Agenda - Planning Commission - 06/06/1995

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Page 2 -- May 15, 1995 Z.B. . Rezoning ' PropertY Down-Zoned After Plans Approved Acierno v. Cloutier, 40 E3d 597 (Delaware) J994 In the early 1970s, 38 acres of land in New Castle County, Del., was zoned as a diversified planned unit development. In 1974, the county approved a major land development plan to'build on the. property a 322-unit apartment complex and a small commercial development. Ten years later, Acierno bought the land for $900,000, relying partly on its zoning and major development plan approval. Before closing, the planning department issued him a letter stating that the land was still zoned for a planned unit development and the approved plan was current. In 1985, Acierno filed a revised development plan. In response, the county council asked the planning department whether it should void the existing ap- proved plan under a "sunsetting" provision that allowed the council to void a plan if there was no construction within five years of the plan's approval. The planning department did not recommend xroiding the plan because it found the property had adequate traffic, water, and sewer capacity. Therefore, the coun- cil had to leave the plan in effect. In 1986, Acierno's revised and updated plan was approved and recorded. Another revised plan was approved and recorded in 1988. By then, Acierno had spent more than $1 million on mortgage interest, engineering' fees, and property taxes. However, he had not yet gotten a building permit. In 1991, the county council again asked the planning department whether Acierno's plan should be voided under the 5-year sunset provision. The First Assistant County:Attorney advised the council that it could void Acierno's plan, but this advice was based on legislation that had never been enacted (it had only been considered). In 1992, after notifying Aciemo about an access road problem and holding a public hearing, the county council passed an ordinance that voided the ap- proved plan. Soon after, the council issued public notices of a hearing on re- zoning the property residential (which was What it had been before 197i). The ordinance' that.got enacted as a result was less restrictive regarding minimum lot sizes than the proposed one. The rezoning caused Acierno to suspend plans to develop a large apartment building, because-the new zoning classification only allowed less intensive uses. · Acierno sued the county, the council members, 'and the'First Assistant County Attorney. He claimed that they violated his federal .equal protecti6n 'and due proce, ss rights by down-zoning h!s proPerty. The council members asked for judgment without a trial, claiming legislative and qualified immunity from suit. The attorney asked the court to dismiss the case against him, claiming qualified immunity. The court rejected these requests, and the officials appealed. DECISION: Reversed, in favor of the officials. The council members and the attorney were-immune from liability. Be- cause the down-zoning of Acierno's' property was a legislative act undertaken