Delaware Department of Justice
Attorney General
Kathy Jennings

96-IB24: FOIA-Sussex County Council; Board of Adjustments & Planning and Zoning Office

Civil Division – New Castle County
July 9, 1996
Del. Op. Atty. Gen. 96-IB24 (Del.A.G.), 1996 WL 517409
(determining that (a) AG lacked jurisdiction over whether director of planning and zoning exceeded his authority and (b) public bodies did not violate FOIA’s open meeting requirements where there was no proof that a meeting was held with respect to special use exception)
Ms. Mattie Burton
RD 525
RD 4, Box 348 A
Seaford, DE 19973
Re: Freedom of Information Act Complaint
against Sussex County Council, Board of
Adjustment, and Planning and Zoning Office
Dear Ms. Burton:
Pursuant to 29 Del. C. Section 10005(e), the Office of the Attorney General makes the following written determination of whether a violation of the Freedom of Information Act (“FOIA”) occurred or is about to occur.
On June 17, 1996 we received your letter of complaint dated June 10, 1996. By letter dated June 18, 1996, we asked the Sussex County Council (the “Council”) to respond to your allegation of a violation of FOIA. By letter dated June 28, 1996, the attorney for the Council responded, which letter he copied to you.
Your complaint states that the Sussex County Planning and Zoning Office (“Planning and Zoning Office”) gave “the okay or amendment” to Kaye Construction “to install fuel storage tanks for his operation,” and that this “was done without a public forum or opportunity for comment from the public.”
You refer to a decision of the Board of Adjustment of Sussex County (“Board of Adjustment”), In re Edward J. Kaye, Case No. 5780-1995 (Nov. 8, 1995). In that decision, the Board of Adjustment considered an application, with conditions, for a special use exception to operate an asphalt batching recycling plant. Although the Board of Adjustment granted the application, it reaffirmed a previous decision by the Council prohibiting the use of a separate fuel storage tank. Specifically, the Board of Adjustment decision provides that “[t]he applicant shall utilize fuel tanks on the equipment only, and that there be no fuel storage tank on-site.”
The Pertinent Statutes
29 Del. C. Section 10002(a):
“Public body” means, unless specifically excluded, any regulatory, administrative, advisory, executive, appointive or legislative body of the State, or of any political sub-division of the State, including but not limited to, any board, bureau, commission, department. agency, committee, ad hoc committee, special committee, temporary committee, advisory board and committee, subcommittee, legislative committee, association, group, panel, council or any other entity or body established by an act of the General Assembly of the State, or established by any body established by the General Assembly of the State, or appointed by any body or public official of the State or otherwise empowered by any state governmental entity, which: (1) Is supported in whole or in part by any public funds; or (2) expends or disburses any public funds, including grants, gifts or other similar disbursals and distributions; or (3) is impliedly or specifically charged by any other public official, body, or agency to advise or to make reports, investigations or recommendations. Public body shall not include the General Assembly of the State, nor any caucus thereof, or committee, subcommittee, ad hoc committee, special committee or temporary committee.
29 Del. C. Section 10004. Open meetings.
(a) Every meeting of all public bodies shall be open to the public except those closed pursuant to subsections (b), (c), (d) and (g) of this section.
. . .
(e)(2) All public bodies shall give public notice of their regular meetings and of their intent to hold an executive session closed to the public, at least 7 days in advance thereof. The notice shall include the agenda, if such has been determined at the time, and the dates, times and places of such meetings; however, the agenda shall be subject to change to include additional items including executive sessions or the deletion of items including executive sessions which arise at the time of the public body’s meeting.
. . .
(4) Public notice required by this subsection shall include, but not be limited to, conspicuous posting of said notice at the principal office of the public body holding the meeting, or if no such office exists at the place where the meetings of the public body are regularly held, and making a reasonable number of such notices available.
You do not allege in your complaint that the Planning and Zoning Office, which is a “public body,” held a meeting which FOIA requires to be noticed and open to the public. You suggest, rather, that Mr. Lawrence B. Lank, Director of Planning and Zoning, made a decision to waive the condition of the special use exception and permit the installation of a fuel storage tank. You base that allegation on a telephone conversation on June 6, 1996 between Mr. Lank and Mr. James West of Bridgeville, Delaware.
To the extent your allegation goes to whether Mr. Lank exceeded his authority as Director of the Planning and Zoning Office, the Attorney General’s Office does not have jurisdiction over that matter under FOIA, and therefore we do not address it in this written determination.
If you are alleging that the Planning and Zoning Office, the Board of Adjustment, or some other public body held a meeting, at which time it decided to rescind the prohibition against a fuel storage tank, the facts appear to the contrary. The attorney for the Council spoke with Mr. Lank, who assured “that neither the Sussex County Council, the Sussex County Board of Adjustment, nor the Sussex County Planning & Zoning Commission have taken any action subsequent to November 8, 1995, with respect to Case No. 5780. There has been no meeting of members of any public body of Sussex County with respect to these allegations, and there likewise has been no decision by the members of any public body of Sussex County with respect to this issue.”
Indeed, in his letter to you dated June 7, 1996, Mr. Lank confirmed that “[a]n investigation into the Kaye Construction site is on-going and will continue to be monitored.” As part of that monitoring process, Mr. Lank has already warned Mr. Kaye that any fuel tank must be a primary part of the operation of the equipment on the premises, and not permanently on-site.
Based on our review of your complaint, the documents provided to us, and the response of the attorney for the Council, we conclude that there has not been a violation of FOIA.
I note in your letter of June 13, 1996 that you “have obtained an attorney, Mr. John A. Sergovic, Jr., 9 North Front St, Georgetown, DE 19947, to advise us legally in this matter.” Any legal remedies that may be available to allay your concerns regarding the Kaye Construction property should be addressed to your private attorney.
W. Michael Tupman
Deputy Attorney General
Michael J. Rich
State Solicitor
cc: Peter B. Jones, Esquire
John A. Sergovic, Jr., Esquire
Elizabeth A. Bacon, Opinion Administrator

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