Does a planning commission's meeting notice have to specifically mention that it might waive a code requirement?

Official title

08-IB09: RE: Freedom of Information Act Complaint Against City of Rehoboth Beach Planning Commission

Plain-English summary

After the Rehoboth Beach Planning Commission denied a Lee Street lot-partition application, the applicant asked the Commission to reconsider under a municipal code section that normally bars re-filing within a year unless circumstances changed. The meeting notice described the item only as a "Request for Reconsideration" under that code section. At the meeting, instead of finding changed circumstances, the Commission voted to waive the code section entirely and let the application proceed. A neighbor complained that the notice never mentioned a possible waiver. The AG found no FOIA violation: the code section itself doesn't provide for waiver, but whether the Commission had authority to waive it is a separate municipal-law question outside the AG's FOIA jurisdiction. What mattered for FOIA purposes was that the notice clearly flagged the reconsideration of the partition application as the meeting's real subject, and the waiver was just the procedural route the Commission used to decide that same request, not a distinct topic the agenda needed to call out separately. The opinion distinguished this from cases where an agenda's broad wording hid the actual, different subject a body intended to take up.

Currency note

This opinion was issued in 2008. 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 a meeting agenda lists a "request for reconsideration," does it also have to flag that the body might waive a code requirement to grant it?
A: No, according to this opinion, when the waiver is simply the procedural mechanism used to resolve the reconsideration request rather than a separate matter of public business.

Q: Can the AG's FOIA office decide whether a city planning commission had legal authority to waive a code requirement?
A: No. This opinion states that whether a waiver was a proper action under the municipal code is a separate legal question outside the scope of what FOIA lets the AG's office resolve.

Q: When does vague agenda wording actually violate FOIA?
A: Per this opinion's discussion of prior case law, a violation occurs when the wording is so broad that it hides a specific, different subject the body knows it will actually take up, not when it accurately names the real topic under a general label.

Background and statutory framework

The complaint concerned the March 7, 2008 Rehoboth Beach Planning Commission meeting notice for reconsideration of a denied subdivision partition application, at which the Commission voted to waive the code's one-year re-filing bar. Applying the seven-day notice requirement at 29 Del. C. § 10004(e)(2), the definition of "agenda" at § 10002(a), and FOIA's declaration of policy at § 10001, and applying the requirement that an agenda be worded in plain, comprehensible language and directly state the meeting's purpose (Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd.), while distinguishing the case where broad agenda wording concealed the true subject actually discussed (Ianni v. Dep't of Elections of New Castle County), and following its own precedent that an agenda need not detail every possible course of action a body might take (Att'y Gen. Op. 06-IB-09), the AG found the reconsideration notice adequately covered the waiver vote.

Citations and references

Statutes:

• 29 Del. C. § 10004(e)(2), public bodies must give at least seven days' notice, including an agenda, of regular meetings
• 29 Del. C. § 10002(a), defines "agenda" as a general statement of the major issues expected to be discussed
• 29 Del. C. § 10001, FOIA's declaration of policy favoring public observation and monitoring of government

Cases:

• Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd., 1994 WL 274295 (Del. Ch.), an agenda should be worded in plain and comprehensible language and directly state the meeting's purpose
• Ianni v. Dep't of Elections of New Castle County, 1986 WL 9610 (Del. Ch.), an agenda violates FOIA when broad wording hides a specific important subject the body knows it will actually treat
• Att'y Gen. Op. 06-IB-09, 2006 WL 1779490 (Del. A.G.), FOIA does not require an agenda to detail every possible course of action a body might take on a listed topic

Source

• Landing page: https://attorneygeneral.delaware.gov/2008/05/27/08-ib09-re-freedom-of-information-act-complaint-against-city-of-rehoboth-beach-planning-commission/
• Original PDF: not linked from landing page

Original opinion text

Del. Op. Atty. Gen. 08-IB09 (Del.A.G.), 2008 WL 2526437 (Del.A.G.)

Office of the Attorney General

State of Delaware

Opinion No. 08-IB09

May 27, 2008

RE: Freedom of Information Act Complaint Against City of Rehoboth Beach Planning Commission

*1 Ms. Mable M. Granke

1013 Scarborough Ave. Ext.

Rehoboth Beach, DE 19971

Dear Ms. Granke:

On May 1, 2008, the Delaware Department of Justice (“DDOJ”) received your complaint alleging that the City of Rehoboth Beach Planning Commission (“RBPC”) violated the Freedom of Information Act (“FOIA”), 29 Del. C. § 10001 et seq. You allege that the public notice of the RBPC meeting of March 7, 2008 failed to accurately disclose what the RBPC expected to consider at that meeting. On May 2, 2008, we sent your complaint to the RBPC, and we received their response on May 12, 2008.

Statement of the Facts

In January, 2008 the RBPC denied an application for partition of a lot on Lee Street in the City of Rehoboth Beach. In February, 2008, the applicant submitted a request for reconsideration of the application pursuant to § 236-8.1(D) of the Rehoboth Beach Municipal Code, or in the alternative for a waiver of § 236-8.1(D). 1 The RBPC’s public notice informed the public that the New Business for the March 7, 2008 RBPC meeting would include, as stated in the posted agenda:

A. Request for Reconsideration of Partitioning Application No. 1107-05 for the property located at 507 Lee Street, Block Schoolvue D to be divided into two (2) lots, Lot A being 8,474 square feet and Lot B being 8,026 square feet, which had been denied by the Planning Commission at its January 11, 2008 meeting. The request for reconsid eration was submitted by Chate T. B rockstedt, Esq. on behalf of the applicant, Lee Street 507, L.L.C. The re quest for reconsideration has been requested pursuant to Section 236-8.1(D) of the Rehoboth Beach Municipal Code.

B. Subject to the Planning Commission’s determination of the aforementioned reconsideration request, the Planning Commission may proceed with the Preliminary Review of Partitioning Application No. 1107-05 ….

At the March 7 meeting, the RBPC engaged in a “lively discussion,” as you put it, concerning whether the applicant qualified for reconsideration under § 236-8.1(D). Ultimately, the RBPC voted to waive § 236-8.1(D), and proceeded with the Preliminary Review of the application.

Relevant Statutes

29 Del. C. § 10004(e)(2) requires public bodies to provide the public seven days’ notice of the time, place and agenda (if one has been determined) for their regularly scheduled meetings. The agenda is defined as including a “general statement of the major issues expected to be discussed at a public meeting[.]” 29 Del. C. § 10002(a) .

Discussion

Although the real issue here seems to be whether the Municipal Code allows for a waiver of § 236-8.1(D), FOIA does not address whether such waiver was a proper action. Thus, the only question we can decide is whether the RBPC violated FOIA in voting to waive § 236-8.1(D) when the public notice of the meeting did not mention the waiver. In other words, was “request for reconsideration” a sufficient “general statement of the major issues expected to be discussed,” under FOIA or should the public notice have included a reference to the possibility that § 236-8.1(D) might be waived?

2 The purpose of FOIA is to “further the accountability of government” by insuring the public is able to “observe” and “monitor” decision-making by public officials. 29 Del. C. § 10001 . Toward that end, the public must receive notice of meetings of public bodies, including any available agenda, and the agenda must contain “a general statement of the major issues expected to be discussed[.]” 29 Del. C. § 10002(a) . The agenda “should be worded in plain and comprehensible language and must directly state the purpose of the meeting.” Chem. Indus. Council of Del., Inc. v. State Coastal Zone Indus. Control Bd. , 1994 WL 274295,8 (Del. Ch.) . One of the purposes of the March 7 meeting of the RBPC was to reconsider the application to partition the Lee Street property. The agenda for the March 7 meeting clearly and plainly informed the public that the partition application would be reconsidered. Any member of the public who was concerned about the partitioning of the Lee Street property was on notice that it would be discussed and voted on at the March 7 meeting. The “major topic” was the reconsideration of the partition application, not waiver, which was simply the procedural means by which the RBPC disposed of the application.

We can distinguish Ianni v. Dep’t of Elections of New Castle County , 1986 WL 9610, (Del. Ch.) , which held that “when an agency knows that an important specific aspect of a general subject is to be dealt with[,]” it violates FOIA “to state the subject in such broad generalities as to fail to draw the public’s attention to the fact that a specific important subject will be treated.” Id. At *5. In Ianni , the court ruled that the agenda item, “primary election,” was so broad as to be misleading, because the actual topic discussed and decided was consolidation of election districts for the primary election. The case before us, however, presents no Ianni-type problem. The reconsideration of the application to partition the Lee Street property was noticed in the posted agenda specifically and was the major subject discussed and decided at the meeting. The 236-8.1(D) waiver was the procedural mechanism by which the RBPC allowed the partition application to proceed to a Preliminary Review. It was not a separate and distinct topic in itself. Unquestionably, the RBPC’s waiver of an ordinance is a serious matter of significant public concern, but if the RBPC overstepped its authority in waiving a Municipal Code requirement, the remedy lies in some other action, not under FOIA.

We made a similar determination in Att’y Gen. Op . 06-IB-09, 2006 WL 1779490 (Del. A.G.) , where the public notice described the meeting topic at issue as “Ordinance 05-05 – Dangerous Buildings – Final Reading” but in fact a motion passed to waive the final reading and proceed to a vote. As we stated there, FOIA does not require the public body to detail in the agenda “every possible course of action it might take in discussing” the agenda topic. Id. at *3. Unlike in Ianni this situations is functionally indistinguishable from the instant case.

Conclusion

*3 For the reasons stated herein, it is determined that the Rehoboth Beach Planning Commission did not violate FOIA by voting to waive the requirements of § 236-8.1(D) of the Municipal Code regarding a partition application, when the agenda stated that the topic under consideration would be a “Request for Reconsideration … pursuant to Section 236-8.1(D) of the Rehoboth Beach Municipal Code.”

Very truly yours,

Judy Oken Hodas

Deputy Attorney General

Approved

Lawrence W. Lewis

State Solicitor

Footnotes

1
Section 236-8.1(D) provides, “[t]he application for partition or minor subdivision of a parcel of land shall not be considered by the Planning Commission if within the twelve-month period immediately preceding the application the subject parcel was the subject of a subdivision application that was denied by the Planning Commission. However, this limitation shall not be applicable if the majority of the Planning Commission members then present find the facts and circumstances existing at the time of their prior decision have undergone a substantial change justifying their reconsideration, or if the prior application was returned for refiling as a major subdivision.” Section 236-8.1(D) does not provide for waiver.

Del. Op. Atty. Gen. 08-IB09 (Del.A.G.), 2008 WL 2526437 (Del.A.G.)

End of Document
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