If a county zoning agenda lists a special-use exception by its zoning-code category (nursing home / convalescent home / home for the aged) but the actual hearing is about an assisted living facility with 35 houses, did the agenda give legally sufficient notice under Delaware FOIA?

Official title

18-IB46 10/5/2018 FOIA Opinion Letter to Mr. Paul Reiger re: FOIA Complaint Concerning the Sussex County Board of Adjustment

Plain-English summary

Paul Reiger challenged a September 10, 2018 Sussex County Board of Adjustment hearing on the ground that the agenda described Case No. 12194 as a special-use exception for a "convalescent home, nursing home, and/or home for the aged" (citing Sussex County Zoning Code §§ 115-23 and 115-210), when the actual application discussed at the hearing involved an assisted living facility plus 35 houses. He argued the agenda failed Delaware FOIA's notice requirements because "an item cannot be brought up and voted on that has not been posted."

The AG disagreed. Delaware FOIA at § 10002(a) defines an "agenda" as "a general statement of the major issues expected to be discussed," and the opinion noted that the Court of Chancery has suggested agendas should use "plain and comprehensible language." The Board's agenda was found to meet that objective standard: it cited the specific zoning code sections under which the application sat, and an "assisted living facility" was a recognized type of facility falling within those sections. The opinion noted the Board could have used the more specific phrase, and the AG "encouraged" doing so going forward, but the absence of more precise wording did not by itself create a FOIA violation. A pre-hearing email from a member of the public that did use the phrase "assisted living facility" reinforced the conclusion that the public understood what was on the table.

Currency note

This opinion was issued in 2018. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

What does the agenda have to contain under Delaware FOIA?

Under 29 Del. C. § 10004(e)(2), a regular meeting of a public body had to be noticed at least seven days in advance, and the notice "shall include the agenda, if such has been determined." The statutory definition of "agenda" at § 10002(a) is "a general statement of the major issues expected to be discussed at a public meeting." The Court of Chancery's gloss is "plain and comprehensible language."

Was zoning-code section citation alone enough?

In this case, yes, because the cited subsections themselves used the phrase "convalescent homes, nursing homes, and homes for the aged" and that phrase was understood by the Board to encompass an assisted living facility application. Combined with the case number and property tax parcels, the AG concluded a reasonable reader could understand what was being heard.

What about the 35 houses tied to the application?

The opinion did not break that out separately. The AG treated the agenda's identification of the special-use exception (with its statutory category) as covering the application as a whole. If a Board agenda omitted a separate vote on subdividing land, the analysis could be different, but that was not the framing of Reiger's Petition.

Why was this not a violation?

The AG's standard is whether the agenda is "objectively incomprehensible or overly complicated," and even imperfect wording can survive that test. The opinion stated that "the availability of other, perhaps better, methods of describing an agenda item does not equate to a violation of FOIA per se," and so found no violation here.

Background and statutory framework

The Delaware FOIA agenda requirements at the time were:

• 29 Del. C. § 10004(e)(2): public notice of regular meetings at least 7 days in advance, including the agenda when determined.
• 29 Del. C. § 10002(a): "agenda" defined as a general statement of the major issues expected to be discussed.
• Chancery doctrine: agendas should be in "plain and comprehensible language."

The opinion assessed the agenda against the objective standard of whether it was "objectively incomprehensible or overly complicated." Here the notice cited the zoning-code category, the case number, the property location, and the tax parcels, which the AG found sufficient even without the phrase "assisted living facility."

Citations

• 29 Del. C. § 10002(a) (definition of "agenda")
• 29 Del. C. § 10004(e)(2) (7-day notice requirement)
• 29 Del. C. §§ 10001-10007 (Delaware FOIA generally)
• Sussex County Zoning Code §§ 115-23, 115-210

Source

• Landing page: https://attorneygeneral.delaware.gov/2018/10/11/18-ib46-10-5-2018-foia-opinion-letter-mr-paul-reiger-re-foia-complaint-concerning-sussex-county-board-adjustment/
• Original PDF: https://attorneygeneral.delaware.gov/wp-content/uploads/sites/50/2018/10/Attorney-General-Opinion-No.-18-IB46.pdf

Original opinion text

Best-effort transcription from a scanned PDF. Minor errors may remain. The linked PDF is authoritative.

OFFICE OF THE ATTORNEY GENERAL OF THE STATE OF DELAWARE
Attorney General Opinion No. 18-IB46
October 5, 2018
VIA U.S. MAIL AND EMAIL

Paul Reiger
18171 Deer Forest Rd.
Georgetown, DE 19947
[email protected]

RE: FOIA Correspondence Regarding the Sussex County Board of Adjustment

Dear Mr. Reiger:

We write in response to your correspondence alleging that the Sussex County Board of
Adjustment (the "Board") violated the open meeting provisions of Delaware's Freedom of
Information Act, 29 Del. C. §§ 10001-10007 ("FOIA"). Specifically, you allege that the Board
failed to provide sufficient notice in its September 10, 2018 meeting agenda of its intent to discuss
and vote on a special use exception to operate an assisted living facility. For the reasons set forth
below, it is our determination that the Board did not violate FOIA as alleged.

RELEVANT BACKGROUND

On or before September 10, 2018, you reviewed the Board's September 10, 2018 meeting
agenda. The agenda contained the following item under the heading "Public Hearings": "Case
No. 12194 — Country Rest Home, Inc. requests a special use exception to operate a convalescent
home, nursing home, and/or home for the aged (Sections 115-23 & 115-210 of the Sussex County
Zoning Code). The property is located on the east side of Hickman Rd., approximately 776 ft.
south of University Rd. and at the northeast corner of University Rd. & Hickman Dr. 911 Address:
N/A Zoning District: AR-1. Tax Parcels: 530-9.00-4.00 & 530-4.00-23.00."

POSITIONS OF THE PARTIES

In your Petition, you allege that the Board's wording of this particular agenda item was
insufficient and that the "public had no notice that the Board of Adjustment was going to vote to
approve an ASSISTED LIVING FACILITY and the 35 houses." As such, you argue that the
meeting agenda failed to comply with FOIA because "an item cannot be [brought] up and voted
on that has not been posted."

In its Response Letter, the Board maintains that that the language at issue fully complied
with FOIA. The Board specifically argues that it "provided the public with adequately detailed
notice of the public hearing for Case No. 12194 and the purpose thereof." The Board states that
the "Country Rest Home filed its application for a special use exception under Sussex County
Code §115-23C.(4) and 210A.(3)(d) which allow for special use exceptions for 'convalescent
homes, nursing homes, and homes for the aged'" and that "assisted living facilities" is a type of
special use included in "Sussex County Code §115-23C.(4) and 210A.(3)(d) which allow for
special use exceptions for 'convalescent homes, nursing homes, and homes for the aged.'" The
Board also notes that "prior to the hearing's commencement on September 10, 2018, a member of
the public sent an email to the Board that was read into the record. This email raised an issue
regarding the proposed facility, including specific references to an 'assisted living facility', the
number of units which were referred to as 'single family homes' and addressed the specifics of the
application. The fact that the identical issue was raised prior to the hearing is conclusive evidence
that the public received adequate notice of this application."

In your Reply, you argue that while the Board "advertised the hearing as a discussion about
[a convalescent home, nursing home, and/or home for the aged]," the discussion concerned an
assisted living facility. You state that the "distinction is substantially different." You maintain
that "the Board has caused confusion for itself and the public by advertising the case as being about
one type of facility (a nursing home, convalescent home, homes for the aged) but then discussing
a different type of facility (assisted living)." You state that, in your opinion, the Board "needs the
advertisement and agenda to be consistent with the terminology used in the hearing . . . ."

RELEVANT STATUTES

FOIA requires public bodies to "give public notice of their regular meetings . . . at least 7
days in advance thereof." The notice "shall include the agenda, if such has been determined at
the time, and the dates, times and places of such meetings . . . ." "An agenda is defined as
including a "general statement of the major issues expected to be discussed at a public meeting, as
well as a statement of intent to hold an executive session and the specific grounds therefore."

DISCUSSION

As noted above, FOIA requires that the agenda include "general statement of the major
issues expected to be discussed." To this end, the Court of Chancery has suggested that an agenda
should be worded in "plain and comprehensible language." Accordingly, we assess the notice
provided in an agenda by this objective standard.

Here, we do not believe that the agenda item was objectively incomprehensible or overly
complicated. As such, we are satisfied that the Board's citation to Sections 115-23 of the Sussex
County Zoning Code for a special use exception to operate a convalescent home, nursing home,
and/or home for the aged satisfied FOIA's minimum notice requirements.

We recognize that the Board could have described Case No. 12194 by using the words
"assisted living facility" or other descriptive language. However, the availability of other, perhaps
better, methods of describing an agenda item does not equate to a violation of FOIA per se. As
such, while we do not believe that the Board's failure to use more specific terminology such as the
phrase "assisted living facility" violated FOIA in this instance, we nevertheless encourage the
Board, in the interest of transparency, to continue to provide robust notice of similar agenda items
in the future.

CONCLUSION

For the reasons discussed above, it is our determination that the Board did not violate FOIA
as alleged.

Very truly yours,

/s/ Lisa M. Morris
Deputy Attorney General

APPROVED BY:

/s/ Allison E. Reardon
Allison E. Reardon, State Solicitor

cc: J. Everett Moore Jr., Esq. (via email)