October 1, 2002
Civil Division-Kent County
Via Facsimile & Regular Mail
Ms. Sallie Callanen
300 Bayfront Drive
Quillen’s Point
Ocean View, DE 19970
Re: Freedom of Information Act Complaint Against Sussex County Planning & Zoning Commission
Dear Ms. Callanen:
We received your letter on September 30, 2002 alleging that the Sussex County Planning & Zoning Commission (“the Commission”) violated the Freedom of Information Act, 29 Del. C. Chapter 100 (“FOIA”), and other state laws in the course of considering changes to the County’s comprehensive development plan. Because the County Council is scheduled to discuss those recommended changes at a meeting at 6:00 p.m. on October 1, 2002, we expedited our factfinding and determination on the FOIA issue.
You allege that the Commission did not provide you with “copies of the revised draft [Comprehensive Plan Update]” in violation of the public record requirements of FOIA. You also allege that the Commission violated the public notice requirements of Title 9 of the Delaware Code in connection with special meetings of the Commission on September 11 and 19, 2002.
On September 30, 2002, we asked for the County’s letter response to your complaint, which we received later that day. The County sent us the documents referenced in its letter by overnight courier, and we received them the morning of October 1, 2002.
According to the County, “[o]n August 29th, a public hearing was held by the Planning and Zoning Commission on the land use plan ordinance introduced before County Council on July 30, 2002.” The plan being considered was titled “Sussex County Comprehensive Plan Update, Draft July, 2002.” The notices for this meeting — published at least fifteen days in advance in nine Sussex County newspapers — state that “[c]opies of this proposal may be examined by interested parties in the Planning and Zoning Office, County Administrative Office Building, Georgetown, Delaware, between 8:30 a.m. and 4:30 p.m., Monday through Friday.”
The minutes of the August 29, 2002 meeting reflect that you attended the meeting and “read and submitted 6 pages of written comments” and other members of the public commented on the proposed changes as well. According to the minutes, at the end of the meeting the County Administrator asked “Mr. Shafer to make all corrections and clarifications of the text by September 10, 2002 for the Commission’s review.”
The Commission held a special meeting on September 11, 2002. The Commission posted notice of that meeting on August 30, 2002. The agenda listed under old business, “An Ordinance adopting the 2002 update of the Comprehensive Plan for Sussex County and repealing the 1997 Comprehensive Plan.”
According to the minutes of the September 11, 2002 special meeting, the County Administrator presented copies of the a revised comprehensive plan to the Commission corrected for typographical and clerical errors. Since the record had been left open for public comments since the Commission’s last meeting on August 29, 2002, the Commission reviewed comments from the Sussex County Association of Realtors and several other groups and citizens. The minutes show that the Commission then discussed a number of additional changes to the plan to recommend to the County Council at its meeting on October 1, 2002.
According to the County, the revised comprehensive plan presented at the Commission’s meeting on September 11, 2002 was “simultaneously posted on the County’s web page. Since that time, the September 11th draft has been available to the public on the County’s web page or in the Zoning office for $10, or for free for those persons exchanging their earlier draft for the later draft. . . . The Commission directed or drafted no additions to the revised draft of September 11th. This document remains the last draft of the text of the plan. No changes were made to the attached maps.” We accessed the County’s web page today and were able to download the Comprehensive Plan Update revised as of 9/11/2002.
The Commission held another special meeting on September 19, 2002 posting notice of that meeting on September 12, 2002. The agenda listed under old business, “An Ordinance adopting the 2002 update of the Comprehensive Plan for Sussex County and repealing the 1997 Comprehensive Plan.” The minutes show that the Commission discussed public comments received on the plan, and the recommended changes discussed at the of the September 11, 2002 special meeting of the Commission. The Commission then voted 5-0 in favor of recommending the “Ordinance adopting the 2002 Comprehensive Plan for Sussex County and repealing the 1997 Comprehensive Plan as discussed on September 11, 2002 and updated on September 19, 2002 with the suggestion that the supporting ordinances be considered.”
According to the secretary who provides administrative support to the Commission, she prepared the minutes of the September 11, 2002 special meeting the next day, and hand-delivered them to the Commission’s office on September 13, 2002, where they have been available to the public ever since. The secretary prepared the minutes of the September 19, 2002 special meeting on September 22, 2002, and hand-delivered them to the Commission’s office on September 23, 2002. According to a County technician, he posted copies of the minutes of those two meetings on the County’s web page on September 26, 2002.
Relevant Statutes
FOIA requires that “[a]ll public records shall be open to inspection and copying by any citizen of the State during regular business hours by the custodian of the records for the appropriate public body.” 29 Del. C. § 10003(a). “Reasonable access to and reasonable facilities for copying of these records shall not be denied to any citizen.” Id.
With certain exceptions, FOIA requires public bodies like the Commission to notice their meetings at least 7 days in advance thereof.” 29 Del. C. § 10004(e)1).
Section 6911(a) of Title 9 of the Delaware Code provides that the county government may make zoning changes, “but no such changes shall be made or become effective until the same shall have been proposed by or be first submitted to the Commission.” Subpart (b) provides that “[w]ith respect to any proposed changes, the Commission shall hold at least 1 public hearing pursuant to § 6812 of this title.”
Section 6812(a) provides that “[a]ny public hearing required by this chapter shall be held within the County and notice of the time and place thereof shall be published in 2 newspapers of general circulation in the County. Notice shall be published at least 15 days before the date of the hearing. In addition, notice of the hearing shall be posted on the property itself. The notice shall state the place at which the text and maps relating to the proposed change may be examined.”
Legal Analysis
The record shows that the Commission received a revised the Comprehensive Plan Update on September 11, 2002, and made that document available to the public both on the County’s web page, and also at the Commission’s office. The record also shows that the Commission did not make any further changes to this public record, although the Commission did discuss other changes to recommend to the County Council. Those recommended changes are memorialized in the minutes of the Commission’s special meetings on September 11 and 19, 2002. The minutes were available to the public on the County’s web page and at the Commission’s office reasonably in advance of the County Council’s meeting on October 1, 2002. We find that the Commission made these public records reasonably accessible to citizens as required by FOIA. The Commission noticed each of its meetings on August 29, September 9, and September 11, 2002 at least seven days in advance as required by FOIA. We find that the Commission
The remainder of your complaint raises legal issues about the enhanced notice requirements for making zoning changes under Sections 6911 and 6812 of Title 9 of the Delaware Code, matters which are outside the scope of the Freedom of Information Act. Because of the local nature of this dispute, we believe that the issues raised in this portion of your complaint are more appropriately resolved in court in private litigation between the County and its citizens
Conclusion
For the foregoing reasons, we determine that the Commission did not violate the public records or notice requirements of FOIA.
Very truly yours,
W. Michael Tupman
Deputy Attorney General
APPROVED
_______________________
Malcolm S. Cobin, Esquire
State Solicitor
cc: The Honorable M. Jane Brady
Dennis L .Schrader, Esquire
Phillip G. Johnson, Opinion Coordinator
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