Carr v. Town of Dewey Beach

• Court: U.S. District Court — District of Delaware
• Writing for the Court: MURRAY M. SCHWARTZ, Senior
• Citation: Carr v. Town of Dewey Beach, 730 F.Supp. 591 (D. Del. 1990)
• Decision Date: 02 February 1990
• Docket Number: Civ. A. No. 87-632 MMS.
• Parties: Ben CARR, Plaintiff, v. TOWN OF DEWEY BEACH, an incorporated municipality of the State of Delaware, and Samuel Fader, in his individual capacity and his official capacity as Building Inspector of the Town of Dewey Beach, Defendants.

730 F. Supp. 591

Ben CARR, Plaintiff, v. TOWN OF DEWEY BEACH, an incorporated municipality of the State of Delaware, and Samuel Fader, in his individual capacity and his official capacity as Building Inspector of the Town of Dewey Beach, Defendants.

Civ. A. No. 87-632 MMS.

United States District Court, D. Delaware.

February 2, 1990.

COPYRIGHT MATERIAL OMITTED

Barry M. Willoughby, of Young, Conaway, Stargatt & Taylor, Wilmington, Del., for plaintiff.

N. Maxson Terry, Jr., of Terry, Jackson, Terry & Wright, Dover, Del., for defendants.

OPINION

MURRAY M. SCHWARTZ, Senior District Judge.

This is defendants' motion for summary judgment. On December 7, 1987 plaintiff Ben Carr filed a complaint against defendants Town of Dewey Beach ("Dewey Beach" or "the Town") and its Building Inspector Samuel Fader in his official and individual capacities based upon what plaintiff characterizes as "a series of events surrounding defendants' bad faith efforts to impede plaintiff's development of a commercial property in Dewey Beach...." Plaintiff's Answering Brief, Carr v. Town of Dewey Beach, C.A. No. 87-632 MMS at 2 (Docket No. 16) (hereinafter "Dkt. ___).

The complaint alleges two counts. Count I describes a cause of action under 42 U.S.C. § 1983, alleging violation of plaintiff's rights of substantive and procedural due process, equal protection, and privileges and immunities of state citizenship. Count II alleges various state law claims, including claims for malicious prosecution, false arrest, intentional infliction of emotional harm, abuse of judicial process and violation of article I, sections 6 and 7 of the Delaware Constitution. This court has jurisdiction pursuant to 42 U.S.C. § 1983 and 28 U.S.C. § 1332.

Defendants have moved for summary judgment. They assert three arguments: (1) Claims in both counts based upon events occurring prior to December 7, 1985 are barred by the applicable statute of limitations; (2) Defendant Dewey Beach is entitled to summary judgment on the section 1983 claim against it under Monell v. New York City Dept. of Social Services, 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978) and subsequent case law determining the scope of municipal liability under section 1983; and (3) Both defendants are entitled to summary judgment on the merits on the section 1983 claims. For the reasons set forth in this opinion, defendants' motion will be granted in part and denied in part.

THE FACTS

The events leading to this case are not disputed. The parties' interpretation of those events, however, is hotly contested.

Plaintiff Carr is a Maryland citizen and an architect by profession. In 1974, he purchased a lot in Dewey Beach on the corner of Route 1 and North Van Dyke Street ("Van Dyke"). On May 5, 1983 Carr sought a building permit to add an extension to an existing building on the lot. Appendix to Defendant's Opening Brief, Carr v. Town of Dewey Beach, C.A. No. 87-632 MMS at 104-108 (Dkt. 28A) (cited hereinafter as "DA-___"); Appendix to Plaintiff's Answering Brief, Carr v. Town of Dewey Beach, C.A. No. 87-632 MMS at 112-14 (Dkt. 16A) (cited hereinafter as "PA-__"). He submitted plans which contemplated construction within six feet of the property line bounded by Van Dyke.

Defendant Fader was at all relevant times the Building Inspector for defendant Town of Dewey Beach. On May 8, 1983 Fader responded to Carr's application by a letter enumerating several "concerns." DA-114; PA-104. Among his concerns was the fact that Carr's plans called for building within six feet of Van Dyke. Dewey Beach ordinances required a six-foot set back from the front of the property. According to Fader's letter, the Town's longstanding practice of treating side streets as front streets for set back purposes required a six-foot set back from Van Dyke as well as Route 1. This practice was not explicit in the Town's ordinances. Fader was also concerned because the plan called for parking on the corner of Route 1 and Van Dyke in violation of corner visibility regulations.¹

Carr responded by letter dated May 10, 1983. DA-120; PA-119. Fader denied the building permit in a letter dated May 13, 1983.² DA-110; PA-125. He supplemented the denial by handwritten letter dated June 7, 1983, setting forth specific reasons for the denial.³ DA-111; Pa-134.

Carr appealed the denial to the Town's Board of Adjustment ("Board"). Prior to the hearing, Fader submitted to the Board a memorandum summarizing his position. PA-138-45. Plaintiff characterizes this memorandum as prejudicial. He also claims the memo was submitted without his knowledge. Defendants respond that it is common practice for the Building Inspector to furnish the Board with a summary of the controversy and that copies were available to the plaintiff and to the public.

During the hearing, the defendants raised, apparently for the first time, the expiration of Carr's license to practice architecture in Delaware. Plaintiff characterizes defendants' action as adding new objections and requirements to the issuance of his building permit. Defendants point out that the license was in fact expired. The Board upheld the denial — including, as grounds for denial, the set back requirement and the problem with parking on the corner. DA-136-142; PA-148-154.

Carr appealed the Board's decision to the Delaware Superior Court in September 1983. In November 1983 the Town passed an ordinance legislating the practice of treating side streets as "front" for set back purposes. Plaintiff says the ordinance was passed in response to his appeal. Defendants state the Town merely wanted to correct what had turned out to be a flaw in the zoning code.

Plaintiff alleges the Town initially failed to provide him with the tapes from the Board of Adjustment hearing for use in his appeal to the Superior Court and that when he pressed defendants, see PA-180 (letter from Carr's attorney requesting the tapes), a stop work order was issued against him in retaliation on December 8, 1983. DA-123; PA-178. Defendants contend the tapes were merely misplaced and that they were later found and transcribed for plaintiff. The December 8, 1983 stop work order alleged that Carr was building in the set back area in contravention of both permit No. 141 obtained by Carr on May 28, 1983 and the August 17, 1983 decision of the Board. PA-167. The following day, December 9, 1983, the Mayor of Dewey Beach caused a summons to be issued charging Carr with building without a valid building permit. DA-124; PA-170. The summons was nolle prossed at the request of the Town Solicitor on January 6, 1984. DA-127; PA-179. Defendants claim the Town Solicitor withdrew the summons when Carr's attorney convinced him that the structures in the set back area were only temporary. They also note that plaintiff was never arrested or required to appear in court and that he received no adverse publicity from the issuance of the summons. The Town Solicitor advised Carr that the stop work order was revoked on February 8, 1984. PA-181. Defendants contended at oral argument that plaintiff was aware the stop work order had been dismissed as early as January 20, 1984.

The Delaware Superior Court reversed the decision of the Board of Adjustment on September 6, 1984 as to both the set back and the parking area issues. See Carr v. Board of Adjustment of the Town of Dewey Beach, C.A. No. 83A-SE3 (Del.Super. Sept. 6, 1984) (Tease, J.). On September 10, 1984, the Town Solicitor notified Carr's attorney that, in accordance with the Superior Court decision, Carr would be allowed to amend his current permit (No. 233) to extend construction into the set back area. Exh. D, Stipulation of the Parties (Dkt. 39). On November 26, 1984, Carr was issued building permit No. 233 R-1, a revised version of permit No. 233. On its face, permit No. 233 R-1 incorporates drawings dated February 22, 1984 — the same drawings upon which No. 233 was based. These drawings apparently did not call for construction in the set back area. Plaintiff urges that he actually submitted his original May 1983 plans calling for construction in the set back area. Although the parties agree there was no written application for permit No. 233 R-1, Stipulation of the Parties (Dkt. 39), plaintiff offers two letters indicating he believed he had submitted the original drawings. Exhs. E & F, Stipulation of the Parties (Dkt. 39). Plaintiff infers defendants deliberately included the wrong drawings with the permit.

On December 9, 1985 another stop work order was issued by Fader to Carr in letter form. Since this is the most crucial contact in this case, it bears quoting in full:

Your building permit # 0233 R-1 expired 11/26/85 and you should stop by for a new one before resuming work.

Recently I made a field check of your construction "as built" for conformance with your drawings # 1, 2, & 3 revised 2/22/84, conveyed by your letter of October 19, 1984 and received by me on Oct. 27, 1984 as stated on your permit, and I find two deviations:—

— At the second floor level, the reinforced concrete slab on the south side designated as "balcony" is not constructed per print in that it cantilevers south much closer to the property line than the 6'-0" shown.

— There are five reinforced concrete projections about one foot by two feet which project to the south side of the first floor slab, not shown on the drawings.

The above discrepancies cannot be included in the new permit because they are new construction outside the previous permit and they do not conform to the current Code requiring a 6'-0" setback from the ROW line on Van Dyke.

Upon removal of the above, a new permit will be issued so work can be resumed.

DA-115; PA-105.

Plaintiff asserts the stop work letter was issued in retaliation for his unwillingness to acquiesce to the Town's policy (his "troublemaking") and his successful appeal to the Superior Court.⁴ Defendants explain that the stop work letter was issued because of confusion. Defendan...