Atlantis I Condominium Association v. Bryson

(403 A.2d 711) (Del. May 23, 1979)

ELR Digest

The Delaware Supreme Court upholds the state legislature's delegation via the Beach Preservation Act of 1972, 7 DEL. CODE ANN. ch. 68, to the Department of Natural Resources and Environmental Control (DNREC) of the authority to regulate residential construction on private beaches. The trial court had affirmed the granting of a permit issued by the DNREC for the construction of semidetached condominium apartments on adjoining, privately owned beach-front lots. Appellant questioned the validity of the permit on the ground that the regulations authorizing its issuance are based upon an unconstitutional delegation of legislative powers and exceed the authority of the DNREC under the Act. Appellant further alleged that the purposes of the Act are too vague and indefinite to constitute a proper grant of authority to the state agency to adopt regulations governing residential construction on private beach property. Finally, appellant argued that because the Act fails to authorize such construction and fails to set forth standards for such regulations, the DNREC has no authority to issue permits allowing such construction.

The court first upholds the authority of the DNREC to issue such permits, notwithstanding the lack of precise statutory safeguards. The standards necessary to guide agency discretion may be contained in the overall legislative policy and in procedural safeguards. The court notes that the Act indicates a recognition by the General Assembly of the threat to the state from rapid deterioration of its beaches. The lack of specific policy standards, together with the general directives to the agency to preserve and protect the beaches and to adopt the necessary rules to carry out such purposes, suggests the inability of the legislature to articulate specific policies and its consequent deferral to the expertise of the DNREC. The directive that no substantial change be made in the existing characteristics of beaches without written approval of the DNREC supports this deference. The agency's regulatory definition of "substantial change" and the promulgation of regulations requiring permits for certain beach construction effectuate the purposes of the Act and formalize the DNREC's authority to grant or deny "written approval." Furthermore, procedural safeguards in the regulations protect affected parties from arbitrary administrative decisions. Thus, the court holds that the Act necessarily grants the DNREC the implied power to issue permits to regulate construction on private beaches to the extent that the construction affects the beach. Because the Act and the regulations provide a totality of protection against arbitrary administrative discretion, the permit procedures constitute a lawful delegation of legislative power. The lower court decision is affirmed.

The full text of this opinion is available from ELR (7 pp. $1.00, ELR Order No. C-1201).

Counsel for Appellant
Robert L. Halbrook
Wilson, Halbrook, Bayard & Bunting
Wilmington Trust Bldg., 1 W. Market St., Georgetown DE 19947
(302) 856-0017

Counsel for Appellee
June D. MacArtor, Deputy Attorney General
Dep't of Natural Resources and Environmental Control
Tatnall Bldg., Dover DE 19901
(302) 678-4636

James D. Griffin
Griffin & Hackett, P.A.
17 E. Market St., Georgetown DE 19947
(302) 856-9066

McNeilly, J., joined by Duffy and Quillen, JJ.

[OPINION OMITTED BY PUBLISHER IN ORIGINAL SOURCE]