ACIERNO v. NEW CASTLE COUNTY DEPARTMENT OF LAND USE, 1173-N (Del.Ch. 2006)

Civil Action No. 1173-N.Court of Chancery of Delaware, New Castle County.Submitted: February 15, 2006.
Decided: June 8, 2006.

Richard L. Abbott, Esquire Abbott Law Firm LLC Hockessin, DE.

Collins J. Seitz, Jr., Esquire Max B. Walton, Esquire Connolly Bove Lodge Hutz LLP Wilmington, DE.

DONALD F. PARSONS, JR. Vice Chancellor.

Dear Counsel:

This is Plaintiff Frank E. Acierno’s fourth suit concerning the expiration of the Christiana Fashion Center (“Fashion Center”) record plan. The New Castle County Department of Land Use (“Department of Land Use”)[1] determined that the Fashion Center record plan expired because Acierno failed to obtain a letter of approval from the Delaware Department of Transportation (“DelDOT”) as required by the New Castle County Code. Acierno appealed the Department of Land Use’s expiration of the record plan to the New Castle County Planning Board (“Planning Board”). The Planning Board upheld the expiration of the record plan. Several suits followed both in this Court and in the Delaware Superior Court. Defendants New Castle County and the Department of Land Use now move for dismissal of this action for want of subject matter jurisdiction and because Acierno has failed to state a claim upon which the Court may grant relief.

For the reasons stated below, the Court concludes that the Statute of Repose, 10 Del. C. § 8126(b), divests this Court of subject matter jurisdiction. It is thus unnecessary to reach Defendants’ other arguments.

I. BACKGROUND[2] A. The Parties
Acierno is the owner of a 185 acre parcel of land identified as New Castle County Tax Parcel 09-03.00-082 and located on the east side of Delaware Route 7 and north of the Christiana River.

New Castle County is a political subdivision of the State of Delaware. The Department of Land Use is a New Castle County Department established and empowered by state law.

B. The Fashion Center Record Plan
In June 1997, Acierno applied to New Castle County for approval and recordation of the Fashion Center record plan. The road to approval is lengthy and required, among other things, submission of all items identified in Section 32-97(d) of the 1995 New Castle County Code (the “1995 County Code”).[3] One of the required items is a “[l]etter of approval from DelDOT relative to provision of streets, curb cuts and other pertinent matters”;[4] another is a “[l]etter from DelDOT containing its recommendations and comments on any required traffic impact study.”[5]

On May 12, 2000, New Castle County preliminarily approved the Fashion Center record plan.[6] Acierno then had eighteen months to complete the application or the Fashion Center record plan would expire.[7] Acierno requested and the County granted him two extensions of this deadline because he was unable to obtain the required letter of approval from DelDOT. On February 8, 2002, DelDOT Secretary Nathan Hayward, III, sent a letter to the Department of Land Use informing it that DelDOT recommended that the County “deny or defer” approval of the Fashion Center record plan.[8] Secretary Hayward expressed DelDOT’s concern that the proposed Fashion Center would aggravate the existing traffic problems at the intersection of Interstate 95 and State Route 1.[9] Three days later, DelDOT provided the Department of Land Use with its comments on the traffic impact study.[10] In that letter, DelDOT wrote that it “ha[d] concerns about this project that go beyond the scope of the [traffic impact study]. Those concerns are addressed in a separate letter from Secretary Hayward, which should be considered as stating [DelDOT’s] position with regard to this project.”[11] On March 13, 2002, the Department of Land Use expired the Fashion Center record plan because Acierno had not provided the County with a “[l]etter of approval from DelDOT relative to provision of streets, curb cuts and other pertinent matters,” as required by 1995 County Code Section 32-97(d)(5).[12]

C. Acierno Appeals to the Planning Board
Acierno appealed the Department of Land Use’s decision to the Planning Board. Notice of Acierno’s appeal, along with the reason the Department of Land Use expired the Fashion Center record plan, was published in the Wilmington News Journal on May 4, 2002. The notice read, in pertinent part:

Appeal of a Department of Land Use final decision declaring the Christiana Fashion Center Record Plan . . . submission unsatisfactory, thereby expiring the plan. Record Plan submission lacks a letter of approval from DelDOT relative to the provision of streets, curb cuts and other pertinent matters, as required by former New Castle County Code Section 32-97(d)(5).[13]

Other Department of Land Use notices accompanied the notice of the denial of approval of the Fashion Center record plan.[14]

A majority of the Planning Board voted to affirm the Department of Land Use’s decision. In its letter opinion dated May 21, 2002, the Planning Board wrote that “[t]he [1995 County Code] unambiguously requires a letter of approval from DelDOT as a component of record plan submission. Since the submission for the Christiana Fashion Center lacked such a letter, the Department [of Land Use] did not err in rejecting it.”[15] The Planning Board then concluded that “an orderly and logical review of the evidence, including DelDOT’s explicit recommendation to deny or defer the development request for the project, leads to the conclusion that the requirement found in Section 32-97(d)(5) was not met.”[16] On May 22, the Wilmington News Journal
reported the Planning Board’s decision and the reason for it in an article appearing on page one.[17] The article quoted Acierno’s then current attorney as saying “[w]e will probably end up having to litigate the issue.”[18]

D. Acierno Brings Suit Against DelDOT in this Court
Just a few weeks after the Planning Board’s decision, Acierno brought suit in this Court against Secretary Hayward and DelDOT. Acierno sought, among other things, to compel DelDOT to issue a letter of approval.[19] In an opinion issued July 1, 2004, this Court disqualified Acierno’s counsel because his continued representation of Acierno would violate Rule 1.9 of the Delaware Lawyers’ Rules of Professional Conduct.[20] That case has sat idle since then.

E. Acierno Brings Suit in the Superior Court
In July 2002, Acierno petitioned the Superior Court for a Writ of Certiorari reversing the Planning Board’s decision. In that action, Acierno contends that the Planning Board lacked jurisdiction, that the Planning Board violated Acierno’s constitutional due process rights by applying an incorrect standard of review and that the Planning Board erred as a matter of law in upholding the expiration of the record plan because Acierno substantially complied with the requirements of the 1995 County Code. On March 31, 2006, the Superior Court requested supplemental briefing.[21] The petition remains pending and the Superior Court has taken it under advisement.

In November 2003, Acierno petitioned the Superior Court for a Writ of Mandamus commanding the Department of Land Use to grant final approval to the Fashion Center record plan.[22] The Superior Court agreed with Acierno that the Department of Land Use’s “act of approving a record major plan as to form is in fact non-discretionary.”[23] Thus, mandamus could lie and the sole issue before the Superior Court was whether the letter from DelDOT constituted a letter of approval as required by the 1995 County Code. The court concluded that “DelDOT’s letter, by its express language, specifically recommended denial or deferment of the development requests made for this project. It is hard to see how a review as to form could reach any decision other than that the Plan lacked a DelDOT letter of approval.”[24] The Court thus denied Acierno’s petition.

F. Acierno Again Brings Suit in this Court
Finally, in March 2005, Acierno initiated this action seeking a permanent injunction prohibiting the County from deeming the record plan expired, a mandatory injunction ordering the Department of Land Use to forward the plan to the New Castle County Council (“County Council”) for final approval, a declaratory judgment invalidating the Planning Board’s decision[25] and specific performance of an alleged contract between Acierno and New Castle County. Defendants moved to dismiss under Court of Chancery Rule 12(b)(1) for lack of subject matter jurisdiction both because the Statute of Repose bars this action and because Acierno has an adequate remedy at law and under Rule 12(b)(6) for failure to state a claim upon which the Court may grant relief.

G. Acierno’s Rule 56 Motion
After the parties completed briefing Defendants’ motion to dismiss, Acierno filed a motion pursuant to Court of Chancery Rule 56 to consider Defendants’ motion as one for summary judgment and to defer consideration of it until Plaintiff could take certain discovery. Acierno’s Rule 56 motion is not well-founded because this Court may consider materials outside of the pleadings for purposes of deciding a Rule 12(b)(1) motion to dismiss for want of subject matter jurisdiction.[26]

II. ANALYSIS A. Legal Standard on a Motion to Dismiss for Lack of Subject Matter Jurisdiction
The Court of Chancery will dismiss an action for want of subject matter jurisdiction “if it appears from the record that the Court does not have jurisdiction over the claim.”[27]
The plaintiff “bears the burden of establishing this Court’s jurisdiction, and where the plaintiff’s jurisdictional allegations are challenged through the introduction of material extrinsic to the pleadings, he must support those allegations with competent proof.”[28]

B. The Statute of Repose
The Statute of Repose codified at 10 Del. C. § 8126(b) provides that

No action, suit or proceeding in any court, whether in law or equity or otherwise, in which the legality of any action of the appropriate county or municipal body finally granting or denying approval of a final or record plan submitted under the subdivision and land development regulations of such county or municipality is challenged, whether directly or by collateral attack or otherwise, shall be brought after the expiration of 60 days from the date of publication in a newspaper of general circulation in the county or municipality in which such action occurred, of notice of such final approval or denial of such final or record plan.

The statute’s provisions “are jurisdictional and therefore may not be waived.”[29] The statute is intended “to `promote predictability and stability in land use’ and therefore must be applied strictly.”[30]

C. Application of the Statute of Repose
Defendants argue that Acierno brought this suit after the expiration of 60 days from publication of notice of the fact of the Fashion Center record plan’s expiration in the Wilmington News Journal. Therefore, they conclude, this Court lacks jurisdiction. Acierno responds that 1) the appropriate county body, i.e., County Council, did not finally deny approval of the record plan, 2) record plan expiration is not record plan denial and 3) the notice in the Wilmington News Journal does not constitute publication under the terms of the statute.[31]

1. The Department of Land Use was the appropriate county body
A review of the applicable sections of the 1995 County Code dispenses with Acierno’s first argument. Section 32-97(h) provides that the Department of Land Use shall review a record plan as to content once that Department determines that the plan is acceptable as to form. “When approved as to content, the director [of the Department of Land Use] shall endorse the plan and forward it to the County Council.”[32] If the Department of Land Use does not approve a record plan as to content or form, the plan never gets to the County Council.

Once the County Council receives a record plan from the Department of Land Use, it may approve the plan or refer it back to the Department “for the purpose of investigating or responding to such issues or questions concerning the compliance of the plan with the subdivision regulations or any other statute or ordinance to which compliance is required.”[33] If the County Council refers the record plan back to the Department of Land Use, the Department may either 1) recommend that the County Council approve the plan, in which case the Council must do so, 2) recommend that the County Council approve the plan subject to agreement of the developer to certain conditions, in which case the Council must approve the plan once the developer agrees to the conditions, or 3) rescind the plan.[34] Under any scenario, the Department of Land Use has final say over at least denial of a record plan.[35]

The Department of Land Use never forwarded the Fashion Center record plan to County Council because the plan did not comply as to form. Under the 1995 County Code, the County Council is afforded no role in such situations.[36] Thus, the Department of Land Use was the “appropriate county . . . body” to deny approval of the record plan.

2. Plan expiration is the functional equivalent of plan denial
Acierno next argues that the Department of Land Use’s “expiration” of the record plan pursuant to 1995 County Code Sections 32-97(d) and (g) is not the same as “denying approval of a . . . record plan” as the latter terms are used in the Statute of Repose. This is a semantic distinction without a legal difference. The 1995 County Code does not speak of expiration versus denial. Rather, it establishes a number of preconditions to approval.[37] A developer must satisfy each of these prerequisites if its plan is to advance to the next stage of the approval process. If a developer failed to comply with any of these prerequisites, the 1995 County Code did not permit the Department of Land Use to approve the developer’s plan. In fact, the Department had no choice but not deny approval to the record plan. As the Department of Land Use said in its March 13, 2002, letter to Acierno, “[w]ithout a formal approval of the streets, curb cuts, and other pertinent matters, however, the New Castle County Code does not permit the Department to take any other action except deem the record plan submission unsatisfactory and thereby expire the plan.”[38] For purposes of the Statute of Repose, record plan expiration is the functional equivalent of record plan denial.

Acierno last argues that the Statute of Repose is inapplicable because “there has never been any newspaper publication regarding a supposed `final denial.'”[39] According to Acierno, the notice that appeared in the May 4, 2002 edition of th Wilmington News Journal was merely a notice of the Planning Board hearing at which he was to present his appeal of the denial of approval of the Fashion Center record plan.

The Statute of Repose does not specify the form that the required published notice shall take. It merely states that the 60 day period shall run “from the date of publication . . . of notice of such final approval or denial of such final or record plan.”[40] The Wilmington News Journal notice clearly states that the Department of Land Use deemed Acierno’s submission unsatisfactory and denied approval to the Fashion Center record plan.[41] The notice then provides the reason why the Department of Land Use denied approval to the plan.[42] It is difficult to conceive how or why this publication does no satisfy the Statute of Repose’s requirement, especially when Acierno has cited no case, and this Court has found none, holding that a publication ostensibly for one purpose cannot satisfy another.

Although the parties did not so argue, it is possible that the final denial of the Fashion Center record plan occurred when the Planning Board upheld the Department of Land Use’s decision to expire the plan on May 21, 2002. Notice of the Planning Board’s decision was published in the Wilmington News Journal on May 22, 2002. In a page one article, the News Journal reported that a majority of the Planning Board “said DelDOT’s written approval is required to ensure development only occurs when roads are in place to support it.”[43] The article thus reported the Planning Board’s decision to deny a record plan and the reason for that decision. Acierno had actual notice of the Planning Board’s decision and the newspaper publication of that decision.[44]

In the absence of a more specific definition in the 1995 County Code, “publication” takes on its ordinary meaning.[45] “One leading dictionary defines publication as `[t]he action of making publicly known; public notification or announcement; promulgation.”‘[46] Black’s Law Dictionary describes “publication” as “[t]o make public; to make known to people in general . . . [t]he act of publishing anything; offering it to public notice, or rendering it accessible to public scrutiny.”[47] The notice in the Wilmington News Journal
of the Department of Land Use’s expiration of the plan certainly satisfies the ordinary meaning of publication. Similarly, the article reporting the Planning Board’s decision satisfied the ordinary meaning of publication, especially where, as here, the affected party had actual notice of the decision.

Further, the public policy behind the Statute of Repose — promoting predictability and stability in land use — supports the Court’s conclusion. The Department of Land Use expired the Fashion Center record plan four years before Acierno commenced this action; the Planning Board upheld that decision just shy of four years before this action was filed. To allow Acierno to challenge such denial several years later would contravene the purpose of the Statute of Repose, i.e., encouraging prompt challenges of land use decisions so as to promote predictability and stability in land use.

III. CONCLUSION
Defendants have shown that the Statute of Repose, 10 Del. C. § 8126(b), bars Acierno’s challenge to the expiration of the Fashion Center record plan because he initiated this suit more than 60 days after both publication of notice of the denial of approval of the plan by the Department of Land Use and the affirmance of that decision by the Planning Board. Defendants’ motion to dismiss for lack of subject matter jurisdiction is GRANTED. Defendants’ motion to dismiss because of Acierno’s failure to state a claim upon which the Court may grant relief is DENIED WITHOUT PREJUDICE AS MOOT.[48]
IT IS SO ORDERED.