   IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

TD REHOBOTH LLC and                                  :
OVERBROOK ACRES, LLC,                                :
                                                     :
                   Plaintiffs,                       :
                                                     :
            v.                                       :   C.A. No. 12432-VCS
                                                     :
SUSSEX COUNTY COUNCIL, the governing                 :
body of Sussex County Delaware,                      :
                                                     :
                   Defendant,                        :
                                                     :
           and                                       :
                                                     :
RICH BORRASSO, JOHN D. VINCENT,                      :
JUDY A. VINCENT, KENNETH HOPKINS,                    :
SUSAN HOPKINS, SUSABAR LIMITED                       :
LIABILITY PARTNERSHIP, RICHARD                       :
HOLTKAMP, and JEFFREY STONE,                         :
                                                     :
                  Intervenor-Defendants.             :

                          MEMORANDUM OPINION

                          Date Submitted: July 12, 2017
                         Date Submitted: August 11, 2017

Richard A. Forsten, Esquire and Gerard M. Clodomir, Esquire of Saul Ewing LLP,
Wilmington, Delaware, Attorneys for Plaintiffs.

David N. Rutt, Esquire of Moore & Rutt, P.A., Georgetown, Delaware, Attorney for
Defendant.

Robert V. Witsil, Jr., Esquire of Robert V. Witsil, Jr., P.A., Georgetown, Delaware,
Attorney for Intervenor-Defendants.


SLIGHTS, Vice Chancellor
      Plaintiffs, TD Rehoboth LLC and Overbrook Acres, LLC, ask this Court to

enjoin enforcement of, and declare invalid, the decision of the Sussex County

Council (“Council”) to deny TD Rehoboth’s application to rezone for commercial

development approximately 114 acres of farm property legally owned by Overbrook

and equitably owned by TD Rehoboth (the “Rezoning Application”). Council

rejected the Rezoning Application by a vote of 4-1.

      The scope of this Court’s decision, of course, is limited to the issues raised by

the parties—in particular, whether Council created a sufficient record for the Court

to review and whether the decisions of certain members of Council, as articulated

on the record at a meeting of Council, were arbitrary and capricious. What is not at

issue here is whether the Rezoning Application is proper. That is to say the Court

has not been asked to opine, and has not considered, whether the Rezoning

Application is valid on the merits or, secondarily, whether Council should approve

or deny it.

      The parties have filed cross-motions for summary judgment. After carefully

reviewing the record and the parties’ submissions, I conclude that the record relating

to the vote cast by one member of Council is inadequate to allow for any meaningful

review of that vote or the deliberative process that supported it. As for the vote of

another member of Council, I conclude that it reflected an arbitrary and capricious

process because the alleged harm identified by the councilmember as a basis for

                                          1
denying the Rezoning Application preexisted the filing of the application and,

therefore, bore no relationship to it. The two votes at issue here are important

because, if cast in the other direction (in favor of the Rezoning Application), the

outcome of Council’s decision on the application would have been different.1

Accordingly, the Rezoning Application must be re-submitted to Council for another

vote. That vote will be what it will be. And so long as the record of the vote is

adequate to allow for meaningful review, and the vote itself is not the product of

arbitrary or capricious decision-making, the results of the vote, whatever they are,

will stand.

                                I. BACKGROUND

         The facts are drawn from the parties’ pleadings and the evidence gathered in

appendices to the parties’ briefs submitted in connection with their cross-motions

for summary judgment.2

      A. Parties and Relevant Non-Parties

         Plaintiff, TD Rehoboth, is a Delaware limited liability company that is the

equitable owner of 114.4821 acres +/-, District 2-35, Map 23.000, Parcel 1.00,

Broadkill Hundred, Sussex County, located on the northeast side of Route One


1
 As noted, the vote was 4-1 against the Rezoning Application. If the two votes at issue
changed from “no” to “yes,” the Rezoning Application would have been approved by a
vote of 3-2.
2
    See Ct. Ch. R. 56(c).

                                           2
(Coastal Highway) across from Route 88 (Cave Neck Road) (the “Property”).

Plaintiff, Overbrook Acres, is a Delaware limited liability company and the legal

owner of the Property. Together, TD Rehoboth and Overbrook shall be referred to

as the “Owners.”

      Council is the governing body of Sussex County, a political subdivision of the

State of Delaware. It is charged with responsibility for reviewing and ultimately

approving (or not) applications for rezoning in connection with properties that lie in

areas within Sussex County that are outside of the jurisdiction of other zoning

authorities.

      Intervenors, Rich Borrasso, John D. Vincent, Judy A. Vincent, Kenneth

Hopkins, Susan Hopkins, Susabar Limited Liability Partnership, Richard Holtkamp,

and Jeffrey Stone (collectively, “Intervenors”), are landowners who own property

located adjacent to or near the Property. They were active participants in the public

hearing process and objected to the proposed rezoning of the Property.

    B. The Rezoning Application

      TD Rehoboth applied for the rezoning of the Property from its current zoning

of AR-1 (Agricultural Residential) to CR-1 (Commercial Residential) with plans to

construct an 850,000 square foot commercial shopping center.3 The Sussex County


3
 Pls. TD Rehoboth LLC and Overbrook Acres, LLC’s Opening Br. (“Pls.’ Opening Br.”)
Ex. A, Ex. C.

                                          3
Planning and Zoning Commission (the “Commission”) held a public hearing to

address the Rezoning Application on April 23, 2015.4 Thereafter, on June 11, 2015,

by a vote of 3-2, the Commission recommended that Council approve the Rezoning

Application.5

         Council held its first public hearing on the Rezoning Application on June 2,

2015.6 The themes advanced by counsel for the Owners during this meeting

included that the Rezoning was consistent with Sussex County’s Comprehensive

Plan; the Property is located in an area the Comprehensive Plan designates as a

“growth zone”; the Property is located along an area of Route One where several

other commercial properties have already been developed; the Property is in an area

that the State has designated as “Investment Level 3” where growth is anticipated;

there are no environmental issues associated with the development of the Property;




4
 Defs.’ and Intervenor-Defs.’ Answering Br. in Resp. to Pls.’ Mot. for Summ. J. and
Opening Br. in Supp. of Joint Defs.’ Cross Mot. for Summ. J. (“Defs.’ Answering Br.”)
Ex. A, at 12–21.
5
    Defs.’ Answering Br. Ex. B, at 7.
6
  Pls.’ Opening Br. Ex. D; Defs.’ Answering Br. Ex. C. Both parties produced only
“relevant excerpts” of the transcript from the June 2, 2015 meeting. Notably, this public
meeting of Council was convened before the Commission’s final vote in favor of the
Rezoning Application.

                                           4
and the Owners would contribute $8 million to a Route One overpass project at the

site of the Property that had been long planned by DelDOT.7

         Several members of the community spoke out against the Rezoning

Application. One area of complaint particularly relevant to this dispute focused on

whether the development of a large commercial complex on the Property would

negatively affect the ability of surrounding farmers to engage in effective aerial crop-

dusting on their properties.8 In this regard, Council received a letter from a local

crop-duster, Jeffrey A. Chorman, who stated that the rezoning would make the

rendering of his services to the surrounding farms far more difficult.9 According to

Chorman, Federal Aviation Administration (“FAA”) regulations would preclude

him from crop-dusting the fields adjacent to the Property if it were rezoned to CR-1

because the area would likely then be deemed “congested.”10 While the FAA can

waive enforcement of this rule, Chorman stated that the Philadelphia office of the




7
    Pls.’ Opening Br. Ex. D, at 17:16–90:5.
8
 See id. at 193:6–94:9, 309:7–20; Defs.’ Answering Br. Ex. C, at 292:10–96:10, 307:6–
10:17.
9
    Defs.’ Answering Br. Ex. F.
10
  Id. See also Pls.’ Opening Br. Ex. E (relevant FAA regulations). When an area is deemed
“congested” by the FAA, crop-dusting is not permitted over that “congested” area unless
“operated at altitudes required for proper[] accomplishment of the agricultural operation
and approval from the governing body, notice to the public and an operation plan submitted
and approved by the FAA Flight Standards District Office.” Pls.’ Opening Br. Ex. F.

                                              5
FAA will not grant waivers to fly over “congested” areas unless there is a public

health emergency.11

         In response to prompting by Council for more information on the impact of

the Rezoning Application on crop-dusting, Jannelle Cornwell, the Planning &

Zoning Manager for the Sussex County Planning Department, wrote a memorandum

to Council, dated August 11, 2015, in which she explained her understanding of the

FAA restrictions:

         The FAA allows aircraft to go below 500' above the surface and closer
         than 500' to people and structures when spraying for agricultural
         purposes if the spraying and aircraft does not create a hazard. The FAA
         rules state that no person may conduct an agricultural aircraft operation
         over a congested area unless operated at altitudes required for proper[]
         accomplishment of the agricultural operation and approval from the
         governing body, notice to the public and an operation plan submitted
         and approved by the FAA Flight Standards District Office. The FAA
         rules do not define congested area and do not indicate what the safe
         distance is for operation within a congested area.

         James A. Fuqua, Jr., Esquire, an attorney who represented the Owners

throughout the rezoning process, submitted a letter to Council, dated September 1,

2015, in which he also addressed the crop-dusting issue:

         Over ‘congested areas’ an aircraft may operate at altitudes required for
         the accomplishment of the Agricultural Aircraft Operation provided,
         1) written approval is obtained from the local governing body, 2) notice
         of the operation is given to the public and 3) a plan of the operation is
         submitted to and approved by the FAA local office.


11
     Defs.’ Answering Br. Ex. F.

                                            6
           As noted in [Cornwell’s] memorandum, the FAA Regulations do not
           define ‘congested areas’ and such a determination must be made by the
           FAA inspectors on a case by case basis. . . . Under FAA Regulations
           even only two or three homes in an area with thirty homes in the general
           vicinity is a ‘congested’ area. . . . While it is true that the development
           of a shopping center on the site would most likely qualify as a
           ‘congested’ area for FAA purposes, it must be more importantly noted
           that any commercial or residential improvement to the site, including a
           currently permitted AR-1 subdivision would also result in a ‘congested’
           designation.

           In summary, any commercial or residential development of the
           applicant’s site would result in it being considered a ‘congested’ area.
           However, aerial spraying can still occur either as authorized by
           Section 137.51, by the use of helicopter spraying or by avoiding
           directly flying over the area.12

      C. Council’s Decision

           The vote on the Rezoning Application was delayed until April 12, 2016.13 All

five members of Council were present and voted at the meeting.14 As required, each

Council member stated his or her position on the record before casting a vote.

           Councilwoman Deaver spoke first and voted “no” on the Rezoning

Application.15 She cited numerous reasons in support of her vote against the change

in zoning, including that: commercial zoning of the Property would be inconsistent



12
     Pls.’ Opening Br. Ex. G.
13
     Pls.’ Opening Br. Ex. H (“Council Tr.”).
14
     Id.
15
     Id. at 10:15–16.

                                                7
with the character of the surrounding area; the Property is located in an

environmentally sensitive area; the size of the parcel to be rezoned would pose

infrastructure challenges; the public had expressed valid concerns about increased

traffic in the area; the CR-1 zoning would potentially allow for other (and even more

inappropriate) uses of the Property; and, ultimately, “[the rezoning] doesn’t really

promote the health, safety, morale, convenience, order, prosperity or welfare of the

present or future residents of Sussex County as we have in Section 6904, Title 9 of

the Delaware Code.”16

         Councilman Cole followed. He began his remarks by stating that he would

also be voting no. As grounds for his vote, he expressly adopted the fourteen reasons

that one of the members of the Commission had previously laid out in his public

remarks before voting to reject the Rezoning.17 He noted, in addition, that he did

not believe there was a large enough population base to support the proposed

commercial use, that there were traffic concerns and that it is “not good zoning to

place your highest and most commercial, your intense commercial districts, next to

your lowest density ag[ricultural] districts. They’re not compatible uses.”18




16
     Id. at 5:10–10:16.
17
     Id. at 10:18–11:1.
18
     Id. at 11:2–21.

                                          8
       Councilman Arlett spoke next and voted in favor of the Rezoning Application.

That vote, and the bases for it, have not been addressed by the parties.

       Councilman Wilson spoke next. He began his remarks by stating that he

would lay out “both sides on this thing.”19 He then proceeded to provide several

reasons why one might vote in favor of the Rezoning Application, noting that

Councilwoman Deaver had already provided reasons to vote against it.20 What

follows, at least as appears in the cold record, are Councilman Wilson’s internal

deliberations spoken aloud for all to hear. Unfortunately, his deliberations wandered

at times into memories of his family and of Sussex County in days gone by. As all

parties agreed at the oral argument on the motion, the remarks are difficult to follow.

At the conclusion of his prolix remarks, in the midst of his apparent attempt to state

“both sides” of the issue, Councilman Wilson abruptly concluded by stating “Right

now, I’m in favor of denial.”21 He offered no bases for his vote.



 Id. at 28:14–17. See also id. at 29:18–21 (“I got a list here from all the way one to twenty
19

why not vote for it, why vote for it.”)
20
   Id. at 29:9–13 (stating that “I could give you a lot of favor of why we should vote or not
vote for it. As [Councilwoman Deaver has] read half of why we should not vote for it, so
I can tell you why we should vote for it. So, you know, you’ve heard it all.”).
21
  Id. at 34:13–14. To illustrate the difficulty the Court has confronted in understanding
these remarks after reading them in the transcript of the hearing, it is necessary to quote
the remarks in full. In doing so, I intend no disrespect. To the contrary, as a judge, I too
have encountered the uncomfortable reality that, as much as I thought I was being clear
while I wrestled with my thoughts aloud, the cold pages of a transcript have, at times,
revealed that I was being anything but clear. Such is the challenge of articulating
spontaneous thoughts for public consumption. Not meeting that challenge typically carries
                                             9
little consequence. The lack of clarity, however, is consequential when others are obliged
to try to make some sense of our thinking in order to determine whether we have followed
an orderly deductive process. Unfortunately, that is where we are in this case.

Councilman Wilson’s statement, in full, reads:

“Well, folks, when I think about it, I’ve lived here many, many years, all my life. My dad
and mom lived here for many years before that, so I can tell you how bad the highway is.
I can tell you when you’re trying to get to Nassau, you have to stop on Saturday afternoon
four miles out before you ever get to the bridge. I can remember when you used to go
down to the beach and you’d buy a lot down there for $50 an acre right on the ocean. It’s
nothing but a sand trap, they called it. So, I made a poor investment; I should have bought
more land. So, I can say some of you guys moved here, came here after I did, I could say
the same thing, most of you should leave because what you’ve done is brought too much
traffic down this way. So, I have no problem, you know that.

My problem is, this piece of land is, I can tell you both sides on this thing. So, I think I’m
going to give you, think about both sides on this. The State Highway has also said they’d
give us 8 million dollars next to Cave Neck Road if we put an overpass there. So, 8 million
dollars. Think about this. We haven’t got a penny from no private individual all the way
from Frederica down, from Thompsonville, you name it, Milford, all of them, nobody’s
give us any money. So, I think, in a lot of ways, there could be a lot of good come from
this.

Of course, my son is the first one tries to get his tractor down the road. Says, look at all
the traffic, you can’t get up and down this highway. And, as a farmer—I’m really the only
farmer on this Board—so, I tell you, I really believe that we should do what’s right here,
and as far as I’m concerned, I could give you a lot of favor of why we should vote or not
vote for it. As Joan’s read half of why we should not vote for it, so I can tell you why we
should vote for it. So, you know, you’ve heard it all. I’m pretty sure you all got to go to
dinner sometime, so I better take my time and tell you why we should vote for it.

I got a few notes wrote down here. Let me see, where are they? Voting for it, in favor.
Believe it not, I got a list on both of these. I got a list here from all the way one to twenty
why not vote for it, why vote for it. And I’ve rattled it in my head for a long time here, in
fact, most of you know by now from reading the paper, I’ve had a stroke and I had a stroke.
I’m very fortunate. Thank God that I’m here this far. Most people, when I look back at
strokes, I don’t know many of them would have made this far really. I go to visit a lot of
people in homes that’s had strokes and they can’t even speak. So, God’s really blessed me
more than I can ever, more than I deserve.

So, God’s give us a lot of free land here, so a lot of farmland’s been gone as I look back
over a period of time. And I can see what’s happened. I got a kid, I got a child, I got
                                              10
children—kids are goats, I hear a lot of people say I got kids and I say no, I have children.
My children like to go on farming, I’m pretty sure. I got two sons that wants to go on
farming. One very interested. But, what are we doing? We’re losing our farmland because
of people are bidding up our land up so high, they’re coming in here and crowded up our
highways, crowding up and running up the price of land so high that we can’t afford to
have this. So, you can’t even afford to go in that direction.

So, I can tell you the reason why I should—well, I can easily tell you why I’d not vote for
it. But you know the law does say this—it says property rights tells you one thing, doesn’t
it? Suppose the law had been passed before you moved here and we said, we can’t sell you
no land. This is a joke where I hear some friends say, well, the land’s too big, it’s just too
big, you can’t do that much at one time. That’s an unfair statement, I think. Do you guys
realize that this piece of land has already been zoned and you can put homes in here? Do
you also realize that when you put homes there, you have more traffic than ever? Because
there’s going to be people every day coming out of those homes. That’s the way I think. I
don’t see how we’re going to have any less. I’ve thought a lot about that.

So, anyway, the Applicant prepares a Traffic impact Study. Del-DOT’s Corridor Capacity
Preservation Program manager has no objection to the agreements of the Del-DOT prior to
the entrance plan approval of the construction of intersection and roadway improvements
as set forth in Del-DOT. A letter dated September 9, 2014 to the Traffic Group, Inc. This
will occur prior to the development of the property. The Sussex County Conservation
District commented that the Applicant will be required to follow recommended erosion
and sediments control practices and during any construction to maintain vegetation after
completion of any construction. That no storm flood hazard area is affected. That is, it
would be highly likely that the project will necessitate off-site drainage improvements and
on-site drainage improvements and that no tax ditch is affected. The Applicant’s proposal
is in conformity with the Comprehensive Plan that the purpose of the CR-1 zone district
zoning ordinance Section 115-83-.183 plus 1. This improves sufficient space and
appropriate location for a wide variety of commercial and miscellaneous service.

You know, talk about traffic—I was down here to the nursing home to see where
Mr. Millman was pretty bad off, and I’ll tell you, I never saw so much traffic in my life.
They didn’t want no shopping center down there on Townsend land. There’s more traffic
than a little bit; or across from that high school there in Lewes. Believe it or not, people
are just going to move in here. I’ll guarantee you, they’re going to move here, so you can
all fuss about it. It won’t matter. It won’t matter because they’re going to come here. You
came here this time. You’re going to tell your friends to come back and say, this is the
world’s best place you ever lived. You all ought to come to Delaware. So, there’s going
to be part of the problem, I think. The word’s been passed. You’re not going to get around
it. I’ve lived here so long, I know what’s happened. When you leave here, you’re going
to say, no, that’s not a good place, this is a good place to come. Low taxes; taxes, do you
                                             11
         Councilman Vincent was the last member of Council to speak. He cast his

vote as “no” on the Rezoning Application.22 While Councilman Vincent made a

faint reference at the outset of his remarks to the comments made by

Councilmembers Cole and Deaver when they voted against the Rezoning

Application, the majority of his statement was directed towards the potential impact

the Rezoning Application could have on the surrounding farmers and their ability to

crop-dust.23 Specifically, he stated:

         one of the things that I guess struck me a lot was, I am certainly a person
         that believes in property rights. I think we all have property rights. But
         I will also tell you that I don’t think my property rights should affect
         yours and that what I do on my land should not negatively affect what


realize taxes here are, in one month, New Jersey pays as much in one month as you pay
here in a year? I had a friend of mine the other day moved here from New Jersey, he said,
I can’t believe the taxes I pay here, I thought I was going to pay them monthly, come to
find, they’re for a year. So, that’s really cheap when you think about it. That’s why you’re
going to come here.

The reason you’re coming here—let me tell you why, how I'm going to vote on this thing
because that’s what you’re all waiting for anyway. Okay. So, I can actually tell you, I got
two sheets here that says the same, how you going to vote? I’ve asked myself that many
times. My wife has asked me that many times. I said, honey, I can’t honestly tell you. I
said, I’m trying to let the Lord lead in this direction, and he hasn’t told me who should
come here and who should not come here. So, you kinda got to look at it that way.

Now, Mr. George over here, he wants more tourists in here and he wants lesser traffic. Tell
me how he’s going to get them here. I don’t know. Maybe a helicopter; I haven’t figured
that out yet. Okay. Thank you. Right now, I’m in favor of denial.”

Id. at 27:21–34:14.
22
     Id. at 36:20–21.
23
     Id. at 34:19–36:21.

                                             12
         you do on your land. So, what struck me, I guess, out of all this maybe
         the most, maybe not quite the most, but if you were here at the public
         hearing and you heard a record read into from a cropduster [sic] in the
         area and it says that this property could be deemed a congested area by
         FAA Regulations. And I will tell you, if you go and read, there are no
         drop down boxes FAA Regulations as to what’s going to be congested,
         what’s not going to be congested. The person comes down, they look
         at it, and they make a decision. You might like it, you might not like
         it. Federal regulations limit the method and general use of aerial
         spraying over congested areas which will have an adverse impact on
         neighboring farms’ ability to effectively farm their land in a manner
         consistent with current practices. The definition of congested area is
         not clearly defined. There is no set numbers of houses or stores or
         specific activity that triggers the determination. However, in
         Mr. Fuqua’s memo who answered back the FAA regulations it says: It
         is true that the development of a shopping center on a site would most
         likely qualify as a congested area.

         I don’t think it’s fair for me to vote to approve something that could
         have an effect on the farmers around there and what they could do with
         their property; and that would say that they maybe couldn’t grow
         certain crops or those kind of things, and I think that’s wrong. So, for
         those reasons, I’d say that I would be a no vote.24

With the final vote cast, the Rezoning Application was denied 4-1.25

      D. Procedural Posture

         TD Rehoboth and Overbrook filed their Verified Complaint for Permanent

Injunction and Declaratory Judgment against Council on June 8, 2016. The motion




24
     Id. at 35:9–36:21.
25
     Id. at 36:23.

                                           13
to intervene filed by Intervenors was granted on August 29, 2016. The parties filed

their cross-motions for summary judgment soon after.

                                 II. ANALYSIS

       The cross-motions for summary judgment require the Court to determine

whether the statement provided by Councilman Wilson setting forth the bases for

his vote is adequate to allow for judicial review and whether Councilman Vincent’s

“no” vote was arbitrary and capricious. The standards governing the cross-motions

and the review of Council decisions on zoning applications are well-settled.

     A. Standard of Review on Cross-Motions for Summary Judgment

       Under Court of Chancery Rule 56(h),

       when the parties have filed cross-motions for summary judgment and,
       as here, have not argued that there is an issue of fact material to the
       disposition of either motion, ‘the Court shall deem the motions to be
       the equivalent of a stipulation for decision on the merits based on the
       record submitted with the motions.’ Thus, the usual standard of
       drawing inferences in favor of the nonmoving party does not apply. 26

The parties agree that the record on the cross-motions is fixed. There is no room or

need for further discovery.




26
  Farmers for Fairness v. Kent Cty., 940 A.2d 947, 954–55 (Del. Ch. 2008) (quoting Ct.
Ch. Rule 56(h)).

                                         14
      B. Standard of Review of County Council Rezoning Decisions

           When a final zoning authority considers a rezoning application, the court will

“usually presume” that the decision is valid “unless clearly shown to be arbitrary and

capricious because it is not reasonably related to the public health, safety, or

welfare.”27 The burden of rebutting the presumption of validity and of showing that

a rezoning decision is arbitrary and capricious is on those challenging the decision.28

The role of the court in reviewing a zoning decision is narrow and focused, with the

purpose being “to determine whether [Council’s] acts are supported by a ‘record of

substantial evidence’” and whether its ultimate determination is arbitrary and

capricious.29

           The court will deem a zoning decision “arbitrary and capricious” where it is

the product of “an unreasoned, irrational or unfair process.”30 Legislative acts

undertaken by Council have been found to be arbitrary or capricious where “the

action [is] ‘whimsical or fickle’ or ‘not done according to reason,’” or where the



27
     Tate v. Miles, 503 A.2d 187, 191 (Del. 1986).
28
     Id.
29
  Save Our Cty., Inc. v. New Castle Cty., 2013 WL 2664187, at *9 (Del. Ch. June 11,
2013), aff’d sub nom., Barley Mill, LLC v. Save Our Cty., 89 A.3d 51 (Del. 2014).
“Substantial evidence is such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Falconi v. Coombs & Coombs, Inc., 902 A.2d 1094,
1098 (Del. 2006).
30
     Id.

                                             15
action was “‘unconsidered’ or ‘taken without consideration of and in disregard of

the facts and circumstances of the case.’”31 Additionally, Council cannot act “in an

arbitrary fashion that subjects some property owners . . . to unwritten, subjective

restrictions that the Council is not willing to impose on similarly situated property

owners.”32

           At oral argument, Council and Intervenors asserted that the Court may engage

in a plenary review of the record developed by Council in search of any “substantial

evidence” that might support Council’s decision, even if not the evidence expressly

relied upon by the Council members. I disagree. As our Supreme Court recently

reiterated, “the role of a court in reviewing a zoning decision is limited and a court

will not second-guess the Council’s decision or substitute its own judgment for that

of the Council.”33 In keeping with this deference, the Court must focus on the

decision made by Council, as expressed by its members, when determining whether




31
     Id.
32
     Gibson v. Sussex Cty. Council, 877 A.2d 54, 47 (Del. Ch. 2005).
33
  Barley Mill, 89 A.3d at 60. See also id. at 62–63 (“Tate did, however, make an important
point about the role of a reviewing court when it recognized the need for the judiciary to
respect the legislative process by being appropriately deferential in its review of elected
officials when they make the difficult judgments entrusted to them. Thus, when the
Council provides reasons for its decision that are supported by the record and not the
product of a legal error, reviewing courts should not substitute their own judgment for that
of the Council.”) (internal citations omitted).

                                             16
the bases for that decision can be discerned from the record and whether it was

“arbitrary and capricious.”34

          Finally, the Court must remain mindful that the rezoning function “resembles

a judicial action,” making it subject to judicial review.35 Therefore, just as trial

courts are obliged to do, Council must create a “‘record sufficient to withstand

judicial challenge’ because ‘[u]nless [the] Council creates a record or states on the

record its reasons for a zoning change, a court is given no means by which it may

review the Council’s decision.’”36 Council need not follow a particular roadmap

when reciting the grounds for its decision and perfection is neither expected nor

required.37 Instead, it is enough that Council states its reasons with sufficient clarity

that the court is not left to guess why the decision was made and is able to make the

requisite determination that the decision was not the product of arbitrary or

capricious reasoning.




34
     Id. at 63.
35
     Tate, 503 A.2d at 191.
36
     Barley Mill, 89 A.3d at 61 (quoting Tate, 503 A.2d at 191).
37
   New Castle Cty. Council v. BC Dev. Assocs., 567 A.2d 1271, 1276–77 (Del. 1989) (“It
is true that Tate allows Council a measure of flexibility. Council need not draft a detailed
statement of findings of fact and conclusions of law in order to explain a given zoning
regulation. . . . We lay down no precise formula that Council must follow in order to satisfy
the Tate requirements.”).

                                              17
     C. The Votes

       The Owners primarily take issue with the votes cast (and decisions made) by

Councilmen Wilson and Vincent. I address these votes, and the stated bases for

them, in turn.38

          1. Councilman Wilson’s Vote

       Characterizing Councilman Wilson’s vote, the Owners observe, “he spoke the

longest of all the Council members, yet his comments provide no basis to understand

why he voted against the rezoning—indeed his remarks are full of reasons that

support a rezoning, and, in several instances he pushes back against reasons given



38
   The Owners have far less to say about the votes cast by Councilwoman Deaver and
Councilman Cole, but they do challenge them. With respect to Councilwoman Deaver, the
Owners take issue with her statements that: (1) the Property is not part of an existing
commercial corridor, (2) the Property’s size will pose infrastructure challenges, (3) there
are many approved uses under a CR-1 zoning designation in addition to the proposed
shopping center, and (4) the testimony at the hearing provided many other reasons to
oppose the Rezoning Application. Pls.’ Opening Br. 26–28. After carefully reviewing the
Owners’ expressed concerns with respect to the bases for Councilwomen Deaver’s decision
to vote against the Rezoning Application, I am satisfied that her reasoning was clearly and
thoroughly stated and that, at best for the Owners, the rationale for her decision might be
“fairly debatable.” Tate, 503 A.2d at 191. It cannot be said, therefore, that her decision
was arbitrary or capricious. Id. As for Councilman Cole, he began his statement by
adopting the thorough and comprehensive reasoning of a member of the Commission as
stated in support of the commissioner’s vote against the Rezoning Application at the
Commission’s hearing. Council Tr. 10:18–21. While Councilman Cole then went on to
add a few additional bases of his own, which the Owners contend are not supported by the
evidence, it is clear that the councilman was relying principally upon the commissioner’s
rationale to support his own “no” vote. The Owners have not attempted to expose error in
that aspect of Councilman Cole’s reasoning. Accordingly, they have failed to meet their
burden of rebutting the validity of his vote and, therefore, the vote “must prevail.” Tate,
503 A.2d at 191.

                                            18
for opposing the rezoning.”39 Council and Intervenors see Councilman Wilson’s

remarks differently. In their view, the councilman demonstrated a “very clear intent

to give a sense of both sides of the issues before Council. . . . What is clearly evident

from his statements is that he thoroughly reviewed the record and the evidence

presented by both the [Owners] and the opponents.”40

         I agree with Council and Intervenors that Councilman Wilson’s remarks

reflect a laudable attempt to explain and balance both sides of the Rezoning

Application.41 A fair reading of these remarks, however, is that Councilman Wilson

actually found the arguments in favor of the Rezoning Application more persuasive.

With that said, it may be that Councilman Wilson’s apparent slant in favor of the

Rezoning Application was a product of the fact that, as he acknowledged,

Councilwoman Deaver had already stated many reasons to oppose the application.

The problem, of course, is that the record does not answer why Councilman Wilson

abruptly ended his recitation of reasons to support the Rezoning Application by

summarily voting to reject it. This vacuum leaves the Court to speculate—to

speculate whether he found Councilwoman Deaver’s rationale to be persuasive and



39
     Pls.’ Opening Br. 20.
40
     Defs.’ Answering Br. 20–21.
41
  See Council Tr. 29:10–12 (“As [Councilwoman Deaver has] read half of why we should
not vote for it, so I can tell you why we should vote for it.”).

                                           19
dispositive; to speculate whether he had his own reasons to reject the Rezoning

Application; and, most fundamentally, to speculate whether he, in fact, intended that

his final vote be cast as a “no” vote.42 Because Councilman Wilson did not “state

the reasons for [his] decision on the record,”43 his vote on the Rezoning Application

is invalid. This is so for the simple reason that he did not create an adequate record

to enable the Court to engage in meaningful judicial review of his decision.44

             2. Councilman Vincent’s Vote

         While it is true, as Council and Intervenors point out, that Councilman Vincent

began his remarks by briefly acknowledging the concerns with the Rezoning

Application elucidated by Councilmembers Deaver and Cole, he focused nearly all

of his remarks on the potential impact that rezoning to CR-1 would have on the

ability of nearby farmers to crop-dust their fields. The Owners take issue with this

reasoning on two grounds. First, they contend, “Mr. Vincent is simply wrong in his




42
  See BC Dev., 567 A.2d at 1276 (“Council’s reasons must be clear from the record. If
several possible explanations for a given decision appear on the record, the reviewing court
must not be left to speculate as to which evidential basis Council favored.”).
43
     Barley Mill, 89 A.3d at 62.
44
   See BC Dev., 567 A.2d at 1276 (“[W]hen a court overturns an action taken by Council
because of a failure to articulate reasons, it is not necessarily holding that the action was
not in accordance with the law and therefore was arbitrary and capricious. Rather, it is
holding that Council has not permitted the Court to perform its role in the review process,
i.e., to form an opinion of the propriety of Council’s action.”).

                                             20
conclusion that development of the Property will foreclose cropdusting [sic].”45

According to the Owners, a “congested” designation by the FAA would merely place

additional conditions on crop-dusting; it would not foreclose the practice

altogether.46 But Councilman Vincent never stated that farmers near the subject

property would be forbidden to engage in crop-dusting. Rather, he merely observed,

“Federal regulations limit the method and general use of aerial spraying over

congested areas which will have an adverse impact on neighboring farms’ ability to

effectively farm their land in a manner consistent with current practices.”47 He went

on to explain, “I don’t think it’s fair for me to vote to approve something that could

have an [e]ffect on the farmers around there and what they could do with their

property . . . .”48 The fact that the “congested” designation “could have an effect”

on the nearby farmers’ ability to crop-dust on their properties, as recognized by

Councilman Vincent, is supported by substantial evidence.49




45
     Pls.’ Opening Br. 24.
46
  See id. (“Even if the Property is deemed “congested,” adjoining areas can still be crop-
dusted, provided (i) they comply with an approved plan or (ii) the crop-duster never flies
over the congested property or (iii) the crop-duster uses a helicopter.”).
47
     Council Tr. 36:3–7.
48
     Id. at 36:15–18.
49
     See Pls.’ Opening Br. Ex F, Ex G; Defs.’ Answering Br. Ex F.

                                             21
         The problem with Councilman Vincent’s focus on the issue of crop-dusting is

not that he misunderstood the consequences of the “congested” designation; the

problem is that the evidence of record reveals that the restrictions on crop-dusting

will occur regardless of whether the Property is developed under the requested CR-

1 rezoning or the current AR-1 zoning. Councilman Vincent made a point of citing

to the letter submitted by Mr. Fuqua in support of his view that “the development of

a shopping center on [the] site would most likely qualify as a congested area.”50 But

there is more to Mr. Fuqua’s letter that bears directly on the “congested designation”

issue that Councilman Vincent did not recite. Of particular relevance here, the letter

confirms: “While it is true that the development of a shopping center on the site

would most likely qualify as a ‘congested’ area for FAA purposes, it must be more

importantly noted that any commercial or residential improvement to the site,

including a currently permitted AR-1 subdivision would also result in a ‘congested’

designation.”51

         The Owners contend that the arbitrary and capricious character of Councilman

Vincent’s vote is revealed in his failure to understand or acknowledge that the

primary basis for his decision to reject the Rezoning Application (the impact of


50
     Council Tr. 36:11–14.
51
  Pls.’ Opening Br. Ex. G, at 4 (emphasis added). See also id. at 5 (“In summary, any
commercial or residential development of the applicant’s site would result in it being
considered a ‘congested’ area.”).

                                          22
developing the property on crop-dusting) existed prior to the filing of the application,

and would remain with the Property notwithstanding Council’s decision to reject the

application. In support of this argument, the Owners cite to this court’s decision in

Gibson v. Sussex County Council,52 where the court held that “Council may not rely

upon a reason ‘that subjects some property owners . . . to unwritten, subjective

resisting that Council is not willing to impose on similarly situated property

owners.’”53

         Gibson involved Council’s denial of a conditional use application to allow the

construction of a three-unit townhouse.54 Council heard significant community

opposition to the application that was based upon alleged harms to surrounding

property that would be caused by the proposed residential development of the

property at issue. The evidence of record revealed, however, that existing residences

in that zone already posed the exact same harms to surrounding properties that were

the subject of the complaints expressed at the hearing.55 Given these facts, the court




52
     877 A.2d 54 (Del. Ch. 2005).
53
     Pls.’ Opening Br. 25 (quoting Gibson, 877 A.2d at 57).
54
  Gibson, 877 A.2d at 59. The arbitrary and capricious standards that apply in the context
of review of rezoning applications “apply with equal (or even greater) force to the granting
or denial of conditional use permits.” Id. at 66.
55
  Id. at 78–79 (noting that “the objectors did not substantiate their generalized concerns
with specific evidence about the threat posed by the Project and, as important, did not
                                             23
held that Council’s decision to deny the application based on the harms identified by

the opponents to the application was arbitrary and capricious because:

          [w]hen the basis for public opposition is not that the applicant is not
          following the legislatively applicable rules . . . but that the rules of
          general applicability––from which the opponents themselves have
          benefitted––have led to a situation that calls out for general policy
          reform, the Council may not simply bend to the wind in the room and
          single out that applicant for disparate treatment. Rather, the answer for
          the opponents and the Council is to address the underlying problems in
          the proper way, through the implementation of rules of general
          applicability that limit uses of property that pose a threat to legitimate
          concerns of public interest. What is not acceptable is for Council to
          retain general rules that permit some residents (like the existing
          residents of the area) to burden the environment, roads, and water
          quality while reserving to itself the right to pick out those to whom the
          same privilege should be denied.56

          While Gibson is not directly on point, it does provide useful guidance in

determining whether Councilman Vincent’s decision was arbitrary and capricious.

The evidence in the record relating to the Rezoning Application, including

Mr. Fuqua’s letter––the very evidence selectively relied upon by Councilman

Vincent—reflects that any development of the Property, under AR-1 (as currently

permitted) or CR-1 (as rezoned), would have the exact same impact on the ability of

surrounding famers to crop-dust on their properties. Yet Councilman Vincent did




differentiate between the harms created by the existing residences and roads to the values
they sought to advance and the marginal threat to those values posed by the Project”).
56
     Id. at 78.

                                             24
not “differentiate” between the harms potentially caused by permitted development

under the current zoning and the harms that he was concerned would flow from the

proposed rezoning.57 Indeed, the record reveals that Councilman Vincent based his

decision to deny the Rezoning Application on a potential for harm that was already

extant with the current zoning of the Property. Thus, his decision was made “without

consideration of and in disregard of the facts and circumstances of the case”58—

namely that the “congested” designation is likely to follow any development of the

Property regardless of the zoning designation. This is the very definition of an

arbitrary and capricious decision.59

           Council and Intervenors contend that even if Councilman Vincent’s

comments regarding crop-dusting might suggest that his rejection of the Rezoning

Application was arbitrary and capricious, any such suggestion is overcome by the

fact that he clearly adopted the reasoning of Councilmembers Deaver and Cole at

the outset of explaining the bases for his decision.           These efforts to airbrush

Councilman Vincent’s remarks amount to improper revisionism. While Councilman

Vincent did reference the comments made by Councilmembers Deaver and Cole, he



57
     Id.
58
     Willdel Realty v. New Castle Cty., 270 A.2d 174, 178 (Del. Ch. 1970).
59
   Save Our Cty., 2013 WL 2664187, at *9 (stating that the “arbitrary and capricious”
standard “is a unitary term implying an unreasoned, irrational or unfair process”).

                                             25
never stated or even intimated that he agreed with them and certainly never

suggested that they were grounds for his vote against the Rezoning Application.60

On the other hand, it is clear that he premised his decision at least largely (if not

entirely) on his view of how the Rezoning Application might affect nearby crop-

dusting.61 In other words, this was a “material” basis for his decision.62 Given that

I have determined that this basis was arbitrary and capricious, and that I am unable

to discern from the record whether his decision would been the same had he




60
   Compare Council Tr. 35:6–11 (Councilman Vincent: “And, you heard the things that
were told by Mr. Cole and Mrs. Deaver and I would say in reviewing these things, I asked
this question after our first public hearing, and one of the things that I guess struck me a
lot was, I am certainly a person that believes in property rights.”) with id. at 10:18–21
(Councilman Cole: “I’ll vote no also. I’ll use the reasoning that Mr. Burton on the
Planning & Zoning Commission had used in his comments at the end of their public
hearing.”). If Councilman Vincent had followed Councilman Cole’s example and
expressly adopted the reasoning set forth by Councilmembers Deaver and Cole, there
would be no basis to challenge his vote. Unfortunately, the record he made of his decision
supports the Owners’ contention that his vote was driven by a concern that was not actually
implicated by the Rezoning Application.
61
  Id. at 35:15–21 (“So, what struck me, I guess, out of all this maybe the most, maybe not
quite the most, but if you were here at the public hearing and you heard a record read into
from a cropduster [sic] in the area and it says that this property could be deemed a
congested area by FAA regulations.”).
62
  See Save Our Cty., 2013 WL 2664187, at *12 (holding that where a councilmember did
not obtain information prior to a rezoning vote, that he had stated would have been material
to his vote, based on the legally erroneous belief that he had no legal way to obtain that
information, his vote was arbitrary and capricious).

                                            26
understood the crop-dusting issue had no causal relationship to the Rezoning

Application, I must conclude that his vote was not valid as a matter of law.63

                                III.   CONCLUSION

      The Court has determined that two of the five votes cast by members of

Council on the Rezoning Application cannot withstand judicial review. Since these

two votes affected the outcome of Council’s vote on the Rezoning Application, the

Owners’ motion for summary judgment must be GRANTED and Council and

Intervenors’ cross-motion for summary judgment must be DENIED. The Rezoning

Application must be re-submitted to Council for a new public hearing and a new

vote.64 The Owners shall submit an implementing order, on notice to Council and

Intervenors, within ten (10) days.




63
  Id. at *13 (holding that under Delaware law, where a councilmember’s vote was arbitrary
and capricious, it was invalid).
64
  See BC Dev., 567 A.2d at 1278 (“If a court can confidently conclude that the information
available to Council is not outdated, then a new public hearing followed by a new vote and
an adequate explanation of Council’s decision may provide a sufficient remedy.”). At oral
argument, Council and Intervenors argued that the Court could merely invalidate
Councilmen Wilson and Vincent’s votes and act as if they did not show up to the meeting,
leaving the vote at 2-1 against the rezoning application. They offered no authority that
would support this result and I am aware of none. The two votes, if cast in favor of the
Rezoning Application, would have resulted in approval. The fact that the votes were cast
but have now been deemed invalid cannot be ignored.

                                           27
