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Town of Cheswold v. Central Delaware Business Park

Superior Court of Delaware, Kent

June 6, 2017

TOWN OF CHESWOLD, Petitioner
v.
CENTRAL DELAWARE BUSINESS PARK, a Delaware general partnership, Respondent. Consolidated Court of Chancery C.A. No. 1574-JJC

          Submitted: March 10, 2017

          Max B. Walton, Esquire, CONNOLLY GALLAGHER, LLP, Newark, Delaware, Attorney for the Petitioner.

          Mark F. Dunkle, Esquire, PARKOWSKI, GUERKE & SWAYZE, P.A., Dover, Delaware, Attorney for Defendant.

          OPINION

          Clark, J.[1]

         I. Introduction

         These cross motions for summary judgment are before the Court because the Town of Cheswold (hereinafter "Town") seeks clarification of, or in the alternative relief from, prior identical Stipulated Orders (hereinafter "Stipulated Orders") of the Superior Court and the Court of Chancery. In 2005, the Town and Central Delaware Business Park (hereinafter "CDBP") entered into a settlement agreement approved by both the Superior Court and the Court of Chancery in Stipulated Orders to resolve litigation over the Town's Comprehensive Land Use Ordinance (hereinafter "2005 Ordinance"). Pursuant to these stipulations, CDBP agreed to drop its claims against the Town, and in exchange, the Town published certain amendments to the 2005 Ordinance that preserved the M-1 zoning designation for certain parcels of property located in the Central Delaware Business Park (hereinafter "Business Park"). Furthermore, the Town agreed to process five pending site plans and building permit applications and to approve four of those five. The Town now seeks clarification regarding whether it is entitled, under these Stipulated Orders, to change its zoning ordinance with regard to the Business Park. In the alternative, it seeks relief from the Stipulated Orders to permit it to make such amendments.

         This matter involved two parallel suits in 2005, resolved by two parallel orders. Accordingly, when the instant dispute arose, two parallel actions were again filed in the Court of Chancery and Superior Court. The Court of Chancery matter was consolidated into the Superior Court action after the presiding judicial officer was designated by the Chief Justice pursuant to Delaware Constitution Article IV, section 13(2) to serve as both Judge and as Vice Chancellor to resolve the matter. For the reasons set forth herein, the Court finds that pursuant to the Stipulated Orders of both courts, the claim recognizing CDBP's vested rights in the Business Park was finally resolved in 2005. Accordingly, the doctrine of res judicata controls, and absent relief from those judgments, the Town is now barred from relitigating the claim. Furthermore, the Town, on the present record, has not met its burden to justify relief. As a consequence, CDBP's rights vested in 2005 and remain so to present.

         II. Background and Arguments of the Parties

         In 1977, the Town adopted a zoning ordinance (hereinafter "1977 Ordinance") establishing zoning districts within the Town including the M-1 Industrial District. The 1977 Ordinance set forth a rudimentary enumeration of zoning districts with permitted and proscribed uses. Under this ordinance, the Business Park was zoned as part of the M-1 Industrial District.

         This ordinance governed land use in the Town until the Town adopted the 2005 Ordinance in an effort to modernize its zoning provisions. The 2005 Ordinance set forth a comprehensive framework for land use in the Town including changes to zoning classifications as well as the permitted and proscribed uses within the new zoning districts. Pursuant to the 2005 Ordinance, the previously designated M-1 Industrial District was broken into two new zoning districts designated as the I-1 Light Industrial and the I-2 Heavy Industrial zones.

         Prior to the enactment of the 2005 Ordinance, the Town held a public hearing. During that hearing, CDBP objected to the changes affecting the M-1 Industrial District, since it would affect its Business Park. CDBP proposed an amendment, Article 5A, under which the Business Park would: (1) retain the M-1 zoning classification, and (2) continue to be governed by the 1977 Ordinance. At the conclusion of the hearing, the Town Council allegedly adopted Article 5A, meaning that the Business Park would remain zoned as M-1 Industrial. At that point, CDBP understood that Article 5A would be incorporated into the 2005 Ordinance.

         However, after the public hearing, the Town published the 2005 Ordinance without the Article 5A amendment. Following the publication of the 2005 Ordinance without this provision, a dispute arose between the Town and CDBP leading to CDBP filing a Superior Court action in 2005 seeking a writ of mandamus. CDBP asked the court to compel the Town to publish and apply Article 5A, as adopted. CDBP also simultaneously filed a parallel action in the Court of Chancery seeking, inter alia, a declaration that CDBP's rights in the Business Park were vested prior to the adoption of the revised zoning ordinances.

         Before either court rendered a decision, the parties submitted the Stipulated Orders in an effort to resolve both actions. Pursuant to the settlement agreement incorporated into these orders, the Town acknowledged that it had in fact unanimously passed Article 5A on April 4, 2005. The Town confirmed that the "entire [Business Park] property shall continue with M-1 Zoning and site plan/building permit procedures under the 1977 Zoning Code."[2] Furthermore, the Town agreed to amend and republish the 2005 Ordinance reflecting the Business Park's designation as M-1 and subject to the plan and building permit procedures under the 1977 Ordinance.[3] The Town also agreed to process all of the pending site plans and building permits under the 1977 Ordinance and issue approvals of four of those five within 10 days of execution of the stipulations.[4]

         In compliance with the Stipulated Orders, the Town codified Article 5A in the current Town Code. The net effect of the Stipulated Orders was the recognition of CDBP's vested rights in the Business Park. In exchange for the Town recognizing CDBP's vested rights and adopting Article 5A, CDBP dismissed all claims against the Town.

         The amendment the Town adopted pursuant to the consent decrees, which is the focus of the instant dispute, is found in Article 5A of its current zoning ordinances. It provides that

[i]t is necessary and desirable; as a matter of public policy, to recognize vested property development rights in order to ensure reasonable certainty, stability, and fairness in the land use planning process and in order to stimulate economic growth . . . . The following development plans satisfy the provisions of this Article 5A as vested development plans: Record Plan of Central Delaware Business Park . . . . A vested property right shall be deemed established with respect to any lots, parcels or tract of land [subject to this zoning ordinance]. A vested property development right, once established as provided in this Article 5A, precludes any zoning or land use action by the Town of Cheswold which would alter, impair, prevent, diminish, impose a moratorium on development, or otherwise delay the development or use of the property subject to this Article 5A, except with the written consent of the owner of such land.[5]

         There is no question that this ordinance and its recognition of the "vested property right" applied solely to CDBP.

         However, in 2013, the Town began considering enacting a new zoning ordinance that would affect CDBP's rights under the Stipulated Orders. Namely, the Town began considering downzoning the vacant, unsold lots within the Business Park. Accordingly, it seeks clarification as to what the Stipulated Orders require regarding legislative changes for land use and building construction matters in the M-1 district. After the Town filed its action, both parties agreed to simultaneously brief the issues and requested that the Court decide the matter pursuant to cross-motions for summary judgment.

         During the course of the briefing, the Town argued that the Stipulated Orders did not preclude future Town councils from enacting zoning ordinance which would affect the Business Park. Instead, the Town argued that the purpose of the Stipulated Orders was to codify the changes to the 2005 Ordinance that the Town Council adopted but never published. Further, the Town maintains that the intent of the Stipulated Orders was to: (1) require the Town to publish Article 5A which CDBP lobbied for and the Town Council passed; (2) make clear that pending applications would be processed under the procedures applicable to the 1977 Ordinance; and (3) dismiss the pending actions in the Superior Court and in the Court of Chancery. Therefore, the Town argues that CDBP had not acquired perpetual vested rights in the 1977 Ordinance. The Town further argues that the Town Council was not able to legally enter into a contract regarding its zoning powers. The Town contends that an interpretation of the Stipulated Orders which would prohibit future Town councils from enacting zoning legislation would amount to illegal contract zoning and would impermissibly bind future councils.

         The Town seeks a declaratory judgment stating that the 2005 Stipulated Orders do not preclude it from considering and enacting legislative changes for land use and building construction matters in the Business Park. In the alternative, the Town seeks relief from the Stipulated Orders pursuant to Superior Court Civil Rule 60 and the parallel Court of Chancery Rule 60 (hereinafter collectively "Rule 60").

         In contrast, CDBP views the Stipulated Orders and the enactment of Article 5A as recognizing CDBP's vested rights. It argues that if the Town were to enact new zoning legislation that interfered with CDBP's ability to continue developing the Business Park under the 1977 Ordinance, the Town would impair these vested rights. It also opposes the Town's contention that the 2005 agreement constituted contract zoning and argues that the Town is not entitled to equitable relief.

         The Court held oral argument on November 18, 2016 to consider these issues. After oral argument, the Court identified an area of law that required additional briefing. Namely, the Court requested supplemental briefing regarding the potential applicability of res judicata and collateral estoppel since the resolution in 2005 included stipulated parallel orders in the Court of Chancery and the Superior Court.[6] In CDBP's supplemental brief, it raised two additional issues, the doctrines of Repose and Laches. Thereafter, the Court permitted the Town to respond to those two additional arguments. The following sets forth this Court's opinion regarding the parties' rights and obligations under the 2005 Stipulated Orders.

         III. Legal Standards

         Before the Court are cross-motions for summary judgment. In reviewing a motion for summary judgment, "viewing the facts in the light most favorable to the nonmoving party, " the moving party must demonstrate "that there are no material issues of fact still in dispute and that the moving party is entitled to judgment as a matter of law."[7] The mere fact that both parties filed motions for summary judgment "does not act per se as a concession that there is an absence of factual issues."[8] However, "where the parties have not presented argument to the court that there is an issue of material fact, the court shall deem the motion to be the equivalent of a stipulation for decision on the merits based on the record submitted with the motion."[9]

         The Town seeks a declaratory judgment in this matter declaring its rights in light of the Stipulated Orders. Both courts have the jurisdiction to "declare rights, status, and other legal relations whether or not further relief is or could be claimed."[10] However, to entertain a declaratory judgment suit, there must be an actual controversy.[11] Therefore, this legislation enables courts to hear "declaratory judgment actions where the alleged facts are such that a true dispute exists and eventual litigation appears to be unavoidable."[12] Here, neither party disputes that an actual controversy exists.

         In the alternative to seeking a declaratory judgment that Article 5A is unenforceable or that the Stipulated Orders do not prohibit amending the zoning requirements applicable to the Business Park, the Town seeks relief from the two Stipulated Orders pursuant to Rule 60(b). The language found in Rule 60(b) is identical in both the Court of Chancery and the Superior Court Civil Rules and allow relief for

(1) [m]istake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence; (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation or other misconduct of an adverse party; (4) the judgment is void; (5) it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment.[13]

         IV. Discussion

         For the following reasons, the Court finds that CDBP acquired vested rights pursuant to the settlement agreement entered as stipulated judgments in 2005. Therefore, the doctrine of res judicata governs this decision. Since CDBP was the beneficiary of court orders in 2005 finding that its rights were vested, under the vested rights doctrine, the Town cannot enact new legislation that will interfere with CDBP's vested rights in the Business Park.[14] Despite the 2005 judgments, the Town raised several arguments regarding why either the 2005 Ordinance was ultra vires or in the alternative why it should not be applied prospectively. The Court finds that these arguments are both (1) dispensed with by res judicata and (2) independently are without merit. Therefore, the Stipulated Orders, as final judgments, only permit the Town to validly request relief pursuant to Rule 60(b). Based on the record before the Court, the Town is not entitled to such relief.

         A. The Stipulated Orders recognized that CDBP acquired vested rights and the doctrine of res judicata provides final resolution of that matter.

         CDBP argues that it has perpetual vested rights in the Business Park, and therefore, any changes in the Town's zoning provision cannot affect its rights. It maintains that the two parties entered the settlement agreement acknowledging CDBP's vested rights, and in return, it agreed to dismiss its suits against the Town. CDBP argues that the settlement agreement's primary purpose was to recognize its vested rights.

         In response, the Town argues that the 2005 Ordinance and the Stipulated Orders did not create perpetual vested rights. Instead, according to the Town, the plain language of the Stipulated Orders merely states that the 1977 Ordinance will continue to apply to the Business Park. Additionally, the Town maintains that the intent of the parties was not to create vested rights. Instead, the Town argues that the intent of the parties was to require the Town to publish Article 5A, to process pending site applications, and to dismiss the pending litigation. Therefore, the Town argues that if the parties had intended these orders to create perpetual vested rights, either or both orders would have expressly included such language. The Town argues that the parties' failure to include such language precludes this Court from now finding perpetual vested rights. Moreover, the Town believes that it is impossible to acquire perpetual vested rights pursuant to a zoning ordinance.

         The Court recognizes the tension between the doctrine of vested rights and a municipality's need to enact zoning ordinances to benefit the public welfare. While the Town asks this Court to find that CDBP does not have vested rights, the Court declines to do so because the parties settled the vested rights issue in 2005. In 2005, the parties decided to forego litigation and instead entered into a settlement agreement. Both courts then approved the settlement in the form of consent orders. Despite the Town's argument to the contrary, these consent orders acknowledged that CDBP acquired vested rights. Accordingly, the claim regarding CDBP's vested rights was determined in 2005.

         Since the courts decided this issue in 2005, the Court must determine whether either the doctrine of res judicata or collateral estoppel require this Court to acknowledge CDBP's vested rights. At the outset, the Court notes that the doctrine of collateral estoppel is not applicable in the case at hand. It independently does not bar the Town from rearguing the issue of vested rights.[15]The United States Supreme Court, however, has recognized the distinction between applying res judicata and collateral estoppel to consent agreements.[16]Based on the separate focus of these two doctrines, the Court noted that "consent agreements ordinarily are intended to preclude any further litigation on the claim presented but are not intended to preclude further litigation on any of the issues presented."[17] This is because one of the elements of collateral estoppel requires a court to first reach the merits regarding an issue to be actually decided and essential to the decision.[18] In other words, the doctrine of collateral estoppel does not apply to consent agreements because a consent judgment does not reach the merits of factual sub-issues, and therefore, sub-issues are not actually litigated and essential to the determination.[19]

         The elements of res judicata, however, do not require the court to reach the merits of a case.[20] Therefore, res judicata may separately bar the Town's argument if its elements are satisfied.[21] Here, CDBP's original claims sought two principal remedies involving two claims. In the Court of Chancery, it sought a declaration that its rights in the Business Park were vested. In the Superior Court, it sought a writ of mandamus requiring the Town to publish and apply an ordinance that it had enacted.

         The purpose of the res judicata doctrine is to "provide a definite end to litigation, prevent vexatious litigation, and promote judicial economy."[22] In order to accomplish this purpose, Delaware has adopted a five part test to determine whether res judicata will bar a subsequent claim.[23] Res judicata will bar a claim where:

(1) the original court had jurisdiction over the subject matter and the parties; (2) the parties to the original action were the same as those parties, or in privity, in the case at bar; (3) the original cause of action or the issues decided was the same as the case at bar; (4) the issues in the prior action must have been decided adversely to the appellants in the case at bar; and (5) the decree in the prior action was a final decree.[24]

         Here, the Town does not question whether the Superior Court and the Court of Chancery in 2005 had jurisdiction to enter these Stipulated Orders. Additionally, it is uncontested that the parties are the same in the present litigation as they were in 2005. The Town and CDBP were the only two parties involved in the 2005 litigation and are the only parties involved in this dispute.

         However, the parties disagree on whether the remaining elements of res judicata are met. The Town argues that the courts in 2005 never decided that CDBP obtained a vested property right and that the courts merely declared that development of the Business Park would continue under the 1977 Ordinance. In this regard, the Town argues that the courts did not consider the issue of vested rights in 2005.

         While the Stipulated Orders, themselves, do not specifically state that CDBP acquired vested rights, they require the Town to "amend and republish the New Zoning Code to include Article 5A as unanimously passed on April 4, 2005."[25]Accordingly, both the Superior Court and Court of Chancery orders incorporated by reference the provisions in Article 5A recognizing vested rights.[26] The

         Stipulated Orders clearly identify by reference Article 5A, [27] and it is clear that the parties intended this provision to be incorporated by reference.[28] Therefore, Article 5A is treated as if it were contained within the four-corners of the Stipulated Orders.[29]

         Furthermore, when interpreting consent orders, rules of contract interpretation apply.[30] Accordingly, in terms of stipulated judgments and consent orders, courts look to extrinsic evidence for interpretation only when ambiguity exists.[31] However, "frequently the circumstances surrounding [the consent decree's] formation will be relevant to its meaning."[32] Here, the circumstances surrounding the formation of the consent decrees confirms that the parties, and thereby the courts, intended to resolve the claims by recognizing CDBP's vested rights in the Business Park.

         The ordinance adopted by the Town that authorized the settlement is a compelling piece of evidence relevant to the intent of the parties. Namely, it provided that the "Town's position is basically in agreement with vested rights" and then continues by exempting only issues that are not relevant to the case at hand.[33] Although this Court finds that Article 5A was incorporated into the Stipulated Orders, if it was not incorporated, the Court would look to it as evidence of the circumstances surrounding the formation of the consent decrees. It expressly provided that "[a] vested property right shall be deemed established with respect to any lot, parcel or tract of land [of the Business Park]."[34] Article 5A also included language that specifically acknowledges vested rights for "parcels or tracts of land created by development plans previously approved by the Town . . . under the Zoning Ordinance in effect prior to the adoption of this Ordinance and where such development plans were recorded in the land records of Kent County prior to the adoption of this Ordinance."[35] Article 5A also specifically acknowledges that CDBP satisfies this provision and recognizes CDBP's vested rights.[36] Finally, in reviewing the circumstances surrounding the consent decrees, the settlement related correspondence between the two parties' attorneys leaves no other reasonable conclusion than that the agreement intended to recognize CDBP's vested rights.[37]

         Since both the Superior Court and the Court of Chancery issued Stipulated Orders acknowledging CDBP's vested rights, it follows that the courts decided the issue of vested rights adversely to the Town. Additionally, the original courts had jurisdiction over the matter, the parties are the same, and the original cause of action is the same. The final element of res judicata requires a final court order, which is present here in the form of the Stipulated Orders. The Stipulated Orders, even though entered as consent decrees, are entitled to res judicata and accordingly bar subsequent suits based upon the same claim.[38]

         The Town seeks to avoid application of res judicata by arguing that these are not the same claims because the relief sought in 2005 involved a declaratory judgment claim and a writ of mandamus action that directly addressed the nature of CDBP's rights. The Town argues that those suits are different from the current dispute because the Town currently seeks clarification of the orders or alternatively relief from judgment. The Town, however, brought this suit seeking to avoid continued recognition of CDBP's vested rights. CDBP, in the Court of Chancery suit in 2005, sought and obtained a stipulated order declaring that CDBP did in fact have such rights. The type of relief sought in 2005 by CDBP and the type of relief sought now by the Town seeking a declaration that the prior orders are illegal or unenforceable does not represent a change in the underlying claim.

         In another attempt to avoid the doctrine of res judicata, the Town argues that the Stipulated Orders were not a final resolution of the case because those orders did not state that the suits were dismissed with prejudice. Since the courts did not specify that the suits were dismissed with prejudice, under parallel Court Rules 41, [39] the Town argues that the Stipulated Orders were not final decrees thus making res judicata inapplicable. However, it is well recognized that when the parties to a suit consent to dismissal and the court approves that dismissal, the resulting consent decree constitutes a final judgment by the court.[40] Therefore, the fact that the Stipulated Orders did not state that the courts were dismissing the referenced litigation with prejudice does not change the fact that these were final decrees entitled to res judicata.

         Finally, the Town seeks to avoid the effects of res judicata by arguing that a court cannot enforce an illegality, and Article 5A amounts to an illegality. The Town argues (1) that the courts, it, and CDBP illegally settled the 2005 claims because the Stipulated Orders bound future councils, and (2) that the agreement separately amounted to illegal contract zoning. These means to avoid the continued application of the Stipulated Orders are also precluded by the doctrine of res judicata.

         First, there is certainly a presumption that the courts in 2005 would not have entered into the Stipulated Orders incorporating the settlement agreement between the two parties had such an agreement been illegal. Namely, a finding of the legal ability of the Town to enter into such an agreement was a prerequisite to each court entering its Stipulated Order. Delaware courts have determined that an issue that is not expressly decided by a court in the course of issuing a judgment or decree is still entitled to the effect of res judicata if that issue was "necessarily determined thereby because [it was] essential to the validity of the judgment or decree entered."[41] As the ability of the Town to enter into this agreement was essential to the validity of the judgment, the Town's arguments that this agreement amounted to binding future legislatures and illegal contract zoning are precluded by the doctrine of res judicata.[42]

         Second, the Town would not be entitled to challenge its ability to enter into such an agreement to avoid the doctrine of res judicata. The Delaware Supreme Court has held that the doctrine of res judicata bars a later challenge even to the original court's jurisdiction.[43] While arguing that a settlement agreement amounted to an illegality is in a somewhat different context than a challenge to a court's subject matter jurisdiction, it is indicative of the weight a court should give a final judgment. As challenging the illegality of a contract and challenging subject matter jurisdiction are typically arguments a party can raise at any time, absent Rule 60 relief, the Town cannot avoid the effect of the 2005 judgments based on a claim that this agreement amounted to an illegality.

         The Town previously had the ability to fully litigate this issue had it so chosen. Despite that ability, with the assistance of counsel, the Town recognized the benefits of entering into a settlement agreement after evaluating its chances of success. Both parties entered into this agreement after considering the repercussions of such an agreement. In this regard, application of this doctrine benefitted all involved to some degree. Namely, in 2005, both parties were postured to fully litigate the issue of whether CDBP had vested rights.[44] There is no question that the Court of Chancery could have issued a final binding decision, after trial on the merits, finding that CDBP's rights were vested. Instead however, the Town was able to conserve its resources by entering into the settlement agreement in 2005, which resolved all litigation in this matter. To allow this issue to be revisited would cause the perverse result of forcing parties to always litigate actions such as this to a final trial on the merits. Such an approach would be inconsistent with both judicial economy and respecting the resources of the litigants.

         Accordingly, the Court must respect the finality that the settlement agreement and the 2005 Stipulated Orders provided.[45] It is clear that the parties extensively thought through these issues and agreed upon this specific mechanism to resolve the dispute.[46] Additionally, two Delaware courts, acknowledging the ability of the Town to enter this agreement, approved the settlement agreement. These two courts are presumed to have evaluated the legality of this agreement and concluded that it was a valid manner in which to dispose of the suit. Therefore, as all the elements of res judicata are met in this case, the Town cannot now argue that the Stipulated Orders did not recognize CDBP's vested rights.

         Furthermore, not only does the doctrine of res judicata bar the Town from challenging CDBP's vested rights, but the similar law of the case doctrine also precludes the Town from doing so. The law of the case doctrine "prohibits courts from revisiting issues previously decided, with the intent to promote 'efficiency, finality, stability and respect for the judicial system.'"[47] Under this doctrine, "[t]he law of the case is established when a specific legal principle is applied to an issue presented by facts which remain constant throughout the subsequent course of the same litigation."[48] The law of the case is established when a trial court enters a final decision regarding the issues decided.[49]

         Directly related to the case at hand, the law of the case doctrine can also apply when a trial court's final decision is in the form of a consent judgment.[50]However, in order for this doctrine to apply in this context, the court must actually decide an issue.[51] This typically requires the parties to fully brief the issue and for the court to squarely decide it.[52] However, the "actually decided" element is also met when a court decides an issue "implicitly or by necessary inference from the disposition."[53] Importantly, a court will not apply this doctrine if there is a change in circumstances, the prior decision is clearly wrong, or the prior decision produces an injustice.[54]

         Here, the Court of Chancery and the Superior Court decided the issue of vested rights in 2005 when they entered their judgments. The fact that it was in the form of a consent judgment does not alter this fact.[55] Therefore, the courts' decisions in 2005 that CDBP obtained vested rights are the law of the case unless one of the exceptions to this doctrine applies. Here, there is no indication that the courts' decisions in 2005 were clearly wrong. With the consent of the parties, the courts' Stipulated Orders made an unambiguous factual finding that CDBP had acquired vested rights. Furthermore, for the same reasons discussed infra regarding Rule 60(b) relief, the Town has not established that there is a change of circumstances from 2005 to now that would justify not applying this doctrine. Accordingly, the law of the case doctrine applies and precludes the Town's arguments regarding vested rights.

         Alternatively, the Town argues that even if CDBP acquired vested rights, that right could not remain perpetually vested. The Delaware courts, however, have not imposed a time restriction on how long vested rights remain vested. This argument that vested rights can grow stale arises from the analysis of the Delaware Supreme Court in In re 244.5 Acres of Land.[56] Namely, the Court included in its analysis regarding vested rights, the fact that the developer did not delay in its efforts to obtain the necessary approvals.[57] From that language the Court of Chancery, in Salem Church v. New Castle County, extrapolated that a developer's "delay may defeat a vested rights claim."[58] In the case at hand, the Town seeks to further extend that logic by arguing that CDBP should no longer retain its vested rights because after more than eleven years it has not completed the Business Park or sold all of its lots.

         Delaware law, however, does not extend this premise to the extent advanced by the Town. The issue of delay in both the Delaware Supreme Court and the Delaware Court of Chancery cases factored into the initial determination of whether the developer obtained vested rights.[59] The existence of a delay was not used to argue that once a developer acquired vested rights, a delay could lead to divesting the developer of that right. Here, the courts in 2005 determined that CDBP acquired vested rights, and therefore, a delay in development is irrelevant.

         Additionally, as the Delaware Supreme Court had the opportunity to declare that vested rights are not perpetually vested but declined to do so, this court will not impose such a restriction.[60] Instead, this Court finds that vested rights remain perpetually vested. The very nature of vested rights requires this conclusion. Vested means that a person or property has acquired a right for the present and future, and that right is absolute.[61] The nature of the doctrine of vested rights also counsels against imposing a time limitation. The doctrine recognizes that, after a certain point, it would be inequitable to allow legislatures or town councils to change the law affecting the property. The passage of a period of time does not make it any more equitable to change the nature of the right after a party has relied upon it. Therefore, CDBP's rights remain vested, and this Court will not impose an expiration on that right. This doctrine prohibits the Town from taking any legislative action that would interfere with CDBP's vested rights.[62]

         B. The Town's arguments that (1) it could not legally enter into such an agreement because it impermissibly bound future Town councils and that (2) its actions amounted to illegal contract zoning are unavailing.

         The Town also seeks to avoid the continued application of the 2005 Stipulated Orders by arguing that the Court cannot interpret those documents to provide CDBP perpetual vested rights because that would impermissibly prohibit future Town councils from ever changing zoning ordinances. In so arguing, the Town advances the general rule that legislative actions are not binding on successor legislative bodies in a way that would limit a future town government's legislative discretion. The Town maintains that if the Stipulated Orders are ...


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