Golf Course Assoc LLC v. New Castle County ( 2016 )

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