Brockstedt v. Sussex County Council

771 F.Supp.2d 348

Chase T. BROCKSTEDT and Kelly T. Brockstedt, Plaintiffs,

v.SUSSEX COUNTY COUNCIL, Vance Phillips, George Cole, Joan Deaver, Michael Vincent, and Samuel Wilson, individually and in their capacity as Members of Sussex County Council, Defendants.

C.A. No. 10–335–MPT.

United States District Court, D. Delaware.

March 22, 2011.

Chase T. Brockstedt, Esquire, Bifferato Gentilotti, LLC, Lewes, DE, for Plaintiffs.Daniel A. Griffith, Esquire, Whiteford Taylor Preston, LLC, Wilmington, DE, for Defendants.

MEMORANDUM OPINION

THYNGE, United States Magistrate Judge.I. INTRODUCTION

The court now considers a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) filed by individual defendants Vance Phillips, George Cole, Joan Deaver, Michael Vincent, and Samuel Wilson (“defendants”).¹ The parties completed briefing on these issues on July 19, 2010.² For the reasons stated below, the motion is denied.³

II. BACKGROUND

Chase and Kelly Brockstedt (“plaintiffs”), filed this declaratory judgment action against the Sussex County Council (“County Council”) and its five members, alleging the improper denial of their application for a conditional use of land permit to construct two 7,500 square foot office buildings for professional, office, medical, and dental uses on three connected lots located in Lewes, Delaware, comprising 1.337 total acres of real property which is zoned AR–1 Agricultural.⁴ Plaintiffs' permit application was unanimously recommended for approval by the Planning and Zoning Commission with certain enumerated conditions.⁵

Three hearings were held before County Council in connection with plaintiffs' permit application.⁶ A primary issue during the hearings was the number of equivalent dwelling units (“EDUs”) required for plaintiffs' proposed project in light of the property's inclusion in the West Rehoboth Expansion Area sewer district. Because of the AR–1 zoning, plaintiffs' property is allocated 5.36 EDUs based on the system design assumption of four EDUs per acre. Plaintiffs' project required an additional 6.64 EDUs to satisfy the required one EDU per 1,000 square feet of commercial space. Various County Council members expressed concern over this potential expansion due to its future effect on the current wastewater infrastructure, and additional information was sought from Sussex County Engineering.⁷

In addition, Mayor Ford of the City of Lewes sent a letter to the Chairman of the Planning and Zoning Commission opposing the project based on the aesthetic impact to the surrounding area and community at large. Plaintiffs were not copied on the letter and learned about it from a newspaper article.⁸ The letter was not part of the proceedings before the Planning and Zoning Commission and was not part of the initial hearing record before County Council. However, the County Attorney, J. Everett Moore (“Moore”), opened the closed record at a subsequent hearing on plaintiffs' application to receive the Mayor's letter.⁹ Although plaintiffs filed a response to both the Mayor's letter and the EDU issue, their response was not brought to the attention of County Council until after a formal vote was taken on the permit application, which resulted in its denial by a three to two vote.¹⁰ At that point, Moore allowed a redacted portion of plaintiffs' response, addressing only the Mayor's letter, to be admitted into the record.¹¹ The following is the relevant portion of the transcript of the County Council meeting on February 9, 2009, immediately after the last vote was cast regarding plaintiffs' permit application:

MR. MOORE: Mr. President, could I address one additional item in regards to this matter.

MR. PHILLIPS: Yes

MR. MOORE: Mr. Lank had indicated that there was an additional letter and would it happen, this was on—even though it wasn't reported to you, it was part of the record.

MRS. DEAVER: Yes it was.

MR. MOORE: The record from Lewes. I made a determination, there was a letter from the town of Lewes, it did not go through the proper channels and get to us properly, however it did get to the Chairman of the Planning and Zoning Commission within time. So I made a ruling that it was going to be allowed as part of the record. In accordance with that, however, Mr. Brockstedt was unable to respond because he didn't see it because it went to a different agency. He sent a response. But when he responded, he responded to many other items besides just the issue of the Lewes letter. I likewise, just as [I] allowed the Lewes letter in, I took his letter. And as you can see I have redacted everything else that he said that did not apply specifically to the Lewes letter, because I did not think likewise it was proper for other items to come in. This too is part of the record.

MRS. DEAVER: Well, if that came in, how come I didn't get a copy of it?

MR. MOORE: It came in to me and I was going to read it into the record after I redacted this.

MRS. DEAVER: I would like to have known about it.

MR. COLE: We didn't get a chance.

MRS. DEAVER: When did it come in?

MR. MOORE: His letter was December 28th, but I did not receive it at that point. I couldn't tell you when I received it right now. But we did get it. I looked at it to discuss whether—because I didn't want the Council to have it until I determined whether or not it should be part of the public record.

MR. COLE: In the future then this Council should maybe tried [sic] to be considerate of stuff like that because it is important for both parties to be heard. So maybe from now on if we get to this point, folks, that we have a little flexibility here and we are knowledgeable that maybe Marge is holding some information, we should at least hear it and give everybody a fair shake.

MRS. DEAVER: I also have another—there was another case where a letter came in after the fact, after a hearing, and it's in the file. In another application. And I did not get a copy of it, I just heard about it.

MR. MOORE: If one came in on another matter, I am unaware of it.

MR. LANK: We get a lot.

MRS. DEAVER: Yes, a lot of them come in.

MR. LANK: But they are after the record is already closed so we just leave it in the file because it's dated and stamped now, we have a special stamp just for that purpose to show it came in late.

MRS. DEAVER: So it's not made part of the record just because it's in the file.

MR. MOORE: That's correct.

MRS. DEAVER: But you ruled that Mr. Brockstedt's could be made part of the record.

MR. MOORE: Because we did even though—

MRS. DEAVER: I understand.

MR. COLE: The County agency received it. It was just at the wrong department or something.

MR. MOORE: Right.

MR. COLE: But it was sent and received in the proper timeframe.

MR. VINCENT: I understand.

MR. MOORE: And then I redacted everything else he addressed in the record.

MRS. DEAVER: Thank you.

MR. LANK: Just because it was the first letter that came in from the city of Lewes, so it went directly to Mr. Wheatley. There wasn't any copies sent to Dave or myself, there wasn't any in the file. When you asked the question at the public hearing on the 1st, my answer was no, I hadn't received any. And we found out a day later that Mr. Wheatley had received it, and he had properly assumed that it was a copy of a letter that we had received. But we hadn't received it. We didn't receive it until—he received the day of the hearing or the day before. And we didn't know it until Wednesday or Thursday after.

MR. WILSON: I don't see any purpose of this letter being such a big thrust here of importance because I don't think one of us on this Council on that one letter would have changed our vote.

MR. MOORE: No, I'm not saying—

MR. LANK: I wanted to make sure Ms. Deaver was aware of it because she asked if we had one.

MR. WILSON: Not going to change it. If you said, well, if I had had that letter I would have voted different, then we got something here to argue about. But, all of us have voted the way we're going to vote. So why don't we go on.

MR. PHILLIPS: Well, at this point I think we do need to go on. If this issue becomes an issue based on an appeal be the applicant, we will address it in the future.¹²

Through their petition for declaratory judgment, plaintiffs seek a finding that the denial of their application was not supported by substantial evidence, was arbitrary and capricious, and constituted a denial of their due process rights. Plaintiffs also request the immediate approval of their permit application by County Council, as well as economic damages, attorneys' fees and costs.

In their motion to dismiss, defendants contend that qualified immunity applies, and therefore, plaintiffs cannot seek monetary damages against them in their individual capacities under either Delaware state tort law or federal civil rights theories.¹³

In response, plaintiffs contend that their claim against defendants, in their individual capacities, centers on the denial of due process rights. Specifically, plaintiffs argue that they were not provided an opportunity to respond to new facts, testimony, and evidence accepted by County Council after the public hearing was closed and a vote was taken on their application without the benefit of their response. Plaintiffs assert that the right to be heard is clearly established and, therefore, government officials, like County Council members in their individual capacities, are not entitled to qualified immunity.

III. DISCUSSIONA. Standard of ReviewMotion to Dismiss for Failure to State a Claim Upon Which Relief can be Granted—Declaratory Judgment

Fed.R.Civ.P. 12(b)(6) permits a party to move to dismiss a complaint for failure to state a claim upon which relief can be granted. The purpose of a motion under Rule 12(b)(6) is to test the sufficiency of the complaint, not to resolve disputed facts or decide the merits of the case.¹⁴ “The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims.” ¹⁵ A motion...