Willdel Realty, Inc. v. New Castle County

• Decision Date: 23 August 1971
• Parties: WILLDEL REALTY, INC., a corporation of the State of Delaware, et al., Plaintiffs Below, Appellants, v. NEW CASTLE COUNTY, Defendant Below, Appellee.
• Court: United States State Supreme Court of Delaware

Page 612

281 A.2d 612

WILLDEL REALTY, INC., a corporation of the State of

Delaware, et al., Plaintiffs Below, Appellants, v. NEW CASTLE COUNTY, Defendant Below, Appellee.

Supreme Court of Delaware.

Aug. 23, 1971.

Upon appeal from Chancery Court. Affirmed.

Gerald Z. Berkowitz of Knecht, Greenstein & Berkowitz, Wilmington, for plaintiffs below, appellants.

Robert E. Daley, Wilmington, for defendant below, appellee.

WOLCOTT, C.J., and CAREY and HERRMANN, JJ., sitting.

HERRMANN, Justice:

This appeal involves the validity of ordinances, enacted by the New Castle County Council, rezoning a certain parcel of land on Kirkwood Highway. The appeal arises from the denial by the Court of Chancery of the property owners' petition that the County Council be enjoined from changing the zoning classification. Opinion below at 270 A.2d 174.

I.

The land involved, consisting of approximately 27 acres, was purchased in 1965 at which time it was designated R--2 (a general 'holding' classification for an undeveloped area) under the New Castle County Zoning Code. On December 30, 1966, the Levy Court of New Castle County granted the owners' application for rezoning to C--2, a commercial roadside classification. On January 3, 1967, the Levy Court was dissolved and the government of New Castle County was reorganized under a County Council and County Executive. 9 Del.C. Ch. 11. The first ordinance introduced in the new County Council on January 9, 1967 proposed a rezoning of the 27 acres from C--2 to R--4, a multi-family residential classification. A companion 'emergency' ordinance was introduced simultaneously, prohibiting the issuance of building permits for land subject to a proposed zoning change. On June 20, 1967, the County Department of Plaintiff recommended rezoning to R--4. An application for a building permit under the C--2 zoning was filed by the owners on August 11, 1967. Three days later, the property was rezoned by ordinance of the Council from C--2 to R--4. In none of the proceedings, including the proceedings before the Chancery Court, was there any showing of mistake in the C--2 classification granted by the Levy Court or of change of conditions thereafter.

II.

The basic question presented on this appeal is whether evidence of a change of conditions or of mistake in existing zoning is essential to the validity of a rezoning. This 'change-or-mistake' rule is sometimes referred to as the Maryland rule. E.g., Wakefield v. Kraft, 202 Md. 136, 96 A.2d 27 (1953); MacDonald v. Board of County Commissioners, etc., 238 Md. 549, 210 A.2d 325 (1965); 1 Rathkopf, The Law Of Zoning and Planning, 21--36, et seq., 27--15, et seq. ¹

The acceptability of the Maryland rule must be considered in the light of rules and concepts now established in this jurisdiction:

Zoning is a legislative action presumed to be valid unless clearly shown to be arbitrary and capricious because not reasonably related to the public health, safety, or welfare. The burden of rebutting such presumption, and of showing that a rezoning is thus arbitrary and capricious, is imposed upon the opponent of the rezoning. If the reasonableness of the zoning change (i.e., the reasonableness of its relationship to the public health, safety, or welfare) is 'fairly debatable', ² the judgment of the legislative body must prevail; and it thereupon becomes the duty of the courts to affirm even though there may be disagreement as to the wisdom of the change. In such situation that court will not substitute its judgment for that of the legislative body charged with the primary duty and responsibility of determining the question. MeQuail v. Shell Oil Company, 40 Del.Ch. 396, 183 A.2d 572, 578--579 (1962); Shellburne, Inc. v. Buck, Del.Supr., 240 A.2d 757 (1968). Moreover, zoning regulations should be 'progressive, not static'; they should be 'sufficiently flexible to adjust to changed conditions in the interest of the public welfare.' Furthermore, the standards for due process and the general protection of property owners, applicable to rezoning upon the petition of a property owner, are equally applicable to a rezoning initiated by the legislative body: judicial review is available to rectify any zoning action shown to be arbitrary and capricious because violative of the requirement of reasonable relationship to the public health, safety, or welfare. Shellburne, Inc. v. Roberts, Del.Supr., 224 A.2d 250, 253 (1966).

These established concepts foreclose application of the Maryland rule. It follows therefrom that the judicial test in this jurisdiction is whether the rezoning ordinance is arbitrary and capricious because not reasonably related to the public health, safety, or welfare. Neither change of condition nor mistake is the exclusive test of such validity; while either factor may be relevant, neither is controlling. The County Council has been vested with broad power to make zoning changes 'from time to time' (9 Del.C. §§ 2611 and 1101); and there is no statutory requirement that proof of mistake or change of condition is prerequisite to the exercise of that power. The legislative power thus delegated to the County Council may not be exercised by the judiciary, directly or indirectly, by the creation of such prerequisite. ³

We hold, therefore, that it is unnecessary, in order to uphold a rezoning ordinance, that there be a showing of change of condition or mistake; it is sufficient that the ordinance shall not be arbitrary and capricious in that it is reasonably related to the public health, safety, or welfare.

The result we reach here appears to be the majority rule. E.g., Fanale v. Borough of Hasbrouck Heights, 26 N.J. 320, 139 A.2d 749, 753 (1958); Furniss v. Township of Lower Merion, 412 Pa. 404, 194 A.2d 926 (1963); Oka v. Cole, Fla., 145 So.2d 233 (1962); Corsino v. Grover, 148 Conn. 299, 170 A.2d 267 (1961); Cianciarulo v. Tarro, 92 R.I. 352, 168 A.2d 719 (1961); Leutenmayer v. Mathis, Ky., 333 S.W.2d 774 (1959); McCabe v. Town of Oyster Bay, 13 A.D.2d 979, 217 N.Y.S.2d 163, app. dism. 10 N.Y.2d 1011; Miller v. Kansas City, Mo.App., 358 S.W.2d 100 (1962). Contra: Page v. City of Portland, 178 Or. 632, 165 P.2d 280 (1946); Wesemann v. Village of LaGrange Park, 407 Ill. 81, 94 N.E.2d 904 (1950); Lewis v. City of Jackson, Miss., 184 So.2d 384 (1966).

Applying to the facts of the instant case the rule we thus find controlling, we agree with the conclusion reached by the Chancellor: in the light of the unplanned, chaotic, commercial development and the generally hazardous traffic conditions prevailing along Kirkwood Highway, amply demonstrated by the record in this case, it cannot be said that the rezoning of the parcel of land here involved from C--2 commercial to R--4 residential classification is arbitrary and capricious. The property owners have failed to carry their burden of showing clearly that the rezoning is not reasonably related to the public health, safety,...