DE 23-IB11 2023-04-06

Does a Delaware city have to post a separate online notice for a special-use permit hearing, or is the regular meeting agenda enough?

Short answer: The agenda is enough. Delaware City posted notice of its February 27, 2023 Mayor and Council meeting online with an agenda showing a 6:00 p.m. public hearing on the Marina Village special-use permit. The AG ruled FOIA does not require municipalities to post separate online notices for hearings held during regular meetings, and municipalities are not even required to post online at all.

Disclaimer: This is an official Delaware Attorney General opinion. AG opinions are persuasive authority but not binding precedent. This summary is for informational purposes only and is not legal advice. Consult a licensed Delaware attorney for advice on your specific situation.

About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official AG opinion. The original opinion (linked at the bottom of this page, or PDF in the sidebar) is the authoritative source for any reliance.

View original AG opinion (PDF)

Official title

23-IB11 04/06/2023 FOIA Opinion Letter to Jack Guerin re: FOIA Complaint Concerning the City of Delaware City

Plain-English summary

The City of Delaware City scheduled a Mayor and Council meeting for February 27, 2023, and the meeting agenda included a 6:00 p.m. public hearing on a special-use permit application for the Marina Village development by Lennar Developers. Jack Guerin petitioned, arguing the City should have posted a separate online notice for the public hearing rather than only listing it on the regular meeting's agenda.

The AG ruled for the City. FOIA's notice requirements at 29 Del. C. § 10004(e)(5) require conspicuous posting of meeting notices at the public body's principal office or where the meetings are held, with a reasonable number of copies available. They also require electronic posting on a designated state website, but that requirement applies only to "all noncounty and nonmunicipal public bodies" and to executive-branch state public bodies. Municipalities like Delaware City are not required to post any FOIA notice online at all. Delaware City did so anyway, and the agenda for the regular meeting included the hearing as an item, which the AG held sufficient.

The AG also flagged in a footnote that the opinion only addressed FOIA. Other authorities (such as the local zoning ordinance) might still impose separate notice requirements for special-use permit hearings, but those are outside the AG's petition jurisdiction.

What this means for you

For Delaware municipal officials and town clerks. A regular meeting agenda that explicitly lists a public hearing as a starting time and agenda item is sufficient under FOIA. You do not need a separate hearing notice on the website. But check your local zoning code, charter, and any applicable state land-use statute, because they may impose additional notice requirements that FOIA does not.

For Delaware residents who care about a development project. Watch the regular Mayor and Council agenda. Special-use permits, conditional-use permits, zoning amendments, and variances are usually held as public hearings during a regular meeting, and the agenda will list them with a specific start time. If the hearing is on a controversial project (like Marina Village), the agenda is your earliest practical notice.

For developers and their attorneys handling Delaware land-use applications. Take a belt-and-suspenders approach to notice. Even if FOIA does not require a separate online posting, posting the notice elsewhere (newsletter, neighbor letters, project website) reduces the risk of a future challenge and makes the public engagement smoother.

For citizens who want stronger online notice in their town. This is an issue for the local council to address by ordinance, not a FOIA matter. Your town can voluntarily commit to posting separate hearing notices online; it just isn't compelled to.

Common questions

What's a special-use permit?
A special-use permit (sometimes called a conditional-use permit) is a land-use approval that lets a property owner use the land in a way that is not automatically permitted by the zoning district but may be approved if specified standards are met. It typically requires a public hearing and a vote by the local governing body or a planning commission.

Did the agenda actually identify the hearing clearly?
Yes. The agenda listed "6:00 PM PUBLIC HEARING – Special Use Permit Application – Marina Village (Lennar Developers)." That is far above the floor for what FOIA requires. The "general statement of major issues" rule in § 10002(a) is satisfied by far less.

Is FOIA the only law that governs this kind of notice?
No. The opinion's footnote 6 explicitly acknowledges that other authorities, including local zoning ordinances and the state Subdivision and Land Development statutes, may impose additional notice requirements. The AG petition process simply does not have jurisdiction to enforce them.

What was the basis for Guerin's complaint?
The Petition asserted that the meeting notice on the City's webpage merely said "Mayor and Council Meeting" without flagging the public hearing, and that the hearing was only revealed in the linked agenda. The AG ruled that this combination is enough, because the agenda is the FOIA-required posting and contained the hearing item.

What if a municipality does post online and then forgets to post a particular meeting?
Once a municipality voluntarily uses its website for FOIA notices, it should be consistent. The AG has not held that voluntary practice creates a binding habit, but inconsistent posting can erode public trust and increase the risk that someone challenges a particular meeting's notice as defective under the conspicuous-posting requirement.

Background and statutory framework

29 Del. C. § 10004(e)(5) governs meeting-notice posting:

Public bodies must post conspicuously at their principal office, or where they regularly meet, and make a reasonable number of copies available.
Noncounty and nonmunicipal public bodies must also post electronically on a designated State of Delaware website.
All public bodies in the executive branch of state government must post on the designated state website.

Municipalities are excluded from the electronic-posting requirement. They can voluntarily use their websites for posting and frequently do, as Delaware City did here, but they are not legally compelled to.

The agenda standard is governed by 29 Del. C. § 10002(a) and the Lechliter v. DNREC line of cases: a "general statement of the major issues" suffices, with notice that alerts citizens with intense interest. A specific public hearing on an identified development project clears that bar easily.

Citations

29 Del. C. § 10004: open meetings; notice
29 Del. C. § 10004(e)(5): posting requirements; municipal exclusion
29 Del. C. § 10005: petition process and AG authority
29 Del. C. § 10005(c): burden of proof
Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021): sworn-affidavit requirement

Source

Original opinion text

KATHLEEN JENNINGS
ATTORNEY GENERAL

DEPARTMENT OF JUSTICE
820 NORTH FRENCH STREET
WILMINGTON, DELAWARE 19801

CIVIL DIVISION (302) 577-8400
CRIMINAL DIVISION (302) 577-8500
DIVISION CIVIL RIGHTS & PUBLIC TRUST (302) 577-5400
FAMILY DIVISION (302) 577-8400
FRAUD DIVISION (302) 577-8600
FAX (302) 577-2610

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 23-IB11
April 6, 2023

VIA EMAIL
Jack Guerin
[email protected]

RE: FOIA Petition Regarding the City of Delaware City

Dear Mr. Guerin:
We write in response to your correspondence, alleging that the City of Delaware City violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). We treat this correspondence as a Petition for a determination pursuant to 29 Del. C. § 10005 regarding whether a violation of FOIA has occurred or is about to occur. As discussed more fully herein, we determine that the City did not violate FOIA as alleged.

BACKGROUND
The City's Mayor and Council scheduled a public meeting for February 27, 2023 at the Delaware City Fire Company. The meeting notice was posted on the City's website, with a link to the meeting's agenda. The agenda for this meeting stated that a public hearing on the special use permit application for the Marina Village development would start at 6:00 p.m., and the regular meeting of the Mayor and Council would start at 6:30 p.m. This Petition alleges that because the City did not separately post a notice for the public hearing regarding this special use permit, the City violated FOIA. The Petition asserts that the meeting notice that appeared on the webpage containing the link to the agenda merely stated "Mayor and Council Meeting." The Petition objects that a public hearing notice was not posted on the City's website and that the hearing was merely mentioned in the agenda.

The City's counsel provided a response to the Petition on March 17, 2023 ("Response"). The Response asserts that the public hearing was properly noticed, pointing to the agenda's statement "6:00 PM PUBLIC HEARING – Special Use Permit Application – Marina Village (Lennar Developers)." 1 The Response states that the agenda was timely posted on the website and at the Town Hall and four other locations.

DISCUSSION
The public body has the burden of proof to demonstrate compliance with FOIA. 2 In certain circumstances, a sworn affidavit may be required to meet that burden. 3 Section 10004 requires that the meeting notice and agenda be conspicuously posted "at the principal office of the public body holding the meeting," or if no such office exists, where the public body's meetings are regularly held. 4 While some public bodies are required to post their meeting notices and agendas online, municipalities such as Delaware City are not required to do so. 5 Here, the City posted notice of its February 27, 2023 Mayor and Council meeting online nevertheless. The hearing at issue occurred during that meeting and was listed on the agenda of the February 27, 2023 meeting starting at 6:00 p.m. FOIA requires the posting of notices for meetings, but there is no requirement that separate online postings be made for a hearing of this type. Accordingly, we determine that the City did not violate FOIA by failing to post a separate hearing notice on the City's website. 6

CONCLUSION
For the reasons set forth above, we conclude that the City did not violate FOIA by failing to post the notice for the February 27, 2023 special use permit public hearing on the City's website.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis

Patricia A. Davis
State Solicitor

cc:
William J. Rhodunda, Jr., City Solicitor

1 Response.
2 29 Del. C. § 10005(c).
3 Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).
4 29 Del. C. § 10004(e)(5) ("Public notice required by this subsection 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 meetings of the public body are regularly held, and making a reasonable number of such notices available.").
5 Id. ("In addition, for all noncounty and nonmunicipal public bodies, public notice required by this subsection shall include, but not be limited to, electronic posting on a designated State of Delaware website, approved by the Registrar of Regulations by May 1, 2013, which shall be accessible to the public. In addition, all public bodies in the executive branch of state government that are subject to the provisions of this chapter shall electronically post said notice to the designated State of Delaware website approved by the Secretary of State.").
6 As this Office's authority is limited to considering FOIA allegations, this Opinion does not address other legal authorities, if any, that might require additional notice for this type of hearing. 29 Del. C. § 10005(e).