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Protect Our Indian River v. Sussex County Board of Adjustment

Superior Court of Delaware, Sussex

July 2, 2015

Protect Our Indian River, an Unincorporated association, Cindy Wilson, Bruce Ballantine, Larry V. Hawkins, William L. Gardner, and Diane M. Daly, Appellants,
Sussex County Board of Adjustment, Allen Harim Foods, LLC, a Delaware limited liability company, and Pinnacle Food Corporation, a Delaware corporation, Appellees.

Submitted: April 15, 2015

Upon Appellants Appeal from the Sussex County Board of Adjustment. Affirmed.

Richard L. Abbott, Esquire, Abbott Law Firm, Attorney for Appellants

Robert G. Gibbs, Esquire, Dennis L. Schrader, Esquire, Attorney for Appellees



Presently before the Court is an appeal from the Sussex County Board of Adjustment, ("BOA"), brought by Protect Our Indian River, an Unincorporated Association, Cindy Wilton, Bruce Ballantine, Larry V. Hawkins, William L. Gardner, and Diane M. Daly, ("Appellants"). Appellants seek to reverse BOA's decision granting a special use exception to Allen Harim Foods, LLC, ("Harim"). The special use exception enables Harim to renovate and utilize the subject property as a chicken processing plant.

Appellants allege BOA erred by granting a special use exception for four reasons. Appellants assert BOA erred by: (1) acting outside of their jurisdiction by accepting a direct application; (2) granting the exception given an improper party requested the Application; (3) making a determination based on a record that reflects insufficient evidence was considered to ensure the public health, safety, and general welfare will be properly safeguarded; and (4) failing to adhere to standards required by due process by providing inadequate notice. Harim and BOA maintain jurisdiction was properly exercised, a proper party requested the Application, substantial evidence supports the decision, and due process notice requirements were satisfied. As such, Harim and BOA both seek to affirm BOA's decision.

Following oral argument and written submissions by the parties, the Court AFFIRMS the decision of BOA for the reasons set forth therein.


Pinnacle Foods Group LLC, ("PFG"), is a Delaware entity and the owner of a 107 acre parcel of land near the town of Millsboro. This parcel is the site of the former Vlasic Pickle Plant ("Property"). Pinnacle Foods Corporation, the party named in this appeal, no longer exists as an entity, although it was the Delaware entity that initially took title to the Property by deed from Vlasic Foods International on May of 2001. Through merger and conversion, PFG later converted to the interests of Pinnacle Foods Corporation, Inc. and PFG is the owner of the Property throughout this petition.[1]

Harim is a Delaware entity and contract purchaser of the Property under a confidential Agreement of Purchase and Sale dated March 14, 2013 ("APS"). Under the APS, PFG is the seller and the contract remains executory between Harim and PFG. The APS contains a "due diligence" contingency. This contingency includes a condition that requires Harim to exercise due diligence to obtain confirmation that the Property is appropriately zoned under state and local zoning codes for Harim's intended use of the Property. The Property is zoned HI-1 (Heavy Industrial) under the Sussex County Zoning Code. Harim's specific intended use of the Property, as a poultry processing plant, is subject to Sussex County Code Section 115-111which applies only to "potentially hazardous uses" in the HI-1 zone.

As part of its due diligence under the APS, on April 12, 2013, Harim filed an application to the Sussex County Board of Adjustment for a Special Use Exception ("Application"). PFG is listed as the owner of the Property, and the Application was filed with PFG's full knowledge, consent, and support.

BOA scheduled and provided notice of the pending proceeding that would discuss the special use exception request filed by Harim. On June 3, 2013 BOA held a public hearing on the Application. At the conclusion of the public hearing, BOA announced it would table the Application until the next scheduled meeting, June 17, 2013, to allow BOA an opportunity to comply with Code requirements. Specifically, BOA was required to consult with other agencies created for the promotion of public health and safety prior to rendering a decision on the Application.

During this time, BOA voted to leave the record open conditionally in order to solicit comments from other agencies. BOA also decided to leave the record open an additional seven days to allow the public an opportunity to provide input related to the comments offered by the consulted agencies.

Following the receipt of the responses from the consulted agencies, and further written comments from the public, BOA voted on the Application at its meeting held on September 23, 2013. BOA approved the Application and issued its opinion on November 5, 2013. Appellants initiated an appeal within thirty days pursuant to a Verified Petition In Certiorari ("VPC") on December 5, 2013. On February 26, 2014, Appellants filed their opening brief and on March 31, 2014 the answering brief was filed. Oral argument was held on October 13, 2014. Thereafter the Court sent a letter to the attorneys requesting their positions regarding whether the Court had subject matter jurisdiction in the appeal.[2] The parties subsequently responded by letter and memoranda of law. [3]

As the record title owner is an indispensible party on appeal, the failure to join this party is a fatal defect. The VPC names Pinnacle Foods Corporation in paragraph nine as the owner of the property. This is incorrect because the owner is PFG.[4] Harim noted PFG was viewed as the owner in the Application before BOA, taking the position that the Court had discretion. On the whole record, PFG has constructively intervened in this appeal by participating through legal counsel and in its name throughout the pendency of this action. To the extent there was discretion to dismiss the appeal, however, the Court preferred to decide the case on its merits.

II. Statement of Facts

Harim sought to purchase property from PFG subject to an APS agreement which conditions the sale on certain requirements including the confirmation of approvals for anticipated renovations in order to utilize the property as a chicken processing plant.[5] PFG is listed as the record title owner of all three tax parcels constituting the subject property as of a June 7, 2001 conveyance from Vlasic Foods to PFG. Harim, in accordance with the due diligence requirement of the APS agreement with PFG, filed an Application with BOA for a Special Use Exception.

BOA accepted the Application and proceeded to prepare a list of property owners within 200 feet of the boundaries of the Property. Written notice of the Application and date of the public hearing was sent to those on the list. Some notices were returned to BOA either undelivered or undeliverable. Notice of the June 3, 2013 public hearing was also advertised in The News Journal and The Sussex Post. In addition, notice of the Application was posted on the Sussex County Planning & Zoning Commission's bulletin board on May 6, 2013 and on the Property on May 9, 2013.

Harim supported its Application with relevant documentation. A schematic site plan illustrating the proposed renovations to existing facilities accompanied the Application. Also, an Executive Summary was attached in order to provide BOA a concise statement outlining how specific concerns would be addressed. Water pollution, dust control, odor control, air pollution, noise, traffic, and safety were the main concerns addressed in the Executive Summary. Furthermore, Harim supplemented the Executive Summary with a separate list acknowledging the various permitting requirements for the proposed renovations and upgrades as required by the appropriate State and Federal agencies. These agencies include: Sussex County Building Inspector, Delaware State Fire Marshal, Delaware Department of Transportation, ("DelDOT"), Delaware Department of Natural Resources and Environmental Control, ("DNREC"); and United States Department of Agriculture.

The property is also subject to a Brownfield Development Agreement entered into between Harim, and DNREC.[6] Harim included a Site History report that referenced several existing environmental issues identified in the Phase I Environmental Assessment including a Limited Subsurface Investigation, prepared by B.P. Environmental, Inc. In addition, Harim prepared and submitted a separate document entitled "Special Use Exception, " summarizing the requirements of Sussex County Code Section 115-111, and detailing how the areas of concern- fire, explosion, noise, vibration, dust and odor, and emissions-would be addressed if the proposed modifications were approved.

Numerous area residents submitted public comments prior to BOA's meeting held on June 3, 2014. The public comments cited objections to the Application and the anticipated chicken processing plant as a whole. Most of the objections specifically highlighted the following concerns: odor, traffic, noise, lighting, and pollution of nearby creeks and rivers.

At the public hearing, Harim presented the sworn testimony of James M. Quinton, Harim's Director of Operations ("Quinton"), who provided a brief explanation of the poultry processing operation; planned renovations and proposed new improvements to the existing facility; certain procedures and improvements specifically designed to minimize dust and odors; and anticipated traffic that would be generated as a result of planned operations. Next, Harim presented the sworn testimony of John Shahan, Harim's project engineer, a mechanical engineer who discussed the logistics of the plan. Edward Kee, Delaware Secretary of Agriculture, also testified in support of the Application.

BOA then heard the testimony of residents living in close proximity to the Property regarding concerns about the potential negative environmental impacts from the chicken processing plant operation. Concerns voiced by nearby residents included the potential impact on residential well water, and the overall impact the plant might have on Delaware's waterways. Some of the opponents questioned the scope of the environmental permitting procedure required prior to approval of the Application.

Ultimately, BOA decided to table all discussions and defered any vote on the Application until June 17, 2013. In doing so, BOA announced the discussion was tabled and closed the record regarding the Application until at least the next scheduled meeting of the BOA, June 17, 2013.

At the June 17, 2013 meeting, BOA further discussed the Code requirements regarding consulting with additional State agencies on the Application. At this time, BOA voted to keep the record open for the limited purpose of soliciting written comments from State agencies within thirty days and to allow additional public written comments related to the comments offered by State agencies for an additional seven days thereafter. Notice was sent to Harim that BOA had reopened the record in order to consult agencies for comment. Notice was not sent to area neighbors informing them that BOA had re-opened the Record.

The solicitation of comments from State agencies included the following agencies: Office of the State Fire Marshall, DNREC, Sussex County Building Code Inspector, Sussex Conservation District, and DelDOT. The Office of the State Fire Marshall responded, noting its non-objection to the re-zoning, but prompted BOA and Harim to reach out to its office should there be any changes in the site plans for their review. DNREC, Division of Air Quality, responded, noting existing permits for boilers and fuel oil tanks were in compliance with current air quality regulations, and these permits could be transferred upon DNREC's approval. Also, DNREC stated any new equipment must meet current regulations and permitting requirements. The Sussex County Building Code Inspector replied with no objection to the proposed poultry processing plant, but reminded the parties that the project would be subject to review intermittently to secure compliance with the governing building code.

However, BOA did not seek comments from the Delaware Center for the Inland Bays, which is an organization that facilitates a Comprehensive Conservation Management Plan to preserve and protect Delaware's inland bays. BOA also did not solicit comments from the EPA. Although requested, the Sussex Conservation District did not provide BOA with any comments.

The written submissions provided to BOA by members of the public evidenced some concerns regarding the limited opportunity for public comment, potential pollution issues, and other negative environmental impacts. Following the receipt of responses from the consulted agencies and further written comments from the public, BOA voted on the Application at its meeting on September 23, 2013. BOA approved the Application and the written decision was issued November 5, 2013.

III. Standard of Review

The standard of review on appeals from the Board of Adjustment is limited to the correction of errors of law and a determination of whether substantial evidence exists in the record to support the Board's findings of fact and conclusions of law.[7] Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[8] If the Board's decision is supported by substantial evidence, a reviewing court must sustain the Board's decision even if such court would have decided the case differently if it had come before it in the first instance.[9] "The burden of persuasion is on the party seeking to overturn a decision of the Board to show that the decision was arbitrary and unreasonable."[10] In its appellate review, the Superior Court after examining the record may "reverse or affirm in party or in whole, or may modify the Board's determination."[11]

IV. Analysis

A. BOA Properly Exercised Jurisdictional Authority

i. BOA's Statutory and Regulatory Power Includes the Jurisdictional Authority to Hear and Decide Direct Applications ...

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