Delaware § 7121 - Presumption against closure; vacating closure after abatement of nuisance and proof nuisance is not likely to occur.

§ 7121. Presumption against closure; vacating closure after abatement of nuisance and proof nuisance is not likely to occur.

(a) Where the Court after trial determines that a premises or appropriate portion or portions thereof pursuant to § 7111 of this title constitutes a nuisance, the Court shall order the closure of the premises. No such closure shall be granted unless, in the totality of the circumstances, no less onerous penalty is likely to provide for the abatement of the nuisance. Further, no order of closure shall occur if the Court is clearly convinced that any vacancy resulting from the closure would exacerbate rather than abate the nuisance or would otherwise be extraordinarily harmful to the community or the public interest. In determining whether closure is the least onerous penalty, the Court shall consider:

(1) Whether any previously agreed upon abatement plan, consent order, or other steps taken by a defendant have abated the nuisance;

(2) The duration that any nuisance has existed on the premises and whether any court has previously found the existence of a nuisance on the premises;

(3) The severity of the nuisance;

(4) Whether the defendant has the ability to control the conduct on the premises or the ability to abate the nuisance;

(5) The impact of the continuation of the nuisance upon any neighborhood or community organization; and

(6) The position of any community or civic association which represents the communities in which the premises are located.

(b) The Court at any time after trial may vacate the provisions of the judgment that direct the closing of the premises or any portion thereof provided that the defendant submits clear and convincing proof to the Court that the nuisance has been satisfactorily abated and is not likely to recur. In determining whether the nuisance has been satisfactorily abated and is not likely to recur, the Court shall consider the nature, severity and duration of the nuisance and all other relevant factors, including but not limited to those factors set forth in § 7113 of this title.

72 Del. Laws, c. 484, §  1;  76 Del. Laws, c. 158, §  17;