Robert Walker, Jr. v. Charles L. Williams

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE
ROBERT WALKER, JR., JOHN KANE, )
CAROL KANE and MARGARET )
FOULKE, )
)
Plaintiffs, )
)
v. ) C.A. No. 9667-VCG
)
CHARLES L. WILLIAMS, )
)
Defendant. )
MEMORANDUM OPINION
Date Submitted: September 27, 2016
Date Decided: November 4, 2016
Dean A. Campbell of THE LAW OFFICE OF DEAN CAMPBELL, LLC,
Georgetown, Delaware, Attorney for Plaintiffs.
Richard E. Berl, Jr., of BERL AND FEINBERG, LLP,
Lewes, Delaware, Attorney for Defendant.
GLASSCOCK, Vice Chancellor
This matter involves the use by the Defendant, Charles Williams, of a pole
building beside his house as a hobby automobile shop. This matter has been,
unfortunately, heavily litigated and it has undoubtedly consumed more of the parties’
resources than a neutral observer might think efficient or reasonable. The matter
was tried for two days and what I consider to be the primary issue—whether
Williams’ pursuit of his hobby constituted a nuisance-in-fact—was resolved in a
Memorandum Opinion of June 23, 2016 (“Walker I”).1 In Walker I, I found that
Williams’ use of the property did not constitute sufficient invasion of the property
rights of his neighbors to be an actionable nuisance.2
The Plaintiffs—Defendant’s neighbors—raised other issues at trial and in the
post-trial briefing. They argue that Williams’ use of his pole building (the “Pole
Building” or the “Shop”) is illegal under the County Zoning Code (the “Zoning
Code”),3 that the construction of that building is in some respects in violation of the
County Building Code (the “Building Code”),4 that the use of Williams’ property
for non-commercial auto repair is a nuisance per se and that ornamental signs that
Williams has mounted on his building are in violation of the Zoning Code. I asked
1
Walker v. Williams, 2016 WL 3569260 (Del. Ch. June 23, 2016).
2
I did, however, find that the use by Mr. Williams and his guests of a lane over an easement
providing access to his property in some respects exceeded the use permitted by that easement.
3
Sussex County Code, Zoning, Chapter 115.
4
Sussex County Code, Building Construction, Chapter 52.
1
for supplemental briefing on some of these issues, which the parties provided. This
is my post-trial Memorandum Opinion on the issues not addressed in Walker I.
I. FACTS AND BACKGROUND
The facts in this matter are adequately laid out in Walker I; interested readers
(if any) are referred to that Memorandum Opinion. A brief statement of background
facts is sufficient to this supplemental Memorandum Opinion; facts necessary to
discussions of specific issues are addressed in the sections resolving those issues.
Otherwise I rely upon and incorporate the facts stated in Walker I.
The Defendant and the Plaintiffs live in a semi-rural area of Sussex County
near Cool Spring, designated Agricultural-Residential 1 (“AR-1”) for zoning
purposes. The surrounding area includes homes on large lots located adjacent to the
public highways; these homes are typically bordered in the rear by agricultural
fields, chicken houses and other agricultural activities. Two of the Plaintiffs
(Margaret Foulke and Robert Walker) own houses on lots adjacent to Williams’
property. A reference to the “Plaintiffs” refers, in context, to these particular
plaintiffs.5
The Defendant originally owned a five acre parcel which he subdivided; the
Plaintiffs occupy two lots created from that larger parcel. The Defendant retained a
5
The remaining Plaintiffs, John and Carol Kane, live across and down the public road from Foulke
and Walker, and their lot does not abut the property of the Defendant.
2
lot, and an easement across property now owned by Walker. Williams has a modest
home beside which is the Pole Building, which was built pursuant to a building
permit and occupied pursuant to a certificate of occupancy issued by Sussex County
(the “County”). The Pole Building contains areas used for storage but is used
principally by Williams as a shop to pursue his hobby, tinkering with cars. The
Plaintiffs object to this use and have made numerous complaints to the County.
County inspectors have repeatedly inspected Defendant’s property but have found
no County Code violations.6 Nonetheless, the Plaintiffs strenuously argue that
Defendant’s Pole Building and its use are illegal under the County Code. They seek
injunctive relief directing the Defendant to tear down the Pole Building and to cease
working on cars on his property.7 While I have already found that the use of the
property by Williams is not a nuisance under the common law, the Plaintiffs contend
that Defendant’s pursuit of auto repair is a nuisance per se, for which they also seek
equitable relief. For the reasons that follow, I find for the Defendant.
6
All parties argue that the actions of the County support their positions in this matter. The
Defendant points out that the County has made numerous inspections of his property in response
to complaints from the Plaintiffs, and has never found a violation of the County Code. He also
points to a hearing for a variance to permit him to maintain a commercial garage on the premises;
that application was turned down, but the Sussex County Planning and Zoning Commission told
the Defendant that the current hobby-use was permitted under the Code. The Plaintiffs,
conversely, point to technical deficiencies with the building permit and the certificate of
occupancy, and take issue with other actions of the County. I need not consider any of these issues,
as the County is not a party to this action.
7
The Plaintiffs also seek a declaratory judgment that the Defendant is in violation of the law. They
originally sought “civil fines” for these violations, but have not pursued this claim. Finally, the
Plaintiffs seek their attorney’s fee and costs in connection with this action, a request the result here
renders moot.
3
II. ANALYSIS
A. Violations of the Building Code
The Plaintiffs have alleged that Defendant’s Pole Building violates the
Building Code in a number of ways. Plaintiffs’ allegations of breach of the County
Code have been something of a moving target throughout the litigation; I address
here (and in my discussion of the Zoning Code, infra) only allegations and
arguments set out in Plaintiffs’ Post-Trial Briefs; I deem issues not so raised to be
waived.8 The County has adopted the International Building Code and the
International Residential Code as its Building Code.9 The Plaintiffs allege three
Building Code violations testified to by their expert, James Clark: that Code
requirements call for a fire prevention wall between the Pole Building and
Defendant’s adjoining residence, which the expert contends is missing; that the Pole
Building’s roof trusses have been modified in a way not compliant with the Code;
and that the Shop’s floor is not properly sloped. I assume without finding, for
purposes of this Memorandum Opinion, that one or more Building Code violations
exist with respect to the Pole Building. I now turn to the issues of Plaintiffs’ standing
and the availability of the remedy sought.
8
See, e.g., Thor Merritt Square, LLC v. Bayview Malls LLC, 2010 WL 972776, at *5 (Del. Ch.
Mar. 5, 2010); Emerald P'rs v. Berlin, 2003 WL 21003437, at *43 (Del. Ch. Apr. 28, 2003); In re
IBP, Inc. S’holders Litig., 789 A.2d 14, 62 (Del. Ch. 2001).
9
Sussex County Code, Building Construction, Article I, Chapter 52-1 Adoption of Standards;
Exemptions.
4
1. Standing
The Defendant contends that the Plaintiffs lack standing to bring these claims.
The standing requirement serves to protect litigants, the courts, and the public from
abusive litigation by officious intermeddlers. In order to have standing to compel a
court to address compliance with a statute, a plaintiff must generally (1) plead a
claim of injury-in-fact arising from the non-compliance and (2) demonstrate that the
interest sought to be protected is within the zone of interest which the statute seeks
to address.10 Here, assuming the record demonstrates that the trusses, floor or wall
materials of the Pole Building are not up to Code, a detriment to the Defendant
himself and his family may result. But—unlike with the allegedly-illegal use of the
building, discussed below—the Plaintiffs have not attempted to substantiate any
claim of injury-in-fact.
In post-trial and supplemental briefing, the Plaintiffs fail to argue that they
have sustained an injury-in-fact with respect to Defendant’s violation of the Building
Code. They rely solely on what they argue is the General Assembly’s provision of
statutory standing here. The Plaintiffs point to 9 Del. C. § 6919(d) which provides:
[i]n case any building or structure is or is proposed to be erected,
constructed, reconstructed, altered, maintained or used, or any land is
or is proposed to be used in violation of this subchapter or of any
regulation or provision of any regulation or change thereof, enacted or
adopted by the county government under the authority granted by this
subchapter, the county government, the attorney thereof, or any owner
10
E.g., Walker v. City of Wilmington, 2014 WL 4407977, at *4 (Del. Ch. Sept. 5, 2014).
5
of real estate within the county in which such building, structure or land
is situated, may, in addition to other remedies provided by law, institute
injunction . . . or any other appropriate action . . . to prevent, enjoin,
abate or remove such unlawful erection, construction, reconstruction,
alteration, maintenance or use.11
This statutory language provides a private right of action with respect to violation of
regulations under the subchapter in which it appears—concerning the County Zoning
Code. The Plaintiffs appear to conflate a private right of action to enforce zoning
restrictions with standing to enforce all regulations concerning buildings and
structures. The language of Section 6919(d) does not support such a legislative
intent, however.12
9 Del. C. § 6902 contains a specific grant to the County of the authority, within
the County, to
regulate the location, height, bulk and size of buildings, parking areas,
and other structures, the percentage of lot which may be occupied, the
size of yards, courts and other open spaces, the density and
distribution of population, the location and uses of buildings, parking
areas, and structures for trade, industry, residence, parking, recreation,
public activities or other purposes and the uses of land for trade,
11
9 Del. C. § 6919(d) (emphasis added).
12
The Plaintiffs cite to numerous cases for the proposition that Section 6919(d)—or its New Castle
or Kent County analogs—provides standing here, but none of those cases involve enforcement of
the County Building Code. See, e.g., Oceanport Indus. Inc. v. Wilmington Stevedores, Inc., 636
A.2d 892 (Del. 1994); O’Neil v. Town of Middletown, 2006 WL 205071 (Del. Ch. Jan. 18, 2006);
Breasure v. Swartentruber, 1993 WL 487786 (Del. Ch. Nov. 1, 1993); Orchard Homeowner’s
Ass’n v. Cnty. Council of Sussex Cnty., 1992 WL 71448 (Del. Ch. Mar. 31, 1992); Lajil Corp. v.
Maryland Bank, 1988 WL 39975 (Del. Ch. Apr. 25, 1988); Hammond v. Dutton, 1978 WL 22451
(Del. Ch. Dec. 20, 1978); Minquadale Civic Ass’n v. Kline, 212 A.2d 811 (Del. Ch. 1965); Nichols
v. State Coastal Zone Indus. Control Bd., 2013 WL 1092205 (Del. Super. Ct. Mar. 14, 2013);
Plumbers & Pipefitters Local Union 74 v. Gordon, 1999 WL 169413 (Del. Super. Ct. Mar. 17,
1999).
6
industry, residence, recreation, public activities, water supply
conservation, soil conservation or other similar purposes [outside
incorporated towns and cities].13
As our Supreme Court has noted, this language provides the County with the
authority to regulate zoning.14 Section 6919 provides a private right of action for
County property owners to seek to remedy acts “in violation . . . of any regulation .
. . enacted or adopted by the county government under the authority granted by this
subchapter.”15 The subchapter in question is Subchapter I of Chapter 69, pertaining
to zoning, and the grant of authority referenced is that quoted at length above,
delegating to the County the power to regulate aspects of zoning. It does not provide
authority to regulate methods and standards for construction of buildings.16
The Plaintiffs, by contrast, seek to regulate alleged violations of the
International Residential Code, adopted by Sussex County in Section 52-1 of the
Sussex County Code.17 The County’s authority to adopt a building code does not
13
9 Del. C. § 6902(a).
14
Delaware Dep't of Nat. Res. & Envtl. Control v. Sussex Cnty., 34 A.3d 1087, 1090 (Del. 2011).
15
9 Del. C. § 6919(d) (emphasis added).
16
See Plumbers & Pipefitters Local Union 74 v. Gordon, 1999 WL 169413, at *4 (Del. Super. Ct.
Mar. 17, 1999), aff'd in part, rev'd in part, 757 A.2d 1278 (Del. 2000) (considering whether the
New Castle County analog of 9 Del. C. § 6919(d) provides standing for alleged plumbing code
violations). In stating the obvious, that the Building Code regulations that Plaintiffs seek to enforce
here were not “enacted . . . under the authority granted” by 9 Del. C. § 6901 et. seq., I do not mean
to imply that the County’s power to regulate building or zoning is limited to the grant of authority
under that Subchapter. See generally 9 Del. C. § 7001 (granting to the County all state police
powers not denied by statute).
17
Sussex County Code, Building Construction, Article I, Chapter 52-1 Adoption of Standards;
Exemptions.
7
flow from 9 Del. C. § 6902, which delegates authority only to regulate zoning;18
instead, the County’s authority to adopt building codes is set out specifically at 16
Del. C. § 7601, which provides in pertinent part that the “. . . County Council of . . .
Sussex County may adopt and enforce building codes . . . .” That statute is silent as
to a private right of action and standing, as are the regulations adopted by the County
pursuant to Section 7601, which adopt the International Residential Code, and
provide that “[e]nforcement of the code will be the responsibility of the Director of
Assessment.”19 I conclude that no statutory standing exists with respect to
enforcement of the Building Code as adopted by Sussex County.
To find, as the Plaintiffs argue, that all property owners in Sussex County have
standing to enforce the Building Code would, I fear, result in inefficient and
pernicious litigation.20 The Plaintiffs can show no injury-in-fact, and have pointed
to no statutory provision conferring statutory standing or even a private right of
18
See Delaware Dep't of Nat. Res. & Envtl. Control., 34 A.3d at 1090.
19
Sussex County Code, Building Construction, Article I, Chapter 52-7 Enforcement Officials.
20
Consistent with Plaintiffs’ view of the law, the owner of a beach house on Slaughter Beach
would have standing to sue to enforce the adequacy of the circuit breakers in a barn in Delmar, or
a deficiency in the scantlings of the roof rafters of a corn crib in Woodenhawk. Such a reading
would allow precisely the kind of officious intermeddling, nuisance and strike suits that the
standing requirement is intended to prevent. While the examples above are reductios ad
absurdum, they are not so far off the mark here. I am sure that Plaintiffs’ complaints about traffic,
noise and odor caused by Williams’ hobby are sincere (despite the fact that I found these intrusions
fail to constitute a nuisance-in-fact). Just as clearly, however, the Plaintiffs have no interest in the
structural integrity of Williams’ Pole Building; their arguments with respect to Williams’
compliance with the Building Code—discovered, presumably, during the pendency of this
action—are simply a cudgel with which to beat the Defendant unrelated to any injury-in-fact the
Plaintiffs might have suffered.
8
action for individuals to enforce the Building Code. I conclude that they lack
standing here. As discussed below, they cannot obtain the remedy they seek in any
event.
2. Injunctive Relief
Assuming that the Plaintiffs have standing and that the Pole Building exists in
violation of the Building Code, the Plaintiffs have demonstrated only the first of
three prongs required in order to receive the permanent, mandatory injunction they
seek. According to the Pre-trial Stipulation and Order, the “Plaintiffs seek a
mandatory injunction ordering [the Defendant] to remove the Pole Building.”21 A
mandatory injunction is an extraordinary equitable remedy; in order to receive final
injunctive relief, a plaintiff must not only prevail on the merits, but must show
resulting irreparable harm and that the equities balance in her favor.22 With respect
to the Building Code violations, the Plaintiffs can show neither, for the same reason
that their standing is problematic—they cannot demonstrate injury to themselves
resulting from Building Code violations in Williams’ Pole Building.
21
In the alternative, the Plaintiffs seek a mandatory injunction that “requires the Pole Building to
be altered in such a manner as to prevent it from being used as a garage.” This alternative relief is
not addressed, obviously, to remedy the Building Code violations—it is directed to the use of the
building in purported violation of the Zoning Code, addressed in this Memorandum Opinion, infra.
22
See, e.g., Singh v. Batta Envtl. Associates, Inc., 2003 WL 21309115, at *9–10 (Del. Ch. May
21, 2003); Copi of Delaware v. Kelly, 1996 WL 633302, at *4 (Del. Ch. Oct. 25, 1996); Draper
Commc'ns, Inc. v. Delaware Valley Broadcasters Ltd. P'ship, 505 A.2d 1283, 1288 (Del. Ch.
1985).
9
Put another way, the Plaintiffs are not seeking an order that the Shop be
brought into Code compliance, which, if their expert is correct, would require
relatively modest alteration to the structure. In fact, if Williams tomorrow brought
the building up to Code, the Plaintiffs would be entirely unsatisfied; their real
complaint is with the use of the Shop for auto repair, not the allegedly non-Code-
compliant slope of its floor. To that end, they seek an order to remove the Pole
Building itself. Equity cannot support such mandatory injunctive relief absent a
showing of tangible harm in its absence.
B. Alleged Zoning Code Violations
1. The Defendant’s “Signs”
The Defendant has mounted a number of antique and decorative signs on his
property, mostly attached to the Shop. He has other automotive-type ornaments on
his property as well, such as a traffic signal. The Plaintiffs make an argument that
the signs are prohibited under the Zoning Code. The Plaintiffs allege that the signs
with which the Defendant has decorated his property are not “signs permitted” under
Sections 115-159 or 115-159.1. That argument is frivolous. “Sign” is a defined
term under the Zoning Code. Section 115-157 provides that a “sign” is “[a]
structure, display or device that is arranged, intended, designed or used as an
advertisement, announcement, identification, description or direction.” The antique,
decorative signs that the Defendant has displayed on his property are none of these.
10
They are not intended to convey information; instead, they are purely ornamental.
Defendant’s neighbors may find these signs attractive, kitschy, or downright
obnoxious, according to their tastes. Nothing in the Code, however, prevents their
display.
2. “Use”
The more serious of Plaintiffs’ statutory arguments involve allegations that
Williams’ use of the Shop violates the Zoning Code. Again, although various
allegations of zoning violations have been made in this litigation, I address only
those raised in the post-trial briefing, and consider those not so raised, waived.23 The
Plaintiffs complain that Williams’ use of the property to work on automobiles is
prohibited under the Zoning Code.24 I start my analysis with two competing
propositions. The first is that the Zoning Code is in derogation of the common law.
At common law, otherwise-lawful activities by a landowner on his property were
limited only insofar as they invaded the property rights of his neighbors—that is,
they were limited under nuisance doctrine.25 Imposition of zoning restrictions
further limits this use, by legislative fiat, under the rubric that orderly development
enhances aggregate quality of life and property value. As acts in derogation of
23
See cases cited supra note 8.
24
At one time, the Plaintiffs argued that the size of the Pole Building in the abstract (unconnected
with its use for auto repair) was not Code-compliant. This allegation was not pursued post-trial,
and I consider it waived.
25
I have already found that Williams’ use of his property does not amount to a public or private
nuisance-in-fact. I discuss nuisance per se infra.
11
common-law property rights, zoning codes must be read in such a way as least
burdens those rights; as this Court has noted, where multiple reasonable readings of
zoning code provisions are possible, “the interpretation that favors the landowner
controls.”26 Second, the Zoning Code is explicitly comprehensive; it provides that
all uses not permitted are prohibited.27 I reconcile these considerations by finding
that if the Zoning Code may reasonably be read to permit a use, it is permitted;
otherwise, it is prohibited.
The Plaintiffs point out that Section 115-20 and 115-21(B) provide the
permitted uses for lots of less than five acres in the AR-1 District.28 Those include
use for a detached single-family dwelling of the type located on Defendant’s
property, together with accessory uses including (among others) use for a “Private
Garage,” for “domestic storage” or as a “Home Occupation.” The Plaintiffs argue
that Williams’ use of the Shop is as a garage, they then point to the fact that the
Zoning Code for District AR-1 provides only for “private garages” used solely for
“storage.” The Plaintiffs point out that Williams uses his Shop for maintenance and
26
Norino Properties, LLC v. Mayor & Town Council of Town of Ocean View, 2011 WL 1319563,
at *1 n.9 (Del. Ch. Mar. 31, 2011) (citations omitted); see also Dewey Beach Enters., Inc., 1 A.3d
305, 310 (Del. 2010) (“[T]o the extent that there is any doubt as to the correct interpretation [of a
zoning ordinance], that doubt must be resolved in favor of the landowner.”).
27
Sussex County Code, Zoning, Article III, Chapter 115-15 Prohibited Uses (“For the purpose of
this chapter, permitted uses are listed for the various districts. Unless the contrary is clear from
the context of the lists or other regulations of this chapter, uses not specifically listed are
prohibited.”).
28
See Pls’ Post-Trial Opening Br. 29–32; Pls’ Post-Trial Reply Br. 10–20.
12
repair, and not just storage, of automobiles.29 Therefore, argue the Plaintiffs, the
Shop is a non-compliant private garage, and they are entitled to an order from this
Court abating this illegal use. I find, however, that Defendant’s use of the Pole
Building is permitted as a “Home Occupation.” “Home Occupation,” a permitted
AR-1 use, is defined in Section 115-4 of the Code as
[a]ny occupation . . . or activity, conducted [in the home or accessory
structure] solely by one or more members of a family on the premises,
which is incidental and secondary to the use of the premises for
dwelling, provided that no commodity is stored or sold, except such as
is made on the premises, and there shall be no group instruction,
assembly or activity and no outside storage or display material on the
premises.
I find that the hobby activity which the Defendant pursues in his Shop is such a home
“activity.”
The Plaintiffs argue that Williams’ use of the Shop cannot qualify as a Home
Occupation for several reasons. First, they point out that Home Occupations can
only be pursued in the dwelling or an “Accessory Building,” which is defined in the
Code as subordinate to the dwelling.30 The Plaintiffs point out that the Shop is bigger
than the modest house trailer in which Williams resides, and argue that it cannot be,
29
They also point out that the Pole Building substantially exceeds the size permitted for a “Private
Garage.”
30
Sussex County Code, Zoning, Article I, Chapter 115-4 Definitions and Word Usage (defining
“Accessory Building” as “[a] detached/unattached subordinate building, the use of which is
incidental to or customarily found in connection with and, except as otherwise provided in this
chapter, is located on the same lot as the main building or principal use of the land. Examples of
an accessory building may include a shed, a storage building, garage, gazebo or similar
structure.”).
13
therefore, a “subordinate” Accessory Building. I find, based on the facts here, that
Defendant’s primary use of his land is as a residence, and that his pursuit of his
hobby in the adjacent Shop—which is not his occupation or a commercial activity,
but merely a hobby or pass-time activity—is subordinate to that primary use,
notwithstanding the size of the Pole Building. Similarly, I find the hobby use of the
Shop “incidental and secondary” to the primary use of the property as a residence,
for purposes of the definition of use for a Home Occupation under Section 115-4.
Next, the Plaintiffs argue that Williams runs afoul of the “outside storage or
display”31 prohibition of Section 115-4, because cars are at times parked outside the
Shop in Williams’ driveway. That is not the type of outside storage prohibited by
the Code, which refers to storage of material visually connected to the Home
Occupation itself, and not incidental to the use of the property for residential
purposes.32 Also, the Plaintiffs point out that Section 115-4 provides that the Home
Occupation must be pursued “solely” by family members, and prohibits “group
instruction, assembly or activity” on the premises in connection with the Home
Occupation. The Plaintiffs argue that the fact that the Defendant at times allows his
friends to work on cars while he watches (or helps) violates these provisions.
31
The prohibition in the Zoning Code of “outside display material,” in connection with a Home
Occupation, I take to be a prohibition on signage advertising a home business, which is absent
here.
32
Of course, if Williams begins storing tires, say, or axles or engine blocks in his yard, a Code
violation would likely result.
14
However, that fellowship, as the evidence makes clear, is part of the activity that
Williams, himself, is pursuing. Nothing about allowing guests to participate in the
hobby arises, in my view, to a “group instruction, assembly or activity” that is illegal
under the Code, nor does it make the activity less amenable to the purposes of AR-
1 zoning than if Williams alone turns the wrenches.33 To the extent that Section 115-
4 could be read to prohibit an otherwise permitted activity because the property
owner invites friends to participate, that is not the only reasonable reading of the
Section, and I must interpret this Section in favor of the burdened landowner. I find
that Williams’ use of the Pole Building as a shop to work on cars with his friends is
not prohibited by the Zoning Code.
Section 115-4 allows incidental use of property in AR-1 in addition to its use
for dwelling and agricultural purposes. It permits profit-making activity by
residents, within strict limits (no group assembly or activity, no outside storage or
signage, no sale of commodities not made on the premises). It also operates as a
catch-all, to make sure that hobby activities incidental to residential use are
permitted. The Defendant is not running an auto repair business;34 and he has no
33
The regulatory purpose for designation of AR-1 districts is provided at Section 155-19 of the
Zoning Code, set out in full on page eighteen, infra.
34
Nor, I note, could he operate an auto repair business, under my analysis here of a Home
Occupation pursued in an Accessory Building. The definition of Accessory Building requires a
use which is “incidental or customarily found in connection with . . . the main building or principal
use of the land.” If the Defendant were to run an auto repair business in the Pole Building, such
use would not be “customarily found in connection with” his dwelling house or his primary use of
the land as a residence, nor would it be “incidental,” which would also run afoul of the “incidental
15
“employees” from within or without his family. The testimony at trial made it clear
that he enjoys working on his friends’ vehicles in his Shop and enjoys sharing their
company while he does so. In pursuing this hobby inside his Pole Building, the
Defendant is pursuing a permitted Home Occupation under the Zoning Code.
C. Nuisance Per Se
Finally, the Plaintiffs contend that Defendant’s work on automobiles in the
Pole Building constitutes a nuisance per se. Unlike common-law nuisance-in-fact,
demonstration of a right to remedy a nuisance per se does not require a showing by
the Plaintiffs that they are suffering an actual interference with the quiet enjoyment
of their property. Instead, a nuisance per se arises when (1) a defendant property
owner’s use of his property is in violation of a safety statute, (2) where the use is an
abnormal or hazardous activity or (3) where the Defendant intentionally interferes
with others’ quiet enjoyment of their property in a way that is clearly unreasonable.35
Here, any interference with Plaintiffs’ property rights caused by the Defendant is
incidental, not intentional, and tinkering with automobiles is neither abnormal nor
hazardous activity. Plaintiffs’ argument is that conducting auto repair in an AR-1
and secondary” requirement for a Home Occupation. In other words, pursuing a pass-time or
hobby at home is typically incidental to residential use; running an auto repair business is not.
Moreover, an auto repair business would violate the Comprehensive Land Use Plan for Low
Density Areas, which prohibits “intense commercial uses . . . such as auto repair” (emphasis added)
(all lands designated as Low Density Areas were, as of 2008—the year of adoption of the
Comprehensive Land Use Plan—zoned AR-1).
35
E.g., Artesian Water Co. v. Gov’t of New Castle Cnty., 1983 WL 17986, at *14 (Del. Ch. Aug.
4, 1983).
16
District is illegal under the County Code, thus pursuit of that activity is a nuisance
per se. But it is not the violation of any statute or regulation that supports a finding
of which results in a nuisance per se; only violations of statutes intended to protect
the public safety lead to application of the nuisance per se doctrine. Properly
understood, the doctrine of nuisance per se is a limitation on property rights: it
applies where a landowner is using his property in a way that is hazardous in fact, or
hazardous as found by a legislature in promulgating safety statutes. In such a
situation, a neighbor need not await resulting damage or interference with his own
property rights to obtain relief, he may abate the threat under the doctrine of nuisance
per se.36 Since I have found no County Code violations here, I need not consider
nuisance per se further. Even if the Plaintiffs had shown a zoning violation,
however, the doctrine would not apply here.
The Zoning Code is intended to produce orderly development in a way that
enhances quality of life and aggregate property values. The Plaintiffs contend that
Williams’ use of his property exceeds the use permitted by the Zoning Code in an
“AR-1” District; the purpose of designation of a district as “AR-1” is set out at
Section 115-19:
36
See McQuail v. Shell Oil Co., 183 A.2d 581, 584 (Del. Ch. 1962) (explaining that an injunction
to restrain an anticipatory nuisance is unavailable except where the proposed use is a nuisance per
se). Similarly, the tortfeasor is held strictly liable for damages resulting from such activity. See
Artesian Water Co., 1983 WL 17986, at *20; Latchford v. Schadt, 2001 WL 392254, at *3 (Del.
Super. Ct. Apr. 11, 2001).
17
[t]he purpose of these districts is to provide for a full range of
agricultural activities and to protect agricultural lands, as one of the
county's most valuable natural resources, from the depreciating effect
of objectional, hazardous and unsightly uses. They should also protect
established agricultural operations and activities. These districts are
also intended for protection of watersheds, water resources, forest areas
and scenic values and, at the same time, to provide for low-density
single-family residential development, together with such churches,
recreational facilities and accessory uses as may be necessary or are
normally compatible with residential surroundings. The AR
regulations seek to prevent untimely scattering of more-dense urban
uses, which should be confined to areas planned for efficient extension
of public services.37
I conclude that the provisions of the Zoning Code that the Plaintiffs allege Williams
has violated are not Code provisions intended to protect their safety. Thus,
violations of those Code provisions, if such violations exist, are insufficient to
support a finding of nuisance per se.
III. CONCLUSION
For the foregoing reasons, Plaintiffs’ request for an injunction to remove
Defendant’s Pole Building is DENIED. Plaintiffs’ request to enjoin the use of that
building for the non-commercial enjoyment of the Defendant, by its use for hobby
auto maintenance and repair, is DENIED. Plaintiffs’ request that I order the
Defendant to remove the ornamental signs on his property is DENIED. The
Plaintiffs have failed to establish that the Defendant has created a nuisance per se,
and no relief under that theory is available to the Plaintiffs. Plaintiffs’ request that
37
Sussex County Code, Zoning, Article IV, Chapter 115-19 Purpose.
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the Defendant pay their legal fees is DENIED. The parties should provide me with
a form of Order encompassing the findings of this Memorandum Opinion together
with those in my Memorandum Opinion of June 23, 2016.
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