Opinion
C.A. No. 02A-07-009 WCC
Submitted: December 12, 2002
Decided: March 19, 2003
Upon Petitioner's Appeal from the City Council of the City of Newark, Delaware. Reversed and Remanded.
Richard H. Cross, Jr., Law Office of Richard H. Cross, Jr. LLC, Wilmington, Attorney for Petitioner.
Roger A. Akin, City Solicitor, City of Newark, Newark, Attorney for Respondents.
ORDER
On this 19th day of March, 2003, upon consideration of the Appeal filed by Writ of Certiorari by Delta Eta Corp. ("Petitioner") and the record of the proceedings below, it appears to the Court that:
1. Petitioner seeks review by writ of certiorari pursuant to title 10, section 562 of the Delaware Code, of a decision by the City Council of the City of Newark, Delaware, denying its application for a major subdivision. The City Council is the elective body that governs the City of Newark and consists of Harold F. Godwin, John H. Farrell, IV, Jerry Clifton, Karl F. Kalbacher, Thomas P. Wampler, Frank J. Osbourne and Chris Rewa (collectively the "Council" or "Respondents"). The decision of the Council upon which the Petitioner appeals was dated June 11, 2002.
2. In January, 2002, Petitioner filed an application for approval of a major subdivision relating to property located in Newark, Delaware, with the proposed use to "re-arrange and renovate the three (3) existing houses and build a twelve (12) unit apartment building. The two (2) existing garages will be demolished or sold." The property at issue was classified RM in accordance with the Zoning Code of the City of Newark (the "Zoning Code"). Under the Zoning Code, RM districts are to be used for, among other things, garden apartments, boarding houses, rooming houses, lodging houses, private dormitories or fraternity houses. To meet the zoning area requirements the design proposed by Petitioner required variances from the existing code for the height of the new apartment building and the required distance between the units. Petitioner applied for and received variances from the Board of Adjustment on February 21, 2002.
See NEWARK, DE., MUNICIPAL CODE ch. 32, § 32-11 (2000).
Id. at 32-11(a)(1).
Id. at 32-11(a)(3).
3. The application then underwent review by the Planning Department and City Operating Department, after which it was presented to the Planning Commission. Various statements were made before the Planning Commission by people in connection to Delta Eta Corp., concerning the intended lease of the property to a fraternity. Among those testifying were Allen Schweizer, President of Delta Eta Corp., and Ralph Olivier, architect for the project. Subsequently, the Planning Commission unanimously voted against the major subdivision application. Thereafter, Petitioner made a final administrative request that the Newark City Council reject the unanimous Planning Commission vote and approve the major subdivision application.
4. The City Council met to hear the Petitioner's application on June 10, 2002. Petitioner's legal counsel, John Tracey, Esq., appeared before the Council and represented that although a fraternity use was not an "absolute certainty," such use was a "likelihood." At the hearing, many of the matters presented before the Planning Commission were reiterated and clarified. Concerns ranged from the fraternity having been previously suspended, to insufficient parking, to police resources being overextended due to an inordinate number of complaints at fraternities. Among the various concerns expressed over public safety were those of Mayor Godwin, who believed that the quiet enjoyment of the houses in the area would be affected. At the conclusion of the City Council meeting, Council voted unanimously to deny Petitioner's application. On June 11, 2002, the City Secretary issued a letter to Petitioner advising that the application for the major subdivision had been denied. No further explanation was provided to Petitioner. It is upon this denial that Petitioner seeks review through writ of certiorari.
Prior to the June 10, 2002 meeting, the Council had been provided with a report from the Planning Department dated March 20, 2002 strongly recommending against approval as well as the unanimous opposition of the City Manager, the Police Department and the Planning Department. For instance, the City Manager noted a lack of consistency between fraternity uses in City residential zones and the City's policy of reducing alcohol consumption, noise and disorderly premises incidents in the community. The Council was also provided with a full transcript of the relevant proceedings before the City Planning Commission on April 2, 2002.
Appendix in Support of Delta Eta Corp.'s Opening Brief on Petition for Judicial Review by Writ of Certiorari at 65 (Excerpt of June 10, 2002 Newark City Council Minutes at 2).
5. The City Council was not acting in a legislative capacity as the Newark Code had already defined the zoning for this particular land. Rather, the City Council was applying its powers delegated by the Code. Here they were acting "partly in a ministerial and partly in a quasi-judicial capacity." The standard of review for this Court to impose for this writ of certiorari is "whether there is substantial evidence to support the [Council's] findings of fact and whether the [Council] exceeded its powers as a matter of law."
East Lake Partners v. City of Dover Planning Commission, 655 A.2d 821, 825 (Del.Super.Ct. 1994).
Id. (citing Janaman v. New Castle County Board of Adjustment, 364 A.2d 1241 (1976), aff'd, 379 A.2d 1118 (Del. 1977); Herr v. Lancaster County Planning Commission, 625 A.2d 164 (Pa.Commw.Ct. 1993)).
6. Petitioner alleges that having met and/or exceeded all of the objective criteria established by the City of Newark, including the planning and technical requirements in the Subdivision Regulations and Zoning Code, that there was no basis to deny its application. Specifically, Petitioner contends that the decision by the Council was without authority and was "illegal and unlawful" as evidenced by statements made on the record by members of the Council indicating that the sole reason for its denial was the Petitioner's intention to lease the apartment to a fraternity. Petitioner asserts that: (1) "[t]he Council's Decision is contrary to the objective criteria established by the City of Newark, including the provisions and requirements of the Zoning Code and Subdivision Regulations for the City of Newark;" (2) "[t]he Council's Decision was based on policies or considerations that are contrary to the plain language of the Zoning Code and Subdivision Regulations for the City of Newark;" (3) "[t]he Council's Decision is contrary to substantial competent evidence in the record;" and (4) "[t]he Council acted arbitrarily, capriciously and in an illegal and unlawful manner when it rendered its Decision."
Petitioner further asserts that the written notice from the City Secretary's Office of the decision made by the Council contained no reason for the denial.
Petitioner's Petition For Judicial Review by Writ of Certiorari at § 13.
7. Respondents, however, argue that approval is not "automatic" when an application meets all technical subdivision requirements. They look to the "purpose" section of the Zoning Code to support their contention that the overriding purpose of the Zoning Code and its application is to "encourage the most appropriate use of land, and promote the health, safety, morals and general welfare of the City of Newark." Respondents also point to the "purpose" section of the Subdivision Regulations, which provides that the design and application of the Regulations is to "protect and preserve the health, safety, and general welfare of all Newark residents." As such, they argue that the Council is obligated to consider the impact of the proposed structure (in this case an apartment leasing to a fraternity) on the "general welfare" of its community.
See NEWARK, DE., MUNICIPAL CODE ch. 32, § 32-1 (2000).
See NEWARK, DE., MUNICIPAL CODE ch. 27, § 27-4 (2000).
8. Respondents point to factual issues to justify Council's denial of Petitioner's application. First, they argue that circumstances had changed substantially with regard to the behavior of University of Delaware social fraternities since the adoption of relevant portions of the Newark Zoning Code. Second, they argue that when considering their changed circumstances, that substantial evidence existed to support a finding that approving the application would be inimical to the health, safety and welfare of the Newark community. Third, they argue that in light of the changed circumstances regarding fraternities, the Council was permitted to consider the threat to health, safety and welfare of city neighborhoods concerning Petitioner's application. In essence, Respondents contend that there would be no need for formal hearings before the City Planning Commission and City Council if an application could be approved by simply satisfying the requirements of the City Subdivision Regulations. This, they contend, is contrary to their obligation to determine whether circumstances now exist to deny an application.
In support of this, they point to statistics on violations and that all social fraternities had been removed from campus and had been suspended and barred from campus for various violations. This, they contend, is far different from the statute regarding social fraternities circa 1970, when the Zoning Code was established.
9. The Court is troubled by this argument. At the time the application was submitted, the Newark Code provided that:
In an RM district, no building or premises shall be used and no building shall be erected or altered which is arranged, intended, or designed to be used, except for one or more of the following uses:
(1) Garden apartments, . . . .
***
(3) Boarding house, rooming house, lodging house, private dormitory or fraternity house, providing that: The minimum lot area for each eight, or remainder over the multiple of eight residents, shall be the same as the minimum lot area requirements for each dwelling unit in this district.
NEWARK, DE., MUNICIPAL CODE ch. 32, § 32-11(a)(1) and (3).
Thus, as the comments made during the hearings before the Council clearly set forth, Petitioner has satisfied all of the requirements necessary for approval. Further, the structure is permitted under the Code as the application is for the building of an apartment, with the potential intended use to be that of a fraternity, both of which are expressly permitted under the Zoning Code. As this Court previously stated in East Lake Partners v. City of Dover Planning Commission:
The Planning Commission [or City Council] may not reject a site plan for a permitted use on the grounds that the project will adversely effect [sic] the general neighborhood. When people purchase land zoned for a specific use, they are entitled to rely on the fact that they can implement that use provided the project complies with all of the specific criteria found in the ordinances and subject to reasonable conditions which the Planning Commission [and City Council] may impose in order to minimize any adverse impact on nearby landowners and residents. To hold otherwise would subject a purchaser of land zoned for a specific use to the future whim or caprice of the Commission [or Council] by clothing it with the ability to impose ad hoc requirements on the use of land not specified anywhere in the ordinances. The result would be the imposition of uncertainty on all landowners respecting whether they can safely rely on the permitted uses conferred on their land under the zoning ordinances.
Mr. Lopata: They have a variance, they technically, . . . they meet the literal requirements of the Zoning Code in terms of area regulations because of those two variances.
***
Ms. Rewa: I believe that you have all of the t's crossed and I's dotted as far as the zoning ordinances and all of that, . . . .
See Appendix in Support of Delta Eta Corp.'s Opening Brief on Petition for Judicial Review by Writ of Certiorari at 76-77 and 81 (Excerpt of June 10, 2002 Newark City Council Meeting at 23-24 and 28).
655 A.2d 821 (Del.Super.Ct. 1994).
Id. at 826.
Although East Lake examined the Dover City Code, the rationale equally applies to Petitioner's case.
10. Furthermore, there is no merit to the Respondents' argument that an application would be "rubber stamped," rendering pointless public hearings if an application would be granted simply by satisfying the criteria of the Zoning Code. As this Court stated in East Lake, the Planning Commission and City Council are to review the application and may require changes and conditions so that, to the maximum extent possible, it will achieve the goals spelled out in the Code, including the "purpose" section. Thus, the Council's approval is not an "empty mantra" as the Respondents suggest. Rather, elected municipal councils possess significant discretion when approving applications to impose restrictions or conditions that minimize the impact of the construction and which are reasonably related to the promotion of health, safety, morals and general welfare of the community. If such reasonable conditions are not satisfied, an application that is otherwise compliant may be denied. Therefore, the elected municipal council and their subsidiary planning commission do in fact make case-by-case zoning decisions and are not engaging in "empty, meaningless exercise reviewing matters in which conclusions are foregone" as Respondents contend.
Id. at 824.
In addition, if the Court was to accept the Respondents' argument, it would turn the concept of a planned logical zoning process into one left to political whim. As such, a professionally developed plan to logically build a community in the best interest of all its citizens taking into account that community's health, safety, morals and general welfare would return to a hodgepodge of construction that simply lets the fancy of those in political power at the moment to determine what is appropriate. This situation would foster corruption and make the zoning process meaningless.
11. The Court is, however, sympathetic with Council. It is no secret that many in Newark's community who reside near the University of Delaware have strong feelings concerning the behavior of fraternities and sororities, and unfortunately, certain fraternal activities are disruptive to residential neighborhoods. The Court applauds the steps taken by the City of Newark to address these concerns by passing new legislation and modifying existing code. However, as commented on by Mr. Farrell during the hearing for Petitioner's application, unfortunately when this application was made, the Code had not been totally revised. As such, while Petitioner may have submitted its application "under the wire" so to say, this Court must look to the Code as it existed when the application was made. Consequently, the Court must find that the Respondents exceeded their power as a matter of law and that Petitioner's application should have been approved, with whatever additional provisions the Council deemed necessary to protect the health, safety, morals and general welfare of the surrounding community.
Subsequent to the June 10, 2002 hearing, the Council took further action toward regulating fraternity and sorority life in the City of Newark. On September 23, 2002, the City Council enacted a Zoning Code amendment which now bars social fraternities and sororities sanctioned by or affiliated with the University of Delaware from all residential zoning districts in the City, including the RM zone in which the Petitioner's property is located. See Bill No. 02-21. Additionally, the City Council enacted a second Bill on October 28, 2002, which permits the Newark Building Director to temporarily revoke the certificate of occupancy of existing fraternities, sororities and other residential organizations upon the third convictions within a twelve month period of certain noise and disorderly premises ordinances of the City. See Bill 02- 22.
Mr. Farrell: Putting new rules and policies in place that address our concerns is what we need to do before going forward and I think that needs to be done here rather than on the petitioner. . . . We need to set the standards on our side and if, in fact, the 1972 Zoning Code needs to be tweaked, then we need to do it, not the petitioner.
Mr. Godwin: Yes, that's correct, I agree. I'm sorry we haven't done it before tonight.
Mr. Farrell: Well, if it takes something like this to bring it to our attention than that's unfortunate because now it has put the petitioner in an awkward position. But who is more awkward than the petitioner? All of us up here because, as the Mayor suggested, we are representing the City, we are all representing about 3600 people in the City and we need to do what is best for the City. It's been stated more eloquently than this by everyone up here already. So for that reason, we need to do our homework first and it's unfortunate that we found out that our 1972 zoning isn't proper, but we'll fix it.
See Appendix in Support of Delta Eta Corp.'s Opening Brief on Petition for Judicial Review by Writ of Certiorari at 83-84 (Excerpt of June 10, 2002 Newark City Council Meeting at 30-31).
12. The Court also notes that it is unfortunate that the Petitioner has not resolved this dispute in a cooperative manner with the City. It is obvious that the City and its elected Council have made a significant effort to address underage drinking and the historic disruptive conduct generated by some fraternities. The cooperative effort by the City and the University is one that should be supported by the community and those who wish to do business in it. A builder interested in being a good corporate citizen would applaud this effort, modify its plans to the extent necessary to support it, and not build simply for financial gain or because they have a right to do so under the Code. While the Court is obligated to find in favor of the Petitioner, they should recognize the strong public sentiment regarding their proposed housing in this area, and attempt to minimize its potential impact on this community.
13. For the foregoing reasons, the decision of the City Council of the City of Newark, Delaware, denying approval of Petitioner's major subdivision application is hereby REVERSED and the matter is REMANDED to the City for further hearings consistent with this Order.
IT IS SO ORDERED.