[Provided by Justia US Law. Partially quoted below, though it would be the best to read the whole document.]
The Planning Commission unanimously voted to recommend approval of Mr. Steen's application to the County Council upon condition that the borrow pit area be fenced and a gate be installed near the entrance to control and limit access to the pit.
At its May 3, 1988 meeting, the County Council received the Planning Commission's findings of fact and recommendations, and also heard additional evidence in favor of, and in opposition to the application. Mr. Clark and Mr. Steen again made oral presentations detailing Mr. Steen's proposed use of the land and five people spoke in opposition to the application. A petition from thirty-one opponents was also entered into the record.
The opponents, who were local area residents, expressed various health, safety and welfare concerns, such as:
(1) increased dirt and dust;
(2) damage to local roadways caused by increased traffic, especially the large dump trucks to be used to haul borrow from the pit;
(3) the safety of children in the area near the pit; and
(4) potential threats to local water supplies.
The May 3 hearing concluded with the County Council reserving its decision until it received further comment from the DNREC, DelDOT and the Town of Dagsboro.
On July 26, 1988, the County Council held a scheduled meeting, the notice of which included deliberation of Mr. Steen's application as "old business." The Council reviewed the facts previously presented regarding Mr. Steen's application together with additional comments received from DNREC, DelDOT, and the Town of Dagsboro. After reviewing and discussing the information received regarding Mr. Steen's application, the County Council called for the proposed ordinance to be read. At that point, however, the tape recording of the meeting accidentally terminated, thereby making the transcript of the remainder of the meeting incomplete. It is undisputed, however, that a vote was then taken, and Mr. Steen's application was unanimously *645 denied. The County Council made the following findings of fact in denying Mr. Steen's application for a Conditional Use Permit:
1. The proposed land use does not promote the health, safety and morale of the present and future inhabitants of Sussex County in that the dust, noise, and dirt pollution will result from a change of zone as proposed.
2. The proposed land use does not promote the convenience, order, prosperity, and welfare of the present and future inhabitants of Sussex County in that health hazards to local residents shall be caused by the proposal;
3. Congestion of roads or streets shall be increased by the proposal in that additional truck traffic shall cause a safety hazard to the inhabitants to the areas. Trucks, which are loaded with fill, shall cause unreasonable damage to the roads in the area.
Public notice of the County Council's decision was given on August 3, 1988 and plaintiff subsequently filed this action.
. . .
Generally, a conditional use is only permitted, however, where it is desirable or essential to the welfare or the convenience of the public and will neither impair the integrity and character of the zoned district nor be detrimental to the public health, welfare, and morals.
. . .
Contrary to many zoning ordinances, under the Sussex County Ordinance conditional uses are permitted in all districts or zones and, therefore, a conditional use in Sussex County may represent a "substantial change in the provisions of the zoning ordinance which prohibit a particular use in a designated district."
. . .
Consequently, because conditional uses in Sussex County are akin to rezonings and because the zoning power is subject to the provisions of 9 Del.C., Ch. 69, an applicant for a Conditional Use Permit in Sussex County must affirmatively show compliance with the prerequisite conditions contained in the Sussex County Zoning Ordinance for a Conditional Use Permit and must also establish that the grant of the Conditional Use Permit *648 will be consistent with the factors mandated by 9 Del.C. § 6904(a).
. . .
This Court's role in reviewing a zoning decision of the County Council is limited to a review of the record to ascertain if the statutory procedural mandates have been followed, that the decision is supported by substantial evidence and that it is not arbitrary, capricious or an abuse of discretion.
. . .
The fact that the opponents to Mr. Steen's application did not present expert testimony regarding the proposed use, however, is not controlling. The Council could consider "the evidence submitted by the persons most familiar with the neighborhood insofar as it bears on the objective factors important to the future of the area affected by the proposed use."
. . .
Defendant is therefore entitled, as a matter of law, to dismissal of plaintiff's challenge to the denial of a Conditional Use Permit.
(Provided by FindLaw for Legal Professionals.
Read the whole document to see why this case resulted in the opposite finding from Steen v. Sussex Council case of 1989.)
The court cited §115-15 Prohibited Uses that says :
"Unless the contrary is clear from the context of the lists or other regulations of this chapter, uses not specifically listed are prohibited. "
The BOA had approved the use of homeless shelter citing it is like a 'tourist home' that is allowed as special use in AR-1.
However, the court said a homeless shelter is not a tourist home and since homeless shelter is not listed as permitted special use circumstances in §115-23, it is not allowed!