Gerald Lechliter v. Delaware Department of Natural Resources

COURT OF CHANCERY
OF THE
SAM GLASSCOCK III STATE OF DELAWARE COURT OF CHANCERY COURTHOUSE
VICE CHANCELLOR 34 THE CIRCLE
GEORGETOWN, DELAWARE 19947

Date Submitted: December 16, 2015
Date Decided: March 8, 2016

Col. Gerald A. Lechliter Ralph K. Durstein, III, Esquire
44 Harborview Road Devera B. Scott, Esquire
Lewes, DE 19958 William J. Kassab, Esquire
Delaware Department of Justice
820 N. French Street, 6th Floor
Wilmington, DE 19801

Stephen E. Smith, Esquire
Glenn C. Mandalas, Esquire
Baird Mandalas & Brockstedt, LLC
6 South State Street
Dover, DE 19901

Re: Gerald Lechliter v. Delaware Department of Natural Resources,
Civil Action No. 10430-VCG

Dear Col. Lechliter and Counsel:

This is my letter opinion in consideration of Colonel Lechliter’s 48-page

speaking motion for reargument of my Memorandum Opinion of November 30,

2015 (the “Speaking Motion”). The Defendants have responded to this remarkable

document, and I have considered it closely. For the following reasons, the motion

is denied. Before I turn to those reasons, however, a few observations are in order.
 Colonel Lechliter, as I have noted several times in past opinions of this Court,

is a passionate and intelligent pro se litigant.1 He lives on a quiet cul-de-sac south

of the Lewes and Rehoboth Canal in Lewes. Near his home is a large parcel of land

that had been set aside as an industrial park, owned by the University of Delaware.

That park was never developed, and the land was acquired by the State of Delaware.

Much of it is open space. Lechliter has litigated vigorously in opposition to a number

of uses of this property, including use of a portion, to which the University of

Delaware has easement rights, for the location of a wind turbine; use of other areas

for access to adjacent housing developments; use for recreational hunting; and,

pertinent here, a lease by the State of a portion of the property to the City of Lewes,

within which the City has designated a “dog park”—that is, a fenced-in open area

within which owners may allow dogs to run at large. While this area is not

contiguous with Lechliter’s property, it is nearby, and he fears that it will disturb the

quiet enjoyment of his property. Heretofore, Lechliter’s property bordered a section

of the old industrial park that was vacant, and little-visited, brush land.

In his many causes of action distributed over two separate litigations against

the State, DNREC, and the City of Lewes,2 both concerning use of the old industrial

1
See Lechliter v. Delaware Dep’t of Natural Res. & Env’t Control, 2015 WL 9591587 (Del. Ch.
Dec. 31, 2015); Lechliter v. Delaware Dep’t of Natural Res. & Env’t Control, 2015 WL 7720277
(Del. Ch. Nov. 30, 2015).
2
Id.
2
park, Lechliter has appeared pro se. As I have said, Lechliter is an intelligent man

of indefatigable energy. However, he is not legally trained, a deficit that is apparent

in his pleadings and briefing. A portion of his Speaking Motion is taken up with his

passionate argument that I have misconstrued his characterization of the various

claims and causes of action he brings, or have incorrectly evaluated the legal issues

thereto pertaining. Perhaps so; I address those arguments below. But he also argues

strenuously that I have treated him unfairly, because I have not accorded him the

deference that is due a non-law-trained pro se litigant attempting to make a case in

this Court. I regret that such is his opinion. I have striven to be scrupulously fair to

Lechliter and believe I have given him the full opportunity to present his many

arguments that the City and State have failed to comply with the law with regard to

the creation of the dog park. Perceptions, however, are simply that; I can but state

mine. More fundamentally, however, Lechliter’s comments deserve a substantive

response.

It is indeed the strong policy of this Court to decide issues on the merits. It is

also within the Court’s discretion to give certain latitude to pro se litigants in

recognition of their limited familiarity with the thankfully much-simplified, but still

intimidating, procedural rules within which they must operate in any court system.

Such consideration cannot be one-sided, however. I will not detail the long history

and numerous arguments and bench rulings in the two Lechliter cases involving the

3
old industrial park, which until recently have been pending before this Court. I will

note that, in this litigation alone, Lechliter has sued the Delaware Department of

Natural Resources and Environmental Control (“DNREC”), the DNREC Division

of Parks and Recreation, the Delaware Department of Transportation, the Mayor and

Council of the City of Lewes, J.G. Townsend, Jr. & Company, Lingo Asset

Management, LLC, Lewes Unleashed Association, and Lifetime Living, LLC. All

of these entities3 have been forced to hire counsel to respond to Lechliter’s vigorous

litigation. A few of Lechliter’s contentions have survived case-dispositive motions,

but many have been dismissed, and some were frivolous. This is not to question

Lechliter’s good faith in so proceeding. But had he chosen to hire counsel, much of

this litigation would have been avoided.

Delaware follows the American Rule on legal fees under which both winner

and loser pay their own fees.4 There is much to commend this rule over the English

Rule—loser pays—because the threat of fee shifting available under the English

Rule surely chills much valid litigation. On the other hand, the American Rule

permits a pro se plaintiff to litigate good faith but non-viable claims in a nearly

cost-free manner—incurring only the filing fees required by the Court—despite the

significant legal fees and other disruption and expense that his litigation may cause

3
Lifetime Living, LLC failed to make an appearance here.
4
See, e.g., Dover Historical Soc’y, Inc. v. City of Dover Planning Comm’n, 902 A.2d 1084, 1089
(Del. 2006).
4
to his opponents, and despite the significant use of judicial resources thereby. In

other words, the English Rule risks too little valid litigation; the American Rule

encourages the reverse. I shall not comment further on whether I have treated

Lechliter fairly as a pro se litigant in a court of equity, other than to say I believe I

have struck the proper balance here, and regret that Lechliter sees it otherwise. I

now turn to the merits of the motion.

Lechliter has moved under Rule 59(f) for reargument. Under that rule, proper

grounds for a motion for reargument are that the Court has overlooked a controlling

precedent or misapprehended the law or the facts of the case in a way that would

have changed the outcome of the underlying decision.5 Rule 59 is not a vehicle to

rehash or more forcefully present arguments already made, however.6 With that

standard in mind, I examine the errors assigned in the Speaking Motion. After close

review, I find no grounds on which to grant the motion. Lechliter makes three

species of argument in the Speaking Motion: first, that I fundamentally

misunderstood his argument regarding the Lewes 2005 Comprehensive Plan (the

“Comprehensive Plan”); second, that I unfairly or improperly found that Lechliter

had waived an argument that the dog park violated 30 Del. C. § 5423(c)(2); and

5
Brown v. Wiltbank, 2012 WL 5503832, at *1 (Del. Ch. Nov. 14, 2012).
6
Id.
5
third, that I simply reached the wrong result with respect to numerous issues. I

examine those arguments separately in turn.

A. Plaintiff’s Argument that I Misconstrued his Contention that the Dog Park
Violated the City’s 2005 Comprehensive Plan

The Plaintiff devotes 10 pages of the Speaking Motion to his contentions

regarding this claim. First, he asserts that I conflated his argument concerning the

Comprehensive Plan with a separate argument that he had also made that “the Dog

Park violated the City’s Zoning Ordinance.”7 In support of the argument that he had

pled a justiciable Comprehensive Plan claim, Lechliter quotes in the Speaking

Motion language from his answering brief to the City’s motion to dismiss, precisely

as set out below:

“The City never amended its 2005 State-approved Comprehensive
Plan . . . to incorporate the Premises [the Ground Lease 66.36 acres] as
a City park or made a determination that a Dog Park was consistent
with the Open Space zoning designation. . . . the Dog Park “is
inconsistent with the City’s 2005 Comp Plan.”8

Based on this language, Lechliter attempts to argue that I was on notice that he was

arguing that the City, after obtaining the lease for the dog park, failed to amend its

Comprehensive Plan in a way that is consistent with the use of the dog park as a

recreation area. He contends that the Court, therefore, has not addressed the

7
Speaking Motion, at 3.
8
The ellipses, bolding, and quotation marks are taken directly from the Speaking Motion, at pages
3–4.
6
following issues: Is the dog park “consistent with the 2005 Comp Plan if [it is] not

included in its map with the City parks and text listing City Parks and does Lechliter

have standing to challenge [its] approval if the Premises in Dog Park are not

consistent with the Comp Plan?”9

In his complaint, Lechliter made allegations regarding the Comprehensive

Plan but failed to seek any resulting relief. At oral argument on the Defendants’

motions to dismiss, I found Lechliter’s arguments with respect to the Comprehensive

Plan and City Zoning Code difficult to follow. When asked to explain the

Comprehensive Plan violation, Lechliter directed me to a “Table of permitted uses

in the City” that can be found in an attachment to Chapter 197 of the City of Lewes

Code,10 which contains the City’s zoning regulations:

MR. LECHLITER: If you look at the comp plan, at the maps,
first page, I don't think you'll see the dog park listed there. In fact, the
comp plan didn't even incorporate the area that DNREC bought and was
proposing to lease to the City into its body, ever. Because if you look
at that map where the road going into the University of Delaware area
is, you will see proposed DNREC lease to Lewes. It was never
incorporated. It was never incorporated into the comp plan, and it is not
listed as a park. If you go to the next map, "Future Land Use," you'll
see that that area is to be open space. And I provided the City, I provided
the City with a -- I believe it was March 2013 input. I said, "Guys, you
might want to look at this. You might have to change your zoning. I
didn't say you couldn't do it. I said you might have to change your
zoning."
THE COURT: Why isn't the dog park part of the open space?

9
Speaking Motion, at 11.
10
“City of Lewes Table of Permitted Uses and Structures,” City of Lewes Code, Chapter 197, at
Attachment 1.
7
 MR. LECHLITER: Because in the open space regulations, and
that's explained in a rather detailed exhibit in my briefs, open space
does not allow for recreation.
THE COURT: Open space does not allow for recreation?
MR. LECHLITER: Table of permitted uses in the City. It's not
my table of permitted uses.
THE COURT: Show me that because I don't understand that.
MR. LECHLITER: It allows parks, but parks must be owned or
used by a public entity, a public entity being a city, a municipality or -
-
THE COURT: This is a public park, isn't it? The dog park is a
public park, is it not?
MR. LECHLITER: But the definition of park in the City Code is
at odds. It is a public park; but a public entity, public entity is something
different. And I explained that in the, in my letter to the City, Your
Honor. It isn't as if I didn't – I pulled this out –
THE COURT: But that doesn't mean you're right.
MR. LECHLITER: No. It doesn't mean I'm right, but I think --
THE COURT: I just.
MR. LECHLITER: I think --
THE COURT: How could a dog park which is open to the public
and on City land not be a public park that's permitted open space use?
MR. LECHLITER: Well, I'm saying that this recreation is not
permitted on open space.11

I allowed supplemental post-argument briefing on the issue. I characterized

Lechliter’s arguments, as he made them at oral argument and in the supplemental

briefing, to the best of my ability to do so, in a way I considered fair to all the parties,

and addressed them in the Memorandum Opinion.12 Having chosen to advance his

points at oral argument in the way that he did, Lechliter is bound by that choice. Of

course, if he believes I have unfairly mischaracterized an argument on which he is

11
Oral Argument Tr. 46:14–48:17.
12
See Lechliter, 2015 WL 7720277, at *8.
8
entitled to relief, he is free to appeal that point after a final judgment in this matter.

However, I do not find this to be a proper ground for reargument under Rule 59(f)

and Lechliter’s motion on this ground is denied.

B. Plaintiff’s Contention that the Court Should Have Considered 30 Del. C.
§5423(c)(2)

Lechliter argues that I improperly found that he had waived any argument

under Section 5423, which is mentioned in the complaint, because he had failed to

refer to it in oral argument. He states in the Speaking Motion that:

[Contrary to the Memorandum Opinion], Defendants waived any
argument related to 30 Del. C. § 5423 (c)(2), and ergo Plaintiff was not
required to raise it at Oral Argument or in his Answering Briefs.13

The Plaintiff was well aware that he was at oral argument to contest the Defendants’

case-dispositive motions to dismiss. By failing to refer to Section 5423, under the

circumstances presented, he has waived any claim for relief under the statute. Oddly,

although he argues at length in the Speaking Motion that my finding of waiver was

unfair, he still has not elucidated his argument that the Dog Park is illegal under that

section. I remain unable to adjudicate his argument, whatever it may be. 30 Del C.

§ 5423 provides, in part:

It is intended that property acquired with funds from the Endowment
Account shall remain in public outdoor recreation and conservation use
in perpetuity. Said property may not be converted to other uses without
a subsequent act of the General Assembly. If the General Assembly
approved the sale of any project or portion thereof, the State shall

13
Speaking Motion, at 22.
9
 receive its pro rata share of net sale income. Said funds shall be
deposited in the Endowment Account to be immediately available for
other projects.14

It is simply not obvious to me how the use of the leased property as a dog park

violates this language. Even if reargument were otherwise appropriate here, it would

be unavailing.

C. Plaintiff’s Remaining Contentions in the Speaking Motion

Lechliter contends that I reached incorrect results in the Memorandum

Opinion, as follows:

 “[Contrary to the Memorandum Opinion,] Plaintiff clearly established that
DNREC acted outside of the scope of its legislative authority in amending and
granting an easement for the use of Open Space as an access road . . . .”15
 “The Court’s bench ruling invoking laches” was incorrect.16
 “[Contrary to the Memorandum Opinion,] Plaintiff was an intended
beneficiary of the Lease” between DNREC and Lewes, and had standing to
enforce the lease.17
 “The Court ruled erroneously that the [Lewes Mayor and City Council’s]
approval of the Dog Park was a legislative action.”18

I have reviewed these arguments closely. Lechliter argues passionately that I have

gotten these rulings wrong. He does not point to a misapprehension of the law or

facts, however; rather, he simply resubmits the arguments that I have already

14
30 Del. C. § 5423(c)(2).
15
Speaking Motion, at 14.
16
Id. at 30 (emphasis in original). I note that the Speaking Motion is untimely with respect to this
ruling.
17
Id. at 35.
18
Id. at 40.
10
rejected. It is not the purpose of a motion under Rule 59(f) to relitigate or rehash

issues already addressed. Lechliter may be correct that I have erred; that is what

appeals are for. Once this matter is final, Lechliter may take whatever appeal he

feels is appropriate. The motion for reargument, however is denied.

To the extent the foregoing requires an order to effect, IT IS SO ORDERED.

Sincerely,

/s/ Sam Glasscock III

Sam Glasscock III

11