Santow v. Ullman

Decision Date04 November 1960
Citation39 Del.Ch. 427,166 A.2d 135
PartiesPaul SANTOW, Stephania Santow, Joseph S. Dayton, Harry H. Lambert and G. Lester Cleaver, constituting the Levy Court of New Castle County, and Bayard A. Vandergrift, William R. Manning, John F. Porter, Thomas E. Brittingham, III and Harvey G. Cole, constituting the New Castle County Zoning Commission, Defendants-below, Appellants, v. Emanuel M. ULLMAN and Louis Bachman, Plaintiffs-below, Appellees.
CourtSupreme Court of Delaware


Appeal from an order of the Court of Chancery of New Castle County awarding a preliminary injunction. Reversed and remanded.

Joseph Donald Craven, Wilmington, for appellants Paul Santow and Stephania Santow.

Clarence W. Taylor, Wilmington, for appellants Levy Court of New Castle County and the New Castle County Zoning Commission.

Frank J. Miller (of Foulk, Walker, Miller & Wakefield), Wilmington, for appellees.

SOUTHERLAND, Chief Justice.

This is a suit in equity to enjoin an alleged violation of the New Castle County Zoning law. The essential question concerns the computation of the time required to give notice of the hearings before the Zoning Commission and before the Levy Court.

The facts are these:

The defendants below, the Santows, are the owners of a tract of land of 4.22 acres situated at the intersection of the Newport Gap Pike and the Old Weldin Road in Mill Creek Hundred. They purchased it in December 1955. It was zoned R-2, i. e., 'Agricultural and General Purposes'. In April 1956 the Santows applied to the Levy Court for a re-zoning of one-half of the tract as C-2, i. e. 'Roadside Business'. It was at that time their intention to build a gift shop on the area to be re-zoned.

The New Castle County Zoning laws vest ultimate authority in zoning matters in the Levy Court. But the Zoning Commission, a body appointed by the Levy Court, is required to consider and make recommendations to the Levy Court with respect to the original zoning of land in the county and with respect to any changes in zoning. See 9 Del.C. c. 26.

Accordingly, the Levy Court referred the Santow application to the Zoning Commission. As required by law, the Levy Court gave published notice on April 18, 1956, of a hearing on the application to be held April 25. The application was approved and on May 17, 1956 the Levy Court was so advised. The Levy Court gave published notice on May 17 (and subsequently) of a hearing on the proposed change to be held before it on June 1, 1956. The application was thereafter approved.

In 1958 the Santows built a home on the half of their tract zoned R-2.

In February, 1960, the Santows began work upon the construction of four stores on the other half of their tract, re-zoned C-2. This is a non-conforming use under the former zoning classification.

The plaintiffs below, Ullman and Bachman, own residential property in the neighborhood. On February 16, 1960, they filed suit to enjoin the erection of the proposed structures. They asserted two contentions:

(1) That insufficient notice had been given of the Zoning Commission hearing and also of the Levy Court hearing.

(2) That no proper description of the tract to be re-zoned had been furnished either to the Zoning Commission or to the Levy Court at the time when the hearings were held.

The Santows answered, denying these allegations.

Plaintiffs moved for a restraining order and preliminary injunction. On April 12 the Vice Chancellor issued a restraining order and a rule to show cause. The motion for a preliminary injunction was heard on the pleadings and on affidavits. The Vice Chancellor held that the notice were insufficient in law and the attempted re-zoning void. Reargument was granted to hear the parties on a contention that plaintiffs were guilty of laches. This additional defense was rejected and on May 24 a preliminary injunction was ordered. On the same day the Levy Court and the Zoning Commission were made parties to the suit.

All the defendants appeal.

The question of the sufficiency of the notices turns on the construction to be placed on the language of the applicable statutes.

9 Del.C. § 2611(b), relating to the hearing before the Zoning Commission, provides in part:

'With respect to any proposed changes, the Zoning Commission shall hold at least one public hearing, notice of which hearing shall be published at least seven days before the date of the hearing in a newspaper of general circulation in the county.'

9 Del.C. § 2611(c), relating to the Levy Court hearing provides in part:

'Before finally adopting any such changes, the Levy Court shall hold a public hearing thereon, at least 15 days' notice of the time and place of which shall be given by at least one publication in a newspaper of general circulation in the County'.

As above stated, the notice of the Zoning Commission hearing was published on April 18; the hearing was held April 25. The notice of the Levy Court hearing was published May 17; the hearing was held June 1.

The general rule for the computation of time under a statute, in the absence of anything showing a contrary intent, is that the first day should be excluded but the day on which the act is to be done should be included. Standard Scale & Supply Corp. v. Chappel, 16 Del.Ch. 331, 336, 141 A. 191; Simkin v. Cole, 32 Del. 271, 122 A. 191. This rule is so well settled that it is embodied in the rules of our trial courts. Court of Chancery Rule 6, Del.C.Ann.; Superior Court Rule 6 (Civil Rules); and Superior Court Rule 45 (Criminal Rules). If the general rule is applied, the notices were in time.

But there is a series of decisions of our Superior Court holding that if the statute fixing the time of notice uses the phrase 'at least' or 'not less than' in specifying the number of days required for notice of an act to be done, or for service of process, the days required must be 'clear days'. This is to say that 'at least seven days' notice' means notice must be given not later than the eighth day before the time of the act to be done. See the following cases approving this exception to the general rule:

Robinson v. Collins, 1 Har. 498 ('at least four days before the day appointed for appearance'); Warrington v. Tull, 5 Har. 107 ('not less than five days after the day of the date of the summons'); In re Public Roads, 5 Har. 174 ('at least ten days before the sitting of the court'); Chambers v. Jones, 1 Penn. 209, 39 A. 1098 ('such rule shall be served at least two days before the expiration thereof'); State ex rel. Content v. Bay State Gas Co., 4 Penn. 214, 221, 57 A. 291, 292 ('at least six days before the return of the process'); Jones v. Hinderer, 7 Boyce 516, 108 A. 737 ('at least four days before the day of appearance'). In MacCrone v. American Capital Corp., D.C., 51 F.Supp. 462, the federal district court followed the rule in a case involving a notice requirement of the General Corporation Law. (For convenience, we shall call these decisions 'the exception cases'.)

There is, however, one contrary holding. In Underwood v. Jeans, 4 Har. 201, the statute required notice of a sheriff's sale to be given 'at least ten days before sale'. Notice in one locality was posted on September 30 for a sale on October 10. It was held sufficient.

Counsel for the Levy Court suggests that the difference in wording of the statutes accounts for this decision. The language of the statutes in the exception cases is 'before the date' or 'before the day' appointed for the act to be done; whereas in the Jeans case the language of the statute was 'before sale'. And, indeed, in Simkin v. Cole, supra, Judge Harrington cited the Jeans case, which has never been expressly disapproved, as authority for the general rule, and cited the other cases as authorities for the exception.

Hence it is suggested that if the rule of the Jeans case be applied to the language of § 2611(c), relating to the Levy Court hearing, the notice was sufficient, because the language of that sub-section refers to '15 days' notice of the time and place' of the hearing, and does not say '15 days before the date of the hearing'.

We think that to apply different rules to the two sub-sections would be quite unreasonable. Moreover, the distinction is too tenuous to constitute a difference. Either the Jeans case is wrong, or the other cases are wrong.

The Vice Chancellor naturally and properly followed the exception cases. If they are to be disapproved, this Court should take the responsibility.

The list of exception cases appears impressive. But, as will be seen, there are very weighty objections to the soundness of these decisions. None of them contains any real discussion of the basis of the exception, nor any satisfactory reason why the addition of the phrase 'at least' is sufficient to indicate a legislative intent to depart from the general rule. Why should 'at least seven days' notice' mean, in common parlance, eight days' notice? Our exception cases derive from Robinson v. Collins, supra. The memorandum of the decision contains only the pronouncement that the service 'must be exclusive of both the day of the service and the day of return'.

No authority is cited, but it is permissible to surmise that it followed the English precedents. Our early opinions leaned heavily upon the English authorities. See, for example, the footnotes to Randel v. President, etc., Chesapeake & Delaware Canal Co., 1 Har. 151, 178-180.

Robinson v. Collins was decided in 1835. In 1821 the Court of King's Bench, in Zouch v. Empsey, 4 B. & Ald. 522, 106 Eng.Rep. 1028, had held that 'at least fourteen days' notice' meant fourteen clear days. There was no discussion of the point.

In 1838 the same Court had before it the same question, i. e., the construction of the phrase 'fourteen days at least'. The point was fully argued. The Court, with marked reluctance, adhered to the rule in Zouch v. Empsey, supra, though solely on the...

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