Code Interpretation

Interpreting the Code Provisions

 A.   Ascertain and give effect to the legislative intent

 B.   Principles of statutory construction generally apply with equal force to municipal ordinances

 C.   When a code provision is clear and unambiguous, there is no need for interpretation

 D.   A code provision should be read in the aggregate rather than in parts – each section should be read in light of all others to produce a harmonious whole

 E.   No words in the code should be construed as surplusage if there is a reasonable construction which would give them meaning and ascribe a purpose to the use of the language if reasonably possible

 F.    Literal or perceived interpretations which yield mischievous or absurd results are to be avoided

 See Pizzadili Partners, LLC v. Kent County Board of Adjustment, 2016 WL 4502005, (Del. Super. Aug. 26, 2016).

G.    Helpful Canons of Statutory Construction:

 ·         Nothing is to be added to what the text states or reasonably implies (casus omissus pro omisso habendus est)

 ·         The expression of one thing implies the exclusion of others (espressio unius est exclusion alterius)

Pertinent Facts

 A.    Known Facts:

 ·         The Code provides definitions for a “convenience store,” “filling or service station,” and, a “fuel station.”  See § 115-4 (Definitions and Word Usage).

 ·         Neither a convenience store or a filling or fuel station are listed as either a permitted or conditional use in Zoning District AR-1.

 ·         A service or fuel station or convenience store is specifically listed as either a permitted or conditional use in an Urban Business District, a Neighborhood Business District, a Business Community District, a Business Research District, a General Commercial District, a Commercial Residential District, a Medium Commercial District, a Heavy Commercial District, a Planned Commercial District, and a Limited Industrial District.

 ·         The parcels related to this CU application are all located in the Coastal Zone.

 ·         The parcels related to this CU are located in Investment Areas 2, 3 and 4.

 ·         Sarah Run crosses through the CU related parcels and empties into Herring Creek.

 ·         A designated wellhead protection area is located partially on the parcels related to this CU application.

 ·         The wellhead protection area serves or otherwise impacts approximately ___________ nearby residents.

 ·         The County has recently purchased nearby land for preservation purposes (234-11.00-56.04 and 234-11.00-56.11).  The recorded deed for Parcel 234-11.00-56.04 provides that the parties understand that “[t]his property is located in the vicinity of land used primarily for agricultural purposes on which normal agricultural uses and activities have been afforded the highest priority use status.”  The recorded deed for Parcel 234-11.00-56.11 contains the following deed restriction:  “No residential/commercial development of the property to occur before 2040.”

B.   Facts to be Developed:

 ·         The importance of protecting the nearby wellhead, the number of residents it serves and the affected communities.

 ·         The role/mission of the Delaware Center for Inland Bays in this application, particularly with respect to the impact on the land recently purchased by the County to protect the area’s water resources, to include the Inland Bays.

 ·         The role/mission of the Sussex County Land Trust in this application, particularly with respect to the impact to the land recently purchased by the County to protect the area’s water resources, to include the Inland Bays.

 ·         The role of the Sussex County Council in this application as it relates to the impact to the land recently purchased by the County to protect the area’s water resources, to include the Inland Bays (Public Trust Doctrine and parens patriae obligation to the general public).

 ·         The significance, if any, regarding the projects location in the designated Coastal Zone (while arguably not an industrial use, the designation of this area for special protection may be an important factor for the decision-makers to consider.

 ·         Likely or potential adverse impacts:  Traffic, Crime, Environmental.  Should be fact-based assertions or supported by professional studies.  This item is typically addressed through expert witnesses, but lay testimony/comments that are fact-based and supported by professional studies can overcome the NIMBY criticism.

 ·         The topography of the land as it relates to the proposed CU use and whether it is an important factor to address insofar as its impact on the operation of the proposed project (e.g., fuel trucks entering/existing onto Angola Road) and its impact on the environment (e.g., spilled fuel running downhill into Sarah Run, Herring Creek and eventually into the Inland Bay.

Issues Presented

 Should use the IRAC (Issue, Rule, Analysis, Conclusion) format.

 ·         Is a convenience store/service or fueling station a prohibited use in an AR-1 Zoning District?  Example:

 Uses not specifically listed are prohibited (115-15) unless the contrary is clear from the context of the list or other code provisions.  The convenience store/service or fueling station is not a listed permitted or conditional use in an AR-1 District, nor is the contrary clear from the listed uses or other Code provisions.  The convenience store/service or fueling station is, therefore, a prohibited use in an AR-1 Zoning District.

 ·         Alternatively, does the omission of a convenience store/service or fueling station as either a permitted or conditional use in an AR-1 Zoning District create a rebuttable presumption that this use is prohibited unless and subject to the applicant demonstrating by substantial evidence that the use is clear from the listed uses for the AR-1 Zoning District or another Code provision?

 ·         Does the Mission of the Delaware Center for Inland Bays require it to participate in this matter to protect the area’s water resources, to include the Inland Bays, from adverse impact?

 ·         Does the Mission of the Sussex County Land Trust require it to participate in this matter to protect the recently purchased nearby land for preservation purposes?

 ·         Does the Sussex County Council have an obligation to ensure its investment made on behalf of the public in the form of land purchased for preservation purposes is protected from adverse impact?

 ·         If evidence, in the form of professional studies, is introduced into the record that shows that the installation of a convenience store/service or fueling station  increases traffic and crime and decreases property values, what burden of proof and persuasion does the applicant have to meet in order to rebut such evidence and affirmatively show that the CU sought is essential and desirable for the general convenience and welfare of the residents?

 ·         What form of public comment is deemed acceptable as it relates to the opposition of the proposed CU?

 ·         Would the granting of the CU in this matter have a detrimental affect on the County’s efforts to encourage land owners to donate or sell their land for preservation purposes due to the real or perceived adverse impact the CU would have on the nearby land purchased by the County for preservation purposes?