Citizens Against Solar Pollution v. Kent County ( 2024 )

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. )
ORDER
Submitted: March 22, 2024
Decided: May 7, 2024
Upon Petitioner’s Writ of Certiorari Regarding the Approval of the Conditional
Use Permit Application by the Kent County Levy Court:
AFFIRMED.
Theodore A. Kittila, Esq. and William E. Green, Jr., Esq., Attorneys for Plaintiffs
Citizens Against Solar Pollution, Donald Lee Goldsborough, and Kellie Elaine
Goldsborough. 1
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.
1
On November 9, 2023, Plaintiffs’ prior counsel was disbarred and compelled to withdraw from
this matter. The matter was stayed on November 21, 2023, to await an entry of appearance for
legal representation. Plaintiffs’ new counsel entered their appearances on January 18, 2024.
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 approval, Plaintiffs filed an action in the Court of Chancery seeking
injunctive relief and a declaratory judgment. 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 available by common law writ of certiorari.
Plaintiffs filed an Amended Complaint in this Court seeking declaratory
judgment in one count and certiorari review in another.2 On Defendants’ Motion to
Dismiss, this Court dismissed the declaratory judgment claim but exercised its
discretion to conduct certiorari review of the Levy Court’s determination that
approved the conditional use permit. 3 Having conducted certiorari review, the Levy
Court’s determination is AFFIRMED, and the remaining claim of Plaintiffs’
Amended Complaint is dismissed with prejudice.
2
Plaintiffs also filed a separate and redundant “Motion” for Writ of Certiorari, which this Court
deemed moot.
3
This Court previously determined that allowing Count II to survive dismissal did not afford any
additional rights or change the limited scope for writ of certiorari review. This matter is therefore
considered as a petition for writ of certiorari.
3
II. FACTUAL AND PROCEDURAL BACKGROUND
In October 2021, Defendant FPS Cedar Creek Solar, LLC, a Delaware limited
liability company (“Freepoint”), filed a request with the Kent County Levy Court
(“Levy Court”) to construct a solar farm, or farm fields arrayed with solar panels
that produce electricity from sunlight. 4 Specifically, in application No. CS-21-09,
FPS Cedar Creek Solar requested a Conditional Use with Site Plan Approval (the
“Application”) for a solar farm covering approximately 260 acres over three (3)
parcels of land of over 500 acres known as the Knotts Farm and the Piney Cedar
Trust Farm (the “Property”) in Kent County. 5
Through their trusts, Plaintiffs Donald Lee and Kellie Elaine Goldsborough
own property in Smyrna that comprises roughly 342 acres (the “Goldsborough
Property”). 6 Both are members of Plaintiff Citizens Against Solar Pollution
(“CASP”), a Delaware unincorporated nonprofit association. 7 The Goldsborough
Property is adjacent to the Property. 8
4
See D.I. 48 (hereinafter “Defs.’ Ans. Br.”) at 1.
5
Am. Compl. ¶ 6.
6
Id. ¶¶ 2–3.
7
Id.
8
Id. ¶ 6.
4
Notice of the Application was sent to all nearby property owners, and a large
sign announcing the Application was posted on the Property. 9 The Kent County
Department of Planning Services issued a written report recommending approval,
subject to certain conditions.10 The Kent County Regional Planning Commission
(“RPC”) conducted a public hearing and recommended in favor of the Application.11
The Levy Court held the first public hearing for the Application on December
21, 2021.12 The matter was tabled to introduce prepared public ordinances regarding
solar power projects in Kent County.13 The motion to table resulted in a 3-3 tie and
the motion failed.14 Immediately thereafter, a motion to deny the Application was
seconded, but failed with another tie vote with one member absent.15 A motion to
table a vote on the Application carried with a 5-1 vote until a seventh Commissioner
could be present.16 Plaintiff CASP did not appear at the public hearings. 17
9
Defs.’ Ans. Br. at 1.
10
Id.
11
Id.
12
D.I. 47 (hereinafter Pls.’ Open. Br.”) at 8.
13
Id.
14
Id. at 9.
15
Id.
16
Id.
17
Defs.’ Ans. Br. at 2.
5
On January 25, 2022, after comments were made by various Commissioners,18
the Levy Court approved the conditional use permit. The next day, it issued a
Written Decision, 19 stating in relevant part:
At its public hearing on January 25, 2022, the Levy Court of Kent
County granted CONDITIONAL APPROVAL of application CS21-09
FPS Cedar Creek Solar, LLC, a conditional use site plan for a Solar
Installation located outside the Growth Zone Overlay District.
This is based on Exhibit A – the RPC Recommendation Report dated
December 21, 2021; Exhibit B – Public Hearing Testimony dated
December 2, 2021; and the findings of fact that:
a. The subject site is zoned AC (Agricultural Conservation) and
§§205-48 and 205-329 permit public utilities as a conditional use.
b. The location is appropriate and not in conflict with the
Comprehensive Plan.
c. The public health, safety and general welfare will not be adversely
affected.
d. The application in [sic] compliant with the Adequate Public
Facilities Ordinance.20
18
Id. at 9–11.
19
Id.
20
Defs.’ Ans. Br., Ex. 4 ¶ 1.
6
The Levy Court further mandated compliance “with all Staff and Agency
Requirements as described in the December 21, 2021 RPC Recommendation
Report,” and further identified numerous conditions of approval. 21
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”).22
21
Id. ¶ 2 (The Written Decision’s conditions included: “a. The waiver . . . to allow panels installed
within the required ditch buffer is granted given that the disturbance required for installation is
limited . . . . b. The applicant shall submit a Reclamation Plan and a decommissioning surety . . . .
c. Decommissioning must consist of 1. Physical removal of all solar photovoltaic installations,
structures, equipment, security barriers and transmission lines from the site[.] 2. Recycling or
disposal of all solid and hazardous waste in accordance with local, state, and federal regulations.
3. Stabilization or revegetation of the site as necessary to minimize erosion . . . . d. a soil study
establishing the presence of any contaminants shall be completed prior to construction and every
five years thereafter . . . . e. If topsoil is removed for improvements, it shall remain on the site.
f. Perennial vegetative ground cover shall be maintained or established in all areas containing solar
arrays and in required setbacks to prevent erosion and manage run-off. g. Signage, not to exceed
. . . . h. Solar farms that do not produce energy for a continuous period of one year or more are
presumed to have been abandoned . . . . i. The proposed landscape buffers shall be a minimum of
100 ft. wide as presented at the December 2, 2021 public hearing. j. The final plan must be
approved within 24 months of preliminary plan approval and construction shall commence within
18 months of final plan approval. k. Failure to comply with the conditions of approval or
applicable regulations can result in a revocation of any permits issued for this conditional use and
a revocation of the conditional use itself.”).
22
Am. Compl. ¶¶ 5–12.
7
Adopting the rationale of Delta Eta Corporation v. City of Newark,23 the
Court of Chancery found the Levy Court had acted in a quasi-judicial capacity,
dismissed the Complaint for lack of subject matter jurisdiction, and granted Plaintiffs
leave to transfer to this Court pursuant to 10 Del. C. § 1902 (“Chancery Action”).24
Plaintiffs filed in this Court seeking declaratory judgment in one count and certiorari
review in another.
The circuitous procedural history following Plaintiffs’ initial filing in this
Court is familiar to the parties and has been already recounted by this Court. In lieu
of repeating that history, the Court directs interested readers to the Court’s previous
opinion in this matter. 25
More recently, this Court granted dismissal of Plaintiff’s declaratory
judgment claim but agreed to exercise discretion to conduct certiorari review of the
Levy Court’s approval of the conditional use permit.26 Defendants then filed an
Application for Certification of an Interlocutory Appeal. 27 Plaintiffs responded in
23
Delta Eta Corp. v. City of Newark, 2023 WL 2982180, (Del. Ch. Feb. 2, 2023).
24
Citizens Against Solar Pollution v. Kent Cnty., 2023 WL 2199646 (Del. Ch. Feb. 24, 2023).
25
Citizens Against Solar Pollution v. Kent Cnty., 2023 WL 6884688, at *2-3 (Del. Super. Oct. 17,
2023).
26
Id. at *12.
27
D.I. 25.
8
opposition.28 This Court denied certification.29 Defendants appealed to the
Delaware Supreme Court.30
In the interim, on November 13, 2023, Defendants filed the Certification of
Record (“Record”) to allow the Court to conduct certiorari review. 31
That same day, this Court issued a stay due to the disciplinary/disbarment
proceedings related to former Plaintiffs’ counsel, Richard L. Abbott. 32 After
Plaintiffs’ counsel was disbarred, another stay was entered pending an entry of
appearance for Plaintiffs’ counsel.33
On January 10, 2024, the Supreme Court refused interlocutory review.34
Within a week, Plaintiffs’ counsel entered their appearances.35 The Court then held
a status conference to confirm the matter would proceed solely on a limited review.36
28
D.I. 26, D.I. 27.
29
D.I. 33.
30
D.I. 34.
31
D.I. 28.
32
D.I. 29.
33
D.I. 35.
34
D.I. 36.
35
D.I. 38.
36
D.I. 39.
9
Thereafter, because the Record filed by Defendants included minutes and
transcripts of the Levy Court’s deliberations, 37 this Court requested clarification
regarding the items that constituted the record for purposes of certiorari review.
Additionally, this Court asked if Defendants sought to respond to the allegations that
the County Defendants proceeded irregularly and/or invalidly in its approval of the
conditional use permit. 38
Plaintiffs’ new counsel requested a briefing schedule.39 Defendants
responded that the inclusion of the minutes and transcripts was provided only out of
an abundance of caution, and that the Court had sufficient information from which
to conduct its limited review. 40 Given the recent involvement of Plaintiffs’ counsel,
this Court granted Plaintiffs’ request for full briefing.41 Plaintiffs filed their Opening
Brief.42 Defendants filed a Joint Answering Brief.43 On March 22, 2024, Plaintiffs
filed their Reply.44 The matter is now ripe for decision.
37
D.I. 28.
38
D.I. 40.
39
D.I. 42.
40
D.I. 41 at 1.
41
D.I. 43.
42
Pls.’ Open. Br.
43
Defs.’ Ans. Br.
44
D.I. 49.
10
III. STANDARD OF REVIEW
Article IV, Section 7 of the Delaware Constitution vests this Court with
“original and exclusive jurisdiction among trial courts . . . to issue common law writs
of certiorari.” 45 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.”46 Such review is available only where “(1) the lower entity has acted in a
judicial or quasi-judicial capacity,” 47 (2) “there is no other adequate remedy at
law,” 48 and (3) “there is no right to appeal.” 49 “[C]ertiorari involves a review of
only such errors as appear on the face of the record being considered.” 50 It is “not a
45
Young v. Red Clay Consol. Sch. Dist., 2015 WL 5853762, at *5 (Del. Ch. Oct. 2, 2015) (citing
Maddrey v. Just. of the Peace Ct. 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);
see also 10 Del. C. § 562 (“The Superior Court may frame and issue all remedial writs, including
writs of habeas corpus and certiorari, or other process, necessary for bringing the actions in that
Court to trial and for carrying the judgments of the Court into execution.”)
46
Reise v. Bd. of Bldg. Appeals 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 In re Butler, 609 A.2d 1080,
1081 (Del. 1992)).
47
Delta Eta Corp. v. City of Newark, 2023 WL 2982180, at *10 (Del. Ch. Feb. 2, 2023) (“The
common law writ of certiorari lies to review acts that are judicial or quasi-judicial in nature.”)
(citations omitted) (citing Dover Hist. Soc. v. City of Dover Plan. Comm'n, 838 A.2d 1103, 1106
(Del. 2003)).
48
Id. (citing In re Petition of Howell, 2007 WL 1114123, at *1 (Del. 2007)).
49
Id.; see Reise, 746 A.2d at 272.
50
Castner v. State, 311 A.2d 858, 858 (Del. 1973) (citations omitted).
11
substitute for, or the functional equivalent of, an appeal.” 51 Nor may this Court
consider the case on the merits.52
Instead, the review is limited to a determination if the lower tribunal
“(1) committed [an] error of law, (2), exceeded its jurisdiction, or (3) proceeded
irregularly.” 53 Although the Court’s review is limited to the “face of the record,”54
a lower tribunal’s decision “will be reversed for irregularities if the lower tribunal
failed to create and adequate record to review.”55
IV. PARTIES’ CONTENTIONS
Here, Plaintiffs do not challenge jurisdiction. Instead, they assert the Levy
Court failed to create an adequate record or proceeded irregularly and acted contrary
to law. As to the former, they argue the record is inadequate because some
documents are illegible or not included such that the record precludes this Court
51
Maddrey v. Just. of Peace Ct. 13, 956 A.2d 1204, 1213 (Del. 2008) (citing Du Pont v. Fam. Ct.
for New Castle Cnty., 153 A.2d 189, 194 (Del.1959)) (“[I]t 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.”).
52
Christiana Town Ctr., LLC v. New Castle Cnty., 2004 WL 2921830, at * 2 (Del. 2004) (TABLE)
(“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)).
53
Maddrey, 956 A.2d at 1213.
54
Black, 117 A3d. at 1031.
55
Jordan v. Town of Milton, 2012 WL 5494667, at *3 (Del. Super. Oct. 31, 2012) (quoting
Christiana Town Ctr., 2004 WL 1551457, at *2).
12
from conducting a proper review. 56 As to the latter, Plaintiffs argue that the Levy
Court’s approval is manifestly contrary to law for various reasons: the Levy Court
failed to adopt the statutorily required written ordinance; the solar farm is
inconsistent with the Kent County Comprehensive Plan and the Kent County Zoning
Code (“the Zoning Code”); the solar farm does not constitute a “public utility” as
defined in the Zoning Code; solar power entails impervious coverage in excess of
the 23% limitation permitted under the Zoning Code; and the Levy Court
Commissioners failed to articulate valid grounds for approval, in violation of the
Zoning Code. 57
Defendants maintain that the standard for review on certiorari is limited,58
the certified record is complete, adequate, and any argument regarding the legibility
of the copies produced for review is untimely and baseless.59 They maintain that the
Levy Court was acting in a quasi-judicial capacity as already determined in the
Chancery Action, and no requirement exists that the conditional use permit be
adopted by ordinance. 60
56
Pls.’ Open. Br. at 2.
57
Id.58
Defs.’ Ans. Br. at 7.
59
Id. at 8–11.
60
Id. at 11–13.
13
Furthermore, Defendants state that the conditional use permit is consistent
with the County’s Comprehensive Plan, and that Freepoint is a “public utility” under
the Kent County Code such that any disagreement by Plaintiffs with the Levy
Court’s factual determinations are not subject to certiorari review.61 Defendants
argue that the impervious coverage argument was not raised below and is, therefore,
waived.62 Alternatively, they reiterate that Plaintiffs’ argument must fail because
challenges to issues such as the amount of impervious coverage are questions of fact
not subject to certiorari review.63 Defendants also maintain the Levy Court
Commissioners properly stated their reasons for approval.64 And lastly, Defendants
contend that mere adjacency to the solar farm or claims of “special interest” are
insufficient bases to confer standing.65
This Court considers if the Levy Court failed to create an adequate record and
whether it proceeded illegally or manifestly contrary to law. The Court addresses
them in turn.
61
Id. at 14–19.
62
Id. at 19.
63
Id. at 19–21.
64
Id. at 21–24.
65
Id. at 25–27. Because the Court finds in favor of Defendants on certiorari review, it need not
address the issue of standing.
14
V. DISCUSSION
1. The Levy Court Created an Adequate Record
Plaintiffs’ first challenge involves the adequacy of the Record. Here, the
Record provided by the County Defendants consists of six exhibits to include the
Application (including the site plan), the list of docket entries, the Levy Court’s
Written Decision, as well as the minutes and transcripts of both business meetings
when the Application was discussed and voted upon. 66
Plaintiffs argue the deficiencies for review include that the Record (1) is
incomplete on its face; 67 (2) the inclusion of the minutes and transcripts is proper but
does not prevent the Record from being fatally incomplete;68 and (3) the Levy
Court’s decision improperly frames conclusions of law as findings of fact. 69
Under Delaware law, the record on certiorari includes only “the complaint
initiating the proceeding, the answer or response (if required), and the docket
entries.”70 Here, the Application, the Written Decision of the Levy Court
66
Defs.’ Ans. Br. at 2 n. 2.
67
Pls.’ Open. Br. at 14.
68
Id. at 17.
69
Id. at 17–19.
70
Black, 117 A.2d at 1031 (citing Maddrey, 956 A.2d at 1216; see Abbott v. Del. Pub. Integrity
Comm’n, 2019 WL 937184 at *3 (Del. 2019); see also Garber v. New Castle Cty. Dept. of Land
Use, 2017 WL 1224510, at *2 (Del. Super. Mar. 31, 2017).
15
memorializing its approval, and the list of docket entries, constitutes the Record
under Delaware law. The Record is complete.
Plaintiffs’ protestations regarding the legibility of the land use maps (that may
have been considered by the Levy Court) are without merit. Furthermore, that the
Record did not include the RPC Recommendation Report is also not a basis for
reversal. “It is settled in this jurisdiction that the evidence before the lower tribunal
is not a proper part of the record in a common law certiorari proceeding.”71 And
such “[e]vidence received in the inferior court is not part of the record to be
reviewed.”72
Likewise, the Court cannot rummage through transcripts and minutes in
search of error. That they were included in the Record is of no consequence.
Comments made by certain Levy Court Commissioners do not vitiate the collective
determination reflected in the Written Decision. Regardless, “[t]he Court may not
comb through any transcripts, or any other form of evidence impermissible on
certiorari review, in an effort to contradict [the] findings.” 73 Plaintiffs’ request to do
just that exceeds the scope of review. The Record is adequate for certiorari review.
71
Rodenhiser v. Dept. of Pub. Safety, 137 A.2d 392, 394 (Del. Super. 1957).
72
B.W. Elec., Inc. v. Gilliam-Johnson, 2019 WL 1504366, at *3 (Del. Super. Apr. 4, 2019); see
also Black, 117 A.3d at 1031 (citing Du Pont, 153 A.2d at 194); Maddrey, 956 A.2d at 1216.
73
Haden v. Bethany Beach Police Dept., 2014 WL 2964081, at *7 (Del. Super. June 30, 2014)
(citing Maddrey, 956 A.2d at 1214); see Handloff v. City Council of Newark, 2006 WL 2052685,
16
2. Levy Court Did Not Proceed Illegally nor Contrary to Law
Plaintiffs next argue that the Levy Court acted contrary to law or irregularly
because its decision to approve the conditional use permit “has the substantive
outcome of permitting legislatively protected and preserved farmland to be put to
industrial use.” 74 They argue this is because the Levy Court did not adopt a
statutorily required written ordinance.75 And that its failure to do so dooms the Levy
Court’s determination as “essentially legislating from the bench because it
interpreted—and misapplied—the Kent County Comprehensive Plan and Zoning
Code.”76
Advancing multiple arguments in painstaking minutia, Plaintiffs argue that
the approval was inconsistent with the Kent County Comprehensive Plan in violation
of 9 Del. C. § 4959(a), as well as Kent County Zoning Code § 205-251,77 and that
the solar farm does not qualify as a “public utility” for agricultural conservation
purposes.78 Furthermore, they ask this Court to declare the Levy Court’s approval
at *2 (Del. Super. July 19, 2006) (“This Court has ‘no power to correct a mistake of fact [] or
erroneous conclusion from the facts . . . .’” (citations omitted)).
74
Pls.’ Open. Br. at 1.
75
Id. at 19–22.
76
Id. at 21–22.
77
Id. at 23–24.
78
Id. at 25–26.
17
invalid because a solar farm “involves impervious cover in excess of the 23%
limitation permitted under Kent County Zoning Code § 205-251.” 79 Lastly,
Plaintiffs seek to reverse the Levy Court for an alleged failure to articulate valid
grounds for its approval.80 So, while Plaintiffs first argue the Record is incomplete
or inadequate, they also ask the Court to conduct a deeper comprehensive review
beyond it.
Plaintiffs first direct the Court to consider the land use map of the Kent County
Comprehensive Plan to show that the Property is located in the Agricultural
Conservation District. 81 They highlight that that the solar farm contemplated by the
Application is not one of the enumerated uses for property designated as “Low
Density Residential,” 82 and that the Property is outside the “Growth Zone Overlay,”
where Kent County’s “primary interest. . . is to preserve agricultural land and rural
infrastructure, protect environmentally sensitive areas, and protect the water quality
of the Delaware Bay and Chesapeake Bay Watersheds.”83 Accordingly, Plaintiffs
79
Id. at 27–28.
80
Id. at 28–30.
81
Id.
82
Id.
83
Id. at 24.
18
argue that the solar farm contemplated by the Application does not serve these
interests and, therefore, the Levy Court exceeded its authority.
Next, Plaintiffs contend that because the solar farm does not fit the definition
of a “public utility,” it is not permitted in the Agricultural Conservation zone, 84 and
the Application should not have been permitted. 85 Plaintiffs next urge the Court to
find that since more than half of the Property will be covered by impenetrable
surfaces of solar panels, the approval is in violation of Zoning Code § 205-251.86
And where neither local nor state codes have addressed “the proper way to calculate
the impervious surface of solar panels,” Plaintiffs beseech this Court to find the Levy
Court further exceeded its authority. 87
These arguments, while detailed, are improper for this Court’s consideration.
Again, “[certiorari] review is ‘limited to errors which appear on the face of the
record and does not embrace an evaluation of the evidence considered by the inferior
tribunal.’”88 Plaintiffs’ broad request would involve the Court engaging in a review
akin to a traditional appellate review. This is impermissible.
84
Id. at 25.
85
Id. at 26.
86
Id. at 27.
87
Id.
88
Haden, 2014 WL 2964081, at *2 (citing Maddrey, 956 A.2d at 1214).
19
Similarly, this Court cannot conclude that the Levy Court failed to articulate
valid grounds for its approval. After two hearings were conducted with submissions
both in support and in opposition of the Application, the Levy Court’s Written
Decision sets forth its reasons for approval to include that: 1) the Property was zoned
AC (Agricultural Conservation); 2) the provisions under §§205-48 and 205-329
permit public utilities as a conditional use; 3) the location was not in conflict with
the Kent County Comprehensive Plan; 4) the public health, safety and general
welfare will not be adversely affected; and 5) the Application was compliant with
the Adequate Public Facilities Ordinance.89
The Levy Court further imposed upon the Freepoint Defendants more than ten
specific conditions for approval, including but not limited to, the submission of a
reclamation plan and decommissioning surety, the establishment of
decommissioning protocol, expected compliance with recycling or waste disposal
regulations, the maintenance of perennial vegetative ground cover to prevent erosion
and manage run-off, adherence to stabilization or revegetation processes to minimize
erosion, and the ongoing completion of soil studies.90
89
Defs.’ Ans. Br., Ex. 4 ¶ 1.
90
See id. ¶ 2.
20
Plaintiffs’ disagreement with the findings or conclusions in the Written
Decision is an insufficient basis to invalidate the Levy Court’s determination. The
Levy Court properly stated its reasons for approval. Plaintiffs’ arguments in support
of a different result, again, impermissibly calls upon the Court to conduct an
improper deep dive beyond the Record. “When conducting the review of the lower
tribunal, this Court may not ‘look behind the face of the record’ nor may it engage
in ‘combing the transcript for an erroneous evidentiary ruling.’”91
Lastly, Plaintiffs’ overarching argument that the Levy Court was “essentially
legislating” is without merit. Certiorari review is available here because the Court
of Chancery determined that the Levy Court acted in a quasi-judicial capacity.
Plaintiffs’ request that this Court instead find the Levy Court “essentially” did not
so act in that capacity is improper.
Not only were these arguments previously considered and rejected in the
Chancery Action when it adopted the rationale of Delta Eta, they are also well
outside the scope of certiorari review here. Plaintiffs fail to establish that the Levy
Court proceeded illegally or contrary to law. Nor do they establish that the Levy
Court proceeded irregularly.
91
Dorsey v. AKA Mgmt., 2023 WL 4996696, at *2 (Del. Super. July 18, 2023) (citing Maddrey,
956 A.2d at 1215).
21
VI. CONCLUSION
Upon consideration of the Record below, the Court finds that the Record is
adequate for review. The Kent County Levy Court did not exceed its jurisdiction,
proceed illegally or manifestly contrary to law, nor did it proceed irregularly.
Accordingly, for the reasons stated above, the Levy Court’s decision is
AFFIRMED. Count II (writ of certiorari) of the Amended Complaint is dismissed
with prejudice.
IT IS SO ORDERED.
/s/ Vivian L. Medinilla
J. Vivian L. Medinilla
22