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Delaware Court Finds Plan Map Change Affects Permissible Residential Identity

An Ed Sullivan Case Summary:

Farmers for Fairness v. Kent County Levy Court, 2012 WL 295060 (Del. Ch.) arose over respondent’s adoption of a new county comprehensive plan which, Petitioners claimed, adversely affected the use and value of their property. Petitioners are landowners and their representatives who own land outside urban growth areas. Respondent alleged the plan had no immediate effect while Petitioners alleged that the effect was immediate, notwithstanding the lack of change to the zoning regulations and maps. Delaware law requires the adoption and periodic review of a comprehensive plan. The County’s motion to dismiss was based on ripeness grounds and its consideration preceded that of the merits of Petitioners’ claims.

Petitioners claimed that Delaware statutory law prohibited development in conflict with the comprehensive plan and the impact of the plan adoption effected zone changes from a general maximum density of one dwelling per acre to one dwelling per four acres. Respondent contended the case was not ripe until the County adopted new regulations and maps

Although there were a number of Delaware cases that required conformity of land use applications with the comprehensive plan, this was a case of first impression in Delaware. The Court determined that, to be ripe, there must be a justicible controversy involving the rights or legal relations of the parties, adversity of the parties, and amenability to judicial determination. The only issue in this case was whether the adoption of a plan had an immediate effect on Petitioners’ property rights. The statute at issue §§ 4951 and 4959 of the Delaware Quality of Life Act of 1988 provided that the plan has the “force of law” and development must be in conformity with both the plan and the local development regulations. The Court concluded that the plan effectively “down-zoned” rural areas of the county and had an immediate effect on Petitioners’ rights. Respondent also contended that the statute also gave the County one year to update its land use regulations; however, the court found the plan had an immediate binding effect and development inconsistent with the plan could not go forward. The new zoning regulations must be consistent with the plan, although they need not be identical. Finally, the court noted that the Delaware planning legislation at issue required only that regulations be consistent with the plan Map, rather than with plan policy. In this case, however, the distinction did not change the result. Respondent’s Motion to Dismiss was therefore denied.

This case provides that the formulation in Delaware of a plan consistency requirement results in an immediate effect of the plan on development regardless of whether the use is also consistent with the zoning regulations.

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