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Nepa v. City of Lewes

Superior Court of Delaware

January 31, 2018

Nepa
v.
City of Lewes

          Mark F. Dunkle, Esquire Parkowski, Guerke & Swayze, P.A.

          Daniel F. McAllister, Esquire Baird, Mandalas, Brockstedt, LLC

          Michael J. Hoffman, Esquire Tarabicos Grosso, LLP One Corporate Commons.

         Dear Counsel:

         This is my decision on the Motion for Summary Judgment filed by the City of Lewes in this declaratory judgment action brought by Ernest M. and Deborah A. Nepa against the City challenging the constitutionality of the City's (1) R-4 dimensional requirements, (2) Historic Preservation District regulations of §197-56 et seq., and (3) Nonconforming Regulations of §197-84 et seq.

         The Nepas own three parcels of real estate in the City's residential medium-density (historic) zoning district. Thus, the three parcels are subject to the eight-foot side yard setback requirement and the City's historic district preservation regulations set forth in §197-56. The three parcels are improved by nonconforming structures, making them also subject to the City's nonconforming regulations set forth in §197-84. The Nepas' house located at 116 Dewey Avenue is very old and was built before the City had adopted the challenged regulations. It is located 3.2 feet from one side yard property line. The Nepas applied for, among other things, a variance from the eight-foot side yard setback requirement so that they could expand the house by adding a second story that also goes into the back yard. The City Board of Adjustment denied the Nepas' variance request. The Nepas' appeal of that denial is pending in this Court. The City's historic preservation district regulations limit, among other things, the alteration and demolition of properties in the historic district and favor the restoration rather than demolition of historic properties. The City's nonconforming regulations allow nonconforming structures to continue until they are removed, but limit any alteration of them that would increase their nonconformity. However, normal repair and maintenance are permitted. Taken together, the eight-foot side yard setback, and historic district and nonconforming regulations make it difficult for the Nepas to demolish or enlarge their homes. Thus, they are seeking to have the eight-foot side yard setback and other regulations declared unconstitutional.

         The Nepas argue that (1) the eight-foot side yard setback requirement is void as an irrational, arbitrary, and capricious exercise of the City's police powers, and (2) the simultaneous application of the historic district regulations and nonconforming regulations are void as an irrational, arbitrary and capricious exercise of the City's police powers. I have granted the City's Motion for Summary Judgment, concluding that the challenged regulations are reasonably related to the peace, good order, health, safety, morals or general welfare of the community.

         STANDARD OF REVIEW

         This Court will grant summary judgment only when no material issues of fact exist, and the moving party bears the burden of establishing the non-existence of material issues of fact.[1] Once the moving party meets its burden, the burden shifts to the non-moving party to establish the existence of material issues of fact.[2] The Court views the evidence in a light most favorable to the nonmoving party.[3] Where the moving party produces an affidavit or other evidence sufficient under Superior Court Civil Rule 56 in support of its motion and the burden shifts, the non-moving party may not rest on its own pleadings, but must provide evidence showing a genuine issue of material fact for trial.[4] If, after discovery, the non-moving party cannot make a sufficient showing of the existence of an essential element of the case, then summary judgment must be granted.[5] If, however, material issues of fact exist or if the Court determines that it does not have sufficient facts to enable it to apply the law to the facts before it, then summary judgment is not appropriate.[6]

         THE RATIONAL BASIS TEST

         A municipality may regulate private property under its police powers.[7] The constitutionality of zoning ordinances promulgated to implement those powers is presumed. Therefore, anyone who challenges the constitutionality of a zoning ordinance bears the burden of proof.[8] While "it would be difficult if not impossible, to define the precise scope of [the State's police] powers, ... an ordinance based thereon must have some rational and necessary connection with the peace, good order, health, safety, morals or general welfare of the community."[9]

         "The test for determining the constitutionality of such an ordinance is whether its terms are clearly arbitrary and unreasonable, having no substantial relation to the public health, safety, morals or general welfare."[10] "In considering what is a reasonable exercise of the police powers of the State a court must bear in mind that if the validity of the legislation for zoning purposes is fairly debatable, the legislative judgment must be allowed to control. Thus, ... in any facial attack on the ordinance, the challenger must establish the absence of any state of facts that would furnish a basis to support the ordinance."[11] In Buckson, however, the court held that "[w]hether the ordinance, as drafted, is 'good' land use planning, of course, is not the issue.[12] The rational basis test does not require that a zoning ordinance use the least restrictive means of achieving its goal.[13] In Rollins, the Delaware Supreme Court stated:

However, we read Ceresini to stand only for the overall proposition that "...under the guise of the police powers of the State, the use and enjoyment of private property cannot be subjected to arbitrary and unreasonable restrictions which are clearly not essential to the public good or general welfare of the community." (Emphasis added). Id. at 449. We find that the implication arising from this language is that if an ordinance reasonably restricts or limits a specific use of property and the ordinance is reasonably related to the general welfare of the community, it would not be susceptible to constitutional challenge.[14]

         DISCUSSION

         I.

         The Eight-Foot Side Yard Setback

         The Nepas raise the following arguments regarding the City's eight-foot side yard setback:

(1) The Eight-Foot Side Yard Setback is an Irrational Standard that is not Essential to the Public Good or General Welfare.

         In support of this argument the Nepas note that:

(a) The City has other zoning districts that have no side yard setbacks. There are no side yard setbacks in the Town Center and Town Center (Historic) districts. Thus, the Nepas reason that if the side yard setback is not needed everywhere, then it is not needed anywhere.
(b) Fire reduction is not the side yard setback's primary purpose because fire hazards are mitigated through ...

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