      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

                       IN AND FOR NEW CASTLE COUNTY

                                     )
GOLF COURSE ASSOC, LLC, a            )
Delaware limited liability company, )
and TOLL BROS., INC., a Delaware )
corporation,                         )
                                     )
  Petitioners,                       )
                                     )
          v.                         )                        C.A. No. 15A-02-007 JAP
                                     )
NEW CASTLE COUNTY, a political )
Subdivision of the State of Delaware,)
NEW CASTLE COUNTY                    )
DEPARTMENT OF LAND USE, and )
NEW CASTLE COUNTY BOARD OF )
ADJUSTMENT,                          )
                                     )
  Respondents.                       )
                                     )

                                            Opinion

       This dispute arises out of the proposed development of 263

single-family homes on the site of the former Delaware National golf

course. Petitioner Toll Brothers,1 the developer, has gone through

the lengthy permitting process set out in New Castle County’s

1
   Golf Course Associates holds legal title to the property and Toll Bros. has equitable title to it.
The court need not dissect the relationship between two because it plays no role in the
outcome of this dispute. For shorthand purposes the court will refer to the petitioners
collectively as “Toll Bros.” in this opinion. In order to avoid any confusion which might arise
from this shorthand, the court notes that the rulings in this opinion apply to both petitioners.
Unified Development Code (the “UDC”) only to learn near the end of

the process that it would not be allowed to develop the property

because of the county’s Department of Land Use’s concern about

traffic congestion near the proposed development.                               Toll Bros.

appealed the Department’s decision to the New Castle County

Board of Adjustment, which affirmed the Department in a 4 to 2

vote. It now brings this petition for a writ of certiorari challenging

the Board of Adjustment’s decision.2 For the reasons which follow,

that decision is affirmed.


                                    I. Background


       In the late 1930’s Hercules Powder Company constructed a

golf course for it employees on a site located near Route 48

(Lancaster Pike) outside of Wilmington.                           Corporate priorities

changed as the years passed, and Hercules eventually divested

itself of the golf course. It continued to be operated under the name

“Delaware National Country Club” by a private entity under a lease

with the new owners of the real estate upon which the course was

located. Rising land values, the potential for development and the

2  The court expresses its appreciation to counsel for both sides for the excellent briefs they
have submitted.

                                              2
post-millennium economics of golf course operation, however, led to

the closure of the course in 2010.                  Toll Bros. made plans to build

homes on the former golf course, calling the proposed development

“Delaware National.”3 It is this development which gives rise to the

instant case with the county over the Board of Adjustment’s

decision.


       A. The procedures for obtaining land use permits


       The land use permitting process in New Castle County is

governed by the county’s Unified Development Code.4 The process

is thorough and arduous, consisting of at least four major phases:

the first is the Pre-application Sketch Plan; second, the Exploratory

Plan; third, the Site Construction Plan; and fourth the Record Plan.5

Each phase is itself complex, requiring the submission of numerous

documents and studies.6 Like many municipal governments, New

3
  Toll Bros. has already developed a comparatively small portion of the former course now
known as “Greenville Overlook.” For shorthand purposes the court will refer to the
undeveloped portion of the golf course simply as the “golf course.”
4  UDC § 40.31.380 (“In rendering a decision, the . . ., Board of Adjustment. . . . or
administrative body shall be bound to follow the provisions of this Chapter. The following rules
shall govern decisions[:] All decisions shall be based solely upon the provisions of this
Chapter”).
5 In some instances the Record Plan must be submitted to County Council for final approval.
6 For example in the Site Construction Plan phase the developer is required to submit, among

other things:

              a. Record check prints, to include proposed topography, dwelling
              units and any other proposed improvements. (15 copies)

                                               3
Castle County uses a submit-and-review permitting process.7 This

method entails submission of required documents by the developer

followed by review by the appropriate county employees.                                 Upon

completion of that review, the county issues a review letter to the

developer either approving the submission, approving conditioned

upon specified changes or disapproving the submission.                             According

to Toll Bros. it received at least nine review letters in connection

with the instant development.


       The final phase is the submission and approval of the Record

Plan. State law requires that such plans must be approved both by



              b. Landscape/Open Space Management Plan. (4 copies)
              c.   One (1) copy of all special studies for which a decision or
              recommendation is required by the Board of Adjustment,
              Planning Board, Historic Review Board, or Resource Protection
              Advisory Committee; or which is subject to any other special
              studies.
              d.    For land development applications that contemplate
              connection to County sewer, a letter from the Department of
              Special Services indicating that sewer is or will be available for
              the proposed development.
              e. One (1) copy a complete site construction plan submission in
              accordance with the Engineering Submission Requirements of
              Chapter 12 of the County Code, including:
              1      Stormwater Management Plan
              2.     Erosion & Sediment Control Plan
              3.     General Grading Plan/Lines & Grades
              4.     Pre-Bulk Plan
              5.     Post Bulk Grading Plan
              6.     A Sequence of Construction

UDC Appendix 1.

7 Similarly, state law requires a meet and review process in connection with any pre-
application filing. 29 Del. C. § 9203

                                              4
the Department of Land Use and New Castle County Council.8 (In

this case the Record Plan was not approved by the Department of

Land Use and therefore it was never submitted to County Council

for its review.) After approval the Record Plan is recorded in the

Recorder of Deeds office.9 In the event a plan is recorded which has

not been approved by the Department and Council, state law also

provides that plan “shall be null and void and without legal effect

and shall upon application of the Commission or the County

Council, to the Superior Court, be expunged from the records of the

Recorder of Deeds.”10


        B. Concurrency and the Traffic Impact Study.
        New Castle County’s scheme for regulating development is

based       on     the      concept   of   concurrency.   In   general   terms

“concurrency” means that infrastructure necessary to support the

proposed development must already exist or will exist by the time

the development is completed. The idea is to prevent the need for

new infrastructure from outstripping the government’s ability to

provide it.          The first step in the application of concurrency


8    9 Del. C. § 3007(a).
9    9 Del. C. § 3009.
10   9 Del. C. § 3007(b).

                                            5
principles is an assessment of the “carrying capacity” of a proposed

development;          in    other      words,       a   determination           how      much

development will the existing surrounding infrastructure support.11

The UDC requires this analysis:

                    This Article requires an applicant for a . . .
              subdivision development plan or land development
              plan to conduct a carrying capacity analysis which
              regulates the maximum intensity of development
              based on actual infrastructure capacity. The carrying
              capacity analysis is designed to ensure that the public
              health, safety, welfare and quality of life of the citizens
              of this County are protected by preventing
              development from exceeding the existing carrying
              capacity of public facilities needed to sustain the
              proposed development
                    This Article establishes the actual development
              capacity of individual sites based on current adequacy
              ("concurrency") of roads, water, sewers, and schools.
              Concurrency for these facilities shall be obtained
              through compliance with this Article, Article 11, Article
              12, and Article 14.

The carrying capacity establishes a limit on the size and density of a

proposed development.

         Perhaps not surprisingly, traffic congestion is often a major

consideration in a carrying capacity analysis,12 and indeed the


11  UDC § 40.01.015 The UDC is intended to “[e]nsure the provision of adequate public facilities
including transportation, public utilities, and public services by providing that development
does not exceed the carrying capacity of these facilities or systems, or requiring impact fees to
offset the cost of the improvements.”
12 The carrying capacity is calculated for each of the limiting factors—roads, water, sewers and

schools—and the carrying capacity of a proposed development is the “site carrying capacity is
the lowest site yield as determined by [these separate calculations].” UDC § 40.05.500.In this
case traffic is the limiting factor.


                                                6
Delaware National development was limited by the site’s traffic

carrying capacity. The UDC expressly recognizes that the “County

has numerous areas of congestion that may limit the development

potential of a site;”13 traffic is first in the UDC’s list of criteria to

use in making a carrying capacity determination.14                          Concurrency

under the UDC is tied to existing infrastructure,15 and therefore the

traffic carrying capacity is “based on the current adequacy or

roads.”16        When measuring the Level of Service of affected

intersections planners may also take into account “projects

currently       under       construction          or   for    which       contracts       for

construction         have      been      awarded         by     DelDOT        to    ensure

completion.”17

       By definition, the traffic carrying capacity of a development

site is finite.     The UDC provides that “[e]ach proposed development


13  UDC § 40.05.000.
14  The UDC recites that
                 The County has numerous areas of congestion that may limit the
                development potential of a site. Each proposed development is
                allocated capacity based upon a traffic impact study for the
                proposed development. The allocation of this capacity sets a
                maximum development potential for each site.
    UDC § 40.05.000.
15 The UDC expressly “establishes the actual development capacity of individual sites based on

current adequacy (“concurrency”) of roads, water, sewer, schools. and thus, by statute, the
traffic carrying capacity of a development must “be based on current adequacy ("concurrency")
of roads.” UDC § 40.05.000.
16  Id.
17 UDC § 40.11.120.


                                              7
is allocated [any available] capacity based upon a traffic impact

study for the proposed development. The allocation of this capacity

sets a maximum development potential for each site.”18 If there is

available capacity to allocate to new development it “is allocated to

proposed land developments on a first come-first serve basis.”19

         The traffic capacity of a proposed development site is

determined by a Traffic Impact Study,20 a technical document

prepared by professional traffic engineers who are retained by the

developer. The TIS is complex and must, by statute, include:

              1. The anticipated trip generation of the land use.

              2. New traffic counts will be required for all
                 intersections in the area of influence of the
                 proposed development.

              3. Currently planned traffic mitigation programs and
                 transportation improvements, including, without
                 limitation, projects awarded or under construction,
                 projects in DelDOT's CIP and their completion
                 dates.

              4. The projected peak hour level of service after the
                 proposed development is completed, with and
                 without traffic mitigation measures.

                                         ***




18   UDC §40.05.000.A.
19   UDC §40.11.000.
20   UDC §40.11.110.

                                         8
               8. A statement indicating whether the peak hour level
               of calculated for each road segment and intersection
               will exceed the acceptable level of service for the type
               of service roadway segment and intersection pursuant
               to Section 40.11.210.21



        The UDC requires that the completed TIS be provided to the

Delaware Department of Transportation for its written review and

comment.22 The UDC specifies the contents of the review, which

must include a “statement addressing the ability of the existing and

planned transportation system to support the proposed . . . land

development.”23            DelDOT has sixty days (which may be extended)




21  UDC § 40.11.130.
22
   There is an agreement between the county and DelDOT whereby DelDOT will review TIS’s
submitted to it.
23 UDC § 40.11.140. It provides:


     A. The review of the traffic impact study shall include the following:
           1. A statement indicating whether a traffic impact study was previously submitted
               and evaluated for the same or a substantially similar rezoning, subdivision, or
               land development application, and if so, the results of that evaluation including
               any recommended mitigation measures. The statement may also contain an
               evaluation and findings of any other concurrent TIS for applications in the
               immediate area;
           2. A statement assessing the ability of the existing and planned transportation
               system to support the proposed rezoning, subdivision, or land development;
           3. A statement describing the extent to which the proposed rezoning, subdivision,
               or land development is consistent with the adopted WILMAPCO Metropolitan
               Transportation Plan;
           4. A statement describing the extent to which the proposed rezoning, subdivision,
               or land development complies with applicable DelDOT standards or regulations
               for access and subdivision design, and with the standards in Section 40.11.210;
           5. A statement certifying the adequacy of the recommended traffic mitigation
               measures to bring the network back to the desired level of service in Section
               40.11.210 .


                                                9
in which to provide its review and comments to the county.24 The

TIS and DelDOT’s comments are then reviewed by the county’s

Department of Land Use to determine if criteria set out in the UDC

have been satisfied.25 The UDC requires that after this review the

Department approve the TIS, approve it with conditions or

disapprove it.26

       The primary metric used to measure traffic congestion is the

Level of Service (LOS) of intersections within the area of influence of

the proposed development. (The “area of influence” is a term of art

and is determined by criteria contained in the UDC.)                                                It is


24
   UDC § 40.11.110. In the unlikely event DelDOT cannot timely submit its review and
comments to the county the UDC allows the developer, with the consent of the county, to hire a
traffic engineering firm to prepare comments on the TIS. Id.
25   UDC §40.11.150. The section requires that the
                 Department shall review the traffic impact study with regard to the following:
           1.   The accuracy, completeness, and thoroughness of the traffic impact study as well as
                whether the study was conducted in conformance to the study parameters set by the
                Department and DelDOT.
           2.   DelDOT's comments and recommendations when DelDOT reviewed the traffic impact
                study.
           3.   The level of service requirements of this Article.
           4.   Appropriateness and adequacy of any proposed mitigation measures.
           5.   Compatibility with regional and State transportation plans and nearby development
                proposals.
           6.   Design principles and standards as described in this Chapter (e.g., inter-connectivity,
                transit/pedestrian accessibility and street design).



26   UDC §40.11.150.B.

                                                     10
calculated by traffic engineers using standard formulas, which take

into account such things as the number of vehicles and the amount

of time spent waiting at the intersection at peak travel times of the

day. The result of these calculations is a letter grade, which spans

from “A” to “F,”           and the UDC provides that “[n]o major land

development . . . shall be permitted if the proposed development

exceeds the level of service standards set forth in this Article unless

the traffic mitigation or the waiver provisions of this Article can be

satisfied.”27       The minimum level of service standard for an

intersection such as the one at Lancaster Pike and Centerville Road

is a “D”.28


       C. The TIS in this case


       The TIS in this matter was prepared by Traffic Planning and

Design, Inc. (“TPD”). DelDOT often retains an engineering firm to

review TISs submitted to it, and in this matter it retained

McCormick Taylor to do so. TPD rated the 2010 level of service                             of

the Lancaster Pike/Centerville Road as an “F” and the anticipated


27  UDC § 40.11.000.
28 The UDC differentiates between intersections with sewer lines (such as Lancaster Pike and
Centerville Road) from those which do not have them. The statutory minimum acceptable
grade for the former is “D”; the minimum for the latter is “C”.

                                             11
2016 LOS as “F.” McCormick Taylor was a little more generous in

its assessment of the intersection of the 2010 LOS, rating it a “D”,

but it too generally projected an “F” rating for 2016.29                        The “F”

rating projected for 2016 meant that the anticipated congestion at

that intersection would exceed the standards allowed by the UDC.

According to McCormick Taylor:

             The proposed development will not meet the New
             Castle County Level of Service (LOS) Standards as
             stated in . . . the Unified Development Code unless
             physical roadway and/or traffic control improvements
             are implemented.

This in turn meant that the UDC would require the Department to

disapprove the TIS.


      D. Toll Bros. seeks to ameliorate the congestion


      Even before the issuance of the McCormick Taylor comments

Toll Bros. anticipated the intersection would be a stumbling block

to its plans, so it designed modifications to the intersection which it

believed would remedy the congestion.                    The anticipated cost of

those modifications was $1.1 million, which Toll Bros. offered to

contribute. DelDOT was not enamored with Toll Bros.’ proposed fix

29
  McCormick Taylor predicted a “D” LOS in 2016 if a third through lane were to be added to
westbound and eastbound approaches to the intersection on Lancaster Pike. DelDOT currently
has no plans to construct such a lane.

                                            12
which, according to McCormick Taylor, “must not only work from a

technical perspective regarding the placement of appropriately

designed infrastructure improvements, but also from a traffic

management and safety perspective.” It preferred instead a possible

solution costing $3.5 million, but was willing to accept Toll Bros.’

proffered $1.1 million contribution and apply it toward the cost of a

future construction of its preferred solution.          DelDOT, however,

made no commitment as to when, if ever, it would modify the

intersection. McCormick Taylor summarized the situation:

          DelDOT will accept and require the developer to
          contribute towards a future project of the type
          described in the Conceptual Plan, although the
          specifics of any future project for improvements at this
          intersection are still to be determined, and while
          reserving the right to apply such funds to a different
          solution at this intersection, at such time and under
          such conditions as the Department may determine.



     E. DelDOT’s Letter of No Objection


     The same day it received the McCormick Taylor report,

DelDOT wrote the county advising it had no objection to recording

of the site plan for the Delaware National development:


               This “No Objection to Recordation” letter
          is not a DelDOT endorsement of the project

                                     13
                 discussed above. Rather, it is a recitation of
                 the transportation improvements, which the
                 applicant may be required to make as a pre-
                 condition to recordation steps and deed
                 restrictions as required by the respective
                 county/municipality in which the project is
                 located. * * * Ultimate responsibility for the
                 approval of any project rests with the local
                 government in which the land use decisions
                 are authorized. There may be other reasons
                 (environmental,       historic,   neighborhood
                 composition,    etc.)    which   compel    that
                 jurisdiction to modify or reject this proposed
                 plan even though DelDOT has established that
                 these         enumerated         transportation
                 improvements are acceptable.30


         F. The Department of Land Use Disapproves the
         TIS and Toll Bros.’ Subdivision Plan Expires
         The Unified Development Code requires that a developer

submit a Record Plan within three years of receiving the county’s

response to the developer’s exploratory plan (which is the document

that sets the process in motion). The submission of the Record Plan

is dependent upon obtaining the county’s approval of the TIS

because, according to section 31.113.C.2 of the UDC, “[n]o Record

Plan submission shall occur until such time as the TIS is

approved.” Another section of the UDC also conditions the

submission of a Record Plan on the approval of the TIS; section
30
     Underscoring in original.

                                       14
40.11.150.C provides “[o]nce the traffic impact study is approved or

approved with conditions for a major plan, the applicant may

proceed with a record plan submission as provided in Article 31.”

       A month after receiving the DelDOT No Objection Letter, the

county Department of Land Use notified Toll Bros.’ engineer that

the Toll Bros.’ Record Plan could not be filed because the

Department of Land Use had disapproved the TIS. The notification

letter recited that the UDC barred any Record Plan Submission by

the developer until the Department of Land Use had approved (or

approved with conditions) the TIS. The letter also stated that the

Department was prohibited from approving any TIS when the LOS

of any intersection within the area of influence would be rated less

than    “D.”      Since   the   projected   LOS   for   the   Lancaster

Pike/Centerville Road intersection was an “F the Department was

required to disapprove the TIS.

       The disapproval of the TIS had significant repercussions for

Toll Bros.     By statute it precluded Toll Bros. from submitting its

Record Plan, and this in turn resulted in the expiration of the three

year window which Toll Bros. had under the UDC to obtain the

necessary approvals for Delaware National. The UDC requires the

                                   15
developer to submit this plan within three years of the date of the

county’s   review   of   the   developer’s   Exploratory   Plan.    (The

Department of Land Use is authorized to allow two 90 day

extensions of this deadline and did so here.)      If the developer fails

to submit a timely Record Plan (whether by neglect or because of its

failure to obtain the required approvals) any previous approvals

from the county in connection with that project are deemed to have

expired and the developer must start the process anew if it wishes

to pursue the project. By the time the McCormick Taylor comments

were sent to the Department of Land Use and the Department

disapproved the TIS Toll Bros. the three year period (plus its

extensions) had run. Thus the Department deemed that Toll Bros.’

plan to have expired.


     G. Toll Bros. Appeals to the Board of Adjustment


     Toll Bros., as was its right, appealed the disapproval of the

TIS, the rejection of the Record Plan and the resultant expiration of

its subdivision plan to the New Castle County Board of Adjustment.

The appeal consisted of submission of written arguments, oral




                                    16
argument and the opportunity for an evidentiary hearing (which Toll

Bros. did not request). According to the Board,

           This appeal turns on the question of whether the
           Department [of Land Use] properly interpreted and
           applied relevant provisions of [the UDC] to [Toll Bros.’]
           Plan submissions when it decided that the plan had
           expired without the submission of an acceptable TIS.
           Put another way, it is the contention of [Toll Bros.] that
           the Department improperly invoked the requirements
           of the Code in its determination that the submitted TIS
           was unacceptable and therefore, the Plan had expired.



Although not mentioned in the above summary by the Board, Toll

Bros. also presented an argument that the Department’s decision

was an unconstitutional exaction.             The Board addressed that

argument    in   its   opinion     and     the   court    finds    Toll   Bros.’

constitutional argument has been preserved.


     Following the hearing the Board issued a written opinion in

which it set forth its analysis in detail. The Board reasoned that

the substandard level of service at the Lancaster Pike/Centerville

Road intersection required disapproval of the TIS.                  Toll Bros.,

according to the Board, could not submit the Record Plan unless

the TIS was approved.        Because Toll Bros. submitted the Record

Plan within the required three years, the Board concluded its


                                      17
application had expired. It voted 4 to 2 to affirm the Department of

Land Use,31 and this writ of certiorari followed. This court will

affirm the Board for much of the same reasoning it used.


                          II. Toll Bros.’ Contentions


      The crux of this dispute is whether the Department of Land

Use acted unlawfully when it disapproved the TIS. According to Toll

Bros., if the Department had acted lawfully and approved the TIS,

its Record Plan submission would have been timely and it would

not be required to start over again. It raises both state law and

federal constitutional challenges to the Department’s and decision

and the board’s affirmance:

                 1. The Department of Land Use’s conclusion that the

                    Department lacked authority to disapprove the TIS

                    is contrary to the law.

                 2. The Department’s disapproval of the TIS is not

                    supported by substantial evidence.

                 3. The Department’s and Board’s decision amounted

                    to an unconstitutional exaction.

31 The Board consists of seven members. One was absent from the hearing and did not
participate in the vote.

                                           18
                          III. The standard of review

       This matter comes to this court by way of a writ of certiorari.

At common law, the court’s review in a writ of certiorari appeal was

limited to a determination whether the inferior tribunal “exceeded

its jurisdiction, committed errors of law, or proceeded irregularly.”32

Factual findings by the lower tribunal were not subject to review.33

For reasons which may now be lost to history, Delaware enacted a

certiorari statute peculiar to Board of Adjustment hearings which

vests this court with a broader scope of review in land use matters.

Section 1314 of title 9 provides in pertinent part:

              (a) Any person aggrieved by any decision of the Board
              of Adjustment, or any taxpayer or any officer,
              Department, board or bureau of the County, may
              present to the Superior Court a petition duly verified
              alleging that such decision is illegal in whole or in
              part, and specifying the grounds of illegality.


              (d) [T]he Board of Adjustment] shall concisely set forth
              such other facts as may be pertinent and material to
              show the grounds of the decision reviewed and shall be
              verified.

              (e) If, upon the hearing, it shall appear to the Court
              that testimony is necessary for the proper disposition
              of the matter, it may take evidence . . . which shall

32
  Christiana Town Center, LLC v. New Castle County, 865 A.2d 521 (Table), 2004 WL 2921830,
at *1 (Del.).
33 Id.


                                            19
               constitute a part of the proceedings upon which the
               determination of the Court shall be made.


       One notable feature of the statute relates to the scope of

evidentiary review. As noted, common law review on certiorari was

confined to a determination of the legality of the lower tribunal’s

ruling and did not permit the reviewing tribunal to review the

sufficiency of the evidence.                 This statute, however, contemplates

some sort of review of the evidence by this court; its provision that

the board “shall concisely set forth such other facts as may be

pertinent . . . to show the grounds of the decision reviewed” can

have no other meaning. Delaware courts applying this statute have

sanctioned judicial review of the evidence, at least to the extent that

the court must determine whether it is sufficient to support the

board’s findings.34 This review is not plenary, and this court is not

free to re-weigh the evidence before the Board of Adjustment.35 And,


34 See Mellow v. Board of Adjustment of New Castle County, 565 A.2d 947, 950 (Del Super.
1988); Janaman v. New Castle County Bd. of Adjustment, 364 A.2d 1241, 1242 (Del. Super.
1976); see also Cooch’s Bridge Civic Ass’n v. Pencader Corp., 254 A.2d 608, 609 (Del. 1969).
35
    The court notes in passing that it is difficult to reconcile the prohibition against weighing the
evidence on certiorari under section 1314 with the statute’s authorization for this court to
“take evidence . . . which shall constitute a part of the proceedings upon which the
determination of the Court shall be made.” The ability to take evidence seems pointless if the
court is not free to then weigh it against evidence already in the record. Fortunately it is not
necessary reach this issue here. As Toll Bros. correctly writes in its brief, “the factual record
[is] largely uncontroverted.”


                                                 20
because of the Board’s technical expertise, this court is not free to

alter the board’s decision simply because it might have reached a

different result if it were considering the matter de novo.36



                                    IV. Analysis

       As set forth at length below, Toll Bros. contends that

Department of Land Use was not free to disapprove the TIS, but the

court finds that the UDC expressly required the Department to

independently review the TIS.               The court further finds that the

Department was obligated to disapprove the TIS (as it did) because

the intersection at Lancaster Pike/Centerville Road did not meet the

minimum standards specified in the UDC. Toll Bros. also argues

that the county’s disapproval of the TIS and its rejection of the

Record Plan amounts to an unconstitutional exaction. The court

disagrees.      An essential element of the unconstitutional exaction

doctrine is a coercive demand by the government. Here the county

never made any demand, much less a coercive one.




36
  Holowka v. New Castle County Bd. of Adjustment, 2003 WL 21001026, at *3 (Del Super.);
Mellow, 565 A.2d at 954; see Cooch’s Bridge Civic Ass’n, 254 A.2d at 610 (Del. 1969).

                                            21
      A. The county’s application of the UDC is consistent with
      the law and is supported by substantial evidence.

      Toll Bros. argues that the Department’s disapproval of the TIS

is inconsistent with the UDC and is not supported by substantial

evidence. It theorizes that under the UDC DelDOT, not the county,

is the final arbiter on traffic issues. Toll Bros. also contends that

written communications from employees of the county’s land use

Department show that DelDOT is the final arbiter of traffic issues in

land development matters.     The court finds that state law, the

applicable provisions of the UDC as well as judicial precedent vest

the county with final authority to decide whether traffic issues

warrant denial of a land use permit. The court further finds that

the   county   employees    did   not—and    could   not—alter   the

unambiguous language of the relevant provision of the UDC.



           1. The county had the authority to review the TIS

      It is manifest that the General Assembly intended New Castle

County, not state government, to have the final say in land use

matters. The General Assembly granted authority to the county to

regulate land use matters within it, except for property located

                                  22
within the corporate limits of another political subdivision.    The

Delaware Code provides that “[i]n order to provide for the orderly

growth and development of the County, to promote the health,

safety, prosperity, and the general welfare of the present and future

inhabitants of the County . . . the Commission [defined to be the

Department of Land Use in 9 Del. C. section 3001(1)] may regulate

the subdivision of all land in the County not within the corporate

limits of any city or town.”   Although state government retains a

role in some aspects of land use planning, the General Assembly

has provided that “[n]othing in [the land use planning chapter of the

Delaware Code] shall be construed to deny local jurisdictions their

final decision-making authority over proposed land use planning

actions.”37

        New Castle County ordinances leave no doubt that the county

is the final decision maker in matters relating to land use.     For

example, in an ordinance entering into a co-operation agreement

with DelDOT on traffic matters the county made it clear it was not

relinquishing its final say.   According to 28.01.004 of the New

Castle County Code:

37   29 Del. C. § 9206(a).

                                  23
              The County Council does hereby adopt the following
              regarding the joint highway division/County policy on
              phasing land development with highway capacity:

                  County Council will continue to make the final
                  decisions on rezoning and record plans.

With respect to the specific issue of approval of the TIS, the UDC

unambiguously provides that it is the county, not DelDOT, which

has the final say whether to approve the TIS. Section 40.11.150

requires that the Department of Land Use itself review the TIS:

              Upon receipt of the traffic impact study and comments
              from DelDOT . . . the Department shall review the
              traffic impact study with regard to the following:

                     3.    The level of service requirements of this
              Article.

The same section requires that, after this review, “the Department

shall approve, approve with conditions or disapprove the traffic

impact study.”            Finally the section makes this approval a pre-

condition to the developer’s submission of the record plan.38 The

statute leaves no room for doubt, therefore, that the county’s

Department of Land Use has the final say whether to approve the

TIS and its approval is required before the developer may file the




38 Section 40.11.150 provides “[o]nce the traffic impact study is approved or approved with
conditions for a major plan, the applicant may proceed with a record plan submission.”


                                              24
Record Plan. In other words, DelDOT’s comments on the TIS and

its Letter of No Objection are advisory and do not bind the county.39

         Case law also supports the county’s ultimate decision-making

authority.        In a case involving both Toll Bros. and DelDOT—Toll

Bros.      v.   Wicks40—former            Chancellor        Chandler        reviewed        the

statutory       framework         discussed         above     and,     like     this    court,

concluded that DelDOT’s role was merely advisory:

                [I]t is clear as matter of law that, under the UDC,
                DelDOT's role in the TIS approval process is advisory.
                Section 40.11.150 of the UDC makes clear that
                DelDOT merely offers recommendations and comments
                to the ultimate decision-maker, i.e., New Castle
                County. * * * Thus, the UDC provides that DelDOT's
                TIS recommendations are merely advisory. They are
                not binding and DelDOT's recommendations do not
                constitute a final decision. This is in accord with
                Delaware law, legal precedent of this Court and the
                New Castle County Municipal Code.




39  DelDOT seems to subscribe in this case to the theory that it, not the county, is the final
arbiter on traffic concerns spring from Delaware National. In its Letter of No Objection DelDOT
wrote:
                Ultimate responsibility for the approval of any project rests with
                local government in which the land use decisions are authorized.
                There may be other reasons (environmental, historic,
                neighborhood composition, etc.) which compel that jurisdiction to
                modify or reject this proposed plan even though DelDOT has
                established that these enumerated transportation improvements
                are acceptable. [emphasis added]

This view, if it is indeed DelDOT’s view, cannot be reconciled with the plain language of section
40.11.150 of the UDC. Nor can it be reconciled with the Court of Chancery’s opinion in Toll
Bros. v. Wicks which is discussed in the text.
40
     2006 WL 1829875 (Del. Ch.)

                                               25
              Toll Bros. relies upon section 40.31.113 of the UDC

which provides:

              For all major plans and plans with rezonings where
              the Department has not waived traffic analysis
              requirements, the applicant shall submit traffic
              information pursuant to Article 11. * * * No record
              plan submission shall occur until such time that the
              TIS is approved and the plan meets the concurrency
              requirements of Article 11.



According to Toll Bros. the language “[n]o record plan submission

shall occur until such time that the TIS is approved” is ambiguous

because it does not specify by whom the TIS must be “approved”.

This section must be read in the context of section 40.11.150’s

requirement that the Department of Land Use “approve, approve

with conditions or disapprove the traffic impact study.” It is a “well

settled rule of statutory construction” that “related statutes must be

read together rather than in isolation, particularly when [as in the

instant case] there is an express reference in one statute to another

statute.”41 When read in conjunction with section 40.11.150, there

is no room for doubt that the required approval referred to in

section 40.31.113 is that of the Department of Land Use.42


41 Richardson v. Board of Cosmetology, 69 A.3d 35, 357 (Del. 2013)
42
   The UDC requires the developer to submit the DelDOT Letter of No Objection as a
supporting document to the Record Plan submission. UDC §40.31.114 (“ Supporting

                                            26
       In sum, the court has no difficulty concluding that under both

state and county law, DelDOT’s Letter of No Objection was advisory

and that the county retained the authority to reject the TIS because

of its concerns about traffic congestion.



               2. Letters from county employees in review letters
               cannot deprive the county of its authority to approve
               the TIS


       Toll Bros. argues that statements by Department of Land Use

employees preclude the county from exercising its authority to

reject the plan on the basis of traffic concerns. According to Toll

Bros., those statements led it to believe that it was only necessary

for it to obtain a Letter of No Objection from DelDOT.43                                    The

argument fails because statements by public administrators cannot

change unambiguous provisions of a statute.

documents shall include, but are not limited to: Letter of approval from DelDOT regarding
transportation matters.”) This does not negate the Department’s statutory obligation to review
the TIS and either approve it, approve it with conditions or disapprove it. Nor does it negate
the statutory provision that the UDC’s requirement that the TIS be approved before the
developer submits the Record Plan.
43
   Nothing in the letters upon which Toll Bros. relies indicates that the county intended to
forego its statutory right to the final say on whether traffic conditions permitted development of
Delaware National. At most--as Toll Bros. seems to recognize in its brief--the letters state that
one of the requirements of the permitting process was obtaining DelDOT’s approval of the TIS.
Finally the court notes that although Toll Bros. contends it was “misled” the record is devoid of
any evidence as to what Toll Bros. would have done differently if the letters had also reminded
Toll Bros. of the clear statutory requirement that it obtain the county’s approval of any traffic
issues.

                                               27
       The court pauses here to note this is not the first time Toll

Bros. has argued it was misled by administrative notices from New

Castle County in a land use matter. In Warren v. New Castle

County44 the United States District court rejected the contention

that Toll Bros., a sophisticated developer represented by counsel,

was somehow hoodwinked by an administrative notice:

              Toll further complains that the County's letters did not
              apprise Toll of its right to appeal to the Planning
              Board. But Toll cites no authority for a requirement of
              such notice. Moreover, there can be no doubt that
              Toll—a sophisticated developer that was represented
              throughout the land use process by counsel—is aware
              of the availability of intra-County appellate options.



This court finds the same is true here.

       Turning to the merits, the court holds that it cannot consider

the statements by county employees when interpreting the

unambiguous statute. Our Supreme Court has observed that “[i]t is

well settled that statutory language is to be given its plain meaning

and that when a statute is clear and unambiguous there is no need

for statutory interpretation.”45 The Department of Land Use’s

statutory obligation to “review the traffic impact study” and


44  2008 WL 2566947 (D. Del.).
45   State v. Skinner, 632 A.2d 82, 85 (Del. 1993); Board of Adjustment of Sussex County v.
Verleysen 36 A.3d 326 (Del. 2012)(same).

                                              28
“approve, approve with conditions or disapprove the traffic impact

study” is free of any ambiguity. Thus the court may not resort to

statements by county employees to interpret and apply the statute.

         The operation of this rule is illustrated in the Delaware

Supreme Court’s opinion in Trans-Americas Airlines, Inc. v. Kenton46

wherein the plaintiff corporation sought to bar the Secretary of

State       from     registering   a   corporation   with   a    similar,   but

distinguishable, name.             The Supreme Court found that the

controlling statute was unambiguous and permitted the registration

of a similar name so long as the name could be distinguished on the

books and records of the Secretary of State. Of importance here is

that the         Trans-Americas Airlines plaintiff      relied   in part on

statements from an employee of the Division of Corporations that

the new corporation’s name should not be permitted because of its

similarity to plaintiff’s name. The Supreme Court quickly dispensed

with this contention, writing “we find unpersuasive any view

expressed by the Administrator of the Division of Corporations

which may be in conflict with both the plain language of the Statute

and the action taken by the Secretary of State.” By the same token,

46
     491 A.2d 1139 (Del. 1985).

                                         29
the statements by employees of the Department of Land Use

cannot, as a matter of law, change the unambiguous terms of the

UDC.



        B.   There is substantial               evidence     supporting   the
        Department’s decision.

        Toll Bros. argues there was no substantial evidence to support

the Board’s decision.              The evidence before the Department,

however, not only supports the Department’s disapproval of the TIS,

it shows that the Department was required by law to disapprove it.

        The UDC prohibited the Department from approving the TIS in

this matter because of the Level of Service at the Lancaster

Pike/Centerville Road intersection. The Department is forbidden by

statute from approving a plan with a substandard intersection. The

UDC requires:

              The Department shall approve the project when the
              traffic impact study demonstrates that acceptable
              levels of service will be maintained for roadway
              segments and intersections within the area of
              influence of the project as defined by Section
              40.11.210 . The project shall not be approved if it will
              result in an unacceptable level of service for a roadway
              segments or intersection(s) within the area of influence
              of the project.47


47   UDC §40.11.150 (emphasis added)

                                         30
Elsewhere it provides that “[n]o major land development or any

rezoning shall be permitted if the proposed development exceeds the

level of service standards set forth in this Article.”48                           The UDC

further provides that the minimum Level of Service for intersections

such as that at Lancaster Pike and Centerville Road is a “D’.49

Under the TIS prepared by Traffic Planning and Design or the

McCormick Taylor review the intersection here would by 2016 be

rated “F”.50 McCormick Taylor opined that the

              proposed development will not meet the New Castle
              County Level of Service (LOS) Standards as stated in
              section 40.11.210 of the Unified Development Code
              (UDC) unless physical roadway and/or traffic control
              improvements are implemented at the following
              intersections: * * * Delaware Route 48 and Centerville
              Road.




48
   UDC 40.11 .000. The UDC provides an exception when the “traffic mitigation or the waiver
provisions of this Article can be satisfied.” Toll Bros. does not contend this exception applies.
49
    The Lancaster Pike/Centerville Road intersection is in a sewer service area. With respect to
intersections in such areas, the UDC requires:

              The minimum acceptable peak hour level of service to be achieved
              and maintained on all roadway segments and intersections within
              the area of influence of the proposal shall be as follows.
                     1. Sewer service areas. Level of service D within any
                  identified sewer service area or publicly sewered area, except
                  that for roadway segments and intersections located within a
                  sewered area or an existing developed area


50  The TIS, which was done in 2012, rated the intersection as of 2010 an “F” and projected an
“F” for 2016 under any of four scenarios. The McCormick Taylor review rated the intersection a
“D” as of 2010 and similar to the TIS projected an “F” (with the exception of weekday morning
traffic) under any of the future scenarios evaluated in the TIS. McCormick Taylor projected a
“D” under a scenario not evaluated in the TIS.

                                               31
The Department therefore had no choice but to disapprove the

proposed development of Delaware National.

              Toll Bros. relies upon section 40.11.150.B of the UDC

which provides in pertinent part:

              Based upon the above criteria, the Department shall
              approve, approve with conditions or disapprove the
              traffic impact study. The Department shall approve the
              project when the traffic impact study demonstrates
              that acceptable levels of service will be maintained for
              roadway segments and intersections within the area of
              influence of the project as defined by Section
              40.11.210 . The project shall not be approved if it will
              result in an unacceptable level of service for a roadway
              segments or intersection(s) within the area of influence
              of the project.51



Toll Bros. seizes on the language the “project shall not be approved

if it will result in an unacceptable level of service . . . .” Toll Bros.

argues that there is already an unacceptable Level of Service and

consequently the unacceptable level of service is not the result of

Delaware National. It reasons that the statute, therefore, does not

authorize the board to deny its application.

         If read narrowly and out of context, this passage might

provide some comfort to Toll Bros. But Toll Bros. loses any such

benefit when that sentence of the statute is placed in the context of


51   UDC §40.11.150 (Emphasis added).

                                         32
the     immediately           preceding          sentence,         which       provides         the

Department shall approve the project when the traffic impact study

demonstrates that “acceptable levels of service will be maintained.”

Under this portion Toll Bros is not entitled to approval because

acceptable levels of service already do not exist and therefore

intersection cannot possibly “be maintained” by adding more traffic

from its development.

       There is an interstitial gap in this portion Section 40.11.150.

It provides (1) what must occur if the proposed development does

not cause an unacceptable level of service and (2) what must occur

if it causes an unacceptable level of service, but it is silent as to

what must occur if the proposed development adds to existing

congestion. This ambiguity calls upon the court to search for the

intent of county council when it enacted the UDC.

       The hunt is an easy one because County Council has made its

intent abundantly clear because Council has expressly stated that

the intent of the UDC is the avoidance of traffic congestion:52

               This chapter is intended to:


52 There is no dispute that the “alleviation of intolerable local traffic conditions” is a proper
public purpose. Woodwerx, Inc. v. Delaware Dept. of Transp., 2007 WL 927943 (Del.).



                                                 33
             2. Ensure safe and convenient traffic control and
             movement including a reduction or prevention of
             congestion of public streets . . . ;

             3. Reduce the danger and congestion of traffic on
             roads and highways by limiting both the number of
             friction points, such as intersections and driveways,
             and minimizing other hazards;

And the introduction to the Article 11 of the UDC recites:

             The purpose of this Article is to ensure that
             development occurs only where there are adequate
             transportation facilities in place, or programmed for
             construction.

The notion that the county did not intend to prevent an increase in

existing congestion is wholly inimical to the purpose of “reduc[ing]

the danger and congestion of traffic.” The court therefore has no

trouble finding that County Council intended not only to bar

development which would cause new congestion but also intended

to bar development which would increase existing congestion.

     In its notice to Toll Bros. that it was disapproving the TIS the

county relied in part upon McCormick Taylor’s statement “an

appropriate fix has not been identified for the intersection of

[Lancaster     Pike]   and   Centerville   Road    to   achieve      the   LOS

concurrency requirement for New Castle County.”              Pointing to its

offer to pay $1.1 million to modify the intersection, Toll Bros. argues


                                      34
there is insufficient evidence to support the county’s conclusion

that “an appropriate fix has not been identified.” The argument fails

because there is no evidence as to when, if ever, DelDOT will

eventually modify the intersection. Further the county has no

control over when, if ever, DelDOT will fix the intersection.       As

discussed earlier, the county is neither obligated, nor legally

permitted, to approve the TIS on the assumption that DelDOT may

someday improve the intersection. As discussed earlier, New Castle

County’s regulation of development is based on the concept of

concurrency.    By statute the county may not approve a new

development unless its carrying capacity is supported by existing

infrastructure, infrastructure under construction or infrastructure

under contract. Therefore the fact that Toll Bros. designed a fix for

the intersection and is willing to pay for it does not justify, or even

permit, the approval of the TIS.

     No evidence has been presented that construction to modify

the intersection is underway or that DelDOT (which is solely

responsible for changes to the intersection) has awarded contracts

for that construction.    Any fix therefore lays sometime in the

unspecified future. As McCormick Taylor wrote:

                                   35
              DelDOT will accept and require the developer to
              contribute towards a future project of the type
              described in the Conceptual Plan, although the
              specifics of any future project for improvements at this
              intersection are still to be determined, and while
              reserving the right to apply such funds to a different
              solution at this intersection, at such time and under
              such conditions as the Department may determine.

       In short, as a matter of law, the possibility that DelDOT may

someday modify the intersection does not permit the Department of

Land Use to approve the TIS.53                    There was more than sufficient

evidence to support the Department’s decision.                              Indeed, the

Department had no choice.



       C. The denial of the permit is not an unconstitutional
       exaction

       Toll Bros. argues that the denial                  of    its application for a

permit is an unconstitutional exaction.                          In a nutshell the

unconstitutional exaction doctrine (which is an offshoot of the long-

established “unconstitutional conditions” doctrine) prohibits a

government from exacting a price from a landowner (whether it be

land, an easement, money or something else) in exchange for the

grant of a land use permit unless the so-called price (a) has a nexus

53  This holding should not be read too broadly. Recall that Toll Bros. does not contend that
any of the mitigation or waiver procedures apply here. The court expresses no opinion whether
in an appropriate case those provisions might allow the Department to approve the TIS.

                                             36
to a legitimate government purpose and (b) bears a rough

relationship to the cost of the impact of the proposed land use. Toll

Bros. asserts that the county cannot satisfy the rough relationship

test.     It points out that Delaware National would make only a

“negligible” contribution to the congestion and the $3.5 million cost

of the fix DelDOT wants is disproportionate to Delaware National’s

contribution to congestion. According to McCormick Taylor:

               Any such improvements [which DelDOT preferred] to
               this intersection also carry with them an estimated
               cost far out of proportion to the measureable impact
               that this development proposal has on this
               intersection.

        Toll Bros. relies upon a trilogy of United States Supreme Court

cases: Nollan v. California Coastal Commission,54 Dolan v. City of

Tigard,55         and Koontz v. St. Johns River Management District. 56

Before considering those cases it is necessary to briefly touch upon

the traditional unconstitutional conditions doctrine and the takings

clause       of    the    Fifth     Amendment.     Generally   speaking   the

unconstitutional conditions doctrine prohibits the government from

conditioning a person’s receipt of benefits on the person’s


54
     483 U.S. 825 (1987).
55
     512 U.S. 374 (1994).
56    ____U.S._____, 133 S.Ct. 2586 (2013).

                                              37
agreement to forego the exercise of a constitutional right.57                                  For

example a policy that payments to welfare recipients would be

withheld if the recipient posted campaign signs in their windows

would likely run afoul of the unconstitutional conditions doctrine.

       The unconstitutional exactions doctrine is an application of

the unconstitutional conditions doctrine to property owners seeking

a land use permit.              In such cases the underlying constitutional

right the owner is being asked to forego as a condition to obtaining

the permit is the owner’s right under the Fifth Amendment to just

compensation for the taking of property. The Fifth Amendment58

provides that “nor shall private property be taken for public use,

without just compensation.”59 In the paradigmatic case, a “taking”

occurs when the government takes property for its own use, such

as constructing a road.                  Another form of taking is a so-called

regulatory taking, i.e. regulations which unduly restrict the use of

57 E.g., United States v. American Library Assn., Inc., 539 U.S. 194, 210 (2003) (‘the
government may not deny a benefit to a person on a basis that infringes his
constitutionally protected ... freedom of speech even if he has no entitlement to that
benefit.”); Agency for International Development v. Alliance for Open Society International, Inc.,
133 S.Ct. 2321 (2013) (invalidating requirement that recipient of government funds must have
a policy opposing prostitution).
58
    The takings clause of the Fifth Amendment was made applicable to the states more than a
century ago. Chicago, B. & Q.R. Co. v. Chicago, 166 U.S. 226, 239 (1897).
59   The amendment “does not prohibit the taking of private property, but instead places a
condition on that power.” First English Evangelical Lutheran Church of Glendale v. County of
Los Angeles, 482 U.S. 304, 214 (1987)

                                                 38
property.60 In the instant matter there has been no physical seizure

or occupation of property by the government, and Toll Bros. does

not allege a regulatory taking.



                2. The Nollan-Dolan-Koontz trilogy

        The evolution of the “unconstitutional exactions doctrine”

began in 1987 with the Supreme Court’s decision in Nollan v.

California Coastal Commission, was clarified in Dolan v. City of

Tigard and reached full blossom in Koontz v. St. Johns River

Management District. These three cases lie at the heart of Toll Bros.’

argument.

         The     Supreme         Court      first    applied      the     unconstitutional

conditions doctrine to a land use matter in Nollan v. California

Coastal Commission.                In that case the owners of beach front

property sought a permit to tear down an existing house on their

property in order to build a new one. In order to do so the owners

needed to obtain a permit from the California Coastal Commission,

which agreed to issue one provided the owners granted a public

easement across their property. The Supreme Court found this to

60
     E.g., Penn Central Transportation Co. v. New York City, 434 U.S. 104 (1978).

                                                39
be an unconstitutional condition, reasoning that “had California

simply required the Nollans to make an easement across their

beachfront available to the public on a permanent basis in order to

increase public access to the beach, rather than conditioning their

permit to rebuild their house on their agreeing to do so, we have no

doubt there would have been a taking.” Restrictions on land use in

the legitimate exercise of the government’s police power do not

constitute a taking if they “substantially advance legitimate state

interests” and do not deprive the owner “economically viable use of

his land.”   The dilemma before the Nollan court was that “[o]ur

cases have not elaborated on the standards for determining what

constitutes a ‘legitimate state interest’ or what type of connection

between the regulation and the state interest satisfies the

requirement that the former ‘substantially advance’ the latter.”

     The Court held that for the exercise of the police power to be

legitimate when taking an easement, there must be some “nexus”

between the demanded easement and the public interest.             The

Commission sought to justify its demand for the easement by

asserting the easement would reduce obstacles to viewing the

beach, reduce congestion on the beach, and lower a “psychological

                                  40
barrier” to using the beach. The Court rejected these justifications

on the basis of the record before it and found the absence of the

required nexus. Because there was no nexus, the Court viewed the

demand as an extortionate land grab by the commission:

                [T]he lack of nexus between the condition and
                the original purpose of the building restriction
                converts that purpose to something other than
                what it was. The purpose then becomes, quite
                simply, the obtaining of an easement to serve
                some valid governmental purpose, but without
                payment of compensation. Whatever may be
                the outer limits of “legitimate state interests” in
                the takings and land-use context, this is not
                one of them. In short, unless the permit
                condition serves the same governmental
                purpose as the development ban, the building
                restriction is not a valid regulation of land use
                but “an out-and-out plan of extortion.61

        Seven years after Nollan the Supreme Court was called upon

to clarify the second part of the equation:                       assuming there is a

nexus between the exaction and a legitimate public interest, what

“degree of connection between the exactions imposed by the city

and the projected impacts of the proposed development [is

required].”62        The      Nollan      Court      balanced        the   constitutional

requirement of just compensation for a taking against the power of


61   Nollan v. California Coastal Commission, 483 U.S. 825, 837 (1987).
62   Dolan v. City of Tigard, 512 U.S. 374, 377 (1994).

                                               41
governments to engage in land use planning and settled on the

formulation               that       the        required   conveyance        bear    a     “rough

proportionality”                to      the      projected   impact     of     the       proposed

development. It held that “[n]o precise mathematical calculation is

required, but the city must make some sort of individualized

determination that the required dedication is related both in nature

and extent to the impact of the proposed development.”63

           Both Nollan and Dolan involved a demand for the transfer of

an interest in real property to which the property owner capitulated.

Left unanswered is what result occurs when the property owner has

not capitulated and refused to transfer the demanded property to

the government. Under such circumstances the takings clause is

not directly applicable because, by reason of the landowner’s

refusal, there has been no actual taking of property. The answer

was forthcoming in Koontz v. St. Johns River Water Management

District64 wherein the Court held that extortionate governmental

demands of developers are unconstitutional even when the

developer does not accede to the demand. This is so because, even



63    Id. at 391.
64
     ____ U.S. _____, 133 S. Ct. 2586 (2013).

                                                      42
though no taking has occurred, the demand burdens the right not

to have property taken without compensation.

                   The Florida Supreme Court puzzled over how
                   the government's demand for property can
                   violate the Takings Clause even though     “no
                   property of any kind was ever taken,” but the
                   unconstitutional conditions doctrine provides
                   a ready answer. Extortionate demands for
                   property in the land-use permitting context
                   run afoul of the Takings Clause not because
                   they take property but because they
                   impermissibly burden the right not to have
                   property taken without just compensation. As
                   in other unconstitutional conditions cases in
                   which someone refuses to cede a constitutional
                   right in the face of coercive pressure, the
                   impermissible denial of a governmental benefit
                   is a constitutionally cognizable injury.65


Several relevant points can be synthesized from the Nollan-Dolan-

Koontz trilogy:

                A restriction on land use does not constitute an

                   unconstitutional taking if it substantially advance[s]

                   legitimate state interests and does not deny an owner

                   economically viable use of his land.

                The     government    may     constitutionally   demand   the

                   conveyance of property as a condition to obtaining a land

65
     Id. at 2596

                                          43
         use permit so long as (1) there is a nexus between the

         required conveyance and the public interest and (2) there

         is a rough proportionality between the cost to the owner

         or developer and the adverse impact of the proposed

         development.

        The unconstitutional exaction doctrine is not limited to

         conveyances    of   interests   in   real   property.   A

         governmental attempt to coerce a landowner into paying

         money may also qualify.

        Although the analytical framework may differ slightly, in

         the end result there is no difference between the owner

         who accedes to the extortionate demand and the owner

         who refuses.



       3. The county never imposed an exaction on Toll Bros.

    An element of an unconstitutional exactions claim is that

there has been a demand made upon the landowner by the

government as a condition to obtaining a permit. The un-rebutted

record here shows there was never a demand on Toll Bros. by the



                                44
county, and therefore it has not attempted to impose an

unconstitutional exaction on the developer.

                a. A governmental demand is an
                element of an unconstitutional
                exaction.

     In order to make out a claim of an unconstitutional demand,

there must first be a demand. Toll Bros.’ argument fails because

there never was one here. Although the necessity of proving a

demand in these cases seems intuitively obvious, it has been

articulated in some opinions, most notably Justice Kagan’s dissent

in Koontz.   Ordinarily trial courts do not rely upon dissenting

Supreme Court opinions when fashioning their own opinions. This

court emphasizes that, as Justice Kagan noted, the majority in

Koontz seemed to agree with her that a demand is a predicate to the

application of the doctrine.

     In her dissent in Koontz Justice Kagan, joined by three other

justices, underscored that a demand is required in these cases.

She wrote:

          Nollan and Dolan apply only when the government
          makes a “demand[ ]” that a landowner turn over
          property in exchange for a permit. I understand the
          majority to agree with that proposition: After all, the
          entire unconstitutional conditions doctrine, as the
          majority notes, rests on the fear that the government

                                    45
                   may use its control over benefits (like permits) to
                   “coerc[e]” a person into giving up a constitutional right.
                   A Nollan–Dolan claim therefore depends on a showing
                   of government coercion, not relevant in an ordinary
                   challenge to a permit denial. Before applying Nollan
                   and Dolan, a court must find that the permit denial
                   occurred because the government made a demand of
                   the landowner, which he rebuffed.66

As noted, the majority apparently agreed that a demand was a

predicate to application of the unconstitutional exactions doctrine:

                   [W]e decline to reach respondent's argument that its
                   demands for property were too indefinite to give rise to
                   liability under Nollan and Dolan. The Florida Supreme
                   Court did not reach the question whether respondent
                   issued a demand of sufficient concreteness to trigger
                   the special protections of Nollan and Dolan. It relied
                   instead on the Florida District Court of Appeals'
                   characterization of respondent's behavior as a demand
                   for      Nollan/Dolan    purposes.    Whether       that
                   characterization is correct is beyond the scope of the
                   questions the Court agreed to take up for review. If
                   preserved, the issue remains open on remand for the
                   Florida Supreme Court to address. This Court
                   therefore has no occasion to consider how concrete
                   and specific a demand must be to give rise to liability
                   under Nollan and Dolan.67

This passage can only be read as acknowledging the necessity of a

demand; otherwise there would be no need to remand for a

determination whether it was of “sufficient concreteness to trigger

the special protections of Nollan and Dolan.”




66
     Id. at 2610
67   Id. at 2598

                                              46
    The proposition that there must be a “demand” is reinforced

by the Koontz majority’s repeated references to the extortionate

nature of the government’s demand:

          [L]and-use permit applicants are especially vulnerable
           to the type of coercion that the unconstitutional
           conditions doctrine prohibits because the government
           often has broad discretion to deny a permit that is
           worth far more than property it would like to take. By
           conditioning a building permit on the owner's deeding
           over a public right-of-way, for example, the
           government can pressure an owner into voluntarily
           giving up property for which the Fifth Amendment
           would otherwise require just compensation. So long as
           the building permit is more valuable than any just
           compensation the owner could hope to receive for the
           right-of-way, the owner is likely to accede to the
           government's demand, no matter how unreasonable.
           Extortionate demands of this sort frustrate the Fifth
           Amendment right to just compensation, and the
           unconstitutional conditions doctrine prohibits them.


          “Our precedents thus enable permitting authorities to
           insist that applicants bear the full costs of their
           proposals while still forbidding the government from
           engaging in ‘out-and-out ... extortion’ that would
           thwart the Fifth Amendment right to just
           compensation.

          “Extortionate demands for property in the land-use
           permitting context run afoul of the Takings Clause not
           because they take property but because they
           impermissibly burden the right not to have property
           taken without just compensation.”

          “That is not to say, however, that there is no relevant
           difference between a consummated taking and the
           denial of a permit based on an unconstitutionally
           extortionate demand.”




                                     47
               “Mindful of the special vulnerability of land use permit
                applicants to extortionate demands for money, we do
                so again today.”

The references to the extortionate nature of the demand are not

confined to Koontz; the other members of the trilogy--Nollan and

Dolan—make similar references. In Dolan the Court observed the

“absence of a nexus left the Coastal Commission in the position of

simply trying to obtain an easement through gimmickry, which

converted a valid regulation of land use into ‘an out-and-out plan of

extortion.”68        In Nollan the Court opined “[w]hatever may be the

outer limits of ‘legitimate state interests’ in the takings and land-

use context, this is not one of them. In short, unless the permit

condition        serves      the     same       governmental             purpose   as   the

development ban, the building restriction is not a valid regulation of

land use but an out-and-out plan of extortion.”69                          The holdings in

Nollan and Dolan were concisely summarized by Justice Scalia in a

memorandum opinion dissenting from the denial of a writ of

certiorari: “The object of the Court's holding in Nollan and Dolan




68   Dolan v. City of Tigard, 512 U.S. 374, 387 (1984)
69   Nollan v. California Coastal Commission, 483 U.S. 825, 837 (1987)

                                               48
was to protect against the State's cloaking within the permit

process an out-and-out plan of extortion.”70

       These repeated references to extortion are pertinent here

because they demonstrate that a demand is essential to an

unconstitutional exactions claim. By definition, extortion involves a

demand of some sort.               The underlying purpose of Nollan-Dolan-

Koontz—“to protect against the State’s cloaking within the permit

process an out-an-out plan of extortion”—necessarily subsumes

there has been a demand by the government.



                     b. New Castle County never made a
                     demand on Toll Bros.


       There is no evidence in the instant case that New Castle

County ever made a demand on Toll Bros. In its opinion the Board

of Adjustment found there were no negotiations between the county

and Toll Bros.:

              There is no evidence, however in the Board’s record,
              from either party, about negotiations that took place
              between them, which would be critical information for
              [Toll Bros.] to provide to the Board in support of its
              constitutional argument under the Koontz line of

70
   Lambert v. City and County of San Francisco, 529 U.S. 1045 (2000)(mem.)(Scalia. J.,
dissenting from denial of certiorari)(internal quotation marks omitted).


                                              49
              cases.     In response to this assertion [of an
              unconstitutional exaction] by [Toll Bros.], the
              Department asserted that no negotiations took place
              because it had no authority, under the circumstances,
              to negotiate.   [Toll Bros.] did not counter that
              assertion. 71

Toll Bros. did not dispute the Board’s finding in its brief before this

court. Nor did it request an evidentiary hearing before this court

evidence to present evidence of a demand despite the fact that the

certiorari statute applicable here allowed Toll Bros. to do so. The

standard or review here requires this court to accept all factual

findings which are supported by substantial evidence, and the

record amply supports the Board’s findings.                       The court therefore

concludes there was never a demand made upon Toll Bros.

Consequently there has not been an unconstitutional exaction.

       In the absence of a demand Toll Bros. cannot make out an

unconstitutional exaction claim. There has been, at most, a denial

of a land use permit which does not, by itself, amount to a

constitutional violation. In City of Monterey v. Del Monte Dunes at




71
   The court has reviewed Toll Bros. written submittals to the Board and finds no contention
there was a demand. The absence of any such contention, either before the Board or here, in
understandable because the evidence strongly suggests there never was one.

                                              50
Monterey72 the United States Supreme Court expressly declined to

apply Nollan and Dolan under such circumstances:

              [W]e have not extended the rough-proportionality test
              of Dolan beyond the special context of exactions—land-
              use decisions conditioning approval of development on
              the dedication of property to public use. The rule
              applied in Dolan considers whether dedications
              demanded as conditions of development are
              proportional to the development's anticipated impacts.
              It was not designed to address, and is not readily
              applicable to, the much different questions arising
              where, as here, the landowner's challenge is based not
              on excessive exactions but on denial of development.
              We believe, accordingly, that the rough-proportionality
              test of Dolan is inapposite to a case such as this one.73



       The lack of any evidence of a demand is dispositive of the

issue, and the court need go no further. It notes, however, there is

an independent reason why the unconstitutional exactions doctrine

should not be applied here. Although there is some divergence of

opinion,74 many courts have held that general statutory restrictions,



72  526 U.S. 687 (1999)
73  Id. at 702-3 (citations omitted)
74   Last month, in an memorandum opinion concurring in the denial of a petition for a writ of
certiorari, Justice Thomas wrote:

              For at least two decades, however, lower courts have divided over
              whether the Nollan/Dolan test applies in cases where the alleged
              taking arises from a legislatively imposed condition rather than
              an administrative one. That division shows no signs of abating.
              The decision below, for example, reiterated the California
              Supreme Court’s position that a legislative land-use measure is
              not a taking and survives a constitutional challenge so long as
              the measure bears a reasonable relationship to the public welfare.


                                              51
evenly applied, do not constitute an unconstitutional exaction

under the trilogy. Rather the exaction must come in the form of a

demand arising from an administrative requirement particular to

the requested land use permit. A California court of appeals put it

this way:

              The sine qua non for application of Nollan/Dolan
              scrutiny is thus the discretionary deployment of the
              police power in the imposition of land-use conditions
              in individual cases. Only individualized development
              fees warrant a type of review akin to the conditional
              conveyances at issue in Nollan and Dolan.75

In all three of the Nollan-Dolan-Koontz trilogy there was an

individualized administrative judgment which resulted in a demand

on a particular owner.             In this case there is a statutory scheme

applicable to all property owners in the county. It is a scheme which

is directly linked to the need for supporting infrastructure

generated by the proposed development. This case therefore bears

little resemblance to the circumstances present in the trilogy.




California Building Industry Ass’n v. City of San Jose, ___U.S.____, ____S.Ct._____ No. 15–330
(February 29, 2016)(Thomas, J., concurring in denial of certiorari)(citations and internal
quotation marks omitted).


75 Action Apartment Ass'n v. City of Santa Monica, 82 Cal.Rptr.3d 722 (Cal. App.
2008)(citations and internal quotation marks omitted)


                                              52
                           Conclusion

      The decision of the New Castle County Board of Adjustment is

AFFIRMED.




                                     __________________________
March 28, 2016                       John A. Parkins, Jr.
                                     Judge




oc:   Prothonotary

cc:   John E. Tracey, Esquire, Young Conaway Stargatt &
      Taylor, LLP, Wilmington, Delaware
      Sidney S. Liebesman, Esquire; Lisa Zwally Brown,
      Esquire, Montgomery, McCracken, Walker &
      Rhoads, LLP, Wilmington, Delaware
      Brian J. Merritt, Esquire, New Castle County
      Department of Law, New Castle, Delaware




                                53
