Mayor and Council of New Castle v. Rollins Outdoor Advertising, Inc.

• Decision Date: 21 November 1983
• Citation: 475 A.2d 355
• Parties: The MAYOR AND COUNCIL OF NEW CASTLE, a municipal corporation of the State of Delaware, Plaintiff Below, Appellant, v. ROLLINS OUTDOOR ADVERTISING, INC., Defendant Below, Appellee. . Submitted:
• Court: Supreme Court of Delaware

Page 355

475 A.2d 355

The MAYOR AND COUNCIL OF NEW CASTLE, a municipal corporation of the State of Delaware, Plaintiff Below, Appellant, v. ROLLINS OUTDOOR ADVERTISING, INC., Defendant Below, Appellee.

Supreme Court of Delaware.

Submitted: Nov. 21, 1983.

Decided: April 2, 1984.

Upon appeal from Court of Chancery. Reversed and Remanded.

Daniel F. Wolcott, Jr. (argued) and W. Laird Stabler, III, of Potter, Anderson & Corroon, Wilmington, for appellant.

Harvey B. Rubenstein (argued), Wilmington, and Michael A. Poppiti, Wilmington, for appellee.

Robert D. Goldberg, City Sol., Julianne E. Hammond, Asst. City Sol., for the City of Wilmington, and Thomas G. Hughes, City Sol., for the City of Newark, amici curiae.

Before HERRMANN, C.J., and McNEILLY, HORSEY, MOORE and CHRISTIE, JJ., constituting the Court en banc.

CHRISTIE, Justice:

The Mayor and Council of New Castle (New Castle), appellant, appeals from a decision and order of the Court of Chancery which granted the motion of Rollins Outdoor Advertising, Inc. (Rollins) to dismiss New Castle's claim against Rollins on the basis that the complaint failed to state a claim upon which relief could be granted. In its order, the Court of Chancery held that 22 Del.C. § 301 et seq. did not confer upon a municipality the power to adopt an ordinance which provided for the gradual elimination of nonconforming uses over a period of years (a zoning device generally known as "amortization"). The order went on to state that even if the statute did grant authority to impose mandatory amortization of nonconforming uses, the municipal ordinance under which New Castle sought to act was unconstitutional since it provided for a "taking" in violation of Article I, Sections 7 and 8 of the Delaware Constitution and the 5th and 14th Amendments of the United States Constitution.

We disagree with the Court of Chancery's analysis and reverse and remand the case for the reasons set forth below.

On April 10, 1968, the City of New Castle adopted an ordinance to amend, revise, and reenact the comprehensive zoning regulations of the City. The zoning ordinance provided for the gradual elimination of certain specified nonconforming uses via amortization. The pertinent part of the ordinance provides as follows:

Gradual Elimination of Certain Uses --Certain non-conformities shall be terminated in accordance with the following provisions:

a. Lawfully existing uses shall within three years from the date of adoption or amendment of this ordinance comply with the performance standards of Section 6, B of this ordinance.

b. Within not more than three years from the date of adoption or amendment of this ordinance by which a use becomes non-conforming, the right to maintain the following non-conformities shall no longer be operated or maintained;

(1) Any junk yard

(2) A non-conformity, which is not enclosed within a structure

(3) Off-site signs. (City of New Castle Zoning Ordinance, § 4, paragraph 6.)

Rollins Outdoor Advertising, Inc., the appellee, and its predecessors in interest owned and/or maintained two off-site signs (billboards not related to an activity being conducted on the premises) in locations which were zoned residential under the zoning ordinance. Such signs are not a permitted use in a residential district under the new zoning ordinance. Rollins conducted no other business or activity on the premises.

Apparently these off-site signs were in use by Rollins' predecessor in interest at the time the comprehensive zoning code was first adopted by the City of New Castle in 1968 and when zoning was first adopted for the municipality at an earlier date. Since the actual use predated the zoning classification, the continued existence of the off-site signs had been tolerated as a nonconforming use.

A theory as to nonconforming uses is that eventually the proscribed use will be terminated or abandoned with the passage of time, and that the property will then be made to comply with its appropriate zoning classification. This did not occur in this case.

On October 28, 1970, Rollins and its predecessors in interest were informed by New Castle, that in accordance with the ordinance, these two signs were to be removed as nonconforming uses on or before April 10, 1971 (approximately three years after the ordinance became effective). Another demand that the signs be removed was sent on May 19, 1971.

Rollins purchased the assets of its predecessor in interest on October 1, 1976--more than five years after notice that the signs must be removed, and approximately eight years after the zoning ordinance had been enacted.

Despite additional requests and demands by New Castle, Rollins has refused to remove the signs. As a result, these nonconforming uses persist contrary to the specific provisions and announced purposes and requirements of the zoning ordinance.

I

The Court of Chancery held that the City of New Castle lacked the power to enact the zoning ordinance here in question. The court's rationale was that the enabling statute, 22 Del.C. § 301 ¹, did not confer upon the City of New Castle the power to enact this ordinance because in its opinion the power to "regulate and restrict" the use of land did not include the power to "prohibit" an existing use.

The statute by which all municipalities in this State derive their zoning authority is 22 Del.C. § 301 et seq. As the enabling statute indicates, it was enacted for the broad purpose of promoting the health, safety, morals, and general welfare of the community. While it is true that municipalities have no inherent power to zone property except as the General Assembly may delegate, Boozer v. Johnson, Del.Ch., 98 A.2d 76 (1953), the General Assembly can not be presumed to set out to accomplish the above stated goals without providing the municipalities reasonable means to achieve these goals.

Evidence that the statute carried with it the authority to enact a zoning ordinance which would promote these goals through various means including the reasonable amortization of selected nonconforming uses can be found in the legislative history and judicial analysis of the act upon which 22 Del.C. § 301 is modeled.

It is clear that 22 Del.C. § 301 is fashioned after the Standard State Zoning Enabling Act. See, 4 Rathkopt, The Law of Zoning and Planning, p. 765 (1979); Note, Elimination of Nonconforming Uses, 35 Va.L.Rev. 348, 355 n. 45 (1949). Courts in several jurisdictions have held that acts of this type authorize municipalities to eliminate nonconforming uses such as offsite signs by way of amortization or by other similar methods. Livingston Rock & Gravel Co. v. County of Los Angeles, Cal.Supr., 43 Cal.2d 121, 272 P.2d 4 (1954); City of Los Angeles v. Gage, Cal.App., 127 Cal.App.2d 442, 274 P.2d 34 (1954); Franklin Furniture Co. v. City of Bridgeport, Conn.Supr., 142 Conn. 510, 115 A.2d 435 (1955); State ex rel. Dema Realty Co. v. McDonald, La.Supr., 168 La. 172, 121 So. 613 (1929), cert. denied, 280 U.S. 556, 50 S.Ct. 16, 74 L.Ed. 612 (1929); Grant v. Mayor and City of Baltimore, Md.App., 212 Md. 301, 129 A.2d 363 (1957); Standard Oil Co. v. City of Tallahassee, 183 F.2d 410 (5th Cir.1950), cert. denied, 340 U.S. 892, 71 S.Ct. 208, 95 L.Ed. 647 (1950).

In Grant, supra, sign companies and owners of property leased for off-site sign use sought to enjoin the City of Baltimore from enforcing a zoning ordinance which required the removal of existing off-site signs from residential areas after a five-year amortization period. Under the ordinance, these signs constituted a nonconforming use. The court denied the owner's request for an injunction stating:

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. Grant, supra at 369.

This Court has held that a municipality's zoning authority "depends entirely upon that expressly granted or fairly implied or indespensable to its declared objects and purposes." Mayor and Council of Wilmington v. Dukes, Del.Supr., 157 A.2d 789 at 794 (1960). It is clear from the express wording of 22 Del.C. § 301 that a municipality may "regulate and restrict" the use of land through zoning. The court below held that "regulate and restrict" did not include the power to "prohibit." We find that under some circumstances it does include such power.

The term "regulate" is defined in Black's Law Dictionary as:

To fix, establish, or control; to adjust by rule, method, or established mode; to direct by rule or restriction; to subject to governing principles or laws. Black's Law Dictionary 1156 (5th ed. 1979).

The term "restrict" is defined as:

To restrain within bounds; to limit; to confine. Id. at 1182.

The Supreme Court of the United States has recognized that the term "regulate" necessarily entails a possible prohibition of some kind. That Court has stated: "It is an oft-repeated truism that every regulation necessarily speaks as a prohibition." Goldblatt v. Hempstead (1962), 369 U.S. 590, at 592, 82 S.Ct. 987, 989, 8 L.Ed.2d 130.

The Supreme Court of Massachusetts in reviewing a statute containing language similar to that found in 22 Del.C. § 301 (which empowered municipalities to "regulate and restrict" outdoor advertising on public ways, in public places, and on private property within public view) held that the statute in question authorized a town to provide, through amortization, for the elimination of nonconforming off-site signs five years from the time the ordinance was enacted. The court held that the Massachusetts enabling act:

[C]onferred on the Legislature plenary power to regulate and restrict outdoor advertising .... Although the word "prohibit" was omitted from [the enabling act], it was recognized that the unlimited and unqualified power to...