Daniel D. Rappa, Inc. v. Engelhardt
| Decision Date | 30 July 1969 |
| Citation | 256 A.2d 744 |
| Parties | DANIEL D. RAPPA, INC., Daniel D. Rappa, Sallie Rosenberg and New Castle County, Defendants Below, Appellants, v. Eugene H. ENGELHARDT, Carol E. Engelhardt, Louis Backman, Marsha Backman, John W. Ireland and Beverly B. Ireland, Plaintiffs Below, Appellees. |
| Court | Supreme Court of Delaware |
H. Albert Young, Bruce M. Stargatt of Young, Conaway, Stargatt & Taylor, Frank O'Donnell of O'Donnell, Hughes & Lowicki, Wilmington, for Daniel D. Rappa, Inc., Daniel D. Rappa and Sallie Rosenberg, and Clarence W. Taylor, Wilmington, for New Castle County, appellants.
William Prickett of Prickett, Ward, Burt & Sanders, Wilmington, for appellees.
This is an appeal from a judgment of the Court of Chancery enjoining the action of the Levy Court of New Castle County in rezoning certain lands of Daniel D. Rappa, Inc.
The determinative question before us is: Did the savings clause of the 1966 Amendment to Article XX of the Zoning Code of New Castle County apply to petitions for zoning change which had been filed and finally acted upon by the Levy Court as of the date of adoption of the amendment, as well as to those petitions which had been filed and were pending as of that date?
The chronology is important. In February, 1960, Rappa filed a petition seeking the rezoning of the land in question from R--2 to C--1, which was denied in July, 1960. See Rappa, Inc. v. Hanson, Del.Sup., 209 A.2d 163 (1965). On August 23, 1960, the Levy Court amended Article XX of the Zoning Code as follows:
'No petition for amendment, change or modification of any zoning classification or district with respect to any land which has been the subject of a prior rezoning proceeding shall be filed within six months after final action by the Levy Court upon the prior proceeding.
'The above amendment shall not affect the validity of Any pending rezoning petition which has not been finally acted upon by the Levy Court prior to the date of this resolution.' (Emphasis added)
In May, 1965, Rappa filed a second petition seeking to have the land rezoned from R--2 to C--2. In March, 1966, the Levy Court denied the second petition. On June 21, 1966, the Levy Court further amended Article XX of the Zoning Code by changing the six-month rule to a twelve-month rule as follows:
'No petition for amendment, change or modification of any zoning classification with respect to any land which has been the subject of a prior rezoning proceeding shall be filed within one year after the final action by the Levy Court upon the prior proceeding.
'The above amendment shall not affect Any rezoning petitions which have been filed prior to the date of this resolution.' (Emphasis added)
In October, 1966, Rappa filed a third petition for the rezoning of the land in question, this time from R--2 to C--2 in part and R--4 in part. On December 30, 1966, the Levy Court changed the zoning classification of the entire parcel from R--2 to R--4. Neighboring property owners thereupon instituted this action on the ground that compliance with the 'one-year rule' of the 1966 amendment was a condition precedent to a refiling, and that because only eight months had passed between the March, 1966 denial that Rappa's refiling in October, 1966, the petition must be dismissed.
The Court of Chancery held that the 'one-year rule' of the 1966 amendment invalidated the Levy Court's action. Its decision was based on the view that the savings clause excepted from the operation of the amendment only those petitions upon which final action had not been taken as of June 21, 1966. Rappa appealed.
Rappa contends that the savings clause of the 1966 amendment exempted the petition filed in October, 1966 from the one-year rule, regardless of whether final action was taken on that petition prior to June 21, 1966. We agree.
There are significant differences in the language used in the savings clause of the 1966 amendment and the language of the savings clause of the 1960 amendment. Expressly eliminated from the 1966 amendment was the requirement of the 1960 amendment that the rezoning petition be 'pending' and 'not * * * finally acted upon by the Levy Court' prior to...
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