Agenda - Planning Commission - 12/03/2009

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() () C) Zoning Bulletin October 10, 20091 Volume 31 No. 19 that the use of the Property as a fraternity or sorority house was now banned by the Newark Zoning Code (the "Code"). Under the Code, fra- ternities and sororities were nonconforming uses. (The Code had been revised years prior to prohibit them in residential areas in the city.) Sec- tion ,?2-51(b) of the Code provided that a fraternity that. was suspended by the University for a period of more than one year "shall vacate the building." It also provided that the building's use as a fraternity "shall be terminated immediately upon such University suspension." The -Landlords appealed to the city's Board of Adjustment (the "Board"). The Board upheld the building department's decision. The LalJ.dlords appealed to superior court. Among other things, they argued that S 32-51(b) essentially gave the University the "power to de- cide who can and cannot operate a fraternity on property within the [c] ity ...." They asserted that was an unconstitutional delegation of the city's legislative powers. The Landlords further claimed that the city's enforcer;nent of S 32~51(b) deprived them of a property interest with~ out due process of law in violation of the Fourteenth Amendment of the United States Constitution. The superior court rejected the Landlords' cla{ms. The Landlords appealed. DECISION: Affirmed. The Supreme Court of Delaware held that S 32-51(b) was not an un- constitutional delegation of the city's legislative powers. The court also held that the Landlord's were not deprived of their right to due process. On the first issue, the court explained that it would be an unconsti- tutional delegation of legislative powerS if a zoning ordinance: delegated such powers "to the arbitrary or capricious will of any person or group of persons." Thus, for example, a zoning ordinance that gave a zoning board of adjustmeIit uncontrolled zoning authority with no standards and guidelines woi.1ld be unlawful. In order to avoid unlawful delegation, a zoning ordinance must: provided sufficient standards and guidelines for administration of the zoning policy. Here, disagreeing with the Landlords' contention, the court found that S 32-15 (b) did not delegate any legislative function to the Univer- sity. It did not authorize the University to take the "legislative" action of establishing residential zones or prohibiting fraternity use in residential zones. Moreover, the University's decision to suspend PiKA was neither a legislative nor a zoning decision; it was a "quasi-judicial act within the power entrusted to the University by state law." Although, under S 32- 15(b), the University's decisions could have zoning consequences, "those collateral effects [did] not transform the University's quasi-judicial deci- sion into an exercise of the [c]ity's legislative function." . As to the Landlords' due process rights, the coUrt: explained that land- owners were entitled to "substantive and procedural due process of law where a lawful land use may potentially be lost.". The Landlords claimed @ 2009 Thomson Reuters 3 85