April 4, 2014

Changes to the Delaware Brownfields Program Affecting Timing of Liability Protection

Sometime this past month, a significant shift happened in the way DNREC SIRS treats entrants into the Delaware Brownfields Program and it's a shift that you need to be aware of if you plan to do Brownfields redevelopment in Delaware. For the past decade or so, if you wanted to redevelop a Brownfields property, you would send in the Brownfields Certification Application and, upon submitting your application (assuming that you are not otherwise a "potentially responsible party" under HSCA), you would receive environmental liability protection from the hazardous substances existing on the property. This is because DNREC interpreted HSCA to say that applicants into the Brownfields program received liability protection upon the submission of the certification application. This interpretation was particularly helpful if you wanted to move quickly to acquire the property and deal with the environmental issues after closing. It was also helpful if you wanted to keep your discussions regarding site acquisition somewhat confidential since there was no public notice required at the time of application submission.

However, that ability to move quickly has now changed. DNREC SIRS has taken another look through HSCA and decided that environmental liability protection only kicks in once the Brownfields Development Agreement (the "BDA") has been executed. Negotiation of the BDA happens after certification of both the property and the potential Brownfields Developer. Although there is a template BDA, there are circumstances where you may want (or need) to deviate from the standard language in the template. Even under the best circumstances (i.e., assuming no substantial changes to the BDA), DNREC must provide public notice within 20 days after entering into negotiations for a BDA and provide a 20-day public notice and comment period AFTER entering into a BDA. Generally, no comments are received, but if you are looking for certainty in what you will be required to do (or not do) under the BDA, you won't have that until the end of the comment period.

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March 5, 2014

The Very Curious Case of New Castle County v. Pike Creek Recreational Services

What can one say about a Delaware Chancery Court opinion in a consolidated New Castle County action to enforce private restrictive covenants and developer's action to compel county review of development plans that was issued one day, corrected the next, then withdrawn and re-issued with clarifications three and a half months later by a specially-appointed Vice Chancellor? A case that involves fifty-year-old and forty-six-year-old "private master plans," the current Unified Development Code "restrictive change statute" (§40.31.130), a plethora of successively-revised record development plans, at least two successive rezonings, another thirty year old Declaration of Covenants, and a series of county council resolutions? Not to mention the interpretation of three previous Delaware court decisions involving the same land? Does the December 30, 2013 opinion in New Castle County v. Pike Creek Recreational Services, C.A. No. 5969-JW, considering cross-motions for summary judgment deal with facts so complex that it is useless in providing guidance beyond the case at hand?

Not at all. The opinion is a treasure trove of tasty tidbits of Delaware real estate law.

The first tidbit: the Chancery Court reiterated the Delaware Supreme Court ruling that a decision of whether proposed plans for Pike Creek conformed to a "master plan" created by private covenants should be left to the courts, not the New Castle County Planning Board. New Castle County v. Richeson, 347 A.2d 135 (Del. 1975). Thus, County Council Resolution 10-217 directed to the Department of Land Use stating that the developer's development plan for homes violated the golf course required in the master plan was an invalid attempt to interpret the master plan. The master plan (as amended) was binding on the developer as a successor owner even though it was not recorded, because its language showed intent to run with the land and the developer had actual notice of it.

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February 26, 2014

More Changes to the Brownfields Grant Policy to Be Discussed at Next HSCA Advisory Committee Meeting

In a previous article, I mentioned that the DNREC Brownfields program has experienced an excess of funding at the end of the grant year and, as a result, the folks running the program are looking at ways to make more funding available for certain qualified projects. This comes after a few years of belt tightening that saw a reduction in reimbursement for things that rightfully should have been reduced (like a cap on subcontractor mark-ups and lab costs) to other things that probably could have been left alone (like a reduction in the amount of funding available to a for-profit developer from $225,000 to $200,000).

Along with opening the door for a very modified Brownfields VCP-like qualified Brownfields Developer (see my earlier blog entry from 11/10/2013), other changes now being discussed include a complete waiver of the 50-cents-on-the-dollar reimbursement for projects resulting in "affordable housing," or housing that receives LEED certification, or upon a written request to DNREC for expenses incurred during the months of March through May of the fiscal year. Clearly, this last category seems to make up what I would call the "eggplant" reimbursement package. You know how when you are sautéing eggplant and it will soak up whatever amount of butter you put in the pan? Well, the reimbursement package you send into DNREC during the last quarter of the fiscal year is like the eggplant and the funding is the butter. Your reimbursement package will soak up whatever funding is left to the limit of your qualifying expenses.

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February 17, 2014

Delaware's Commercial Real Estate Broker's Liens Act - Six Months and Counting

It has now been over six months since the Delaware Commercial Real Estate Broker's Lien Act became effective on August 1, 2013. This new law gives brokers the ability to quickly place a lien on real estate for commissions - previously brokers had to sue for payment and obtain a judgment first. The new Act still has not been tested, as no such lien has yet been filed (as the proponents of the legislation intended - the threat of the potential lien is what Delaware brokers really wanted).

The Delaware Commercial Real Estate Broker's Lien Act, Del. Code Ann. tit. 25, §2601, pertains to both sale and leasing transactions, and can also be used to enforce payments to a broker for "management" and other services for "conveyance or acquisition of commercial real estate." The party claiming the lien must be an individual who holds a Delaware broker license and who is self-employed or employed directly or indirectly by a brokerage organization. The Act applies to any real estate with improvements other than one to four residential units; unimproved land zoned or available for commercial, manufacturing, industrial, retail or multi-family use; unimproved land of any zoning classification being purchased for development or subdivision other than land with four or fewer single-family residential lots; and even real estate used for agricultural purposes unless the purchaser is buying the property for the purpose of continuing agricultural use. The Act also applies to mixed-use real estate, including real estate with one to four residential units that also has another non-residential portion. The Act's lien cannot be imposed on residential condominiums, town homes, mobile homes or other homes sold or leased on a unit-by-unit basis, even if part of a larger building.

The "brokerage agreement" must meet certain requirements for the lien right to apply: it must state the amount or calculation of the broker's compensation; that it is a binding contract under state law; and identify the real estate by description or tax parcel number. This could be a stumbling block for brokers wishing to claim liens, so they should dust off their brokerage agreements to make sure they are in correct form.

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February 11, 2014

Can A Release of A Guarantor Inadvertently Satisfy a Mortgage? Delaware's Talbot Bank v. Albertson

The Talbot case pending before Judge Young in Kent County, Delaware Superior Court shows how careful a bank must be in releasing a co-obligor of a loan. Talbot Bank of Easton, Md. v. Albertson, C.A. No. 10L-06-011 RBY, 2014 Del. Super. LEXIS 8 (Jan. 9, 2014). Though this action brought by the bank to foreclose a second mortgage is far from over (the recently-released opinion is a ruling on the mortgagor's motion for partial summary judgment), regardless of the ultimate outcome this proceeding is a reminder of a basic tenant of surety law and how important it is for a bank to document a release correctly.

Talbot Bank is foreclosing a mortgage from co-owners Edward Albertson and son Kirk Albertson, securing a $350,000 loan. Edward Albertson did not sign a note or guaranty of the loan. Kirk Albertson, William Haddaway and Roger Brown were co-borrowers of the loan; Kirk Albertson also signed a guaranty of the loan; and two additional mortgages also secured the loan (one from William Haddaway and Dawn Hinkle and the other from Roger Brown). Four months later the bank released Roger Brown from his obligations in connection with the loan, and also satisfied Roger Brown's mortgage. The release documents contain no reservation of the Bank's rights against either Edward Albertson or Kirk Albertson and did not reference the Albertson mortgage. The bank did not seek or receive consent from Edward Albertson to the release of Roger Brown or his mortgage. Two months later, Edward and Kirk Albertson executed a third mortgage on the same property in favor of the bank securing another note for $75,000.

Edward Albertson raised as an affirmative defense in the foreclosure action the Restatement (First) of Security §122 (1941), which is followed in Delaware, In re International Reinsurance Corp., 48 A2d 529, 511 (Del. Ch. 1946). The Restatement provides "[w]here the creditor releases a principal, the surety is discharged, unless (a) the surety consents to remain liable notwithstanding the release, or (b) the creditor in the release reserves his rights against the surety." In Talbot, Edward Albertson filed a motion for summary judgment on this affirmative defense, which if he prevailed would have acted to release the mortgage and halt the foreclosure. Previously, Judge Young denied the bank's own motion for summary judgment on the same issue. Talbot Bank of Easton, Md. v. Albertson, C.A. No. 10L-06-011 RBY, 2013 Del. Super. LEXIS 343 (June 5, 2013). In the more recent opinion, Judge Young then denied the mortgagor's motion for summary judgment, so the case will proceed with plaintiff and defendants presenting evidence surrounding the circumstances and language of the mortgages and the release. Talbot Bank of Easton, Md. v. Albertson, C.A. No. 10L-06-011 RBY, 2014 Del. Super. LEXIS 8, at *12. (Jan 9, 2014).

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November 10, 2013

DNREC Contemplating Opening Up Brownfields Program for Current Owners (Sort of).

The Delaware Brownfields Program is now in its ninth year. There was a time in the past when current owners of property contaminated with hazardous substances could enter into the program and receive the liability protection and grant funding to carry on the investigation and cleanup. All that was necessary was for the owner to demonstrate to DNREC's satisfaction that they did not cause or contribute to the contamination. This was known as the "Brownfields VCP" option. Word spread fast, smart owners lined up, and quickly the funding provided to the Brownfields Program was depleted.

DNREC did not look favorably upon this turn of events. First, there was some internal debate as to whether current owners could actually qualify under the law to become recipients of Brownfields liability protection or grant funding. Secondly, the number of Brownfields VCP applicants overshadowed the intended Brownfields grant recipients (those applicants that could demonstrate that they were not now current or former owners/operators, among others). Had the number of Brownfields VCP applicants been less or the funding they absorbed been less, it is not inconceivable that the Brownfields VCP option might have continued. But alas, pigs get fat and hogs get slaughtered, and the Brownfields VCP option was a hog.

Fast forward to today. Closing the Brownfields VCP option a few years ago, as well as making other changes to the eligibility rules, has resulted in an excess of Brownfields funding at the end of this grant year. This is a shame since there is no lack of worthy Brownfields sites or applicants, so DNREC is rebalancing the eligibility requirements. On deck for consideration is opening back up the Brownfields VCP option, but on a much more limited basis.

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October 20, 2013

In Sales Agreements for Contaminated Property, Say What You Mean and Mean What You Say

A recent case decided by the Delaware Court of Chancery should serve as a warning and reminder to property owners hoping to sell their property that what have become standard representations and warranties regarding the disclosure of known environmental problems at the property are binding and are to be taken very seriously. This is true even if within the sales agreement there are other representations that the property has been used for a purpose which is often associated with environmental contamination and both parties agree that the buyer has unfettered investigatory discretion. If you say you have given the buyer all of the documents you have that show interaction with the environmental regulatory agency(ies), you had better mean it and live up to it. Otherwise, even if the buyer discovers your oversight, and the two of you renegotiate the deal to address your oversight, you can still be held liable for the actual damages your oversight caused.

In Universal Enterprise Group L.P., et al. v. Duncan Petroleum Corporation and Robert M. Duncan (C.A. No. 4948-VCL; July 1, 2013), Robert Duncan and his company (together "Duncan") owned 19 gas stations and associated real estate in Delaware and Maryland. Duncan had a sales agreement with a Buyer to purchase all 19 stations. Within the sales agreement, there was a provision that stated:

"To the best of Seller's knowledge, the Seller has received no notice as of the Effective Date of the Agreement from DNREC or MDE requiring the Seller to undertake environmental corrective or remedial actions .. and to the best of Seller's actual knowledge, the Property is in compliance with all applicable Environmental Laws."

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October 13, 2013

For Our Lender Friends: The Brownfields Program Has a Deal For You

When a borrower defaults on his loan, the lender often finds itself in the position of acquiring the property that secured the loan. After the lender has acquired the property either through foreclosure or a deed in lieu of foreclosure, it begins the process of trying to sell the property in order to, hopefully, recoup the value of the loan. However, sometimes the past activities of the borrower, or past activities of the previous owner, raise questions as to whether the property may be environmentally contaminated. When that happens, often the lender and the potential purchaser begin a back-and-forth discussion about who should pay for the environmental studies (for example, the Phase I, Phase II, and/or other environmental investigations) and how the payment for those environmental studies should be accounted for. Sometimes the deal for the conveyance of the property successfully concludes and sometimes it does not. In either case, who pays for the studies? Who puts up the escrow? Is it a shared expense or does one party bear the burden? Who receives the environmental reports when they are completed?

In Delaware, there is an option for lenders that few, if any, have taken advantage of to date. In essence, a lender can qualify as a Brownfields Developer under the Delaware Brownfields Program and the cost of the environmental studies can come from the Brownfield grant. The lender does not need to ultimately develop the property, but it does need to share the information from the environmental studies with DNREC. Given that lenders enjoy the secured creditor liability exemption under the Delaware Hazardous Substance Cleanup Act, there is no risk to the lender that it will be held liable for the environmental contamination discovered on the property as a result of the environmental study, except where the lender itself has contributed to the contamination.

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September 19, 2013

Maryland District Court Denies Perdue and Local Farm's Attempt to Recover Attorneys' Fees

cthouse.jpgOn Tuesday, August 27, 2013, the United States District Court for the District of Maryland (4th Circuit) denied Defendants Perdue and Alan Hudson's request for legal fees in connection with a failed citizen suit under the Clean Water Act ("CWA"), 33 U.S.C. § 1365.

In Waterkeeper Alliance, Inc. v. Hudson, et al., 1:10-cv-00487-WMN, Waterkeeper Alliance had filed a citizen suit under the CWA against Perdue and Hudson, who used his family farm to raise Cornish game hens for Perdue. Waterkeeper Alliance alleged that Hudson's poultry operation was causing contaminants to reach the Pokomoke River. After a bench trial in December 2012, Judge William M. Nickerson found in favor of Defendants because "Plaintiff had not met its burden of establishing that the poultry operation contributed to [the] discharges."

As the prevailing party, Defendants moved to recoup $3 million in attorneys' fees and costs under the CWA. First, the Court held that a higher standard applied when determining whether prevailing defendants were entitled to a fee recovery, than when analyzing the issue for prevailing plaintiffs. The Court applied the standard adopted by the majority of courts that have addressed this issue; that is, "to obtain an award of fees, a prevailing defendant must show that the civil action was 'frivolous, unreasonable, or without foundation,' or that the plaintiff continued to litigate 'after it clearly became so.'" (quoting Sierra Club v. Cripple Creek & Victor Gold Mining Co., 509 F. Supp. 2d 943, 950 (D. Colo. 2006) (citing Christiansburg Garment Co. v, E.E.O.C., 434 U.S. 412, 419-20 (1978))).

The Court denied Defendants' motion for attorneys' fees and costs because Plaintiff's prosecution of the action did not reach the standard set forth in Christiansburg Garment. The Court explained that the problem with Plaintiff's case was not necessarily the merits, "but ... the manner in which Plaintiff went about attempting to prove those merits, specifically the lack of sufficient and appropriate sampling and testing." Had Plaintiff done additional sampling and testing, it may have been able to show that Hudson's poultry operation contributed to the contamination of the Pokomoke River. The Court reasoned "that this kind of tactical misjudgment does not support an award of attorneys' fees." Furthermore, the Court found Plaintiff's expert witness less credible than Defendants'. Again, this did not rise to the level required by Christiansburg Garment. "In this Court's view, Plaintiff's claim was not pursued or litigated as well as it could have been. That, however, is not the same as concluding that the underlying claim itself was 'frivolous, unreasonable or without foundation,' or ever clearly became so."

August 24, 2013

DNREC HSCA Advisory Committee to Meet September 5, 2013

Since 2004, DNREC has maintained an advisory committee composed of environmental consultants, members of academia, the civic community, attorneys, and DNREC staff persons to provide guidance and consultation to the DNREC divisions involved in the regulation of hazardous substance investigations and cleanups, and underground and aboveground storage tanks. These are substantive and technically complex meetings generally lasting two to three hours. Although the full committee meets only quarterly, there are subcommittees (the Brownfields Finance Subcommittee, the Regulatory Subcommittee, and the Outreach and Education Subcommittee) that meet in between the full committee meetings and that report to the full committee at the quarterly meeting.

Why and I telling you all of this? Because the issues discussed and debated by this advisory committee are the practical issues being addressed by DNREC every day in the field and with the regulated community. If you are going to hire an environmental consultant or other environmental professional to do work in Delaware, and the work involves hazardous substance investigation/remediation or work with underground or aboveground storage tanks, a good bet is to look for entities that have a consistent presence on this advisory committee.

As an example of the substantive information that is discussed, I am including a draft document that you can link to from this blog site that was discussed at the last committee meeting and that will come up again either at the next full committee meeting on September 5th, or in one of the subcommittee meetings.

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August 17, 2013

Delaware Loses an Environmental Inspiration - June D. MacArtor, Esq.

June MacArtor, former Deputy Attorney General for DNREC, passed away on June 13, 2013, at the age of 83. June was a legend in environmental circles in Delaware having been one of the first women admitted to the Delaware Bar in 1974, and she continued as an active volunteer for many environmental causes until just a couple of years ago.

June attended Villanova Law School and began work with the Delaware Attorney General's Office where she quickly rose to become the Chief of the Environmental Law Group. In 1990, she retired and focused her resources as a member of the New Castle County Planning Board, the Delaware Nature Society, Widener University School of Law's Mid-Atlantic Environmental Law Center Advisory Board, the Delaware State Bar Association's Environmental Committee, and on the environmental and land use committees of the Delaware League of Women Voters.

I first met June when I was a scientist at DNREC and June was the Deputy Director of the division in which I was employed (then called the Division of Air and Waste Management). She was kind and calm, and very smart. I asked her why she decided to go to law school at the experienced age of 40, and she replied that she "grew tired of just saying 'please'." I have heard this response from her repeated throughout the years by many people. It was "vintage June."

While June served on the New Castle County Planning Board, she often served as the voice of reason and experience on environmental issues related to buffer zones, wetlands, open space, and stormwater. Her tenure on that Board for twenty years, and particularly her re-appointments during volatile political times, speaks volumes about her standing in our community.

She will be sorely missed.

August 10, 2013

Case Study: DNREC Case-by-Case Decisionmaking on Individual Applications Versus Standardized Decisions on Group Applications

Glade v. DNREC (2001 Del. Super. LEXIS 258) illustrates the disadvantages of applying to DNREC for a permit as part of a large group of applications. In this case, individual applications had a higher approval rate. DNREC evaluated the group applications through a point-based decision-making system which it developed to handle the larger volume as opposed to considering the applications on a case-by-case basis. Courts often give agencies like DNREC deference in the creation of such systems and uphold the outcomes they produce against appeals; individual applications may not have to contend with these types of systems, leading to a stronger chance of success in appealing a rejection.

The Glade L.L.C. (The Glade) was a developer with several waterfront properties boarding Holland Glade. Many property owners, including The Glade, wished to build docks and piers (walkways to the docks) on Holland Glade, but had to apply to DNREC for approval in order to do so. The Glade hired an environmental consultant to assess the ways in which it could build piers and docks with minimal environmental impact on the Holland Glade, and thereby improve its chances of receiving DNREC approval. The solution included, in part, sharing one pier for every two docks, shortening the piers, and using metal instead of wood for building material. The Glade bundled 41 applications for piers and docks. However, before The Glade submitted its bundled applications, four individual residents along the Holland Glade sent in their own individual applications.

DNREC held the four individual applications, pending negotiations with The Glade. However, DNREC made its decision on those applications before addressing The Glade's bundle; ultimately, three of the four were approved, with each application reviewed individually. DNREC subsequently denied about half of The Glade's bundled applications. DNREC reached this decision through establishing a matrix (the Matrix) to deal with a large, six-week-long influx of applications to build in Holland Glade, which included The Glade's bundled applications. The Matrix measured the environmental impact of potential piers and docks through certain factors (e.g. whether the pier was shared, distance of a pier's dock from the mouth of Holland Glade, the length of the walkway), weighing the factors by importance and ultimately giving each potential pier or dock an impact score.

The Glade appealed to the Environmental Appeals Board (EAB), arguing that DNREC's decision was arbitrary and capricious. The EAB upheld DNREC's denial of the application and The Glade to appeal to the Superior Court of Delaware.

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August 3, 2013

Balancing the Equities - A Case Study of a DNREC Cease and Desist Order

James Julian, Inc. v. Wilson (1986 Del. Ch. LEXIS 462) illustrates that a cease and desist order from DNREC isn't always the last word in whether an industrial plant has to shut down. If a plant owner decides to continue operations after receiving such a letter, DNREC may attempt to press charges and go to court to get an injunction, a court order forcing the plant to close. However courts in this situation will balance the harm that would come from shutting down the plant against the harm that would occur from allowing it to remain open. It is up to DNREC to persuade the court to grant the injunction. It must show both that closing the plant is a less harmful alternative to keeping it open and that DNREC would likely win its case on the merits. If DNREC cannot prove both to a court, the court will deny an injunction and allow a plant owner to continue business as usual.

James Julian opened an asphalt plant in October of 1985. The plant was established as a temporary operation to assist with the Delaware Department of Transportation's construction of Route 13 and was scheduled to close by February of 1987. When Julian applied to DNREC for a permit for the plant, he described the plant's pollution control measures. The plant would be equipped with a wet venture scrubber, used to remove particulate matter from exhaust before discharging it through a stack. The scrubber was state of the art and best system available in dealing with emissions, thus the plant emissions were below the Environmental Protection Agency's contamination limits. Even so, it was impossible to operate the plant without emitting an odor. DNREC issued Julian's permit on five conditions, none of which pertained to odor.

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July 26, 2013

PLI's New "EPA Compliance and Enforcement Answer Book 2013" is Worth the Price

Thumbnail image for 20130715_152654.jpgPracticing Law Institute ("PLI") has a new publication out that addresses EPA and, to the extent similar, State enforcement of environmental laws. To be frank with you, I don't have any handbooks like this on my shelf and I wasn't so sure one might be helpful. Before heading off to law school, I worked for the state environmental regulatory agency for eight years as a scientist and regulator, and I have a pretty good idea how enforcement actions are approached by the state. I also know that EPA enforcement is a different animal, but there are similarities.

So, I was surprised at how useful this book really is. It's a practical book that I found I could begin using immediately. It isn't a textbook, so if you want anything more than a very brief overview of the major environmental laws, look elsewhere. However, in order to concentrate the enforcement action information and keep the book as practical and useful, more background information on the major environmental laws would have been a distraction.

There are a couple of sleeper chapters on compliance monitoring and reporting and an overview of major federal environmental laws, and a couple of chapters with narrow subject matter that you may not come across in your practice (citizen suits, and imminent and substantial endangerment authority). But the bulk of the book is a behind-the-scenes look at how EPA approaches different kinds of enforcement actions (administrative, civil, and criminal), the interaction between state regulators and EPA, how penalties are calculated, and practical advice on regulatory inspections. Good stuff.

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July 16, 2013

Coastal Zone Board Finds Sierra Club and Delaware Audubon Lack Standing in Refinery Permit Appeal

20130716_132959.jpgThe Delaware Chapter of the Sierra Club and the Delaware Audubon Society (the "Appellants") ultimately lost an appeal to the Coastal Zone Industrial Control Board involving DNREC's issuance of an air permit to the owner of the Delaware City refinery (PBF Energy). DNREC had previously issued an air permit to PBF Energy affecting operations at its docking facility in Delaware City. Appellants argued that PBF Energy was required to also apply for, and receive, a Coastal Zone permit.

The Coastal Zone Act (7 Del. C. Ch. 70) bans heavy industrial uses of any kind, including bulk product transfer facilities like the refinery's docking facility, not in operation on June 28, 1971 in Delaware's coastal zone. Nonconforming uses are grandfathered, but expansions or extensions of any nonconforming use are allowed only by permit. The docking facility at the Delaware City refinery was in use prior to 1971. I am somewhat at a loss to explain what, exactly, the Appellants wanted to argue. This is due in large part to the curious move by the attorney for the Appellants of not presenting any oral argument but, instead, simply referencing the exhibit book that had been submitted to the Board sometime prior to the hearing, and then sitting down. Having not seen the exhibit book, I am at a loss. Judging from the presentation by the refinery attorney, I believe the position of the Appellants was that the issuance of the air permit allowed an impermissible expansion of the nonconforming use and that this expansion should have been the subject of a Coastal Zone permit hearing. I'm just guessing here, so my apologies to the Appellants if I have clumsily characterized their position.

Ultimately, not presenting an oral argument was of no consequence since, after hours of direct and cross exam of the refinery's witnesses, the Board decided that the Appellants lacked standing and dismissed their appeal. Appellants based their position that they had standing on the submission of 16 affidavits. Within these affidavits, individuals living near the refinery purported that they hiked less, did less canoeing, and did less bird-watching as a result of the increase in activity associated with the refinery, most notably the increase in railcar traffic. The individuals were not called as witnesses, so there was no direct or cross-examination to more fully develop this position. Ultimately, the Board couldn't reach that far and, in a unanimous decision, decided the Appellants lacked standing.

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