Opinion
C.A. No. 03C-07-213 MMJ.
Decided August 4, 2004. Revised October 8, 2004.
Upon Plaintiff's Motion for Reargument, DENIED
ORDER
1. By Memorandum Opinion dated August 4, 2004, the Court considered Defendant's Motion to Dismiss. The Court dismissed Counts 1 and 3 of the Complaint. Counts 2 and 4 were retained and the Court outlined certain limited discovery that would be permitted with regard to the remaining counts. Plaintiff filed a Motion for Reargument of the Court's decision.
2. The purpose reargument is to permit reconsideration of findings of fact, conclusions of law, or judgments of law. Reargument usually will be denied unless the moving party demonstrates that the Court overlooked a precedent or legal principle that would have a controlling effect, or that it misapprehended the law or the facts in a manner affecting the outcome of the decision. "A motion for reargument should not be used merely to rehash the arguments already decided by the court."
Hessler, Inc. v. Farrell, 260 A.2d 701, 702 (Del. 1969).
Wilmington Trust Co. v. Nix, Del. Super., 2002 WL 356371, Witham, J. (Feb. 21, 2002); Whitsett v. Capital School District, Del. Super., C.A. No. 97C-04-032, Vaughn, J. (Jan. 28, 1999); Monsanto Co. v. Aetna Casualty Surety Co., Del. Super., C.A. No. 88-JA-118, Ridgeley, P.J. (Jan. 14, 1994).
3. During oral argument on September 9, 2004, Defendant, Plaintiff and the Court agreed that the Court erroneously stated a fact in the August 4th Opinion. The Court stated: "It is undisputed that [Plaintiff] now has sold the property at issue to a third party." In fact, Plaintiff did not sell the property to a third party. Plaintiff executed a contract to sell the property. The agreement of sale was approved by the bankruptcy court. Plaintiff's lender subsequently took title to the property and sold it to a third party. Plaintiff conceded that Plaintiff received debt relief as a result of the lender's taking of title to the property.
4. Plaintiff argues that this factual misapprehension affects the outcome of the decision. The Court held: "In order to sustain a claim for inverse condemnation, [Plaintiff] must show that it has been deprived by [Defendant] of all economic value of the property by [Defendant's] zoning regulations. Even assuming for purposes of this decision that [Defendant's] actions prevented [Plaintiff] from ever opening the hotel, the property a fortiori retained some economic value as clearly evidenced by the recent sale." Whether Plaintiff sold the property or received the economic benefit of debt relief does not affect the Court's ruling. Plaintiff was not deprived of all economic value because it was relieved of a portion of a substantial financial obligation.
5. Plaintiff further asserts that the Court misapprehended the law by finding that Plaintiff must demonstrate denial of all economically viable use of the property. Therefore, the case should not be dismissed. Instead, Plaintiff should be given the opportunity to present evidence to a finder of fact on the issue of the economic effect of Defendant's actions upon Plaintiff. This argument was made by Plaintiff in support of its Motion to Dismiss. The Court previously considered Palazzolo v. Rhode Island, in which the United States Supreme Court held: "[A] regulation which denies all economically beneficial or productive use of land will require compensation under the Takings Clause. . . . Where a regulation places limitations on land that fall short of eliminating all economically beneficial use, a taking nonetheless may have occurred, depending on a complex of factors including the regulation's economic effect on the landowner, the extent to which the regulation interferes with reasonable investment-backed expectations, and the character of the government action."
533 U.S. 606 (2001).
Id. at 617 ( citing Penn Central Transportation Co. v. New York City, 438 U.S. 104, 124 (1978)).
6. As a matter of law, Plaintiff has failed to show the existence of a regulatory taking sufficient to require an evidentiary hearing for the purpose of consideration of the Penn Central factors. Plaintiff's cause of action is based upon the theory of a categorical or complete regulatory taking. In its Complaint, Plaintiff alleges that Defendant denied Plaintiff "all economically viable use of the hotel property." The law is clear that a categorical taking only occurs when there has been a complete elimination of value or a total loss. Plaintiff has conceded that to the extent it received debt relief when it surrendered the property, it received some financial benefit.
Tahoe-Sierra preservation Council, Inc. v. Tahoe Regional Planning Agency, 535 U.S. 302, 330 (2002) (diminution in value of 95% not categorical taking); Lucas v. S.C. Coastal Council, 505 U.S. 1003, 1015 (1992); Appolo Fuels, Inc. v. United States, No. 03-5088 (Fed. Cir. Aug. 30, 2004).
7. Plaintiff has failed to demonstrate that the Court overlooked a precedent or legal principle that would have a controlling effect, or that it misapprehended the law or the facts in a manner affecting the outcome of the decision.
THEREFORE, the Plaintiff's Motion for Reargument is hereby DENIED.