If a Delaware zoning agenda lists a parking variance for one property, does it also have to list the off-site parking lot the developer plans to use to meet the parking requirement?

Plain-English summary

Belhaven Hotel Investments wanted to build a hotel at 2 Rehoboth Avenue in Rehoboth Beach. The project required four zoning variances (height, FAR/lot coverage, on-site parking minimums, and loading berths). The Board of Adjustment scheduled the hearing for September 30, 2024 and listed the case in detail on the agenda: applicant name, code sections, property identification, and case number 0824-08.

Michael Strange filed a FOIA petition arguing the Board violated FOIA at the September 30, 2024 meeting. His specific complaint was that the parking variance was effectively going to be remedied by using an off-site parking lot at 10 Baltimore Avenue, and that the September 30 agenda did not separately notice the Baltimore Avenue parcel. He also raised complaints about whether on-property signage and mailed notices for the October 16, 2024 follow-up meeting were adequate.

The AG found no FOIA violation. The agenda identified the property, the code sections (including the on-site parking requirement at § 270-35), and the variance request. Off-site parking was a proposed remedy for that already-noticed parking variance, not a separate item. A reasonable member of the public reading the agenda would know that the parking variance, including the means of satisfying the parking requirement, was the topic. The AG also noted that the substantive discussion was deferred to October 16, 2024 (when the Baltimore Avenue parcel was specifically named), so anyone interested had a second meeting to attend.

The mailed-notice and signage complaints were outside FOIA's scope. Those notices are governed by Rehoboth Beach's zoning code and Title 22 of the Delaware Code. The AG can only address FOIA claims under § 10005(e); other procedural complaints belong elsewhere (Superior Court certiorari review or, where applicable, the courts).

What this means for you

If you are a Rehoboth Beach resident or a neighbor of a proposed development

The opinion holds that the September 30, 2024 agenda satisfied FOIA. It named the applicant, identified the property (the lots, the Sussex County tax map parcels, and the 2 Rehoboth Avenue address), and listed the four code sections from which variances were sought, including § 270-35, the on-site parking minimum. The opinion holds that a member of the public with an intense interest reading that agenda had notice that the parking variance, including any remedial proposals for meeting the parking requirement, would be taken up. It also holds that the complaints about mailed notices and on-property sign postings fall outside FOIA: under § 10005(e), the AG can consider only claims that the FOIA statute was violated.

If you are a developer or land-use attorney

The opinion holds that an agenda need not separately list an off-site parcel that is used only as a remedy for a variance that is already noticed. Here the Baltimore Avenue lot was considered only as relief from the on-site parking requirement for 2 Rehoboth Avenue; the Board's affidavit stated the lot was already used as a parking lot and would continue to be, so no separate variance was sought for it. The opinion holds that naming the applicant, the property, and the code sections gave sufficient notice that "the variance related to parking restrictions, including any remedial proposals, may be discussed."

If you serve on a Delaware Board of Adjustment, Planning Commission, or zoning hearing board

The opinion holds that an agenda must include "a general statement of the major issues" in "plain and comprehensible language" (§ 10002(a)), worded so as to alert members of the public with an intense interest that the subject will be taken up. It quotes Lechliter v. Becker that "the purpose of FOIA is not to provide a series of hyper-technical requirements that serve as snares for public officials." The opinion holds that the Rehoboth Beach agenda, which identified the applicant, the property, and the code sections, met that standard.

If you are filing a FOIA petition about a zoning meeting

The opinion marks two boundaries. On agenda specificity, it holds that an agenda identifying the applicant, the property, and the code sections at issue gives sufficient notice and need not name every parcel proposed as a remedy. On scope, it holds that under § 10005(e) the AG can address only FOIA claims, so complaints about mailed notices, sign postings, or newspaper publication are outside the AG's authority and were not addressed.

Common questions

Q: How specific does a Delaware zoning agenda have to be?
A: It needs to include "a general statement of the major issues" in plain language, identifying the topic clearly enough that a member of the public with an intense interest knows the matter is being taken up. For variances, that typically means: applicant name, parcel identification (address, tax map number, or both), the code sections from which a variance is sought, and the type of relief.

Q: If the variance involves an off-site parcel as a remedy, does the agenda have to name that parcel too?
A: Not according to this opinion, when the off-site parcel is being used as part of satisfying the on-site requirement and is not undergoing a zoning change of its own. Here, Baltimore Avenue was already used as a parking lot and would continue to be used as a parking lot. So no separate variance was sought for it. If the off-site parcel were being rezoned, that would be different; both parcels would need agenda treatment.

Q: Why did the Board notice Baltimore Avenue specifically on the October 16 agenda but not on September 30?
A: As the matter focused on parking specifically (the other variances having been addressed or deferred), the off-site lot became the central topic. The Board prudently named it on the more focused agenda. That is a best practice but the AG did not require it for the earlier, more general agenda.

Q: Can the AG address my complaint that the city didn't post a sign on the property or send neighbor letters?
A: No. The opinion holds that under § 10005(e), only claims alleging a FOIA violation may be considered by the AG. Mailed notices and sign postings are not FOIA requirements, so the AG found those complaints outside its authority. The opinion cites Op. 18-IB50 and 96-IB28 for the same limit.

Q: The petitioner relied on the September 30 agenda and skipped the meeting. Did that change the result?
A: No. The opinion notes the petitioner reviewed the September 30 meeting video and appeared and gave comments at the October 16 meeting, where the Baltimore Avenue parcel was specifically listed. The AG found the September 30 agenda sufficient on its own terms and found no FOIA violation.

Background and statutory framework

Delaware FOIA's agenda specificity standard, 29 Del. C. § 10002(a), requires "a general statement of the major issues expected to be discussed at a public meeting." Court of Chancery decisions and AG opinions add a "common-sense" gloss: agendas must alert members of the public with intense interest, but they are not required to anticipate every alternative. Lechliter v. Becker, 2017 WL 117596, at *2 (Del. Ch. Jan. 12, 2017), is the most quoted statement of this principle: "the point of the agenda is to put the public on notice, not to answer every question about the agenda item."

Op. 10-IB12 (Sept. 28, 2010) is the most direct precedent. The Sussex County Board of Adjustment had identified one variance location only as "West of Road 78" and another as "Route 26." The AG held those general identifications sufficient because "anyone concerned with Road 78 or Route 26 could have availed themselves of several means of getting more information." The Rehoboth Beach agenda was much more specific (named applicant, parcel numbers, addresses, code sections), so it easily meets that floor.

The boundary of FOIA's scope is set by § 10005(e). The AG's authority extends only to claims alleging a FOIA violation. The opinion cites Op. 18-IB50 (2018), which found the AG has "no authority under FOIA to direct [the public body] with regard to this Office's interpretation of any other Delaware statute," and 96-IB28 (1996), which declined to address compliance with a non-FOIA statute as "beyond the jurisdiction of this office." On that basis, the opinion treated the mailed-notice and sign-posting complaints as outside its authority.

The substantive zoning dispute (the Belhaven Hotel variances) was not before the AG. The opinion resolves only the FOIA agenda-notice claim; it does not pass on the merits of the variances or on any other notice requirement.

Citations and references

Statutes:

• 29 Del. C. § 10002 (Definitions, agenda)
• 29 Del. C. § 10005 (Enforcement and AG petitions)
• Rehoboth Beach Municipal Code §§ 270-20, 270-21, 270-35, 270-36 (zoning variance topics)

Cases:

• Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021)
• Chem. Indus. Council of Del. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch. May 19, 1994)
• Lechliter v. Del. Dep't of Natural Res. & Env't Control, 2017 WL 2687690 (Del. Ch. June 22, 2017)
• Ianni v. Dep't of Elections of New Castle Cnty., 1986 WL 9610 (Del. Ch. Aug. 29, 1986)
• Lechliter v. Becker, 2017 WL 117596 (Del. Ch. Jan. 12, 2017)

Prior AG opinions:

• Del. Op. Att'y Gen. 10-IB12 (Sept. 28, 2010) (general location identifiers sufficient)
• Del. Op. Att'y Gen. 18-IB50 (Oct. 12, 2018) (AG has no authority over non-FOIA statutes)
• Del. Op. Atty. Gen. 96-IB28 (Aug. 8, 1996) (jurisdiction limited to FOIA)

Source

• Landing page: https://attorneygeneral.delaware.gov/2024/11/18/24-ib49-11-18-2024-foia-opinion-letter-to-michael-strange-re-city-of-rehoboth-beach/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2024/11/Attorney-General-Opinion-24-IB49.pdf

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. 24-IB49
November 18, 2024

VIA EMAIL
Michael Strange
[email protected]

RE:

FOIA Petition Regarding the City of Rehoboth Beach

Dear Mr. Strange:
We write in response to your correspondence alleging that the City of Rehoboth Beach
Board of Adjustment violated Delaware's Freedom of Information Act, 29 Del. C. §§ 10001-10008
("FOIA"). We treat this correspondence submitted as a combined petition ("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 Board has not violated
FOIA as alleged regarding the September 30, 2024 meeting agenda.

BACKGROUND
The City's Board of Adjustment met on September 30, 2024, listing the following item for
discussion:
Case No. 0824-08. REQUEST FOR VARIANCES /
CLARIFICATION pertaining to Rehoboth Beach Planning
Commission Site Plan Review Decision re: Application No. 122105, dated August 5, 2024. More specifically, this is a request for
variances/clarification pursuant to Municipal Code §270-20 Height regulations; §270-21 - Natural area, floor area ratio and lot
1

coverage; §270-35 - Minimum Parking Spaces required; exceptions
and §270-36 - Loading and unloading berths. The property is located
in the C-1 Central Commercial District on Lot Nos. 2, 4 & 6, Block

• Rehoboth Avenue, Lot Nos. 3, 5, 7 & the easterly portion of Lot 9,
  Block - Wilmington Avenue and Lot Nos. 17 & 18, Block - Surf
  Avenue and Sussex County Tax Map Parcel Nos. 334-14.18- 20.00,
  334-14.18-21.00 & 334-14.18-35.00. The address of the property is
  2 Rehoboth Avenue. The Variances are being requested by Richard
  A. Forsten Esq. of the law firm Saul Ewing, on behalf of John N.
  Papajohn of Belhaven Hotel Investments Inc., owner of the
  property.1
  The October 16, 2024 Board's Special Meeting listed the following item related to this
  same matter:
  Continuation of Case No. 0824-08. REQUEST FOR VARIANCE
  pertaining to Rehoboth Beach Planning Commission Site Plan
  Review Decision re: Application No. 1221-05, dated August 5,
  2024. More specifically, this is a request for a variance pursuant to
  Municipal Code §270-35 - Minimum Parking Spaces required. The
  property is located in the C-1 Central Commercial District on Lot
  Nos. 2, 4 & 6, Block - Rehoboth Avenue, Lot Nos. 3, 5, 7 & the
  easterly portion of Lot No. 9, Block - Wilmington Avenue, Lot Nos.
  17 & 18, Block - Surf Avenue and Sussex County Tax Map Parcel
  Nos. 334-14.18-20.00, 334-14.18-21.00 & 334-14.18-35.00. and
  Lot Nos. 10 & 12 Baltimore Avenue and Sussex County Tax Map
  Parcel No. 334-14.14-55.00. The addresses of the properties are 2
  Rehoboth Avenue and 10 Baltimore Avenue. The Variance is being
  requested by Richard A. Forsten Esq. of the law firm Saul Ewing,
  on behalf of John N. Papajohn of Belhaven Hotel Investments Inc.,
  owner of the property.2
  In the Petition, you allege that the September 30, 2024 agenda noticed the above three
  items related to the project, but a fourth item, related to a variance for a parking lot at Baltimore
  Avenue, was also discussed, without notice. You assert that this Baltimore Avenue parking lot
  was of interest to you, but you did not attend this meeting, as you relied on this agenda and thus,
  were unaware that this item would be discussed. In the subsequent meeting on October 16, 2024,
  you point out that the Baltimore Avenue property was specified. You contend that the discussion
  of an unlisted item resulted in "an unconscious positive bias in the ultimate voting by the [Board]

1

Petition.

2

Id.
2

panel members on the applicant's other 3 variance requests."3 In addition, you raise another claim
regarding this same Belhaven project, alleging that the Board, with respect to the October 16, 2024
meeting, failed to properly notify by mail and to "post a sign ON the property in question indicating
that a meeting was to be held for a variance related to the Belhaven Hotel to be constructed on
Wilmington Avenue and required a parking lot to be constructed on Baltimore [Avenue] in order
to meet the needed room count desired for the Hotel proper."4
On October 28, 2024, counsel for the Board replied ("Response") and attached an affidavit
of the City Secretary, certifying the facts in the Response as accurate. The Board argues that the
Petition's claims are without merit, as the request for a variance is related to the on-site parking
space requirements for the subject property at Rehoboth and Wilmington Avenue. The Baltimore
Avenue property was considered only for relief from the on-site parking requirements on the
subject property that was noticed, and the Baltimore Avenue was not proposed to be used in a
manner contrary to its current zoning classification; this parcel was currently used as a parking lot
and would continue to be used as a parking lot. This is why, the Board contends, the Baltimore
Avenue property was not specifically listed on the initial notice or agenda. Further, the Board
points out that nothing of substance occurred with respect to the on-site parking requirement
variance at the September 30, 2024 meeting, as the discussion was deferred to the October 16,
2024 meeting; you reviewed the September 30, 2024 meeting video; and the applicant made its
presentation regarding parking to the Board at the October 16, 2024 meeting. The Board asserts
that you appeared and gave comments at the October meeting.

DISCUSSION
The public body has the burden of proof to justify any failure to comply with FOIA.5 In
certain circumstances, a sworn affidavit may be required to meet that burden.6 This Petition
asserts that an agenda item's description is insufficient. An agenda for a public meeting must
include a "general statement of the major issues" which a public body expects to discuss7 and must

3

Id.

4

Id.

5

29 Del. C. § 10005(c).

6

Judicial Watch, Inc. v. Univ. of Del., 267 A.3d 996 (Del. 2021).

7

29 Del. C. § 10002(a).
3

be worded in "plain and comprehensible language."8 Delaware courts have opined on the means
to determine the sufficiency of an agenda:
In order that the purpose of the agenda requirement be served, it
should, at least, "alert members of the public with an intense interest
in" the matter that the subject will be taken up by the [public body].
In other words, members of the public interested in an issue should
be able to review a notice and determine that an issue important to
them will be under consideration. . . . FOIA provides an
informational right to allow public involvement in government.9
"[T]he point of the agenda is to put the public on notice, not to answer every question about the
agenda item."10 "[T]he purpose of FOIA is to ensure that public business is done in the open, so
that citizens can hold public officials accountable. The purpose of FOIA is not to provide a series
of hyper-technical requirements that serve as snares for public officials, and frustrate their ability
to do the public's business, without adding meaningfully to citizens' rights to monitor that public
business."11
Considering the provided agenda and the sworn statements, we determine that the
September 30, 2024 meeting agenda included the name of the applicant, the fact the applicant is
seeking variances, the property for which the variances were sought, and the code provisions for
the variances, one of which related to parking lot restrictions. As the variance was sought from
the on-site parking requirements applicable to the noticed property, we do not believe that a
separate, specific reference to the Baltimore Avenue property, which was considered as part of the
remedy for this variance, was required to satisfy FOIA in these circumstances. We find that this
agenda item meets FOIA's minimum requirements and provides sufficient notice to the members
of the public with an intense interest that the variance related to parking restrictions, including any
remedial proposals, may be discussed.12 Accordingly, we find no violation of FOIA in this regard.

8

Chem. Indus. Council of Del. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295,
at 8 (Del. Ch. May 19, 1994).
Lechliter v. Del. Dep't of Natural Res. & Env't Control, 2017 WL 2687690, at 2 (Del.
Ch. Jun. 22, 2017) (quoting Ianni v. Dep't of Elections of New Castle Cnty., 1986 WL 9610, at *4
(Del. Ch. Aug. 29, 1986).
9

10

Del. Op. Att'y Gen. 10-IB12, 2010 WL 4154564, at *1 (Sept. 28, 2010).

11

Lechliter v. Becker, 2017 WL 117596, at *2 (Del. Ch. Jan. 12, 2017).

See Del. Op. Att'y Gen. 10-IB12, 2010 WL 4154564, at *2 (finding no violation of FOIA
when the Sussex County Board of Adjustment's agenda identified one proposed variance's
location by "West of Road 78" and a second proposed variance's location by "Route 26" and
4
12

Finally, the Petition also raises the issue of mailed notices and sign postings related to the
Belhaven project. As these mailings and signage are not part of FOIA's requirements, such claims
are outside the scope of this Office's authority to consider. Only claims alleging the FOIA statute
has been violated may be considered by this Office.13

CONCLUSION
For the reasons set forth above, we conclude that the City's Board of Adjustment did not
violate FOIA as alleged at its September 30, 2024 meeting.

Very truly yours,
/s/ Dorey L. Cole

Dorey L. Cole
Deputy Attorney General

Approved:
/s/ Patricia A. Davis

Patricia A. Davis
State Solicitor

cc:

Fred A. Townsend, III, Counsel to the City of Rehoboth Beach Board of Adjustment

noting that "anyone concerned with Road 78 or Route 26 could have availed themselves of several
means of getting more information").
29 Del. C. § 10005(e); see also Del. Op. Att'y Gen. 18-IB50, 2018 WL 6015767, at 2 (Oct.
12, 2018) (finding that this Office has "no authority under FOIA to direct [the public body] with
regard to this Office's interpretation of any other Delaware statute"); Del. Op. Atty. Gen. 96-IB28,
1996 WL 517455, at 2 (Aug. 8, 1996) ("To the extent you allege that Sussex County has not
complied with the requirements of 9 Del. C. Section 6921, that matter is beyond the jurisdiction of
this office and is not addressed here.").
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