Opinion
C.A. No. 98C-02-021
Submitted: January 28, 2000
Decided: February 10, 2000
Upon Defendants' Motion to Dismiss. Denied. Counts I through V of the Complaint are Stayed.
Constantine F. Malmberg, III, of Young, Malmberg, Whitehurst Curley, P.A., for the Plaintiff.
Thomas H. Ellis, of Department of for the Defendants.
ORDER
Before the Court is Defendants Delaware Agricultural Lands Foundation and John F. Tarburton's Motion to Dismiss. This motion is opposed by Plaintiff, The Village, L.L.C. The Court will assume all well-pleaded facts as true for purposes of considering this Motion to Dismiss. It appears that:
1. Plaintiff, The Village at Cannon Mill ("Plaintiff' or "Village"), intended to purchase land in order to develop a multi-housing style residential neighborhood (the parties refer to this transaction as the "Project"). The Village then proceeded to get all of the requisite approvals from the City of Dover Planning Commission and the City Council for the City of Dover. According to the Plaintiff, as of February 13, 1998, the Village had incurred approximately $312,479.88 in expenses for the Project. The Plaintiff is now apparently the legal owner of the Project lands.
2. After the Project's preliminary approval by the Planning Commission, Farm Lands, L.P., also a defendant and the owner of an adjacent tract of land consisting of approximately 244.5 acres of land, filed an application with the Delaware Agricultural Land Foundation ("Foundation") to create an agricultural preservation district ("Preservation") pursuant to the provision of 3 Del. C. § 901, et seq., to be called the Raughley District. On January 6, 1998, this application was approved by the Farm Land Preservation Advisory Board for Kent County. Thereafter, the application was partially approved by the Kent County Regional Planning Commission, with slight modifications.
3. On January 13, 1998, a public hearing was held by the Foundation where final approval of the Agricultural Preservation District was to be voted upon. The Plaintiff claims that they were not given notice of this hearing and were only afforded a limited opportunity to object to the creation of the Preservation. Ultimately, the Foundation approved the Agricultural Preservation District and recorded it on February 13, 1998 with the Kent County Recorder of Deeds. To the Plaintiff's detriment, the Agricultural Lands Preservation Act requires that the Village, if it is considered a "new development," observe a fifty-foot setback requirement on their property. Plaintiff states that this fifty-foot setback renders them unable to build on certain lots and significantly impairs the value of twenty-eight of the lots they purchased. This fifty-foot setback is the cornerstone of the current litigation.
It is disputed at this point of the litigation whether an already existing forty-foot setback would render the additional setback of ten feet the sum of the amount of land being litigated over. In this decision, the Court is not ruling on the merits of the Plaintiffs claims, the Court is only setting the procedural posture for this case to continue under.
4. On February 12, 1998, Plaintiff filed suit against the Delaware Agricultural Lands Foundation; John F. Tarburton, in his official capacity as Secretary of the Department of Agriculture; and Farm Lands, L.P. in a "Petition for Review and Declaratory Judgment" with this Court seeking that the declaration of a fifty-foot setback requirement not apply to its property; or, in the alternative, the recovery of money damages for the alleged taking of its property for public use for which it did not receive just compensation, pursuant to 42 U.S.C. § 1983. Subsequently, Defendants filed this Motion to Dismiss.
5. Superior Court Civil Rule 12(b)(6) is controlling when determining a Motion to Dismiss. Clearly, for purposes of a Motion to Dismiss, all of the allegations in the Complaint must be accepted as true. A Complaint will not be dismissed unless the Plaintiff would not be entitled to recover under any reasonable conceivable set of circumstances susceptible of proof. A Complaint may not be dismissed unless it is clearly without merit, which may be a matter of law or fact.
Spence v. Funk, Del. Supr., 396 A.2d 967 (1978); State ex. rel. Certain-Teed Products Corp. v. United Pac. Ins. Co., Del. Super., 389 A.2d 777 (1978).
Id. citing Diamond State Tel. Co. v. University of Del., Del. Supr., 269 A.2d 52 (1970).
Diamond State at 58.
6. Count VI of the Plaintiff's Complaint requests than an inverse condemnation proceeding be instituted, pursuant to 29 Del. C. § 9504, in order to determine the amount of compensation due to the Plaintiff because of the fifty-foot setback they must endure on their land because of the creation of the Preservation. Inverse condemnation "is a shorthand description of the manner in which a landowner recovers just compensation for a taking of his property when condemnation proceedings have not been instituted. Plaintiffs request for an inverse condemnation proceeding is in addition to its claims under the Federal Civil Rights Law, 42 U.S.C. § 1983. Actions filed pursuant to the Federal Civil Rights Law may also be tort actions under State law. The Superior Court has concurrent jurisdiction with the Federal courts.
29 Del. C. § 9504. Inverse condemnation proceedings.
Where an inverse condemnation proceeding is instituted by the owner of any right, title or interest in real property because of use of the owner's property in any program or project, the court, rendering a judgment for the plaintiff in such proceeding and awarding compensation for the taking of property, or the Department of Justice effecting a settlement of any such proceeding, shall determine and award or allow to such a plaintiff, as a part of such judgment or settlement, such sum as will, in the opinion of the court or the Department of Justice, reimburse such plaintiff for reasonable costs, disbursements and expenses, including reasonable attorney, appraisal and engineering fees, actually incurred because of such proceedings.
Brandywine Transmission Serv. v. Justice, Del. Super., C.A. No. 87C-NO-124, Babiarz, J. (March 7, 1991) (Mem. Op.) at 1.
Marker v. Talley, Del. Super., 502 A.2d 972, 974 (1985).
7. This Court does not disagree that Plaintiff can proceed with various, or even inconsistent, theories of recovery in a single action. "[T]o succeed on a claim based on section 1983, the plaintiffs must demonstrate two elements. First they must show that they have been deprived of a right secured by the constitution or laws of the United States. Second, they must show that the person depriving them of this right acted under color of state law." In the case at bar, it will not be known if Plaintiff can satisfy the first requirement of a Section 1983 claim until the completion of the inverse condemnation proceeding when it is determined if a taking has in fact occurred, and, if so, how much compensation the Plaintiff may be entitled. This would render Plaintiff unable to satisfy the first prong of its 1983 claim. Furthermore, after the completion of the inverse condemnation proceeding, the remaining causes of action asserted by the Plaintiff may be moot as a result of the decision in the inverse condemnation proceeding. Therefore, the Plaintiff's claim is not yet ripe for adjudication.
Abbiss v. Delaware Dept. of Transp., D. Del., 712 F. Supp. 1159 (1989).
8. In addition, in Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City , the United States Supreme Court held that since the respondent did not show that an inverse condemnation procedure was unavailable or inadequate, that its taking claim was premature until that procedure had been utilized. The Court stated that the Fifth Amendment does not "require that just compensation be paid in advance of, or contemporaneously with, the taking; all that is required is that a "reasonable, certain and adequate provision for obtaining compensation' exist at the time of the taking." The Court further asserted that "[i]f the government has provided an adequate process for obtaining compensation, and if resort to that process "yield[s] just compensation,' then the property owner "has no claim against the Government' for a taking." "Similarly, if a State provides an adequate procedure for seeking just compensation, the property owner cannot claim a violation of the Just Compensation Clause until it has used the procedure and been denied just compensation."
473 U.S. 172 (1985).
Williamson at 194 citing Blanchette v. Connecticut Gen. Ins. Corps., 419 U.S. 102, 124-125 (1974).
Williamson at 194-195 citing Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1005 (1984).
Williamson at 195.
9. Despite Plaintiff' s spirited argument, this Court is persuaded that the Williamson holding is controlling. At this point in time, Plaintiff has not exhausted the State's procedures for determining whether a taking has occurred, and, if so, what compensation is due from the State for this taking. Therefore, Plaintiff must take advantage of the inverse condemnation proceeding before it can bring a cause of action against the State for an unconstitutional taking without just compensation. Consequently, Counts I through V of the Plaintiff's Complaint are premature at this stage of the proceedings as well as the Motion to Dismiss Counts II through VI. Therefore, the Court will not consider a dismissal of the Plaintiffs Complaint at this stage. Pursuant to Superior Court Civil Rule 42(b), this Court has the authority to order the separate trial of any issues in the furtherance of convenience, to avoid prejudice, or when separate trials would be conducive to expedition and economy. The Court believes that Count VI of Plaintiffs Complaint should be tried separately from Counts I through V in the name of judicial convenience and economy. The Court will allow Count VI, which was brought under 29 Del. C. § 9504, to proceed in a separate trial. The Court will stay Counts I through V of the Plaintiff's Complaint until the completion of the proceedings under Count VI. When Count VI has been resolved, the Court will then allow the Plaintiff to proceed under Counts I through V, if this is still the proper course of action.
Super. Ct. Civ. R. 42.
Therefore, Defendants' Motion to Dismiss is denied; however, Counts I through V of Plaintiffs Complaint are stayed until the conclusion of a separate trial on Count VI. IT IS SO ORDERED.
WITHAM, Judge.