Posted by: Patricia Salkin | February 28, 2012

DE Chancery Court Hold Future Planning in Comprehensive Plan has Immediate Effect Resulting in a Ripe Claim Upon Adoption

Land owners in Kent County filed a petition alleging that the Kent County Levy Court’s adoption of a comprehensive plan changed the petitioners’ property rights.  Specifically, they alleged that the new plan lessened the permitted density on their  land, resulting in a diminution in property value.  The petitioners allege that the downsizing of their property violated their statutory and constitutional rights.  The respondent, Kent County Levy Court, moved to dismiss, asserting that this cause of action was not yet ripe as no ordinance enforcing the comprehensive plan had been adopted.  The Court of Chancery of Delaware denied the respondent’s motion to dismiss.

Under Delaware law, counties are provided with the authority to zone.  As part of this authority, counties must promulgate a comprehensive plan.  A portion of this plan must provide for future uses of land, including a map addressing the “proposed distribution, location and extent of the various categories of land use.”  This map is then supplemented by policies, goals and objectives.  The comprehensive plan must be updated every five years.  In conformance with these provisions, Kent County, through the participation of numerous groups, adopted the comprehensive plan.

The petitioners’ claims rest upon when the future planning in the comprehensive plan becomes effective.  Essentially, the issue reduces down to whether the future planning in the comprehensive plan resulted in an immediate downzoning, or must an enforcing ordinance be enacted to give effect to the future planning provisions. 

The court determined that, because Delaware law prohibits development in a manner inconsistent with the map in question, the petitioner’s claim is ripe for review.  Specifically, Delaware law provides that the maps found within a comprehensive plan have “the force of law” once they are adopted by the Levy Court.  Further, Delaware law states, “no development . . . shall be permitted except in conformity with the” maps and regulations accompanying them.  As a result, the county planning authorities could not permit any development unless it was in conformance with the comprehensive plan, which in this case would require the imposition of the lower property density standards.  Thus, the adoption of the comprehensive plan immediately downzoned the petitioners’ property, resulting in the claim being ripe for review.

Farmers for Fairness v. Kent County Levy Court, 2012 WL 295060 (Ct. of Chancery of Delaware, 1/27/2012)

The opinion can be accessed at:  http://courts.delaware.gov/OPINIONS/download.aspx?ID=167390.


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