Can a town's vote to adopt a land-use plan be voided because of notice problems earlier in the planning process?

Official title

98-IB02: FOIA Complaint Against Town of Middletown

Plain-English summary

A resident complained about how the Town of Middletown developed and adopted its Comprehensive Plan for land use during 1997. The AG's review turned up a string of problems. Two early planning workshops in January and March 1997 were never advertised at all; the town argued this didn't matter because fewer than a quorum of council members attended, but the AG found the group still functioned as an ad hoc committee subject to FOIA, though no remedy was needed since unwinding the whole planning process at that point would serve no purpose. Two later public-input workshops in April and May were advertised only by a regional planning council, not the town, and the notices never even mentioned the Comprehensive Plan, just a generically-named "design standards" workshop buried in the newspaper's legal notices. The AG rejected the town's argument that it wasn't responsible for notice just because someone else convened the meeting. Finally, and most seriously, the town gave only five days' notice for the August 4 meeting and four days' notice for the October 6 meeting where the council actually voted to adopt the plan, short of FOIA's seven-day minimum. While the AG found no intent to keep the public in the dark, and credited the town for holding a well-noticed public workshop in June and giving presentations to civic groups, the accumulation of notice violations touching a plan with major impact on residents' lives was enough to void the council's October 6 vote adopting the plan. The town was ordered to reconsider adoption of the plan from scratch, with full seven-day notice and conspicuous posting.

Currency note

This opinion was issued in 1998. 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

Q: If fewer than a quorum of a council attends a planning meeting, does FOIA still apply?
A: It can, according to this opinion. The AG found that a group of council members functioning as an ad hoc committee, even without a full quorum present, is still subject to FOIA's notice requirements if it's effectively doing the council's planning work.

Q: If another organization, not the town itself, holds a public workshop about a town plan, does the town still have to give FOIA notice?
A: Yes. The AG found it "irrelevant who is the formal sponsor" of a meeting; a meeting doesn't stop being subject to FOIA notice requirements just because another public body or official convened it.

Q: How much advance notice does a public body have to give before voting on something significant, like a comprehensive land use plan?
A: At the time of this opinion, FOIA required at least seven days' notice for regular meetings. The AG found Middletown's four and five days' notice for its key planning meetings fell short, and called the shortfall "all the more serious" given the plan's impact on residents.

Q: Can a vote be voided even if the public body made real efforts to involve the public overall?
A: Yes, in this case. Despite crediting the town's other outreach efforts, like a properly noticed workshop and presentations to civic groups, the AG still voided the adoption vote because of the accumulated notice violations at the meetings that actually mattered.

Background and statutory framework

The complaint concerned Middletown's process for developing and adopting its Comprehensive Plan throughout 1997. Applying 29 Del. C. Section 10002(a)'s definition of "public body" to the unadvertised January and March workshops, the AG found the participating group, even without a full council quorum, functioned as an ad hoc committee subject to FOIA notice requirements, though no remedy was ordered for those two meetings given the impracticality of unwinding the process. On the April and May public-input workshops, the AG applied the principle that FOIA's notice obligation doesn't depend on which entity formally sponsors a meeting, and found the notices published by a regional planning council, which never mentioned the Comprehensive Plan by name, insufficient to alert Middletown residents. On the August and October council meetings, the AG applied Section 10004(e)(2)'s seven-day notice requirement and Section 10004(e)(4)'s conspicuous-posting requirement, finding both meetings fell short. Because Section 10002(f) requires an agenda to give the public a general statement of major issues to be discussed, and because the cumulative effect of these violations deprived residents of adequate notice at pivotal points in adopting a plan with broad impact, the AG voided the council's adoption vote and ordered the town to reconsider the plan anew with strict, seven-day notice.

Citations and references

Statutes:

• 29 Del. C. Section 10002(a), definition of "public body" covering ad hoc committees of a council
• 29 Del. C. Section 10002(f), definition of "agenda" and required contents
• 29 Del. C. Section 10004(e)(2), seven-day advance notice requirement for meetings
• 29 Del. C. Section 10004(e)(4), conspicuous posting requirement for meeting notices

Source

• Landing page: https://attorneygeneral.delaware.gov/1998/01/30/98-ib02-foia-complaint-against-town-of-middletown/

Original opinion text

January 30, 1998

New Castle County – Civil Division

Ms. Patricia McCune

P.O. Box 102

1182 Levels Road

Middletown, DE 19709

RE: Freedom of Information Act Complaint

Against Town of Middletown

Dear Ms. McCune:

This letter is our written determination in response to your

complaint alleging that the Town of Middletown (the “Town”)

violated the Freedom of Information Act, 29 Del. C. Sections

10001-10005 (“FOIA”).

Your letter of complaint dated October 14, 1997 was received by

this Office on October 27, 1997. By letter dated October 30,

1997, we asked the Town to respond within ten days to your

allegations that the City had violated the open meeting

requirements of FOIA. By letter dated November 10, 1997, the Town

responded, denying any violations of FOIA.

By letter dated November 18, 1997, we asked the Town to provide

us with copies of notices and agenda for various meetings, which

were sent to us under cover of letter dated November 21, 1997.

In your letter, you allege that the Town violated FOIA by failing

to give notice to the public of meetings to discuss the

development and eventual adoption of the Town’s Comprehensive

Plan. You also allege that the Town did not hold a public meeting

to review comments on the Draft Comprehensive Plan from the

Cabinet Committee on State Planning Issues and the Office of

State Planning Coordination.

As for your second allegation, the Town responds that it “merely

submitted plans, as required by law to these State agencies. What

happened, as far as they are concerned, is unknown to the Town,

and certainly there was no Town involvement either official or

unofficial with regard to the proceedings before the State

committees after submission of the proposed plan.”

The submission of local land use plans to state agencies is

required by the Land Use Planning Act (“LUPA”), 29 Del. C.

Chapter 92. To the extent you are complaining about whether the

Town complied with LUPA, that is outside the jurisdiction of this

Office and will not be addressed further. We will focus, instead,

on your allegations that the Town failed to give the required

notice to the public when it held meetings during 1997 to discuss

and finally adopt its Comprehensive Plan for land use.

Summary of the Law

Section 10004 of Title 29 of the Delaware Code provides that

“[e]very meeting of all public bodies shall be open to the

public” except as authorized by statute for executive session. A

“public body” is defined to include any “board, commission,

department, agency, committee, ad hoc committee, special

committee, temporary committee, advisory board and committee,

[or] subcommittee” appointed by any body which is “impliedly or

specifically charged” by another public body “to advise or to

make reports, investigations or recommendations.” 29 Del. C.

Section 10002(a).

Section 10004(e)(2) provides: “All public bodies shall give

public notice of their regular meetings and of their intent to

hold an executive session closed to the public, 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; . . . .” Section 10004(e)(4) requires that

notice “shall include, but not be limited to, conspicuous posting

of said notice at the principal place of the public body holding

the meeting, . . . .”

“Agenda” is defined to “include but is not limited to 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 ground or grounds therefor . .

. .” 29 Del. C. Section 10002(f).

Discussion and Findings

The Town’s Draft Comprehensive Plan was initially prepared by the

Institute for Public Administration of the College of Human

Resources, Education and Public Policy of the University of

Delaware. On January 9 and March 13, 1997, members of the

Institute staff, the Town Planning Commission, the Mayor, and

members of the Town Council held workshops to provide direction

for the development of the plan. According to the Town, “[t]hese

were not advertised meetings and were merely meetings to discuss

generally the proposed form of the comprehensive plan, as well as

the status of the study. Additionally, a quorum of the Council

members were not in attendance at the meeting.”

These two meetings “were followed by an advertised public

workshop which was held on April 23, 1997, the purpose of which

was to secure citizen input to the proposed plan.” According to

the Town, “[t]his meeting was actually called by personnel of

Wilmapco [Wilmington Area Planning Council], and was not in any

way called by Council of the Town of Middletown, nor any of its

functioning boards.” The Town claims that notice of this meeting

was published in The News Journal. The copy of the notice

provided to us advertised that there would be a “Mobility

Friendly Design Standards Workshop” from 4:00-8:00 p.m. on

Wednesday, April 23, 1997 at the Middletown Public Works

Building.

The Town states that there was another “advertised public meeting

on May 21, 1997 which was held in the Public Works Building of

the Town of Middletown . . . to secure citizen input.” Again, the

only notice of this meeting was published in The News Journal,

and it advertised a “Mobility Friendly Design Standards Public

Workshop.”

At a meeting on August 4, 1997, the Town Council reviewed the

status of the Comprehensive Plan and invited people from the

University of Delaware to answer questions about the plan. Notice

of this meeting was published in the Middletown Transcript on

July 31, 1997, as well as posted in the Town Hall (but on what

date is not certain). The Comprehensive Plan was included as an

item on the agenda for that meeting.

The Town Council again considered the Comprehensive Plan at its

meeting on September 8, 1997. The Town claims that notice was

given to the public in the newspaper as well as by posting in the

Town Hall, but it is not clear when this was done since the Town

did not provide us with copies of the notices which we requested.

The Town states that “[a]ction on the plan was deferred until the

Council meeting in October of 1997.”

At a meeting on October 6, 1997, the Town Council voted to adopt

the Comprehensive Plan. Notice of that meeting was published in

the Middletown Transcript on October 2, 1997, as well as posted

in the Town Hall (on what date, it is not clear). Approval of the

Comprehensive Plan was included as an agenda item.

A. The Institute Workshops

The Town admits that the two workshops held on January 9 and

March 13, 1997 “were not advertised.” Apparently, the Town

believes that since “a quorum of the Council was not in

attendance at the meeting,” the open meeting law did not apply.

This Office has previously determined that meetings of less than

a quorum of a public body may still be subject to FOIA if they

appear to be a deliberate attempt to circumvent the requirements

of the law. See Att’y Gen. Op. 96-IB02 (Jan. 2, 1996). Moreover,

just calling a meeting a “workshop” does not take it outside the

requirements of the open meeting law. See Att’y Gen. Op. 96-IB11

(Mar. 20, 1996).

Even if less than a quorum of the Town Council was present at the

Institute workshops, we find that they constituted an ad hoc

committee of the Council and therefore their meeting, without

notice to the public, violated FOIA. Since it would be

counter-productive to turn the clock back to the beginning of the

Comprehensive Plan process, we do not think that any remedial

action for these violations of FOIA is required. This conclusion,

however, is limited to the specific facts of this case, and our

Office does not consider this aspect of our determination to be

binding with respect to any similar complaint in the future.

B. The April-May Public Workshops

The Town describes the meetings on April 23 and May 21, 1997 as

designed “to secure citizen input to the proposed plan.” As such,

they were crucial to the public’s opportunity to be heard and to

influence the process by which local land use decisions would be

made. The only documents supplied to us by the Town evidencing

notice given of those meetings were published in The News

Journal, not by the Town, but by Wilmapco. Further, those notices

did not mention the Town’s Comprehensive Plan, but rather a

“Mobility Friendly Design Standards Public Workshop.” The Town

did not submit any evidence as to whether any members of the

public attended the workshops, or whether the Comprehensive Plan

is what was really discussed. In any event, the Wilmapco notice

in the newspaper — buried deep in the legal notices section —

would hardly give a citizen of the Town adequate notice that his

or her input into the Comprehensive Plan was being invited.

The Town suggests that it was not incumbent on it to provide the

required notice under FOIA, because Wilmapco arranged the public

workshops. This Office has previously determined that it is

irrelevant who is the formal sponsor of a public meeting. “[A]
meeting as defined in Section 10002(e) does not cease to be a

meeting because the Council gathers as a result of an invitation

of another public official or body.” Att’y Gen. Op. 94-IO36 (Dec.

15, 1994). We find that the Town violated the public notice

provisions of FOIA by failing to post notices with agenda so as

to inform the citizens of the Town that their input was being

sought regarding the proposed Comprehensive Plan.

C. The Town Council Meetings

With regard to the August 4, 1997 meeting, the Town published

notice and the agenda (which included “Middletown Comprehensive

Plan”) in the newspaper five days before (on July 31, 1997).

TheTown did not provide us with copies of the notices for the

September 8, 1997 meeting, but the minutes show that the

comprehensive plan was not discussed; the Mayor merely indicated

that had copies for anyone’s review. The notice and agenda for

the October 6, 1997 meeting was published in the newspaper four

days before (on October 2, 1997). The agenda included

“Comprehensive Plan approval.”

Unless there are special circumstances, FOIA requires public

bodies to post notice of their meetings at least seven days in

advance. The Town Council did not, for either the August 4 or the

October 6, 1997 meetings, and therefore violated FOIA. The

violation is all the more serious since the Council was preparing

to vote on a land use plan that would have considerable impact on

the lives of all of the Town’s citizens.

The Town takes the position that it made every effort to involve

the public in the decision-making process leading up to the

adoption of the Comprehensive Plan. The Town points out that

there was a third public workshop on June 5, 1997, for which

notice was “personally delivered to all the residents of the

Town.” In addition to the three public workshops, “there were

presentations made to civic associations, the [Middletown]
Chamber of Commerce, and the Appoquinimink School District.” The

Town maintains that “ample opportunity [was] given to each and

every citizen of the area as to the proposed plan and

opportunities to have input.”

We do not perceive any conscious intent by the Town to keep the

public in the dark about the Comprehensive Plan. Nevertheless, a

series of FOIA violations did occur, and they may have deprived

some members of the public of timely and complete information

about several crucial steps in the process that led to the

Council’s adoption of the Plan on October 6, 1997. Accordingly,

we believe that the action taken by the Council adopting the Plan

is void because it was done in violation of FOIA.

To remedy these FOIA violations, we direct the Town to call a

special meeting to consider anew whether to adopt (not simply

ratify) the Comprehensive Plan. Alternatively, the Town may

include the issue of adoption of the Comprehensive Plan as an

agenda item at a regular meeting provided that th notice of the

regular meeting adequately provides notice that the issue of the

Comprehensive Plan will be considered at such regular meeting.

Notice of that meeting must be given at least seven days in

advance, and the notice and agenda must be posted conspicuously

in the Town Hall as required by FOIA. While not required by FOIA

nor imposed by this office as a condition of FOIA compliance, the

Town should also consider additional means (e.g., newspaper,

personal mail) of giving the public notice so that all interested

citizens can attend to voice their views.

The courts of this state and the Department of Justice have been

consistent in requiring strict compliance with FOIA. The Town

should be vigilant to assure that all future meeting notices and

agenda meet that standard of strict compliance irrespective of

the matter of public concern under consideration.

Conclusion

Based on the complaint, and the Town’s written responses and

documents provided to us, we determine that the Town violated the

open meeting requirements of FOIA by failing to post the required

notices and agendas for the public workshops on April 23 and May

21, 1997, and for failing to provide the required notice for the

Town Council meetings on August 4 and October 6, 1997. We direct

the Town to take the remedial measures outlined above as soon as

practicable, and to provide us with satisfactory proof that such

measures have been taken in accordance with FOIA.

Very truly yours,

W. Michael Tupman

Deputy Attorney General

Approved:

Michael J. Rich

State Solicitor

cc: The Honorable M. Jane Brady

Attorney General

Keith R. Brady, Esquire

Chief Deputy Attorney General

Robert E. Daley, Esquire

Town Solicitor

Chrystyna Lafferty

Opinion Coordinator