John W. DUKES, Louise H. Dukes, Edna H. W. Dukes, Howard Charleston, Beulah Charleston, James L. Dickinson, Betty Dickinson, John H. McQuail, Helen McQuail and James A. Staats, Plaintiffs,
SHELL OIL COMPANY, a Delaware corporation, Joseph S. Dayton, Harry H. Lambert, and Harry B. Roberts, Jr., constituting the Levy Court of New Castle County; and Bayard A. Vandergrift, William R. Manning, John F. Porter, Charles C. Gammons, and Harvey G. Cole, constituting the New Castle County Zoning Commission and Grey M. Budd, Frances K. Budd, Edward R. Cordery, Lucy C. Cordery, Mary C. Derrickson, Lone Manor Farms, Inc., a Delaware corporation, Harry W. Lynch, Jr., Mary T. Lynch, Ruth F. Vogel, Susanna C. Wallace, Augustus E. Sheats, Elizabeth S. Sheats, Daniel C. Casapulla, Dorothy L. Casapulla, Nolan B. Williams, Meta Williams, Freeman Segars, Ruby B. Segars, Joseph A. Krejci, William H. Brady, Jr., Edith F. Brady, Michael Kitschik and Elena Kitschik, Defendants.
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[40 Del.Ch. 178] William Prickett, Jr., of Prickett, Prickett & Tybout, Wilmington, for plaintiffs.
Edmund N. Carpenter, II, and Richard J. Abrams, of Richards, Layton & Finger, Wilmington, for Shell Oil Co.
Clarence W. Taylor and Robert C. O'Hora, Wilmington, for Levy Court of New Castle County and New Castle County Zoning Commission.
William F. Lynch, II, of Morris, James, Hitchens & Williams, Wilmington, for certain individual defendants.
Clair J. Killoran, of Killoran & Van Brunt, Wilmington, for certain individual defendants.
David F. Anderson, of Berl, Potter & Anderson, Wilmington, for defendant Ruth F. Vogel.
Joseph Donald Craven, Wilmington, Delaware, for defendant Joseph A. Krejci.
SHORT, Vice Chancellor.
Plaintiffs seek a decree of this court avoiding the action of the New Castle County Zoning Commission and the Levy Court
of New Castle County in rezoning certain parcels of land in Blackbird Hundred, New Castle County, Delaware, from the R-2 (Agricultural and General Purposes) classification to the M-3 (Heavy Industry) classification, and an injunction restraining the defendants from using said parcels of land for any purpose in violation of the R-2 classification. Pursuant to an act of the Legislature, 48 Del.Laws, Ch. 321, now Ch. 26 of Title 9, Del.C., the Levy Court of New Castle County, in about the year 1954, adopted a zoning plan and regulations for those portions of the county lying outside of incorporated municipalities. With certain minor exceptions, not here important, the whole of Blackbird Hundred was zoned in the R-2 classification. The Zoning Code adopted by the Levy Court of New Castle County defined the R-2 classification as follows:
'While R-2 districts are designated as one of the R districts, they include large undeveloped areas for which the ultimate purpose cannot now be determined. It is expected that, as the [40 Del.Ch. 179] development of New Castle County takes place, portions of these R-2 districts will be required for other uses. Requests for rezoning such portions as residential, commercial, or industrial districts will be studied and acted upon on their own merits, following procedures outlines in Article XX of this Code.'
In the latter part of 1960 and early 1961, Shell Oil Company (hereinafter Shell) obtained options from the owners of fourteen parcels of land situate in the Deakyneville area of Blackbird Hundred to purchase such lands with a view to constructing and operating a petroleum refinery and for related petro-chemical uses. The options thus acquired covered lands totalling 3,345 acres, more or less. This acreage comprised two large non-contiguous, irregular shaped parcels. Plaintiffs, or one or more of them, own lands between the two parcels, or in the 'corridor', as plaintiffs describe the intervening lands.
On May 5, 1961 Shell and the owners filed a petition with the New Castle County Zoning Commission to rezone all of the optioned lands from the R-2 classification to the M-3 classification. On May 24, 1961 a hearing was held by the Zoning Commission pursuant to the statutory mandate. Following the hearing the commission reserved its decision for a period of thirty days in order to provide members of the public an opportunity to express their views. The majority of the members of the commission who participated in the hearing concluded that all of the lands mentioned in the petition should be rezoned as requested. The recommendations of the Zoning Commission were then delivered to the Levy Court of New Castle County which proceeded to a hearing on August 8, 1961 as required by law. On August 29, 1961 the Levy Court passed a resolution by a two to one vote rezoning 2,625 acres of the lands covered by the petition filed with the Zoning Commission from the R-2 classification to the M-3 classification. The present complaint was filed on September 11, 1961. By stipulation the case made out by Count One of the complaint has been submitted to the court on the record made before the Zoning Commission and the Levy Court of New Castle County, together with depositions and other documents agreed upon by the parties.
[40 Del.Ch. 180] Count Two of the complaint alleges causes of action anticipatory in nature. As to this count defendants have moved to dismiss for failure to state a claim upon which relief may be granted. The present opinion is not intended to dispose of such motion.
Paragraph 5 of the complaint sets forth the grounds upon which plaintiffs claim that the action of the Levy Court was invalid. This paragraph is as follows:
'5. The actions of the Levy Court and purported rezoning by the majority opinion and resolution were without authority in law or fact in that:
'(a) The proceedings of the majority of the Levy Court were arbitrary and capricious and in violation of 9 Del.C. 2603.
'(b) The purported rezoning of 2,625 acres in a checkerboard pattern was flagrant spot rezoning of a larger area than necessary for the needs of Shell and was for the benefit of Shell and the owners to the detriment of the plaintiffs and the other residents of the area, the county and the State.
'(c) The two members of the Levy Court who voted for the rezoning resolutions failed to consult, confer and advise with one another and with the member who voted against the resolutions.
'(d) The two members of the Levy Court who voted for the rezoning resolutions imposed on the opponents of the rezoning including the plaintiffs, the burden of proof.
'(e) Members of the Levy Court or their representatives consulted privately with representatives of Shell and the owners in violation of 9 Del.C. 2611 and deprived the opponents of the rezoning including the plaintiffs, of due process of law.
'(f) There is no evidence to support the purported rezoning of 2,625 acres in a checkerboard pattern ...