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Brokenbrough v. Castle


argued: August 10, 1993.


On Appeal from the United States District Court for the District of Delaware. (D.C. Civil Action No. 92-00384).

Before: Scirica, Cowen and Rosenn, Circuit Judges.

Author: Scirica


SCIRICA, Circuit Judge.

In this zoning dispute, we again address ripeness in the context of a constitutional challenge to a land-use decision. See Taylor Inv., Ltd. v. Upper Darby Tp., 983 F.2d 1285 (3d Cir. 1993). Because we find the challenge premature, we will vacate and remand with directions to dismiss without prejudice.



Plaintiff Frank Acierno owns property in New Castle County, Delaware. Under New Castle County's zoning ordinance, a small part of the property is zoned C-2 (a classification for general commercial uses, Ordinance § 23-32) and the larger part M-1 (a classification for "light" manufacturing, Ordinance § 23-34).*fn1 In 1971, plaintiff submitted a development plan to build an enclosed shopping mall on the M-1 portion of the property. At that time, the County's zoning ordinance permitted all commercial uses, including shopping malls, on M-1 property.

For reasons not relevant to this appeal, plaintiff's final development plan was rejected by County authorities, a decision the Delaware Court of Chancery upheld on review. The Delaware Supreme Court reversed, directing plaintiff's development plan be approved and recorded. Acierno v. Folsom, 337 A.2d 309 (Del. 1975).

Before the Delaware Supreme Court rendered its decision, New Castle County amended its zoning ordinance. The amendment, effective in November 1971, excluded all commercial uses from M-1 districts. In directing the County to record plaintiff's final development plan, however, the Delaware Supreme Court did not address the effect of this amendment on plaintiff's property. See id. Nevertheless, on October 28, 1975, the New Castle County Council complied with the court's directive and approved plaintiff's plan.

Plaintiff's property sat idle between October 1975 and 1987. Then, in September 1987 and again in November 1988, plaintiff submitted subdivision plans, along with surveys, drainage area plans, site plans, grading and utility plans, and road plans. With these subdivision plans, plaintiff proposed to build a "strip-mall" (instead of an enclosed facility) and a 70,000 square foot commercial building on the property. The Department of Planning and the County Council approved the plans.*fn2


Notwithstanding the plan approvals, plaintiff was required to secure a building permit to build on the property. Del. Code Ann. tit. 9, § 3005(a) (1989). Any person seeking a building permit in New Castle County must apply to the Development and Licensing Division of the Department of Public Works. Id. § 1361(2)(a);*fn3 Ordinance § 23-15. The Development and Licensing Division has power to "determine whether the applicant is properly entitled" to the permit, and if not, it must notify him in writing with the reasons for rejection. Del. Code Ann. tit. 9, § 1361(2)(a)(2), (4). The Development and Licensing Division may only issue permits that comply with the zoning ordinance and other pertinent law. Id. § 1361(2)(b); Ordinance § 23-15.*fn4

Although the Development and Licensing Division has authority to issue building permits, it is statutorily required to coordinate with other county agencies in making this decision. Other agencies may prescribe conditions on the issuance of a permit if the condition relates to a function of that agency. Del. Code Ann. tit. 9, § 1361(2)(b). The agency must certify the conditions to the Division in writing, and the Division must enforce the condition as a prerequisite to issuance of the permit. Id. Moreover, the Division must, at the request of any county officer, department, or board, make a special investigation of "any property upon which unlawful conditions are believed to exist or of the manner in which the holder of any license is operating under it." Id. § 1361(6).

If the Development and Licensing Division refuses to issue a permit, the decision is "subject to determinations made by the Board of Adjustment on appeal taken" from that refusal. Id. § 1361(1); Ordinance § 23-19(a); see, e.g., MacDonald v. Board of Adjustment, 558 A.2d 1083, 1084 (Del. Super. Ct. 1989) (Board of Adjustment reviewed issuance of building permit); In re Auditorium, Inc., 45 Del. 430, 84 A.2d 598, 599 (Del. Super. Ct. 1951) (Board of Adjustment reviewed denial of building permit), cause remanded on other grounds, 47 Del. 373, 91 A.2d 528 (Del. 1952).*fn5 The Board of Adjustment's primary function is to interpret the zoning ordinance, see Del. Code Ann. tit. 9, § 1352; Ordinance §§ 23-82, 23-83, and it has authority to hear and decide "appeals in zoning matters where error is alleged in any order, requirement, decision or determination made by an administrative officer or agency in the enforcement of any zoning ordinance, code regulation or map . . . ." Del. Code Ann. tit. 9, § 1352(a); see Ordinance §§ 23-84 (power to hear appeal on all zoning matters). The Board

may reverse or affirm, wholly or partly, or modify the order, requirement, decision or determination appealed from, and make such order, requirement, decision or determination as ought to be made, and, to that end, it shall have all powers of the officer or agency from whom the appeal was taken.

Del. Code Ann. tit. 9, § 1352(e). The County Council cannot restrict the Board's powers, State ex rel Conly v. Klingmeyer, 51 Del. 203, 141 A.2d 451, 452 n.1 (Del. 1957), and the Board's decisions are reviewed only on appeal to the Delaware Superior Court, see Del. Code Ann. tit. 9, § 1353(a).


In December 1991, plaintiff submitted an application for a permit to build a 112,000 square foot commercial building. David Biloon, New Castle's Chief of the Development and Licensing Division, rejected the application. In a letter dated December 18, 1991, Biloon provided two reasons for the rejection. First, plaintiff's permit application impermissibly varied from his record plans, which authorized a building of 70,000, not 112,000, square feet. Second, because plaintiff's property was zoned M-1, Biloon stated that "commercial ventures of this nature cannot be situated on the lands which contain manufacturing zone classification" under the zoning ordinance.

Biloon based his interpretation of the zoning ordinance on several memoranda from the County's Law Department. Approximately eight months before plaintiff submitted his building-permit application, the First Assistant County Attorney, defendant Michael Mitchell, researched the land-use history of the property in response to a request for a zoning certification by one of plaintiff's prospective tenants.*fn6 In the course of his research, Mitchell learned that plaintiff had recorded three plans for the property, all for commercial uses, but that the property was zoned for manufacturing uses only. He also knew that, after November 1971 and before approval of plaintiff's final plan, the County had excluded all commercial uses from property zoned for manufacturing. Based on this, Mitchell sent a memorandum to Biloon on April 18, 1991, stating

no building permit should be issued for any construction on this site [i.e., plaintiff's property] until extensive review and consultation between the Division of Development and Licensing, Department of Planning and Department of Law is initiated and concluded concerning any proposed use . . . . [A] general hold should be placed on any building permits that could be issued for this site.

Mitchell sent copies of his memorandum, as well as subsequent memoranda, to other County officials, stating that plaintiff's record plans should be accorded no effect in light of the alleged zoning defect and requesting the officials to "take any steps necessary to ensure that no permits are issued for this site until complete review and consultation is accomplished with this Department and the Department of Planning."

Biloon adopted Mitchell's opinion by memorandum dated May 3, 1991. As we have noted, Biloon rejected plaintiff's building-permit application in December 1991, based in part on his agreement with Mitchell's opinion. Plaintiff did not appeal the decision.

In May 1992, plaintiff submitted another building-permit application. Again proposing to build a commercial building, plaintiff cured the size discrepancy by requesting a permit for a 70,000 square foot building. Mitchell and Biloon discussed the revised application. Biloon requested instructions, and Mitchell responded "it is not zoned for a retail department store. He does not get a permit." Biloon rejected plaintiff's application by letter dated June 4, 1992, noting "the conflict between the proposed commercial use and the manufacturing zoning classification for the property remains unchanged." Again, plaintiff did not appeal the decision.

Instead, plaintiff filed a three-count complaint under 42 U.S.C. § 1983 (1988) in the United States District Court for the District of Delaware. In count I, plaintiff claimed the County and Mitchell violated his right to substantive and procedural due process of law and equal protection of the laws. He requested injunctive relief "compelling the issuance of the subject permit," as well as compensatory damages and costs (and punitive damages against Mitchell). In count II, plaintiff petitioned for mandamus, directing the County to issue the building permit. Count III was a state-law claim against Mitchell for intentional interference with prospective economic advantage.

Before discovery was completed, defendants filed a motion for summary judgment, and plaintiff filed a motion for a preliminary injunction. The district court ordered expedited discovery and held an evidentiary hearing. The court granted plaintiff's motion for a preliminary injunction, directing defendants to review plaintiff's application for a building permit. The court denied defendants' motion for summary judgment on count I, but granted summary judgment on counts II and III.*fn7 The court also determined Mitchell was not entitled to qualified immunity under Anderson v. Creighton, 483 U.S. 635, 97 L. Ed. 2d 523, 107 S. Ct. 3034 (1987). Defendants now appeal.*fn8


For the first time on appeal, the County contends plaintiff's claims are not ripe for review.*fn9 Although we generally decline to address arguments for the first time on appeal, "ripeness affects [the] justiciability" of plaintiffs claims, Taylor Inv., Ltd. v. Upper Darby Tp., 983 F.2d 1285, 1290 (3d Cir. 1993), and we will address it here. See, e.g., Felmeister v. Office of Attorney Ethics, 856 F.2d 529, 535 (3d Cir. 1988) ("This Court has recognized that considerations of ripeness are sufficiently important that we are required to raise the issue sua sponte even though the parties do not."). "Because issues of ripeness involve, at least in part, the existence of a live 'Case or Controversy,' we . . . must determine whether the issues are ripe for decision in the 'Case or Controversy' sense. Further, to the extent that questions of ripeness involve the exercise of judicial restraint from unnecessary decision of constitutional issues, the Court must determine whether to exercise that restraint . . . ." Blanchette v. Connecticut Gen. Ins. Corps., 419 U.S. 102, 138, 42 L. Ed. 2d 320, 95 S. Ct. 335 (1974) (footnotes omitted).



In Taylor Inv., Ltd. v. Upper Darby Tp., 983 F.2d 1285 (3d Cir. 1993), we held a constitutional challenge to a land-use decision is not ripe unless "state authorities [are] given an opportunity to 'arrive[] at a final, definitive position regarding how [they] will apply the regulations at issue to the particular land in question.'" Id. at 1291 (quoting Williamson Planning Comm. v. Hamilton Bank, 473 U.S. 172, 191, 87 L. Ed. 2d 126, 105 S. Ct. 3108 (1985)); see also Midnight Sessions, Ltd. v. City of Philadelphia, 945 F.2d 667, 686 (3d Cir. 1991) (until City renders final decision on application of building and fire regulations to plaintiff's property, no mature constitutional claim based on enforcement of those regulations exists), cert. denied, 118 L. Ed. 2d 389, 112 S. Ct. 1668 (1992); Pace Resources, Inc. v. Shrewsbury Tp., 808 F.2d 1023, 1029 (3d Cir.) (mature constitutional claim based on land-use regulation requires that intended use of property was "conclusively barred"), cert. denied, 482 U.S. 906, 96 L. Ed. 2d 375, 107 S. Ct. 2482 (1987).

Taylor involved the revocation of a use permit. There, plaintiffs' lessor secured a use permit to open a "physical fitness/sports center" in Upper Darby Township, Pennsylvania. Instead, the lessor opened an all-night pool hall. 983 F.2d at 1288. The Township's zoning officer revoked the lessor's permit, claiming the lessor supplied false and misleading information on his permit application. Plaintiffs did not appeal the revocation decision to the Township Zoning Hearing Board.*fn10 Nor did plaintiffs seek a variance or special exception. Instead, they filed a federal lawsuit, claiming the revocation violated due process and equal protection.

We held that plaintiffs' claims were premature. 983 F.2d at 1291-92. Based on Williamson and MacDonald, Sommer & Frates v. Yolo County, 477 U.S. 340, 91 L. Ed. 2d 285, 106 S. Ct. 2561 (1986), we concluded plaintiffs suffered no mature constitutional injury until township authorities had the opportunity to apply authoritatively their zoning regulations to the property.*fn11 Refusing to become a zoning board of appeals, see id. at 1291, we declined to encroach on the "delicate area" of zoning without allowing local authorities to construe their own law in the context of concrete facts. Id. (quoting Eide v. Sarasota County, 908 F.2d 716, 726 n.17 (11th Cir. 1990), cert. denied, 498 U.S. 1120, 112 L. Ed. 2d 1179, 111 S. Ct. 1073 (1991)).

We require finality because "land-use regulation generally affects a broad spectrum of persons and social interests, and . . . local political bodies are better able than federal courts to assess the benefits and burdens of such legislation." Taylor, 983 F.2d at 1291 (quoting Rogin v. Bensalem Tp., 616 F.2d 680, 698 (3d Cir. 1980), cert. denied, 450 U.S. 1029, 68 L. Ed. 2d 223, 101 S. Ct. 1737 (1981)). Moreover, "local agencies charged with administering regulations governing property development are singularly flexible institutions; what they take with one hand they may give back with the other." MacDonald, 477 U.S. at 350. Accordingly, as the Court of Appeals for the Ninth Circuit observed in Hoehne v. County of San Benito, 870 F.2d 529, 533 (9th Cir. 1989), "the property owner . . . has a high burden of proving that a final decision has been reached by the agency before it may seek compensatory or injunctive relief in federal court on federal constitutional grounds."

Here, plaintiff sued New Castle County under § 1983, alleging violations of due process (both substantive and procedural) and equal protection. As the basis of these claims, plaintiff alleges the denial of his building permit effectively deprived him of his right to develop his property commercially. He alleges, and it is not disputed, that the Department of Planning approved three separate plans for his property -- each of which showed commercial use on the M-1 portion of the property. Biloon denied a building permit based on the discrepancy between the approved plans and the amended zoning ordinance, which does not allow commercial uses in M-1 districts. Plaintiff alleges Biloon's decision was dictated by Mitchell, who allegedly harbored personal animosity against plaintiff.*fn12 Thus, plaintiff contends the decision violated substantive due process because it was arbitrary and capricious, violated procedural due process because it was made without notice and a hearing, and violated equal protection because it was not rationally related to a legitimate government objective.

We agree the County has made a final decision with respect to plaintiff's development plans. Plaintiff submitted three plans depicting commercial development on the M-1 portion of the property. The Department of Planning and the County Council accepted those plans, which are final decisions under state law and the County's zoning ordinance. See Acierno v. Folsom, 337 A.2d 309, 313 (Del. 1975) (planning board has "final decision" to approve development plans). There has been no action by any authoritative body to reverse these actions, and thus we assume without deciding plaintiff has a property interest in his plans under Delaware law.*fn13

Plaintiff's suit, however, seeks redress for the denial of a building permit, not the rejection of a development plan. Although Biloon had initial authority to issue or deny a permit, the decision is appealable to the Board of Adjustment when issuance or denial is based on an interpretation of the zoning regulations. Del. Code Ann. tit. 9, § 1352(a); Ordinance § 23-84. Only the Board has final authority to interpret the zoning regulations -- and until it renders a decision there is no final judgment.*fn14 Taylor, 983 F.2d at 1291-92.

We recognize the County has acted inconsistently in approving plaintiff's plans yet rejecting the building permit.*fn15 In rejecting the permit application, Biloon and Mitchell determined plaintiff's plans violated the amended zoning ordinance -- despite the fact the Department of Planning approved the plans. See Ordinance § 23-9 (after approval of site plans, "development of the site may proceed pursuant to record plan approval."). However, Biloon does not have authority to void or rescind plaintiff's plans; he has authority only with regard to the permits. Del. Code Ann. tit 9, § 1361(a)(2); Ordinance § 23-15. The Board of Adjustment is not bound by Biloon's interpretation of the zoning ordinance nor his implicit determination that plaintiff's plans were invalid.*fn16

Plaintiff need only secure a final decision from the Board of Adjustment on his application for a building permit before his claims are mature. Because plaintiff has secured a final decision on his development plans, he need not seek a variance, Ordiance § 23-85(3), or rezoning, Ordinance § 23-85.1(1) -- which distinguishes this case from Williamson and Taylor. In Williamson, a local planning commission rejected a preliminary development plat under its zoning regulations. 473 U.S. at 181-82. In Taylor, the zoning officer revoked the use permit and maintained the intended use was not proper under the Township's zoning ordinance. 983 F.2d at 1288. Because local officials had determined the intended uses were not appropriate under the relevant zoning ordinances in both cases, plaintiffs' claims were not ripe until they sought variances from those ordinances. See Williamson, 473 U.S. at 188; Taylor, 983 F.2d at 1288. Here, the Department of Planning and County Council approved plaintiff's development plans and approved commercial development on the property. The County has done nothing to revoke the approval. Plaintiff will have a "final" decision once the Board of Adjustment renders its decision. If the Board determines commercial development is prohibited under the amendment, plaintiff's application for a building permit will have been conclusively rejected and his § 1983 claims will be ripe.*fn17


Plaintiff contends Taylor is distinguishable because, unlike Pennsylvania's Zoning Hearing Board, the Board of Adjustment does not have statutory authority to render "a final adjudication." See Pa. Stat. Ann. tit. 53, § 10909.1(a). We disagree. As we have explained, this dispute concerns the proper interpretation of the County's zoning regulations as applied to plaintiff's property. The Board of Adjustment has plenary review over "any order, requirement, decision, or determination" under the zoning ordinance by any county officer. Del. Code Ann. tit. 9, § 1352(a)(1); Ordinance § 23-84. The Board also has authority to hear and decide any "applications for interpretation of any zoning ordinance, code, regulation, or map upon which [it] is empowered to pass." Del Code Ann. tit. 9, § 1352(a)(2).

These administrative powers are markedly different from determinations made by Biloon -- which are statutorily "subject to determinations made by the Board of Adjustment." Del. Code Ann. tit. 9, § 1361(1); see also Ordinance § 23-19(a) ("No building permit . . . shall be granted . . . except in compliance with the provisions of this chapter, or a decision of the board of adjustment or the courts."). Therefore, the Board of Adjustment, and not the Director of the Department of Development and Licenses, has final authority to construe the zoning regulations. See Dragon Run Terrace, 216 A.2d at 148 (Board of Adjustment is "guardian" of "public interest in the protection and enforcement of the zoning regulations;" the Board functions in administrative capacity); Carr v. Town of Dewey Beach, 730 F. Supp. 591, 608 (D. Del. 1990) (under Sussex County's analogously-worded zoning provisions, Board of Adjustment had final policy making authority for county). Because plaintiff has secured no determination from the Board, his § 1983 claims are not yet ripe for judicial review.*fn18


For these reasons, we will vacate the district court's judgment and remand with instructions to dismiss without prejudice.

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