Mayor and Council of New Castle v. Rollins Outdoor Advertising, Inc.
| Decision Date | 10 September 1982 |
| Citation | 459 A.2d 541 |
| Parties | The MAYOR AND COUNCIL OF NEW CASTLE, a Municipal Corporation of the State of Delaware, Plaintiff, v. ROLLINS OUTDOOR ADVERTISING, INC., Defendant. . Submitted: |
| Court | Court of Chancery of Delaware |
On Defendant's Motion to Dismiss. Motion Granted.
Daniel F. Wolcott, Jr., and W. Laird Stabler, III, of Potter, Anderson & Corroon, Wilmington, for plaintiff.
Harvey B. Rubenstein, and Michael A. Poppiti, Wilmington, for defendant.
BROWN, Chancellor.
This is an action brought to enforce a zoning regulation. Defendant has moved to dismiss. The issue presented calls into question the legality of a zoning ordinance which seeks to eliminate certain nonconforming uses through a gradual amortization of the value of the use. The question would appear to be one of first impression in this State.
The zoning ordinance involved was adopted by the plaintiff City of New Castle as a part of a 1968 reenactment of the zoning code of the City. It reads in relevant part as follows:
"6. Gradual Elimination of Certain Uses--
Certain non-conformities shall be terminated in accordance with the following provisions:
This case deals with the third category--off-site signs. Specifically, the defendant Rollins Outdoor Advertising, Inc. presently owns two parcels of real estate within the City of New Castle on which advertising billboards are situated. These properties are classified for residential use under the City zoning code. However, they are used solely for off-site advertising purposes by Rollins. No other business or activity is conducted on the premises.
These billboards were in place on the properties and were being used for off-site advertising purposes by Rollins' predecessor in title at the time that a comprehensive zoning code was first adopted by the City of New Castle. The initial zoning classification of the two properties did not permit such a use. Neither does the 1968 reenactment. Accordingly, since the actual use predated the zoning classification, the continued existence of the billboards has been permitted heretofore under the concept of a nonconforming use. As with all nonconforming uses, the theory is that eventually the proscribed use will be terminated or abandoned with the passage of time, after which the property will then be made to comply with the zoning classification.
As to certain uses, however, the passage of time has not produced the curative effect hoped for by the zoning planners. Junk yards and billboards fall within this category. A junk yard, by its very nature, has a tendency to never go away. To perhaps a lesser degree the same is true of billboards. Thus, in recent years, a new approach has been conceived to hasten their respective departures so as to terminate the objectionable use and bring the property into compliance with the overall zoning scheme. This new concept allegedly involves the principle of amortization. This is said to be the basis and justification for the zoning ordinance in issue here insofar as it applies to the off-site signs of the defendant Rollins.
Stated in its simplest terms, the amortization of a nonconforming use contemplates the compulsory termination of a nonconformity at the expiration of a specified period of time--the time period, in theory, being equal to the useful economic life of the nonconformity. The basic idea is to determine the remaining normal useful life of a pre-existing nonconforming use. The landowner is then allowed to continue his use for this period so as to realize (or perhaps recoup) the value of the use. Presumably, this is measured against his capital investment in the use. At the end of the specified period he must terminate the use and conform his property to its classification under the zoning plan. See, Hoffman v. Kinealy, Mo.Supr., 389 S.W.2d 745, 750 (1965).
The parties concede that there is a distinct split of authority throughout the country on the question of the constitutionality of this amortization approach to the elimination of nonconforming uses. On the one hand, the number of cases holding the amortization method of eliminating nonconforming uses or structures to be constitutional is substantial. National Advertising Company v. County of Monterey, Cal.App., 211 Cal.App.2d 375, 27 Cal.Rptr. 136 (1963); Village of Gurnee v. Miller, Ill.App., 69 Ill.App.2d 248, 215 N.E.2d 829 (1966); John Donnelly & Sons, Inc. v. Outdoor Advertising Bd., Mass.Supr., 369 Mass. 206, 339 N.E.2d 709 (1975); Harris v. Mayor and City Council of Baltimore, Md.Spec.App., 35 Md.App. 572, 371 A.2d 706 (1977); Eutaw Enterprises, Inc. v. City of Baltimore, Md.App., 241 Md. 686, 217 A.2d 348 (1966); Grant v. Mayor and City Council of Baltimore, Md.App., 212 Md. 301, 129 A.2d 363 (1957); Inhabitants, Town of Boothbay v. National Adv. Co., Me.Supr., 347 A.2d 419 (1975); Naegele Outdoor Adv. Co. v. Village of Minnetonka, Minn.Supr., 281 Minn. 492, 162 N.W.2d 206 (1968); Lachapelle v. Town of Goffstown, N.H.Supr., 107 N.H. 485, 225 A.2d 624 (1967); Suffolk Outdoor Advertising Co. v. Hulse, N.Y.App., 43 N.Y.2d 483, 402 N.Y.S.2d 368, 373 N.E.2d 263 (1977); Harbison v. City of Buffalo, N.Y.App., 4 N.Y.2d 553, 176 N.Y.S.2d 598, 152 N.E.2d 42 (1958); Beals v. County of Douglas, Nev.Supr., 93 Nev. 156, 560 P.2d 1373 (1977); State v. Joyner, N.C.Supr., 286 N.C. 366, 211 S.E.2d 320 (1975); City of Seattle v. Martin, Wash.Supr., 54 Wash.2d 541, 342 P.2d 602 (1959); Art Neon Co. v. City and County of Denver, 488 F.2d 118 (10th Cir.1973); Standard Oil Co. v. City of Tallahassee, 183 F.2d 410 (5th Cir.1950), cert. den'd 340 U.S. 892, 71 S.Ct. 208, 95 L.Ed. 647 (1950). In the main, these decisions stand for the proposition that the forced termination of a nonconforming use over a specified period of time is a reasonable exercise of the police power and does not constitute a taking of property in violation of due process.
On the other side of the matter, Rollins cites City of Fayetteville v. S & H, Inc Ark.Supr., 261 Ark. 148, 547 S.W.2d 94 (1977); Hoffman v. Kinealy, supra; Concord Township v. Cornogg, Pa.C.P., 9 D & C.2d 79 (1956); and City of Akron v. Chapman, Ohio Supr., 160 Ohio St. 382, 116 N.E.2d 697 (1953), all of which have held that such an amortization ordinance does amount to an improper taking of private property without just compensation.
As applied to off-site signs the rationale offered by the authorities cited by the City of New Castle is that such an ordinance is a reasonable exercise of the police power in that it is related to the general welfare of the community. It is said to be reasonably designed to gradually remove an unwanted, unsightly and value-depreciating commercial intrusion from an otherwise residential area. It is said that the owner of the property having the nonconfirming use is compensated for the eventual termination by virtue of being granted, in effect, a monopoly to continue the nonconforming use in the prohibited area, and to profit by it and thus recoup his investment over the duration of the amortization period established by the ordinance. It is pointed out that the ordinance does not take the realty itself, but rather it simply brings it within the residential classification and that, as such, the property still has value to the owner. It is further pointed out that in a case such as this the billboards themselves are not taken and thus the owner is free to remove them to another location where such a use is permitted.
In final analysis, the position of the authorities relied upon by the City of New Castle may be summed up in the following statement from Grant v. Mayor and City Council of Baltimore, supra, at 129 A.2d 369:
"The distinction between an ordinance that restricts future uses and one that requires existing uses to stop after a reasonable time, is not a difference in kind but one of degree and, in each case, constitutionality depends on overall reasonableness, on the importance of the public gain in relation to the private loss."
In this sense the right of the public to be relieved from the onus of commercial billboards in residential areas over a reasonable period of time is said to predominate over the right of a property owner to rely on the nonconforming use concept so as to maintain an off-site sign in a residentially zoned area indefinitely.
The aforesaid authorities cited by Rollins view the matter differently. Those cases recognize that the value of property lies in the right to use it. They stress the principle that a lawful use of property which predates a zoning ordinance constitutes a vested property right which is guaranteed to the landowner as a nonconforming use until such time as it is voluntarily terminated or abandoned. They view an ordinance which compels the termination of the nonconforming use against the will of the landowner, and without compensation, to constitute an unconstitutional taking of private property. As stated by the Ohio Supreme Court in City of Akron v. Chapman, supra, at 116 N.E.2d 700:
"The right to continue to use one's property in a lawful business and in a manner which does not constitute a nuisance and which was lawful at the time it was acquired is within the protection of Section 1, Article XIV, Amendments, Constitution of the United States, and Section 16, Article I of the Ohio Constitution, which provide that no person shall be deprived of life, liberty or property without due process of law."
And, in Hoffman v. Kinealy, supra, the situation was summed up as follows at 389 S.W.2d at 753:
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