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Brokenbrough v. Castle

argued: August 10, 1993.

FRANK E. ACIERNO
v.
MICHAEL MITCHELL, IN HIS OFFICIAL AND INDIVIDUAL CAPACITY; NEW CASTLE COUNTY, APPELLANTS



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

Opinion OF THE COURT

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.

I.

A.

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

B.

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, ยง 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 ...


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