Dale v. Town of Elsmere, 115

Citation702 A.2d 1219
Decision Date15 October 1997
Docket Number1997,No. 115,115
PartiesJoseph B. DALE and Mary J. Dale, husband and wife, Plaintiffs Below, Appellants, v. TOWN OF ELSMERE, Charles M. Cavanaugh, John Jaremchuck, Jr., Hugh D. Hamill, Edward Dickerson, Phyllis B. Wingate, Lawerence Sontowski and Thomas S. Novak, Defendants Below, Appellees. . Submitted:
CourtUnited States State Supreme Court of Delaware

Appeal from Superior Court. AFFIRMED.

Court Below: Superior Court of the State of Delaware in and for New Castle County, C.A. No. 94C-10-99.

Francis J. Trzuskowski and Francis J. Schanne (argued), Trzuskowski, Kipp, Kelleher & Pearce, P.A., Wilmington, for Appellants.

Edward M. McNally (argued) and Richard D. Kirk, Morris, James, Hitchens & Williams, Wilmington, for Appellees.

Before WALSH, HARTNETT and BERGER, JJ.

WALSH, Justice:

In this appeal, appellants plaintiffs-below, residents of the Town of Elsmere (the "Town"), seek reversal of the Superior Court's grant of summary judgment in favor of the Town Council, the Mayor, and the Town (collectively, the "Town Defendants") on claims of creation of a nuisance and violation of substantive due process rights under 42 U.S.C. § 1983. On appeal, the appellants claim: (i) the Municipal Tort Claims Act does not govern the nuisance issue; (ii) the creation of an unloading zone violated the applicable zoning regulations; (iii) breach of contract by the Town and the Mayor; and (iv) that they have a constitutionally protected property interest at stake in this litigation. We conclude that the award of summary judgment was appropriate. Accordingly, we affirm.

I

For the purpose of this appeal, the following facts are undisputed. Joseph B. Dale and Mary J. Dale, his wife, (the "Dales") own two properties on Chestnut Avenue in Elsmere. One property, located on the corner of Kirkwood Highway and Chestnut Avenue, faces Kirkwood Highway, and the other, their residence, is adjacent to the corner property, facing Chestnut Avenue. A delicatessen ("Walt's Deli"), which is the focus of this litigation, is across Chestnut Avenue from the corner property, facing Kirkwood Highway. The Elsmere Fire House is located on Kirkwood Highway to the east of Walt's Deli.

In 1973, the Town adopted the "Town of Elsmere Zoning Ordinance" (the "Zoning Code"). In 1985, the Town adopted Resolution 85-08, which provides:

WHEREAS, the current vehicular restrictions on Chestnut Avenue where it intersects the Kirkwood Highway are inadequate for protecting the residential character of the neighborhood; and

WHEREAS, the suppliers of Walt's Delicatessen are able to find an alternative place to load and unload their trucks;

NOW THEREFORE, BE IT RESOLVED BY THE COUNCIL OF THE TOWN OF ELSMERE, that "NO TRUCKS LOADING OR UNLOADING" signs be placed alongside the "FIFTEEN MINUTE PARKING" signs in accordance with the attached diagram....

Walt's Deli changed owners in 1985. Prior to the change in ownership, delivery trucks did not use Chestnut Avenue, and unloading occurred on Kirkwood Highway or on the Fire House side of Walt's Deli.

In 1992, construction began on the Fire House. Shortly after construction began, the Mayor approached the Dales and requested that they agree, on a temporary basis, to unloading for Walt's Deli on Chestnut Avenue. In exchange, it was promised that the unloading restriction would be strictly enforced thereafter, including the reinstatement of Resolution 85-08. The Dales agreed. 1 On July 14, 1992, Resolution 92-12 titled "Temporary Suspension of Resolution 85-08 Prohibiting Parking and Unloading on Chestnut Avenue," was adopted without opposition from the Dales. It provides:

WHEREAS, the Mayor and Council of the Town of Elsmere has [sic] determined that Resolution 85-08 by prohibiting parking and unloading on Chestnut Avenue creates a safety hazard; and

WHEREAS, due to the construction of the new fire house there is limited parking on Kirkwood Highway in front of Walt's Delicatessen;

NOW, THEREFORE BE IT HEREBY RESOLVED, by the Mayor and Council of the Town of Elsmere, that Resolution 85-08 be suspended, hereby allowing parking and truck loading and unloading on the East side of Chestnut Avenue during the hours of 8:00 a.m. to 4:00 p.m. until April 1, 1993, or until construction is completed by the Elsmere Fire Company....

On October 14, 1993, the Town adopted another resolution, over the Dales' objection, which created a permanent loading and unloading zone for Walt's Deli on Chestnut Avenue. This resolution, No. 93-5, permitted loading and unloading in a forty foot zone "on the east side of Chestnut Avenue ... with parking limited to thirty (30) minutes, during the hours of 8:00 a.m. to 3:00 p.m., Monday through Friday...." The Dales complain that neither the time parameters nor the forty foot restriction have been enforced. As a result, trucks park in front of the Dales' lawn and driveway at various hours and with considerable noise.

The Dales brought suit against Walt's Deli, the truck operators who deliver on Chestnut Avenue, and the Town Defendants. The allegations of their complaint pertinent to this appeal are: (i) the Town and the Mayor created and maintained a private and a public nuisance, and the Mayor, as agent for the Town, made negligent or intentional misrepresentations ("Count I"); (ii) the Town and the Mayor violated the Zoning Code ("Count III"); (iii) the Town and the Mayor, both personally and as agent for the Town, breached a contract with the Dales concerning the reinstatement of a no loading zone ("Count IV"); and (iv) the Town Defendants violated the Dales' substantive due process rights under the 14th Amendment and 42 U.S.C. § 1983 ("Count V").

The Town Defendants moved for, and were granted, summary judgment on all of the above listed Counts. 2 As to the Count I claims, the Superior Court found that the Town Defendants were protected from liability by the Municipal Tort Claims Act, 10 Del.C. Ch. 40, (the "Act"). On the Count III claims, the Superior Court found that the Town has full authority to make decisions about parking zones and that review by the Board of Adjustment was unnecessary because of Walt's Deli's prior non-conforming use. The Superior Court ruled that the agreement alleged in Count IV was not legally enforceable for lack of consideration and that, in any event, the Mayor lacked the authority to enter into it. Finally, with respect to the substantive due process violation alleged in Count V, the Superior Court held that the Dales did not have a constitutionally protected right to be free from proximity to a loading zone.

II

This Court reviews the grant of summary judgment, de novo, to determine whether, viewing the facts in the light most favorable to the Dales, the Town Defendants have demonstrated that there are no material issues of fact in dispute and that they are entitled to judgment as a matter of law. See Burkhart v. Davies, Del.Supr., 602 A.2d 56, 59 (1991), cert. denied, 504 U.S. 912, 112 S.Ct. 1946, 118 L.Ed.2d 551 (1992).

A.

The Dales argue that the Superior Court committed reversible error by granting summary judgment to the Town and the Mayor on the Count I claims of nuisance and misrepresentation. 3 They assert that the Superior Court misapplied the Act in reaching the conclusion that the Town and the Mayor were immune from liability on the nuisance claim. Specifically, the Dales argue that the Superior Court incorrectly determined that the loading zone is neither prohibited by statute nor poses a threat to public health or welfare and that they could be made whole by injunctive relief, rather than by damages. Further, they argue that material issues of fact concerning the existence of a nuisance have been established.

Alternatively, the Dales argue that, even if the Act bars their nuisance action, the Superior Court erred by granting summary judgment in favor of the Mayor on the misrepresentation claim because their claims against the Mayor fall under the "property damage exception" of the Act. 10 Del.C. § 4011(c). 4 They assert that the Superior Court improperly interpreted this exception to require that they allege physical property damage, rather than intangible property damage.

The Town and the Mayor respond that, because the Dales' Count I claims sound in tort and seek recovery of damages, they are immune under § 4011(a) of the Act. 5 The question of their liability, it is argued, turns on whether their actions are discretionary in nature. They assert that this issue must be decided in their favor because the change in parking along Chestnut Avenue is "the allocation of scarce resources among competing policy objectives [which] is, under ordinary circumstances, precisely the sort of 'discretionary' act which the legislature intended to immunize, as evidenced by the language of Sec. 4011(b)(3)." (Ans. Br. of Appellees at 8 (quoting In re Consolidated Flood Cases, Del.Super., C.A. No. 91C-09-235, Goldstein, J. (Sept. 7, 1993) ("Consolidated Flood Cases ")).) Finally, they argue that the Mayor's actions do fall within the exception of § 4011(c) because such section requires physical property damage and, thus, the Dales' claims for lost enjoyment and lost value are insufficient to survive summary judgment.

In our view, the Superior Court correctly granted summary judgment in favor of the Town and the Mayor on Count I. The Superior Court correctly distinguished this case from Consolidated Flood Cases. The Dales' claims of misrepresentation and nuisance are "tort claims seeking recovery of damages" and, as such, are governed by the Act. 10 Del.C. § 4011(a). The Dales' interpretation of Consolidated Flood Cases, as creating liability for any governmental action that impacts the public as arguably a public nuisance, is inconsistent with the plain language of § 4011(b)(3). 6 The creation of the loading zone was a discretionary act for which neither the Town nor the Mayor may be held liable. 10 Del.C. § 4011(b)(3).

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