Acierno v. New Castle County (40 F.3d 645, 1994)

OPINION OF THE COURT

HUTCHINSON, Circuit Judge.

This appeal presents yet another dispute between real estate developer Frank Ademo (“Ademo”) and New Castle County, Delaware (“the County”) over Aderno’s commer-dal development plans for land in the County. The underlying action is Aciemo’s request for declaratory and injunctive relief and compensatory and punitive damages for the County’s alleged violations of the Constitution and laws of the United States and 42 U.S.CA. § 1988 (West 1994). Presently before us is the County’s appeal from an order entered by the United States District Court for the District of Delaware granting Acier-no’s motion for a mandatory preliminary injunction directing the County to issue Acier-no a building permit for development of a shopping mall. The preliminary injunction also enjoins and restrains the County from interfering with Acierno’s right to develop the parcel in question as a shopping mall.

In issuing its preliminary injunction, the district court held that Acierno established a substantial likelihood that the County’s actions interfered with Aciemo’s Fourteenth Amendment property interests and his liberty interest to conduct his business as a real estate developer. The district court also concluded that Acierno would suffer irreparable harm unless the County was compelled to issue the budding permit and halt its interference with Acierno’s development. Finally, the court concluded that neither potential hardship to the County nor the public interest outweighed the benefits of issuing the preliminary injunction.

On appeal, the County argues Acierno failed to show he will be irreparably harmed unless a preliminary injunction issues against the County. We agree. A primary purpose of a preliminary injunction is maintenance of the status quo until a decision on the merits of a case is rendered. A mandatory preliminary injunction compelling issuance of a building permit fundamentally alters the status quo. There is no evidence in this record to show that a delay in issuance of the building permit until this case can be decided on its merits would cause irreparable harm to Acierno. We will therefore reverse the district court’s order entering this mandatory preliminary injunction against the County.

I. Factual & Procedural History

A. General Factual Background

In 1971 Acierno was a long term lessor of a large part of some forty acres of land situated in New Castle County, Delaware near the intersection of Interstate Highway 95 and State Route 273. This forty acre parcel was zoned M-l, Manufacturing, and the County’s zoning ordinance then in effect permitted commercial development in an M-1 manufacturing zone. Acierno also owned an adjacent smaller parcel of land zoned C-2, Commercial, a portion of which is directly adjacent to Route 273. These two parcels comprise the property (“the Property”).

In 1971, County planning law required developers to file an “exploratory sketch plan” before the County would finally approve a subdivision plan. On May 11, 1971, Acierno filed an “exploratory sketch plan” with the County Department of Planning (“the Planning Department”) proposing development of an enclosed shopping mall on the Property. On October 8, 1971, in accordance with County regulations, Acierno submitted a more detailed “preliminary-tentative building plan.” It described the enclosed mall as located entirely on the larger, forty acre portion of the Property zoned M-l. On October 22, 1971, the Planning Department disapproved Aciemo’s preliminary-tentative plan.

On November 16, 1971, the New Castle County Council (“County Council”) adopted an amendment to section 23-34 of the County Zoning Code prohibiting the commercial uses previously allowed in an M-l Manufacturing zone. Before this amendment was adopted, Aciemo requested the County’s Planning Board (“Planning Board”) to hold an expedited special meeting to reconsider Acierno’s preliminary-tentative plan. At this meeting on November 8, 1971, the Planning Board reversed the Planning Department and approved Aciemo’s preliminary-tentative plan.

On January 24, 1972, Acierno filed a final plan (“Plan”) for his shopping center with the Planning Department but, on February 24, 1972, the Planning Department voted to reject the final plan (1) because it conflicted with the general comprehensive development plan adopted for the County, (2) because the shape of the tract in issue made it unsuitable for the constmction of a shopping center and (3) because of the impact of the increased traffic the proposed shopping center would bring. Aciemo appealed but this time, on April 26, 1972, the Planning Board affirmed the Planning Department’s rejection. See Acierno v. Folsom, 313 A.2d 904, 905 (Del.Ch.1973), aff'd 311 A.2d 512 (Del.1973).

A series of administrative and judicial appeals followed and, during a further hearing before the Planning Board, Board members voted as follows:

(1) 6 to 0 in favor of Aciemo on the incompatibility of the Plan with the County’s comprehensive development plan;

(2) 4 to 2 in favor of Aciemo on the issue of unsuitable internal design of the project; and

(3)3 to 3 to sustain Planning’s rejection of Aciemo’s Plan because that the proposed development would have an adverse effect on vehicular traffic in the area.

Id. at 905-06. A member of the Planning Board who was absent from this hearing later advised the Chairman of the Planning Board that he would have voted to overrule the Planning Department on all three resolutions if he had been present. See id. at 906. County Council nevertheless affirmed the Planning Board’s decision on January 9, 1973. Id.

On March 14,1975, however, the Delaware Supreme Court ordered County Council to approve and file Acierno’s Plan. See Acierno v. Folsom, 337 A.2d 309, 317 (Del.1975) (reversing unreported Delaware Court of Chancery order granting summary judgment to County). The supreme court first held that “an approval of the Planning Board was binding upon the Planning Department ... and that ... the County Council was obliged, as a ministerial function, to register its approval....” Id. at 313. It also concluded that the Chairman of the Planning Board acted unlawfully in failing to recuse himself during the vote because of his apparent bias and prejudice towards Aciemo and accordingly refused to count the Chairman’s vote. Id. at 316. This changed the vote on the effect of increased traffic, the only issue which had gone against Acierno, to 3-2 in his favor. Id. at 317. The state’s highest court therefore held that a majority of the Planning Board members properly voting had approved Acierno’s proposed development and County Council was bound by this decision. Id. In compliance, County Council approved Aciemo’s Plan on October 28,1975.

Almost twelve years later, in September of 1987, Acierno submitted a revised subdivision plan (“Revised Plan”) to the Planning Department. In it he proposed to: (1) subdivide the Property into three parcels; (2) change building locations and sizes to accommodate the present market; and (3) correct drafting errors along some boundary courses.

In a memorandum dated January 26,1988, Charles D. McCombs II of the Planning Department directed Aciemo’s engineers to “[plrovide a note referencing previous court action that permitted commercial development in the M-l zoning district[]” on the Revised Plan. Appendix (“App.”) at 335. They did so and on February 25,1988, County Planning Director Wayne Grafton (“Grafton”) approved the Revised Plan for recording purposes. On May 15, 1988, Grafton approved development of a “Hampton Inn” on the portion of the Property zoned M-l.

In November of 1988, Acierno submitted a revised subdivision plan amending the Revised Plan (“Revised Plan II”). Revised Plan II stated its purpose was to “‘revise buildings & parking for buildings 1, 2 & 3’ and to ‘correct drafting errors along some boundary courses.’ ” App. at 336. Otherwise, it was consistent with Revised Plan I. On March 7,1989, Grafton approved Revised Plan II.

B. The County’s Conduct Leading to the Present Action

On April 18, 1991, County Attorney Michael Mitchell (“Mitchell”) sent a memorandum to David J. Biloon (“Biloon”), Chief, Development and Licensing Division, Department of Public Works, New Castle County. Mitchell’s memorandum stated that he had reviewed the Delaware Chancery and Supreme Court opinions in the initial litigation in the mid-1970’s over development of the Property, as well as a copy of the original Plan, the Revised Plan, and Revised Plan II. Attorney Mitchell’s memorandum concluded that most of the Property was not zoned for retail use, stating:

“[N]o building permit should be issued for any construction on this site until extensive review and consultation between the Division of Development and Licensing, Department of Planning and Department of Law is initiated and concluded concerning any proposed use. Given the types of tenants that he has approached; ie., the movie theater chain, it is clear that Mr. Acierno intends to initiate • a use of the property that is not in conformity with the New Castle Zoning Code.

In order to implement this directive, a general hold should be placed on any building permits that could be issued for this site. If that cannot be accomplished, all plan examiners and other officials involved in the building permit process should be advised of this situation and ordered to report any application for a building permit directly to you. If Mr. Acierno applies for a Building Permit for the 273 Mall, please contact this Department so that the review discussed above may be initiated.”

Acierno v. New Castle County, No. 93-579-SLR, 1994 WL 720273, at *11-12, 1994 U.S.Dist. LEXIS 1683, at *34-35 (D.Del. Feb. 11, 1994) (emphasis added and emphasis in original deleted).

On May 3, 1991, Biloon circulated a memo within the County’s Division of Development & Licensing which stated:

“Please inform your respective staffs to keep an eye out for any activity, i.e., building permit applications, for ... the 273 Mall....

We have been advised by the Law Department that there is a zoning problem at the 273 Mall site. Basically, the site is zoned M-l which will not support retail shopping uses. At this point in time, I will not try to explain the legal reasons as to why there is a valid Record Plan or why the Record Plan cannot be rescinded by the County; but, never the less [sic], we have been instructed by the Law Department to withhold building permits for any activity. ..

Id. at *11-12, 1994 U.S.Dist. LEXIS 1683 at *35-36 (emphasis deleted).

On July 9, 1991, Mitchell sent a memorandum to Bryan C. Shuler, Director of Planning. In it, Mitchell recounted the history of the legal dispute over development of the Property and stated that Acierno’s record plans should not be accorded “‘any effect inasmuch as they purport to permit that which is not permitted by the Zoning Code.’ ” Id. at *15,1994 U.S.Dist. LEXIS 1683 at *45. Mitchell’s conclusion that Acierno’s recorded plans had no effect was based on his reading of section 23-6(a) of the New Castle County Code. Applying section 23-6(a) and (c) to Acierno’s case, Mitchell’s memorandum went on to state:

“Since this property would have been accorded the three-year stability protection regarding a proposed rezoning for the site, it also received the protection accorded by Section 23 — 6(c) of the Code-

The purpose of the three-year ‘moratorium’ provision is to provide stability to the process. In this case, Section 23-6(c) permits a lot owner three (3) years to establish a use that but for a recent Zoning amendment would have been permitted in that district if the particular parcel was protected by Paragraph (1), (3) or (4) of Section 23-6(a). The protection is afforded only for the three-year period and the property owner must establish the nonconforming use during that time. If the use is not established, the Code affords no further protection to that particular parcel. Thereafter, the property owner must comply with the revised provisions of the Zoning Code.

Nor does the recordation of a plan create any rights, vested or otherwise. It is the use that is conferred non-conforming status, not a plan or a permit of any kind. Therefore, since Mr. Acierno did not establish a non-conforming commercial use within the three-year period provided for in Section 23-6(c), he is no longer entitled to establish any commercial use except those very limited instances where such commercial uses are now presently permitted in a M-l district accessory to the permitted manufaeturing/industrial use.”

Id. at *15-16, 1994 U.S.Dist. LEXIS 1683 at *46-48. .

Mitchell forwarded a copy of his July 9, 1991 memorandum to Robert O’Brien, Director-Department of Public Works, so that O’Brien could “‘take appropriate action to ensure that no building permit is issued for any principal commercial use [on the 273 Property]_’” Id. at *16, 1994 U.S.Dist LEXIS 1683 at *48. Mitchell then asked O’Brien, “ ‘[accordingly, would you please take any steps necessary to ensure that no permits are issued for this site until complete review and consultation is accomplished with this Department and the Department of Planning.’ ” Id.

While Mitchell was writing these memos, Acierno was negotiating with prospective commercial tenants for space within his proposed development. Caldor, Inc. (“Caldor”) was an important prospect. In late 1991 Acierno applied for a permit to build a Cal-dor store. Biloon, by letter dated December 18, 1991, told him:

“Please be advised that New Castle County cannot accept your building permit application for the proposed Caldor Department Store at this site. Commercial ventures of this nature cannot be situated on lands which contain a manufacturing zoning classification. Additionally, the existing Record Plan ... allows for a 70,000 square foot building denoted as Building #4. The proposed structure is 112,000 square feet. This is also a discrepancy which must be rectified prior to the issuance of any permits.”

Id. at *16-17, 1994 U.S.Dist. LEXIS 1683 at *48-49.

In February, 1992, the Delaware Department of Natural Resources and Environmental Control approved Acierno’s temporary erosion and sediment control plan. In May, 1992, Aciemo resubmitted his application for a building permit in connection with the Property. The accompanying plan provided for a 70,000 square foot building drawn in accord with County standards. On May 27, 1992, Biloon contacted Mitchell and informed him of Acierno’s latest application: “ *We have another application for the dept, store. This time the budding plans agree with the record plan. What is our next move?’ ” Id. at *17-18,1994 U.S.Dist. LEXIS 1683 at *52. Mitchell responded: “ ‘It is not zoned for a retail department store. He does not get a permit.’ ” Id. Biloon subsequently assigned and then voided a building permit number for the proposed development project on the Property. By letter dated June 4, 1992, Biloon advised Aciemo: “New Castle County still cannot accept your building permit application for the proposed 70,000 square foot Caldor Department Store at [the 273 Property].” Id. at *18-19, 1994 U.S.Dist. LEXIS 1683 at *54-55.

C. Procedural History

On July 1, 1992, Acierno filed a complaint under 42 U.S.C.A. § 1983 against the County and others in the district court. He alleged the County’s decision to deny him a building permit violated his constitutional rights to due process (both substantive and procedural) and equal protection.

On December 30, 1992, the district court granted Aciemo’s motion for