Does a planning commission have to post a meeting notice sign at the property being rezoned, or just at its own office?

Official title

16-IB24 11/17/2016 FOIA Opinion Letter to Mr. Michael Heyman re: FOIA Complaint Concerning the Newark Planning Commission

Plain-English summary

A Newark resident complained that the Planning Commission's notice of a hearing on a proposed 37-unit townhouse development was inadequate, focusing on a sign posted near the property at the intersection of Briar Creek and Valley Road, which he argued was poorly placed and left many neighbors unaware of the meeting. The Commission responded that it had also posted the agenda at its principal office in the Newark Municipal Building, advertised the meeting in the local newspaper, mailed notice to property owners within 300 feet, and posted the agenda online, all in the days leading up to the hearing.

The AG found no FOIA violation. FOIA's notice statute requires conspicuous posting at the public body's principal office, and only requires posting at the meeting location itself if no principal office exists; it does not require posting a sign at the property that is the subject of a land-use application at all. Because the Commission conspicuously posted notice at its own building, which also happened to be where the meeting was held, and separately advertised in the newspaper, mailed notice to nearby property owners, and posted online, the AG concluded the Commission made a "reasonable number" of notices available and fully satisfied FOIA's requirements, regardless of how visible the sign near the development site was.

Currency note

This opinion was issued in 2016. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Does a planning commission have to post a notice sign at the property being rezoned or developed?
A: No, according to this opinion. FOIA does not require posting notice on the property that is the subject of a land-use application; it requires conspicuous posting at the public body's principal office (or the meeting location, if there's no principal office).

Q: If a notice sign near a development site is hard to see, does that violate open-meetings law?
A: Under this opinion, not necessarily, since FOIA's notice requirement doesn't turn on posting at the site in the first place. What matters is whether the public body conspicuously posted notice at its own principal office and made a reasonable number of notices available through other channels.

Q: What counts as a "reasonable number" of notices under FOIA?
A: This opinion treated newspaper advertising, direct mail to nearby property owners, posting at the public body's building, and posting the agenda online as, together, satisfying the "reasonable number of notices" requirement, though the opinion did not say all of those channels are individually required in every case.

Q: Does this determination affect whether other laws might require notice to nearby property owners for a rezoning?
A: No. The opinion is limited to whether the Commission complied with FOIA, and expressly does not address whether some other statute or regulation, such as a zoning ordinance, might impose separate notice requirements for land-use applications.

Background and statutory framework

FOIA requires public bodies to give at least seven days' notice of regular meetings, including the agenda, date, time, and location, 29 Del. C. § 10004(e)(2). That notice must include, at minimum, "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," along with making "a reasonable number of such notices available," 29 Del. C. § 10004(e)(4). The opinion applied the Delaware Court of Chancery's construction of that subsection in Ianni v. Dep't of Elections of New Castle Cty., which read the "reasonable number of notices" language as a requirement distinct from, and in addition to, the principal-office posting requirement.

Citations and references

Statutes:

• 29 Del. C. §§ 10001-10007, the Freedom of Information Act
• 29 Del. C. § 10004(e)(4), conspicuous posting at the principal office and reasonable-number-of-notices requirement
• 29 Del. C. § 10004(e)(2), seven-day notice, agenda, date, time, and location requirements

Cases:

• Ianni v. Dep't of Elections of New Castle Cty., 1986 WL 9610, at *5 (Del. Ch. Aug. 29, 1986), Section 10004(e)(4) requires a reasonable number of notices in addition to public posting

Source

• Landing page: https://attorneygeneral.delaware.gov/2016/11/17/16-ib24-11172016-foia-opinion-letter-to-mr-michael-heyman-re-foia-complaint-concerning-the-newark-planning-commission/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2016/11/AG-Op.-No.-16-IB24.pdf

Original opinion text

PRINT VERSION: Attorney General Opinion No. 16-IB24

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE

Attorney General Opinion No. 16-IB24

November 17, 2016

VIA EMAIL AND U.S. MAIL

Michael Heyman

90 Mason Drive

Newark, DE 19711

[email protected]

RE:     October 3, 2016 Correspondence Regarding Newark Planning Commission [1]

Dear Mr. Heyman:

On October 3, 2016, [2] the Delaware Department of Justice (“DOJ”) received your petition (“Petition”) requesting our determination, pursuant to the Freedom of Information Act, 29 Del. C. §§ 10001-10007 (“FOIA”), of whether the Newark Planning Commission (the “Commission”) violated FOIA’s open meetings provisions in connection with its August 2, 2016 meeting.  By letter dated October 5, 2016, and pursuant to our routine process in responding to petitions for determination under FOIA, we invited the Commission to submit a written response to the Petition.   We received the Commission’s response (“Response Letter”) on October 12, 2016.  We have reviewed the Petition and the Response Letter.  Because we are satisfied that the Commission complied with 29 Del. C. § 10004(e)(4), we conclude that the Commission did not violate FOIA as alleged in the Petition.

BACKGROUND

On July 19, 2016, the agenda for the Commission’s August 2, 2016 meeting was published in the classified section of the News Journal.  The agenda contained the date, time, and location of the meeting, which was to be held on August 2, 2016 at 7:00 PM in the Newark Municipal Building at 220 South Main Street, Newark, Delaware, which is also the Commission’s principal office.  Among other things, the agenda included the following: “Review and consideration of an annexation, rezoning and major subdivision with site plan approval for 0 Valley Road and 308, 309, 310, 312 Mason Drive, to be known as Briar Creek North, to construct 37 townhouse style units at the site.”

On July 22, 2016, the Commission sent notice to Delaware property owners within 300 feet of the property.  The notice indicated that the Planning and Development Department had received an application for the annexation, rezoning and major subdivision with site plan approval for the property.  The notice provided the date, time, and location of the meeting and invited the property owners to attend the meeting.  The notice also invited the property owners to review the plans in person at the Municipal Building during regular business hours, or online beginning one week prior to the meeting.

On July 26, 2016, City of Newark Secretary Renee Bensley posted the agenda on the bulletin board in the lobby of the City of Newark Municipal Building.  That same day, the agenda was also posted to the City of Newark’s website with links to the proposed plan.

At some point prior to the meeting, the agenda was also posted at or near the subject property; specifically, on a sign at the intersection of Briar Creek and Valley Road.

The meeting was held as scheduled on August 2, 2016.  Numerous individuals spoke both in support of and in opposition to the proposal.

SUMMARY OF ARGUMENTS

You allege that the Commission’s public notice on a sign on Valley Road “was ineffective and did not meet the standards of FOIA.”  Specifically, you allege that the placement of the sign at Briar Creek and Valley road “placed an unreasonable burden on citizens to read it” and left numerous residents unaware of the August 2, 2016 meeting.

In its Response Letter, the Commission maintains that it satisfied FOIA’s notice requirements by: 1) posting the agenda in the City of Newark Municipal Building on July 26, 2016 2) advertising the meeting in the July 19, 2016 edition of the News Journal, 3) mailing notice to property owners within 300 feet on July 22, 2016, and 4) posting the agenda to the City of Newark website on July 26, 2016.  The Response Letter included a sworn affidavit of City of Newark Secretary Renee Bensley regarding the events of July 26, 2016, a copy of the July 19, 2016 News Journal ad, and a copy of the July 22, 2016 letter to residents.

APPLICABLE LAW

Public bodies must give notice of their regular meetings at least 7 days in advance thereof. [3]   Such notice “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.” [4]   For noncounty and nonmunicipal public bodies, as well as public bodies in the executive branch of government, public notice must also be posted to a designated website. [5]   The notice shall include the agenda and the date, time, and location of the meeting. [6]

DISCUSSION

Here, the Response Letter makes clear that the Committee satisfied FOIA’s requirement of “conspicuous posting” by posting timely notice of its meeting at the City of Newark Municipal Building, which is the principal office of the Commission. [7]   FOIA does not, as the Commission correctly notes, require the posting of public notice on property which is the subject of a land use application. [8]   Indeed, “[t]he purpose of requiring conspicuous posting of notice at the public body’s principal office ‘is to ensure that no member of the public will have to search out to discover public meetings.’” [9]   Moreover, while FOIA only requires that notice be posted at the place of the meeting where no principal office exists, [10] we also note that the City of Newark Municipal Building is both the principal office of the Commission and the place where the meeting was held.  We also find that the Commission made a reasonable number of notices available to the public by:  1) advertising the meeting in the July 19, 2016 edition of the News Journal, 2) sending timely notice to all property owners within 300 feet of the subject property, and 3) posting the agenda to the City of Newark’s website.  We believe these actions satisfy the notice provisions of FOIA. [11]

CONCLUSION

Based on the foregoing, because the Commission fully complied with 29 Del. C. § 10004(e)(4) in connection with its August 2, 2016 meeting, it is our determination that the Commission did not violate FOIA as alleged in your Petition.

Very truly yours,

/s/ Michelle E. Whalen

Michelle E. Whalen, Deputy Attorney General

APPROVED BY:

/s/ Aaron R. Goldstein

Aaron R. Goldstein, State Solicitor

cc:

Bruce Herron, Newark City Solicitor (via email)

Danielle Gibbs, Chief Deputy Attorney General (via email)

Jennifer R. Noel, Deputy Attorney General (via email)

[1]           Although your Petition alleges specifically that the Newark City Council violated FOIA, we note that the Commission is a separate public body.

[2]           We received your initial correspondence on September 30, 2016, and your supporting documentation on October 3, 2016.  As such, we consider October 3, 2016 to be the date of receipt.

[3]           29 Del. C. § 10004(e)(2).

[4]           29 Del. C. § 10004(e)(4); Ianni v. Dep’t of Elections of New Castle Cty. , 1986 WL 9610, at *5 (Del. Ch. Aug. 29, 1986) (“Subsection 10004(e)(4) required that in addition to a public posting, the public body shall make a ‘reasonable number of such notices available.’”).

[5]           Id .

[6]           29 Del. C. § 10004(e)(2).

[7]           See 29 Del. C. § 10004(e)(4); see also Del. Op. Att’y Gen. 13-IB10 (Dec. 6, 2013) (notice posted on door of suite within commercial office building where board’s office/meeting space located).

[8]           As this determination is limited to a determination of whether the Commission has violated FOIA, it does not address whether or to what extent some other statute or regulation might require such notice.

[9]           Del. Op. Att’y Gen. 07-IB24 (Dec. 27, 2007) (quoting Del. Op. Att’y Gen. 06-IB09 (Apr. 25, 2006)).

[10]         29 Del. C. § 10004(e)(4) (requiring conspicuous posting “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”) (emphasis added); see also Del. Op. Att’y Gen 06-IB09 (posting notice at place of meeting not required so long as notice is posted at the public body’s principal office).

[11]         See Del. Op. Att’y Gen. 13-IB01 (Mar. 26, 2013) (“FOIA § 10004(e)(4) establishes two minimum notice requirements: (1) that the public body post a meeting notice at the public body’s principal office, or , if no such office exists, at the regular meeting place; and (2) that the public body make a reasonable number of such notices available.” (citing Ianni , 1986 WL 9610, at *5)).