The Supreme Court of Delaware held that the planning commission exceeded its statutory authority in denying outright an application for a residential subdivision that fully complied with the county code. Ashburn filed an application for subdivision plan approval to develop a residential subdivision on 243 acres zoned “Agricultural Conservation” which authorizes one dwelling per acre. The proposed subdivision would consist of 214 lots with a density of .84 units per acre and it would be served by an on-site water and septic system provided by private utilities. It was undisputed that Ashburn’s application complied with all applicable planning and zoning requirements, and as the result, the planning office recommended approval. Following a hearing where some members of the public spoke against the application because they believed that the proposed subdivision was outside of the “Growth Zone,” would create overcrowding in the school, and would increase traffic in the area, the Commission solicited comments from various state agencies about the impact of the proposed development. The state agencies were uniformly opposed to the proposed subdivision because of its location in an area that was agricultural and lacked full public infrastructure. The Commission ultimately voted to deny the application citing three reasons: 1) lack of infrastructure; 2) location of the property outside the Growth Zone; and 3) the application would negatively affect the health, safety and welfare of the community. During the pendency of Ashburn’s appeal, the county amended the Code which would effectively prohibit the proposed subdivision in the future.
The Delaware Supreme Court noted that where a planning commission considers an application for subdivision, it does not act in a legislative capacity, but rather “partly in a ministerial and partly in a judicial capacity.” In reviewing the applicable enabling statutes, the Court said that the “The statutes do not, either expressly or by implication, give the Commission unfettered discretion to deny an otherwise legally conforming subdivision application based on impact-related concerns expressed by commenting state agencies.” The Court noted that the statutes merely allow the commission to consider that information, but they may not serve as grounds to deny an application that otherwise fully conforms to all applicable zoning and subdivision code provisions. The Court explained, “If the Commission is empowered to deny proposals that meet all applicable statutory and Code criteria, purchasers of land would be left unable to predict whether they can develop their land in accordance with the pertinent zoning ordinances, or whether instead the County may prevent development based upon non-Code related
ad hoc determinations.” Although it would be appropriate for the commission to consider non-Code factors in formulating conditions on approval designed to harmonize and coordinate planning, the Court explained that, “upholding a denial of Ashburn’s plan even though it complied with all Kent County Code criteria, would upset Ashburn’s reasonable development expectations when it purchased the land for development.” The Court concluded that by denying the application that complied with all provisions of the county code, the commission exceeded its statutory power.
Tony Ashburn & Son, Inc. v. Kent County Regional Planning Commission, 2008 WL 5114981 (Del. Supr. 12/5/2008).
The opinion can be accessed at: http://courts.delaware.gov/opinions/(ppahvxiakyjddj55gw1po531)/download.aspx?ID=114730
