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Acierno v. New Castle County

filed: November 10, 1994.

FRANK E. ACIERNO, APPELLEE
v.
NEW CASTLE COUNTY, APPELLANT



Appeal from the United States District Court for the District of Delaware. (D.C. Civil Action No. 93-cv-00579).

Present: Becker and Hutchinson, Circuit Judges, and Padova, District Judge*fn*

Author: Hutchinson

Opinion OF THE COURT

HUTCHINSON, Circuit Judge.

This appeal presents yet another dispute between real estate developer Frank Acierno ("Acierno") and New Castle County, Delaware ("the County") over Acierno's commercial development plans for land in the County. The underlying action is Acierno's request for declaratory and injunctive relief and compensatory and punitive damages for the County's alleged violations of the Constitution and laws of the United States and 42 U.S.C.A. § 1983 (West 1994).*fn1 Presently before us is the County's appeal from an order entered by the United States District Court for the District of Delaware granting Acierno's motion for a mandatory preliminary injunction directing the County to issue Acierno a building permit for development of a shopping mall. The preliminary injunction also enjoins and restrains the County from interfering with Acierno's right to develop the parcel in question as a shopping mall.

In issuing its preliminary injunction, the district court held that Acierno established a substantial likelihood that the County's actions interfered with Acierno's Fourteenth Amendment property interests and his liberty interest to conduct his business as a real estate developer. The district court also concluded that Acierno would suffer irreparable harm unless the County was compelled to issue the building permit and halt its interference with Acierno's development. Finally, the court concluded that neither potential hardship to the County nor the public interest outweighed the benefits of issuing the preliminary injunction.

On appeal, the County argues Acierno failed to show he will be irreparably harmed unless a preliminary injunction issues against the County. We agree. A primary purpose of a preliminary injunction is maintenance of the status quo until a decision on the merits of a case is rendered. A mandatory preliminary injunction compelling issuance of a building permit fundamentally alters the status quo. There is no evidence in this record to show that a delay in issuance of the building permit until this case can be decided on its merits would cause irreparable harm to Acierno. We will therefore reverse the district court's order entering this mandatory preliminary injunction against the County.*fn2

I. Factual & Procedural History

A. General Factual Background

In 1971 Acierno was a long term lessor of a large part of some forty acres of land situated in New Castle County, Delaware near the intersection of Interstate Highway 95 and State Route 273. This forty acre parcel was zoned M-1, Manufacturing, and the County's zoning ordinance then in effect permitted commercial development in an M-1 manufacturing zone.*fn3 Acierno also owned an adjacent smaller parcel of land zoned C-2, Commercial, a portion of which is directly adjacent to Route 273. These two parcels comprise the property ("the Property").

In 1971, County planning law required developers to file an "exploratory sketch plan" before the County would finally approve a subdivision plan. On May 11, 1971, Acierno filed an "exploratory sketch plan" with the County Department of Planning ("the Planning Department") proposing development of an enclosed shopping mall on the Property. On October 8, 1971, in accordance with County regulations, Acierno submitted a more detailed "preliminary-tentative building plan." It described the enclosed mall as located entirely on the larger, forty acre portion of the Property zoned M-1. On October 22, 1971, the Planning Department disapproved Acierno's preliminary-tentative plan.*fn4

On November 16, 1971, the New Castle County Council ("County Council") adopted an amendment to section 23-34 of the County Zoning Code prohibiting the commercial uses previously allowed in an M-1 Manufacturing zone. Before this amendment was adopted, Acierno requested the County's Planning Board ("Planning Board")*fn5 to hold an expedited special meeting to reconsider Acierno's preliminary-tentative plan. At this meeting on November 8, 1971, the Planning Board reversed the Planning Department and approved Acierno's preliminary-tentative plan.

On January 24, 1972, Acierno filed a final plan ("Plan") for his shopping center with the Planning Department but, on February 24, 1972, the Planning Department voted to reject the final plan (1) because it conflicted with the general comprehensive development plan adopted for the County, (2) because the shape of the tract in issue made it unsuitable for the construction of a shopping center and (3) because of the impact of the increased traffic the proposed shopping center would bring. Acierno appealed but this time, on April 26, 1972, the Planning Board affirmed the Planning Department's rejection. See Acierno v. Folsom, 313 A.2d 904, 905 (Del. Ch. 1973), aff'd 311 A.2d 512 (Del. 1973).

A series of administrative and judicial appeals followed and, during a further hearing before the Planning Board, Board members voted as follows:

(1) 6 to 0 in favor of Acierno on the incompatibility of the Plan with the County's comprehensive development plan;

(2) 4 to 2 in favor of Acierno on the issue of unsuitable internal design of the project; and

(3) 3 to 3 to sustain Planning's rejection of Acierno's Plan because that the proposed development would have an adverse effect on vehicular traffic in the area.

Id. at 905-06. A member of the Planning Board who was absent from this hearing later advised the Chairman of the Planning Board that he would have voted to overrule the Planning Department on all three resolutions if he had been present. See id. at 906. County Council nevertheless affirmed the Planning Board's decision on January 9, 1973. Id.

On March 14, 1975, however, the Delaware Supreme Court ordered County Council to approve and file Acierno's Plan. See Acierno v. Folsom, 337 A.2d 309, 317 (Del. 1975) (reversing unreported Delaware Court of Chancery order granting summary judgment to County). The supreme court first held that "an approval of the Planning Board was binding upon the Planning Department . . . and that . . . the County Council was obliged, as a ministerial function, to register its approval . . . ." Id. at 313. It also concluded that the Chairman of the Planning Board acted unlawfully in failing to recuse himself during the vote because of his apparent bias and prejudice towards Acierno and accordingly refused to count the Chairman's vote. Id. at 316. This changed the vote on the effect of increased traffic, the only issue which had gone against Acierno, to 3-2 in his favor. Id. at 317. The state's highest court therefore held that a majority of the Planning Board members properly voting had approved Acierno's proposed development and County Council was bound by this decision. Id. In compliance, County Council approved Acierno's Plan on October 28, 1975.

Almost twelve years later, in September of 1987, Acierno submitted a revised subdivision plan ("Revised Plan") to the Planning Department.*fn6 In it he proposed to: (1) subdivide the Property into three parcels; (2) change building locations and sizes to accommodate the present market; and (3) correct drafting errors along some boundary courses.

In a memorandum dated January 26, 1988, Charles D. McCombs II of the Planning Department directed Acierno's engineers to "provide a note referencing previous court action that permitted commercial development in the M-1 zoning district[]" on the Revised Plan. Appendix ("App.") at 335. They did so and on February 25, 1988, County Planning Director Wayne Grafton ("Grafton") approved the Revised Plan for recording purposes. On May 15, 1988, Grafton approved development of a "Hampton Inn" on the portion of the Property zoned M-1.

In November of 1988, Acierno submitted a revised subdivision plan amending the Revised Plan ("Revised Plan II"). Revised Plan II stated its purpose was to "'revise buildings & parking for buildings 1, 2 & 3' and to 'correct drafting errors along some boundary courses.'" App. at 336. Otherwise, it was consistent with Revised Plan I. On March 7, 1989, Grafton approved Revised Plan II.*fn7

B. The County's Conduct Leading to the Present Action

On April 18, 1991, County Attorney Michael Mitchell ("Mitchell") sent a memorandum to David J. Biloon ("Biloon"), Chief, Development and Licensing Division, Department of Public Works, New Castle County. Mitchell's memorandum stated that he had reviewed the Delaware Chancery and Supreme Court opinions in the initial litigation in the mid-1970's over development of the Property, as well as a copy of the original Plan, the Revised Plan, and Revised ...


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