BOHEMIA MILL POND v. N.C.C., 01A-03-007 HLA (Del.Super. 10-1-2001)

ALFORD, J.

On this 1st day of October 2001, upon consideration of the Appeal filed by Writ of Certiorari by Bohemia Mill Pond ("Appellant") and the record of the proceedings below, it appears to the Court that:

(1) In 1991, Appellant recorded a development plan in New Castle County consisting of 50 lots in the subdivision, which was named Bohemia Mill Pond. Sometime in 1994, the building of the roadways within the development commenced. In 1996, building permits were issued for two houses to be constructed within the Bohemia Mill Pond Subdivision. From 1996 until October 2000, no construction occurred in the subdivision.

(2) On December 31, 1997, New Castle County Council ("Council") adopted the Unified Development Code ("UDC"), which provided for sewer impact fees on all future developments. Such fees were required to be paid prior to the issuance of a certificate of occupancy. Realizing that some property owners had changed their positions or incurred charges in reliance on previous law, the Council adopted an exemption process, so that previous property owners with vested rights would not be detrimentally effected by the new law. The property owners' rights were said to vest when:

as of December 31, 1997, a substantial change of position, expenditures, or incurrence of obligations was lawfully made in good faith reliance upon an approved major subdivision or land development plan, approved minor subdivision or land development plan, or upon a building permit.

Originally these exemptions had to be applied for before December 31, 1998, but when the Council expanded the UDC in January, 1999, the Council also extended the period for filing this exemption until March 31, 1999.

(3) On October 9, 2000, Appellant filed for an exemption to the impact fees assessed on undeveloped land under the UDC. This application was made to the New Castle County Department of Land Use ("Department") pursuant to the UDC. On October 11, 2000, the Department denied Appellant's request because the application was filed after the filing date of March 31, 1999. It is undisputed that had Appellant filed for the exemption within the time period stated within the UDC, Appellant's application would have been granted as its rights had vested.

(4) On October 30, 2000, Appellant appealed to the New Castle County Planning Board ("Board"). After a hearing was held on February 6, 2001, the Board unanimously upheld the Department's decision on February 20, 2001. The sole issue in this appeal is whether New Castle County violated Appellant's procedural due process rights by not affording personal notice of the change in the law to all landowners of undeveloped land, but rather relying on newspaper notification.

(5) Appellant sought this Court's review under 10 Del. C. § 562 as a writ of certiorari. Before issuing such a writ, the judgment below must be final and there must be no other basis of review for the claim. The standard of review of an appeal based on certiorari is on the record and this Court cannot review the Planning Board's factual findings. "The writ of certiorari is a means of seeking a limited review of the Board's decisions and is generally confined to jurisdictional matters, errors of law or irregularity of proceedings which appear on the face of the record."

(6) It is well settled law that to prevail on a procedural due process claim one must prove two essential elements: (1) a protected life, liberty or property interest and (2) that interest was deprived without notice and an opportunity to be heard. Here, the Appellee concedes that the Appellant has a protected property interest, thus this Court only needs to examine whether adequate notice and an opportunity to be heard was afforded to Appellant.

(7) Under constitutional due process analysis, newspaper publication alone will not constitute constructive notice when the name and addresses of persons to be notified are readily available. "Notice by publication alone may be sufficient as to unknown claimants for whom no address is ascertainable. However, publication is a constitutionally inadequate form of notice for interested persons whose addresses and names are readily available." Notice must be "reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections." The Appellee's contention that this aforementioned analysis should not flow to impact fees, but rather only apply to special assessments is misplaced. "It is common knowledge that mere newspaper publication rarely informs a landowner of proceedings against his property." The United States Supreme Court originally stated this conclusion with regard to trust beneficiaries, since then it has been extended to condemnation proceedings, tax lien foreclosure action, special tax assessments, and quiet title actions. Following the line of cases above, this Court reasons that newspaper publication alone is insufficient notice of impact fees when the names and addresses of those effected property owners are readily available.

(8) Since this Court found the newspaper notification of the effected property owners was deficient, the Court now needs to determine whether the names and addresses of the effected property owners were readily ascertainable. Appellee contends that the names were not known and would require extensive work to derive a list of effected property owners and notify them personally. On the other hand, Appellant argues that Appellee could have notified everyone south of the canal, where the impact fees would be assessed, by a statement or letter included within their tax bills. From the facts it appears that the impact fees were to apply to property owners of undeveloped tracts of land within developments, whether large or small, where construction had already begun. If construction had begun on such undeveloped lots, then a building permit would have been issued and a recorded plan should have been filed by the property owner. From either the recorded plan or the building permits issued, Appellee would have been able to derive the names and addresses of the effected property owners. Thus, personal notification should have been given to all property owners who were effected by the newly passed impact fee.

(9) The Court finds that Appellant's procedural due process rights were violated when it was not given proper notice of the impact fees and thus was denied an opportunity to be heard on the matter.

(10) For the forgoing reasons the decision of the New Castle County Planning Board is hereby REVERSED.

IT IS SO ORDERED.