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 applicant, the property, and the code sections for the requested variances, including parking. In these circumstances, the Baltimore Avenue property was considered as part of a remedy for the noticed on-site parking variance, so FOIA did not require a separate reference to it. The AG found the agenda sufficient to alert interested members of the public that parking restrictions and proposed remedies might be discussed.

The mailed-notice and signage complaints were outside FOIA's scope. The AG said those mailings and signs are not FOIA requirements and that its authority in this petition extends only to claims alleging a FOIA violation.

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

For this agenda and variance request, the AG did not require a separate reference to the Baltimore Avenue parcel. The Board said that parcel was already used as a parking lot and would continue to be. The AG relied on the agenda's identification of the applicant, the property, and the code sections to find 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 found this agenda sufficient because it identified the applicant, the property, and the code sections at issue, including parking. Under § 10005(e), the AG considered only the FOIA claim; it did not address the petitioner's complaints about mailed notices and sign postings.

Common questions

Q: How specific does a Delaware zoning agenda have to be? A: It must include "a general statement of the major issues" in "plain and comprehensible language" that alerts an interested member of the public that the matter will be taken up. This agenda named the applicant, the property, the variances sought, and the relevant code provisions; the AG found that sufficient here.

Q: If the variance involves an off-site parcel as a remedy, does the agenda have to name that parcel too? A: In this case, no. The AG said the Baltimore Avenue parcel was considered as part of a remedy for the noticed on-site parking variance, and a separate reference was not required "in these circumstances." The opinion does not decide what notice another use of an off-site parcel would require.

Q: Why did the Board notice Baltimore Avenue specifically on the October 16 agenda but not on September 30? A: The October 16 agenda continued the same case and identified both 2 Rehoboth Avenue and 10 Baltimore Avenue. The AG did not say why the Board added that address or require it for the September 30 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."). 5 13