Race Track Car Wash, LLC v. City of Dover Planning Commission

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE
RACE TRACK CAR WASH, LLC :
: C.A. No. K19A-04-004 JJC
: In and For Kent County
Petitioner, :
:
v. :
:
CITY OF DOVER PLANNING :
COMMISSION, the CITY OF :
DOVER, BLUESKY DOVER :
PROPERTIES, LLC, and :
KATHLEEN J. GRAY, :
:
Respondents. :
OPINION & ORDER
Submitted: August 7, 2019
Decided: September 5, 2019
Shawn P. Tucker, Esquire & Sawyer M. Traver, Esquire, DRINKER BIDDLE &
REATH, LLP, Wilmington, Delaware, for the Petitioner Race Track Car Wash,
LLC.
William W. Pepper, Sr., Esquire, SCHMITTINGER & RODRIGUEZ, P.A., Dover,
Delaware, for the Respondents City of Dover Planning Commission and City of
Dover.
John W. Paradee, Esquire, Daniel F. McAllister, Esquire, Stephen A. Spence,
Esquire & Brian V. DeMott, Esquire, BAIRD MANDALAS BROCKSTEDT, LLC,
Dover, Delaware, for the Respondents Bluesky Dover Properties, LLC & Kathleen
J. Gray.
Clark, J.
Petitioner Race Track Car Wash, LLC., (“Race Track”) petitions for a writ of
certiorari seeking reversal of a decision of the City of Dover Planning Commission
(“DPC” or “Commission”). Earlier this year, the DPC approved a site plan to place
a car wash at the site of the former Kirby and Holloway Restaurant (the “Site”).
Race Track alleges that the DPC violated City ordinances and State law when
approving the plan. The Site falls, in part, within a Tier 3: Excellent Recharge Area
in a Source Water Protection Overlay Zone (the “Zone”). Race Track alleges that a
City ordinance prohibits a car wash in that Zone. A separate ordinance imposes a
thirty-foot buffer from U.S. Route 13 (the “arterial street buffer”) upon the Site.
Race Track also challenges the DPC’s partial waiver of that requirement.
Respondents DPC, City of Dover, Bluesky Dover Properties, LLC, and
Kathleen Gray (collectively “Bluesky”) counter that Race Track, as a business
competitor, has no standing to challenge the DPC’s approval. Furthermore, if Race
Track does have standing, Bluesky argues that the DPC committed no error of law
that would justify reversal or remand.
For the reasons discussed below, Race Track has not demonstrated its
standing to challenge the DPC’s decision finding the proposed car wash to be a
permitted use in the Zone. Race Track also does not demonstrate standing to
challenge the DPC’s partial waiver of the arterial buffer requirement. As a result,
its petition for certiorari must be DISMISSED at this stage of the proceedings.
I. The Record and Procedural History
The facts of record relevant to the petition come from two sources: the
certified record of the DPC proceedings, and the documents Race Track now
proffers to demonstrate its standing. The Site falls within City limits, and abuts U.S.
Route 13. Kathleen Gray contracted to sell the approximately one-acre Site to
Bluesky Dover Properties LLC, which is now the Site’s equitable owner.
2
On February 6, 2019, Dover’s Development Advisory Committee (“DAC”)
held a meeting and considered Bluesky’s application to construct a new 5,194 square
foot car wash at the Site. Dover’s DAC in turn issued a written report to the DPC
recommending approval. In it, the DAC first reviewed and commented on the City
of Dover ordinance prohibiting certain uses in the Zone. 1 That ordinance, adopted
as required by 7 Del. C. § 6082, recognizes critical feeder areas (“recharge areas”)
that supply sources of drinking water to the City.2
The Site falls partially inside and partially outside of the Zone. The relevant
provision of Dover’s Code prohibits uses within the Zone as follows:
[u]ses prohibited:
a) [a]utomobile body/repair shop, motor vehicle, boat or farm
equipment service:
b) [g]as stations and motor vehicle service stations. 3
The DAC report relayed the Planning Director’s opinion that the proposed car wash
would not involve motor vehicle service. Accordingly, the DAC advised the DPC
that the ordinance does not prohibit the operation of a car wash at the Site.
In its application, Bluesky also requested a waiver of a separate Code
requirement that there be a thirty-foot buffer along the Site’s U.S. Route 13 frontage.
The DAC report also discussed that request. City Code refers to this as an arterial
street buffer. 4 City Zoning Ordinance, Article 5, Section 7.33, provides that an
applicant may request a waiver of this requirement by approving:
1
City of Dover Code Art. 3 § 29.51 (prohibiting various uses throughout the source water
protection overlay zone, including: automobile body/repair shops, motor vehicle, boat or farm
equipment service; gas stations and motor vehicle service stations).
2
Id. at § 29.7.
3
Id. at § 29.51(a)–(b).
4
Id. at Art. 5 § 7.3 (“Where nonresidential zoned property fronts on a principal arterial street, as
designated by the comprehensive plan, a landscape buffer shall be required in addition to normal
landscaping of the street right-of-way. . . Arterial street buffers shall be a minimum of 30 feet in
depth, measured from the right-of-way line of the arterial street.”).
3
[a] buffer less than 30 feet in depth. In approving a lesser amount of
buffering, the Planning Commission shall consider the following
factors:
a) Whether there are specific constraints related to existing lot size,
lot configuration or the orientation of existing buildings on adjoining
properties that would severely limit the development potential of the
property if a deep buffer was required.
b) Whether a deep or shallow buffer would cause the property to be
out of character with the surrounding built environment.
c) Whether there is significant landscape area within the right-of-
way of the arterial street itself that can contribute to the buffer, and
whether future road improvement activities are likely to reduce the
depth of this area.
d) Whether the landscape design and planting plan for the buffer
achieve the standards of subsection 7.32 - Standards for Arterial Street
Buffer Landscaping.5
After referencing the four required factors, Staff recommended (in the DAC
report) that the DPC approve a partial waiver of the arterial street buffer, reducing it
from thirty feet to ten feet. Staff recommended that the DPC grant the waiver
because (1) the Site plan already called for an additional fourteen feet of dedicated
right-of-way, (2) adjacent properties did not have thirty-foot buffers (in fact, one
recently approved adjacent property had no buffer); and (3) the plan, as submitted,
provided for an adequate buffer for aesthetic purposes.
The DPC first considered Bluesky’s application at its meeting of February 19,
2019. There, the DPC received and considered the DAC’s report. Bluesky
commented at the meeting that (1) only a small portion of the building intended to
house car dryers would cross into the Zone, (2) the building was a prototype and was
the smallest one available, and (3) a dedicated right-of-way along U.S. Route 13
reduced the available area for a buffer.
5
Id. at § 7.33.
4
Race Track, through counsel, also addressed the DPC during the public
hearing portion of the meeting. There, Race Track argued that a car wash is a motor
vehicle service station and is therefore a prohibited use. Further, it argued that the
DPC must evaluate all four factors listed above before waiving the thirty-foot buffer
requirement. Race Track argued that had the DPC considered the four factors, it
could not have granted the waiver.
After the close of the public hearing, a commissioner asked City planning staff
for a legal opinion regarding whether a car wash falls within the definition of a motor
vehicle service station. The DPC then tabled the application to seek a legal opinion
on that issue.
The DPC next considered the matter at its March 18, 2019 meeting. Between
the two DPC meetings, the record expanded. Namely, on March 8, 2019, Dover’s
Planning Office submitted a memorandum to the DPC. The memorandum relayed
both the Planning Director and the City Solicitor’s opinions that the proposed use
would not include motor vehicle service. Furthermore, Staff provided further
analysis and recommendations regarding the four factors for the buffer waiver. In
doing so, it recommended that the Commission also approve the arterial buffer
waiver.
Shortly before the March DPC meeting, Race Track submitted a letter
expanding its arguments against the application. Namely, it provided additional
support for its interpretation of the term “motor vehicle service station” and why a
car wash should fit within that definition. It also argued that the application did not
meet the four factors for approval of a waiver of the thirty-foot buffer requirement.
Lastly, it argued that the City of Dover Code improperly delegated waiver ability to
the Planning Commission. In doing so, it argued that the Delaware Code required
the City’s Board of Adjustment to consider the request as a variance.
5
Shortly thereafter, Bluesky countered with a letter asserting that Race Track
had no standing to contest the application. In its letter, Bluesky also countered Race
Track’s substantive arguments.
At the March 18, 2019, DPC meeting, Bluesky offered additional information
supporting its application. The DPC entertained no further public comment.
Thereafter, the DPC orally approved the application, and when doing so, it waived
the full arterial buffer requirement. The commissioners recited several reasons for
approval including: the comments made in support of the application; Staff’s
recommendations; the City Solicitor’s legal opinion; and the City Planner’s
recommendations. On April 15, 2019, the DPC issued its written approval.
Thereafter, Race Track filed a petition for writ of certiorari. Bluesky then
filed a motion to dismiss, pursuant to Rule 12(b)(6), alleging lack of standing. The
Court denied the motion because Race Track’s petition adequately alleged standing.
When doing so, the Court confined its decision to the allegations in the petition.
Bluesky now renews its request to dismiss the petition based upon a lack of
standing. In response, Race Track cites no evidence from the underlying DPC record
that supports its claimed standing. Race Track, however, now offers several
documents that it alleges do. First, it offers a 2007 report to the Governor and the
General Assembly entitled “Delaware Source Water Assessment and Protection
Program.” It also offers a Delaware Geological Survey’s 2018 Report regarding the
“Results of Groundwater Flow Simulation, in the East Dover, Area,” and a one page
information sheet referencing groundwater studies. Finally, it provides a copy of its
City of Dover March water bill, and a copy of Dover’s 2008 Comprehensive Plan.
Race Track offers no affidavits in support of its standing to challenge this DPC
action.
Now, the parties have fully briefed the issues. As opposed to the prior motion
to dismiss, the Court may now properly review the record below and consider
6
recently submitted information, if appropriate, in assessing standing. Only if the
Court finds that Race Track possessed standing to challenge the decision will a
review of the substantive issues addressed by the parties be appropriate.
II. Standing
The majority of the parties’ briefing addressed their standing arguments. At
the threshold, the Court must define the scope of the record available to assess
standing. When doing so, the Court recognizes that determining standing in the
context of a petition for a writ of certiorari challenging a DPC decision generates a
tension. On the one hand, when evaluating the DPC’s actions, the Court must
confine its decision to the record below—even to a significantly greater degree than
if this were an administrative appeal. On the other hand, Race Track had no ability
or obligation in the proceedings below to demonstrate standing when offering public
comment. Because standing is a requirement for this Court to review the petition,
the Court will consider the supplemental materials offered by Race Track. After
considering those materials, however, Race Track has not demonstrated standing to
seek redress from the DPC’s approval decision.
A. Standards for Standing and for Certiorari
A party seeking to invoke the Court’s jurisdiction must establish standing. 6
Standing is a threshold question because the Court must ensure that the matter is a
“case or controversy” that is appropriate to address as a judicial matter. 7 While this
Court is not constrained by the requirements of Article III of the United States
Constitution as are the federal courts, Delaware courts nevertheless apply the same
6
Dover Historical Soc. v. City of Dover Planning Comm'n, 838 A.2d 1103, 1110 (Del. 2003).
7
Id.7
standard by analogy. They do so “as a matter of self-restraint to avoid rendering of
advisory opinions at the behest of parties who are ‘mere intermeddlers.’”8
The three requirements for standing applicable to this petition include that: (1)
the plaintiff suffered an injury-in-fact to a legally protected interest that is (a)
concrete and particularized and (b) actual or imminent; (2) there is a causal
connection between the injury and the conduct complained of; and (3) there is a
likelihood of redressability.9 In order to achieve standing, a plaintiff must have an
interest distinguishable from the general public. 10 For purpose of alleging
environmental injury-in-fact, “the party claiming standing must show that the
alleged environmental injury will actually affect it.” 11 Likewise, to assert injury-in-
fact for purposes of aesthetics, the party must demonstrate how the challenged action
affects it.
This matter is a petition for writ of certiorari. As such, it is not the functional
equivalent of an appeal. 12 Regarding such a petition, the Court “may not weigh
evidence or review the lower tribunal’s factual findings.” 13 The purpose of
certiorari is “to correct errors of law, to review proceedings not conducted according
to law, and to restrain an excess of jurisdiction.” 14
B. Considering Matters Outside the Record Below
Race Track did not address its claim of standing before the DPC; nor should
it have. It participated pursuant to a public comment session at one of the two
8
Id. at 1111.
9
Id. at 1110 (citations omitted).
10
Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892, 900 (Del.1994).
11
Oceanport, 636 A.2d at 905 (citing Lujan v. National Wildlife Federation, 497 U.S. 871, 886
(1990)).
12
Maddrey v. Justice of the Peace Court 13, 956 A.2d 1204, 1212 (Del. 2008).
13
Id.14
Dover Historical Soc., 838 A.2d at 1106.
8
meetings where the DPC discussed the application. Race Track now offers
environmental reports and studies, a City of Dover water bill, and Dover’s 2008
Comprehensive Plan to demonstrate its standing.
Bluesky’s arguments regarding standing are three-fold. First, Bluesky argues
that there is nothing in the record below that shows that Race Track suffered an
injury-in-fact. Bluesky emphasizes this Court’s limited review pursuant to a writ of
certiorari and that such review is necessarily confined to the record. Given that
there is no evidence in the record below supporting Race Track’s standing, Bluesky
argues that Race Track cannot demonstrate it. Second and alternatively, Bluesky
argues the Court cannot consider the supplemental materials Race Track offers
because they are not admissible pursuant to the Delaware Rules of Evidence. Third,
Bluesky argues that even if the Court considers Race Track’s supplemental
information, Race Track has not demonstrated an injury-in-fact. As a corollary to
this argument, Bluesky emphasizes Race Tracks economic interest as a competitor.
It emphasizes that economic interest does not provide standing to challenge land use
decisions when the alleged harm is environmental or aesthetic.
Race Track counters that for purposes of demonstrating standing before this
Court, it should not be bound by the record below. It emphasizes that it did not have
the opportunity to demonstrate its standing before the DPC. In seeking to
supplement the record, it argues that the Court should take judicial notice of the
reports and studies it offers. Race Track also emphasizes the well-recognized
principle that standing is not defeated solely because a petitioner has an economic
motivation to challenge a decision as long as standing independently exists on other
grounds.
Here, Race Track must be permitted to attempt to demonstrate its standing by
supplementing the record. Race Track, as a business operator within City limits,
participated at the first DPC meeting during its public comment session. Thereafter,
9
Bluesky challenged Race Track’s standing for the first time by letter. The DPC
permitted no further public comment, which was within its purview. Nevertheless,
Race Track had no opportunity to respond to the issue. Below, the DPC process
required no DPC finding other than that Race Track qualified as a member of the
public. In contrast, the requirements for standing in this Court involve significantly
more.
Standing is generally determined on the trial court record. 15 It follows that on
appeal, an appellate court should generally look solely to the record below regarding
standing because the trial court must make the finding in the first instance. In such
cases, the party seeking standing develops a record below. Setting aside for the
moment that this matter involves certiorari, when presiding over challenges of some
administrative decisions, a court must take a modified approach when assessing
standing. Because Delaware’s test for standing parallels the requirements for Article
III standing, federal case law offers useful guidance.
In Sierra Club v. E.P.A.,16 the District of Columbia Court of Appeals
explained the differences between determining whether (1) a party had standing
before a trial court, versus (2) determining whether a party has standing to challenge
a decision pursuant to an administrative appeal. There, the court sat as the appeals
body for an administrative decision of the Environmental Protection Agency. It
recognized that in some fully contested administrative proceedings, there could be a
motive and opportunity to develop a record regarding standing at the administrative
level.17 Nevertheless, it also recognized that in the frequent case where a petitioner
challenging an administrative decision had:
no need to establish its standing to participate in the proceedings before
the agency [,w]hen the petitioner later seeks judicial review, the . . .
15
Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992).
16
292 F.3d 895 (D.C. 2002)
17
Id. at 899.
10
requirement that it have standing kicks in and that requirement is the
same, of course, as it would be if such review were conducted in the
first instance by the district court. 18
In this regard, the Court of Appeals held that it would be inappropriate to impose an
after-the-fact requirement for a petitioner to have fully developed a record where it
was (1) unnecessary, and (2) often impossible to do so below.19 In recognition of
these realities, the requirement to establish standing “kicks in” when the reviewing
court must first evaluate it.20 This approach is consistent with requiring a petitioner
to substantiate its standing “with the manner and degree of evidence required at the
successive stages of the litigation.” 21
Here, Race Track petitions for a writ of certiorari as opposed to appealing a
case decision or challenging a promulgated regulation. The Court’s standard of
review is more limited in a petition for writ of certiorari when compared to the
already limited review applicable in a typical administrative appeal. 22 Nevertheless,
for the threshold issue of standing, the same logic applies. Making a decision based
on supplemental information when it first matters does not require the Court to
exceed its jurisdiction on certiorari. If review is appropriate because there is
standing, all the limitations applicable to a review pursuant to this extraordinary writ
still apply. Standing, however, must be separately and independently considered by
the Superior Court at this stage of the proceedings because the DPC did not, and
need not, have considered it for public comment purposes. As the Ninth Circuit
18
Id.19
Id.20
Id.21
Id. (citing Defenders of Wildlife, 504 U.S. at 551).
22
See Maddrey, 956 A.2d at 1213 (explaining that a court’s scope of review on certiorari is more
limited than that of an appellate court’s because the review is on the record, does not weigh
evidence of the lower court, and is not on the merits, but rather is limited to issues of errors of law,
jurisdiction, and illegal procedure).
11
Court of Appeals similarly held in the administrative appellate context in Northwest
Environmental Defense Center v. Bonneville Power,23 a court should:
[c]onsider . . . affidavits not in order to supplement the administrative
record on the merits, but rather to determine whether petitioners can
satisfy a prerequisite to this court’s jurisdiction. 24
Having determined that Race Track may supplement the record regarding
standing, the Court next turns to the issue of what type of information Race Track
may supplement it with. Both parties centered their arguments on the assumption
that the Delaware Rules of Evidence control this issue. Namely, they focused on
whether rules of evidence involving judicial notice permit the Court to consider Race
Track’s reports and studies.
Resolving whether DRE 201(a)–(b) or DRE 202(d)(1)(B) would control the
admissibility of the documents as if this were a trial is unnecessary. The Court is
not limited to considering evidence that would be admissible at trial when evaluating
if Race Track has standing. This follows directly from relevant case law that
recognizes the propriety of filing affidavits in support of supplementing the record
regarding standing.25 Affidavits are generally inadmissible pursuant to the Delaware
Rules of Evidence. They are nevertheless a permitted medium to use in favor of, or
in opposition to, summary judgment pursuant to Superior Court Civil Rule 56.26 The
23
117 F.3d 1520 (9th Cir. 1997).
24
Id. at 1528.
25
See Oceanport, 636 A.2d at 903, n.13, 905 (discussing the lack of affidavits supporting WFS’s
position).
26
See Super. Ct. Civ. R. 56(a)–(b) (permitting both claimants and defending parties to move for
summary judgment “with or without supporting affidavits”); see also id. at 56(e) (“Supporting and
opposing affidavits shall be made on personal knowledge, shall set forth such facts as would be
admissible in evidence and shall show affirmatively that the affiant is competent to testify to the
matters stated therein.”).
12
case at hand does not involve a summary judgment motion. 27 It involves this Court’s
decision on the merits regarding a petition for an extraordinary writ and there is no
special rule addressing the admissibility of affidavits in this context. Accordingly,
the absence of any rule authorizing the use of affidavits coupled with their universal
acceptance for this purpose illustrates that strict rules of evidence do not apply.28
Likewise, there is no basis to treat public reports and studies any differently
regarding this limited issue. In a manner such as this, the Court has no mechanism
to hear evidence. Accordingly, both parties may offer supplemental information
relevant to standing and argue its importance. Such an approach is consistent with
the United States Supreme Court’s recognition that “the burden of production for
standing is correlative to the burden of production for the substantive elements of
the litigant’s case at the successive stages of litigation.” 29
One of Bluesky’s arguments further illustrate the inappropriateness of
requiring a party seeking standing to do so pursuant to strict rules of evidence.
Namely, Bluesky argues that this Court should not consider Race Track’s
submissions because they were not presented to the DPC. However, hearsay,
environmental studies, and other submissions not otherwise admissible pursuant to
the Delaware Rules of Evidence, could have been considered by the DPC. It would
be inconsistent to require Race Track to meet strict rules of evidence in this Court
for this prudential matter where (1) there is no evidentiary hearing available, and (2)
where it need not have done so before the DPC in the first instance. Certainly any
27
C.f. Dover Historical Society, 838 A.2d at 1110 (contrasting the Rule 12(b)(6) standard in the
context of a petition for writ of certiorari with the standard for summary judgment only for the
purpose of focusing on Rule 12(b)(6)’s more relaxed standard).
28
See Oceanport, 636 A.2d at 903, n.13, 905 (recognizing the appropriateness of accepting
affidavits for this purpose); see also Sierra Club, 292 F.3d at 900 (finding that standing should be
established “at the first appropriate point in the review proceeding” through the submission of
affidavits or other evidence), Northwest, 117 F.3d at 1527–28 (considering supplemental affidavits
to determine whether petitioners had standing).
29
Sierra Club, 292 F.3d at 900 (citing Defenders of Wildlife, 504 U.S. at 561).
13
submissions must contain sufficient indicia of reliability for the Court to comfortably
rely upon the item. The material that Race Track submits meets that requirement.
C. Application of the Standard to Race Track
Here, Race Track’s submissions, however, do not demonstrate that it suffered
an injury-in-fact. Accordingly, the Court may not consider the substance of Race
Track’s petition.
In arguing that it suffered a concrete and particularized injury that was actual
or imminent, Race Track advances two alleged injuries caused by DPC’s action.
First, with regard to placing the car wash in the Zone, Race Track alleges
environmental harm to its water supply. Second, it alleges aesthetic harm based
upon the partial waiver of the arterial buffer requirement.
To substantiate standing, the “plaintiff’s interest in the controversy must be
distinguishable from the interest shared by other members of a class or the public in
general.”30 Merely focusing on a law (or ordinance) that creates a duty to the public
in general does not generate a privately enforceable right. 31 In a zoning case for
instance, a “public interest in lawfulness” is insufficient. 32 Furthermore, in the
context of alleged harm based upon environmental injury, the party alleging standing
must show that “the environmental injury will actually affect it.” 33 Likewise, there
is no significant distinction in the context of alleged harm to aesthetic enjoyment
30
Stuart Kingston, Inc. v. Robinson, 596 A.2d 1378, 1382 (Del. 1991).
31
Oceanport, 636 A.2d at 899.
32
Riverfront Hotel LLC v. Bd. of Adjustment of City of Wilmington, 2019 WL 3884031, at *2 (Del.
July 11, 2019) (where the plaintiff’s interest was “chiefly the general public interest in what it
perceive[d] to be the proper application of the applicable zoning law”).
33
Id. at 905 (citing Lujan, 497 U.S. at 872, 886).
14
because one can also suffer an injury to that type of interest.34 The injury to either,
though, must not be conjectural or hypothetical.35
Bluesky places significant emphasis on the fact that Race Track is an
economic competitor. It alleges competition to be the true motivation for Race
Track’s challenge. While Bluesky may be correct, claimed standing is not defeated
where there are combined economic and environmental injuries so long as there is a
valid environmental claim. 36 In making a decision regarding standing, the Court is
not free “‘to weigh or proportion’ conflicting monetary and environmental
interests.”37 Only when a company is solely motivated to protect its own pecuniary
interests, and the environmental aspect is so infinitesimal that it ought to be
disregarded completely, should the Court not find standing on an environmental
basis.38
Within the documents it submits, Race Track focuses on general statements in
one study regarding the importance of recharge areas to ground water. The 2017
Delaware Source Water Assessment and Protection Program report describes
groundwater recharge as the “downward movement of water from the surface
through the soil profile to the water table aquifer.”39 It also defines an “excellent
recharge area,” such as the Zone, as a surface area where precipitation infiltrates the
land surfaces to the aquifer at a more rapid rate than in other areas.40
In conjunction with these general observations, Race Track also relies heavily
on a groundwater flow simulation report that provides the following, in part:
34
Dover Historical Soc., 838 A.2d at 1112.
35
Oceanport, 636 A.2d at 904.
36
Id. at 905.
37
Id. (citation omitted).
38
Id. (citation omitted).
39
Petitioner’s Op. Br., Ex. B, at 10.
40
Id.
15
[f]low mass-budget analysis shows that, of the 75,800 m3/day of
groundwater recharge, approximately 64 percent discharges to
wetlands/marshes, Delaware Bay, and other major rivers: 10 percent is
pumped from the unconfined aquifer; 17 percent infiltrates to the
underlying aquifers through the Frederica outcrop area, and 8 percent
flows through the underlying confining layer to the deep confined
aquifer (Figure 6).41
Figure 6 offers no further information. 42 From these references, Race Track
extrapolates without further support that “35% of the groundwater recharge is either
pumped directly by wells or otherwise enters the aquifers supplying the Dover water
supply.”43 As an even further extrapolation from that premise, Race Track claims
that its drinking water will therefore be harmed by DPC’s decision.
These documents do not alone demonstrate standing for two reasons. First,
the Court is not equipped to make a finding of fact regarding a concrete and
particularized injury to Race Track based upon these provisions. On this record, the
Court can draw no conclusion in the absence of an affidavit, an expert report, or at
least a provision in a study or report that demonstrates with more particularity that
the DPC’s approval of this car wash will actually harm, or threaten imminent harm
to Race Track’s drinking water. There is insufficient information in what Race
Track cites to connect the proposed dots.
Second, Race Track offers no affidavits or other support regarding its use of
water for drinking purposes. Race Track operates a commercial property; it is not a
household where persons would be expected to cook with the water or even
necessarily drink it. Furthermore, there is nothing in the record supporting its
employees’ use of City-provided drinking water. Likewise, there is nothing in the
combined record, via affidavit or otherwise, demonstrating that Race Track even has
41
Petitioner’s Op. Br., Ex. C, at 7.
42
See id. at 8, Fig. 6.
43
Petitioner’s Rep. Br. at 3.
16
employees at its site. While employees may need drinking water, on this record,
there is no indication that Race Track operates a manned, as opposed to an
automated, car wash that requires on-site employees. As to its operations, Race
Track does not demonstrate why a car wash would need to use potable water to wash
cars. Presumably, many do not. In other words, the record is completely silent as
to Race Track’s operations and its actual reliance on clean water.
A party asserting standing is not necessarily required to support his or her
claim with affidavits. However, when alleging individual, concrete, particularized,
and actual or imminent harm, it is difficult in the context of this case to picture a
way to do so without affidavit support. Merely (1) alleging negative environmental
impact on an existing car wash located a mile away because of (2) the approval of a
new car wash partially in the Zone does not intuitively demonstrate that Race Track
suffered concrete and particularized harm. On this record, the Court is not free to
presume that Race Track will suffer an injury-in-fact.
Finally, Race Track does not articulate, other than in a conclusory manner,
that a partial waiver of the arterial buffer harms it. Race Track’s location alone, one
mile from the proposed Bluesky car wash, does not provide even a deferential
inference that the Site is visible from Race Track’s location. Race Track’s frontage
along U.S. Route 13 also does not support an injury-in-fact. Race Track offers no
supplemental information to support its standing to challenge the waiver. Nor does
evidence of record in the DPC proceedings demonstrate a concrete and
particularized harm to Race Track’s aesthetic interests.
In evaluating Race Track’s claimed standing, both parties argue different
interpretations of the Delaware Supreme Court’s decision in Oceanport Industries,
Inc. v. Wilmington Stevedores, Inc.44 That decision supports the Court’s finding of
44
Oceanport Indus., Inc. v. Wilmington Stevedores, Inc., 636 A.2d 892 (Del.1994).
17
no standing in this case. Namely, the Court in Oceanport recognized that the “mere
allegation of a sincere interest in an environmental problem is not sufficient to confer
standing.”45 There, the Court held that the mere interest in water quality, surface
water run-off, and the effects of dredging on water quality in the Delaware River
were insufficient to confer standing on the challenging party.46 The provisions of
the Coastal Zone Act,47 in the absence of a demonstrated injury-in-fact, did not
change that.48 Likewise, the Delaware Code provisions Race Track cites that require
municipalities to adopt overlay zones do not confer standing upon all citizens absent
an injury-in-fact.49 The issue for standing purposes is whether the petitioner “would
be directly affected” by the action.50 As in the case at hand, the petitioner in
Oceanport offered no affidavits or sufficient documents to detail its standing claim. 51
A petitioner must step forward with more than a bald assertion of fact to demonstrate
its standing. 52
45
Id. at 905.
46
Id. at 904.
47
7 Del. C. § 7001–15.
48
Oceanport, 636 A.2d at 904–05.
49
Race Track argues that the following language of 7 Del. C. § 6082 places it within the zone of
interest necessary to demonstrate its injury-in-fact:
[t]he . . . municipalities . . . shall adopt . . . overlay amps delineating, as critical
areas, source water assessment, wellhead protection and excellent ground-water
recharge potential areas [and] regulations governing the use of land within those
critical areas designed to protect those critical activities from activities and
substances that may harm water quality . . ..
It then argues that the Dover ordinance adopted pursuant to that statute prohibiting motor vehicle
service stations demonstrates an injury-in-fact. For the reasons discussed, Race Track does not
demonstrate an injury-in-fact on that basis, absent record support.
50
Oceanport, 636 A.2d at 903, n. 13.
51
Id. at 904–05.
52
Id. at 905.
18
III. Conclusion
Because Race Track has not demonstrated that it has standing, its petition for
a writ of certiorari does not involve a case or controversy. Accordingly, the Court
cannot review the merits of its petition. Its petition for writ of certiorari must be
DISMISSED with prejudice at this stage of the proceedings.
IT IS SO ORDERED.
/s/Jeffrey J Clark
Judge
19