Steen v. County Council of Sussex County

• Decision Date: 17 May 1989
• Docket Number: No. 1346,1346
• Citation: 576 A.2d 642
• Parties: Edward James STEEN, Plaintiff, v. COUNTY COUNCIL OF SUSSEX COUNTY and William D. Stevenson, Sr., George B. Cole, Oliver E. Hill, Ralph E. Benson and R. James Mariner, individually as well as members of County Council, Defendants. Civ. A. . Submitted:
• Court: Court of Chancery of Delaware

Page 642

576 A.2d 642

Edward James STEEN, Plaintiff, v. COUNTY COUNCIL OF SUSSEX COUNTY and William D. Stevenson,

Sr., George B. Cole, Oliver E. Hill, Ralph E.

Benson and R. James Mariner,

individually as well as

members of County

Council, Defendants.

Civ. A. No. 1346.

Court of Chancery of Delaware,

Sussex County.

Submitted: May 17, 1989.

Decided: Nov. 1, 1989.

On Plaintiff's Motion for Summary Judgment: DENIED; On Defendants' Motion for Summary Judgment: GRANTED.

Richard F. Stokes, John A. Sergovic, and Sarah Richardson, Tunnell & Raysor, Georgetown, for plaintiff.

Robert V. Witsil, Jr., Legal Counsel to Sussex County, Georgetown, for defendants.

OPINION

HARTNETT, Vice Chancellor.

In this action the plaintiff, Edward J. Steen, challenges the denial of his application for a Conditional Use Permit by the Sussex County Council. The plaintiff seeks an injunction, declaratory judgment and damages and both sides have moved for summary judgment. I find that defendants' motion for summary judgment must be granted because, as a matter of law, the denial of the application was not arbitrary and capricious.

I

The material facts are not disputed. The plaintiff, Edward J. Steen, owns a 73-acre tract of land located outside of Dagsboro, Sussex County, Delaware. Mr. Steen's land is situated in an area that is zoned AR-1, Agricultural-Residential District ("AR-1 District") pursuant to Sussex County's Comprehensive Zoning Ordinance. For the last eight to twelve years, Mr. Steen has operated a borrow pit on approximately 1.5 acres of his 73-acre tract of land. In July of 1987, however, a Sussex County Zoning Inspector issued a zoning violation notice to Mr. Steen for operating an unauthorized borrow pit. Apparently unknown to Mr. Steen, a borrow pit is not permitted in an AR-1 District unless a Conditional Use Permit is first granted by the Sussex County Council.

In order to comply with the Zoning Ordinance, Mr. Steen applied for a Conditional Use Permit which would grant him permission to operate a borrow pit on 10 of his 73 acres. Notice of the application was duly given.

On April 14, 1988, the Sussex County Planning and Zoning Commission ("Planning Commission") held a public hearing on Mr. Steen's application for a Conditional Use Permit. The Planning Commission's hearing began with Lawrence Lank, Director of the Commission, reading favorable comments regarding the application which had been received from the Department of Natural Resources and Environmental Control ("DNREC") and the Department of Transportation ("DelDOT"). Brief oral presentations in favor of the application were then made by Mr. Steen and Jeff Clark of Land Tech, Inc., a land surveying firm. Only one person spoke in opposition to the permit application.

Based on the evidence presented at its public hearing, the Planning Commission made the following findings of fact:

1. The area is predominantly farm land with single family residential uses;

2. Approximately 1.5 acres has been utilized by the applicant for borrow over the last 10 to 12 years and that the borrow pit will be reclaimed under a submitted reclamation plan;

3. The applicant has proposed appropriate measures to control dust and access;

4. The applicant is willing to comply with all requirements of the comprehensive zoning ordinance in reference to borrow pits; and

5. The opposition present was concerned with noise, dust, trespassing by motor vehicles, trash and the health of local residents.

The Planning Commission then unanimously voted to recommend approval of Mr. Steen's application to the County Council upon condition that the borrow pit area be fenced and a gate be installed near the entrance to control and limit access to the pit.

At its May 3, 1988 meeting, the County Council received the Planning Commission's findings of fact and recommendations, and also heard additional evidence in favor of, and in opposition to the application. Mr. Clark and Mr. Steen again made oral presentations detailing Mr. Steen's proposed use of the land and five people spoke in opposition to the application. A petition from thirty-one opponents was also entered into the record. The opponents, who were local area residents, expressed various health, safety and welfare concerns, such as: (1) increased dirt and dust; (2) damage to local roadways caused by increased traffic, especially the large dump trucks to be used to haul borrow from the pit; (3) the safety of children in the area near the pit; and (4) potential threats to local water supplies. The May 3 hearing concluded with the County Council reserving its decision until it received further comment from the DNREC, DelDOT and the Town of Dagsboro.

On July 26, 1988, the County Council held a scheduled meeting, the notice of which included deliberation of Mr. Steen's application as "old business." The Council reviewed the facts previously presented regarding Mr. Steen's application together with additional comments received from DNREC, DelDOT, and the Town of Dagsboro. After reviewing and discussing the information received regarding Mr. Steen's application, the County Council called for the proposed ordinance to be read. At that point, however, the tape recording of the meeting accidentally terminated, thereby making the transcript of the remainder of the meeting incomplete. It is undisputed, however, that a vote was then taken, and Mr. Steen's application was unanimously denied. The County Council made the following findings of fact in denying Mr. Steen's application for a Conditional Use Permit:

1. The proposed land use does not promote the health, safety and morale of the present and future inhabitants of Sussex County in that the dust, noise, and dirt pollution will result from a change of zone as proposed.

2. The proposed land use does not promote the convenience, order, prosperity, and welfare of the present and future inhabitants of Sussex County in that health hazards to local residents shall be caused by the proposal;

3. Congestion of roads or streets shall be increased by the proposal in that additional truck traffic shall cause a safety hazard to the inhabitants to the areas. Trucks, which are loaded with fill, shall cause unreasonable damage to the roads in the area.

Public notice of the County Council's decision was given on August 3, 1988 and plaintiff subsequently filed this action. Both parties filed cross motions for summary judgment and after briefing on the motions was complete, the defendants filed a Motion To Strike Affidavits filed with Plaintiff's Opening and Reply Briefs.

II

The plaintiff, in essence, argues that he is entitled to judgment as a matter of law because: (1) his application for a Conditional Use Permit complied with all the requirements of the Sussex County Comprehensive Development Plan, the Sussex County Zoning Ordinance, and the Delaware Code; (2) an applicant for a Conditional Use Permit establishes a prima facie right to the permit upon a showing that the proposed use meets the requirements of the Zoning Ordinance, at which time the burden of showing that the permit be denied shifts to the opponents of the application and the opponents did not meet that burden; and (3) the County Council's denial of the Conditional Use Permit was arbitrary and capricious because plaintiff presented competent evidence to sustain the Planning & Zoning Commission's recommendation for approval of plaintiff's application, and there was no competent evidence in opposition to plaintiff's application. Plaintiff also asserts that the defendants' denial of the Conditional Use Permit was an unconstitutional taking of plaintiff's property, entitling plaintiff to damages.

Defendant counters, in essence, that the Council's action was not arbitrary or capricious and therefore cannot be disturbed by this Court and that there has been no taking of plaintiff's property.

III

A motion for summary judgment will be granted only where no genuine issue of material facts exists and the moving party is entitled to judgment as a matter of law. Empire of America Relocation Services, Inc. v. Commercial Credit Co., Del.Supr., 551 A.2d 433, 435 (1988); Wilson v. Joma, Inc., Del.Supr., 537 A.2d 187, 188 (1988). Summary judgment is employed to avoid a useless trial where there is no issue of material fact. Bershad v. Curtiss-Wright, Del.Supr., 535 A.2d 840 (1987); Nicolet, Inc. v. Nutt, Del.Supr., 525 A.2d 146 (1987); H.S. Mfg. Co. v. Benjamin F. Rich Co., Del.Ch., 164 A.2d 447 (1960).

IV

The concept of a conditional use has been developed by land planners to allow for the additional use of land which a legislative body considers to be desirable, necessary, or convenient to the community, or to a substantial segment of the community, although such use may conflict with the uses otherwise permitted in a zone or district. Bay Colony, Ltd. v. County Council of Sussex County, Del.Ch., C.A. No. 1001-S, Hartnett, V.C. (Dec. 5, 1984), slip op. at 6 (holding that the conditional use permit granted could only be done by ordinance and that the statutory procedural requirements for the adoption of an ordinance must be followed). See also 3 RATH-KOPF, The Law of Zoning and Planning § 41.01. This is because the nature and operation of certain uses tend to generate excessive traffic, to attract large numbers of people to an area, to have a detrimental effect upon the value or potential development of other properties in the area, or to pose an extraordinary threat of accidents or danger to public health and safety. Id.

Generally, a conditional use is only permitted, however, where it is desirable or essential to the welfare or the convenience of the public and will neither impair the integrity and character of the zoned district nor be detrimental to the public health, welfare, and morals. See Bay Colony, supra at 7; One Hundred Two Glenstone v. Board of Adjustment, Mo.Ct.App., 572 S.W.2d 891 (1978). The technique of using a conditional use to...