Opinion
C.A. No. 1070-MG.
Date Submitted: March 15, 2007.
Final Report: April 17, 2007.
Richard E. Berl, Jr., Esquire, of Smith O'Donnell Feinberg Berl, LLP, Georgetown, Delaware, Attorney for Plaintiff.
Ruth J. Roberts, pro se.
MASTER'S FINAL REPORT
This report is the latest in Sussex County's long struggle to ensure that real property owned by the defendant, Ruth J. Roberts, is brought into compliance with various Sussex County codes. The initial complaint was filed on February 2, 2005. That complaint alleged that defendant was in violation of Sussex County Code § 115-191, which permits no more than two untagged vehicles on a single parcel, and alleged that she had, in fact, seventeen (17) untagged vehicles and trailers stored there; that she was in violation of § 115-224 of the County Code, in that she had, in addition to one permitted mobile home, seven (7) other house trailers on her property without permits; that boats on Ms. Roberts's property were being used as residences in violation of County Code § 115-224; that Ms. Roberts was using her property as an illegal junk yard, in violation of County Code § 80-3 and § 80-5; that a septic system on the property was in violation of § 110-1 of the County Code and that the premises were unsafe, unsanitary and unfit for habitation, in violation of the Sussex County housing code. The complaint alleged that those violations constituted a public nuisance, and sought injunctive relief. Ms. Roberts failed to file a timely answer to the complaint and the County moved for a judgment by default, which was heard on April 18, 2006. Ms. Roberts appeared and requested 30 days to find an attorney and file an answer, which request I granted. Ms. Roberts again failed to file a timely answer, the default motion was renewed, and a second hearing was held on August 15, 2006. Ms. Roberts appeared, was given one week to answer, and filed an answer on August 18, 2006, denying the allegations of the complaint.
Thereafter, the County filed requests for production, interrogatories and requests for admissions, and trial was scheduled for February 1, 2007. Ms. Roberts failed to file a timely response to discovery, and the County was required to file a motion to compel. On January 24, Ms. Roberts answered the motion, claiming that she did not receive the discovery requests. I entered an Order on January 25, 2007, continuing the trial previously schedule for February 1, 2007, and ordering Ms. Roberts to answer all outstanding discovery by February 24, 2007. I noted that this discovery deadline would not be extended absent good cause shown. Trial was reschedule for March 15, 2007. Once again, Ms. Roberts failed to file timely discovery responses, and the County moved for an Entry of Judgment based on Ms. Roberts discovery violations and violation of my Order compelling discovery.
Ms. Roberts failed to appear at trial on March 15, 2007 and the County proceeded on its motion for an Entry of Judgment. In connection with the motion, the County put on witnesses and made a record of various on-going violations of County codes and ordinances. Based upon the evidence presented at that hearing, together with Ms. Roberts's failure to respond to discovery despite a Court Order, and based upon her testimony at the default hearing and her subsequent answer, I make the following findings of fact:
1) Ms. Roberts maintains more than two (2) untagged vehicles on her property, in violation of law.
2) Ms. Roberts maintains several house trailers on her property without the required County permits, all of which are unlawful except for the mobile home in which she resides.
3) That the property is being used to store junk including miscellaneous debris, bicycles, tires, toilets, strollers and run-down automobiles, in violation of law.
The witnesses were unable to substantiate that an unoccupied dwelling house on the property was illegal; that boats stored on the property were stored or used illegally; or that the septic system was functioning in a way that violated County code. I think it is worth noting here the candor and clarity with which the County's witnesses testified. Their candor and careful avoidance of over-reaching reflects well on them, Sussex County and their attorney.
Having found the violations above, the next question is the remedy. It is clear that Sussex County may pursue fines or other legal remedies for the violations which I have found above. The relief sought here, however, is equitable: The County seeks a determination that injunctive relief (ordering Ms. Roberts to cease violation and, absent such compliance, authorizing the County to enter the property, remedy the violations, and collect the costs from Ms. Roberts through a sale of her real estate, if necessary). The theory under which the County proceeds is that these violations constitute public nuisances.
Municipalities have the power to abate a public nuisance. See generally, Town of Georgetown v. Vanaman, Del.Ch., No. 1461-S, Jacobs, V.C. (December 20, 1993)(Mem.Op.) at 2 (holding that authority to alleviate a public nuisance falls within a municipalities's police powers). However, not every violation of a municipal ordinance constitutes a public nuisance. "A public nuisance is, broadly stated, a condition that injures or endangers the public health, safety, or welfare." Id., citing Black's Law Dictionary, 961 (5th Ed. 1979). In seeking the extraordinary remedy of mandatory injunction, the County here must demonstrate that the specific violations which it has proved are injurious to public health, safety, or welfare, and that the equities of the situation require an injunction. Under the facts of this case, I cannot find that a public nuisance exists. With the permission of the Plaintiff, I drove to the portion of the public highway abutting Ms. Roberts property and viewed it from that point. The Roberts' parcel consists of eighty acres in southern Sussex County, adjacent to the Burnt Swamp. It is mostly wooded. From the road, I could see one automobile, one house trailer, and the house. On the east side of the Roberts property is what appears to be a commercial hog lot. The Roberts property did not appear out-of-character for its neighborhood and the violations proved by the County (and demonstrated graphically in photographs in the record) are not within the sight of the public. I cannot conclude from this viewing that the public is exposed to any annoyance or injury from the code violations which, it has been proved, exist in the interior of the eighty-acre Roberts parcel. Therefore, the County cannot demonstrate that an injunction is required to abate the Code violations on the basis of a public nuisance. To the extent the County desires to pursue other remedies available to it based on these violations, once this report becomes final the County may apply to this Court for a transfer of the matter to a court of law as it finds appropriate.
Finally, Ms. Roberts through her actions and inaction in this matter has caused the litigation to be more costly for the County than would otherwise be the case. Specifically, in addition to other dilatory actions, Ms. Roberts is in violation of my discovery Order of January 25, 2007, and through that disregard of the Court's Order caused the current motion to be brought and heard. Because this added expense has arisen because of Ms. Roberts's failure to comply with discovery rules and with my Order of January 25, 2007, it is appropriate that the County submit the costs and fees connected with the presentation of that motion, and I will consider an order that Ms. Roberts bear the burden of those costs and fees.