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Marta v. Sullivan

Supreme Court of Delaware

November 22, 1968

Albert H. MARTA, Defendant Below, Appellant,
Francis M. SULLIVAN, Dorothy B. Sullivan, William J. Collins, Mary J. Collins, Theresa D. Messick, George E. Messick, Leo J. Cotnoir, Pauline L. Cotnoir and Church of the Nazarene, a corporation of the State of Delaware, Plaintiffs Below, and Board of Adjustment of the City of Newark, Defendant Below, Appellees.

William F. Lynch, II, of Morris, James, Hitchens & Williams, Wilmington, for defendant below, appellant.

Francis M. Sullivan and other appellees, per se.

Clyde M. England, Jr., of Killoran & Van Brunt, Wilmington, for the City of Newark.

Page 609

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

HERRMANN, Justice:

The determinative question in this zoning case is whether the controlling section of the Newark Zoning Ordinance (Section 501(d)) [1] contains sufficient standards and guidelines to constitute a lawful delegation of legislative power and to afford due process. We think not.


The appellant, Albert H. Marta, applied for a permit to construct garden-type apartment buildings in a Residential 'RD' District in the City of Newark. Under Section 501(d) of the Newark Zoning Ordinance, apartments are a permitted use in such District 'when authorized by the Board of Adjustment after public hearing.' At such hearing, the appellee Francis M. Sullivan, an adjoining property owner, and other neighbor-residents appellees herein, objected to the issuance of the permit upon the ground, Inter alia, that the application failed to comply with the so-called '50% Rule' of Section 501(d):

'When the immediate neighborhood is more than 50% Developed, approval of 75% Of the residents within a radius of one-eighth mile of the land in question must be secured.'

The Board of Adjustment granted permission to construct the apartments. Thereupon, by certiorari, the neighbors obtained review by the Superior Court. That Court reversed the Board and remanded with instructions to deny the permit, ruling that the '50% Rule' of Section 501(d) was constitutional and applicable; and that since Marta's petition did not have the approval of 75% Of the residents in the specified area, the Board lacked the power to grant the permit. Marta appeals.


A legislative body, such as the City Council of Newark, may not lawfully delegate its legislative powers to others. This non-delegation principle is especially compelling when a zoning ordinance is involved, because such legislation regulates the right to the enjoyment of private property. Compare State v. Durham, 6 Storey 170,191 A.2d 646 (1963).

The non-delegation rule does not require that all details of the administration of a law be spelled out. A legislative body may establish basic policy and vest in others the power to administer the declared legislative policy. But to avoid an unlawful delegation of legislative power, a statute must establish adequate standards and guidelines for the administration of the declared legislative policy and for the guidance and limitation of those in whom discretion has been vested; this to the end that there may be safeguards against arbitrary and capricious action, and to assure reasonable uniformity in the operation of the law. See e.g., Chartiers Valley Joint Schools v. County Board of School Directors, etc.,418 Pa. 520, 211 A.2d 487 (1965); Waterville Hotel Corp. v. Board of Zoning Appeals, Me.,241 A.2d 50 (1968); Keating v. Patterson et al.,132 Conn. 210, 43 A.2d 659 (1945).

The power to grant or deny an exception to a zoning ordinance is such legislative

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power as falls within the non-delegation rule. An ordinance vesting that power must contain administrative standards and guidelines sufficient to fulfill the above-mentioned criteria. Compare Norate Corp. v. Zoning Bd. of Adjustment, etc.,417 Pa. 397, 207 A.2d 890 (1965); Fernald v. Bassett,107 N.H. 282, 220 A.2d 739 (1966).

Does the '50% Rule' provision of Section 501(d) meet such tests? We think not.

We pass over the lack of standards and guidelines as to the undefined term 'immediate neighborhood' used in Section 501(d). In the instant case, the ambiguity of 'immediate neighborhood' gave rise to three different, but reasonable, interpretations of the term. [2] We pass over that defect in the Ordinance, in itself possibly a fatal delegation of legislative power, because there may be a reasonable difference of opinion on the subject. See State ex rel. Saveland Park Holding Corp. v. Wieland,269 Wis. 262, 69 N.W.2d 217 (1955).

It is beyond question, however, that the Ordinance purports to delegate to neighboring residents [3] an uncontrolled and undefined power to impose a zoning restriction and to limit the use of the property of another. The neighbors are not required to express an objection or furnish any reason for withholding assent; and the Board is without power to authorize a usage, otherwise permitted by the Ordinance, even when no reason for withholding assent is stated or when the objection as stated is unsupportable by good and valid reasons.

As we have seen, to be valid, a zoning ordinance must provide a sufficient standard of administration; its application may not be left to the arbitrary or capricious will of any person or group of persons. Under the non-delegation rule, the City Council could not vest in the Board of Adjustment or any other municipal authority an uncontrolled zoning discretion. It follows that the Council may not delegate to neighbors such unregulated power.

This subject matter was dealt with in Appeal of Lloyd, 9 W.W.Harr. 15, 196 A. 155 (1937). There under scrutiny was a Wilmington zoning ordinance providing that the City Board of Adjustment was authorized to permit the owner of a house to construct a porch thereon provided that the written assents of certain property owners in the neighborhood were secured. There, an eminent three-judge Superior Court held that the attempted delegation of power to neighboring property owners violated due process, stating:

'The ordinance as applied to the property of the petitioners, purports to vest the majority of lot owners on the same street and block, and the owners of lots immediately adjoining the property concerned, with an uncontrolled and undefined power to limit the use of property. They are not required even affirmatively to object to the proposed use; nor to give any reason for withholding assent; nor does the ordinance reserve to the Board of Adjustment the safeguarding power to permit the desired use if no reason is given for withholding assent, or if the reason given is trivial or unsubstantial. No rule, standard or guide is established. Inaction itself is

Page 611

sufficient to deny the proposed use. The result is that, in the City of Wilmington, the right of an owner of property to enclose his porch is absolutely dependent upon the humor, crotchet or caprice of his neighbor. His veto by mere inaction is absolute. His will is law. This is an intolerable situation in a free country.'

We approve the views thus expressed and deem them applicable to the '50% Rule' of Section 501(d).

Our attention has been drawn to Myers v. Fortunato,12 Del.Ch. 374, 110 A. 847 (1920) which dealt with a Wilmington zoning ordinance prohibiting the erection of public garages in residential portions of the city unless consented to by certain adjoining property owners. This Court there held that the law was valid, and not an unlawful delegation of legislative authority, because it was complete in itself and did not depend for its existence upon the act of the adjoining property owners. This Court thereby drew the well-recognized distinction between an ordinance permitting neighbors to Remove a use restriction and one permitting neighbors to Impose a use restriction. Compare Eubank v. City of Richmond,226 U.S. 137, 33 S.Ct. 76, 57 L.Ed. 156 (1912); Cusack Co. v. City of Chicago,242 U.S. 526, 527, 37 S.Ct. 190, 61 L.Ed. 472 (1916).

The instant case is distinguishable from Myers in that here the law is not 'complete in itself wholly independent of what any one may do or say.' Here, multiple dwellings are not prohibited; on the contrary, they are expressly permitted when authorized by the Board; but, regardless of its own favorable judgment in the matter (as in the situation before us), the Board may not give such authorization without the requisite approvals of the neighboring residents. Here, the neighbors are empowered to Impose a use restriction by mere failure to act: by withholding the approvals upon which the Board's power to authorize the use sought is made to rest. Unlike Myers, the power of the neighbors is not limited here to the Removal of a prohibited use.

Accordingly, we hold that the '50% Rule' of Section 501(d) is repugnant to due process Rule governs ...

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