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Boozer v. Johnson

Court of Chancery of Delaware, New Castle County

June 17, 1953

BOOZER et al.
v.
JOHNSON et al.

Action by lessors and lessee of certain property against mayor, city council, board of adjustment and city clerk of the municipality for judgment declaring amendment to zoning ordinance of municipality illegal and void. The Court of Chancery, Bramhall, Vice Chancellor, held that under statute relating to passage, enforcement and changing of municipal zoning ordinances, provision which authorized creation of zoning commission to recommend boundaries of original districts and appropriate regulations and defined procedure of such commission but made no reference to amendment of zoning ordinances was applicable only to recommendation of boundaries of original districts and regulation with reference thereto and had no reference to amendment of existing zoning ordinances, and amendment to zoning ordinance was not invalid on ground that planning commission did not comply with statutory requirements respecting notice and hearings.

Order accordingly.

[33 Del.Ch. 555] Complaint by William C. Boozer, Evelyn Ruth Boozer, and A. Allen Hein against Wallace M. Johnson, as mayor of the City of Newark; Wallace M. Johnson, Carl Rankin, John R. Downes, William Coverdale, Donald Hill, Frank Durnall and Samuel

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Diehl, as members of the Council of the City of Newark; Wallace M. Johnson, Francis Neide, and John P. Sinclair, constituting the Board of Adjustment of the City of Newark; and Charles D. Long, as City Clerk of the City of Newark, for a declaratory judgment that an amendment to the zoning ordinance of the City of Newark be declared illegal and void.

Vincent A. Theisen and Aubrey B. Lank, Wilmington, for plaintiffs.

John P. Sinclair, of the firm of Berl, Potter & Anderson, of Wilmington, for defendants.

BRAMHALL, Vice Chancellor.

By virtue of an act of the General Assembly of the State of Delaware, 48 Delaware Laws, Chapter 152, after approval by the electors of the City of Newark and the electors of certain additional territory proposed to be annexed, the boundaries of the City of Newark were extended to include a large tract of land, the annexed land being several times the size of the original boundaries of the city. Prior to the annexation of this territory plaintiffs William C. Boozer and his wife, Evelyn Ruth Boozer, acquired certain pieces of real property on the public highway known as Capitol Trail in what was then White Clay Hundred, upon which they erected a building consisting of three stores and two apartments. Subsequent to the annexation of the [33 Del.Ch. 556] territory in question, the Boozers entered into a written lease with the plaintiff Hein for one of the stores located in said building, one of the provisions of the lease being that in order for the same to become effective Hein should be successful in an application which he was making with the Delaware Liquor Commission for a license for the sale of alcoholic liquor. Subsequent to the original application of Hein, the Council of the City of Newark, pursuant to section 29 of Chapter 152, Laws of Delaware, 1949, appointed six individuals as members of a Planning Commission for the city and a Planning Commission was set up by the council a few weeks later.

On November 15, 1951, the Planning Commission set up by the city took up for consideration the question of the zoning of the land annexed to the City of Newark under the provisions of its charter and made its recommendations to council that the whole of the territory be limited to residential purposes only. The council, after a public hearing, notice of which was published in the ‘ Newark Post’, a paper of general circulation of the City of Newark, for more than fifteen days, amended the zoning ordinance of the city in accordance with the recommendations of the Planning Commission. Although the zoning ordinance of the city specified that notice by registered mail should be given to the owners of property affected by any proposed amendment, no attempt was made to comply with this portion of the ordinance. Plaintiff William C. Boozer was present at the meeting and protested the action of the council.

Plaintiffs contend that the action of the council is null and void in that, say the plaintiffs, the requirements of Title 22, Delaware Code, 1953, were not complied with as to notice and hearings, and, further, in that notice by registered mail was not given as required by the zoning ordinance of the city.

Defendants say that the provisions relative to the Zoning Commission relate only to the creation of the original ordinance and not to any amendments thereto. They contend that amendments to the ordinance are regulated by section 305 of Title 22, and that the provisions of this section relative to amendments were fully complied with through the action of the Planning Commission [33 Del.Ch. 557] created by council under the authority of the city charter, which became effective subsequent to the passage of Title 22. Defendants further contend that the provision of the charter relative to registered mail, being an act of council, may be waived or ignored by any subsequent act of council disregarding this provision.

Municipalities have no inherent police power to zone property except as the legislature may delegate such power to it. Miller v. City of Memphis, 181 Tenn. 15, 178 S.W.2d 382, 151 A.L.R. 1172.In this state such power is given under Title 22, Delaware Code, 1953. In this act the legislature has set out the power of a municipality

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relative to the passage and enforcement of a zoning ordinance. It also provides for the amendment or repeal of such an ordinance. In passing an amendment to an existent zoning ordinance, the provisions of the act relative to amendment thereto must be complied with or the amendment will be null and void. Public hearing and notice thereof as provided by the act must be given. A notice of such a hearing not given in compliance with the act is void. National Transportation Company, Inc., v. Toquet,123 Conn. 468, 196 A. 344. Failure to provide for a public hearing, when such public hearing is required by statute, is equally fatal. Armourdale State Bank v. Kansas City,131 Kan. 419, 292 P. 745.A provision that the ...


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