Pruett v. Dayton

• Decision Date: 13 March 1961
• Citation: 39 Del.Ch. 537,168 A.2d 543
• Parties: Carl E. PRUETT, Rosemary S. Pruett, Norman M. Jones, Helen G. Jones, James W. Black, Annie C. Black, Carl F. Kammerer, Mary Kammerer, Roger T. Cheche, Frances S. Cheche, Lulu P. Hutchison, Llangollen Club, Inc., a Delaware corporation, Plaintiffs, v. Joseph F. DAYTON, G. Lester, Cleaver, Harry H. Lambert, constituting the Levy Court of New Castle County, Land-Fill, Inc., a Delaware corporation, Dominick Cantera and Marion Cantera, Defendants.
• Court: Court of Chancery of Delaware

Page 543

168 A.2d 543

39 Del.Ch. 537

Carl E. PRUETT, Rosemary S. Pruett, Norman M. Jones, Helen G. Jones, James W. Black, Annie C. Black, Carl F. Kammerer Mary Kammerer, Roger T. Cheche, Frances S. Cheche, Lulu P Hutchison, Llangollen Club, Inc., a Delaware corporation, Plaintiffs, v. Joseph F. DAYTON, G. Lester, Cleaver, Harry H. Lambert constituting the Levy Court of New Castle County Land-Fill, Inc., a Delaware corporation, Dominick Cantera and Marion Cantera, Defendants.

Court of Chancery of Delaware, New Castle County.

March 13, 1961.

Vincent A. Theisen and Victor F. Battaglia (of Theisen & Lank), Wilmington, for plaintiffs.

Clarence W. Taylor (of Hastings, Taylor & Willard), Wilmington, for defendant, Levy Court of New Castle County.

Clement C. Wood (of Allmond & Wood), Wilmington, for defendant, Land-Fill, Inc.

E. Dickinson Griffenberg, Jr. (of Killoran & VanBrunt), Wilmington, for defendants, Dominick Cantera and Marion Cantera.

SEITZ, Chancellor.

The plaintiffs are Llangollen Club and certain residents of Llangollen Estates. They seek a preliminary injunction preventing defendants from continuing the operation of a sanitary land-fill on property adjoining their residential development. The members of the Levy Court are made defendants because, pursuant to statute, they leased the land in question for the use now being made of it. Also, pursuant to statute, the Levy Court entered into a contract with the defendant, Land-Fill, Inc., under which Land-Fill is responsible for the operation (9 Del.C § 2401 et seq., as amended). The other defendants are the owners of the leased property. All defendants resist the motion and this is the decision thereon.

The day before the operation was to commence the plaintiffs sought a restraining order. It was denied on several grounds. See Pruett v. Dayton, Del.Ch., 166 A.2d 440. Plaintiffs, in effect, seek to have this court reverse its prior determination that the Levy Court is not bound by the zoning code in determining where the land-fill operation should be located. The also assert as a new ground that, as operated, the land-fill project creates a nuisance.

Preliminarily, defendant, Levy Court, says its immunity from tort liability prevents plaintiffs from raising the question as to whether the activity here involved is governmental or proprietary. I find it unnecessary to resolve this argument because of my conclusion herein.

In its prior opinion this court stated that the zoning law applied to the private use of land. Perhaps that conclusion was even broader than the facts of the case required. Consequently, the language should be understood to be limited to a determination that the existing statute and zoning code did not bar the Levy Court from placing the sanitary land-fill operation at its present location. I say this on the basis of the following two legal principles:

1. When exercising a governmental function, a subdivision of government is not subject to its own zoning regulations. Nehrbas v. Incorporated Village of Lloyd Harbor, 2 N.Y.2d 190, 159 N.Y.S.2d 145, 140 N.E.2d 241, 61 A.L.R.2d 965; 2 Metzenbaum, Law of Zoning (2nd ed.), p. 1284-85; 62 C.J.S. Municipal Corporations § 226(16)(c).

2. Under the modern view, the disposal of garbage by a governmental subdivision involves a governmental rather than a proprietary activity, at least where zoning is involved. See Nehrbas v. Incorporated Village of Lloyd Harbor, above. Compare 18 McQuillin on Municipal Corps., (3rd ed.), § 53.46; 63 C.J.S. Municipal Corporations § 777b.

Plaintiffs contend that the disposal of garbage involves a proprietary function, citing City of West Point v. Meadows, Miss., 110 So.2d 372; Chardkoff Junk Co. v. City of Tampa, 102 Fla. 501, 135 So. 457; City of Denver v. Porter, 10 Cir., 126 F. 288; O'Brien v. Town of Greenburgh, 266 N.Y. 582, 195 N.E. 210. Of the cases cited, only O'Brien v. Town of Greenburgh involved governmental action in conflict with a zoning regulation. In the recent Nehrbas case, cited above, the N. Y. Court of Appeals stated that although the O'Brien case was affirmed, the court did not then pass on the issue of the binding effect of zoning on a municipal garbage disposal operation. The court went on to hold that the Village was not limited by zoning laws in providing a place for the collection of garbage. The court noted further that cases involving tort liability of municipalities, are of 'little value' in resolving disputes of the present type, viz., garbage disposal facilities versus zoning.

I believe the approach of the court in the Nehrbas case is sound. Clearly, garbage can create a health hazard of a magnitude which justifies governmental action. Compare Delaware Liquor Store v. Mayor, 45 Del. 461, 75 A.2d 272. A governmental sub-division so acting is conferring a benefit which realistically is for the good of the general citizenry.

But plaintiffs correctly point out that the statutory grant of power to the Levy Court is permissive rather than mandatory. They argue from this premise that the exercise of the power must therefore be considered proprietary rather than governmental. I think a permissive versus mandatory formulation is not particularly helpful in determining the class of activity involved. It seems to me that the nature of the activity itself must be controlling. Compare Delaware Liquor v. Mayor, above. So viewed, I think the conclusion herein stated is sound.

Other arguments advanced by plaintiffs with respect to the statutory construction problem are, I believe, correctly disposed of in my prior opinion. Plaintiffs do suggest that the approach here adopted results in an unconstitutional delegation of legislative authority to the Levy Court. I fail to see any constitutional problem because the delegation here involved is quite reasonable in relation to the subject matter and the political subdivision involved. Certainly plaintiffs have no 'vested contractual' rights as against the Levy Court arising out of the zoning code. See Reinbacher v. Conly, Del.Ch., 141 A.2d 453.

I therefore conclude that the plaintiffs are not entitled to relief on the basis of a claim that the Levy Court action here attacked violates the zoning code.

I turn now to plaintiffs' contention that the land-fill project, as operated, creates a private nuisance as to these plaintiffs. No jurisdictional question is raised but I do point out that apparently no question of public nuisance is involved.

Have plaintiffs made the requisite showing to entitle them to a preliminary injunction?

Under the law applicable to private nuisances, plaintiffs must clearly establish the nuisance and the injury must not be trivial or temporary. Compare Ciconte v. Shockley, 31 Del.Ch. 376, 75 A.2d 242. The plaintiffs' burden is even heavier here because the matter arises on a preliminary application. Nor is mere...