Opinion
C.A. No. 00A-04-007 CG
Date Submitted: November 1, 2000
Date Decided: November 27, 2000
Upon Petition for Writ of Certiorari. GRANTED.
Upon Appeal from the Zoning Board of Adjustment of Odessa. REVERSED.
Bayard Mann, Wilmington, Delaware, Attorney for Petitioner/Appellant.
Clifford B. Hearn, Jr., Wilmington, Delaware, Attorney for Respondent/Appellee.
MEMORANDUM OPINION
Petitioner/Appellant, Kathleen H. Harvey, has filed a complaint seeking a writ of certiorari pursuant to 22 Del. C. § 328 asking the Court to review a decision of the Zoning Board of Adjustment of Odessa ("Board"). For the reasons set forth below, the Court hereby grants the petition for writ of certiorari and reverses the decision of the Board.
On October 11, 1999, the Town of Odessa, Delaware, by and through its Mayor and Town Council, applied to the Zoning Administrator of Odessa for a zoning permit to construct a veterans memorial in the historic residential district in Odessa. Specifically, the veterans memorial was to be located at 315 Main Street in Odessa, also known as the Old Academy Building. The Zoning Administrator approved the application and issued the permit the same day.
On November 3, 1999, the Historic Commission of the Town of Odessa met to consider the application for the veterans monument. After hearing public comment both in favor and in opposition to the monument, the Historic Commission voted to approve the application.
On December 16, 1999, Harvey filed a Notice of Appeal pursuant to 22 Del. C. § 324 with the Board. Harvey requested formal review of the decisions of the Zoning Administrator and Historic Commission regarding the permit for the veterans memorial. On February 8, 2000, the Board held a public hearing to consider Harvey's appeal. The Board consisted of four members: Peter Cooke, Karlyn Grant, L. D. Shank, and John Tulloch.
Initially, the Board noted that, although Harvey's Notice of Appeal was captioned, "Kathleen H. Harvey, et al," Harvey's legal counsel conceded that she stood alone before the Board. The Board then asked that Harvey indicate how she was an "aggrieved person" so as to be able to bring an appeal before the Board. In response, Harvey testified that she was a resident of, and a taxpayer in, Odessa. Harvey also indicated that a portion of her property was located in the Historic District. Harvey stated that she saw the Old Academy Building frequently and that it was central to the life of Odessa. At the conclusion of the hearing, the Board decided to provide Harvey and counsel for the Town of Odessa with the opportunity to provide "additional legal authorities" on the subject of whether Harvey was an aggrieved person.
During the February 8, 2000 hearing, Harvey also moved that three of the Board members recuse themselves due to conflict of interest. Specifically, Harvey asked that Karyln Grant recuse herself because she was the wife of the Mayor of Odessa and that John Tulloch and Peter Cooke recuse themselves because they were married to members of the Town Council and Historic Commission, respectively. The Board did not rule on Harvey's motion.
On March 14, 2000, the Board met again to address Harvey's appeal. Initially, the Board considered Harvey's motion that Grant, Tulloch, and Cooke recuse themselves due to conflict of interest. The Board noted that, if the three board members were to recuse themselves, it would be up to the Mayor and Council to appoint replacements, creating another potential conflict. The Board also noted the a statutory provision dealing with State employees required a financial interest in order to create a conflict of interest. Grant, Tulloch, and Cooke each stated on the record that they had no financial interest in the veterans memorial and that they were capable of rendering an impartial decision.
The Board next considered the issue of Harvey's status as an aggrieved person. Harvey again argued that she was an aggrieved person because she owned property in Odessa which was partially located within the Historic District and because she was a taxpayer m Odessa. Also, Harvey argued that the particular building at issue within the Historic District was deeded to the town with a restriction that public input was necessary to affect significant changes. Finally, Harvey argued that citizens of Odessa had the right to come before the Board to express their opinions regarding the Historic District.
In response, counsel for the Town of Odessa argued that a person must show "a special, financial, personal interest in the issue involved in the decision of the administrative officer, whether it was the Historic person or the Zoning administrator as to whether or not they are an aggrieved party." At the conclusion of the hearing, the Board voted three to one that Harvey was not an aggrieved person and did not have standing to undertake the appeal.
Harvey has now appealed the decision of the Board of Adjustment pursuant to 9 Del. C. § 328. In support of her appeal, Harvey raises three grounds. First, Harvey argues that she was denied fundamental due process because three members of the Board had conflicts of interest so as to prevent them from rendering an impartial decision. Second, Harvey argues that the Board erred in its determination that Harvey was not an "aggrieved person" pursuant to Odessa town ordinance 97-1 and 22 Del. C. § 324 so that she did not have standing to ask for administrative review before the Board. Finally, Harvey argues that the "taxpayer standing" language contained in the language of 22 Del. C. § 328 applied to Harvey so as to grant her standing to petition the Board for administrative review of the decisions of the Zoning Administrator and Historic Commission.
22 Del. C. § 328(a) states, in pertinent part:
Any person or person, jointly or severally aggrieved by any decision of the board of adjustment, or any taxpayer or any officer, department, board or bureau of the municipality may present to the Superior Court a petition, duly verified, setting forth that such decision is illegal, in whole or in part, specifying the grounds of the illegality.
This Court's role, in reviewing decisions of the Board of Adjustment, is limited to determining whether substantial evidence contained in the record supports the Board's factual findings and whether the Board's decision is free from legal error. Janaman v. New Castle County Bd. of Adjustment, Del. Super., 364 A.2d 1241, 1242 (1976), aff'd., Del. Supr., 379 A.2d 1118 (1977). This Court may reverse, affirm or modify the Board's decision. 22 Del. C. § 328(c).
Initially, Harvey argues that members of the Board of Adjustment had conflicts of interest involved in rendering their decision regarding her appeal so that Harvey was denied fundamental due process of law. Specifically, as set forth above, three of the Board members are married, respectively, to the Mayor, a Town Council member, and a Historic Commission member. As a result, Harvey argues, she was subject to prejudice and bias because the three Board members with "disqualifying conflicts of interest" refused to recuse themselves from hearing her appeal.
Respondent argues that the members of the Board cited by Harvey had no conflicts of interest under the factual circumstances of the proceeding before the Board and, thus, Harvey was not denied due process. Initially, Respondent points out that the Town of Odessa has a population of 311 persons. Therefore, finding three replacements for the Board members asked to step down who did not have some type of conflict of interest would be difficult. Respondent concludes that it was not necessary or practical for the three Board members to recuse themselves.
Procedural due process requires a fair hearing and a fair hearing officer. Officers acting in a judicial or quasi-judicial capacity are disqualified by their interest in the controversy to be decided. Tumey v. State of Ohio, 273 U.S. 510, 522 (1927). However, it has been held that all questions of judicial or quasi-judicial qualification do not necessarily involve constitutional validity. Id. at 523. Tumey noted that "matters of kinship, personal bias, state policy, remoteness of interest would seem generally to be matters merely of legislative discretion." Id. A party's Fourteenth Amendment right to due process of law would be violated where the judge had "a direct, personal, substantial pecuniary interest in reaching a conclusion against him in his case." Id.
Respondent also states, and Harvey does not dispute, that there is no conflict of interest ordinance in effect regarding personal relatives of a party serving on an administrative board in Odessa. Therefore, it follows that, absent an administrative rule or statute, an administrative hearing officer, such as the members of the Board, should only be disqualified upon the showing of a direct, personal, substantial pecuniary interest in the outcome of the case. Harvey has made no such showing, alleging only that the Board members' "prior involvements with the parties, in the form of their familial relationships, lack actual elements of fairness due to the inherent conflict and bias."
The Court's position is supported by the statutory provision regarding conflicts of interest applicable to state employees, state officers and honorary state officials. Twenty-nine Del. C. § 5805(a)(1) provides that such state employees may not participate in the review or disposition of any matter pending before the State when the state employee "has a personal or private interest. . . ." A "personal or private interest in a matter" is defined as "an interest which tends to impair a person's independence of judgment in the performance of the person's duties with respect to that matter." 29 Del. C. § 5805(a)(1). Finally, § 5805(a)(2) defines "an interest which tends to impair a person's independence of judgment in the performance of the person's duties with respect to that matter" as:
a. Any action or inaction with respect to the matter would result in a financial benefit or detriment to accrue to the person or a close relative to a greater extent than such benefit would accrue to others who are members of the same class or group of persons; or
b. The person or a close relative has a financial interest in a private enterprise which enterprise or interest would be affected by any action or inaction on a matter to a lesser or greater extent than like enterprises or other interests in the same enterprise.
In other words, a state employee or official is considered to have a disqualifying conflict of interest when that person, or a close relative, has a financial interest in, or would accrue a financial benefit from, the subject of the matter pending before him. Although this statutory provision does not apply to employees of a municipality or township, the Court finds that it provides further guidance in this matter.
Finally, the Court notes that, in situations such as the one presented by this appeal, where the party seeking a zoning permit or variance is the Mayor or the Town Council, it is conceivable that replacing the recused Board members would be an impossibility. Respondent points out that, were the Board members to step aside, it would be up to the Mayor and Town Council to replace them from the remaining eligible citizens of a town of just over three hundred people. Any such replacement would have a potential conflict simply by virtue of being appointed by the very party seeking the zoning permit.
It has been held that, even where a financial interest dictates disqualification of a judge who otherwise would have power to make a determination, an exception exists where the basis for that disqualification would disqualify all other judges as well and therefore leave the parties without an opportunity for their day in court. Stifiel v. Carper, Del. Ch., 378 A.2d 124, 126 (1977), aff'd, Del. Supr., 384 A.2d 2 (1977). In this instance, although the Board members were not required to recuse themselves due to any financial interest, it may have been prudent for them to step aside had it been possible. However, it appears that such action by the Board members may have indeed left Harvey without an opportunity for her "day in court" as their replacements would also have had potential conflict.
In conclusion, the Court finds that Harvey has failed to show that the three members of the Board she identifies as having a conflict of interest have a direct, substantial, pecuniary interest in the subject matter of her appeal to the Board. Therefore, the Court finds that the Board did not violate Harvey's Fourteenth Amendment right to due process of law by failing to remove three of its four members when it considered Harvey's appeal.
Harvey's second argument in support of her appeal is that the Board erred by determining that Harvey was not an "aggrieved person" so that she had no standing to seek review by the Board of the decisions of the Zoning Administrator and Historic Commission. Twenty-two Del. C. § 324 governs appeals to the Board of Adjustment. The statute reads, in pertinent part:
Appeals to the board of adjustment may be taken by any person aggrieved or by any officer, department, board or bureau of the municipality affected by any decision of the administrative officer.
The issue of standing is a mixed question of fact and law. Oceanport Indus. v. Wilmington Stevedores Del. Supr., 636 A.2d 892, 899 (1994). Whether the Board correctly interpreted the applicable standing provision is a question of law, which the Court reviews de novo. Id. quoting . . . To determine the issue of whether Harvey meets the legal test of standing, the Court must decide whether substantial evidence supports the findings below. Id.
As set forth above, at the conclusion of the March 14, 2000 meeting, the Board voted and determined that Harvey did not qualify as an aggrieved person and so denied her appeal due to lack of standing. Both at the Board hearing and in its answering brief, respondent argued that, in order to qualify as an aggrieved person, Harvey had to "present proof of the adverse effect the changed status has or could have on the use, enjoyment, and value of his or her own property."
In support of her appeal, Harvey argues, as she did before the Board, that she owns property within and adjacent to the Historic District and that she is a citizen of the Town of Odessa. Harvey argues that any property owner within the Historic District has not only an economic interest in his or her own property, but in the vitality of the Historic District as a whole.
In response, Respondent argues that Harvey has no standing before the Board because she has not shown any injury or damage other than as a member of the general public and because Harvey produced no evidence that her property value would decrease as a result of the war memorial.
The term, "standing," refers to the right of a party to invoke the jurisdiction of a court, or in this case, an administrative board, to enforce a claim or to redress a grievance. Stuart Kingston, Inc. v. Robinson, Del. Supr. 596 A.2d 1378, 1382 (1991) (citations omitted.) The issue of standing is concerned, "only with the question of who is entitled to mount a legal challenge and not with the merits of the subject matter of the controversy." Id. Generally, in order to have standing, the plaintiff, or the petitioner in this case, must show that he or she has sustained an injury-in-fact and that the interests he or she seeks to protect are within the zone of interests to be protected by the statute. Committee of Merchants and Citizens Against the Proposed Annexation, Inc. v. Longo, Del. Supr., 669 A.2d 41, 44 (1995) (citing Oceanport, 636 A.2d at 903-904).
In considering whether a citizens group could be considered an "aggrieved person" so as to have standing to obtain judicial review of a decision of a county board of adjustment, the Delaware Supreme Court has adopted a broad rule regarding standing. Specifically, the Court stated,
the "broader rule of standing is entirely consistent with the underlying purpose of our zoning laws. Our municipalities enact zoning ordinances in order to protect the public's health, welfare, and safety. A challenge to a zoning variance focuses the court's attention on this public interest."Vassallo v. Penn Rose Civic Ass'n, Del. Supr., 429 A.2d 168, 170 (1981) (quoting Douglaston Civic Ass'n v. Galvin, N.Y., 324 N.E.2d 317, 320 (1974)). In applying this standard, this Court previously found that affected landowners located outside the community where the appeal occurs may qualify as "persons aggrieved" so as to have standing before the Court under 22 Del. C. § 328. Brandywine Park Condominium v. Members of the City of Wilmington Zoning Board of Adjustment, Del. Super., 534 A.2d 286 (1987).
Vassallo also adopted factors set forth in Douglaston to determine whether a citizens group had standing. Id. Although the parties make arguments regarding those factors, this Court finds that those factors provide guidance only to the specific situation of a group of citizens seeking standing as a "person aggrieved."
As outlined above, Harvey testified before the Board that she owned property within the Town of Odessa and that a portion of that property was within the Historic District. The remainder of the property, where her house is located, adjoins the Historic District. Harvey argued to the Board that the value of her property as well as the value of the Historic District as a whole may be affected by the location of the war memorial. According to Harvey, any property owner within the historic district has not only an economic interest in his or her own property, but in the vitality of the Historic District as a whole.
Initially, the Court finds that Harvey satisfied the latter requirement for standing, that is, whether the interests she sought to protect are within the zone of interests to be protected by the statute. The zone of interests intended to be protected by municipal zoning regulations is set forth in 22 Del. C. § 301:
For the purpose of promoting health, safety, morals or the general welfare of the community, the legislative body of cities and incorporated towns may regulate and restrict the height, number of stories and size of buildings and other structures, percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of the population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes.
This Court has held that the real design and purpose of zoning ordinances is to promote the general welfare and that the principal reason for restricting the use of property in certain localities is to make the locality a better place in which to live, to protect the value of the property and provide for the health and safety of those who live there. In re Auditorium, Inc., Del. Super., 84 A.2d 598, 602 (1951).
As to the first requirement for standing, that Harvey show an injury-in-fact, the Court finds initially that the Board erred as a matter of law by focusing solely on whether Harvey has shown a pecuniary loss as a result of the location of the war memorial. Harvey argued before the Board that, aside from the economic impact on the value of her property, she had an interest in the aesthetics of the Historic District as a whole.
It has previously been held that a party's asserted claim to standing may include both economic and environmental injuries. Oceanport Indus., 636 A.2d at 905. Save the Courthouse Committee v. Lynn, S.D.N.Y, 408 F. Supp. 1323 (1975) analogized the loss of environmental benefits to the loss of aesthetic benefits, such as those claimed by Harvey. In Lynn, a citizens group sought standing as an "adversely affected or aggrieved" party within the meaning of the applicable statute to prevent the proposed demolition of an old courthouse complex as part of an urban renewal project. 408 F. Supp. at 1327. Plaintiffs alleged that the proposed demolition would deprive them of the aesthetic benefit they derived from the courthouse. Id. The court explained:
While it is true that such a benefit hardly can be quantified, this is not to say that it is thereby so insufficient that loss of it will not support a finding of standing. Injury due to loss of benefits that might be derived from natural resources such as camping, hiking, fishing, sightseeing and the like is similarly of an intangible character and yet potential injury to such interests was found . . . to be enough to support standing. The fact that we are concerned here with esthetic enjoyment of a cultural resource with alleged historical and architectural value rather than a natural resource is not significant distinction since injury to such interests can well be said to fall into the same category.Id. at 1332.
Both Oceanport and Lynn note that, in addition to showing that there is an injury in fact, whether pecuniary, environmental, or aesthetic, the petitioner must show that the alleged injury will affect him or her. Oceanport, 636 A.2d at 905 ("the party claiming standing must show that the alleged environmental injury will actually affect it."); Lynn, at 1332 ("In addition to an injury in fact, the plaintiffs must also show that they themselves have been injured.")
Lynn acknowledges that where the injury in fact presented is aesthetic, it may be somewhat difficult to determine whether the party seeking review is or may be injured by the alleged action. Id. at 1332. Lynn held that,
A mere declaration of harm to such an interest may be sufficient under some circumstances to demonstrate that plaintiffs fall within the group of person whose interest may be injured. . . . However, other factors, such as residence and prior usage and concern with respect to the cultural resource, may serve to buttress such a finding.Id. (Citations omitted). Lynn found that the plaintiff citizens group had standing to challenge the demolition of the demolition of the courthouse where two of the individual plaintiffs owned property in the vicinity of the courthouse, one of the plaintiffs held a reversionary interest in the property, and one of the plaintiffs had practiced law in the courthouse and was "presumably acquainted with the purported esthetic values of the Courthouse." Id.
Although the Court notes that the holdings in Lynn are not binding upon this Court, its reasoning is persuasive, especially when analogized to the findings of Oceanport regarding environmental harm. In the instant case, Harvey presented evidence to the Board that she was a property owner within and adjacent to the Historic District of Odessa and that she had an interest in the aesthetics of the Historic District. Harvey also alleged economic harm to her property value due to the location of the war memorial. Under the analysis set forth above, the Court finds that there is substantial evidence set forth in the record below to support a factual finding that Harvey was an "aggrieved person" so as to have standing to have the Board consider the merits of her appeal. As a result, the decision of the Board must be reversed.
Harvey's third ground in support of her appeal is that the "taxpayer standing" language of 22 Del. C. § 328(a) applies to her so as to grant her standing to petition the board of adjustment. Initially, the Court notes that § 328 governs appeals to this Court from decisions of the board of adjustment and in no way applies to appeals to the board of adjustment. Because the Court finds that Harvey had standing as a person aggrieved under the applicable statute, § 324, it need not further address Harvey's final ground for relief.
Therefore, for the reasons set forth above, the Court hereby REVERSES the decision of the Board. IT IS SO ORDERED.
Although it would seem to be more expedient for the Court to remand the matter to the Board with instructions to review Harvey's appeal on its merit, the Court does not have the power. pursuant to 22 Del. C. § 328 to remand such matters to the Board of Adjustment. See 1001 Jefferson Plaza Partnership, L.P v. New Castle County Dept. of Finance, Del. Supr., 695 A.2d 50, 53 (1996) (interpreting identical statutory language).