Opinion
C.A. No. 99A-12-001 HDR, C.A. No. 99A-12-002 HDR CONSOLIDATED.
Submitted: July 25, 2000.
Decided: November 1, 2000.
Upon Review By Certiorari of a Decision of the Board of Adjustment of the Town of Cheswold REVERSED and REMANDED .
John W. Paradee, Esq. of Prickett, Jones Elliott, Dover, Delaware, for Petitioner Cheswold Aggregates, LLC.
Mark F. Dunkle, Esq. of Parkowski, Noble Guerke, P.A., Dover, Delaware, for Petitioner Central Delaware Business Park.
Walter W. Speakman, Jr., Esq. of Brown, Shiels, Beauregard Chasanov, Dover, Delaware, for Respondent the Town of Cheswold Board of Adjustment.
OPINION
Appellant Cheswold Aggregates, LLC ("Cheswold Aggregates") has petitioned for certiorari review pursuant to 22 Del. C. § 328 of a zoning decision of the Board of Adjustment of the Town of Cheswold ("Board"). The Board affirmed the Town Council's decision to deny a building permit for a drum hot mix facility on the ground it was not permitted within the M-1 Industrial District. Cheswold Aggregates has an equitable interest in the property under a contract of sale with the owner, Central Delaware Business Park. Central Delaware Business Park also seeks review of the decision as the land owner. The matters have been consolidated for decision. After considering the record and the arguments of counsel, I conclude that the decision of the Board must be reversed because it is not supported by substantial evidence and is erroneous as a matter of law.
I. BACKGROUND
In 1977 the Cheswold Town Council adopted a comprehensive zoning ordinance for the Town. The ordinance established three Residence Districts, a C-1 Commercial District, and an M-1 Industrial District. Section Seven of the ordinance pertaining to the Industrial District provides in pertinent part:
Within an M-1 Industrial District, no building . . . shall be used . . . for any uses except the following . . . (e) manufacturing, assembling and other processing . . . The following uses are specifically prohibited: (g) manufacturing uses involving primary production of the following products from raw materials: asphalt, cement, charcoal, and fuel briquettes.
Town of Cheswold Zoning Ordinance, Article III, Section 7.
This is not the first litigation involving a permitted use within the Cheswold M-1 Industrial District. In 1992 the Town Council approved a building permit to construct and operate a ready-mix concrete plant. The Board of Adjustment affirmed the decision to issue a building permit and a citizen petitioned this Court for review by certiorari. At issue was whether a facility to produce concrete was prohibited by the language "manufacturing uses involving primary production" of "cement." In upholding the decision of the Board and the Town Council, the Court found substantial evidence in the record that "cement and concrete manufacturing are substantially different processes" and it further found no legal error in the issuance of the building permit.
Godardv. Town of Cheswold Board of Adjustment, Del. Super., C.A. No. 92A-12-022, Steele, R.J. (Oct. 15, 1993) (ORDER). Resident Judge Steele did not address allegations of Board prejudice in that case because "in viewing the hearing record, only one conclusion could have been reached even if an entirely different Board had heard the appeal." Id.
The issues involved here are similar. The same language of the ordinance is at issue with the only difference being "asphalt" instead of "cement."
The Board decided that the definition of "asphalt" would be determinative. The text of the ordinance directed the Board to the Webster's Unabridged Dictionary for definitions. However, two different definitions of "asphalt" are found in separate editions of the Webster's Unabridged Dictionary considered by the Board. These definitions are:
Town of Cheswold Zoning Ordinance, Article XVII.
Asphalt:
1. A brown to black, solid bituminous substance occurring native at the Dead Sea, in Trinidad, and elsewhere (natural or native asphalt), and also obtained as a residue from certain petroleums, coal tar, lignite tar, etc. (artificial asphalt); mineral pitch. It consists chiefly of a mixture of hydrocarbons and varies from hard and brittle to plastic forms. It is insoluble in water but soluble in gasoline. It melts on heating, and burns with a smoky flame. Asphalt is widely used for paving, roofing, paints, and varnishes. Light renders certain grades of asphalt insoluble in oil of turpentine, hence they are used in photomechanical work. Most native asphalt is a residue from evaporated petroleum;
2. A composition of ground asphalt rock and bitumen, of bitumen, lime, and gravel, or even of coal tar, lime, sand, etc., used for forming pavements, and as a waterproof cement for bridges, roofs, etc.; asphaltic cement.
New International Dictionary of the English Language 163 (2nd ed. 1940).
The more recent definition is as follows:
Asphalt:
1. A brown to black bituminous substance found native around the Dead Sea, in Trinidad, and elsewhere and also obtained as a residue from certain petroleums, coal tar, and lignite tar consisting chiefly of a mixture of hydrocarbons, varying from hard and brittle to plastic in form, melting on heating, being insoluble in water but soluble in gasoline, and use esp. for paving and roofing, in paints and varnishes, and because light renders certain grades insoluble in oil of turpentine for photomechanical work.
2. a. A composition of ground asphalt rock and bitumen, of bitumen, lime and gravel, or even of coal tar, lime and sand used for forming pavements and as a waterproof cement (as for bridges and roofs).
b. A surface (as a path or roadway) paved with asphalt.
Webster's Third New International Dictionary of the English Language 129 (1968).
The Board found the first definition to be a technical one and decided that the second definition should be used to decide the present issue. It viewed the effect of the second definition, which defines asphalt more broadly, as a greater restriction upon the use of the land and affirmed the denial of a building permit. To justify its interpretation, the Board noted the "Foreword" of the ordinance which states, "[t]his Zoning Code has purposefully been simplified so that every resident of the Town of Cheswold will be able to read and understand its provisions and the effect of the regulations included in the Code on their property." The Board viewed the second definition as consistent with this purpose.
II. DISCUSSION
Petitioners contend that the Board erred as a matter of law when it failed to: (a) read and interpret the words of the ordinance in the context of surrounding words; (b) select the least restrictive definition of "asphalt"; and (c) follow precedent which construed the identical language of the ordinance to allow a concrete manufacturing plant within the M-1 Industrial Zone
In response, the Board asserts that: (a) the words of the ordinance should be examined in light of the language of the "Foreword" encouraging interpretation in a "simplified" manner; (b) the application of the strict construction rule is not applicable to this case; and (c) the prior caselaw differentiating concrete manufacturing from cement production is distinguishable from this case.
The function of this Court is to determine whether the Board's decision is supported by substantial evidence and free from legal error. Generally, this Court does not weigh the evidence, determine questions of credibility, or make its own factual findings. It merely determines if the evidence is legally adequate to support the Board's factual findings. Even so, "where, as here, the issue is one of construction of statutory law and the application of the law to undisputed facts, the court's review is plenary." It is well settled that, zoning ordinances must be construed in case of doubt in favor of the land owner. Further, when the "intent of the legislature is clearly reflected in the unambiguous language in the statute, the language itself controls."
General Motors v. Freeman, Del. Supr., 164 A.2d 686, 689 (1960); Johnson v. Chrysler Corporation, Del. Supr., 213 A.2d 64, 66-67 (1965).
Johnson v. Chrysler, 213 A.2d at 66.
Public Water Supply Company v. DiPasquale, Del. Supr., 735 A.2d 378, 381 (1999) ( overruling Eastern Shore Natural Gas Co. v. Delaware Public Service Comm., Del. Supr., 637 A.2d 10 (1994)).
Mergenthaler v. State, Del. Supr., 293 A.2d 287, 288 (1972); Wood v. Parsons, Del. Super., 1990 WL 63910 (Jan. 11, 1990); and Cardillo v. Council of South Bethany, Del. Super., 1991 WL 113627 (May 24, 1991).
Di's Inc. v. McKinney, Del. Supr., 673 A.2d 1199, 1203 (1996) citing Spielberg v. State, Del Supr., 558 A.2d 291, 293 (1989) (citation omitted).
In evaluating whether the zoning ordinance prohibits Petitioner's proposed facility, it must be recognized that the language subject to construction is not just the word "asphalt" but the phrase which prohibits in the industrial zone "the primary production [of asphalt] from raw materials" (emphasis added). The Board cannot segregate "asphalt" from this context. Thus, more is involved here than the meaning of that one word. It is the phrase which is at issue.
It is undisputed in the record that the primary production of asphalt from raw materials can only take place at a crude oil refinery. No permit was sought here to refine crude oil into asphalt within the Town of Cheswold. Rather, a permit was sought to build a drum hot mix facility where asphalt would be mixed with aggregates to produce hot mix. Hot mix, like concrete, is used to pave roads. There is a substantial difference in the process of refining or manufacturing asphalt at a crude oil refinery from the process of mixing asphalt with other materials to produce hot mix bituminous concrete. A hot mix facility, like the concrete plant already built in the industrial zone, entails blending (not primary production) of several ingredients which are not raw. No matter what label is attached to the product to be assembled at Petitioner's proposed facility, it is clear that it does not involve the "primary production [of asphalt] from raw materials."
Even if the word "asphalt" is arguably ambiguous because it is susceptible to different definitions, the Board cannot simply select one over the other as it chooses. Nor should it select a definition that renders surrounding words meaningless. The law requires in cases of doubt that the Board select the least restrictive definition of "asphalt" within the confines of the word. Such a construction here means that a hot mix facility is permitted in this M-1 Industrial Zone just as a concrete production facility is permitted. If there was any doubt on the meaning of asphalt, the Board erred, as a matter of law, by not choosing the least restrictive definition which favors the land owner.
See fn. 10 supra.
Finally, in Godard v. Town of Cheswold Board of Adjustment , this Court affirmed both the Town Council's and the Board of Adjustment's interpretation of this very ordinance to permit production of concrete in the industrial zone by mixing cement with other materials even though the primary manufacture of cement is prohibited. Godard clearly held that a production facility which mixes cement with various aggregates to produce concrete is not prohibited by the ordinance. The same is true here for hot mix production. Here the record shows that liquid asphalt is manufactured in a refinery from the raw material crude oil. Hot mix is produced by mixing the refined asphalt brought to the site with processed aggregates. Just as cement is the binder for the aggregates in concrete, asphalt is the binder for the aggregates in hot mix bituminous concrete. Both products are produced from the mixing of processed materials.
Del. Super., C.A. No. 92A-12-022, Steele, R.J. (Oct. 15, 1993) (ORDER).
III. CONCLUSION
Ordinarily this Court is deferential to municipal zoning decisions as it should be. But when the Board's decision is not supported by substantial evidence or is contrary to the applicable law, it is the Court's duty to reverse the Board. The Board erroneously interpreted the zoning ordinance in a manner which is irreconcilable with the zoning ordinance, its own ruling to allow a ready-mix concrete plant in the same industrial zone, and the caselaw in Godard v. Town of Cheswold Board of Adjustment which affirmed that ruling. While the primary production or refining of asphalt from raw materials is prohibited in the industrial zone, the mixing of asphalt with aggregate materials to make hot mix or asphalt bituminous concrete is not. Petitioner is entitled to a building permit.
Because the decision of the Board is not supported by substantial evidence in the record and is erroneous as a matter of law, it is REVERSED and the matter is REMANDED with instructions to issue a building permit.
IT IS SO ORDERED.