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Protect Our Indian River v. Sussex County Board of Adjustment

Superior Court of Delaware

May 17, 2019


          Submitted: February 8, 2019

         Upon Appeal from a Decision of the Board of Adjustment of Sussex County. Affirmed.

          Andrea G. Green, Esq., Law Office of Andrea G. Green, LLC, 28412 Dupont Blvd., Suite 104, Millsboro, Delaware 19966, Attorney for Petitioners.

          Robert G. Gibbs, Esq. and R. Eric Hacker, Esq., Morris James, LLP, 107 W. Market Street, Georgetown, Delaware 19947, Attorneys for Respondents.


          STOKES, R. J.


         Presently before the Court is a certiorari appeal from a decision of the Board of Adjustment of Sussex County ("Board", "BOA" or "Respondent") brought by Protect Our Indian River, Joseph Meyer, Cheryl Meyer, Ray Wharton, Geraldine Wharton, Joanne Haynes, Kenneth Haynes, Donna Skibbe, and Lewis Podolske ("Petitioners" or "Protect Our Indian River"). Petitioners seek to reverse the Board's decision that Allen Harim Foods, LLC's ("Harim" or "Respondent") application has met the requirements needed to establish a special use exception for a chicken processing, packaging and deboning plant. Harim supports the decision of the Board. The Court AFFRIMS the decision of the BOA for the reasons discussed below.

         II. FACTS

         Harim applied for, and the Board granted, a special use exception for a potentially hazardous use, to process and debone poultry products, and to freeze, package and ship retail poultry products. Harim filed the application on January 30, 2018, and the Board conducted a public hearing on the application on March 19, 2018. On May 7, 2018, the Board discussed and considered the application and approved the special use exception subject to two conditions. The conditions were (1) the approval is limited to a poultry deboning and packing facility of a size and scope proposed by Harim, and (2) that Harim's spray irrigation system, updated with new technology, be up and running prior to operation. On July 10, 2018, the Board issued its written decision granting the special use exception, subject to the two conditions listed above.

         Prior to the current disputed application Harim had been approved to renovate and utilize the entire facility as a chicken processing plant in 2013. This application allowed Harim to complete the entire processing operation, including deboning and packaging, the last two steps of the processing process.[1] The first approved application was appealed to the Delaware Superior Court and was upheld.[2] Protect Our Indian River was one of the appellants and appealed that decision to the Supreme Court of Delaware. The Supreme Court upheld the decision of the Superior Court.[3]However, Harim never utilized the grant of special exception and the property never was used as a poultry processing plant and the special exception lapsed.

         Currently, Harim seeks another special exception to utilize a portion of the facility as a limited poultry processing, deboning and packing facility. The application specifically states that the use will not include the slaughtering of animals. The use in question is smaller in scope than the use for which Harim sought and obtained approval in the first application. The limited processing would require less overall square footage of the building, less employees, less truck traffic, and a fraction of the estimated wastewater output compared to the first application.[4] The property is situated in a heavily industrialized area, in conformity with the HI-1 (Heavy Industrial) zoning, under the Sussex County Code. Harim's specific intended use of the property, as a limited poultry processing plant, is subject to the Sussex County Code Section 115-11[5] which applies only to "potentially hazardous uses" in the HI-1 zone. Harim reached out to several state agencies including Delaware Department of Natural Resources and Environmental Control ("DNREC), the Office of the State Fire Marshall, the Delaware Department of Transportation("DelDOT"), the Chief Building Code Inspector of Sussex County, the Sussex Conservation District, Natural Resources Conservation, and Division of Soil and Water. None of the state agencies mentioned above oppose the application.

         The public was notified on February 26, 2018, of the upcoming hearing concerning the application. At the hearing, on March 19, 2018, in front of the Board, Harim produced a voluminous exhibits package and presented evidence to the Board. This evidence included the history of the property, steps Harim would take to reduce any detrimental impact on the surrounding area and the environment, the previously approved application and its supporting documents, and testimony from supporters of the application such as a local farmer. The Board also heard testimony in opposition to the application. Generally, the opponents' concerns focused on fears of traffic or pollution. In particular, one person in opposition to the application submitted a health study from the University of Maryland. The Board heard and considered all of the evidence presented to it. Ultimately, the Board unanimously granted the special use exception to Harim in a 4-0 vote.

         Despite the fact that the second application is less burdensome than the original, Petitioners assert five grounds upon which they maintain that the decision issued by the Board was improper: (1) the findings of fact fail to accurately represent the actual testimony presented before the Board, thereby demonstrating a lack of substantial evidence to satisfy the legal standards for granting a special exception and rendering the decision arbitrary and unreasonable; (2) lengthy and detailed information and studies were presented by Harim at the hearing, without any prior opportunity for the Petitioners or other members of the public to study or review them, thereby depriving Petitioners of a reasonable notice and opportunity to be heard; (3) lack of jurisdiction based upon an incomplete application by Harim; (4) the Board demonstrated a clear bias in favor of Harim and against Petitioners; and (5) the Board demonstrated a failure to meet its obligation to protect the public health, safety, morals and general welfare.


         The standard of review for appeals from a Board of Adjustment decision is limited to the correction of errors of law and determination of whether substantial evidence exists in the record to support the Board's findings of fact and conclusions of law.[6] Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.[7] If the Board's decision is supported by substantial evidence, a reviewing court must sustain the Board's decision even if such a court would have decided the case differently if it had come before it in the first instance. [8] "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."[9]Questions of law are reviewed de novo.[10]In its appellate review, the Superior Court after examining the record may "reverse or affirm, wholly or partly, or may modify the decision brought up for review."[11]


         A. The Record Reflects Substantial Evidence was Submitted to the Board Demonstrating the Public Health, Safety, Morals and General Welfare Will Be Properly Safeguarded and the Board Contacted Relevant Agencies in Order to Make a Determination.

         The Board's decision was supported by substantial evidence on the record. Section 115-111 of the Sussex County Code states in relevant part,

The Board shall review the plans and statements and shall not permit such buildings, structures or uses until it has been shown that the public health, safety, morals and general welfare will be properly protected and that necessary safeguards will be provided for the protection of water areas or surrounding properties and persons. The Board, in reviewing the plans and statements, shall consult with other agencies created for the promotion of public health and safety and shall pay particular attention to protection of the county and its waterways from the harmful effects of air or water pollution of any type.

         As it did in connection with the 2013 application, Harim submitted numerous exhibits and testimony to support the application for a special use exception. Included in Harim's documents were a summary of the special use exception requirements and a detailed response on how potential concerns would be addressed. Also, Harim compiled a list of various requirements from state and federal agencies, including: Sussex County Building Inspector, Delaware State Fire Marshall, Delaware Department of Transportation("DelDOT"), Delaware Department of Resources and Environmental Control ("DNREC"), and the United States Department of Agriculture ("USDA"). Furthermore, Harim submitted the record compiled from the approved 2013 application.

         In addition to the exhibits and testimony submitted by Harim, other administrative agencies were contacted concerning the status of the application. In fact, the Board was required to consult with other agencies pursuant to Sussex County Code Section 115-111. In compliance with this provision, the Board solicited comments from various state agencies as it did in the 2013 application[12]The agencies from which the Board solicited comment include DNREC, DelDOT, Delaware State Fire Marshal, the Chief Building Code Inspector for Sussex County, and Sussex Conservation District. No objections were raised by any of the authorities contacted by the Board. However, DelDOT and DNREC mentioned requirements Harim would have to meet in order to obtain permits. These agencies have the authority to review the project for permitting purposes and request updates should there be any modification to the project.[13] State agencies continued monitoring of the proposed application provides assurances that the public health, safety, moral and general welfare will be properly protected.[14]

         Next, Petitioners contend the Board's failure to solicit comments from additional agencies merits reversal of the Board's opinion. Particularly, Petitioners believe that the Board was required to seek input from the Division of Public Health and Delaware Health and Social Services. Petitioners are under this belief because the mission statement of Delaware Health and Social services is "to improve the quality of life for Delaware's citizens by promoting health and well-being, fostering self-sufficiency, and protecting vulnerable populations."[15] This argument is essentially the same as the argument Protect Our Indian River raised against the 2013 Harim application.

         The Superior Court, in its decision on the 2013 application, described at length what agencies the Board needed to contact under Sussex County Code 115-111.[16] The Court held that the standard is flexible and that it provides discretion to the Board concerning what and how many agencies the Board must contact, and to what extent the Board is required to consult with those agencies.[17] Thus, the Board's decision was not inherently flawed because the Board was not under a duty to consult with the universe of agencies.[18] Furthermore, the Court held that the agencies that the Board contacted in connection with the 2013 application (the same agencies contacted in connection with the current application) were sufficient to establish substantial evidence when taken together with the evidence presented by Harim.[19] The Court also held, and the Delaware Supreme Court has acknowledged that, the Board was allowed to rely on permitting agencies to perform their statutory duties. [20] Therefore, the Court holds that the agencies contacted, along with the information presented by Harim in the current application and the 2013 application, is sufficient to uphold the Board's decision and the Board was not required to contact the specific agencies brought up by Petitioners.

         Finally, Petitioners contend that the Board improperly considered the 2013 application in ruling on the current application. Petitioners assert that this application must be considered on its own merits and whether the applicant has satisfied the standard as set forth in the Sussex County Code. Respondents argue that collateral estoppel precludes the re-litigation of issues in this suit that were previously heard in the first case. The rules regarding the finality of decisions in zoning cases are no different from such rules in other areas of the law.21 In particular, the principles of res judicata and collateral estoppel apply in zoning cases and have resulted in the rule that ordinarily a board of appeals or adjustment has no power to reopen or review its own decision by vacating, revoking, rescinding or altering it after it has been made.22 Collateral estoppel is applicable where (1) the issue previously decided is identical with the one presented in the action in question, (2) the prior action has been finally adjudicated on the merits, (3) the party against whom the doctrine is invoked was a party ...

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