Croda, Inc. v. New Castle County
C.A. No. 2020-0677-MTZ
| Del. Ch. | Oct 28, 2021Background
- Croda, Inc. owns and operates the Atlas Point chemical facility in New Castle County, zoned Heavy Industrial (HI).
- New Castle County adopted Ordinance No. 19-046 (published Aug. 31, 2019), which: (1) added a 140-foot height limit for solid waste landfills, (2) amended the General Use Table to require special-use review for future industrial uses in HI (Section 2), and (3) classified landfills as Heavy Industry.
- Croda contends Section 2 improperly subjects future modifications/expansions at Atlas Point to special-use review rather than permitting them by right; Croda filed suit on Aug. 17, 2020 challenging the ordinance (Counts I–IV).
- The County moved for summary judgment arguing Croda’s challenges to Ordinance 19-046 are time-barred by the 60‑day statute of repose in 10 Del. C. § 8126; Croda argued lack of adequate title/notice and relied on equitable-tolling principles from Kent County.
- The Court of Chancery granted the County’s cross‑motion and denied Croda’s motion as to Counts I and II, holding Croda’s legal challenges were barred by § 8126 because the 60‑day clock ran from the Aug. 31, 2019 publication date and statutes of repose are not subject to equitable tolling.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Croda’s challenge to Ordinance 19-046 is timely under 10 Del. C. § 8126 | Croda: ordinance title/notice defects deprived it of fair opportunity; challenge should not be time-barred | County: § 8126’s 60-day limit runs from publication date regardless of a party’s actual notice | Held: Challenge is time-barred; clock ran from publication (Aug. 31, 2019) and Croda filed after 60 days |
| Whether equitable tolling applies to § 8126 (statute of repose) | Croda: Kent County precedent permits tolling where literal application would deny fair opportunity to challenge | County: Statute of repose is jurisdictional and not subject to equitable tolling | Held: Statute of repose is jurisdictional; equitable tolling does not apply |
| Whether title/notice defects can delay the start of the 60-day period | Croda: defective title/notice means the 60-day period should not run from the published notice | County: The statute’s plain language fixes the start at publication in a newspaper of general circulation | Held: Start date is the publication date; court cannot reach merits of title/notice because challenge is time-barred |
| Whether Kent County decision requires tolling here | Croda: Kent County tolled § 8126 where ordinance’s effective date depended on third-party action | County: Kent County was factually unique and distinguishable | Held: Kent County is distinguishable; no tolling was warranted because Ordinance 19-046 had a normal effective date and was not a legal nullity |
Key Cases Cited
- JPMorgan Chase Bank, N.A. v. Ballard, 213 A.3d 1211 (Del. Ch. 2019) (distinguishing statutes of repose from statutes of limitations regarding equitable tolling)
- Cal. Pub. Emps.’ Ret. Sys. v. ANZ Sec., Inc., 137 S. Ct. 2042 (2017) (Supreme Court discussion of statutes-of-repose tolling principles)