Kerns v. Dukes, Civil Action No. 1999-S Class Action (Del. Ch. 4/2/2004)
| Decision Date | 02 April 2004 |
| Docket Number | Civil Action No. 1999-S Class Action. |
| Court | Court of Chancery of Delaware |
| Parties | JOSEPH KERNS and KATHLEEN KERNS, WILLIAM M. TORNEY and LOIS A. TORNEY, MAUREEN MOYER, and JOHN D. COFFMAN and MARTHA C. COFFMAN, and WAYNE M. ARGO, DONNA J. ARGO, STANLEY J. GUNIA, JOYCE JOHNSON, TERESA D. GIAMBRONE, and LEWIS M. HAYDEN and NEVILLE W. HAYDEN, On behalf of themselves and other similarly situated property owners, 9 Del. C. § 6519 persons and other persons being assessed for the payment of the "West Rehoboth Expansion of the Dewey Beach Sanitary Sewer District," Plaintiffs, v. DALE R. DUKES, individually and as former Sussex County Government and Council President, GEORGE J. COLLINS, WILLIAM D. STEVENSON, SR., GEORGE B. COLE AND RALPH E. BENSON, individually and as Sussex County Council Members, ROBERT L. STICKELS, individually and as Sussex County Administrator, ROBERT L. WOOD, individually and as Sussex County Engineer, CHRISTOPHE A. G. TULOU, individually and as a former Delaware Department of Natural Resources and Environmental Control Secretary, GERALD L. ESPOSITO, individually and as then acting Director of Delaware Department of Natural Resources and Environmental Control, and EDWIN H. CLARK, II, individually and as then Secretary of Delaware Department of Natural Resources and Environmental Control, and FINLEY B. JONES, JR., individually and as Sussex County Government President and Council President, DALE R. DUKES, FINLEY B. JONES, JR., VANCE PHILLIPS and LYNN ROGERS, individually and as Sussex County Council Members, MICHAEL A. IZZO, individually and as Sussex County Engineer, Defendants. |
PARSONS, Vice Chancellor.
Plaintiffs filed an action challenging the expansion of the Dewey Beach Sanitary Sewer System to include the West Rehoboth Area by Sussex County pursuant to 9 Del. C. Ch. 65. This Memorandum Opinion addresses Defendants' motion for summary judgment on the basis of the statute of limitations and the doctrine of laches.1
Sussex County's attempts to establish a new central sewer system west of the Dewey Beach Sanitary Sewer District were defeated in referendums in 1971 and 1985.2 Plaintiffs aver that, in light of these prior defeats, Sussex County Council circumvented the requirements of 9 Del. C. Ch. 65 (Sanitary and Water Districts), and thereby violated the procedural and substantive due process rights of the residents of Sussex County by expanding an existing district rather than placing a proposal for a new sewer district before the voters in a referendum. Plaintiffs assert that the West Rehoboth Expansion encompasses a land mass significantly larger than the Dewey Beach Sanitary Sewer System, is not contiguous with the Dewey Beach District, and is not integrated with or in any way connected to the Dewey Beach System. Plaintiffs contend that the County Council's actions created a new district, rather than an expansion of the existing district, and thus the County's actions were subject to different statutory procedural requirements under Chapter 65. Those requirements included putting the new district to an election.
Defendants, who were sued in their individual and official capacities, filed a motion for summary judgment based on their statute of limitations and laches defenses. For the reasons set forth below, the motion will be granted.
On October 20, 1989 Sussex County advertised a public hearing regarding the establishment of a proposed West Rehoboth Expansion of the Dewey Beach Sanitary Sewer District ("WRE"). At the hearing on November 2, 1989, a number of members of the affected public raised objections.
The Delaware Department of Natural Resources and Environmental Control ("DNREC") held public hearings on a proposed septic permit moratorium on August 30, September 1, and November 15, 1989 out of concern over contaminated groundwater. DNREC imposed a moratorium on all new septic system permits in the area to be encompassed by the WRE on December 20, 1989. The moratorium had the practical effect of phasing out septic systems in the WRE by prohibiting that alternative means of waste removal.
Sussex County posted notices regarding the WRE boundaries on February 19 and 21, 1990. These notices did not set a date for a public hearing but indicated that written comments would be accepted by the Sussex County Engineering Department until March 12, 1990. On March 13, 1990, Sussex County Council noticed a meeting for March 20, 19903 indicating that the Sussex County Council would consider the expansion of the Dewey Beach Sanitary Sewer System at the next County Council meeting.4 Similar notices were published in the Whale and the News Journal, two local newspapers. None of the notices contained cost and assessment data. Such data would have been required for the establishment of a new district.5 The notices did meet, however, the statutory informational requirements for the expansion of an existing district pursuant to section 6502(a). Although the March 13 notices were not posted within the expansion area of the proposed expansion district, they were posted within the district that was to be expanded.
On March 22, 1990, Sussex County Council adopted Resolution No. R-013-90 establishing the WRE. The Council adopted Ordinance 685 on June 5, 1990 to provide for the assessment of a $2,000 sewer capitalization fee. No public election was held regarding the WRE Resolution of March 22, 1990. If the Resolution had related to a new sewer district, 9 Del. C. § 6506 would have required that an election be held no later than September 22, 1990.
A group of residents of Sussex County, Citizens for Affordable Sewers, filed an action in Superior Court in June 1993 to mandate the election they claimed was required under 9 Del. C. § 6506.6 Plaintiffs assert that this action was voluntarily dismissed in July 1993, before the filing of any responsive pleading, based on an agreement with one or more of the defendants that it was premature and that the right to oppose any proposed sewer district on the basis of cost concerns would be preserved. Plaintiffs did not present any records supporting this averment and do not argue that this action relates back to the 1993 action in Superior Court. Defendants dispute Plaintiffs' characterization of the disposition of the 1993 action. Defendants assert that the case was dismissed with prejudice, dispute the alleged basis for the dismissal and deny that there was any agreement about preserving the right to challenge the cost of the WRE.7
On November 16, 1993, Sussex County Council adopted Ordinance No. 936, Ordinance No. 685 and lowering the capitalization fees for the WRE. On July 22, 1995, the Council began mailing capitalization fee bills to landowners in the WRE. Construction of Phases I and II of the WRE were completed by December 29, 1995.8 Although Construction on the third and final phase did not start until after Plaintiffs filed their initial complaint in the District Court,9 it is now complete.10
Plaintiffs brought an action in the United States District Court for the District of Delaware challenging the creation of the WRE on March 4, 1996.11 The district court granted defendants' motion to dismiss on November 8, 1996.12 After first certifying a question of law to the Delaware Supreme Court, the Court of Appeals for the Third Circuit affirmed the dismissal on July 24, 1998.13 Thereafter, Plaintiffs filed the present action on July 13, 1999 taking advantage of the savings statute and claiming relation back to the filing of their action in federal court.14 Plaintiffs amended their complaint on July 10, 2001 and again on June 10, 2002.
Plaintiffs' Complaint alleges:
(1) Defendants violated Plaintiffs' procedural due process rights guaranteed by the Fourteenth Amendment of the United States Constitution; Article I, Sections 8 and 9 of the Constitution of the State of Delaware of 1897; and 42 U.S.C. §§ 1983 and 1988 when Sussex County created the WRE and mandated connections and fees without proper notice ("Count I");
(2) Defendants violated Plaintiffs' substantive due process rights guaranteed by the Fourteenth Amendment of the United States Constitution; Article I, Sections 8 and 9 of the Constitution of the State of Delaware of 1897; and 42 U.S.C. §§ 1983 and 1988 by denying Plaintiffs the right to vote on the creation of the WRE pursuant to 9 Del. C. § 6506 and establishing assessments and fees without providing landowners with adequate notice and an opportunity to be heard ("Count II"); and (3) Defendants failed to comply with a required duty as set forth in 9 Del. C. Ch. 65 to hold an election in conjunction with the creation of the WRE ("Count III").
Defendants moved for summary judgment on May 9, 2002, arguing that Plaintiffs' claims are untimely. Specifically, Defendants contend: (1) Plaintiffs' civil rights claims, Counts I and II, are barred by the two year statute of limitations of 10 Del. C. § 8119; (2) Plaintiffs' claim for failure to hold an election pursuant to 9 Del. C. Ch. 65, Count III, is barred by the three year statute of limitations of 10 Del. C. § 8106; and (3) Plaintiffs' claims are barred by the equitable doctrine of laches. In response, Plaintiffs argue that Sussex County waived the statute of limitations and laches defenses by failing to file their motion for summary judgment as a preliminary motion under the July 28, 2000 scheduling order and that their claims are timely.
Summary judgment is appropriate if the evidence of record shows that there is no genuine issue of material fact and the moving...
To continue reading
Request your trial