18). The Chairman, however, expressed a belief that possibly allowing Reece to own the property and "cut[] the grass down and get[] rid of the weeds and the vermin and the bugs and the bees and a few other things—" would benefit all the residents of Fox Hollow. (TR-18).

There was some doubt as to whether or not the restrictions on the parcel were recorded and thus, whether or not they were binding. In addition, questions regarding the signatures on the petition were raised by Mr. Gorecki who believed that some of the signatures belonged to renters of the properties rather than owners. Furthermore, there was confusion as to what percentage of homeowners would need to agree to a change in the restriction.

When the Application came up for a vote later that evening, a Commissioner, stated, "I think we ought to let them do it, just to see what happens." (TR-24). The Commission decided instead to table the vote until a later meeting in order to let Mr. Robertson investigate the matter further. On March 13, 2003, the Commission reopened the Application. Mr. Lank stated that...