Posted by: Patricia Salkin | January 4, 2012

Fed. Dist. Court for Delaware Finds County’s Denial of a Conditional Use Permit Arbitrary and Capricious

The Brockstedts sought to remove an existing dwelling from the subject parcel and to construct two new office buildings, each being 7,500 square feet, on three connected lots.  The Brockstedts sought a “conditional use of land permit,” and the Planning and Zoning Commission supported the application.  This recommendation was supported by numerous factors, such as the new structures would be consistent with the area and would be beneficial, and was conditioned to ensure the buildings would remain consistent with the area. 

During hearings held by the Council, the only issues presented were the increase in sewage discharge and traffic due to the intensification of the use.  In addition, the Mayor sent a letter to the Council objecting to the permit application, which was not sent to the Brockstedts.  After the hearing, the Council decided to deny the permit.  Four months after the denial, the Council granted a conditional use of land permit for a remarkably similar project on the same road.  Following the grant of this permit, the Brockstedts commenced the instant action claiming the denial of their permit was not based on substantial evidence, was arbitrary and capricious, and violated the Brockstedts’ substantive due process rights.  The Brockstedts’ sought immediate approval of the project, economic damages and costs.

The U.S. District Court, District of Delaware, determined that the Council violated the substantive due process rights of the Brockstedts on four instances.  First was the sewage issue.  The County allots sewage units per parcel on an assumption of four units per acre of land, which can be inadequate given the square footage of proposed land use.  The County failed to utilize a standardized system to address where property owners sought to operate in excess of the units allotted.  In fact, the County utilized a random approach in determining allowances, which the court determined was the “essence of arbitrary and capricious.”  In fact, the similarly situated project up the street that was granted the permit was in excess a similar amount of sewage units.  Thus, this basis for denial was arbitrary and capricious. 

The court next addressed the proposed increase in traffic as a basis for denial.  The court found this basis without support of substantial evidence.  Substantial evidence is defined “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”  As the only opposition to this project was in the form of unsupported testimony of a single local resident, the court found the substantial evidence standard was not satisfied.  In addition, the similarly situated project up the street had very similar traffic impacts on the same street, and this was not a cause for denial of the project.  The court thus found this basis for denial to be without substantial evidence in support, and was arbitrary and capricious. 

Moving to the third issue with the determination of the Council, the court addressed the letter of opposition sent by the Mayor Ford of the Town of Lewes.  This letter was never sent to the Brockstedts, they only became aware of the letter through the media, the letter was not made a part of the proceedings of the Planning and Zoning Commission or part of the record of the Council – yet it was considered by the Council.  In addition, the court felt it was curious that Mayor Ford took no action in opposition of the similarly situated project up the street.  The court found this letter did not constitute substantial evidence, and any reliance on the letter would be arbitrary and capricious.

Lastly, the court determined that the granting of the similarly situated project’s permit, and the granting of all the previous conditional use permits on the street, 27 in total, evidenced that the denial of the Brockstedts’ permit was arbitrary and capricious.  In fact, the Council failed to show any differences between the projects that were previously granted permits and the Brockstedts’ application that would justify the denial.

The court found that the Council’s failure to provide a rational reason for the denial of the permit, given the previously discussed four factors, resulted in an arbitrary and capricious decision in violation of the Brockstedts’ substantive due process rights.  The District Court ordered that the denial was invalid and that the Planning and Zoning Commission’s decision be adopted with the appropriate measures addressing the sewage units of the project.

Brockstedt v. Sussex County Council, 794 F. Supp.2d 489 (D. Del., 5/11/2011)

The opinion can be accessed at:

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