Mayor & Council of Wilmington v. Turk

• Decision Date: 27 May 1925
• Citation: 14 Del.Ch. 392,129 A. 512
• Court: Court of Chancery of Delaware
• Parties: THE MAYOR AND COUNCIL OF WILMINGTON, a Municipal Corporation of the State of Delaware, v. ETTA H. TURK

129 A. 512

14 Del.Ch. 392

THE MAYOR AND COUNCIL OF WILMINGTON, a Municipal Corporation of the State of Delaware, v. ETTA H. TURK

Court of Chancery of Delaware, New Castle

May 27, 1925

INJUNCTION BILL to restrain the defendant from a threatened violation of the so-called Zoning Ordinance of the City of Wilmington. The ordinance was adopted by the city in pursuance of authority conferred upon cities and incorporated towns by Chapter 114, Volume 33, Laws of Delaware, approved March 14, 1923. Sections 1, 2 and 3 of this act disclose its purpose, and the extent of powers conferred. Said sections are as follows:

"Section 1. Grant of Power:--For the purpose of promoting health safety, morals, or the general welfare of the community, the legislative body of cities and incorporated towns is hereby empowered to regulate and restrict the height, number of stories and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards courts, and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residence or other purposes.

"Section 2. Districts:--For any or all of said purposes such legislative body may divide the municipality into districts of such number, shape, and area as may be deemed best suited to carry out the purposes of this act; and within such districts it may regulate and restrict the erection construction, reconstruction, alteration, repair or use of buildings, structures, or land. All such regulations shall be uniform for each class or kind of buildings throughout each district but the regulations in one district may differ from those in other districts.

"Section 3. Purposes in View:--Such regulations shall be made in accordance with a comprehensive plan and designed to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare to provide adequate light and air, to prevent the overcrowding of land; to avoid undue concentration of population; to facilitate the adequate provision of transportation, water, sewerage, schools, parks and other public requirements. Such regulations shall be made with reasonable consideration, among other things, as to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout such municipality."

The ordinance passed in pursuance of the authority conferred by the act is a comprehensive one. It divides the city into nine districts and by an elaborate system of regulations and prohibitions undertakes to impose restrictions upon property holders within the city touching the particulars with respect to which power is conferred by Section 1 of the act above quoted.

The property with which the bill concerns itself is known as No. 615 West Eighteenth Street in the City of Wilmington. It is located in what is defined by the ordinance as a Residence "A" District. The defendant is not the owner of this property, nor is she the present occupant thereof. She is a registered nurse, more familiarly known as a trained nurse. At present she resides at No. 1908 Jefferson Street in said city with her husband and daughter. At her house she pursues her calling as a nurse by taking private patients. The sort of cases which she has received are adenoid and diseased tonsil cases (one hundred and forty during the year 1924), maternity cases (twenty-five during the same year), after care, or post-operative cases resulting from major operations performed in a general hospital (two during the same year), and cases requiring care on account of age or other infirmities (two during the same year). In her home she has fitted up a small aseptic room in which minor operations necessitated by the type of cases she receives may be performed. The nursing attention required for the tonsil and adenoid cases averages from one to three days. The few other cases require a longer period of nursing. Ether or some other anaesthetic is of course supplied by her in the handling of the cases which necessitate an operation. No major operations are performed in her house, nor are persons suffering from infectious or contagious diseases received by her. Her business is a private one; the facilities she offers are not extended to the public generally, but are the subject of special arrangement made by a few physicians. Whenever the necessity arises, she employs an outside nurse to come in and render assistance.

The foregoing description of the sort of service she renders at her present home is mentioned because the answer and testimony show that she plans to render an exactly similar service at her proposed future home, No. 615 West Eighteenth Street, in case she acquires title to the same under the terms of a contract of purchase which she has heretofore entered into. The only difference between the business to be conducted by her at the new place and that conducted by her at her present home, is that the former will, by affording more room, supply accommodations for a larger number of patients if she should be so fortunate as to be able to secure more. There will be no institutional marks on her new home, No. 615 West Eighteenth Street, as there are none on her present home. A simple metal plate bearing her name with the letters "R. N." will be the only thing in the way of an advertisement on the building. The house already constructed at 615 West Eighteenth Street is a residence and will, if the defendant acquires it, continue to present a residential appearance.

The bill charges that the business proposed to be conducted by the defendant at 615 West Eighteenth Street will make of the place a hospital, that a hospital is prohibited by the ordinance in Resident "A" Districts, and prays an injunction restraining the defendant from using said premises for such purpose.

The defendant (1) denies that she proposes to conduct a "hospital" as the term is to be properly understood; (2) contends that the ordinance permits the "office of a physician or similar professional person, residing on the premises" to be maintained in Residence "A" Districts, "provided there be no advertising other than by an identification sign placed in or on the dwelling," and that she, being a "similar professional person," comes within the permission; (3) avers that "customary home occupations such as dressmaking or millinery conducted by a resident occupant with the assistance of not more than an average of two employees" are likewise permitted by the ordinance in Residence "A" Districts, and that she falls within this permissive category; and (4) if the foregoing be rejected as without merit, the defendant contends that the ordinance as applied to her under the facts of this case is unconstitutional.

The case was heard on bill, answer, testimony of witnesses heard orally by the Chancellor and exhibits.

Bill dismissed with costs on the complainant.

Caleb S. Layton, City Solicitor, for the complainant.

Herbert H. Ward, of the firm of Ward, Gray and Ward, for the defendant.

OPINION

THE CHANCELLOR

The ordinance, following the authority of the statute, deals with four general subjects for regulation and prohibition, viz., (a) the use of buildings, (b) the height and size of buildings, (c) areas and dimensions of open spaces and building lots, and (d) density of population. In the instant case we are concerned only with that portion of the ordinance which deals with (a).

Section 8 of the statute provides remedies available to municipal officers for the enforcement of the zoning ordinances authorized by it. Said section is as follows:

"Section 8. Remedies:--In case any building or structure is erected, constructed, reconstructed, altered, repaired, converted, or maintained; or any building, structure or land is used in violation of this act or of any ordinance or other regulation made under authority conferred thereby, the proper local authorities of the municipality, in addition to other remedies, may institute any appropriate action or proceedings to prevent such unlawful erection, construction, reconstruction, alteration, repair, conversion, maintenance or use to restrain, correct or abate such violation, to prevent the occupancy of said building, structure or land or to prevent any illegal act, conduct, business or use in or about such premises."

Inasmuch as we are here dealing with the question of the use of a building, it would seem that the clause in the foregoing section authorizing preventive process is the one which specifies the case of a building "used in violation of this act or of any ordinance." The defendant is not in possession of the building in question, nor is she its owner. It is not being "used" in violation of the statute, nor of any ordinance, nor of any regulation. What right has the city, therefore, to now seek injunctive relief in this court?

The parties have chosen to ignore this question. I ought perhaps to answer it myself and, if the conclusion should be that the bill is prematurely filed, decree a dismissal. An outcome based on such a reason, however, would probably serve only to defer to a later time a decision on the substantive points; and I shall, therefore, proceed to consider the case in the light of the contentions as they were shaped by the solicitors at the argument and on their briefs.

Throughout this opinion it will be assumed that the defendant's business which she proposes to conduct at No. 615 West Eighteenth Street will be the same as she now conducts at her present home, an assumption upon which solicitors for both parties to the cause have based their respective contentions.

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