Submitted: August 2, 2013.
Upon Defendant DelDot's Motion for Summary Judgment, GRANTED.
John and Melissa McCafferty, pro se, 109 Hilldale Court, Claymont, DE 19703.
Stacey Cohee, Deputy Attorney General, Delaware Department of Justice, Attorney for Defendants.
OPINION AND ORDER
M. Jane Brady, Superior Court Judge.
This case concerns a basketball pole, located in front of John and Melissa McCafferty's ("Plaintiffs") home, in a cul-de-sac of a development in Claymont, Delaware, that was removed by employees of the Delaware Department of Transportation ("DelDOT" or "Defendants") on March 25, 2011. The basketball pole was removed because DelDOT determined it to be in violation of 17 Del. C. § 525, Delaware's "Clear Zone" statute. Section 525 grants authority to DelDOT "to remove artificial obstructions . . . including . . . poles" placed within "seven feet perpendicular to the pavement edge."
Plaintiffs purchased the property located at 109 Hilldale Court, Claymont, DE 19703, in September 2005. Hilldale Court is a dead end culdesac road in Radnor Green, a suburban development. The neighborhood was built in the 1950s. In front of the Plaintiffs' home was a basketball hoop that had been there for some time prior to their purchase of the property.
In August 2010, DelDOT received an anonymous complaint regarding basketball poles in Radnor Green. On September 7, 2010, Anthony Marcozzi of DelDOT's Roadside Enforcement sent a letter to Plaintiffs and 7 other residents, informing them that their basketball poles were in violation of 17 Del. C. § 525 and instructing them to remove the poles within fourteen days or DelDOT would be forced to remove them. Plaintiffs advised DelDOT that its basketball "pole was permanent and had been in the same place for decades."
State Representative Bryon H. Short wrote a letter to Secretary Carolann Wicks of DelDOT expressing his position that the basketball poles should be allowed to remain in Radnor Green. Rep. Short also expressed the opinion that the basketball poles should be "grandfathered in" under Section 525 because they were in place before the statute was enacted. Secretary Wicks responded via letter on November 24, 2010, thanking Rep. Short for his letter, but advising him that DelDOT believed its interpretation of 17 Del. C. § 525 was correct, the basketball pole was in violation of the statute, and DelDOT had the authority to remove the pole if the property owners failed to do so within the instructed time period.
On December 15, 2010, Anthony Marcozzi sent another letter to Plaintiffs, referring to the September 7, 2010 letter, advising them that their basketball pole was still in the clear zone and that it must be removed within fourteen days or DelDOT would remove it.
On March 25, 2011, DelDOT employees arrived at the McCafferty's residence and removed the basketball pole.
B. Procedural History
Plaintiffs commenced this action on July 9, 2012, against DelDOT and unidentified employees of DelDOT alleging that DelDOT wrongfully removed their basketball pole. Plaintiffs' complaint originally included a total of 68 counts, including violations of their 1st, 4th, 5th, and 7th Amendments, as well as claims for damages to their property.
At a hearing on November 29, 2012, the Court dismissed most counts in the Complaint and asked for supplemental briefing on the following remaining claims and issues: Retroactive Enforcement and Constitutionality of 17 Del. C. § 525; Selective Enforcement of 17 Del. C. § 525; and sovereign immunity of DelDOT and its employees.
On June 25, 2013, the Court wrote to the parties informing them that it was converting DelDOT's Motion to Dismiss into one for Summary Judgment pursuant to Superior Court Rule 12(b),  in order to consider matters outside the pleadings. The Court allowed the parties to submit any additional material relevant to the issues under consideration. The Court received a supplemental pleading from Plaintiffs on July 17, 2013, a letter from DelDOT with an affidavit of Debra Lawhead attached on July 23, 2013, and a response to DelDOT's letter from Plaintiffs on August 2, 2013.
C. Parties' Contentions