Daniel D. Rappa, Inc. v. Hanson

• Decision Date: 09 April 1965
• Citation: 209 A.2d 163,42 Del.Ch. 273
• Parties: DANIEL D. RAPPA, INC., a Delaware corporation, et al., Defendants Below, Appellants, v. Lincoln F. HANSON, H. Willis Lawrence and Martha Bachman, Plaintiffs Below, Appellees.
• Court: United States State Supreme Court of Delaware

Page 163

209 A.2d 163

42 Del.Ch. 273

DANIEL D. RAPPA, INC., a Delaware corporation, et al Defendants Below, Appellants, v. Lincoln F. HANSON, H. Willis Lawrence and Martha Bachman Plaintiffs Below, Appellees.

Supreme Court of Delaware.

April 9, 1965.

Reargument Denied April 23, 1965.

Appeal from the Court of Chancery in and for New Castle County.

Stephen Hamilton and Frank O'Donnell, of Hamilton & O'Donnell, Wilmington, for appellants.

William Prickett, Jr., of Prickett & Prickett, Wilmington, for appellees.

WOLCOTT, C. J., and CAREY and HERRMANN, JJ., sitting.

WOLCOTT, Chief Justice.

This is an appeal from an order of the Vice Chancellor enjoining the carrying out of a resolution of the Levy Court of New Castle County to rezone certain lands in Mill Creek Hundred. In the action below the defendants were Daniel D. Rappa, Inc. (hereafter Rappa), the owner of the land; the members of the Levy Court of New Castle County, and the members of the Zoning Commission of New Castle County.

This controversy arose in February, 1960, when Rappa filed a petition to the Levy Court asking for the rezoning of approximately 15 acres at the intersection of Loveville Road and Lancaster Pike. The petition met with active and widespread opposition on the part of some of the residents of that general area. The petition sought to change the zoning of the land in question from R-2 to C-1 to permit the erection of a large shopping center at the location.

The petition was referred to the Zoning Commission of New Castle County which, after holding a hearing, unanimously recommended that the petition be denied. Thereafter, a hearing was held before the Levy Court which, on July 19, 1960, voted 2 to 1 to grant the petition to rezone the lands from R-2 to C-1.

On August 2, 1960, the persent action to enjoin the carrying out of the Levy Court's resolution was instituted. Numerous grounds were alleged but ultimately the plaintiffs urged primarily that the action of the majority of the Levy Court was arbitrary and illegal because a full hearing before it had not been held.

The record before the Vice Chancellor consisted of the records and documents of the Zoning Commission which, by reference, had been placed before the Levy Court for its consideration. These records were submitted to the Court of Chancery under a certificate of an attorney for the Levy Court to the effect that this was the record before the Levy Court and the Zoning Commission.

A hearing in the case was held December 18, 1961. At this hearing the attorney for the Levy Court appeared and stated in behalf of the Levy Court that he proposed to take no active part in the cause, but would rely upon the attorney for Rappa for the representation of the Levy Court's position. At this time the Vice Chancellor called to his attention that the charge in the complaint was that the Levy Court's action was arbitrary, capricious and illegal. Nevertheless, the Levy Court's attorney reiterated that it would be represented by the attorney for Rappa.

Thereafter, testimony was taken and, on June 3, 1963, the Vice Chancellor handed down an opinion holding the action of the Levy Court to have been arbitrary because the record of the proceedings before the Levy Court was badly garbled; that certain documents before the Zoning Commission, viz., petitions of residents in opposition to the petition, were not before the Levy Court or the Court of Chancery, and that the Levy Court arbitrarily limited each side to 30 minutes without any prior notification to that effect and without any rules and regulations of such nature in effect governing hearings before the Levy Court.

Following the filing of the opinion, on June 7, 1963, the Levy Court moved for reargument. The Vice Chancellor considered this motion to be an application to enlarge the record which was the basis of his first opinion. The Levy Court offered in support of its motion affidavits of two of the Commissioners and a secretary of the Levey Court. From these affidavits it appeared that the hearing was conducted in accordance with previously adopted regulations governing such hearings, and that one of the restrictions in such regulations was a time limitation of 30 minutes for each side. It was further averred that these rules and regulations were read by the President of the Levy Court to those present when the hearing upon the Rappa petition commenced.

The Vice Chancellor denied the Levy Court's motion on the ground that the plaintiffs at the first hearing had discharged their burden to establish the arbitrary nature of the Levy Court's action, and that it was only after the court upheld the plaintiffs' position in this respect that the Levy Court belatedly sought to attempt to disprove this showing. In view, therefore, of the long delay on the part of the Levey Court and its practical...