In Cartanza v. DNREC, 2008 Del. Ch. LEXIS 205, several landowners, representing a class of more than 3,000 landowners in similar circumstances, sued the Delaware Department of Natural Resources and Environmental Control (DNREC) in the Delaware Court of Chancery. Purportedly acting under its statutory authority, DNREC had created maps designating Natural Areas (NAs) and State Resource Areas (SRAs) which included the landowners’ properties. The landowners claimed that DNREC’s creation and adoption of these maps deprived them of certain property rights, as well as their constitutional rights to due process and equal protection. The court denied the landowners’ claims with respect to the NA maps, since it found that designation as a Natural Area carried no independent legal significance and thus no possible harm. Meanwhile, the court ruled that DNREC’s adoption of the SRA maps was beyond its statutory authority and therefore invalid.
DNREC created the Natural Area maps under Delaware’s Natural Areas Preservation System (NAPS) (Chapter 73 of Title 7 of the Delaware Code). This statute tasks DNREC with establishing and maintaining a registry of Natural Areas to be acquired and preserved by the state. In effect, designation as a Natural Area places a property on a “wish list” of lands the state would like to obtain. DNREC may acquire Natural Areas from their owners through voluntary means, but may not use eminent domain or other coercive measures. Critically, the court found that NA designations had no effect on county zoning requirements and placed no restrictions on owners’ use or enjoyment of their property, and thus carried no adverse legal consequences for the landowners. Since the NA designations caused the landowners no injury, the court held that they had no standing to challenge the designations.
The landowners also argued that, since New Castle County had taken NA designations into account in its land-use code, DNREC’s NA designations caused them harm. The court also rejected this argument, finding that since neither DNREC nor the state require the County to make use of the NA designations, the landowners should proceed against the County itself if they wished to pursue this theory, as any harm would result from actions taken by the County itself, rather than by DNREC.
DNREC is responsible for designating State Resource Areas (SRAs) under the Delaware Land Protection Act (DLP Act) (Chapter 75 of Title 7 of the Delaware Code). The DLP Act defines SRAs as “open lands” with “great natural scenic beauty, or . . . whose existing openness, natural condition or present state of use, if retained, would maintain important recreational areas and wildlife habitat, and enhance the present or potential value of abutting or surrounding urban development, or would maintain or enhance the conservation of natural or scenic resources, including environmentally sensitive areas.” Additionally, the DLP Act created the Delaware Open Space Council, whose role is to advise DNREC on the adoption of SRA maps and to create standards and criteria for DNREC to use in the evaluation of lands for designation as SRAs. The court found that, under the statute, the Open Space Council must adopt SRA standards and criteria before DNREC has any power to create SRA maps. Since the Open Space Council had not yet adopted any SRA criteria, DNREC lacked the statutory authority to designate SRAs under the DLP Act.
Unlike the NA maps, which carry no mandatory consequences for counties, the SRA maps must be included by the counties in the conservation portion of their comprehensive land-use plans. Furthermore, the counties must enact zoning ordinances to conserve their designated SRAs shortly after receiving them from DNREC. If the counties fail to do so, they will face budgetary consequences. In this way, an SRA designation would subject a landowner to additional mandatory regulation from the county. However, since the Open Space Council had not yet adopted standards and criteria for SRAs as required by the DLP Act, the court held that DNREC lacked the power to create SRA maps, and that the SRA maps and designations it had created so far were therefore void and without legal effect.
The landowners later contested this decision, filing exceptions to the court’s ruling that they lacked standing to challenge DNREC’s NA designations. Cartanza v. DNREC, 2009 Del. Ch. LEXIS 6, *2 (Del. Ch. Jan. 12, 2009). Finding that the landowners had suffered no injury from the NA designations and thus could not demonstrate all the requirements of an “actual controversy,” the court sustained its previous ruling on their lack of standing. The landowners also reiterated their earlier argument that New Castle county’s use of DNREC’s NA designations in its land-use code amounted to an injury caused by the NA designations. Echoing its prior reasoning, however, the court found that, considered in isolation, the NA designations themselves caused the plaintiffs no injury, and the county’s independent actions should be litigated separately. Furthermore, the court found that the landowners had failed to demonstrate an actual injury since they had not yet exhausted all the available administrative options, including seeking a development permit or a zoning variance. Unless and until the landowners took advantage of these remedies, the facts underlying their claim against the county were still subject to change, making a judicial determination improper.
So where do things stand today? If your land has been designated by DNREC as a Natural Area, then you should keep an eye on how the County or municipal land use code treats this designation. Some jurisdictions may adopt DNREC’s Natural Area designation into their code and such adoption could have an effect on how you are allowed to develop your land. However, designation as a State Resource Area is currently not on the table unless and until the Delaware Open Space Council develops criteria for SRA selection.