Goldberg v. City of Rehoboth Beach

Decision Date26 January 1989
Citation565 A.2d 936
PartiesGerald I. GOLDBERG and Bronwen Goldberg, and L & J Associates, Plaintiffs, v. The CITY OF REHOBOTH BEACH, The Mayor and Commissioners of Rehoboth Beach, John A. Hughes, Mildred B. Shields, Walter J. Lehman, Norman B. Shugrue, Samuel R. Cooper, James A. Horty and John J. McTighe, in their official and individual capacities, and the Planning Commission of The City of Rehoboth Beach, and its members Fred Blackwell, James F. Hudson, Helen R. Bieber, N. William Hiller, Norman B. Shugrue, Warren H. MacDonald, John F. Hyde, Evelyn D. Thoroughgood and Mary S. Burton, in their official and individual capacities, Defendants. . Submitted:
CourtDelaware Superior Court


Plaintiffs Gerald and Bronwen Goldberg and L & J Associates (hereinafter "Goldbergs") have filed a four-count complaint against the City of Rehoboth Beach, the Mayor and Commissioners of the City of Rehoboth Beach in their official and individual capacities and the Planning Commission of the City of Rehoboth Beach and its members in their official and individual capacities seeking a writ of mandamus, a writ of certiorari, declaratory judgment and damages. Before the Court are the parties' cross-motions for summary judgment.


The following facts are undisputed. On July 2, 1986, the Goldbergs purchased a residential property in the City of Rehoboth Beach for $470,000 from St. Edmunds Roman Catholic Church. The property, known as the Rectory, is located at the corner of Columbia and Surf Avenues and consists of three lots (Lots 49 and 50, Surf Avenue and Lot 2, Columbia Avenue) as shown on the Comprehensive Zoning Map of the City of Rehoboth Beach. On the property is a main building which faces Surf Avenue and an accessory garage-apartment to the rear.

On July 30, 1986, the Goldbergs filed an application with the Planning Commission to partition the Rectory property into two separate building lots, one proposed lot consisting of 7475 sq. ft. on which the main building is located and the other consisting of 5000 sq. ft. on which the garage-apartment is located. (See Appendix A). A public hearing was noticed and held on Sept. 8, 1986. The Goldbergs presented evidence that the proposed partition met all the requirements of the City's Subdivision and Zoning Ordinances. At issue, however, was the zig-zagged or stepped boundary line between the two proposed lots. The Goldbergs contended that such a line complied with the definition of a "side yard" in the Zoning Ordinance which states:

SIDE YARD means the required open space between a structure and the side lot line and extending through the whole depth of the lot.

Nevertheless, based upon a similar partitioning request by another landowner that previously had been rejected by the City Commissioners, the Planning Commission voted to deny the Goldbergs' application as it did not provide for a side yard setback which went straight through the depth of the lot.

The Goldbergs appealed the denial of their application to the City Commissioners on Sept. 11, 1986. A hearing on the appeal was held on Oct. 10, 1986 at which time the Goldbergs again presented evidence that the application was in full compliance with the Zoning and Subdivision Ordinances. They argued that a side yard as defined in the ordinance does not require a straight corridor through the depth of the lot and that, in the event the definition is ambiguous, Delaware law required the Commission to construe it in favor of the landowner. The Commissioners, however, voted to affirm the decision of the Planning Commission because the proposed redrawn lot line violated the definition of a side yard setback in the zoning ordinance. On Nov. 6, 1986, the Goldbergs filed this complaint in the Superior Court in and for Sussex County. Thereafter, on Dec. 31, 1986, the Goldbergs sold the property for $550,000 after having spent approximately $80,000 on improvements, carrying and closing costs.

The Goldbergs now concede that the first two counts of their complaint are moot because they no longer own the Rectory property. However, they argue that they are still entitled to declaratory relief and an award of damages for the wrongful denial of their application to partition. They assert that the sale of the property, before the resolution of this case, merely serves to mitigate the damages they have suffered as well as to fix a measure of those damages.


In Count III of their complaint, the Goldbergs have alleged that an actual controversy exists as to their legal rights to the Rectory property, that their application for a partitioning was in complete compliance with all the ordinances and that the City's illegal failure to approve their application unconstitutionally deprived them of rights in real property, e.g., the right to a second building lot on their property. The Goldbergs also have alleged that the property previously had been subdivided into three lots and that they are entitled as a matter of law to a building permit for Lot 2, provided they allow an easement to maintain an encroachment of the structure located primarily on Lots 49 and 50. Furthermore, they have alleged that no merger of these three lots has occurred so that they should be free to convey Lot 2 to a third party, who could then build a separate dwelling on it. The Goldbergs have requested this Court to declare the actions of the City illegal and unconstitutional in depriving them of the use of their property as two separate building lots and to declare that they are entitled to approval of the partitioning application as a matter of law and/or to a separate building permit for a main dwelling to be located on Lot 2, Columbia Avenue.

A declaratory judgment is available as a remedy only where there is an actual controversy between the parties. 10 Del.C. § 6501; Ackerman v. Stemerman, Del.Supr., 201 A.2d 173 (1964). An actual controversy exists "where one side makes a claim of a present, specific right and the other side makes an equally definite claim to the contrary. [Citations omitted.] The words 'actual controversy' were used in contradistinction to a 'moot' or hypothetical situation." Clemente v. Greyhound Corp., Del.Super., 155 A.2d 316, 320 (1959). The Goldbergs' request for a declaration that they are entitled to approval of their application and/or a separate building permit must be denied in the face of the sale of their property after the filing of this complaint. They can no longer claim a present right to an approval of the partitioning application or a building permit relating to that property.


For the moment I will bypass discussion of the remainder of the Goldbergs' request for declaratory relief in order to deal with the fourth and final count of their complaint. In this count, the Goldbergs have alleged that the arbitrary and capricious acts of the defendants in denying their request for a partitioning constitute a deprivation of private property without due process of law and a taking of property without compensation in violation of the Fifth and Fourteenth Amendments of the United States Constitution, the Delaware Constitution of 1897 and 42 U.S.C.A. §§ 1981, 1982 and 1983. 1 They seek damages in inverse condemnation pursuant to 29 Del.C. § 9504 in the amount of the value of the property as two separate building lots, one with an existing improvement and one to be improved, less the value of such property as only one improved building lot, in addition to costs, reasonable attorney's fees and punitive damages. 2

Plaintiffs contend that they were entitled as a matter of law to have the application for partitioning approved and were denied the right to use their property as two lots susceptible of maintaining two dwellings within the City of Rehoboth Beach. They characterize the actions of the defendants as having deprived them of their private property rights without due process of the law. Although in their brief they generally assert both substantive and procedural due process violations by the defendants, the plaintiffs do not in fact challenge the constitutionality of the City's setback ordinance. Instead, they argue that its application to their request was arbitrary and capricious in that the defendants misread and knowingly misapplied the ordinance. As such, I will treat their claim as asserting only a procedural due process violation. Cf. Pace Resources, Inc. v. Shrewsbury Township, 3d Cir., 808 F.2d 1023, 1034-1037, cert. denied, 482 U.S. 906, 107 S.Ct. 2482, 96 L.Ed.2d 375 (1987) (plaintiff making substantive due process claim has burden of showing that regulation is arbitrary or irrational).

The defendants argue as a preliminary matter that the plaintiffs had merely a unilateral expectation, and not a legitimate claim of entitlement or a constitutionally protected property interest, in having their application approved. See Board of Regents v. Roth, 408 U.S. 564, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). They claim that the Planning Commission's function in denying the application was a discretionary one in that it had to determine whether the proposal met all the requirements of the subdivision and zoning ordinances, including section 17-2 of the Code of the City of Rehoboth Beach that provides:

(a) The purpose of this Chapter shall be to provide rules, regulations and standards to guide land subdivision in the City in order to promote the public health, safety, convenience and the financial and general welfare of the City. It shall be administered to insure orderly growth and development, the conservation, protection and proper use of land, and adequate provision for...

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