Citizens Against Solar Pollution v. Kent County

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

CITIZENS AGAINST SOLAR )
POLLUTION, a Delaware unincorporated )
nonprofit association, DONALD LEE )
GOLDSBOROUGH, TRUSTEE UNDER )
REVOCABLE TRUST AGREEMENT OF )
DONALD LEE GOLDSBOROUGH )
DATED 12/22/10, and KELLIE ELAINE )
GOLDSBOROUGH, TRUSTEE UNDER )
REVOCABLE TRUST AGREEMENT OF )
KELLIE ELAINE GOLDSBOROUGH ) C.A. No. N23C-03-196 VLM
DATED 12/22/10, )
)
Plaintiffs, )
)
v. )
)
KENT COUNTY, a political subdivision )
of the State of Delaware, KENT COUNTY )
LEVY COURT, the governing body of )
Kent County, FPS CEDAR CREEK )
SOLAR LLC, a Delaware limited liability )
company, and THE PINEY CEDAR )
TRUST, JAMES C. KNOTTS, JR., )
CHERYL A. KNOTTS, DE LAND )
HOLDINGS 1 LLC, a Delaware limited )
liability company, AMY PEOPLES, )
TRUSTEE OF THE PINEY CEDAR )
TRUST, and RICHARD A. PEOPLES, )
TRUSTEE OF THE PINEY CEDAR )
TRUST, )
)
Defendants. )

Submitted: July 18, 2023
Decided: October 17, 2023
 MEMORANDUM OPINION

Richard L. Abbott, Esq., Abbott Law Firm, Hockessin, Delaware, Attorney for
Plaintiffs Citizens Against Solar Pollution, Donald Lee Goldsborough, and Kellie
Elaine Goldsborough.

Max B. Walton, Esq., Lisa R. Hatfield, Esq., and Erica K. Sefton, Esq., Connolly
Gallagher LLP, Newark, Delaware, Attorneys for Defendants Kent County and Kent
County Levy Court.

Richard A. Forsten, Esq., Wendie C. Stabler, Esq., and James D. Taylor, Jr., Esq.,
Saul Ewing LLP, Wilmington, Delaware, Attorneys for Defendants FPS Cedar
Creek Solar LLC, DE Land Holdings 1 LLC, The Piney Cedar Trust, James C.
Knotts, Jr., Cheryl A. Knotts, Amy Peoples, Trustee of the Piney Cedar Trust, and
Richard A. Peoples, Trustee of the Piney Cedar Trust.

Medinilla, J.
2
 I. INTRODUCTION

The Kent County Levy Court approved a conditional use permit application

filed by Defendant FPS Cedar Creek Solar, LLC, to construct a solar farm near

property owned by members of Plaintiff Citizens Against Solar Pollution.

Challenging the grant of the permit, Plaintiffs filed an action in the Court of

Chancery seeking injunctive relief and a declaratory judgment against the Levy

Court and Kent County as well as FPS, The Piney Cedar Trust, James C. Knotts, Jr.,

Cheryl A. Knotts, DE Land Holdings 1 LLC, Amy Peoples and Richard A. Peoples,

Trustees of The Piney Cedar Trust. The Court of Chancery dismissed the case and

granted Plaintiffs leave to transfer the matter to this Court after determining that it

lacked subject matter jurisdiction because there was an adequate remedy at law;

namely, review by common law writ of certiorari.

Plaintiffs filed an Amended Complaint that sought declaratory judgment in

one count and certiorari review in another. Plaintiffs also filed a separate Motion

for Writ of Certiorari. All Defendants now move to dismiss all matters in their

entirety under Superior Court Civil Rule 12(b)(6). For the reasons stated below,

Defendants’ Motion to Dismiss is GRANTED, in part, DENIED, in part.

Plaintiffs’ “Motion” for Certiorari is MOOT.

3
 II. FACTUAL AND PROCEDURAL BACKGROUND1

A. PARTIES

On January 25, 20222, the Kent County Levy Court (“Levy Court”) approved

a conditional use permit application filed by Defendant FPS Cedar Creek Solar,

LLC, a Delaware Limited Liability Company (“Freepoint”), to construct a solar farm

near property owned by members of Plaintiff Citizens Against Solar Pollution, a

Delaware Unincorporated Nonprofit Association (together, “Plaintiffs”).3

On March 25, 2022, Plaintiffs brought an action in the Court of Chancery

seeking a preliminary injunction, permanent injunction, and declaratory judgment

against all Defendants: the Levy Court and Kent County (the “County Defendants”)

as well as Freepoint, The Piney Cedar Trust, James C. Knotts, Jr., Cheryl A. Knotts,

DE Land Holdings 1 LLC, Amy Peoples and Richard A. Peoples, Trustees of the

Piney Cedar Trust (the “Freepoint Defendants”).4

1
Unless otherwise noted, this Court’s recitation is drawn from Plaintiffs’ Amended Complaint
(“Complaint”) and all documents the parties incorporated by reference. Am. Compl. (D.I. 1)
(“Am. Compl.”); see In re Santa Fe Pac. Corp. S'holder Litig., 669 A.2d 59, 69–70 (Del. 1995).
2
Although not disputed by the parties in this matter, Plaintiffs only cite to January 26, 2022, the
date the Levy Court notified Freepoint that the conditional use permit application had “allegedly
been approved.” Am. Compl. ¶ 42. In the first responsive pleading, County Defendants cite to
January 25, 2022, the date the Levy Court approved Freepoint’s conditional use permit application.
County Defs.’ Resp. in Opp’n to Pls.’ Mot. for Writ of Cert. ¶ 2 (D.I. 5) (“County Defs.’ Resp.”).
3
County Defs.’ Resp. ¶ 2.
4
Id.
4
 B. PROCEDURAL POSTURE

1. The Court of Chancery Action5

Plaintiffs filed first in the Court of Chancery on March 25, 2022.6 They

challenged the Levy Court’s approval of the conditional use permit7 as invalid and

sought the following remedies: (1) a preliminary injunction preventing Freepoint

from commencing construction on the solar farm; (2) a permanent injunction barring

Freepoint from relying on the Levy Court’s approval; and (3) a declaratory judgment

regarding the legality of the Levy Court’s approval.8

On September 27, 2022, via a cross-motion for summary judgment,

Defendants raised the issue of standing and cited support in Dover Historical Society

v. City of Dover Planning Commission.9 The Court of Chancery noted the authority

implicated issues of subject matter jurisdiction, where the Delaware Supreme Court

explained that it is “well established that a writ of certiorari proceeding in the

Superior Court is the appropriate cause of action for determining whether, on the

5
Generally, citations regarding the Court of Chancery Action cite directly to the Order Dismissing
Complaint with Leave to Transfer decided on February 24, 2023. Citizens Against Solar Pollution
v. Kent Cnty., 2023 WL 2199646 (Del. Ch. Feb. 24, 2023) (“Citizens Against Solar Pollution I”).
Otherwise, citations regarding the Court of Chancery Action cite to the Exhibits in the Amended
Complaint.
6
Am. Compl. Ex. 4.
7
Delta Eta Corp. v. City of Newark, 2023 WL 2982180, at *1 n.1 (Del. Ch. Feb. 2, 2023) (“Delta
Eta”); 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.”). For the sake of clarity, this Court uses conditional use permit.
8
Am. Compl. Ex. 4.
9
See Dover Historical Soc. v. City of Dover Planning Comm'n, 838 A.2d 1103 (Del. 2003).
5
face of the record, the [agency] exceeded its powers or failed to conform to the

requirements of law.”10 Accordingly, the Court ordered the parties to submit

supplemental briefing regarding subject matter jurisdiction.11 The parties thereafter

alerted the Court to the February 2023 decision in Delta Eta Corporation v. City of

Newark.12

On February 24, 2023, the Court, adopting the reasoning of Delta Eta, agreed

that, “unless the claimant demonstrates otherwise, a writ of certiorari provides an

adequate remedy at law to redress harm caused by a quasi-judicial decision denying

a conditional use permit.”13 Holding that it lacked subject matter jurisdiction, the

Court dismissed the Complaint without prejudice with leave to transfer the action to

this Court pursuant to 10 Del. C. § 1902.14 In so doing, it noted Plaintiffs had an

adequate remedy at law, a writ of certiorari, and found that injunctive relief was not

proper.15 Recognizing Plaintiffs’ concerns regarding interim injunctive relief, the

Court also noted the status quo order was to remain in effect “until the earlier of

Plaintiffs’ election to transfer and 60 days from the date of this Order.”16

10
Citizens Against Solar Pollution I, 2023 WL 2199646, at *1 (quoting Dover Historical Soc. v.
City of Dover Planning Comm'n at 1106).
11
Citizens Against Solar Pollution I, 2023 WL 2199646, at *1.
12
Id. (citing Delta Eta, 2023 WL 2982180, at *14) (holding that “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.”).
13
Citizens Against Solar Pollution I, 2023 WL 2199646, at *1.
14
Id. at *3.
15
Id.
16
Id.
6
 2. This Action

On March 21, 2023, pursuant to 10 Del. C. § 1902, Plaintiffs filed their

Amended Complaint in this Court and sought a declaratory judgment and certiorari

review.17 On March 29, 2023, Plaintiffs also filed a “Motion” for Writ of Certiorari

and requested a stay to ensure that Defendants would not act upon the Levy Court’s

grant of the conditional use permit.18

On April 10, 2023, Plaintiffs’ counsel wrote to this Court for direction, stating

the parties were “at an impasse on how to proceed [procedurally] in this somewhat

unique case,” namely, that Plaintiffs wished to resume litigation at the summary

judgment stage whereas Defendants planned to seek dismissal under Superior Court

Civil Rule 12(b)(6).19

On April 24, 2023, the Court held a status conference at which time the

Defendants confirmed their intent and sought leave to file a motion to dismiss the

Amended Complaint.20 Plaintiffs wanted to brief what they considered issues

presented for the first time here.21 Concerned that Defendants would act upon the

Levy Court’s approval, despite the ongoing litigation, Plaintiffs requested a stay.22

17
See Am. Compl.
18
Pls.’ Mot. for Writ of Cert. ¶ 9 (D.I. 3) (“Pls.’ Mot. for Writ of Cert.”).
19
Pls.’ Letter Req. Status Conference and Providing Orders and Decision for Ct.’s Reference (D.I.
4) (“Pls.’ Letter”).
20
Parties’ Status Conference dated 4-24-2023 (D.I. 13) (“Status Conference”).
21
Id.
22
Status Conference.
7
Upon agreement of all Defendants,23 this Court allowed for the issuance of the writ

of certiorari, holding it in abeyance during the pendency of this ruling.24 Common

sense suggested as much.25

County Defendants filed a Motion to Dismiss Plaintiffs’ complaint as

untimely and improper.26 Plaintiffs filed their answering brief,27 to which County

Defendants replied,28 with Freepoint Defendants joining.29 This Court heard

argument thereafter,30 and the matter is now ripe for decision.

23
Defs.’ Joint Letter to the Ct. (D.I. 14) (“Defs.’ Joint Letter”).
24
Ct.’s Letter to Counsel (D.I. 16) (“Letter to Counsel”).
25
Citizens Against Solar Pollution I, 2023 WL 2199646, at *3. (In the Chancery Action, the Court
noted that Freepoint averred that it would “‘def[y] logic’ to think it would begin construction while
its permit hangs in the balance.”)
26
County Defs.’ Mot. to Dismiss Compl. (D.I. 17) (“County Defs.’ Mot. to Dismiss Compl.”).
27
Pls.’ Answering Br. in Opp’n to County Defs.’ Mot. to Dismiss (D.I. 18) (“Pls.’ Answering Br.
in Opp’n to County Defs.’ Mot. to Dismiss”).
28
County Defs.’ Reply Br. in Supp. of Mot. to Dismiss (D.I. 20) (“County Defs.’ Reply Br. in
Supp. of Mot. to Dismiss”).
29
Freepoint Defs.’ Joinder to County Defs.’ Reply Br. in Supp. of Mot. to Dismiss (D.I. 21)
(“Freepoint Defs.’ Joinder to County Defs.’ Reply Br. in Supp. of Mot. to Dismiss”).
30
Judicial Action Form dated 7-18-2023 (D.I. 22).
8
 III. DELTA ETA

As the Chancery Action had adopted the rationale of Delta Eta,31 the summary

below contextualizes the parties’ contentions.

Delta Eta, the fraternity chapter’s housing corporation for Pi Kappa Alpha,

applied for a special use permit seeking to use a previously owned residence as the

chapter’s fraternity house in Newark, Delaware.32 Under Newark’s city code,

special use permits can be issued for certain uses depending on the zoning of the

district.33 The Newark City Council denied the permit.34

Fifty-eight (58) days later, counsel for Delta Eta (same counsel for Plaintiffs

here) filed an action in the Court of Chancery against the City and the Council

members who had voted no on the special use permit.35 Count I sought a permanent

injunction prohibiting the City and Council members from relying on the special

permit denial and mandating that the special permit be approved.36 Count II sought

31
Delta Eta, 2023 WL 2982180, at *14 (explaining that a writ of certiorari is an adequate legal
remedy for challenging the quasi-judicial denial of a special use permit.) On the same day as Delta
Eta was decided, the same Vice-Chancellor also issued Middlecap Associates, LLC v. Town of
Middletown, 2023 WL 2981893, at *2 (Del. Ch. Feb. 2, 2023) (“My reasoning and conclusions in
Delta Eta apply with equal force to this matter. The denial of Petitioner's conditional use permit
was a quasi-judicial act, guided by Town Code requirements for a conditional use allowed in the
C-3 Zoning districts. For the reasons stated in Delta Eta, a writ of certiorari is or was available to
Petitioner.”).
32
Delta Eta, 2023 WL 2982180, at *1.
33
Id. at *2.
34
Id. at *3–4.
35
Id. at *4.
36
Id.
9
a declaratory judgment that the denial of the special use permit was invalid, and that

Delta Eta was entitled to “issuance of the Special Use Permit as a matter of law.”37

Defendants thereafter sought dismissal invoking Court of Chancery Rule

12(b)(1) and 12(b)(6), asserting that the Court lacked subject matter jurisdiction.38

On February 2, 2023, the Court agreed, and dismissed the Complaint with leave to

transfer the action to this Court pursuant to 10 Del. C. § 1902.39

The Court of Chancery noted that, “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.”40 It found Delta Eta’s

request fell short of invoking equitable jurisdiction “both because [Delta Eta] has

not sufficiently pled the need for an injunction, and because a writ of certiorari

provides an adequate remedy at law.”41 Regarding the availability of that writ, the

Court noted that the fact “[t]hat Delta Eta waited to seek certiorari review such that

it may now be unavailable is irrelevant for purposes of this decision.”42 Like

37
Delta Eta, 2023 WL 2982180, at *4.
38
Id.
39
Id. at *20.
40
Id. at *1.
41
Id. at *4.
42
Id. at *14 n.127. (See In re Wife, K., 297 A.2d 424, 425 (Del. Ch. 1972)) (“[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.”).
10
Plaintiffs, Delta Eta has since filed for identical relief in this Court.43 That decision

is pending.

IV. PARTIES’ CONTENTIONS

Defendants strategically move to dismiss the claim for certiorari review as

time-barred under well-settled law that such writs must be filed within thirty days of

the decision sought to be reviewed, absent exceptional circumstances.44 They argue

that Plaintiffs’ unilateral choice to file in the Court of Chancery fifty-eight (58) days

after the approval of the conditional use permit was untimely, and that Plaintiffs

offer no exceptional circumstances exempting them from the thirty-day filing rule

applicable to a common law certiorari petition.45

Defendants further contend the declaratory judgment claim must be dismissed

because that remedy is available only when no other remedy exists.46 In that vein,

they maintain that Plaintiffs’ failure to timely pursue certiorari does not render that

remedy inadequate.47 And since Plaintiffs had an adequate remedy via certiorari,

the declaratory judgment claim must be dismissed.48

Plaintiffs’ opposition is multi-faceted. Through various restyled contentions,

Plaintiffs’ argument against dismissal can be distilled to a single theme of criticism

43
The Superior Court Action in Delta Eta is captioned C.A. No. N23C-03-136 SKR.
44
County Defs.’ Mot. to Dismiss Compl. ¶ 4.
45
Id. ¶ 5.
46
Id. ¶ 6.
47
Id. ¶ 9.
48
Id.
11
and disagreement with the Delta Eta ruling.49 According to Plaintiffs, the Court

“jettisoned decades of decisions that it had jurisdiction over zoning cases.”50 Indeed,

they argue, filing in the Court of Chancery was common practice,51 and subsequently

provide a list of cases where Plaintiffs contend the Court of Chancery exercised

jurisdiction over “similar zoning challenges.”52 Plaintiffs further contend that

Defendants’ defenses should be barred because they waited “too long” to raise

them.53 Conversely, Plaintiffs argue that they are not untimely under what they insist

is the most analogous statute, 10 Del. C. § 8126, which allows for a sixty-day

statutory filing period.54 Too, they suggest this Court should exercise discretion and

find the existence of “unique and extraordinary circumstances” to excuse any filing

delay.55 And lastly, they argue, the motion to dismiss should be barred by the

doctrines of waiver,56 judicial estoppel,57 and the law of the case58 because

Defendants withheld their intent to seek dismissal here from the Court of Chancery.

49
Pls.’ Answering Br. in Opp’n to County Defs.’ Mot. to Dismiss at 10-21.
50
Id. at 10.
51
Id. at 19 n.13. (Plaintiffs allege that “no one could have anticipated the jurisdictional change of
course that took place in this action.”).
52
Id. at 15-19. Plaintiffs’ list includes Coker v. Kent Cnty. Levy Court, 2008 WL 5451337 (Del.
Ch. Dec. 23, 2008). Although Plaintiffs refer to Coker only by name and do not base any
argumentation on it, Coker was issued in 2008 by the Court of Chancery that considered a
challenge of the Kent County Levy Court’s denial of a conditional use application.
53
Id. at 21–23.
54
Id. at 28–33.
55
Id. at 30-33.
56
Id. at 34–36.
57
Id. at 34-39.
58
Id. at 39–40.
12
 Alternatively, Plaintiffs maintain that declaratory judgment is an appropriate

remedy in lieu of certiorari review.59 They insist again that this Court lacks

jurisdiction, should “skip all of the arguments,” and transfer the case back to the

Court of Chancery60 “based upon the principle that a writ of certiorari is unavailable

when another adequate remedy is available.”61

V. STANDARD OF REVIEW

Under Delaware Superior Court Civil Rule 12(b)(6), dismissal is appropriate

when the complaint fails to state a claim upon which relief can be granted.62

When reviewing a ruling on a motion to dismiss, we (1) accept
all well pleaded factual allegations as true, (2) accept even vague
allegations as “well pleaded” if they give the opposing party
notice of the claim, (3) draw all reasonable inferences in favor of
the non-moving party, and (4) do not affirm a dismissal unless
the plaintiff would not be entitled to recover under any
reasonably conceivable set of circumstances.63

VI. DISCUSSION

Article IV, Section 7 of the Delaware Constitution, vests this Court with

“original and exclusive jurisdiction among trial courts. . . to issue common law writs

59
Pls.’ Answering Br. in Opp’n to County Defs.’ Mot. to Dismiss at 41-48.
60
Id. at 51.
61
Id. at 49.
62
Super. Ct. Civ. R. 12(b)(6).
63
Cent. Mortg. Co. v. Morgan Stanley Mortg. Cap. Holdings LLC, 27 A.3d 531, 535 (Del. 2011)
(citing Savor, Inc. v. FMR Corp., 812 A.2d 894, 896-97 (Del. 2002)).
13
of certiorari.”64 The Court of Chancery “generally lacks jurisdiction to consider the

issuance of the common law writ.”65 Previously, the Court of Chancery had

contemplated, at least in the abstract, the viability of conducting certiorari review

under the clean-up doctrine.66 But at present, only this Court can conduct this

review.

64
Young v. Red Clay Consol. Sch. Dist., 2015 WL 5853762, at *5 (Del. Ch. Oct. 2, 2015) (citing
Maddrey v. Justice of the Peace Court 13, 956 A.2d 1204, 1207 (Del. 2008)); see 1 Victor B.
Wooley, Practice in Civil Actions and Proceedings in the Law Courts of the State of Delaware §§
894–896 (1906) (describing common law writ of certiorari as falling within authority of Superior
Court).
65
Young, 2015 WL 5853762, at *5 (citing Gladney v. City of Wilm., 2011 WL 6016048, at *4
(Del. Ch. Nov. 30, 2011) (“[T]he true substance of the relief [plaintiff] seeks is a writ of certiorari,
which is both an adequate remedy at law and a remedy reserved to the exclusive jurisdiction of the
Superior Court.”)) (citations omitted).
66
Young, 2015 WL 5853762, at *7 (“No Delaware case has addressed whether the Court of
Chancery could exercise clean-up jurisdiction to issue a common law writ of certiorari. The parties
have not cited precedents from other jurisdictions that might shed light on the question, nor have
they dusted off venerable treatises on equity practice and procedure. Moreover, any answer that
this court might give would not be definitive. Only the Delaware Supreme Court could reconcile
two competing sources of jurisdiction, each of constitutional magnitude.”).
14
 A. WRIT OF CERTIORARI

One of the oldest common law writs, the writ of certiorari is “simply a form

that calls up, for review, the record from the lower court or tribunal.”67 “[C]ertiorari

involves a review of only such errors as appear on the face of the record being

considered.”68 It is “not a substitute for, or the functional equivalent of, an appeal.”69

Nor may this Court consider the case on the merits.70 Such review is available only

where “(1) the lower entity has acted in a judicial or quasi-judicial capacity,71

(2) there is no other adequate remedy at law,72 and (3) there is no right to appeal.”73

In Matter of Gunn, the Supreme Court indicated that the time limit to file a writ of

67
Reise v. Bd. of Bldg. Appeals of City of Newark, 746 A.2d 271, 273 (Del. 2000), overruled by
Black v. New Castle Cnty. Bd. of License, 117 A.3d 1027 (Del. 2015) (citing Matter of Butler, 609
A.2d 1080 (Del. 1992)).
68
Castner v. State, 311 A.2d 858, 858 (Del. 1973) (citations omitted).
69
Maddrey, 956 A.2d at 1213 (citing DuPont v. Family Ct. for New Castle County, 153 A.2d 189,
194 (Del.1959)) (“it is apparent that review by writ of certiorari is not the equivalent [of an
appeal], for in such proceedings the evidence received in the inferior court is not part of the record
to be reviewed in a certiorari proceeding.”).
70
Christiana Town Ctr., LLC v. New Castle Cnty., 865 A.2d 521 (Del. 2004) (“The reviewing
court does not consider the case on its merits; rather, it considers the record to determine whether
the lower tribunal exceeded its jurisdiction, committed errors of law, or proceeded irregularly.”)
(citations omitted).
71
Delta Eta, 2023 WL 2982180, at *10 (citing Dover Historical Soc. at 1106) (“The common law
writ of certiorari lies to review acts that are judicial or quasi-judicial in nature.”) (citations
omitted).
72
Id. (citing In re Petition of Howell, 2007 WL 1114123, at *1 (Del. 2007)).
73
Id. (See Reise v. Bd. of Bldg. Appeals of City of Newark, 746 A.2d at 272).
15
certiorari is thirty (30) days from the action underlying the petition,74 excusable only

under exceptional circumstances.”75

1. Thirty-Day Filing for Writ of Certiorari

It is undisputed that Plaintiffs filed their first challenge fifty-eight (58) days

after the Levy Court made its determination to grant the conditional use permit. To

be fair, Plaintiffs were not seeking certiorari review. Yet, Defendants rely solely on

the 30-day certiorari deadline to argue for dismissal of all claims.

Plaintiffs offer statutory alternatives, case law, and common practices to

suggest the time limit to file the review is sixty (60) days.76 Specifically, they

propose that the “law in Delaware is that a certiorari action must generally be filed

within the period of time contained in the most closely analogous Delaware Code

provision.”77 And to them, that 10 Del. C. § 8126—which governs county and

74
Matter of Gunn, 122 A.3d 1292, 1293 (Del. 2015); In re Bass, 1992 WL 183105, at *1 (Del.
July 23, 1992); Cape Henlopen School District v. Delaware Interscholastic Athletic Ass'n, 2009
WL 388944, at *2 (Del. Super. Ct. Jan. 28, 2009) (“ ‘There appears to be no good reason, absent
exceptional circumstances, why a party should have more time to ask for the writ of certiorari than
he would have to take an appeal . . . in an ordinary case’ ”) (quoting Elcorta, Inc. v. Summit
Aviation, Inc., 528 A.2d 1199, 1201 (Del. Super. Ct. 1987)).
75
Id. In re Petition of Fridge, 604 A.2d 417 (Table), 1991 WL 247811, at *1 (Del. Nov. 20, 1991)
(“Although there is no statutorily-imposed time period in which to seek review under a writ of
certiorari, we have ruled that the time for seeking such review is analogous to the period governing
direct appeals” and holding that a petition not filed within thirty days was time barred); McIntosh
v. City of Newark, 2006 WL 1134894, at *1 (Del. Super. Ct. Mar. 31, 2006) (“The period of time
for filing a Petition for a Writ of Certiorari has been set by decisions in this Court at 30 days.”).
76
Pls.’ Answering Br. in Opp’n to County Defs.’ Mot. to Dismiss at 24-28.
77
Id. at 25.
16
municipality zoning and planning actions with its 60-day filing time limit—is most

analogous.78 Not so.

At the outset, it is true that the statute of repose included within 10 Del. C.

§ 8126 requires any challenge of a municipal zoning decision to be filed within 60

days.79 The act of rezoning is legislative in nature and therefore cannot be subject

to a writ of certiorari.80 But here, the Court of Chancery determined that the Levy

Court’s role was to approve or deny a special use permit, and as explained in Delta

Eta, “[w]hen the availability of the special use permit is circumscribed by ordinance,

approving or denying a special use permit application is a quasi-judicial act,”81

subject only to review by writ of certiorari.82

Next, the request to revisit the Court of Chancery’s determination exceeds the

scope of review in this 12(b)(6) motion. Consideration of a most analogous statute

78
Pls.’ Answering Br. in Opp’n to County Defs.’ Mot. to Dismiss at 25.
79
See 10 Del. C. § 8126.
80
See Delta Eta, 2023 WL 2982180, at *17 (“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”) (citations omitted).
81
Delta Eta, 2023 WL 2982180, at *13; (citations omitted); See 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); see
also 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.”).
82
Citizens Against Solar Pollution I, 2023 WL 2199646, at *2.
17
is also not proper where after Gunn, our Supreme Court indicated the 30-day

deadline applies to common law certiorari review. To accept Plaintiffs’ position

that a 60-day time limit applies would require this Court to: (1) ignore the Supreme

Court’s pronouncement under Gunn; and (2) reject the Chancery Court’s

determination that the Levy Court’s act was quasi-judicial. Neither is proper.

2. Exceptional Circumstances

A petition for a writ of certiorari “filed later than thirty days will be excused

only under exceptional circumstances.”83 While Delaware courts have not settled

on what constitutes an “exceptional circumstance,”84 the Delaware Supreme Court

did conclude in Gunn that “[p]etitioner’s unilateral decision to pursue an improper

course of litigation is not an exceptional circumstance that excuses the delay in filing

the Petition for a writ of certiorari.”85

The issue of whether exceptional circumstances exist to excuse the

untimeliness has been argued by both sides here. Rather than provide circumstances

for why Plaintiffs failed to file before the 30-day deadline, they point to the Delta

Eta decision. Defendants say Plaintiffs simply made a wrong choice to file in the

Court of Chancery. For completeness, this Court addresses each of their arguments.

83
Matter of Gunn, 122 A.3d at 1293.
84
FMC Corp. v. Special Servs. Dep't, 2017 WL 2378002, at *4 (Del. Super. Ct. May 31, 2017).
85
Matter of Gunn, 122 A.3d at 1293.

18
 Plaintiffs’ counsel is a seasoned land-use practitioner. In challenging the

Levy Court’s decision granting the conditional use permit, Plaintiffs sought

equitable relief in the form of both a temporary and permanent injunction and filed

58 days after the Levy Court acted. No doubt the equitable relief sought in Chancery

would have allowed Plaintiffs to reap the benefits of discovery and a different

standard of review, 86 neither of which is available through certiorari review.87

Plaintiffs’ counsel, for good reason, may have always believed this a proper

course. This Court has a sympathetic ear to the Bar that practices in this area and

some understanding of its previous filing practices. Indeed, this Court could perhaps

have determined the existence of exceptional circumstances if Plaintiffs had offered

more than surprise and disagreement with the Delta Eta ruling as its non-articulated

bases. But this Court is limited to Plaintiffs’ arguments as presented. And on this

record, they are insufficient. Plaintiffs make two incorrect assumptions: that this

Court’s authority is sufficiently broad to conduct a review of a sister court’s decision

in order to find exceptional circumstances; and that the circumstance of an

unfavorable court ruling—standing alone—is exceptional.

86
Maddrey, 956 A.2d at 1207. (“[T]he Superior Court’s scope of review on common law writs of
certiorari issued to any inferior tribunal in any type of case, is limited to errors on the face of the
record.”).
87
Id. at 1213. (“The reviewing court does not consider the merits of the case. It considers only
those issues historically considered at common law; namely, whether the lower tribunal
(1) committed errors of law, (2) exceeded its jurisdiction, or (3) proceeded irregularly.”) (citations
omitted).
19
 Of course, this Court has found exceptional circumstances in some instances.

In FMC Corporation v. Special Services Department, compelling circumstances

existed to justify extension of the 30-day deadline for certiorari review.88 There, the

Court found exceptional circumstances because the petitioner had properly sought

and timely filed for appellate review under the applicable county code that the

petitioner understood as specifically providing for appeals.89 As it turns out, that

code’s provision misstated the process for “appellate” review.90 After the FMC

Corp. Court concluded that the petitioner did not have a statutory appeal right, it

determined that the exceptional standards were appropriately met.91

But here, Plaintiffs do not argue a mistake in the law as written. Rather, they

argue that the surprise of (and their disagreement with) the Delta Eta ruling is the

exceptional circumstance that they complain “jettisoned decades of decisions that it

had jurisdiction over zoning cases.”92 And just as Plaintiffs unsuccessfully argued

88
FMC Corp., 2017 WL 2378002, at *1.
89
Id. at *4. (“Here, FMC filed a notice of appeal in a timely manner, providing copies and notice
to both the Department and the County. FMC proceeded under Section 38.03.004 of the Code,
which at least arguably could be understood to create a right of appeal to this Court. That Section
certainly was enough to create a level of uncertainty regarding the proper way to appeal. Without
any decision of this Court interpreting Section 38.03.004, FMC found itself between Scylla and
Charybdis; whatever avenue it pursued, FMC would be faced with a timeliness argument if a court
ultimately determined it was the wrong avenue. FMC’s understandable uncertainty as to whether
a right of direct appeal existed is excusable….”).
90
Id. at *3.
91
Id. at *4.
92
Pls.’ Answering Br. in Opp’n to County Defs.’ Mot. to Dismiss at 10-21.
20
the applicability of 10 Del. C. § 8126, they now suggest exceptional circumstances

are established if this Court examines those past Chancery zoning decisions and

declares a radical departure. This Court cannot conduct the review as requested.

Enumerating various Sussex County rezoning decisions, Plaintiffs attach

some historical significance to them,93 and argue that Delta Eta’s ruling “failed to

jibe with its decades-long exercise of jurisdiction over actions challenging…zoning

decisions” and “flied in the face of the theory that [r]ezonings are always legislative

and Conditional Use approvals are always quasi-judicial.”94 Criticizing the Delta

Eta decision, Plaintiffs elaborate on how other courts may have addressed the

characterization of prior conditional use permits (i.e., legislative, administrative, and

quasi-judicial) and the differences in our counties’ rezoning codes.95 But, in the end,

Plaintiffs concede that the rezoning function is legislative.96

In an attempt to gain some ground, Plaintiffs posit that a mere finding of

“appropriate circumstances” would allow the Court to exercise its discretion to

93
Pls.’ Answering Br. in Opp’n to County Defs.’ Mot. to Dismiss at 11-21.
94
Id. at 13.
95
Id. at 10-12.
96
Id. at 10. (“…although a rezoning function is legislative,” it “resembles a judicial
determination.”).
21
excuse their delay.97 Even if this were the correct standard,98 Plaintiffs’ selected

caselaw does not support their argument that this Court has such authority.

Plaintiffs rely on the trial court’s decision in Capano Investments v.

Levenberg99 to suggest this Court “possesses judicial discretion under the unique and

extraordinary circumstances [they claim are present here]. . . to rule that the certiorari

filing was timely. . . .”100 But Capano Investments does not vest this Court with the

discretion to qualify the circumstances here “extraordinary” as proposed by

Plaintiffs.101 There, the Supreme Court affirmed the Superior Court’s ruling that it

did not have appellate jurisdiction to review a summary possession appeal where the

law provided an appeal process to a special three-judge court.102 Plaintiffs cherry-

pick language103 from this Superior Court ruling104 that has nothing to do with

97
Pls.’ Answering Br. in Opp’n to County Defs.’ Mot. to Dismiss at 29-30.
98
Plaintiffs’ use of the “appropriate circumstances” standard ignores evolving Delaware case law.
Schafer v. Kent Cnty. Dep't of Planning Servs., 2023 WL 3750390, at *6 (Del. Super. Ct. May 31,
2023) (citing Matter of Gunn, 122 A.3d at 1293) (providing for the first time in Delaware
decisional law that “exceptional circumstances” as opposed to “appropriate circumstances” are
needed to excuse an untimely petition for writ of certiorari).
99
1988 WL 139892 (Del. Super. Ct. Dec. 9, 1988), aff'd, 564 A.2d 1130 (Del. 1989).
100
Pls.’ Answering Br. in Opp’n to County Defs.’ Mot. to Dismiss at 31-32.
101
Id.
102
See Capano Investments v. Levenberg, 564 A.2d 1130 (Del. 1989).
103
Pls.’ Answering Br. in Opp’n to County Defs.’ Mot. to Dismiss at 31. (“A good example of
how this Court has exercised discretion to allow a Certiorari action to be filed beyond the 30-day
rule of thumb is [Capano Investments].”).
104
What the Superior Court did say and what was subsequently affirmed by the Delaware Supreme
Court was, “Capano’s appeal must be dismissed because no appeal to Superior Court is provided
in summary possession cases. Neither ground which Capano advances in support of its petition for
a writ of certiorari is valid. It seeks a review of the merits of the case which is beyond the scope
of certiorari, and its argument that the panel was deprived of jurisdiction…is rejected by this
Court.” Capano Investments, 1988 WL 139892, at *3.
22
exceptional circumstances,105 and ignore the gravamen of the Supreme Court’s

decision affirming it.106 The Supreme Court was not upholding a discretionary act.

Instead, it simply affirmed that this Court did not have jurisdiction in that particular

action.

Plaintiffs’ refrain that the Delta Eta decision upended the universe of zoning

jurisprudence misses the mark. This Court cannot conduct the proposed extensive

review they seek in order to find exceptional circumstances. The choice to seek a

more favorable form of review in one court over the permissible review by another

is not sufficient to qualify as an exceptional circumstance. And the criticism of the

Delta Eta ruling, without a substantive basis beyond mere disagreement with it, is

also insufficient.

But the analysis does not end here. Both sides downplay the significance of

10 Del. C. § 1902’s transfer provisions. Defendants turn a blind eye to it and

Plaintiffs read it to suggest this matter should return to the Court of Chancery. This

Court reads the transfer statute differently.

105
The Superior Court held that it did not have jurisdiction and Plaintiffs’ attempt to construe that
as a judicial exercise of discretion is incorrect.
106
Capano Investments, 564 A.2d at 1131 (holding that the Superior Court had no jurisdiction to
review substantive rulings of the justice of the peace court in summary possession proceedings,
and the statute permitting a right to appeal to a special court comprised of three justices of the
peace did not give parties a right to appeal to the Superior Court).

23
 3. Ten Del. C. § 1902’s Discretionary Provisions

This matter was timely transferred from the Court of Chancery pursuant to

10 Del. C. § 1902, which statutorily authorizes the removal of actions from courts

lacking jurisdiction. The law provides:

No civil action, suit or other proceeding brought in any court of this
State shall be dismissed solely on the ground that such court is without
jurisdiction of the subject matter. . . .

Such proceeding may be transferred to an appropriate court for hearing
and determination. . . .

The latter court shall thereupon entertain such applications in the
proceeding as conform to law and to the rules and practice of such
court, and may by rule or special order provide for amendments in
pleadings and for all other matters concerning the course of procedure
for hearing and determining the cause as justice may require.

For the purpose of laches or of any statute of limitations, the time of
bringing the proceeding shall be deemed to be the time when it was
brought in the first court.

This section shall be liberally construed to permit and facilitate
transfers of proceedings between the courts of this State in the interests
of justice.107

Defendants maintain this Court must dismiss where Plaintiffs “filed in the

wrong court and sought the wrong remedy.”108 They double down and contend that

107
10 Del. C. § 1902 (emphasis added).
108
County Defs.’ Mot. to Dismiss Compl. ¶ 5.
24
the failure to file within the 30-day deadline serves to bar Plaintiffs here regardless

of the transfer to this Court. This argument ignores § 1902’s provisions.

Our Supreme Court has instructed that § 1902 is “a remedial statute designed

to prevent a case from being totally ousted because it was brought in the wrong

Court.”109 It further directed in Nicholas v. Nat’l Union Fire Ins. Co. of Pittsburgh,

Pa, that “[a]ccording to its express terms [§] 1902 should be liberally applied to

achieve its purposes.”110

Thus, although § 1902 provides guidance as to timeliness issues associated

with statute of limitations and laches, the policy considerations behind the statute

are intended to allow judicial officers latitude in facilitating the transfer of cases.

For the reasons more fully explained now, the language of § 1902 overrides any

residual arguments that the missed deadline implicates this transfer.

a. Section 1902’s Conformity To Rules and Practice

Absent governing rules and procedures in this Court, a case transferred under

§ 1902 from the Court of Chancery is subject to judicial discretion in conformity to

law and to the rules and practice of such court, and may by rule or special order,

109
Wilmington Tr. Co. v. Schneider, 342 A.2d 240, 242 (Del. 1975).
110
Nicholas v. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa, 74 A.3d 634, 636 (Del. 2013) (quoting
Family Court of Delaware v. Giles, 384 A.2d 623, 624 (Del. 1978)).

25
provide for amendments in order to facilitate the transfer of cases between Delaware

courts.111

With this guidance, the Court looks to the Chancery Action’s decision to grant

Plaintiffs’ leave to transfer their matter to this Court. The parties had reached the

cross-summary judgment stage in the Chancery Action when the Court determined

it lacked subject matter jurisdiction. Once here, the parties seemed unsure as to how

to proceed, as evident from their respective filings.112

The Court of Chancery’s most recent decision in Kroll v. City of Wilmington113

speaks to the complexity surrounding the intersection of the transfer of cases

between the courts. It is not the Kroll Court’s holding on the issue of subject matter

jurisdiction that is germane to the issue here, but its acknowledgement that both the

Chancery and Superior courts need to attain some procedural footing in light of the

recent decisions following Delta Eta. Kroll noted that:

[t]he parties’ briefing raises interesting issues on the fault lines between
this court’s jurisdiction and the Superior Court’s exclusive powers to
review certain administrative decisions through the writ of certiorari.

. . .[T]he briefing did not offer much in the way of a resolution. And
the answer is messy—there seems to be no clear rule for deciding

111
See 10 Del. C. § 1902.
112
Plaintiffs’ belt and suspenders filings include both an Amended Complaint and a Motion for
Writ of Certiorari to stay the proceedings, even after the Chancery Action had clarified that the
matter had been stayed during the pendency of litigation in both courts. Defendants conceded as
much. Defendants also sought direction and leave to file a Motion to Dismiss as their responsive
pleading to the Amended Complaint.
113
2023 WL 6012795 (Del. Ch. Sept. 15, 2023).
26
 whether certiorari presents an adequate remedy to injunctive
relief. . . .114

The apparent availability of certiorari and injunctive relief as dueling
review mechanisms of last resort for administrative decisions raises a
complicated jurisdictional analysis for the Court of Chancery.115

So, by default, this Court must also consider the procedural processes moving

forward.116 This Court, finding itself in “murky and dispositive”117 territory

concerning a § 1902 transfer also steers clear of a ruling that would unduly penalize

Plaintiffs and leave them without a remedy in either court.118 Section 1902 affords

the exercise of discretion to prevent such a harsh result. This further aligns with our

sister court’s recent post-Delta Eta observation that “[e]ven where the court has

found itself devoid of subject matter jurisdiction because certiorari was available, it

114
Kroll, 2023 WL 6012795, at *2.
115
Id. at *11.
116
Pending in this Court are two additional cases transferred under § 1902: Delta Eta captioned
C.A. No. N23C-03-136 SKR and Middlecap Assoc. vs. The Town of Middletown captioned C.A.
No. N23C-03-181 CEB.
117
Otto Candies, LLC v. KPMG, LLP, 2019 WL 1856766, at *4 (Del. Ch. Apr. 25, 2019) (“I
believe Plaintiffs likewise operated in good faith while in the shadow of a murky and dispositive
legal issue. I apply the good cause exception to dismiss Plaintiffs’claims without prejudice. But
now that the issue has been sorted out, I would not give the same latitude to future parties in similar
situations.”).
118
Id. at *1. (“…Rule 15(aaa), or the policies that motivate it, apply when a complaint is transferred
to this Court subject to a fully briefed motion seeking dismissal under Rules 12(b)(6) or 23.1.
Transferring plaintiffs must either seek leave to amend or stand firm on their complaint and risk
dismissal with prejudice under Rule 15(aaa). However, because the parties in this action were the
first to confront this issue, the interests of justice require a mulligan. Extinguishing plaintiffs'
claims with prejudice under Rule 15(aaa) would be unduly penal under the circumstances, and so
their claims are dismissed without prejudice under the good cause exception to Rule 15(aaa).”).
27
has avoided announcing a categorical rule to that effect and has always paid special

attention to the relief sought by the plaintiff.”119

b. Section 1902’s Mandate in the Interests of Justice

In the aftermath of Delta Eta, some defendants that have moved for dismissal,

have later agreed that the reasonable course is to avoid the wholesale dismissal of an

action, and accordingly, simply consented to amendment of the transferred matter to

include certiorari review.120 This allows these actions to move forward without

consideration of the timeliness issue.121

Defendants here, however, raise the timeliness issue that creates a catch-22.

Having successfully argued that the Court of Chancery lacks jurisdiction because a

legal remedy exists here, it now asks this Court to find the remedy is time-barred.

Plaintiffs cry foul. They say Defendants’ failure to raise the timeliness argument in

the Chancery Action should now bar Defendants’ untimeliness defense under the

doctrines of waiver,122 judicial estoppel,123 and law of the case, respectively.124

119
Kroll v. City of Wilmington, 2023 WL 6012795, at *11.
120
See 3330 Hospitality Group, LLC. v. City of Rehoboth Beach, et al. (Captioned S22C-11-016
RHR) (Upon Defendant’s Motion to Dismiss Plaintiff’s Complaint Upon Transfer, from a bench
ruling, the Superior Court “directs Plaintiff to amend the Complaint to certiorari with writ within
thirty (30) days….”) (D.I. 15). It’s often sunnier in Sussex County.
121
Id.
122
Pls.’ Answering Br. in Opp’n to County Defs.’ Mot. to Dismiss at 34–35.
123
Id. at 36-39.
124
Id. at 39–40.
28
 It is true that the Chancery Action never addressed the issue of timeliness.

Whether Defendants did, or failed to make, inconsistent or contrary arguments in

that Court is of no consequence. This Court also need not consider the doctrines of

waiver, estoppel, or law of the case as argued by Plaintiff.125 The language of § 1902

and the Court of Chancery’s decision to transfer are sufficient.126

The express language of § 1902 mandates it “be liberally construed to permit

and facilitate transfer…in the interests of justice,” allowing a “course of procedure

for hearing and determining the cause as justice may require.”127 The procedural

history reflects that from the first pleading when Defendants filed their Answer to

the Verified Complaint—and throughout the life of the Chancery Action—they

insisted dismissal was warranted because Plaintiffs had an adequate remedy at

law.128

125
Pls.’ Answering Br. in Opp’n to County Defs.’ Mot. to Dismiss at 39-40. To the extent that
Plaintiffs argue the 12(b)(6) motion for dismissal is barred by the Law of the Case Doctrine, the
argument fails as presented where Plaintiffs seek a remand to the Court of Chancery. This Court
is bound to consider only the writ of certiorari as contemplated by the Court of Chancery.
126
See Revolution Rentals DE, LLC v. Pomerleau, 2022 WL 16827448, at *5 (Del. Super. Ct. Nov.
4, 2022) (“Law of the case doctrine serves as ‘a form of intra-litigation stare decisis.’”) (citing
Carlyle Inv. Mgmt. L.L.C. v. Moonmouth Co. S.A., 2015 WL 5278913, at *7 (Del. Ch. Sept. 10,
2015)).
127
10 Del. C. § 1902 (emphasis added).
128
County Defs.’ Reply Br. in Supp. of Mot. To Dismiss, at 11. (“[T]he jurisdictional defense was
timely asserted in the Court of Chancery in Defendants’ third and fourteenth affirmative defenses
which state, respectively, ‘Plaintiffs have an adequate remedy at law’ and ‘[t]he conditional use
application decision is a quasi-judicial action for which this Court lacks jurisdiction.’”).
29
 In the final stages of that litigation, Defendants succeeded in persuading that

Court that the remedy existed and convinced that Court to summarily dismiss the

Chancery Action for lack of subject matter jurisdiction. Upon taking its decisional

action, the Court of Chancery contemplated that an adequate remedy exists here.

Accordingly, justice requires that this transferee court exercise its discretion and

consider the matter. To be persuaded otherwise would leave Plaintiffs without a

remedy in either court, violating both the spirit of § 1902 and the Court of

Chancery’s intent when it ended the Chancery Action.

Dismissal of Plaintiffs’ request for certiorari review in Count II of the

Amended Complaint is therefore improper. And Plaintiffs’ subsequent motion

seeking the same relief is moot. This matter will proceed as a petition for writ of

certiorari.

B. Declaratory Judgment

Lastly, Plaintiffs argue that this Court should exercise its discretion to transfer

the matter back to the Court of Chancery “based upon the principle that a writ of

certiorari review is unavailable when another adequate [equitable] remedy [of

declaratory judgment] is available.”129 Under the Declaratory Judgment Act,130

Delaware courts are empowered to render a declaratory judgment only when “[i]t

129
Pls.’ Answering Br. in Opp’n to County Defs.’ Mot. to Dismiss at 49.
130
10 Del. C. § 6501.
30