Opinion
Civil Action No. 3237-CC.
Submitted: October 30, 2007.
Decided: November 30, 2007.
James D. Nutter Eric, G. Mooney, P.A., Georgetown, DE.
James F. Waehler, P. Kristen Bennett, Tunnell Raysor, P.A., Bethany Beach, DE
J. Scott Shannon, Marshall, Dennehey, Warner, Coleman Goggin, Wilmington, DE.
Dear Counsel:
Before me is the motion to dismiss filed by respondent Colonial East Limited Partnership. The issue is whether petitioners, David A. and Suzanne A. Shevock, filed their action within the time period prescribed by 10 Del. C. § 8126.
On June 12, 2007, the Sussex County Council enacted Ordinance # 1906, which relates to Conditional Use Application # 1675. On September 18, 2007, petitioners filed this action for declaratory judgment challenging the enactment and legality of Ordinance # 1906.
The parties agree that 10 Del. C. § 8126 governs this dispute. Section 8126 mandates that any action challenging a county or municipal government's adoption of an ordinance relating to zoning or subdivision and land development must be filed within sixty days of publication notice of the adoption of the ordinance. The sixty-day time period begins to run when notice of the passage of the ordinance is published in "a newspaper of general circulation in the county." Challenges to the granting of a conditional use are governed by 10 Del. C. § 8126.
10 Del. C. § 8126.
Bay Colony Ltd. P'ship v. County Council, 1984 WL 159382, at *2 (Del.Ch. Feb. 1, 1984) ("Whatever may be the rule elsewhere, in Sussex County the granting of a conditional use permit is covered by 10 Del. C. § 8126.").
Respondent provides affidavits to support that notice was first published in the Sussex Countian, by the Sussex County Office of Planning and Zoning, on June 20, 2007, and then again on July 18, 2007. Petitioners also provide an affidavit to support that notice also was published in the Cape Gazette on August 7, 2007.
Petitioners' action was first filed with the Court September 17, 2007, but was rejected by the Register in Chancery on September 18, 2007, because of the non-conformance of petitioners' supplemental information sheet. Petitioners made the necessary corrections and re-filed the action on September 18, 2007. This refiling was accepted by the Court on the date of its filing, September 18, 2007.
Petitioners argue that their action was brought within the applicable time period because, as to the August 7, 2007 Cape Gazette notice, the sixty-day time period did not expire until October 8, 2007. Thus, petitioners conclude, their filing on September 18, 2007, was timely brought within the applicable time period set forth in section 8126. I agree.
Because petitioners' action was filed within the sixty-day time period after the August 7, 2007 date of publication in the Cape Gazette, respondent's motion to dismiss this action is denied.
IT IS SO ORDERED.