Delmarsh, LLC v. Environmental Appeals Board of the State of Delaware

Summary

The Delaware Supreme Court affirmed the Superior Court’s judgment upholding DNREC’s denial of Delmarsh, LLC’s request to remove six lots from the State Wetlands Map. The Court held that the Environmental Appeals Board properly admitted and considered a historical aerial photograph, correctly interpreted the Wetlands Act to include land connected to tidal waters without requiring daily tidal ebb and flow, and applied the appropriate evidentiary and administrative-review standards. The Court also rejected Delmarsh’s takings claim.

Holdings

1. The Environmental Appeals Board did not abuse its discretion by admitting and considering the 1926 aerial photograph under the relaxed evidentiary rules applicable to administrative proceedings.
2. Under 7 Del. C. § 6603(h), land may be connected to tidal waters and qualify as wetlands even if it is not subject to the daily ebb and flow of tides; periodic tidal flooding, including flooding during storms or spring tides, may satisfy the statutory concept of tidal connection.
3. The Board correctly placed the burden on Delmarsh to show that DNREC's decision was unsupported by the evidence in the record before the Board; its references to substantial weight and the clearly-wrong standard did not constitute reversible legal error because the Board ultimately applied the correct burden-of-proof standard.
4. Substantial evidence supported the Board's determination that Delmarsh's lots were wetlands.
5. Delmarsh did not establish a categorical taking because it measured the alleged economic deprivation using a residential zoning classification obtained after DNREC denied the application, rather than the zoning applicable when DNREC acted, and offered no evidence that the wetlands designation deprived the lots of all economically beneficial use when zoned Conservation-Agriculture.

Questions Presented

1. Whether the Environmental Appeals Board abused its discretion by admitting a 1926 aerial photograph without explaining its ruling.
2. Whether the lots qualified as wetlands under 7 Del. C. § 6603(h), including whether connection to tidal waters requires daily tidal ebb and flow.
3. Whether the Board applied an incorrect deferential standard when reviewing DNREC's decision and statutory interpretation.
4. Whether substantial evidence supported the Board's determination that the lots were wetlands.
5. Whether DNREC's refusal to remove the wetlands designation constituted a categorical regulatory taking under the Fifth Amendment and 7 Del. C. § 6613.

Disposition

affirmed