Delta Eta Corporation v. City of Newark

IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

DELTA ETA CORPORATION, )
)
Plaintiff, )
)
v. ) C.A. No. 2021-1106-MTZ
)
CITY OF NEWARK, a municipal )
corporation of the State of Delaware, )
and MAYOR & COUNCIL of the City )
of Newark, JERRY CLIFTON, JOHN )
SUCHANEC, and JAY BANCROFT, )
)
Defendants. )

MEMORANDUM OPINION
Date Submitted: September 9, 2022
Date Decided: February 2, 2023

Richard L. Abbott, ABBOTT LAW FIRM, Wilmington, Delaware, Attorney for
Plaintiff Delta Eta Corporation.

Max B. Walton, Lauren P. DeLuca, and Erica K. Sefton, CONNOLLY
GALLAGHER LLP, Wilmington, Delaware, Attorneys for Defendants City of
Newark, Mayor & Council of the City of Newark, Jerry Clifton, John Suchanec, and
Jay Bancroft.

ZURN, Vice Chancellor.
 A fraternity chapter’s housing corporation owns a residence in the City of

Newark. In August 2021, the housing corporation applied for a special use permit1

that would allow the residence to be used as the chapter’s fraternity house. The

housing corporation obtained a favorable recommendation from the city’s planning

and development department and proceeded to a hearing before the city council.

After the hearing, three city council members voted in favor of approving the special

use permit, and three voted against. Because the housing corporation needed a

majority vote to receive the permit, the permit application was not approved.

The housing corporation sued in this Court, seeking to compel the city council

to issue the permit and prevent the council from relying on its denial. The housing

corporation contends the city council did not comply with the applicable municipal

zoning ordinance, and that the council members who voted against the permit

exhibited anti-fraternity biases and failed to articulate sufficient reasons to support

their votes. The housing corporation also brought a claim under 42 U.S.C. § 1983

(“Section 1983”), asserting a violation of a right of intimate association with the

fraternity chapter and seeking injunctive relief.

1
The terms “special use permit” and “conditional use permit” are generally synonymous.
See 2 Patricia E. Salkin, American Law of Zoning § 14:1 (5th ed. 2008) (“The terms ‘special
use permit,’ ‘special exception,’ ‘development permit,’ and ‘conditional use permit’ are
often used interchangeably.”). The City of Newark municipal code uses the term “special
use permit,” so I use that term throughout this decision.
2
 The defendants moved to dismiss the complaint for lack of subject matter

jurisdiction. This opinion concludes the Court lacks subject matter jurisdiction over

the claims directly challenging the denial of the special use permit application.

Contrary to the housing corporation’s assertions, this Court does not have subject

matter jurisdiction over all cases involving zoning or all cases addressing special use

permit decisions. And careful examination of the housing corporation’s allegations

reveals that the city council acted in a quasi-judicial capacity when it denied the

special use permit, and so a writ of certiorari in our sister courts of law is available

and affords an adequate remedy. It follows that this Court of equity lacks subject

matter jurisdiction over the housing corporation’s state law claims.

Additionally, as to the Section 1983 claim, the complaint adequately pleads

only that the housing corporation was the fraternity members’ prospective landlord.

That relationship is not protected by our Constitution’s right to intimate association

and cannot form the basis of a Section 1983 claim. The housing corporation failed

to plead any injury and therefore its Section 1983 claim is dismissed.

Finally, the housing corporation also moved for sanctions on the basis that the

defendants’ arguments were legally frivolous. As it turns out, they were not. The

housing corporation’s motion for sanctions is denied.

3
 I. BACKGROUND2

Nonparty Pi Kappa Alpha is a national fraternity with a chapter at the

University of Delaware. This opinion refers to that chapter as “PiKA.” Plaintiff

Delta Eta Corporation (“Delta Eta”) is a not-for-profit organization and “the housing

corporation for [PiKA].”3 Delta Eta owns property located within the city limits of

Newark, Delaware, which is improved with a residence (the “House”). It desired to

use the House “as a fraternity house and related facilities starting in Fall 2022.”4 The

property was, and still may be, used as a treatment facility.

2
The facts are drawn from Delta Eta’s Amended Verified Complaint, the documents
integral to it, and those incorporated by reference. See Wal-Mart Stores, Inc. v. AIG Life
Ins. Co., 860 A.2d 312, 320 (Del. 2004). This includes the Newark City Council’s meeting
minutes and the report submitted by Newark’s Planning and Development Department.
Delta Eta objects to the Court’s consideration of an unspecified document, arguing that the
Court can consider only the allegations in its Amended Verified Complaint and documents
that are attached or referred to in the that complaint. D.I. 33, at 21, 39 [hereinafter “Ans.
Br.”]. The best I can tell, Delta Eta is referring to the city council’s meeting minutes from
the hearing concerning its special use permit application. Many of the quotes appearing in
the Amended Verified Complaint could be from either the hearing transcript or the meeting
minutes, as they appear verbatim in both. Compare, e.g., D.I. 24 ¶ 31 [hereinafter “Am.
Compl.”] (quoting city council members’ stated reasons for voting against the special use
permit application), with D.I. 25 [hereinafter “Op. Br.”], Ex. B at 24 [hereinafter “City
Council Minutes”].
I also take judicial notice of the City of Newark’s municipal code and its charter.
D.R.E. 202(d)(1) (“The court may, without request by a party, take judicial notice of . . .
the duly enacted ordinances and duly published regulations and determinations of
governmental subdivisions or agencies . . . of this State . . . .”).
3
Am. Compl. ¶¶ 1, 14.
4
Id. ¶ 17.
4
 The City of Newark (the “City”) is zoned at the municipal level.5 Property

within the City is divided up into districts, including different types of residential,

business, and industrial districts.6 The Code of the City of Newark (the “City Code”)

provides a list of acceptable uses for each type of district, and property generally

may only be used for those specified uses.7 The House is zoned RM, which allows

for multi-family dwellings, including boarding houses and garden apartments.8

The City Code also provides for the issuance of special use permits for certain

uses depending on the district.9 The City Council may issue special use permits only

for those special uses enumerated for each type of district.10 Fraternity houses are

an enumerated special use for RM districts.11 The City Code defines a “fraternity

and/or sorority house” as

5
See Newark C. § 32-5 [hereinafter “City Code”].
6
See id.
7
See, e.g., id. § 32-11(a) (specifying twenty-four acceptable uses of property in districts
zoned “RM,” and stating that “no building or premises shall be used and no building shall
be erected or altered which is arranged, intended, or designed to be used, except for one or
more” of those uses).
8
Id. § 32-11(a)(1) (allowing property in districts zoned RM to be used as garden
apartments); id. § 32-11(a)(3) (allowing property in districts zoned RM to be used as
boarding houses).
9
See, e.g., id. § 32-11(b); see also id. § 32-78(a) (setting forth requirements for granting
special use permits).
10
See, e.g., id § 32-11(b) (enumerating permitted special uses).
11
Id. § 32-11(b)(14).
5
 dwelling units used exclusively by a society of either male or female
university or college students having a Greek letter name or other
designation and sharing common or professional interests, and with the
appropriate approval and/or sanction from the University of Delaware
or a sponsoring national fraternal organization to operate as a fraternity
or sorority.12

The City Council determines which applicants are entitled to receive special

use permits by applying the criteria set forth in the City Code.13 Specifically, before

issuing a special use permit, the City Council must hold “a duly advertised hearing,”

and the applicant must demonstrate that the special use will not:

a. Affect adversely the health or safety of person(s) residing or
working within the City of Newark boundaries or within one mile
of the City of Newark boundaries and within the State of Delaware;
b. Be detrimental to the public welfare or injurious to property or
improvements within the City of Newark boundaries or within one
mile of the City of Newark boundaries and within the State of
Delaware; and
c. Be in conflict with the purposes of the comprehensive development
plan of the city.14

The City Code provides that “[i]n granting a special use permit the [City Council]

shall designate such conditions in connections therewith as will, in its opinion, assure

that the use will conform to the foregoing requirements and that such use will

continue to do so.”15 When considering whether to grant a fraternity house special

12
Id.
13
See id. § 32-78(a).
14
Id. § 32-78(a)(1).
15
Id. § 32-78(a).
6
use permit, the City Code requires that the City Council “consider a written report

prepared by the planning and development director, or the city manager’s designee,

in evaluating [the] special use permit request.”16

A. Delta Eta Applies For A Special Use Permit, And The City’s
Planning And Development Department Recommends That
The City Council Grant It.

On August 3, 2021, Delta Eta applied for a special use permit to use the House

as PiKA’s fraternity house (the “Special Use Application”), which would allow

Delta Eta to rent the House exclusively to PiKA members.17 Although Delta Eta

applied for the permit, the permit itself would be held by PiKA and would not be

transferable to any other fraternity or sorority.18

Delta Eta also applied for a separate rental permit “allowing 18-person

occupancy, which it is entitled to as a matter of right.”19 Delta Eta states that “[a]

fraternity student residence only differs from a regular student residence in one

respect: assertion with a University recognized fraternity affiliated with a national

fraternity organization—i.e. fraternity associational status.”20

16
Id. § 32-11(b)(14)(c).
17
See id. § 32-11(b)(14).
18
See id. § 32-11(b)(14)(e); D.I. 31, Ex. 2, Ex. A at 3 [hereinafter “Report”] (explaining
that the permit would be held by PiKA, not Delta Eta).
19
Am. Compl. ¶ 11.
20
Id. ¶ 41.
7
 The first step in evaluating a special use permit application to use property as

a fraternity house is a review by the City’s Planning and Development Department.21

On September 1, the Planning and Development Department “issued a written report

which conditionally recommended approval” of the Special Use Application (the

“Report”).22 The Report stated that “the application for the [PiKA] fraternity at [the

House] does, or can, meet all the requirements of the [applicable] ordinance.”23 The

Report also provided:

The City Solicitor emphasizes to Council that the permit holder will be
[PiKA], and not the property owner (Delta Eta Corporation). If Council
revokes or suspends the special use permit, then no fraternal
organization will be allowed at this location unless a new permit is
issued to a fraternal organization, or the suspension is lifted. The
special use is for the specific fraternity to operate and reside at the
[House]. Therefore, it is recommended that a condition of the special
use permit clearly state that if [PiKA] vacates the premises at [the
House] for any reason, and the owner (Delta Eta Corporation) wishes
to lease to a different fraternity or sorority . . ., the fraternity or sorority
must apply for new special use permit. Furthermore, if [PiKA] wishes
to relocate or expand to a different property, [PiKA] must apply for a
new special use permit.24
The Report further noted that the City Council would be able to “suspend the special

use permit if [PiKA] violates the terms and conditions set by the Council,”25 and that

21
See City Code § 32-11(b)(14)(c); see also id. § 2-89(a).
22
Am. Compl. ¶ 19; Report.
23
Report at 3.
24
Id.
25
Id. at 4.
8
the City of Newark Police Department “does not support the expansion of fraternities

and sororities into residential neighborhoods, and does not support the approval of

[the Special Use Application].”26 Nevertheless, the Report concluded: “the Planning

and Development Department recommends that City Council approve the special

use permit [PiKA] to operate and reside at [the House].”27

B. The City Council Does Not Approve The Special Use Permit.

The next step in the life of a special use application is a hearing and vote by

the City Council.28 A majority vote is required to grant the permit.29 The City

Council held that hearing on October 25, 2021. During the hearing, the Report was

discussed, and the Planning and Development Department verbally advised in favor

of granting Delta Eta’s special use permit. Several individuals spoke at the hearing,

including Delta Eta’s counsel and PiKA’s president.30

Six City Council members were present during the hearing: Mayor Jerry

Clifton, John Suchanec, Dr. Jay Bancroft, Dendolyn Creecy, Jason Lawhorn, and

Deputy Mayor Travis McDermott.31 Three members voted in favor of approving the

26
Id.
27
Id. at 5.
28
See City Code § 32-11(b) (requiring hearing held in accordance with Section 32-78 prior
to issuance of special use permits).
29
Newark C. (Charter) art. III, § 312.
30
City Council Minutes at 15–17.
31
Id. at 1.
9
Special Use Application, and three—defendants Clifton, Suchanec, and Bancroft

(together, the “Individual Defendants”)—voted against it, so the Special Use

Application was not approved. According to the meeting minutes, Bancroft “voted

no because of detrimental actions, property values, and quality of life in the area;”

Suchanec “voted no because he believed that the expansion of the fraternity into the

City would negatively affect the quality of life to the surrounding residents and

believed it would also impact the Police Department;” and Clifton “voted no based

on the comments stated by Mr. Suchanec.”32

C. Litigation Ensues.

Delta Eta filed its original complaint in this action on December 22, 2021.33

On April 28, 2022, it filed an amended complaint (the “Amended Complaint”),

naming as defendants the City of Newark, “the Mayor & Council of the City of

Newark,” and the Individual Defendants (which are the Mayor and two other

Council members) (collectively, the “Defendants”).34 The Amended Complaint

asserts three counts against all Defendants on the basis that the Individual

Defendants failed to articulate sufficient reasons for denying the Special Use

Application and otherwise voted based on preconceived notions about fraternities.

32
Id. at 24.
33
D.I. 1.
34
Am. Compl.
10
Count I requests a permanent injunction (1) to “prohibit the City and Mayor &

Council from relying on the Special Use Denial based upon its invalidity as a matter

of law”; and (2) “mandating that the [Special Use] Application be approved since it

met all applicable Zoning Code criteria.”35 Count II seeks a declaratory judgment

that (1) “the Special Use Denial is invalid”; and (2) “Delta Eta is entitled to approval

of the Application and issuance of the Special Use Permit as a matter of law.”36

Count III asserts a Section 1983 claim for violations of Delta Eta’s right of freedom

of association with PiKA.37

On May 10, 2022, Defendants filed a motion to dismiss pursuant to Court of

Chancery Rules 12(b)(1) and 12(b)(6), asserting the Court lacks subject matter

jurisdiction over Delta Eta’s state law claim claims, that Delta Eta lacks standing to

bring its claims, that Delta Eta has failed to state a Section 1983 claim, and that the

Section 1983 claim fails because the Individual Defendants have quasi-judicial

immunity.38 Delta Eta first responded with a June 7 motion for sanctions under

Court of Chancery Rule 11, asserting that Defendants’ standing and subject matter

35
Id. ¶ 60.
36
Id. ¶ 63.
37
Id. ¶¶ 64–68.
38
Op. Br.
11
jurisdiction arguments are legally frivolous.39 It filed its opposition to the motion to

dismiss on June 10.40

The parties briefed both motions.41 I heard oral argument on September 2,42

Delta Eta and Defendants filed sur-replies on September 7 and September 8,

respectively,43 and Delta Eta filed a second sur-reply on September 9.44

II. ANALYSIS

This opinion concludes that the Court lacks subject matter jurisdiction over

Delta Eta’s state law claims: Delta Eta’s request for an injunction falls short of

invoking this Court’s equitable jurisdiction both because it has not sufficiently pled

the need for an injunction, and because a writ of certiorari provides an adequate

remedy at law. Delta Eta has failed to plead a constitutionally protected relationship

with PiKA or its members, so its Section 1983 claim is dismissed. Defendants

prevailed; their arguments were not frivolous, and so Delta Eta’s Rule 11 motion is

denied.

39
D.I. 29.
40
Ans. Br.
41
D.I. 31; D.I. 35.
42
D.I. 40; D.I. 44.
43
D.I. 41; D.I. 42.
44
D.I. 43. Because the sur-replies were filed without leave, I do not consider them in
adjudicating the motions before me. See Ct. Ch. R. 171(a) (“Unless otherwise ordered, no
additional briefs or letters containing argument shall be filed without first procuring Court
approval.”).
12
 A. This Court Lacks Subject Matter Jurisdiction Over Counts I
and II.
“This Court will dismiss an action under Rule 12(b)(1) if the record, which

may include evidence outside of the pleadings, indicates that the Court does not have

subject matter jurisdiction over the plaintiff’s claim.”45 “When considering a motion

to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction, I must take the

allegations in the complaint as true and construe all reasonable inferences in the non-

movant’s favor.”46 “The burden of establishing the Court’s subject matter

jurisdiction rests with the party seeking the Court’s intervention.”47

Defendants have moved to dismiss on the basis that this Court lacks subject

matter jurisdiction. They argue that the City Council acted in a quasi-judicial

capacity in denying the Special Use Application, and so a writ of certiorari is an

available and adequate remedy at law.

Delta Eta’s response appears to make two different arguments, both of which

expressly rely on the premise that there is no meaningful legal distinction between

zoning decisions and special use permit decisions. First, it argues that “[t]his Court

has exercised jurisdiction over actions of this sort over the past 60+ years,” which,

45
K&K Screw Prod., L.L.C. v. Emerick Cap. Invs., Inc., 2011 WL 3505354, at *6 (Del.
Ch. Aug. 9, 2011).
46
Schwaber v. Margalit, 2022 WL 2719952, at *2 (Del. Ch. July 13, 2022).
47
Ropp v. King, 2007 WL 2198771, at *2 (Del. Ch. July 25, 2007).
13
to Delta Eta, either evidences or dictates that this Court has jurisdiction over all

challenges to zoning decisions.48 Second, Delta Eta contends that this Court has

subject matter jurisdiction over any case relating to zoning that seeks injunctive

relief.49 This argument is based on Delta Eta’s theory that the Court of Chancery

and the Superior Court share concurrent jurisdiction over zoning disputes, and that

a plaintiff can choose to litigate in this Court through the mere request for injunctive

relief.50

Both arguments evince a misunderstanding of the limitations on this Court’s

jurisdiction. It is true that this Court has exercised subject matter jurisdiction over

cases arising from zoning decisions51 as well as the approval or denial of special use

permit applications.52 While pointing to cases in which this Court has exercised its

48
Ans. Br. at 28–29; id. at 29 (“The correct analytical methodology is to look at the nature
of the case – a zoning decision challenge - [sic] to determine whether this Court possesses
jurisdiction.”); id. at 31 (“All that matters is that it is a zoning decision and that this Court
has taken cognizance over challenges to such decisions for decades on end.”). As support,
it cites what it describes as “[t]hirty-nine (39) decisions . . . [that] show that this Court has
historically exercised jurisdiction over zoning cases like this action.” Id. at 33; id. at Ex. B
(citing thirty-nine decisions).
49
Ans. Br. at 29 (“This Court has not exercised jurisdiction over zoning decisions because
they are made in a legislative capacity versus a quasi-judicial capacity. It takes jurisdiction
over zoning cases which request injunctive relief – period, end of analysis.”).
50
Id. at 35 (“This Court and the Superior Court have concurrent jurisdiction over actions
of this sort.”).
51
See, e.g., Citizens’ Coal., Inc. v. Sussex Cnty. Council, 2004 WL 1043726 (Del. Ch.
Apr. 30, 2004).
52
See, e.g., Coker v. Kent Cnty. Levy Ct., 2008 WL 5451337 (Del. Ch. Dec. 23, 2008);
Gibson v. Sussex Cnty. Council, 877 A.2d 54 (Del. Ch. 2005).
14
jurisdiction over a similar case may be a helpful starting point,53 it is not dispositive

or the end of the analysis, particularly where those cases did not contain explicit

analyses of whether or why the Court had subject matter jurisdiction over the claim.

This is because “[e]quitable jurisdiction is a predicate issue for every matter in this

court of limited jurisdiction.”54

This Court must conclude that a plaintiff’s claim falls into one of three buckets

in order to exercise subject matter jurisdiction. “First, jurisdiction exists if a plaintiff

states an equitable claim. Second, jurisdiction exists if a plaintiff requests equitable

relief and there is no adequate remedy at law. Third, jurisdiction exists by statute.”55

If any of the plaintiff’s claims falls into one of these categories, the Court may

choose to exercise its equitable clean-up jurisdiction over the remaining claims, even

if it would not otherwise have jurisdiction over those claims.56 A bucket-by-bucket

analysis of Delta Eta’s state law claims reveals that this Court lacks subject matter

jurisdiction over them, notwithstanding its request for injunctive relief.

53
See, e.g., Lynch v. City of Rehoboth, 2004 WL 1152270, at *2 (Del. Ch. May 17, 2004).
54
Preston Hollow Cap. LLC v. Nuveen LLC, 216 A.3d 1, 9 (Del. Ch. 2019).
55
Delawareans for Educ. Opportunity v. Carney, 2018 WL 4849935, at *5 (Del. Ch.
Oct. 5, 2018) (footnotes omitted)).
56
See id.
15
 1. This Court Does Not Have Statutory Jurisdiction Over
Delta Eta’s State Law Claims Seeking Injunctive And
Declaratory Relief.

The first bucket is statutory. The General Assembly has enacted various

statutes conferring jurisdiction on this Court for a range of matters.57 Where such a

statute governs the claim at issue, this Court may exercise jurisdiction even where

the plaintiff is seeking only damages or some other legal remedy.58 Delta Eta has

not pointed to any statute conferring on this Court jurisdiction over special use

permit approvals or denials of zoning decisions by municipal councils, and the Court

is aware of none.59

2. Delta Eta’s State Law Claims Do Not Assert Equitable
Rights.

The second method of invoking this Court’s jurisdiction is by asserting an

equitable right, which is “a right of purely equitable origin that was not traditionally

57
Among the more familiar statutes are 8 Del. C. § 111 and 8 Del. C. § 220. But there are
many others. See, e.g., 10 Del. C. § 348 (disputes involving deed covenants or restrictions);
5 Del. C. § 139 (appeals from state Bank Commissioner orders); 12 Del. C. § 1167 (appeals
from Tax Appeal Board decisions); 16 Del. C. § 4102 (appeals from Department of
Agriculture “definitions and standards of identify for frozen desserts” and “regulations for
the labeling of any frozen desserts,” among other things).
58
See, e.g., S’holder Representative Servs. LLC v. DC Cap. P’rs Fund II, L.P., 2022 WL
439011 (Del. Ch. Feb. 14, 2022) (exercising subject matter jurisdiction over a breach of
contract claim seeking monetary damages).
59
To be sure, there are statutes that touch on related matters. For example, a statute grants
this Court jurisdiction “on petition of the [municipal] planning commission established
hereunder to enforce this chapter and any ordinance or bylaws made thereunder and may
restrain by injunction violations thereof.” 22 Del. C. § 710. But that statute does not grant
jurisdiction over claims by applicants.
16
recognized at common law.”60 Among such rights are “fiduciary rights and

obligations arising in the context of trusts, corporations, guardianships, and the

administration of estates.”61 Jurisdiction over equitable rights is enumerated in 10

Del. C. § 341, which states that “[t]he Court of Chancery shall have jurisdiction to

hear and determine all matters and causes in equity.”62 The availability of an

adequate remedy at law is irrelevant to the Court’s subject matter jurisdiction over

claims enforcing equitable rights.63 In other words, the focus is on the right being

enforced, not on the remedy being sought.

A party challenging a zoning decision is seeking to enforce rights arising from

statute. The General Assembly statutorily delegated the legislative authority to enact

zoning ordinances to counties, which in turn may zone only through ordinances,64

60
Donald Wolfe & Michael Pittenger, Corporate and Commercial Practice in the Delaware
Court of Chancery § 2.03[b][1], at 2-23 to -24 (2d ed. 2022) [hereinafter “Wolfe &
Pittenger”].
61
Id. § 2.03[b][1], at 2-24.
62
10 Del. C. § 341.
63
Jacobson v. Ronsdorf, 2005 WL 29881, at *3 (Del. Ch. Jan. 6, 2005) (“When the action
involves a claim for relief predicated on a cause of action arising only in equity, it is without
dispute that this court has jurisdiction and the court need not inquire into whether the
plaintiff lacks an adequate remedy at law.”).
64
9 Del. C. § 1153(a) (New Castle County); 9 Del. C. § 4110(h) (Kent County) (“All
actions of the county government which shall have the force of law shall be by
ordinance.”); 9 Del. C. § 7002(l) (Sussex County) (same); see also Conner v. Shellburne,
Inc., 281 A.2d 608, 609 (Del. 1971) (“It is required that all zoning changes be made by the
[New Castle] County Council by ordinance.”); Green v. Cnty. Council of Sussex Cnty., 415
A.2d 481, 483 (Del. Ch. 1980) (“A rezoning has the force of law.”).
17
and to municipalities.65 Those zoning ordinances may provide for special uses,

which are typically considered consistent with and part of the applicable zoning

ordinance.66 Generally, cases involving special use permit applications raise

challenges as to whether the approval or denial complied with the applicable

ordinance or the delegating statutes, including whether an adequate record exists to

demonstrate compliance with those laws.67 Claims to enforce such legislative or

statutory rights are legal in nature, not equitable.68

So too here. Delta Eta argues that the Special Use Application satisfied the

criteria set forth in the City Code and that those who voted against it relied on

considerations falling outside the City Code’s parameters. The rights asserted by

Delta Eta arise by ordinance, and ultimately by statute. Thus, Delta Eta’s claims are

legal, not equitable.69 This Court does not have inherent or exclusive equitable

jurisdiction over Delta Eta’s state law claims.

65
22 Del. C. § 301.
66
See Steen v. Cnty. Council of Sussex Cnty., 576 A.2d 642, 646 (Del. Ch. 1989).
67
See, e.g., Tidewater Utils., Inc. v. Sussex Cnty. Council, 1986 WL 10082 (Del. Ch.
Sept. 17, 1986).
68
Kraft v. WisdomTree Invs., Inc., 145 A.3d 969, 984–85 (Del. Ch. 2016) (reasoning claims
arising under statute and the Delaware Constitution were “inherently legal in nature”).
69
Delta Eta’s Section 1983 claim likewise arises from statute. See 42 U.S.C. § 1983.
18
 3. Delta Eta’s State Law Claims Do Not Properly Seek
Equitable Relief.
The third bucket of this Court’s equitable jurisdiction includes claims that are

legal in nature, but which seek equitable relief where a legal remedy “is not fully

sufficient to protect or redress the resulting injury under the circumstances.” 70 In

these cases, a plaintiff seeks a remedy exclusive to courts of equity, such as an

injunction71 or specific performance.72 But seeking an equitable remedy alone is

70
Wolfe & Pittenger § 2.03[b][1], at 2-24; In re Wife, K., 297 A.2d 424, 426 (Del. Ch.
1972) (“An adequate remedy at law is one which (1) is as complete, practical and as
efficient to the ends of justice and its prompt administration as the remedy in equity, and
(2) is obtainable as of right.”). Jurisdiction to hear such claims is conferred by 10 Del. C.
§ 342, which provides that “[t]he Court of Chancery shall not have jurisdiction to determine
any matter wherein sufficient remedy may be had by common law, or statute, before any
other court or jurisdiction of this State.”
When the Court of Chancery has jurisdiction over a legal claim because the plaintiff
seeks an equitable remedy, the Court of Chancery is sometimes referred to as having
“concurrent jurisdiction” over that claim. See, e.g., Glanding v. Indus. Tr. Co., 45 A.2d
553, 558–60 (Del. 1945); IBM v. Comdisco, Inc., 602 A.2d 74, 78 n.6 (Del. Ch. 1991);
Wolfe & Pittenger § 2.03[b][1], at 2-24 to -25. But as a leading Court of Chancery practice
treatise explains, there cannot “exist[] a jurisdictional territory in which equity and the
common law are equivalent and overlapping,” because “equity jurisdiction stops where
sufficient legal remedies begin.” Wolfe & Pittenger § 2.03[b][1], at 2-25. If a claim
satisfies this third category, only the Court of Chancery has jurisdiction over it.
71
Atl. Richfield Co. v. Tribbitt, 1975 WL 1260, at *2 (Del. Ch. May 30, 1975) (“Chancery
can do this through injunction; the Superior Court cannot. I feel that this Court does have
jurisdiction.”).
72
1 John Norton Pomeroy, Pomeroy’s Equity Jurisprudence § 221b, at 378 (5th ed. 1941)
(“The jurisdiction to enforce performance of contracts specifically is exclusive, for the
remedy itself is most distinctively equitable and completely beyond the judicial methods
of the law courts . . . .”).
19
insufficient—the plaintiff must also lack an adequate remedy at law.73 That is, where

the asserted basis for jurisdiction is the request for an equitable remedy, equitable

subject matter jurisdiction is not available if any remedy available from a court of

law will adequately redress the injury.

Delta Eta has requested a declaratory judgment enforced by a forward-looking

injunction “prohibit[ing] the City and Mayor & Council from relying on the” denial

of the Special Use Application, and “mandating that the Application be approved

since it met all applicable Zoning Code criteria.”74 Delta Eta argues this request for

injunctive relief, alone, warrants this Court’s subject matter jurisdiction.

Delta Eta is incorrect, for two reasons. First, a plaintiff may not invoke the

Court’s jurisdiction through the “incantation of magic words.”75 A plaintiff seeking

73
See Intel Corp. v. Fortress Inv. Grp., LLC, 2021 WL 4470091, at *5–6 (Del. Ch.
Sept. 30, 2021); see also e.g., W. Willow-Bay Ct., LLC v. Robino-Bay Ct. Plaza, LLC, 2007
WL 3317551, at *12 (Del. Ch. Nov. 2, 2007) (“[S]pecific performance is particularly
appropriate for enforcing contracts for the sale of real property. The party seeking specific
performance must show that there is no adequate remedy at law.” (footnote omitted));
Osborn ex rel. Osborn v. Kemp, 991 A.2d 1153, 1158 (Del. 2010) (stating a party may not
obtain specific performance unless she lacks an adequate remedy at law); see also 1 John
Norton Pomeroy, Pomeroy’s Equity Jurisprudence § 221b, at 378–79 (5th ed. 1941)
(explaining that specific performance is available “only in those classes of cases in which,
according to the views taken by the equity court, the legal remedy of compensatory
damages is, from its essential nature, insufficient, and fails to do complete justice between
the litigant parties”).
74
Am. Compl. ¶ 60.
75
McMahon v. New Castle Assocs., 532 A.2d 601, 603 (Del. Ch. 1987); see also IBM, 602
A.2d at 78 (stating the Court “will not permit a suit to be brought in Chancery where a
complete legal remedy otherwise exists but where the plaintiff has prayed for some type of

20
to invoke the Court’s subject matter jurisdiction by asserting the need for a forward-

looking injunction must demonstrate a reasonable apprehension of future harm.76

Delta Eta has not pled—or even attempted to plead—that, absent that injunction,

there is a reasonable apprehension of harm flowing from a municipal body

implementing a decision that a court has declared was invalid.77

traditional equitable relief as a kind of formulaic ‘open sesame’ to the Court of Chancery”);
Strickler v. Sussex Life Care Assocs., 541 A.2d 587, 589 (Del. Super. 1987) (“A court of
equity should, when required, go beyond a facade of prayers in order to determine whether
the relief sought is actually equitable or legal.”).
76
In re COVID-Related Restrictions on Religious Servs., 285 A.3d 1205, 1234 (Del. Ch.
2022) (“To demonstrate a basis for equitable jurisdiction, a plaintiff must establish ‘a
reasonable apprehension of risk of future breaches of a duty of a predictable type.’ An
unsupported, subjective concern about a future harm is insufficient to meet this test.”
(citation omitted) (quoting Thorpe v. CERBCO, Inc., 1996 WL 560173, at *4 (Del. Ch.
Sept. 13, 1996)); Organovo Hldgs., Inc. v. Dimitrov, 162 A.3d 102, 114 (Del. Ch. 2017)
(reasoning “the Complaint’s request for an injunction did not provide a basis for subject
matter jurisdiction” because “[w]hen the Company filed suit, there was no ‘reason to
believe that [the defendant] continue his wrongful course of conduct.’” (quoting Weiner v.
Miller, 1990 WL 54915, at *1–2 (Del. Ch. Apr. 27, 1990)); State ex rel. Brady v. Pettinaro
Enters., 870 A.2d 513, 536 (Del. Ch. 2005) (“The mere fact that the Attorney General has
asked for an injunction does not suffice to state a claim within this court’s equitable
jurisdiction. Rather, a claim for injunctive relief must be supported by the allegation of
facts that ‘create a reasonable apprehension of a future wrong.’” (quoting McMahon, 532
A.2d at 605–06)).
77
In fact, Delaware law presumes the opposite: that government agencies, of all actors,
are likely to follow judicial declarations. In re COVID-Related Restrictions, 285 A.3d at
1233; Crown Castle Fiber LLC v. City of Wilm., 2021 WL 2838425, at *5 (Del. Ch.
July 8, 2021) (“Prospective injunctive relief is generally unavailable where the plaintiff’s
proposed injunction merely seeks to prospectively compel a government to conform with
the interpretation of the law reflected in the proposed declaratory judgment.”).
21
 And second, a request for an injunction will not invoke this Court’s subject

matter jurisdiction if the plaintiff has an adequate remedy at law.78 In this context,

where a plaintiff is seeking a judicial decree to correct a particular decision by a

governmental officer or body, available remedies at law may include a remedial writ

or a declaratory judgment.79

a. A Writ Of Certiorari Is Available And Adequate.

Defendants maintain a writ of certiorari is available to Delta Eta and would

provide full and fair relief. In briefing, Delta Eta conceded the availability of a writ

of certiorari from the Superior Court and did not contest that it would afford an

adequate remedy: Delta Eta urged instead that this Court could maintain subject

matter jurisdiction concurrently with the Superior Court.80 At the hearing, Delta Eta

suggested that a writ of certiorari was inadequate because that review would be

78
See 10 Del. C. § 342; see also, e.g., Hillsboro Energy, LLC v. Secure Energy, Inc., 2008
WL 4561227, at *2–3 (Del. Ch. Oct. 3, 2008) (holding the Court lacked subject matter
jurisdiction over a breach of contract claim seeking injunctive relief because a legal remedy
would afford an adequate redress).
79
Mock v. Div. of State Police, Dep’t of Safety & Homeland Sec., 2022 WL 1744439, at
*5–6 (Del. Ch. May 31, 2022).
80
See Ans. Br. at 31 (“So Rezonings may be challenged in Superior Court by common law
certiorari, but this Court has taken cognizance over dozens of such challenges.”); id. at 32
(“The mere fact that Delta Eta could have potentially challenged the Zoning Use Denial
via common law certiorari in the Superior Court does not, ipso jure, divest this Court of
jurisdiction over zoning challenges cases like the instant action.”); id. at 35 (“This Court
and the Superior Court have concurrent jurisdiction over actions of this sort.”).
22
limited to the record and under a limited standard of review, whereas Delta Eta

would prefer a more lenient review supported by discovery.81

For purposes of a thorough analysis, I consider first the availability of a writ

of certiorari, which turns on whether the City Council acted in a quasi-judicial

capacity, rather than a legislative capacity, in denying the Special Use Application.

Then I consider the writ’s adequacy. I find it is both available and adequate, and

therefore precludes this Court from exercising subject matter jurisdiction.

i. The Writ of Certiorari

During the Middle Ages, English common law was administered through a

system of writs, and a plaintiff could obtain judicial relief only by invoking one of

81
D.I. 44 at 43 (“The case is largely based on the record. I’ve conceded all of that. But
you are allowed to take discovery. . . . [Any discovery is] just to potentially supplement
the record with facts that were mentioned during the process and then to provide documents
to back that up. . . . So it’s limited discovery, admittedly. But you don’t get that in a
certiorari [sic]. You also have a certiorari standard of review that is extremely stringent.
It is not as broad of a standard of review as is available in this Court. . . . That’s why I
come to this Court, because I know that you are handcuffed and blindfolded in a certiorari
case in Superior Court and you are not in this Court.”).
Typically, arguments raised for the first time at oral argument are deemed waived.
See Asbestos Workers Loc. 42 Pension Fund v. Bammann, 2015 WL 2455469, at *20 (Del.
Ch. May 21, 2015). But arguments concerning subject matter jurisdiction cannot be
waived. See Carney, 2018 WL 4849935, at *11. And while it may be appropriate at times
to request supplemental briefing in response to belated subject matter jurisdiction
arguments as a matter of fairness, I ultimately conclude Delta Eta’s arguments fail to
demonstrate a writ of certiorari would afford inadequate redress, so those fairness concerns
are not implicated here. See Jung v. El Tinieblo Int’l, Inc., 2022 WL 16557663, at *9 (Del.
Ch. Oct. 31, 2022) (“Waiver is fundamentally an issue of fairness . . . .”).
23
those writs.82 “A certiorari proceeding involves one of the oldest common law writs,

tracing its origins to the Norman Kings.”83 “In England, the writ was used primarily

by judges of the King’s Bench to supervise the conduct of inferior court officers.”84

A writ of certiorari allows “a higher court to review the conduct of a lower tribunal

of record.”85 It “is simply a form that calls up, for review, the record from the lower

court or tribunal.”86

The rigid and formalistic writ-based approach to the law eventually proved

inadequate to address the needs of a changing society.87 Such shortcomings gave

rise to courts of equity, which “supplement[ed] the common law” and “mitigate[d]

its severity,” and “generally [filled] the growing gap between the rigid and rigorous

common law on the one hand, and the expanding universe of practical controversies

82
See XRI Inv. Hldgs. LLC v. Holifield, 283 A.3d 581, 630–37 (Del. Ch. 2022) (discussing
the origins of courts of equity); Wolfe & Pittenger § 2.02[a], at 2-3.
83
Shoemaker v. State, 375 A.2d 431, 436 (Del. 1977).
84
Id.
85
Christiana Town Ctr., LLC v. New Castle Cnty., 2004 WL 2821839, at *2 (Del. 2004);
1 Victor B. Woolley, Practice in Civil Actions and Proceedings in the Law Courts of the
State of Delaware §§ 894–96, at 623–25 (1906) [hereinafter “Woolley”] (explaining that a
writ of certiorari allows a higher court to review the record of a lower court for errors of
law); Maddrey v. Just. of Peace Ct. 13, 956 A.2d 1204, 1212 (Del. 2008) (explaining that
the Superior Court has the power to “issue common law writs of certiorari to all ‘inferior
tribunals’”).
86
Maddrey, 956 A.2d at 1213 (internal quotation marks omitted) (quoting Reise v. Bd. of
Bldg. App. of Newark, Del., 746 A.2d 271, 273 (Del. 2000)).
87
Wolfe & Pittenger § 2.02[a], at 2-3.
24
born of an increasingly sophisticated society on the other.”88 Between 1726 and

1736, the governor of the three counties of Delaware enacted statutes sometimes

collectively referred to as the Gordon Act.89 Through the Gordon Act, the Court of

Chancery was created and was vested with “all the general equity jurisdiction of the

High Court of Chancery of Great Britain as it existed prior to the separation of the

colonies,” and could not “hearand determineany cause where a sufficient remedy

exists at law.”90 This grant of jurisdiction was continued through each iteration of

our state Constitution, and forms the basis of this Court’s jurisdiction as it exists

today.

And today, writs are still legal remedies afforded only by courts of law.91 In

Delaware, writs of certiorari may be issued by the Superior Court, to the exclusion

of all other trial courts.92 In many cases, writs can provide an adequate remedy,

88
Id.
89
DuPont v. DuPont, 85 A.2d 724, 727 (Del. 1951); Woolley § 4, at 3; Wolfe & Pittenger
§ 2.02[b] at 2-4 & n.5 (explaining the exact date the Gordon Act was enacted is uncertain).
The Act’s full name is “An Act for the Establishing Courts of Law and Equity within this
Government [sic].” Id. at § 2.02[b], at 2-4 (alteration in original).
90
DuPont, 85 A.2d at 727.
91
Maddrey, 956 A.2d at 1212; see also 14 Am. Jur. 2d Certiorari § 2 (Jan. 2013 Update)
(“Certiorari is a law action.”).
92
10 Del C. § 562 (conferring on the Superior Court the power to issue writs of certiorari);
Maddrey, 956 A.2d at 1207 (“[T]he Superior Court has original and exclusive jurisdiction
among trial courts under the Delaware Constitution to issue common law writs of certiorari
to inferior tribunals . . . .”); see also Woolley § 896, at 624 (“As a broad general rule, a writ
of certiorari lies from the Superior Court to inferior tribunals . . . .”).
25
obviating the need for, and therefore the availability of, injunctive relief or another

equitable remedy. For example, where a plaintiff seeks to compel a government

official to perform a nondiscretionary act, a writ of mandamus will serve the same

function as an injunction.93 Similarly, where a governmental entity acts as a tribunal

(rather than a legislative body), a plaintiff may, under some circumstances, challenge

that decision through a writ of certiorari.

When reviewing a decision pursuant to a writ of certiorari, the court

“considers the record to determine whether the lower tribunal exceeded its

jurisdiction, committed errors of law, or proceeded irregularly.”94 In Christiana

Town Center, LLC v. New Castle County, the Delaware Supreme Court explained

each of these three grounds in greater detail:

93
See Mock, 2022 WL 1744439, at *9 (“Where mandamus is available, this Court’s
injunctive power is superfluous and therefore not available.”).
94
Christiana Town Ctr., 2004 WL 2921830, at *2.
26
 1. A decision will be reversed on jurisdiction grounds only if the record
fails to show that the matter was within the lower tribunal’s personal
and subject matter jurisdiction.
2. A decision will be reversed for an error of law committed by the
lower tribunal when the record affirmatively shows that the lower
tribunal has “proceeded illegally or manifestly contrary to law.”
3. A decision will be reversed for irregularities of proceedings if the
lower tribunal failed to create an adequate record to review.95

A writ of certiorari is available only where (1) the lower entity has acted in a

judicial or quasi-judicial capacity,96 (2) there is no other adequate remedy at law,97

and (3) there is no right to appeal.98 As explained, Delta Eta does not dispute that a

writ of certiorari is available, nor that the latter two elements are met here.99

Accordingly, whether a writ of certiorari is available to address the effective denial

of the Special Use Application depends on whether the City Council was acting in a

judicial or quasi-judicial capacity.

95
Id. at *2 (quoting Woolley § 939, at 651).
96
Dover Hist. Soc. v. City of Dover Plan. Comm’n, 838 A.2d 1103, 1106 (Del. 2003) (“The
common law writ of certiorari lies to review acts that are judicial or quasi-judicial in
nature.”); accord Anthony v. Bickley, 2014 WL 3943687, at *2 (Del. Super. Aug. 8, 2014);
Spencer v. Smyrna Bd. of Educ., 547 A.2d 614, 615–16 (Del. Super. 1988); Bramble v.
Dannemann, 1980 WL 6366, at *2 (Del. Ch. Jan. 10, 1980); Del. Barrel & Drum Co. v.
Mayor & Council of City of Wilm., 175 A.2d 403, 404 (Del. Super. 1961).
97
In re Petition of Howell, 2007 WL 1114123, at *1 (Del. 2007).
98
See Reise v. Bd. of Bldg. Appeals of City of Newark, 746 A.2d 271, 272 (Del. 2000),
overruled on other grounds by Black v. New Castle Cnty. Bd. of License, 117 A.3d 1027
(Del. 2015).
99
See City Code § 1 et seq. The parties do not dispute that Delta Eta lacks a statutory right
to appeal the City Council’s decision.
27
 Even though Delta Eta concedes the availability of a writ of certiorari, it still

challenges the characterization of the City Council’s evaluation and denial of the

Special Use Application as quasi-judicial. I conclude it was quasi-judicial.

ii. Special Use Decisions Governed By Ordinance Are
Quasi-Judicial Acts Remedied By Writs Of
Certiorari.

An entity acts in a quasi-judicial capacity where it applies existing laws to a

set of facts before it.100 In other words, a quasi-judicial act carries out existing

100
Tony Ashburn & Son, Inc. v. Kent Cnty. Reg’l Plan. Comm’n, 962 A.2d 235, 239 (Del.
2008); JNK, LLC v. Kent Cnty. Reg’l Plan. Comm’n, 2007 WL 1653508, at *4 (Del. Super.
May 9, 2007) (reasoning a planning commission “must possess some quasi-judicial power,
‘since subdivision control involves the specific application of the applicable general
standards to the particular facts of a proposed subdivision.’” (quoting 5 Edward H. Ziegler,
Jr., Rathkopf’s The Law of Zoning and Planning § 90:5)); Marshall-Steele v. Nanticoke
Mem’l Hosp., Inc., 1999 WL 458724, at *6 (Del. Super. June 18, 1999) (“Where an
administrative tribunal is under a duty to consider evidence and apply law to facts as found,
the tribunal is performing a quasi judicial function.”); E. Lake P’rs v. City of Dover Plan.
Comm’n, 655 A.2d 821, 825 (Del. Super. 1994) (reasoning the Dover Planning
Commission acted partly in a quasi-judicial capacity because it took into account six factors
appearing in an ordinance and had to “scrutinize the layout of the project as depicted on
the site plan and attach conditions to the on-site layout so as to minimize any adverse
impact on the adjoining property owners and the general public”); CBS Foods, Inc. v. Redd,
1982 WL 533240, at *3 (Del. Super. Jan. 19, 1982) (“[T]his Court is of the opinion that
when applying the ordinance to different sets of facts on a case-by-case basis, the Council
takes on a purely administrative, or quasi-judicial function, and its decisions should be
reviewed as such.”); see also 17 McQuillin Mun. Corp. § 49:85 (3d ed. 2007) [hereinafter
“McQuillin”] (a quasi-judicial act “generally involves a determination of the rights, dutie,
[sic] or obligations of specific individuals on the basis of the application of presently
existing legal standards or policy considerations to past or present facts developed at a
hearing conducted for the purpose of resolving the particular interests in question”); 14
Am. Jur. 2d Certiorari § 25 (Jan. 2013 Update) (listing “whether a determination of the
parties’ rights is made that requires the exercise of discretion in finding facts and applying

28
legislative policy, rather than making new policy.101 By contrast, an entity acts in a

legislative capacity when it creates new laws, or effectively amends or repeals

existing laws.102

The Delaware Constitution vested the General Assembly with the power to

“enact laws under which municipalities and [counties] may adopt zoning ordinances,

[and] laws or rules limiting and restricting to specified districts and regulating

therein buildings and structures according to their construction and the nature and

the law to them” as a consideration relevant to determining whether an entity acted in a
quasi-judicial capacity).

In deciding whether an act is quasi-judicial, Courts have also considered other
factors, including whether a hearing was available, whether notice is required, whether
oaths are administered, and whether there is a right to appeal. See Cook v. Deep Hole
Creek Assocs., 2021 WL 1561410, at *3 (Del. Super. Apr. 21, 2021); McQuillin § 49:85
(listing as factors whether notice and a hearing are required and “whether the challenged
act goes to the determination of some right the protection of which is the peculiar office of
the courts”).
101
CBS Foods, 1982 WL 533240, at *3; Schweizer v. Bd. of Adjustment of City of Newark,
980 A.2d 379, 385 (Del. 2009); see also McQuillin § 16:53 (“The power to be exercised is
legislative in its nature if it prescribes a new policy or plan; whereas, it is administrative in
its nature if it merely pursues a plan already adopted by the legislative body itself, or some
power superior to it.”); 56 Am. Jur. 2d Municipal Corporations, Etc. § 280 (Jan. 2013
Update) (“[T]he crucial test for determining that which is legislative (ordinance) from that
which is administrative or executive (resolution) is whether the action taken was one
making a law or one executing or administering a law already in existence.”).
102
See CBS Foods, 1982 WL 533240, at *3; see also Bay Colony, Ltd. v. Cnty. Council of
Sussex Cnty. (Bay Colony II), 1984 WL 159381, at *3 (Del. Ch. Dec. 5, 1984) (“The
technique of using conditional uses to provide for flexibility in the zoning scheme
presupposes that some sort of legislative determination has been made as to which uses are
compatible within a given area but require special supervision to insure [sic] that there will
be no adverse consequences.”).
29
extent of their use.”103 In turn, through 22 Del. C. § 301, the General Assembly

granted Delaware municipalities and counties the power to zone “[f]or the purpose

of promoting health, safety, morals, or the general welfare of the community.”104

Settled Delaware law provides that zoning and rezoning are both legislative

functions.105

103
Del. Const. art. II § 25; Del. Dept. of Nat’l Res. & Env’t Control v. Sussex Cnty., 34
A.3d 1087, 1090 (Del. 2011) (“The power to zone is vested in the General Assembly.”).
104
22 Del. C. § 301; supra notes 64–65.
105
Schweizer, 980 A.2d at 385 (“The establishment of residential zones and the permitted
and prohibited uses in those districts (including prohibiting a fraternity or sorority use in
an off-campus residential district) is the pertinent ‘legislative’ action.”); New Castle Cnty.
Council v. BC Dev. Assocs., 567 A.2d 1271, 1275 (Del. 1989) (“When Council considers
a zoning ordinance, it is acting in a legislative capacity.”); Hayward v. Gaston, 542 A.2d
760, 769 (Del. 1988); Tate v. Miles, 503 A.2d 187 (Del. 1986) (“[T]he [Sussex County]
Council’s rezoning function is legislative . . . .”); Willdel Realty, Inc. v. New Castle Cnty.,
281 A.2d 612, 614 (Del. 1971) (“Zoning is a legislative action presumed to be valid unless
clearly shown to be arbitrary and capricious because not reasonably related to the public
health, safety, or welfare.”); see also Dukes v. Shell Oil Co., 177 A.2d 785, 790 (Del. Ch.
1962) (“Though of relatively recent origin, zoning laws and regulations are now uniformly
recognized as proper subjects of legislative action.”).
Delta Eta argues that “it is unclear whether zoning decisions are properly
characterized as administrative, legislative, or judicial,” because our Supreme Court has
said both that the power to rezone “is analogous to that of an administrative agency,” and
that “a rezoning function is legislative.” Ans. Br. at 29–30 (internal quotation marks
omitted) (quoting BC Dev. Assocs., 567 A.2d at 1275, and then Tate, 503 A.2d at 191).
But the Supreme Court was not saying that zoning is an administrative action. Rather, in
analogizing a county council’s zoning power to that of an administrative agency, the
Supreme Court in both Tate and BC Development Associates was explaining only that a
county may enact zoning ordinances to the extent the General Assembly has given it the
power to do so. See BC Dev. Assocs., 567 A.2d at 1275–76; Tate, 503 A.2d at 191.
Because the applicable statutes grant the power to zone only for the “purpose of promoting
the health, safety, morals, convenience, order, prosperity or welfare of the present and
future inhabitants of this State,” any zoning ordinance must necessarily be enacted
consistent with that mandate for the ordinance to be valid. See, e.g., 9 Del. C. § 2603

30
 Zoning ordinances can identify certain uses that are always allowed, and

enumerate special uses that are permissible but not available as a matter of right.106

“A conditional use (sometimes called a special exception) is not truly an exception

to a zoning ordinance, but is a use in compliance with, rather than in variance of, the

ordinance and is allowable when the prerequisite facts and conditions specified in

the ordinance are found to exist.”107 That is, a special use typically allows one to

choose from “enumerated uses the legislature has determined to be permissible.”108

When the availability of the special use permit is circumscribed by ordinance,

approving or denying a special use permit application is a quasi-judicial act.109 In

granting such special uses, a municipality is not legislating: the legislative act

occurred when the municipality selected those enumerated special uses and added

(statutory delegation of zoning power to New Castle County). As the forgoing authorities
demonstrate, our Supreme Court has been unwavering in categorizing zoning decisions as
legislative.
106
101A C.J.S. Zoning and Land Planning § 309 (Nov. 2022 Update).
107
Steen, 576 A.2d at 646.
108
101A C.J.S. Zoning and Land Planning § 309 (Nov. 2022 Update).
109
See Gibson, 877 A.2d at 65; E. Lake P’rs, 655 A.2d at 825; Marshall-Steele, 1999 WL
458724, at *6; CBS Foods, 1982 WL 533240, at *3; see also Omnipoint Corp. v. Zoning
Hearing Bd. Of Pine Grove Twp., 181 F.3d 403, 409 (3d Cir. 1999) (reasoning a zoning
hearing board acted in a quasi-judicial capacity when it denied an application for a special
use permit); 3 Arden H. Rathkopf et al., Rathkopf’s The Law of Zoning and Planning §
61:47 (4th ed. 2005) (“For the purpose of judicial review, many if not most courts treat the
decision of a local legislative body to grant or deny a special permit as a quasi-judicial act
subject to court review on questions of law and abuse of discretion and substantial evidence
review of reasons and findings.”).
31
any additional conditions on granting the permit.110 This is true even where the same

entity passes the zoning ordinance and approves or denies the special use permit; an

entity may act in a quasi-judicial capacity when taking certain action, and a

legislative capacity when taking others.111

But if ordinances do not limit a particular special use by district or zone, such

that the use is permitted it “in all zones indiscriminately,” then the decision to allow

or deny that special use is a legislative act.112 In Bay Colony v. County Council of

Sussex County, this Court explained that granting such a permit effectively rezones

property, and therefore should be treated like a legislative act.113 Later, Gibson v.

Sussex County Council explained that this standard must be applied on a case-by-

case basis, focusing on the particular special use at issue rather than whether a

municipality’s or county’s zoning scheme provides for unrestricted special uses or

any unrestricted special uses at all.114

110
Schweizer, 980 A.2d at 385; CBS Foods, 1982 WL 533240, at *3 (“Thus, in the case at
bar, although the Council performed a legislative function when it enacted § 32-56.4. . . .”);
101A C.J.S. Zoning and Land Planning § 309 (Nov. 2022 Update).
111
14 Am. Jur. 2d Certiorari § 25 (Jan. 2013 Update) (“Whether an act is judicial or quasi-
judicial so as to be reviewable by certiorari depends on the nature of the act performed
rather than on the character of the officer or body performing it.” (footnote omitted)).
112
See Gibson, 877 A.2d 65; see also Steen, 576 A.2d at 647.
Bay Colony Ltd. P’ship v. Cnty. Council (Bay Colony I), 1984 WL 159382, at *3 (Del.
113

Ch. Feb. 1, 1984).
114
877 A.2d at 65.
32
 Here, the City Council acted in a quasi-judicial capacity in effectively denying

Delta Eta’s Special Use Application. The relevant legislative act was the City

Council’s adoption of the applicable zoning ordinances.115 Those ordinances

establish zoning districts,116 each of which allows for certain enumerated uses.117

Many, if not all, districts also list a number of permissible uses that require special

use permits.118 The City Code limits the special use of a fraternity house to particular

districts.119 The availability of a special use permit to use property as a fraternity

house is part of the City Council’s legislative act of creating the zoning ordinance.

In reviewing each special use permit application, the City Council acts in a

quasi-judicial capacity, because it is applying the existing law to each case before it.

The City Council must ensure the special use complies with the governing zoning

ordinance. To receive a special use permit, the applicant must attend a hearing

before the City Council, and the City Council may grant the special use permit if it

finds that the special use will not have adverse health or safety effects, “[b]e

115
See Schweizer, 980 A.2d at 385.
116
City Code § 32-5.
117
See, e.g., id. § 32-11(a) (allowing for, among other things, one-family detached
dwellings in districts zoned RM).
118
See, e.g., id. § 32-11(b) (allowing for, among other things, libraries and museums in
districts zoned RM).
119
Compare id. § 32-11(b)(14) (allowing fraternity houses in districts zoned RM), with id.
§ 32-16(b) (not listing fraternity houses as a special use in districts zoned BL).
33
detrimental to the public welfare or injurious to property or improvements,” and

“[b]e in conflict with the purposes of the comprehensive development plan of the

city.”120 The City Council may also require additional conditions that “in its opinion,

assure that the use will conform to the foregoing requirements and that such use will

continue to do so.”121 As to special use permits to use a property as a fraternity

house, the City Code provides that the City Council must consider a report by the

planning and development director or another City official, and the City Council

“may impose[] additional conditions.”122 When evaluating an application for a

special use permit, the City Council applies these criteria on a case-by-case basis to

ensure that the special use at issue meets the general standards established by

existing law. Because the City Code restricts the use of a fraternity house by district,

Gibson’s parameters for treating the evaluation of a special use permit application

as a legislative act do not apply.123

The Superior Court has previously found that the City Council’s decision as

to whether to approve a special use permit is a quasi-judicial act. In CBS Foods, Inc.

v. Redd, the Superior Court addressed a claim challenging the City Council’s

120
City Code §§ 32-78(a)(1)(a)–(c).
121
Id. § 32-78(a)(1).
122
Id. § 32-11(b)(14)(c).
123
Gibson, 877 A.2d at 64–65.

34
decision to deny a special use permit to sell liquor within 200 feet of a church.124

The permit was available only if specified criteria set forth in the municipal code

were satisfied, which is substantially similar to the ordinance at issue here. 125 The

Court explained that “the Council performed a legislative function when it enacted”

the special use statute, but that “when applying the ordinance to different sets of

facts on a case-by-case basis, the Council takes a purely administrative, or quasi-

judicial function.”126

I conclude the City Council acted in a quasi-judicial capacity in denying the

Special Use Application. It follows that a writ of certiorari is available to Delta

Eta.127 The only remaining question is whether the writ of certiorari affords an

adequate remedy at law.

124
Id. at *1.
125
Id. at *4 (requiring that the conditional use not: “(A) Affect adversely the health or
safety of persons residing or working in the neighborhood of the proposed use; (B) Be
detrimental to the public welfare or injurious to property or improvements in the
neighborhood; and (C) Be in conflict with the purposes of the comprehensive development
plan of the city.” (quoting City Code § 32-78(a)(1)).
126
Id. at *3.
127
That Delta Eta waited to seek certiorari review such that it may now be unavailable is
irrelevant for purposes of this decision. In re Wife, K., 297 A.2d at 425 (“[I]f a litigant fails
to avail himself of a remedy provided by law and is subsequently barred from pursuing that
remedy because of his own lack of diligence, he cannot then rely on the absence of a
remedy at law as a basis for equitable jurisdiction.”).
35
 iii. A Writ of Certiorari Is An Adequate Legal Remedy
For Challenging The Quasi-Judicial Denial Of A
Special Use Permit.

Prerogative writs “are capable of affording complete and adequate relief to a

petitioner and, if such is the case, resort may not be had to a court of equity.” 128

Whether a particular remedy is adequate is “necessarily fact-intensive and, thus,

peculiar to each asserted claim.”129 Delta Eta does not dispute that a writ of certiorari

can, in the abstract, remedy a City Council special use decision that fails to comply

with the City Code. Rather, Delta Eta suggests a certiorari proceeding is not

adequate because it prefers a proceeding supported by discovery and applying a

more lenient standard of review.

Delta Eta’s first point is unfounded, as a plaintiff may not obtain discovery in

challenging the approval or denial of a special use permit application in this Court.

Where a plaintiff challenges a municipality’s legislative zoning or rezoning decision

in this Court, the Court’s review is limited to the record, and that plaintiff may not

128
Fam. Ct. v. Dept. of Lab. And Indus. Rels., 320 A.2d 777, 780 (Del. Ch. 1974) (collecting
cases); cf. Hundley v. O’Donnell, 1998 WL 842293, at *3 (Del. Ch. Dec. 1, 1998)
(“Plaintiff can file a writ of certiorari in the Superior Court to have that issue resolved.
Furthermore, Plaintiff fails to convince me that this remedy is inadequate. Were there some
factors pleaded here to suggest that were so, the result might be quite different.” (footnote
omitted)).
129
Wolfe & Pittenger § 2.03[b][3][ii], at 2-62.
36
obtain discovery.130 And even where a plaintiff has secured this Court’s review of

the approval or denial of a special use application, that review is limited to the

record.131 Delaware courts have permitted discovery beyond the record below in

limited circumstances, such as where the plaintiff contends a developmental project

should not be regulated by the municipal body at all.132 In these circumstances, in

which Delta Eta is challenging the denial of its application, the lack of discovery in

a writ proceeding cannot render that remedy inadequate, because discovery would

not be available for the same plaintiff seeking an injunction in the Court of Chancery.

130
See Cain v. Sussex Cnty. Council, 2020 WL 2122775, at *7 (Del. Ch. May 4, 2020)
(“The Court’s role in reviewing a zoning decision is limited to a review of the record to
ascertain whether the decision is supported by substantial evidence, or whether it is in any
way arbitrary, capricious, or an abuse of discretion.” (internal quotation marks omitted)
(quoting Concerned Citizens of Cedar Neck, Inc. v. Sussex Cnty. Council, 1998 WL
671235, at *5 (Del. Ch. Aug. 14, 1998))); Port Penn Hunting Lodge Ass’n v. Meyer, 2019
WL 2077600, at *11 (Del. Ch. May 9, 2019) (“This Court’s role in reviewing a zoning
decision . . . is limited to a review of the record to ascertain if the statutory procedural
mandates have been followed, that the decision is supported by substantial evidence and
that it is not arbitrary or capricious or an abuse of discretion.” (alteration in original)
(internal quotation marks omitted) (quoting Steen, 576 A.2d at 648)); Stephen C. Glenn,
Inc. v. Sussex Cnty. Council, 532 A.2d 80, 83 (Del. Ch. 1987) (“This Court’s role in
reviewing a zoning decision of the Sussex County Council is limited to a review of the
record to ascertain if the decision is supported by substantial evidence or whether it is in
any way arbitrary, capricious or an abuse of discretion.” (collecting cases)); see also
Tidewater, 1986 WL 10082, at *3 (reviewing decision on only the record).
131
Coker, 2008 WL 5451337, at *7 (“This court’s review of a decision by a local zoning
authority to deny a conditional use application, like its review of other zoning decisions, is
a limited one. I may only review ‘the record to ascertain if the statutory procedural
mandates have been followed, that the decision is supported by substantial evidence and
that it is not arbitrary, capricious or an abuse of discretion.’” (quoting Steen, 576 A.2d at
648)).
132
See Lynch v. Tunnell, 236 A.2d 369, 459–60 (Del. 1967).
37
 Delta Eta is correct that a writ of certiorari proceeds under a more deferential

standard of review that would otherwise be applied if it were properly seeking review

by this Court. When the Court of Chancery has reviewed the denial of a special use

application, the municipal body’s decision was presumed correct and the Court was

left to determine whether “the statutory procedural mandates have been followed,

that the decision is supported by substantial evidence and that it is not arbitrary,

capricious or an abuse of discretion.”133 Review pursuant to a writ of certiorari is

less rigorous, and is cabined to an assessment of “whether the lower tribunal

exceeded its jurisdiction, committed errors of law, or proceeded irregularly.”134

To invoke this Court’s jurisdiction, Delta Eta must not only point out that the

certiorari standard of review is different: it must demonstrate that the standard is so

limited in scope as to be incapable of affording full and fair relief. 135 Delta Eta has

not made any attempt to demonstrate that review on certiorari is “not fully sufficient

133
Coker, 2008 WL 5451337, at *7 (quoting Steen, 576 A.2d at 648); see Gibson, 877 A.2d
at 66.
134
Christiana Town Ctr., 2004 WL 2921830, at *2 (“The trial judge did, however, make
several references to the phrase substantial evidence. Because substantial evidence review
is more rigorous than review on certiorari, Christiana benefitted from any erroneous
reference made by the trial judge to this standard.”).
135
See Holland v. Zarif, 794 A.2d 1254, 1269 (Del. Ch. 2002); Lynch, 236 A.2d at 459–
60.
38
to protect or redress the resulting injury under the circumstances.” 136 Delta Eta has

an adequate remedy at law in a writ of certiorari.

b. To The Extent A Declaratory Judgment Is Warranted,
An Injunction Is Not Needed To Enforce A Declaratory
Judgment Against The City Council.
Coupled with its request for an injunction, Delta Eta seeks a declaratory

judgment. This request is rooted in Delta Eta’s legal claim based on Defendants’

alleged failure to evaluate the Special Use Application consistent with the special

use ordinance.137 The Declaratory Judgment Act is not jurisdictional and cannot

confer or take away the Court’s jurisdiction.138

136
Wolfe & Pittenger § 2.03[b][1], at 2-24; 10 Del. C. § 342 (providing this Court does not
have subject matter jurisdiction where a “sufficient remedy may be had by common law
. . . before any other court . . . of this State”); see Gladney v. City of Wilm., 2011 WL
6016048, at *5 (Del. Ch. Nov. 30, 2011) (finding the Court lacked subject matter
jurisdiction where the plaintiff had an adequate remedy at law available in the form of a
writ of certiorari).
137
See supra Section II.A.2.
138
Hoechst Celanese Corp. v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa., 623 A.2d 1133,
1136 (Del. Super. 1992) (“The declaratory judgment statute . . . does not create any
substantive rights but merely provides a procedural means for securing judicial relief in an
expeditious and comprehensive manner.” (citing Stabler v. Ramsay, 88 A.2d 546 (Del.
1952))); City of Wilm. v. Del. Coach Co., 230 A.2d 762, 766 (Del. Ch. 1967) (“The
declaratory judgment statute does not increase or enlarge this Court’s jurisdiction and it
does not change the jurisdictional relationship between the Superior Court and the Court
of Chancery.”); Diebold Comput. Leasing, Inc. v. Com. Credit Corp., 267 A.2d 586, 591
(Del. 1970) (“Jurisdiction under the Declaratory Judgment Act is based on the question of
whether law or equity traditionally would have jurisdiction of the subject matter if the
controversy should develop to a later stage; of whether the issues raised would be presented
in a legal or equitable action if coercive relief were being sought. Specifically, the
Chancery Court has jurisdiction in a declaratory judgment action if there is any underlying
basis for equity jurisdiction measured by traditional standards.” (collecting cases)); see also

39
 As this Court has said recently, a declaratory judgment alone, without an

injunction, is usually an adequate remedy at law against a government body.139 Our

law presumes that a defendant will comply with a declaratory judgment,140 and this

presumption is even stronger when the defendant is a government entity. 141 The

Court has described the limited circumstances in which an injunction would be

needed to prevent a governmental entity from acting: (1) “[w]here there is a real

chance that relief will not be forthcoming absent injunction, equity is invoked”; (2)

“[w]here the right requires a remedy bespoke to the facts, equity is invoked”; and

(3) “[w]here an ongoing deprivation of rights needs a remedy by interim relief,

equity is invoked.”142 This Court will issue injunctive relief as to a legislative act

Kraft, 145 A.3d at 985 (“Whether a declaratory judgment is legal or equitable in nature
depends on the underlying subject matter.”).
In re COVID-Related Restrictions, 285 A.3d at 1234–35; Birney v. Del. Dep’t of Safety
139

& Homeland Sec., 2022 WL 16955159, at *2–3 (Del. Ch. Nov. 16, 2022); Crown Castle,
2021 WL 2838425, at *7.
140
See Birney, 2022 WL 16955159, at *2.
141
In re COVID-Related Restrictions, 285 A.3d at 1233 (“And that is particularly true
where government action is concerned, such that ‘[p]rospective injunctive relief is
generally unavailable where the plaintiff’s proposed injunction merely seeks to
prospectively compel a government to conform with the interpretation of the law reflected
in the proposed declaratory judgment.’” (alteration in original) (quoting Crown Castle,
2021 WL 2838425, at *5, and Birney, 2022 WL 16955159, at *2–3 (Del. Ch. Nov. 16,
2022)).
142
Birney, 2022 WL 16955159, at *2.
40
only where necessary; if a declaratory judgment from the Superior Court will suffice,

this Court has no jurisdiction to hear the claim.143

Delta Eta has not demonstrated that an injunction is necessary to enforce a

declaratory judgment against these Defendants, and I cannot see that it is. While I

need not decide whether a declaratory judgment from the Superior Court is available

or proper here, I simply note that the Superior Court is equally capable of affording

that remedy.144

*****

Delta Eta has not properly invoked this Court’s equitable jurisdiction by

seeking an injunctive remedy to its legal claims. Delta Eta has not established a

reasonable likelihood of future harm. Because the City Council acted in a quasi-

judicial capacity when it voted on the Special Use Application, a writ of certiorari is

available to review the decision. Delta Eta has failed to demonstrate why a writ of

certiorari would not afford it full, fair, and adequate relief, and so Delta Eta has an

143
In re COVID-Related Restrictions., 285 A.3d at 1233–35; Birney, 2022 WL 16955159,
at *2–3.
144
See, e.g., Reed v. Brady, 2002 WL 1402238, at *3 n.7 (Del. Ch. June 21, 2002) (“Issues
of statutory and constitutional interpretation are, beyond question, legal issues capable of
resolution by the Superior Court, and declaratory relief is available there to the same extent
as it is here.” (citing 10 Del. C. § 6501)). The Superior Court has heard cases seeking both
a writ of certiorari and a declaratory judgment. See, e.g., R.R. Bayside v. Sussex Cnty.,
1999 WL 743523, at *2 (Del. Super. July 20, 1999).
41
adequate remedy at law. To the extent a declaratory judgment is available and

appropriate here, the Superior Court is equally capable of affording that remedy.

c. A Note On Delta Eta’s Cited Zoning And Special Use
Cases

Having performed the traditional jurisdictional analysis, I now turn to Delta

Eta’s contention that the dozens of cases it cited demonstrate that this Court must

have jurisdiction over this case. Delta Eta describes the bulk of those cases as

addressing rezoning decisions,145 leaving only twelve cases that it describes as

145
Barley Mill, LLC v. Save Our Cnty., Inc., 89 A.3d 51 (Del. 2014); Shevock v. Orchard
Homeowners Ass’n, Inc., 621 A.2d 346 (Del. 1993); BC Dev. Assocs., 567 A.2d 1271; Tate,
503 A.2d 187; Willdel, 281 A.2d 612; Daniel D. Rappa, Inc. v. Engelhardt, 256 A.2d 744
(Del. 1969); Cain, 2020 WL 2122775; TD Rehoboth LLC v. Sussex Cnty. Council, 2017
WL 3528391 (Del. Ch. Aug. 11, 2017); Brohawn v. Town of Laurel, 2009 WL 1449109
(Del. Ch. May 13, 2009); Christiana Town Ctr., LLC v. New Castle Cnty., 2009 WL
781470 (Del. Ch. Mar. 12, 2009); Hansen v. Kent Cnty., 2007 WL 1584632 (Del. Ch. May
25, 2007); O’Neill v. Town of Middletown, 2007 WL 2752981 (Del. Ch. Mar. 29, 2007);
O’Neill v. Town of Middletown, 2007 WL 1114019 (Del. Ch. Mar. 29, 2007); Fields v.
Kent Cnty., 2006 WL 345014 (Del. Ch. Feb. 2, 2006); O’Neill v. Town of Middletown,
2006 WL 205071 (Del. Ch. Jan. 18, 2006); Citizens’ Coal., Inc., 2004 WL 1043726; Deskis
v. Cnty. Council of Sussex Cnty., 2001 WL 1641338 (Del. Ch. Dec. 7, 2001); Citizens
Coal., Inc. v. Cnty. Council of Sussex Cnty., 1999 WL 669307 (Del. Ch. July 22, 1999);
Country Preservation Ass’n of Kent Cnty. v. Kent Cnty. Levy Ct., 1991 WL 153063 (Del.
Ch. July 26, 1991); Mifflin Rd. Neighborhood Ass’n. v. City of Dover, 1986 WL 13500
(Del. Ch. Nov. 28, 1986); Green v. Cnty. Council of Sussex Cnty., 508 A.2d 882 (Del. Ch.
1986); Sussex Cnty. Env’t Concerns Ass’n, Inc. v. Rehoboth Mall Ltd. P’ship, 1985 WL
165734 (Del. Ch. Mar. 20, 1985); Deibler v. Sea Gate Vill., 1983 WL 142507 (Del. Ch.
Aug. 24, 1983); N. Dover Civic Ass’n v. City of Dover, 1981 WL 88242 (Del. Ch. Nov. 13,
1981); Green v. Cnty. Plan. & Zoning Comm’n of Sussex Cnty., 340 A.2d 852 (Del. Ch.
1974); Dukes, 177 A.2d 785; Reinbacher v. Conly, 141 A.2d 453 (Del. Ch. 1958).
42
addressing special use permits.146 As explained, the act of rezoning is legislative in

nature and therefore cannot be subject to a writ of certiorari that precludes this

Court’s jurisdiction.147

Of the twelve cases described as addressing special use permits, nine concern

land situated in Sussex County,148 which has a comprehensive zoning ordinance that

can render special use decisions legislative rather than quasi-judicial, such that writs

of certiorari are unavailable.149 Before 2005, the case law treated Sussex County

146
Norino Props. LLC v. Mayor & Town Council of Town of Ocean View, 2010 WL
3610206 (Del. Ch. Aug. 30, 2010); Coker, 2008 WL 5451337; Barry v. Town of Dewey
Beach, 2006 WL 3246344 (Del. Ch. Oct. 27, 2006); Green v. City Council of Sussex Cnty.,
1994 WL 469167, at *1 (Del. Ch. Aug. 11, 1994); Stephen C. Glenn, Inc., 532 A.2d 80;
Tidewater, 1986 WL 10082; Sears v. Levy Ct. of Kent Cnty., 1986 WL 10085 (Del. Ch.
Sept. 15, 1986); Bay Colony I, 1984 WL 159382; Red Mill Farms Prop. Owners Ass’n,
Inc. v. Cnty. Council of Sussex Cnty., 1983 WL 142515 (Del. Ch. Dec. 9, 1983); Showalter
v. Cnty. Council of Sussex Cnty., 1983 WL 142510 (Del. Ch., Aug. 2, 1983); Wilkins v.
Levy Ct. Comm’rs, 1981 WL 88252 (Del. Ch. May 28, 1981); Russell v. Cnty. Council,
1980 WL 81859 (Del. Ch. Apr. 30, 1980).
147
Del. Barrel & Drum, 175 A.2d at 404 (“The common-law writ of certiorari lies to
reviews acts which are judicial or quasi-judicial in nature, and does not lie to review acts
which are administrative or legislative in nature.”); Tate, 503 A.2d at 191 (“[T]he Council’s
rezoning function is legislative . . . .”); Wilkins, 1981 WL 88252, at *3 (referring to act of
zoning as a “legislative action”); Dukes, 177 A.2d at 790 (“Though of relatively recent
origin, zoning laws and regulations are now uniformly recognized as proper subjects of
legislative action.”).
148
Norino, 2010 WL 3610206; Barry, 2006 WL 3246344; Green v. City Council of Sussex
Cnty., 1994 WL 469167, at *1 (Del. Ch. Aug. 11, 1994); Stephen C. Glenn, Inc. v. Sussex
Cnty. Council, 532 A.2d 80 (Del. Ch. 1987); Tidewater, 1986 WL 10082; Bay Colony I,
1984 WL 159382; Red Mill Farms, 1983 WL 142515; Showalter, 1983 WL 142510;
Russell, 1980 WL 81859.
149
See Bay Colony I, 1984 WL 159382, at *1 (“[T]he grant of a conditional use is done by
the [Sussex] County Council and it is in effect, for practical purposes, an amendment to

43
special use permit decisions as categorically akin to zoning and therefore

legislative.150 In 2005, Gibson v. Sussex County Council clarified that Sussex

County special use decisions are legislative only where the special use at issue is

permitted “in all zones indiscriminately.”151 Only two of Delta Eta’s Sussex County

special use cases post-date Gibson.152 One of those two cases addressed a motion

for attorneys’ fees following an earlier dismissal for lack of standing, and therefore

cannot bear on whether this Court has jurisdiction over a special use decision.153

the Zoning Code.”); Bay Colony II, 1984 WL 159381, at *3 (reasoning the granting of a
special use permit was tantamount to rezoning, and holding “that the type of conditional
use permit granted in the present case could only be granted only by ordinance and the
statutory procedural requirements for the adoption of an ordinance must be followed”);
Steen, 576 A.2d at 648 (“As previously discussed, the requirements for a rezoning are also
applicable to County Council decisions granting or denying conditional use permits.”
(citing Tidewater, 1986 WL 10082, Sears, 1986 WL 10085, and Bay Colony II, 1984 WL
159381)).
150
Steen, 576 A.2d at 648 (“While it is clear that the grant of a Conditional Use Permit is
not the same as a rezoning, such decisions in Sussex County, as previously indicated, must
be treated as a rezoning for purposes of review by this Court.”); Tidewater, 1986 WL
10082, at *2 (“The above-described requirements are also applicable to County Council
decisions granting conditional use permits.” (citation omitted)); Bay Colony I, 1984 WL
159382, at *1 (“Chancellor Duffy held in an unreported case in 1972 that [a statute
governing actions challenging “relating to zoning, among other things”] applies to actions
challenging conditional use applications, at least in Sussex County, because under the
Sussex County zoning scheme the grant of a conditional use is done by the County Council
and it is in effect, for practical purposes, an amendment to the Zoning Code. I agree.”
(citation omitted) (citing Sea & Pines, Inc. v. E. Coast Resorts, Inc., No. 421-S (Del. Ch.
May 17, 1972))).
151
877 A.2d at 65.
152
Norino, 2010 WL 3610206; Barry, 2006 WL 3246344.
153
Barry, 2006 WL 3246344.
44
 Of Delta Eta’s three special permit cases concerning land outside of Sussex

County,154 one also addressed a zoning decision and could therefore be categorized

as a zoning case.155 I assume that the two cases addressing only special use permits

found, for reasons not stated in the opinions, that an injunction was necessary to

afford full and fair relief. These cases support, rather than refute, the proposition

that this Court should consider whether a special use decision was made in a

legislative or quasi-judicial capacity before assuming subject matter jurisdiction. To

be sure, the Superior Court has exercised jurisdiction over claims challenging special

use permit decisions as well.156

This Court’s jurisprudence on subject matter jurisdiction over special use

permit challenges is perhaps not the clearest: the vast majority of these cases do not

expressly confront the question of subject matter jurisdiction, or address whether the

relevant entity acted in a judicial or quasi-judicial capacity. Time-tested principles

continue to guide whether this Court has jurisdiction over a challenge to a municipal

or county decision as to the approval or denial of a special use permit. If the

municipality or county was acting in a quasi-judicial capacity, the plaintiff bears the

154
Coker, 2008 WL 5451337; Sears, 1986 WL 10085; Wilkins, 1981 WL 88252.
155
Wilkins, 1981 WL 88252.
156
E. Lake P’rs, 655 A.2d at 825.
45
burden of demonstrating why a writ of certiorari or declaratory judgment from the

Superior Court would be an inadequate remedy.157

D. Delta Eta Has Failed To Plead A Section 1983 Claim.
Having concluded this Court lacks subject matter jurisdiction over Delta Eta’s

frontal attacks on the denial of the Special Use Permit in Counts I and II, I turn to

Delta Eta’s third count, by which Delta Eta seeks injunctive relief under 42 U.S.C.

§ 1983 to remedy the Individual Defendants’ alleged violation of Delta Eta’s right

to free association with PiKA and its members. The Individual Defendants moved

to dismiss Count III on the theory that Delta Eta has not pled a legally protected

relationship.158

Whether Delta Eta has adequately plead a protected relationship with PiKA

directly informs whether Delta Eta has suffered a cognizable injury, but it also relates

to whether Delta Eta has stated a claim upon which relief can be granted. Where

“the issue of standing is so closely related to the merits, a motion to dismiss based

on lack of standing is properly considered under Rule 12(b)(6) rather than Rule

157
See Legent Gp., LLC v. Axos Fin., Inc., 2021 WL 73854, at *2 (Del. Ch. Jan. 8, 2021)
(“Plaintiffs bear the burden of establishing subject matter jurisdiction.”).
158
Defendants’ opening brief presented this argument both as a failure of standing, and a
failure to state a claim. The standing argument was based on the theory that Delta Eta was
presenting a claim for violation of PiKA’s constitutional rights. Op. Br. at 16. Delta Eta
clarified it was presenting a claim for violation of its own right to associate with PiKA.
Ans. Br. at 38–39.
46
12(b)(1).”159 The standard governing motions to dismiss Court of Chancery Rule

12(b)(6) is as follows:

(i) [A]ll well-pleaded factual allegations are accepted as true; (ii) even
vague allegations are “well-pleaded” if they give the opposing party
notice of the claim; (iii) the Court must draw all reasonable inferences
in favor of the non-moving party; and [(iv)] dismissal is inappropriate
unless the “plaintiff would not be entitled to recover under any
reasonably conceivable set of circumstances susceptible of proof.”160

In defining the right to intimate association, the Supreme Court “has

concluded that the choices to enter into and maintain certain intimate human

relationships must be secured against undue intrusion by the State because of the

role of such relationships in safeguarding the individual freedom that is central to

our constitutional scheme.”161 At a minimum, the right to intimate association

“extends to relationships that ‘attend the creation and sustenance of a family—

marriage, childbirth, the raising and education of children, and cohabitation with

one's relatives.’”162 But “[w]hether the right extends to other relationships depends

on the extent to which those relationships share the characteristics that set family

159
Appriva S’holder Litig. Co., LLC v. EV3, Inc., 937 A.2d 1275, 1280 (Del. 2007); id. at
1286.
160
Savor, Inc. v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002) (footnotes omitted)
(quoting Kofron v. Amoco Chems. Corp., 441 A.2d 226, 227 (Del. 1982)).
161
Roberts v. U.S. Jaycees, 468 U.S. 609, 617–18 (1984).
162
Sanitation & Recycling Indus., Inc. v. City of New York, 107 F.3d 985, 996 (2d Cir.
1997) (quoting Roberts, 468 U.S. at 619).
47
relationships apart—small, select, and secluded from others.”163 Generally, courts

have not expanded the right to intimate association to business relationships. 164

Delta Eta has pled that it is PiKA’s “housing corporation,”165 and also that it

is PiKA’s “educational . . . foundation.”166 Delta Eta applied for the Special Use

Permit as the property owner, but the permit would be held by PiKA as the fraternity

chapter.167 According to Delta Eta, the only effect of receiving the special use permit

is that the House may have a formal affiliation with a university-recognized

fraternity associated with a national fraternity organization. Delta Eta pled that “[a]

fraternity student residence only differs from a regular student residence in one

163
Id. (quoting Roberts, 468 U.S. at 620).
164
Id. (“The Constitution does not recognize a generalized right of social association. The
right generally will not apply, for example, to business relationships . . . .” (citing Roberts,
468 U.S. at 620)); Trade Waste Mgmt. Ass’n, Inc. v. Hughey, 780 F.2d 221, 237 (3d Cir.
1985) (“A waste disposal business licensed by the state as a public utility is simply not the
kind of intimate associations that has qualities analogous to a family. It is far more
analogous to a typical business enterprise. Such enterprises, small and large alike, involve
public rather than private aspects of the lives of the participants, and they engage in an
activity that has little if anything to do with personal, as distinct from economic, self
realization.”); Fiore v. City of Detroit, 2019 WL 3943055, at *5 (E.D. Mich. Aug. 21, 2019)
(“Business relationships do not support intimate association claims.”), aff’d sub nom. B &
G Towing, LLC v. City of Detroit, MI, 828 F. App’x 263 (6th Cir. 2020); Hurley v. Town
of Southampton, 2018 WL 3941944, at *7 (E.D.N.Y. Aug. 13, 2018) (“The right [of
intimate association] generally will not apply, for example, to business relationships.”
(internal quotation marks omitted) (quoting Sanitation & Recycling, 107 F.3d at 996, and
then citing Chi Iota Colony of Alpha Epsilon Pi Fraternity v. City Univ. of New York, 502
F.3d 136, 144 (2d Cir. 2007))).
165
Am. Compl. ¶ 14.
166
Id. ¶ 67.
167
See City Code § 32-11(b)(14)(e); Report at 3.
48
respect: association with a University recognized fraternity affiliated with a national

fraternity organization—i.e., fraternity associational status.”168 Regardless of

whether the Special Use Application is granted, Delta Eta may rent the house to up

to eighteen tenants. From the City Code, it appears that Delta Eta could not rent the

house “exclusively” to fraternity members unless Delta Eta had a permit, but

whether the permit afford additional benefits is unclear.169 Delta Eta attempted to

add additional facts through its answering brief, but “[a]rguments in briefs do not

serve to amend the pleadings.”170

These allegations demonstrate that the special use permit would have allowed

Delta Eta to rent the House exclusively to members of PiKA. Denial of the Special

Use Application prevented Delta Eta from becoming PiKA’s members’ landlord, in

addition to being PiKA’s housing corporation and educational corporation.171 The

allegations in the Amended Complaint fail to support an inference that this

168
Am. Compl. ¶ 41.
169
See City Code § 32-11(b)(14).
170
CALPERS v. Coulter, 2002 WL 31888343, at *12 (Del. Ch. Dec. 18, 2002).
Specifically, Delta Eta added that its “intended purpose” of purchasing the House was to
“leas[e] rooms to members of PiKA”; that PiKA would not enter into a lease with Delta
Eta, but that individual PiKA members would enter those leases; that Delta Eta is “an
alumni housing corporation” and PiKA is “its intended beneficiary”; that “PiKA was a part
of the raison d’etre for Delta Eta”; and that “Delta Eta is not associated with any other
organizations, persons, fraternities, or sororities.” Ans. Br. at 18, 24–25, 38, 40.
171
See Michaelidis v. Berry, 502 F. App’x 94, 96–97 (2d Cir. 2012) (“Plaintiffs’
relationships with their landlords, their restaurant customers, and their employees are not
sufficiently intimate to implicate this protection.”).
49
relationship is anything more than a business relationship, which is not protected by

the First Amendment right to intimate association.172 Delta Eta has failed to state a

Section 1983 claim.

E. Delta Eta’s Motion For Sanctions Is Denied.

Delta Eta has moved for sanctions under Court of Chancery Rule 11, claiming

Defendants’ arguments as to both subject matter jurisdiction and standing were

legally frivolous. Rule 11 provides, among other things, that when an attorney

presents a brief or motion to the Court, that attorney is certifying that the legal

arguments made therein are not legally frivolous.173 Defendants’ arguments as to

subject matter jurisdiction and standing were far from frivolous, and soundly in

accord with Delaware law. I therefore deny Delta Eta’s motion for sanctions.

III. CONCLUSION

For the forgoing reasons, Defendants’ Motion to Dismiss is GRANTED.

Plaintiff’s Motion for Rule 11 Sanctions is DENIED. Delta Eta may transfer the

matter to Superior Court under 10 Del. C. § 1902 within sixty days.

172
See supra note 164.
173
Ct. Ch. R. 11(b).
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