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IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
IN AND FOR SUSSEX COUNTY
LOWE’S HOME CENTERS, INC.                                                                 )
a North Carolina Corporation,                                                             )
                                                                                          )
Plaintiff,                                                                                )
v.                                                                                        )   C.A. No. 99C-07-014
                                                                                          )
SUSSEX COUNTY PLANNING                                                                    )
AND ZONING COMMISSION,                                                                    )
Comprised of John Allen, Robert                                                           )
Wheatley, W. Layton Johnson                                                               )
John Hastings, and Ronald Lynch                                                           )
                                                                                          )
Defendants,                                                                               )
v.                                                                                        )
                                                                                          )
OLD MEADOWS PROPERTIES,                                                                   )
L.L.C., a Delaware Limited                                                                )
Liability Company,                                                                        )
for notice purposes only.                                                                 )
Submitted: April 18, 2002
Decided:   July 30, 2002
David N. Rutt, Esq., of Moore & Rutt, P.A., Georgetown, Delaware, For Lowe’s Home
Centers, Inc.
Dennis L. Schrader, Esq. and David C. Hutt, Esq., of Wilson, Halbrook & Bayard, P.A. of
Georgetown, Delaware, For the Sussex County Planning and Zoning Commission.
Robert V. Witsil, Jr., Esq., Georgetown, Delaware, For Old Meadows Properties, L.L.C.
ORDER
Upon Plaintiff’s Motion for Summary Judgment.  Denied.
Upon Defendants’ Cross Motion for Summary Judgment.   Granted.
WITHAM, J.




Lowe’s Home Ctrs., Inc. v. Sussex County Planning and Zoning Comm ’n
C.A. No.   99C-07-014
July 30, 2002
1.                                                                                                     Upon consideration of the submissions of the parties, it appears to the
Court that this is Lowe’s Home Centers, Inc.  (“Lowe’s”) Motion for Summary
Judgment upon its complaint for Declaratory Judgment.   Lowe’s complaint seeks
to   reverse   the   Sussex   County   Planning   and   Zoning   Commission’s
(“Commission’s”) denial of a revised site plan for a water tank.   The Commission
moves in opposition to Lowe’s motion and has submitted its own Cross Motion for
Summary Judgment seeking that its decision be upheld.   Old Meadows Properties,
L.L.C. adopts the motion of the Commission.    Because no public hearing was
required to review the revised site plan, and because the due process rights of
Lowe’s have not been violated, Lowe’s motion for Summary Judgment is denied
and the Commission’s Cross Motion for Summary Judgment is granted.
Facts
2.                                                                                                     On May 28, 1998, the Commission approved a final commercial site
plan  for  the  construction  of  a  Lowe’s  retail  store  in  Sussex  County  at  the
intersection of U.S. Route 9, State Route 1, and County Road 275.  Included in that
site plan was an approved location for a necessary water tank.
3.                                                                                                     For various reasons,1 Lowe’s determined that it needed to enlarge and
move the water tank on its site.  Consequently, Lowe’s filed a revised site plan with
the Sussex County Planning and Zoning Office on June 14, 1998.   This plan was
misplaced or never received, and was not acted upon by the Commission.
1   See Lowe’s Home Centers, Inc. v. Sussex County Bd. of Adjustment, 2001 WL 1729123
(Del. Super. Ct.) (setting forth in detail the facts related to the misplacement of the water tank).
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Lowe’s Home Ctrs., Inc. v. Sussex County Planning and Zoning Comm ’n
C.A. No.   99C-07-014
July 30, 2002
4.                                                                                     This Court previously found that Lowe’s went ahead and built the tank
in the new location without gaining the proper approvals (on the basis of silence)
from the zoning Commission.2   That act was in violation of Sussex County zoning
laws. The tank has now been constructed in the unapproved location and holds over
216,000 gallons of water.
5.                                                                                     Lowe’s alleges that it discovered that the tank was in violation of the
approved final plan, and the Sussex County zoning setback requirements, only after
completion of construction when the tank was inspected for the issuance of the
Certificate of Occupancy.   Then, Lowe’s realized that the County did not have a
record of ever having received the misplaced or lost revised site plan that showed
the new tank location.
6.                                                                                     For this reason, a revised site plan (limited only to the relocation of the
fire protection water tank) was filed again (almost one year later) and presented to
the Commission for consideration at a regular meeting on April 22, 1999.   At that
meeting, the Commission discussed the technical requirements of the code and
whether or not   Lowe’s site plan complied.   In addition, the Commission reviewed
findings of fact from the March 26, 1999, decision of the Board of Adjustment
(denying a variance to Lowe’s  for the non-compliant water tank) in order to
determine why Lowe’s was in violation of the code requirements .
7.                                                                                     The  Commission  then  voted  to  deny  Lowe’s  revised  site  plan
2  Id.
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Lowe’s Home Ctrs., Inc. v. Sussex County Planning and Zoning Comm ’n
C.A. No.   99C-07-014
July 30, 2002
application.   Lowe’s representatives were not permitted to give testimony on the
revised application until after the Commission made its final decision.
8.                                                                                          Lowe’s  submitted a Motion for Rehearing and/or Reconsideration
which was heard at a later meeting on June  10,  1999.   This motion explained
Lowe’s reasons for relocating the tank without formal approval.   The Commission
denied the Motion for Rehearing and/or Reconsideration.
Claims of the Parties
9.                                                                                          Despite the fact that the Plaintiff did not raise this issue in its Motion
to the Commission for Rehearing or Reconsideration, Lowe’s now alleges that the
procedures used by the Commission at its April 22, 1999 , meeting denied Lowe’s
its due process rights.  This is because Lowe’s was not allowed to speak on behalf
of its application for a revised site plan when, purportedly, opponents’ positions
were made part of the record.   Moreover, Lowe’s argues that the denial of the
Motion for Rehearing/Reconsideration compounded this error.  It is Lowe’s position
that the Commission’s decision should be reversed and an Order should be entered
approving the revised site plan.   The Commission does not agree that due process
violations occurred, and argues that its decision should be upheld as a matter of law.
Summary Judgment Standard
10.                                                                                         Superior Court Rule 56(c) provides that judgment “shall be rendered
forthwith if the pleadings, depositions, answers to interrogatories and admissions
on file, together with the affidavits , if any, show that there is no genuine issue as to
any material fact and that the moving party is entitled to a judgment as a matter of
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Lowe’s Home Ctrs., Inc. v. Sussex County Planning and Zoning Comm ’n
C.A. No.   99C-07-014
July 30, 2002
law.”3   The burden is on the moving party to show, with reasonable certainty, that
no  genuine  issue  of  material  fact exists  and  judgment  as  a  matter of  law  is
permitted.4   When considering a motion for summary judgment, the facts must be
construed in the light most favorable to the non-moving party.5
Discussion
11.                                                                                         The Sussex County Code (“SCC”) states that when the Commission
reviews  a  site  plan,  “[n]o  public  hearing shall be required  .  .  .                  .”6                                                               As  the
Commission points out, site plan reviews are technical reviews of proposed plans.
The  Commission must  insure  that  “a  site  plan  is  in  compliance  with  all  the
provisions of the zoning code regarding use and dimensional requirements.”7  When
the Commission believes it will be aided in its duty of enforcing the technical
requirements of the zoning code, it may conduct public hearings.   In the present
case, the Commission did not deem it appropriate to consider the Lowe’s revised
site plan application in the context of a public hearing.
12.                                                                                         Lowe’s provides two reasons why the Commission should have held
public hearings, and by failing to do so violated its due process rights.    First,
3  Super. Ct. Civ. R. 56.
4   See Celotex Corp. v. Cattret, 477 U.S. 317 (1986); Martin v. Nealis Motors, Inc., 247
A.2d 831 (Del. Supr. 1968).
5  McCall v. Villa Pizza, Inc., 636 A.2d 912 (Del. Supr. 1994).
6  SCC § 115-219D.
7  East Lake Partners. v. City of Dover, 655 A.2d 821, 825 (Del. Super. Ct. 1994).
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Lowe’s Home Ctrs., Inc. v. Sussex County Planning and Zoning Comm ’n
C.A. No.   99C-07-014
July 30, 2002
Lowe’s  argues that because the Commission accepted testimony from various
parties at previous hearings (related to prior site plans submitted by Lowe’s for this
same  store)8  the  Commission  has  thereby  authorized  the  acceptance  of  such
testimony at any subsequent hearing on a Lowe’s revised site plan regarding the
same store.   In other words, the Commission has established a precedent whereby
it must accept public testimony at any meeting on any Lowe’s revised site plan
concerning the store at issue in this case.
13.                                                                                               Lowe’s cites no authority for the proposition that a right to a public
hearing can be established by precedent, especially when the statute makes the right
discretionary.    Moreover,  it  is  debatable  whether  or  not  public  hearings  ever
occurred in the previous meetings on Lowe’s prior site applications.   Nonetheless
at all of those previous meetings where the Commission permitted testimony, the
Commission always heard both sides.  Lowe’s was always permitted to speak .
14.                                                                                               These previous meetings can, therefore, be distinguished from the
meeting on April  22,  1999.    No parties where permitted to speak at the latter
meeting.   Lowe’s cannot be said to have been denied due process by a procedure
that did not require a public hearing and by which no testimony or public comment
was received.
15.                                                                                               Lowe’s disagrees, arguing that the viewpoint of interested opposing
8  At least three site plans were submitted before the final one was approved, and a number
of meetings were devoted to the discussion of these other plans.   The minutes from these other
Commission meetings show that various opposing parties were given the chance to present
viewpoints, and that Lowe’s representatives were also permitted to speak.
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Lowe’s Home Ctrs., Inc. v. Sussex County Planning and Zoning Comm ’n
C.A. No.   99C-07-014
July 30, 2002
parties was received by the Commission.   Accordingly, Lowe’s counters that even
if  the  Commission  established  no  precedent  for  accepting  testimony  by  its
procedures at prior meetings, the Commission opened the door for Lowe’s to speak
at this one hearing on April 22nd.   Lowe’s is adamant that the Commission took
testimony from opposing parties, but refused Lowe’s a chance to speak.
16.                                                                                      It is Lowe’s position that the Commission allowed letters of opposition
to be summarized into the record for the Commission’s consideration prior to taking
its vote.   Lowe’s maintains that once the Commission considered those letters, it
was obligated to conduct a public hearing in accordance with the law.   Hence, after
the entry of the letters into the record, the denial of the revised site plan on April
22nd, and the denial of the Motion for Rehearing/Reconsideration constituted a
denial of Lowe’s due process right to have a public hearing.
17.                                                                                      Lowe’s  mischaracterizes the Commission's use  of  the letters from
opposing parties at its meeting on April 22, 1999.  The transcript from that meeting
states in pertinent part:
Mr. Abbott:                                                                              I’m passing down a xerox copy of a couple site
plans.   This is a revised commercial site plan for
the  location  of  the  water  tank.  [Discusses  what
technical documents comprise the site plan].  Today
we received a letter from Scott Bradley which Mr.
Schrader has reviewed.   If I am right it does not
require a public hearing Mr. Bradley states and then
we received a lengthy book from the Citizens[‘]
Coalition I believe Mr. Schrader also reviewed that.
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Lowe’s Home Ctrs., Inc. v. Sussex County Planning and Zoning Comm ’n
C.A. No.   99C-07-014
July 30, 2002
Mr. Allen:                                                             Mr. Schrader, do you have any comments on this?
Mr. Schrader:9                                                         Well, we’ll start with the Citizens[’] Coalition.   Mr.
Tyler denies that he was the author of the complete
text.   Let me say Mr. Chairman that the Citizens[‘]
Coalition submittal was received in the office on
today’s date and it addresses five topics, which the
Coalition believes are issues to be raised.   They
include parking area regulations, permissible area
usage, storage facilities incidental to the permitted
use,  dedicated  bicycle  lanes,  and  entry  repair
requirements.   None of those five items are items
which are the subject matter of the application being
proposed or suggested by Lowe’s tonight.    The
second  is  the  letter  of  Mr.  Bradley  who  is
imminently familiar with Lowe’s application; he
refers  to  Section                                                    115-222  of  the  Code  for  the
proposition that there must be a public hearing,
however, he  neglects  to  point out  that  115-222
refers to approval of conditional uses in RPC’s. So
since [Lowe’s] application is neither of those that
refer  to  the  Section,  it’s not  applicable  to  this
particular transaction [currently being addressed].
As long as we’re on the topic with what goes on
with the commercial site plan review and public
comments, I would draw the Chair’s attention that
I believe it was when this originally came up in
1998, I drafted a letter and forwarded it to the Chair
and  all  members  of  the  Commission  about
9  Mr. Schrader is Counsel to the Commission.
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Lowe’s Home Ctrs., Inc. v. Sussex County Planning and Zoning Comm ’n
C.A. No.   99C-07-014
July 30, 2002
commercial site plan review and how it functions.
In that letter without giving you all the gory detail,
I refer to the fact that under  219 of the County
Code, there are certain uses that are subject to site
plan review by the Commission.   However, under
219(D), no public hearing shall be required.   The
language then does not obligate this Commission to
hold a public hearing on a commercial site plan
review.   Although if the Commission chose to do
so,  it  could  accept  public  comment  that  was
pertinent to the actual requirements of the site plan
and  review.     I  would  believe  that  that’s  still
applicable for what we are going back to do is
amend the original site plan so I don’t know of any
real reason why this should lead to a public hearing
and  if  the  Commission  chose  to  take  public
comment, it’s a privilege that would be extended by
the  commission  and  within  the  commission’s
decision making power.10
18.                                                                                        “The standard of review in determining whether the zoning action of
local government is appropriate is whether the zoning authority has acted in a
manner that can be characterized as arbitrary and capricious.”11  It is very clear from
the record that the Commission properly exercised its discretion regarding the
holding of a public hearing in this case.   The Commission did not consider the
10  See Plf.’s Mem. in Support of Mot. for Summary Judgment, Exh. 3, Tr. of Planning and
Zoning Comm’n Hr’g on April 22, 1999 (emphasis added).
11  Concord Towers, Inc. v. McIntosh Inn of Wilmington, Inc., 1997 WL 525860 at *6 (Del.
Ch.).
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Lowe’s Home Ctrs., Inc. v. Sussex County Planning and Zoning Comm ’n
C.A. No.   99C-07-014
July 30, 2002
opinions of opposing parties, nor did it enter their letters into the record.   Mr.
Schrader,  as  attorney  for  the  Commission,  simply  reviewed  them  for  the
Commission and informed the Commission they were irrelevant.
19.                                                                                     “There  was  nothing  improper  in  the  [Commission]  consulting  its
attorney before making a decision on the merits of this [application].”12   Likewise,
“[t]here is nothing in the transcript to evidence that the [Commission’s] attorney
was doing anything more than reviewing the facts and options,” 13  as well as
informing  the  Commission  that  some  unrelated  letters  had  arrived  from  the
community.   Lowe’s due process rights were not violated by the mere mention of
the receipt of irrelevant opposing letters.   The record is pellucid regarding the
material facts.   The letters from the Citizens’ Coalition, and from Mr. Bradley, did
not address the issue of the revised site plan and the Commission did not consider
them.
20.                                                                                     Because the record shows that the Board did consider the technical
requirements of the Code , and whether or not the Lowe’s revised site plan complied
with them (thus meeting the requirements of § 115-219), the Commission did not
act arbitrarily and capriciously when it did not consider testimony from Lowe’s.
WHEREFORE, the Motion of Lowe’s Home Centers, Inc. for Summary
Judgment is DENIED, and the Cross Motion of   Sussex County Planning and
12  Beaston v. BOA Sussex County, 1991 WL 215651 at *4 (Del. Super. Ct.).
13  Id.
10




Lowe’s Home Ctrs., Inc. v. Sussex County Planning and Zoning Comm ’n
C.A. No.   99C-07-014
July 30, 2002
Zoning Commission is GRANTED.
IT IS SO ORDERED.
/s/  William L. Witham, Jr.
J.
WLW/dmh
oc:    Prothonotary
xc:    Order Distribution
11

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