Opinion
C.A. No. 00A-01-003
August 13, 2001
John A. Sergovic, Jr., Esquire, Sergovic, Ellis Shirey, P.A., Georgetown, DE
Kevin P. Maloney, Esquire, Deputy Attorney General, Carvel State Office Building, Wilmington, DE
Dear Counsel:
Appellant filed a Motion for Reargument pursuant to Superior Court Civil Rule 59(e) of this Court's decision in The Glade v. DNREC, Del. Super., C.A. No. 00A-01-003, Graves, J. (July 12, 2001). Appellant contends that this Court did not consider the issue of whether Appellee's denial of a permit to build a dock constituted a taking of property without just compensation.
Motions for reargument will be granted only in limited circumstances. The movant must show that the Court has "overlooked a decision or principle of law that would have controlling effect or the Court has misapprehended the law or the facts so that the outcome of the decision would be affected." Mainiero v. Microbyx Corp., Del. Ch., 699 A.2d 320, 321 (1997). After consideration of the previous filings, this Court's prior decision, and the briefs discussing the present motion, I find that the motion must be denied for several reasons.
First, the issue of whether the denial of the permit constituted a taking of private property without just compensation was only slightly referenced in Appellant's initial brief, and appeared as an argument in Appellant's answering brief Thus Appellee was not able to respond to this argument in its reply brief. Indeed, in its present motion Appellant notes that this Court considered only two issues — whether the denial of the permit was arbitrary and capricious and whether the permit should have been issued as part of a settlement — but these were the exact two divisions of Appellant's brief and this Court actually adopted Appellant's briefs breakdown.
Second, Appellant's argument that its private riparian property rights were denied without just compensation is belied by the very case upon which it relies, Wilmington v. Parcel of Land, Del. Supr., 607 A.2d 1163 (1992). In Parcel of Land, the Supreme Court distinguished the case before it, where an entire property was condemned by the City of Wilmington, from an earlier case, where a State-granted right of way interfered with a property owner's access to a river, by stating that in the earlier case,
The court simply held that a private riparian owner whose riparian property rights are incidentally or indirectly restricted, regulated, or damaged by the State, as opposed to a complete and direct taking by eminent domain, is not entitled to compensation. It is well settled that the State possesses the power to regulate or restrict private riparian property rights for public purposes without the payment of compensation.Wilmington at 1168 (internal citations omitted). In the present matter, the denial of the permit for a dock is along the lines of a regulation, rather than a "complete and direct taking of . . . riparian property rights by eminent domain." Id. at 1169.
Finally, this Court notes that a motion for reargument is not designed to be a routine motion filed whenever there is an adverse decision. "Where, as here, the motion for reargument represents a mere rehash of arguments made [earlier] . . . the motion must be denied." Miles, Inc. v. Cookson America, Inc., Del. Ch., 677 A.2d 505, 506 (1995).
IT IS SO ORDERED.