 

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

PIZZADILI PARTNERS, LLC,
C.A. No. K16A-02-004 WLW

Petitioner, : Kent County
v.

KENT CGUNTY BOARD OF
ADJUSTMENT AND
LTR PROPERTIES, LLC,

Respondents.
Submitted: May 23, 2016
Decided: August 26, 2016
OPINION AND ORDER
Upon an Appeal from the Decision of the

Kent County Board of Adjustment.
Reversed.

Thornas Mammarella, Esquire, and William M. Kelleher, Esquire, of Gordon,
Fournaris & Mammarella, P.A., Wilmington, Delaware; attorneys for Petitioner
Pizzadili Partners, Inc.

Noel E. Prirnos, Esquire, of Schrnittinger and Rodriguez, P.A., Dover, Delaware;
attorney for Respondent Board of Adjustment of Kent County.

John W. Paradee, Esquire, of Baird Mandalas & Brockstedt, LLC, Dover, Delaware;
attorneys for Respondent LTR Properties, LLC.

VVITHAM, R.J.

Pizzadili Partners, LLC v. KC Bd. Oan'justment, et al.
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August 26, 2016

Before the Court is the appeal of Petitioner Pizzadili Partners, LLC
(“Pizzadili”) from a decision by the Kent County Board ofAdjustment (“the Board”).
The Board denied Pizzadili’s appeal seeking the reversal of a finding that a vehicle
racetrack is a permitted use on real property located in the General Business District
(“BG District”). For the following reasons, the decision of the Kent County Board
of Adjustment is REVERSED.

I. FACTUAL AND PROCEDURAL BACKGROUND

On October 26, 2015, LTR Properties, LLC (“LTR”) submitted a Zoning
Certificate of Use (“COU”) application for a property located at 10182 South DuPont
Highway, on the northwest corner of the intersection of U.S. Route 13 and Peach
Basket Road. The property is situated north of Felton, Delaware, lies within the
territorial limits of Kent County, and is located in a BG District. LTR currently
operates the Delaware Public Auto Action on one portion of the property. Another
portion of the property is utilized as a horse training facility. LTR sought a COU that
would allow a vehicle racetrack as a permitted use on the property. LTR proposed
to replace a one-half mile horse track currently located on the property with a one-
quarter mile vehicle racetrack. LTR stated that the engines used in the vehicles
would be no larger than four cylinders, all with noise-dampening devices, and that
several classes would consist of one and two-cylinder engines.

A parcel of land adjacent to the LTR property is owned by Pizzadili. The
Pizzadili property contains a vineyard and a banquet facility that has been in

operation for the past twenty years. The facility is open from noon until 5 p.m. daily,

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but may host functions from 5 p.m. until l 1 p.m. The facility also hosts weddings and
rehearsals on weekends.

On October 28, 2015, the Kent County Department of Planning Services (“the
Department”) issued a COU stating that a vehicle racetrack was a permitted use on
the property. The COU was subject to certain conditions such as exterior lighting
must be shielded to deflect light away from adjacent properties and passing motorists,
and comply with the provisions of the County Noise Ordinance. On November 25,
2015, Pizzadili filed an appeal with the Board challenging the Department’s issuance
of the COU. Pizzadili argued that an automobile racetrack is not a permitted use on
the property, and further argued that a racetrack can only be permitted on property
located in a Limited Industrial District (“IL District”).

On January 21, 2016, the Board conducted a public hearing at which the
petitioner and thirteen other opponents raised issues pertaining to damage to area
businesses and residential areas. Opponents raised concerns related to noise, water,
air, and soil pollution from the proposed racetrack. Pizzadili expressed concern that
dust clouds from the racetrack could harm the grapes by covering them in silt, thereby
disrupting the flavor profile or ultimately killing them. Pizzadili also testified that he
expects a significant number of cancellations if the racetrack is allowed. The owner
of the property seeking the COU, Ron Faison, testified that he would not allow racing
if a wedding was taking place, that noise limits would be enforced with a decibel
meter, that six to eight foot trees would be planted between the properties, that the

clay track would be treated with detergent to limit dust, and that he would install LED

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lights in order to spread less light on adjoining properties. Mr. Faison further testified
to the positive economic impact the racetrack would have and provided a petition
with 254 signatures of support.

On February 18, 2016, the Board issued its decision. The Board noted that
because the use of a vehicle racetrack is not specifically listed in the zoning
ordinance, the Department staff had used a standard protocol to determine whether
this use would be permitted. The protocol outlined in the Kent County Zoning Code
(“the Code”) directed the use of the Standard Industrial Classification manual (“SIC
manual”) to determine whether a BG District would allow a vehicle racetrack. The
Department also reviewed past zoning decisions. Section 205-169 of the Code
contains a list of permitted uses in a BG District. The Board noted that “[c]ommercial
recreation facilities, including miniature golf, tennis, racquetball and handball courts,
skateboard parks, skating rinks, batting cages” are permitted uses in a BG District.
The Board found the list to be exemplary yet nonexclusive, and that the use of the
word “including” without any words of limitation required that the term “commercial
recreational facility” be broadly interpreted

The Board noted that reference to the SIC manual, as dictated by Sections 205 -
15(B)1 and 2()5-168(€)2 of the Code, led to the conclusion that a “dirt vehicle

' Kent Cty. C. § 205-15(B) states:
Any use which is not specifically listed as a permitted or conditional use in any
zoning district shall be identified within the Standard Industrial Classification
Manual and placed within the proper zoning category. The proper zoning district
shall be found by identifying the major use division in which the use is located
and by placing the use in the district in which uses in the specific major use

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racetrack” qualified as a “commercial recreation facility.” Section 205-169 lists a
commercial recreation facility as a permitted use in the BG District. This conclusion

Was reached by locating vehicle dirt track under SIC Industry No. 7948, “Racing,

zs3

Including Track Operation. The description for this section covers promoters and

participants in racing activities, including racetrack operators, operators of racing
stables, jockeys, racehorse trainers, and race car owners and operators. The
description further lists various types of racing and related activities, including
dragstrip operations, horse racing, motorcycle racing, auto racing, racetrack
operation: e.g. horse, dog, auto, operation of racing stables, speedway operation, and
stock car racing.4 Industry Number 7948 falls under Industry Group Number 794,
“Commercial Sports,” Which falls under Major Group Number 79, “Amusement and
Recreation Services,” Which in turn falls under the Division of “Services.” The Board
therefore concluded that a “dirt vehicle racetrack” Was classified as a commercial

recreational facility, and that such facilities are a permitted use in the BG District.

division are listed as permitted in that district.

2 Kent Cty. C. § 205-168(C) states:
All uses in the BG - General Business District can be referenced in the Standard
lndustrial Classifrcation Manual of 1987, under sections entitled “Wholesale
Trade,” “Retail Trade,” “Services,” “Finance, Insurance and Real Estate,”
“Construction,” “Public Administration” and “Transportation, Communications,
Electric, Gas and Sanitary Services.”

3 The SIC Division structure may be found online at https://WWW.osha.gov/pls/imis/sic_
manual.html. The description for Industry No. 7948: Racing, Including Track Operation may be
found at https://WWW.osha.gov/pls/imis/sic_manual.display?id=l 82&tab=description.

4 Ofnote, although Industry Number 7948 does encompass auto racing, the term “dirt vehicle
racetrack” is not listed.

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The Board next addressed Pizzadili’s contention that a racetrack is only
permitted as a conditional use in an IL District. Racetracks were added as a
conditional use in the IL District as part of a l99l revision of the Code.5 The term
“Racetracks” is found in Section 205-185, Which lists conditional uses in the IL
District, and in Section 205-330, Which lists six minimum conditions for the use of
racetracks.6 Of these six conditions, the Board found that two refer to horse racing.
Condition (2) requires that no stables be located Within 500 feet of any adjoining
property line, and condition (4) requires that all licenses for operation of the racetrack
be obtained from the State Racing Commission. At that time of the revision, the only
racetrack in Kent County Was the Harrington Raceway Which Was located at the State

Fairgrounds, and the only racing commissions referenced in the Delaware Code

5 Decision of the Kent Cnty. Bd. oan'justment, Application No. A-16-06, at 7 (Jan. 21 , 2016)
[hereinalter Notice of Decisz`on].

6 Kent Cty. C. § 205-330 is titled “Racetracks” and states:
A. Conditions of this use shall be as follows:
(l) lt shall have frontage on a state-maintained highway.
(2) No stables shall be located Within 500 feet of any adjoining property line.
(3) All entrances and exits to a racetrack shall have been approved by the
Delaware Department of Transportation.
(4) All licenses for operation of a racetrack have been obtained from the State
Racing Commission.
(5) Off-street parking is provided in accordance With the requirements in
Article XVII, Parking.
(6) All requirements, regulations and recommendations submitted by any
agency member of the Development Advisory Committee shall be satisfied.
B. The reviewing body may impose any other appropriate or more stringent
conditions it deems necessary to protect the health, safety and Welfare of the

neighborhood

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Where the State Harness Racing Commission and the State Thoroughbred Racing
Commission.7 Neither Section 205-185 nor Section 205-3 30 provide a definition for
the term “Racetracks.” Based on the foregoing, the Board found it Was reasonable
for the Department to determine that the use of the term “Racetrack” Within the IL
District Was intended to be specific to horse racing and not applicable to any other
type of racing.

The Board then reviewed past zoning decisions. Relying on a 2001 decision
by the Kent County Development Advisory Committee regarding the Fairlane Acres
go-cart track in an Agricultural Residential District (“AR District”),8 the Board found
that the Kent County Levy Court(“Levy Court”) had already set a precedent
classifying a vehicle racetrack as a commercial recreational facility. In the 2001
decision, after a public hearing, a dirt racetrack for go-cart racing Was approved as a
conditional use on a property located in an AR District. The owner Was not required
to comply With the Racetrack requirements found in Section 205-330; however,
numerous conditions Were imposed. Citing the 2001 decision, the Board noted that
“[p]re-existing decisional precedent (and LTR’s constitutional right to equal
protection under the law) dictates that the same interpretation be adopted in the
present case.”9

The Board also found support for the conclusion that a vehicle racetrack falls

7 Id.

8 The decision is available at Respondent LTR Properties, LLC’s Answering Brief, Appx.
at LTR025.

9 Notice of Decision, supra note 5, at 8.

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within the definition of a commercial recreational facility in recent actions undertaken
by the Levy Court. The Levy Court is currently considering amendments that would
create a new conditional use called “motorsports” and specifically exclude
motorsports from the definition of` “commercial recreational facilities.” The Board
further noted that “any question over the proper interpretation of “commercial
recreation facility” in the Code, and specifically over whether such a definition
includes a dirt vehicle racetrack, must be construed in favor of` the landowner, in this
case LTR Properties.”10 The Board denied Pizzadili’s appeal of the Department’s
decision to issue a COU.

On February 29, 2016, Pizzadili filed an appeal of the decision of the Board of
Adjustment of` Kent County with this Court.

II. STANDARD OF REVIEW

When a decision of` the Kent County Board of` Adjustment is appealed, this
Court’s review is “restricted to a determination of whether the Board’s decision is
free from legal errors and whether the Board’s finding of facts and conclusions of` law
are supported by substantial evidence in the record.”ll Substantial evidence means
“such relevant evidence as a reasonable mind might accept as adequate to support a

)>12

conclusion “If` the record contains substantial evidence, then the Court is

10 Id.

" T olson v. Kent Cnty. Dep ’t. of Planm`ng Serv., 2012 WL 1995796, at *2 (Del. Super. May
22, 2012).

'2 McKinney v. Kent Cnly. Bd. ofAdjustment, 2002 WL 1978936, at *4 (Del. Super. July 3 l ,
2002) (citing Wadkins v. Kent Cnty. Bd. of Adjustment, 1999 WL 167776, at *2 (Del. Super. Feb.

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prohibited from re-weighing the evidence or substituting its judgment for that of the
Board.”13 The Board must “particularize its findings of fact and conclusions of law
to enable the Superior Court to perform its function of appellate review.”14 After
reviewing the Board’s decision, “[t]he Court may reverse or affirm, wholly or partly,
or may modify the decision brought up for review.”15 In the case sub judice, the
holding of the Court rests upon issues of statutory interpretation. Questions of law,
including questions of statutory interpretation, are reviewed de novo.16
III. DISCUSSION

The Board’ s holding that a vehicle racetrack is a commercial recreation facility
and thus allowed as a permitted use in a BG District implicates three distinct issues
that must be addressed. The first issue is whether the term “Racetracks” as used in
Sections 205-185 and 205-330 includes vehicle racetracks. The second issue is
whether a vehicle racetrack can be properly classified as a “commercial recreation
facility.” The third issue is whether the SIC manual procedures used by the
Department complied with the Code. As always, the Court’s decision will be guided
by the intent of the governing body. In this case, the governing body is the Kent

23, 1999)).

'3 Dover LandHoldings, LLC v. Kent Cnty. Ba'. ofAdjustment, 2016 WL 3951699, at *2 (Del.
Super. July 15, 2016).

14 Gilman v. Kent Cnty. Dep’t of Planning, 2000 WL 305341, at *2 (Del. Super. Jan. 28,
2000) (citing Proj?ta v. New Castle Cnty. Bd. of Aa'justment, 1992 WL 390625, at *3 (Del. Super.
Dec. 11, 1992)).

'5 9 Del. C. § 4918(i).
16 Freeman v. X-Ray Associates, P.A., 3 A.3d 224, 227 (Del. 2010).

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County Levy Court.
T he Intent of the Kent Coumjy Levy Court

Because the intent of the Levy Court is the guiding principle when interpreting
the Code, it is instructive to review the purpose of the Code. lt should be noted that
“principles of statutory construction generally apply with equal force to municipal
ordinances’m; thus, any principle applying to a statute would generally apply to the
Code. In Delaware, it is well established that when a statute is clear and
unambiguous, there is no need for statutory interpretation18 lt is also well established
that the primary purpose when applying methods of statutory interpretation is “to
determine and give effect to legislative intent.”19 This intent must prevail even if
preserving legislative intent results in “an interpretation not consistent with the strict
letter of the statute.”20 When construing a statute, “literal or perceived interpretations
which yield mischievous or absurd results are to be avoided.”21 To ensure legislative

intent is properly construed, methods of statutory interpretation require the statute be

17 One-Pie Investments, LLC v. Jackson, 43 A.3d 911, 914 (Del. 2012). See also lA
Sutherland Statutory Construction § 30:6 (7th ed. 2015).

'8 Ria'gewood Manor II, Inc. v. Delaware Manufacturea’ Home Relocation Auth., 2014 WL
7453275, at *5 (Del. Ch. Dec. 31, 2014) (citing State v. Skinner, 632 A.2d 82, 85 (Del.l993)). See
also 2A Sutherland Statutory Construction § 45:2 (7th ed. 2015).

'9 Ria'gewood Manor II, Inc., 2014 WL 7453275, at *5.

20 Mayor and Council ofWilmington v. Dukes, 157 A.2d 789, 793-94 (Del. 1960). See also
Haywara' v. Gaston, 542 A.2d 760, 768 (Del. 1988) (“lf a literal interpretation of a statute leaves a
result inconsistent with the general statutory intention, such interpretation must give way to general
intent.”).

21 One-Pie Investments, LLC, 43 A.3d at 914; Mayor and Councz`l of Wilmington v. Dukes,
157 A.2d 789, 793-94 (Del. 1960).

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read in the aggregate rather than in parts, and that each section be “read in light of all
others to produce a harmonious Whole.”22 No Words in a statute should be “construed
as surplusage if there is a reasonable construction Which Would give them meaning,

and courts must ascribe a purpose to the use of statutory language, if reasonably

possible.”23

Chapter 205 of the Code regulates zoning in Kent County. Section 205-3
contains a statement of purpose applicable to the Code as a Whole, and each zoning
district contains a statement of purpose applicable to that district. The general
purpose of Chapter 205 is

to promote the health, safety, morals, convenience, order, prosperity and
general Welfare of the County residents; to provide adequate light and
air; to promote the conservation of natural resources; to protect the
groundwaters, surface Waters and estuaries of the County; to prevent
environmental pollution; to avoid undue concentration of population; to
conserve and protect the value of property; to facilitate the adequate
provision of transportation, Water, sewerage, schools, recreation and
parks; and to facilitate the initiation of the Comprehensive Plan and
other public requirements24

In interpretation and application, the provisions of chapter 205 are to be considered

as minimum requirements and be “liberally constructed to protect the safety, health

22 Doroshow, Pasquale, Krawitz & Bhaya v. Nanticoke Mem ’l Hosp., Inc. , 36 A.3d 336, 343
(Del. 2012).

23 Chase Alexa, LLC v. Kent Cnty. Levy Court, 991 A.2d 1148, 1152 (Del. 2010).
24 Kent Cty. C. § 205-3.

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and welfare of the citizens of Kent County.”25

The purpose of the BG District is “[t]o provide for a broad range of commercial
activities and a variety of large retail stores and related activities occupying prime
retail land and serving a regional community”,26 and “[t]o prohibit uses which may
be detrimental to residential neighborhoods and communities for reasons such as
odor, smoke, dust, fumes, fire, vibrations, noise or hazardous conditions.”27 Any
interpretation of the Code must be made using these stated purposes as a guide.

The Racetrack Issue

The term “Racetracks” is undefined within the Code. The Board’ s holding that
the term is specific to horse racing was based on two findings: (l) the historical
setting in Kent County when the term “Racetracks” was added; and (2) that two
elements of section 205-330 appear to be specific to horse racing. No legislative
history28 is provided to support the Board’s conclusion. For the following reasons,
the Court is not convinced that the Board’s rationale supports the conclusion that the
term “Racetracks” is specific to horse racing.

First, reference to the fact that the only racetrack existing in Kent County when

the Code underwent the 1991 revision is inapposite The Harrington Raceway

25 Kent cty. c. § 205-4.
26 Kent Cty. c. § 205-166(A).
” Kent cty. c. § 205-166(13).

28 Legislative history is defined by Black’s Law Dictionary as “[t]he proceedings leading to
the enactment of a statute, including hearings, committee reports, and floor debates.” Black’s Law
Dictionary 1039 (10th ed. 2011).

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property was located within an IL District when the Code was revised and remains
so today. However, this information provides no insight into the legislative process.
Where legislative history may provide insight into the intent of the governing body,
historical context does not. Because no legislative history is provided, the Court
cannot determine whether the 1991 revision was forward looking and intended to
limit the placement of all types of racetracks to the IL District, whether the revision
was an attempt to codify a standard that already existed in practice, or whether the
revision intended to limit only horse racetracks to the IL District. Any deductions
regarding the relationship between the existence of the Harrington Raceway and the
Code revision based on historical events in Kent County in 1991 would be purely

speculative.

Second, that section 205-3 30 contains elements that may be specific to horse
racing does not preclude the section from referring to other types of racing. There is
a mention of stables, but no mention of horses. Reference is also made to the
requirement that all licenses for operation of a racetrack must be obtained from the
State Racing Commission. The Board notes that the only racing commissions found
in the Delaware Code are the State Hamess Racing Commission and the State
Thoroughbred Racing Commission. The Board concludes that the Code must
therefore refer to these commissions lt is not clear whether the Levy Court meant
racing commissions, past and future, in a generic sense, or only racing commissions
existing at the time of the revision. Again, with no legislative history, any deductions

regarding the racing commission to which the Levy Court was referring would be

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speculative

When a term is undefined, established rules of statutory construction and the
Code offer definitional guidance. First and foremost, “the Court must seek to
ascertain and give effect to the intention of the Legislature as expressed in the Statute
itself.”29 When interpreting the Code, the intent of the Levy Court “is gleaned from
what is said, not from what they may have intended to say.”30 In such cases, a court’s
role is limited to an application of the literal meaning of the words.31 Moreover, the
Code provides a mechanism for determining a definition when none is given. Section
205-5 directs the use of common dictionary definitions when a definition has not been
provided.

The Levy Court could have specified horse racetracks if their intent was to
limit the term “Racetracks” to those tracks upon which horses are raced.32 Because
no limiting words are associated with the term “Racetracks,” the Court must look to
the literal meaning of the term in order to give effect to the intention of the Levy

Court; however, this view must be taken in the context of the intent of the Levy Court

29 Keys v. State, 337 A.2d 18, 22 (Del. 1975) (citing Ernest DiSabatino & Sons, Inc. v.
Apostolico, 260 A.2d 710 (Del. Super. 1969)).

30 State v. Croce, 1997 WL 524070, at *5 (Del. Super. May 14, 1997) (quoting 2A Sutherland
Statutory Construction § 46:1 (7th ed. 2015)).

31 Coastal Barge Corp. v. Coastal Zone Indus. Control Bd., 492 A.2d 1242, 1246 (Del.
1985).

32 Um'ted States v. Gola'enberg, 168 U.S. 95, 102-03 (1897) (“The primary and general rule
of statutory construction is that the intent of the lawmaker is to be found in the language that he has
used. He is presumed to know the meaning of words and the rules of grammar. The courts have no
function of legislation, and simply seek to ascertain the will of the legislator.”).

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when the Code underwent revision. A racetrack is commonly defined as a course or
track for racing.33 Additionally, courts have commonly referred to tracks used by
both horses and vehicles as racetracks.34 Thus, the Court finds that the term
“Racetracks” encompasses vehicle racetracks.

The Board’s argument that including any racetrack within the definition of
“racetracks” must necessarily apply to foot races and model car races and would
therefore lead to an absurd result is well taken. However, it must be remembered that
when construing a statute, literal interpretations which yield absurd results are to be
avoided.35 The Court has not been asked to determine whether foot races or model
car races would be encompassed by the term “Racetracks.” The issue before the
Court is limited to whether a vehicle racetrack is encompassed in the term
“Racetracks.” The Court notes that the intent of the Levy Court is to contain certain

undesirable conditions to specified Zoning districts. This intent is consistent with the

39

33 A racetrack is defined as: “1. a racecourse 2. a track for motor racing. The Concise
Oxford English Dictionary 1183 (12th ed. 2011). A racecourse is defined as “a ground or track for
horse or dog racing. Id. A racetrack may also be defined as “[a]n often oval course designed for
racing.” Webster’s New College Dictionary 933 (3rd ed. 2008).

34 See Tucker v. Seacoast Speedway, 1999 WL 743170, at *1 (Del. Super. July 1, 1999)
(discussing the owner of a wrecker truck who was “willing to work on the wrecker crew if the
racetrack was short-handed.”); Wilkins v. Levy Court Comm 'rs, 1981 WL 88252, at *l (Del. Ch. May
28, 1981) (noting that grounds upon which the Delaware Four Wheelers wished to operate their
off-road vehicles was a “species of racetrack.”); Hessler, Inc. v. Ellis, 167 A.2d 848, 849 (Del. Ch.
1961) (discussing land that “was to be used for the construction and operation of an automobile
racetrack.”).

35 “If the context makes clear that a statute uses a common law term with a different meaning,
the common law meaning is of course inapplicable.” Antonin Scalia & Bryan A. Gardner, Reading
Law.' T he lnterpretation ofLegal Texts 321 (Thomas/West 2012).

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purpose of chapter 205 as stated in section 205-3. A definition of “Racetracks” that
encompasses vehicle racetracks gives effect to the intention of the Levy Court and is
consistent with an interpretation of the Code as a harmonious whole.
T he “Commercial Recreational Facililfv” Issue

Assuming arguendo that the term “Racetracks” did not encompass vehicle
racetracks, the process of determining whether vehicle racetracks are allowed in a BG
District would continue. To this end, the Board found that a vehicle racetrack is a
permitted use in a BG District because a vehicle racetrack is a commercial recreation
facility. However, this finding was in error. First, even if the term “commercial
recreation facility” was found to generally include vehicle racetracks, the listing of
commercial recreational facilities in the BG District is limited by the examples that
follow the listing. Second, relying on the SIC manual to determine that a vehicle
racetrack is a commercial recreation facility does not comport with procedures
contained in the Code. Third, precedent relied on by the Board is not persuasive

Moreover, when giving effect to the intent of the Levy Court and in viewing
the Code as a harmonious whole, it must be noted that commercial recreation
facilities are not limited to the BG District. The Code allows commercial recreational
facilities or commercial recreation facilities in five zoning districts.36 Such facilities

are allowed in the Agricultural Conservation District (“AC District”) as a conditional

36 The only discernable difference between the phrases is that recreation is a noun and
recreational is an adjective. For all intents and purposes, the terms are identical.

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use,37 in the AR District as a conditional use,38 in the Medium-Density Residential
District (“RSS District”) as a conditional use,39 in the Multifamily Residential District
(“RM District”) as a conditional use,40 and in the BG District as a permitted use.41 lt
is notable that commercial recreation facilities are allowed in the BG District as a
permitted use, and only as a conditional use in the other districts.42 ln the AC, AR,
RSS, and RM Districts, the term “commercial recreational facility” stands alone.
Only in the BG District is the term “commercial recreation facility” modified by the
phrase “including miniature golf, tennis, racquetball and handball courts, skateboard
parks, skating rinks, batting cages.”

In Wolfv. Board of Adjustment of New Castle County, the Superior Court WaS
called on to decide Whether a commercial nursery fell Within the definition of
“agricultural purpose” in order to determine Whether a commercial nursery Was a
permitted use on property zoned R-l-C (one-family residential).43 The WolfCourt
stated that:

37 Kent Cty. C. § 205-48.
38 Kent Cty. C. § 205-64.
39 Kent Cty. C. § 205-95
40 Kent Cty. C. § 205-11().
4' Kent Cty. C. § 205-169.

42 In Wolfv. Ba'. ofAdjustment of New Castle Cty. , the Court Was called on to decide Whether
a commercial nursery fell Within the dennition of “agricultural purpose” in order to determine

Whether a commercial nursery Was a permitted on property zoned R-l-C (one-family residential).
1983 WL 473277, at *1 (Del. Super. July 19, 1983).

43 Wolfv. Ba'. of Adjustment OfNew Castle Cty., 1983 WL 473277, at *1 (Del. Super. July
19,1983)

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Since a commercial nursery is expressly permitted in the less restrictive

zoning district, R-2 (agricultural and general purpose), only if a special

exception is granted, the Board correctly ruled that it was obviously not

the intent that this use be permitted as a matter of right in the more

restrictive zoning district, R-l-C.44
LTR argues that Wolf is not applicable to Kent County because the ruling applied to
the New Castle County Board of Adjustment, and because the Kent County Code is
rife with examples of uses that have been authorized as conditional uses in less
restrictive zones while being authorized as permitted uses in more restrictive zones.

The rationale in Wolf is sound. When interpreting the Code as a harmonious
whole, common sense would dictate that a use allowed as a conditional use in a less
restrictive zoning district would not be allowed as a permitted use in a more
restrictive zoning district. As the governing body, the Levy Court retains the power
to override this rationale when they feel circumstances justify an exception, and, as
LTR points out, the Levy Court has done so in the past. However, the exceptions
cited by LTR45 are specific uses and not generally subject to differing interpretations
Wolf dealt with the more generic term “agricultural purpose” just as this Court is
dealing with the generic term “commercial recreational facility.” Although the Court

does not hold that a use listed in a less restrictive zoning district as a conditional use

could never be listed in a more restrictive zoning district as a permitted use, the

44 Id.

45 LTR cites numerous examples including public utilities, dry cleaning, radio and television
stations, automotive repair shops, commercial greenhouses, home occupation, banks, community
centers, and restaurants Respondent LTR Properties, LLC’s Answering Brief at l9-20, 20 n.56.

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holding in Wolf is persuasive when considering ambiguous terms.
T he principle of ejusdem generis applies to the list of terms following
“commercial recreation facilily”

The Board concluded that the list of activities following the term “commercial
recreation facility” in section 205-169 was exemplary yet nonexclusive, and that the
use of the word “including” without any words of limitation required that the term
“commercial recreation facility” be broadly interpreted The Respondents agreed and
further argued that the word “including” precludes the use of the principle of ejusdem
generis.46 However, the Delaware Supreme Court has not found that a list preceded
by the term “including” prohibits the rule of ejusdem generis. In Delaware Boara' of
Nursing v. Gillespie, the Court was required to interpret a list that was preceded by

7)47

the term “including. The Court was interpreting title l6, section 903 of the

Delaware Code which stated:

Any physician, and any other person in the healing arts including any
person licensed to render services in medicine, osteopathy, dentistry, any
intem, resident, nurse, school employee, social worker, psychologist,
medical examiner or any other person who knows or in good faith
suspects child abuse or neglect shall make a report in accordance with

46 Black’s Law Dictionary defines ejusdem generis as:
A canon of construction holding that when a general word or phrase follows a list
of specifics, the general word or phrase will be interpreted to include only those

terms of the same class of those listed.
Black’s Law Dictionary, 631 (10th ed. 2011).

47 Delaware Ba'. of Nursing v. Gillespie, 41 A.3d 423, 427 (Del. 2012).

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§ 904 ofthis title.“8
Relying on the principles of ejusdem generis and noscitur a sociis,49 the Court stated
that “it is reasonable to interpret the statutory phrase ‘or any other person’ in light of
the preceding, specific enumeration of persons who would likely learn of child abuse
in the scope of their duties in schools, hospitals, and counseling services.”50 That the
list was preceded by the term “including” in no way affected the application of the
principle of ejusdem generis.

A classic case of ejusdem generis presents an enumeration of persons or things
followed by general language For example, the Supreme Court of Delaware noted
the phrase “[i]f the position offered is vacant due directly to a strike, lock-out, or
other labor dispute” was a typical example of the ejusdem generis doctrine.51 The
specific words “strike” and “lockout” are followed by the general words “other labor

3952

dispute. However, the principle of ejusdem generis “applies equally to the

opposite sequence, i.e., specific words following general ones, to restrict application

of the general terms to things that are similar to those enumerated.”53

48 Id. (emphasis added).

49 Black’s Law Dictionary defines noscitur a sociis asi
A canon of construction holding that the meaning of an unclear word or phrase,
especially one in a list, should be determined by the words immediately

surrounding it.
Black’s Law Dictionary, 1224 (lOth ed. 2011).

50 Gillespie, 41 A.3d at 428.

5' Bigger v. Unemployment Comp. Comm'n, 53 A.2d 761, 765 (Del. 1947).
52 Id.

53 2A Sutherland Statutory Construction § 47:17 (7th ed. 2015).

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Thus, the words following “commercial recreation facility” in the BG District
limit activities to be encompassed by “commercial recreation facility” to those that
are similar to the activities listed.54 If the Levy Court had intended the list following
the term “commercial recreation facility” to be so broad and far-reaching so as to
include uses such as a vehicle racetrack, it certainly would have clearly and positively
indicated this intent. Moreover, such a broad interpretation would render the list
superfluous

lee SIC manual does not place a vehicle racetrack within
the definition of commercial recreation facilily.

Sections 205-15(B) directs that the SIC manual be used when a use is not
specifically listed as a permitted or conditional use. When a use is not listed, the SIC
manual is referenced to determine the major use division in which the non-listed use
is located. The SIC manual contains a hierarchal top-down structure with “Divisions”
(major use divisions) constituting the top tier. Divisions consist of various Major
Groups, Major Groups consist of lndustrial Group Numbers, and lndustrial Group
Numbers contain specific lndustry Numbers. Determining the proper major use
division for a particular non-listed use requires locating the specific lndustry Number
for the non-listed use to determine the major use division under which the non-listed

use falls. Once the major use division has been identified, the non-listed use is placed

54 In its answering brief, the Board noted that substantial evidence was presented that neither
dust nor noise would be an issue with the proposed vehicle racetrack, but this ruling would apply to
all racetracks proposed in a BG District. The Court does not doubt that Mr. Faison’s efforts to limit
the impact on neighboring properties are sincere, but these efforts are not pertinent to this case.

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in the district in Which the specific major use division is listed as permitted. There
are no intermediate steps. HoWever, the Board employed a process that seems to rely
on intermediate steps to conclude that a vehicle racetrack is a commercial recreation
facility.
The Board’s decision noted that vehicle dirt racetracks fall under:
Division - Services
Major Group 79, Amusement and Recreation Services
Industry Group No. 794, Commercial Sports
Industry No. 7948, Racing, Including Track Operation

Dirt vehicle tracks Were properly classified under the major use division “Services”,
but the Department and the Board further determined that a dirt vehicle track is
classified as a commercial recreation service. The Board’s decision does not state
how they came to this specific determination, but the Court must assume that the
Board referenced the Maj or Group, Amusement and Recreation services, the Industry
Group Number, Commercial Sports, and combined the terms to create commercial
recreation facility. Nothing in the Code directs the use of the intermediate levels of
the SIC hierarchy. Moreover, nothing in the Code directs the use of` the SIC manual
for definitional purposes. The Code merely directs that the non-listed use be placed
in the Zoning districts Which allows the major use division. Thus, a determination
based on the SIC manual that a vehicle racetrack is a commercial recreation facility
is unfounded.

The Fairlane Acres decision is not precedent

The precedential value of` the 2001 report allowing the Fairlane Acres go-cart

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track as a conditional use in an AR District is limited. The Regional Planning
Commission determined with no discussion that a go-cart track was a commercial
recreational facility. As noted earlier, the term “commercial recreational facility” is
undefined. The definition of the term was not questioned, and therefore not subjected
to debate. The apparent determination by the Regional Planning Commission that a
go-cart track was a commercial recreational facility cannot be considered
precedential.

Although commercial recreation facilities are allowed in a BG District as a
permitted use, they are allowed in an AR District only as a conditional use. Where
the permitted use in a BG District is followed by examples, the conditional use in an
AR District is not. Thus, even if erroneous, the assumption that a go-cart track is a
commercial recreational facility does not necessarily run afoul of the intent of the
Levy Court. As a conditional use, the go-cart track would be subjected to whatever
limitations were deemed appropriate to protect neighboring properties.

Moreover, the AR District was not created with the same purpose as the BG
District. The AR District was created to provide for a wide variety of farming while
also providing for low-density residential development, to foster environmentally
sound development, and to serve as a transition/buffer zone between agricultural and
residential uses.55 The language prohibiting uses detrimental to residential
neighborhoods “for reasons such as odor, smoke, dust, fumes, flre, vibrations, noise

or hazardous conditions” is absent.

55 Kent Cty. C. § 205-60.

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Results of the process dictated by section 205-15(B) must be tested
against the stated purpose of the zoning district before a non-listed
se may be allowed

Because a vehicle racetrack is not listed in the Code, section 205-15(B)
requires that the SIC manual be referenced The procedures outlined in section 205-
15(B) require that the Division in which the non-listed use is located be identified
Here, a dirt vehicle racetrack is most closely related to racetrack operation, and
racetrack operation is found in the Division labeled “Services.” Section 205-15(B)
then requires that the non-listed use, dirt vehicle racetrack, be placed “in the district
in which uses in the specific major use division is listed as permitted in that district.”
Thus, dirt vehicle racetracks would be allowed in any zoning district that permits the
major use division titled “Services.” The Code includes the major use division titled
“Services” in the following zoning districts: the AC District; the AR District; the
Single-Family Residential District (“RSl District”); the RSS District; the RM
District; the Residential Manufactured Home District (“RMH District”); the
Neighborhood Business District (“BN District”); the Neighborhood Business District
(“BNl District”); the BG District; the Ofiice/Office Complex District (“OC
District”); and the IL District. In other words, a dirt vehicle racetrack would be
allowed in any district except the General Industrial District (“IG District”).

The intent of the Levy Court must prevail even when preserving that intent
results in an interpretation not consistent with the strict letter of the Code. When

construing the Code, “literal or perceived interpretations which yield mischievous or

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absurd results are to be avoided.”56 Although the Code clearly dictates a process for
determining the zoning districts in which a non-listed use may be placed, a
mechanical application of that process can lead to absurd results. For example,
neither dragstrip operation nor stock car racing is listed as a use in the Code, yet both
are listed in the SIC manual under Industry No. 7948 (Racing, Including Track
Operation). Thus, if the procedures contained in the Code were mechanically applied,
the absurd result would be that dragstrips and stock car racing facilities would be
allowed in all districts except the IG District.

Because strict reliance on SIC manual can lead to mischievous or absurd
results, the manual must only be used as a first step. Results obtained after consulting
the SIC manual must be tested against the stated purpose of a particular zoning
district before the non-listed use is placed in that district to ensure that the non-listed
use will not violate the purpose of the zoning district. Thus, a two-step process is
required before a non-listed use can be placed in a zoning district. First, after finding
the maj or use division containing the non-listed use, the section of the Code relating
to the zoning district in which the non-listed use is requested should be consulted to
ensure the major use division is allowed in that district If the major use division is
allowed in the zoning district, the non-listed use must be compared to the stated
purpose of the district to ensure to ensure compliance with the intent of the Code.

In the case sub judice, the landowner sought a COU allowing him to place a

dirt vehicle racetrack on his property. If, arguendo, a vehicle racetrack was a non-

56 One-Pie Investments, LLC, 43 A.3d at 914; Dukes, 157 A.Zd at 793-94.

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listed use, then the SIC manual would be consulted. A dirt vehicle racetrack is

’9

categorized under the major use division “Services. The property on which the
landowner wishes to create a dirt vehicle racetrack is located in a BG District.
Section 205-l68(C) lists the major use division “Services,” thus a dirt vehicle
racetrack survives the first part of the process. However, the inclusion of a dirt
vehicle racetrack is subject to the provisions of section 205-166(B) which states that
the purpose of the BG District is “[t]o prohibit uses which may be detrimental to
residential neighborhoods and communities for reasons such as odor, smoke, dust,
fumes, fire, vibrations, noise or hazardous conditions.” Whether a dirt vehicle
racetrack would violate the BG District zoning provisions based on the purpose of the
zoning district as stated in section 205-166 is a question of fact to be determined by
the Department.

In summary, if the Court had not found the term “Racetracks” as a listed use
in the IL District to encompass vehicle racetracks, the Court would have found that
a dirt vehicle racetrack is not a commercial recreation facility, and that the process

followed by the Department was not in compliance with the Code.

Recent actions by the Kent County Levy Court do not indicate that
a “vehicle racetrack” falls within the definition of a “commercial
recreational facility”
The Board finds additional support for its conclusion that a “vehicle racetrack”

falls within the definition of “commercial recreation facility” in recent actions
undertaken by the Levy Court. A proposed ordinance would “(l) create a new

conditional use called “motorsports”; (2) include racetrack and racing operations

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within the definition of “motorsports”; (3) specifically exclude “motorsports” from
the definition of “commercial recreation facilities”; and (4) thereby prohibit
racetracks and racing operations in the BG Zoning District.”57 The Board found that
the proposed ordinance “constitute[d] evidence that a “vehicle racetrack” does qualify
as a “commercial recreation facility” under the present Code.”

Proposed legislation has no place in statutory construction Before being
adopted, legislation is open to free and vigorous debate. As proposed legislation is
debated, minds can be changed. The Board cannot determine the outcome of the
proposed ordinance, nor divine the rationale behind the introduction of the ordinance.
For these reasons, the proposed ordinance is not evidence supporting the proposition
that a “vehicle racetrack” falls within the definition of “commercial recreation
facility.”

IV. CONCLUSION

The Board’ s holding that a vehicle racetrack is a commercial recreation facility
has broad implications. There are a number of uses that are not specifically listed in
the Code, and the procedures followed by the Department and viewed with favor by
the Board would lead to results not consistent with the Code when viewed as a
harmonious whole. For instance, the decision allows vehicle racetracks as a
permitted use in the BG District. Although Mr. Faison has stated that he will limit
the types of cars allowed to race on the track, be open one day per week, and will

implement measures to reduce any adverse impacts on neighboring properties, not

57 Notice of Decision, supra note 5, at 8.

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every property owner may be so accommodating. Limitations found in section 205-
332 for commercial recreation facilities apply only to zoning districts which list
commercial recreational facilities as a conditional use. The Board’s decision sets a
precedent that would allow vehicle racetracks as a permitted use in the BG District.
This would allow vehicle racetracks to operate in the BG District even though the
types of cars being raced are not limited to four cylinders, even though the racetrack
is open every day of the week, and even though the owner may not be inclined to
limit adverse effects. When one considers the stated purpose of chapter 205, the
Board’s decision does not give effect to the intent of the Levy Court.

After careful consideration of the Board’ s decision, the briefs submitted by the
parties, and the Kent County Code, the Court finds that the term “Racetracks”
encompasses vehicle racetracks, that the term “commercial recreation facility” does
not encompass vehicle racetracks, and that results from the SIC manual must be
compared to the stated purpose of the zoning district before a non-listed use is

allowed. Based on these findings, the decision of the Kent County Board of
Adjustment is REVERSED.
IT IS SO ORDERED.

/s/ William L. Witham Jr.
Resident Judge

 

WLW/dmh

28

