Delmarsh, LLC v. Environmental Appeals Board of the State of Delaware
Annotate this CaseDelmarsh, LLC, a real-estate company, owned six lots in Bowers, Delaware. The lots had long been designated as wetlands on the State Wetlands Map. The Department of Natural Resources and Environmental Control (“DNREC”) removed a portion of the lots from the Wetlands Map in 2013 at Delmarsh’s request. In June 2019, Delmarsh requested that DNREC designate the remaining portion of the lots as non-wetlands. DNREC denied the request, and Delmarsh appealed to the Environmental Appeals Board (“the Board”). The Board affirmed DNREC’s denial. Delmarsh appealed to the Superior Court, arguing that refusal to reclassify the lands as non-wetlands, constituted a taking. The Superior Court affirmed the Board’s decision. The Delaware Supreme Court affirmed: At the time DNREC turned down Delmarsh’s request to de-designate the remainder of the lots as wetlands, the lots were zoned C/A: Conservation–Agriculture. Instead of focusing on the economic impact of the de-designation on the lots as zoned at the time of DNREC’s decision, Delmarsh relied exclusively on the economic impact on the lots as later rezoned to R-1—single-family residential housing. “By its own admission, the rezoning to residential occurred after the denial of its DNREC application. Delmarsh did not offer any argument or evidence that DNREC’s refusal to redesignate the lots caused them to lose any value while they were zoned as C/A. In the absence of such evidence, the Superior Court held correctly that no taking occurred.”
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