DE Supreme Court Dismisses Challenge to Zoning Ordinance as Time-Barred

This post was authored by Matthew Loescher, Esq.

 New Castle County Council adopted Ordinance 19-046 amending the Unified Development Code. Under New Castle County’s Unified Development Code, heavy industrial uses were permitted as of right on land zoned for Heavy Industry (HI). The amended Code now states that property owners with HI-zoned property must obtain a special use permit from the County before expanding Heavy Industry use of their property. A year after the Code was amended, Croda filed a complaint in the Court of Chancery to enjoin enforcement of Ordinance 19-046. Croda claimed that Ordinance 19-046 was invalid because the Ordinance title did not put it and the public on notice of the substance of the zoning amendment in violation of state and county law and federal due process guarantees. The Court of Chancery dismissed Croda’s state law claims as untimely under the state sixty-day statute of repose and rejected its constitutional claims because Croda did not have a vested right in a zoning category.

At the outset, the court noted that Croda’s complaint for declaratory and injunctive relief challenging Ordinance 19-046 was a “suit” challenging “the legality of any ordinance” and was therefore covered by Section 8126. Section 8126 was a statute of repose and, as such, the sixty-day deadline to bring claims challenging the legality of an ordinance was not subject to tolling. Thus, the Court of Chancery correctly held that it lacked jurisdiction to consider Croda’s untimely state law claims.

Croda next argued that the County deprived it of a protected property right to the free use of its land when it adopted Ordinance 19-046 without first providing Croda procedural due process protections. The Court of Chancery found that Croda did not have a protected property interest in the existing zoning classification. On appeal, the court did not reach this issue as Croda’s procedural due process claim failed from another fundamental defect: procedural due process protections do not apply to legislation of general applicability. Here, the amended Code was not aimed at Croda and its industrial property because it applied to all HI-zoned property in the County. Accordingly, the court affirmed the Court of Chancery’s judgment.

Croda, Inc v New Castle County, 2022 WL 2898848 (DE 7/22/2022)