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Lechliter v. Delaware Department of Natural Resources and Environmental Control

Court of Chancery of Delaware

June 22, 2017

Gerald A. Lechliter
v.
Delaware Department of Natural Resources and Environmental Control, et al.

          Date Submitted: June 9, 2017

          Daniel F. McAllister, Esquire Glenn C. Mandalas, Esquire Baird Mandalas Brockstedt, LLC

         Dear Counsel and Col. Lechliter:

         Before me are cross case dispositive motions in this matter. The Defendant Mayor and City Council of Lewes (the "Council") moved to dismiss, based on the Complaint in this matter ("Dog Park I") and my decision in a related matter ("Dog Park II").[1] The Plaintiff, Col. Lechliter, agrees that the matter is "ripe for decision, " but seeks to cite to the record created in Dog Park I, and asks that I convert the Council's motion to one for summary judgment. The Council does not oppose this request, thus, I consider this matter submitted on cross motions for summary judgment on the record as it exists.

         The road to summary judgment is well-worn. A movant is entitled to a judgment only where no material facts remain in dispute and the record indicates that she is entitled to judgment as a matter of law. Where the parties have all moved for a judgment and point to no issues of material fact, the cross motions are considered as submitted on a stipulated record.[2] In light of the record here, I find that the Council is entitled to a judgment in its favor.

         I. BACKGROUND

         This matter, writ large, involves the use by the City of Lewes, the State of Delaware and others of a former industrial park transferred to the State and held as Open Space (the "Open Space"). Col. Lechliter has brought three actions contesting that use.[3] Many issues were raised and decided or mooted in these litigations. Only two remain. Was a 2014 Council meeting in compliance with the Freedom of Information Act ("FOIA")? And if not, what remedy, if any, is available? I here address only the facts pertinent to that inquiry, in light of the cross motions.

         Lewes Unleased ("Unleashed"), formerly a defendant in this action, is an entity formed to facilitate creation and operation of a "dog park" in Lewes. A dog park is a fenced-in area where dogs can run free of leashes or other restraints, under the supervision of their masters.[4] The Council held a public meeting on November 19, 2012 (the "2012 Meeting"), the published agenda for which informed the public that the location of a proposed dog park (the "Dog Park") would be discussed. At the meeting, the Council provisionally identified a location for the Dog Park in the Open Space, near where a road, Park Road, traversing the Open Space, crosses a marsh and mosquito ditch that drain to Canary Creek.[5]

         On October 6, 2014, the Council held another meeting (the "2014 Meeting") that Col. Lechliter contends violated FOIA. The published agenda for the 2014 Meeting informed the public that the meeting would include "Presentation and Consideration of a sublease[6] with Lewes Unleashed for land off of Park Road to be developed by Lewes Unleashed for a dog park." At the meeting, such a sublease to Lewes Unleashed was considered, and approved. The location was off Park Road, but was some distance away from the mosquito ditch. The location subleased was adjacent to a short cul-de-sac off of Park Road, in an area of the Open Space closer to Col. Lechliter's house. According to Col. Lechliter, the published agenda for the 2014 Meeting violated FOIA because it did not inform the public that the proposed location for the Dog Park sublease was different from that considered at the 2012 Meeting.

         The final pertinent facts involve a third Council meeting, held on January 11, 2016 (the "2016 Meeting"). The Council, at the 2016 meeting, considered an amendment to the sublease, somewhat increasing it in size. That amendment was approved, and pursuant to that approval the Mayor of Lewes signed an addendum to the sublease, providing that "to the extent not inconsistent [with the amendment] all of the other terms and conditions of the sublease are hereby ratified and affirmed." Col. Lechliter challenged the legality of the 2016 Meeting, the amendment to the sublease approved by the Council at that meeting, and the addendum ratifying the sublease, on grounds that the 2016 Meeting failed to comply with FOIA. I rejected that position, and found the 2016 Meeting FOIA-compliant, in my decision in Dog Park II.

         II. ANALYSIS

         FOIA requires that public bodies such as the Council must give the public at least seven days' notice of the fact that a meeting will take place, and shall include therein "the agenda, if such has been determined at that time . . .; however, the agenda shall be subject to change to include additional items . . . ."[7]

         In order that the purpose of the agenda requirement be served, it should, at least, "alert members of the public with an intense interest in" the matter that the subject will be taken up by the Council.[8] In other words, members of the public interested in an issue should be able to review a notice and determine that an issue important to them will be under consideration. As I pointed out in Dog Park II, FOIA provides an informational right to allow public involvement in government. If that interest is complied with, FOIA is satisfied; it is not a tool for use by those who disagree with the actions of their government to have those actions set aside, after the fact, on hyper-technical grounds. Such a result would be as inimical to the open exercise of democracy as failure of the informational right itself.

         It is in that light that I must examine whether the notice given of the 2014 Meeting offends FOIA. The public notice for the 2014 Meeting disclosed to the public that the addenda included "[p]resentation and consideration of a sublease with Lewes Unleashed for land off of Park Road, to be developed . . . for a dog park." In other words, the Council would consider the very act-the sublease to Lewes Unleashed-that was necessary to make the Dog Park a reality. This is certainly sufficient to ...


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