Page 1 of 15

COURT OF CHANCERY

OF THE

STATE OF DELAWARE

KIM E. AYVAZIAN

MASTER IN CHANCERY

CHANCERY COURTHOUSE

34 The Circle

GEORGETOWN, DELAWARE 19947

AND

NEW CASTLE COUNTY COURTHOUSE

500 NORTH KING STREET, SUITE 11400

WILMINGTON, DELAWARE 19980-3734

December 15, 2016

Gary R. Dodge, Esquire

Curley Dodge & Funk, LLC

250 Beiser Blvd., Suite 202

Dover, DE 19904

Peter K. Schaeffer, Jr., Esquire

Avenue Law

1073 South Governors Avenue

Dover, DE 19904

RE: Quail Village Homeowners Association, Inc. v. Janice Rossell

C.A. No. 9131-MA

Dear Counsel:

Pending before me is a motion for summary judgment filed by a 

homeowners association against a homeowner who erected an accessory structure 

on her property without first seeking approval from the community’s architectural 

review committee. The association alleges that the accessory structure is being 

used to house undomesticated or feral cats, and that the homeowner has been 

feeding the cats, thus encouraging more cats to gather in the community. As a 

result, the homeowner is now accused of creating a nuisance or using her property 
Page 2 of 15

in a way which is dangerous or offensive to the neighborhood. For the reasons that 

follow, I recommend that the Court deny the motion for summary judgment. 

I. Procedural Background

 On December 4, 2013, Plaintiff Quail Village Homeowners Association, 

Inc. (“the HOA”) filed a Verified Complaint to Enforce Deed Restrictions under 10 

Del. C. § 348 against Defendant Janice Rossell, the owner of property located at 

742 Raven Circle, Camden-Wyoming, Delaware.1 Since 2004, Rossell has lived in 

the Village of Wild Quail Golf and Country Club (“Quail Village”), a singlefamily residential community that is governed by a set of deed restrictions. The 

HOA argues that Rossell has violated deed restrictions that: (1) prohibit the 

erection, placement, and/or alteration of buildings or structures, including additions 

thereto unless the plans have been approved by the Architectural Committee; (2) 

require Architectural Committee approval for any outside housing for dogs, cats or 

other domesticated pets; and (3) prohibit the use of any lot within Quail Village 

which creates a nuisance or is dangerous or offensive to the neighborhood. Rossell 

denied the HOA’s allegations in her Answer filed on April 2, 2014.2 Mandatory 

mediation under 10 Del. C. § 348 was unsuccessful. Although Section 348 cases 

are supposed to be heard expeditiously, pretrial proceedings moved very slowly in 

 

1 Docket Item (“DI”) 1. 

2 DI 5.
Page 3 of 15

this case and two motions to compel discovery were filed.3 The trial that had been 

originally scheduled to occur in October 20154 was re-scheduled for September 7, 

2016,5and now has been continued to a later date at the request of counsel.6 On 

March 14, 2016, the HOA filed its motion for summary judgment.7 

II. Factual Background

Rossell has admitted in her deposition that she did not seek permission from 

the Architectural Committee before erecting the accessory structure at issue here.8 

Rossell also testified in her deposition that shortly after the accessory structure was 

built, her son installed a “cat door” in the front of this structure so her cats could go 

in and out of it.9 Rossell testified that she has had as many as 40 cats residing on 

her property at one time.10 When her cats started multiplying about five years ago,

Rossell’s son built lofts in the garage to house her cats.11 Rossell also has a “cat 

door” in her garage that is never locked.12 In her deposition, Rossell testified that 

she currently has ten “domesticated” cats in her residence, two of which go in and 

 

3 DI 10 & 36.

4 DI 21.

5 DI 43.

6 DI 50.

7 DI 45. 

8 Petitioner’s Opening Brief in Support of Its Motion for Summary Judgment, Ex. 

D. DI 45. 

9

Id., Ex. E.

10 Id., Ex. F. 

11 Petitioner’s Reply Brief in Support of Its Motion for Summary Judgment, Ex.A. 

DI 51. 
Page 4 of 15

out of her residence, four “domesticated” cats living in her garage and about 14 

other cats that are living in her garage or outside, for a total of 28 cats.13

In her discovery responses, Rossell denied that the accessory structure on 

her property was being used as kennel for cats, or to house or shelter cats on a 

continuing basis.14 Although this structure has a cat door, Rossell testified in her 

deposition that this cat door is locked most of the time.15

III. Issues

The HOA argues that it is entitled to summary judgment because it is 

undisputed that Rossell violated Article II, paragraphs two and five of the deed 

restrictions by failing to obtain approval from the Architectural Committee prior to 

erecting her accessory structure and by using her accessory structure as outdoor 

housing for feral cats. The HOA also contends that there are 12 residents in Quail 

Village who are prepared to testify during a trial about how Rossell’s activities 

have created a nuisance and a dangerous or offensive condition in violation of the 

Article II, paragraph two of the deed restrictions.

 

12 Id.

13 Rossell defined “domesticated cats” as cats that a person can pick up and hold, 

i.e., they’re friendly; in contrast, she used the term “feral” to describe a cat that a 

person cannot pick up. Petitioner’s Opening Brief in Support of its Motion for 

Summary Judgment, Ex. G. DI 45. 

14 Id., Ex. B & C. 

15 Id. Ex. E.
Page 5 of 15

In opposing summary judgment, Rossell argues that the HOA has failed to 

enforce its deed restriction requiring prior approval from the Architectural 

Committee before any structure can be built or modified, citing several properties 

in Quail Village where there is no record of any prior approval and even some 

instances of disapproval that have been ignored and not subsequently enforced. 

Rossell claims, moreover, that she is entitled to one accessory structure under the 

deed restrictions, and that the HOA has not objected to the color, character or 

placement location of her accessory structure. Finally, Rossell argues that, rather 

than creating a nuisance, she has been practicing effective and humane feral cat 

reduction by setting non-lethal wire-cage traps and taking the trapped feral cats to 

be sterilized at her own personal expense. She has offered the opinion of an expert 

who, if permitted, will testify that the problem of feral cats is due to domestic cat 

owners failing to spay or neuter their cats, and feeding animals outdoors thereby 

providing additional food sources to feral cats. 

IV. Analysis 

When reviewing a motion for summary judgment under Court of Chancery 

Rule 56, the Court must examine the record in the light most favorable to the 

nonmoving party, and if the Court finds no genuine issue of material fact, then 
Page 6 of 15

summary judgment is appropriate.16 However, if there is a material fact in dispute, 

summary judgment will be denied. The burden is on the moving party to 

demonstrate the absence of any genuine issue of fact and any doubt should be 

resolved against the moving party.17 

The HOA contends the record is undisputed that Rossell violated Article II, 

paragraph two of the Declaration of Restrictions governing Quail Village because 

Rossell did not seek approval of her accessory structure from the Architectural 

Committee before she built it, and Article II, paragraph five because Rossell is 

using the accessory structure to house and shelter feral cats, as opposed to 

domesticated household pets. Article II, paragraph two states as follows:

Architectural Restrictions. No buildings or structure (i.e., swimming 

pool, tennis court) or addition shall hereafter be erected, altered or placed on 

any Lot unless the plans have been approved by the Architectural 

Committee. Any Owner seeking the construction or alteration of a building 

or structure or addition shall submit two (2) sets of plans showing all four 

(4) elevations together with a description of the exterior materials and their 

color. Owner must also submit a site plan showing location of building or 

structure or addition on said Lot. The Architectural Committee shall 

approve or disapprove said plans within thirty (30) days of receipt of same. 

Each Owner who intends to construct any dwelling or structure on his 

Lot shall prepare a grading plan therefor in conformance with all applicable 

soil and erosion control laws, ordinances and standards. Said plan shall be 

filed with the Architectural Committee. Owner shall be solely responsible 

for the implementation of same, and shall implement said plan.

In passing upon such plans and specifications, the Committee shall 

take into consideration the suitability of the proposed building or other 

 

16 Brandywine Hills Community Assoc. v. T. Bruce Wilmoth Construction Co., 

1995 WL 767336, at * 4 (Del. Ch. Dec. 21, 1995) (citing Nash v. Connell, 99 A.2d 

242, 243 (Del. Ch. 1953)). 

17 Scureman v. Judge, 626 A.2d 5 (Del. Ch. 1992). 
Page 7 of 15

structure and of the materials of which it is to be built, to the site upon which 

it is proposed to erect same, the harmony thereof with the surroundings and 

the effect of the buildings or other structure as planned on the outlook from 

the adjacent or neighboring properties.

No clearing, grading or construction upon the lot is to begin until the 

Architectural Committee issues written approval of all plans which are 

required to be submitted to the Committee by this Declaration.

The exterior colors shall be within the group of colors known as earth 

tones. Any other colors must be approved by the Architectural Committee.

The exterior of any dwelling being constructed on any Lot shall be 

completed with[in] twelve (12) months from the time of the first excavation 

or grading.

Each accessory building or structure shall be placed to the rear of a 

dwelling. The Architectural Committee shall determine which are the front, 

side and rear lines of a Lot, and its decision shall be binding upon the Lot 

Owner.

No outside TV or CB aerials or antennas, or satellite dishes, and no 

overhead electrical lines or wires of any kind shall be erected or maintained 

upon any Lot or structure thereon except with the written consent of the 

Architectural Committee.

No structural artifact or planting that acts as a barrier exceeding five 

feet in height, shall be erected, planted, placed or maintained on any Lot, 

except with the written approval of the Architectural Committee. Wooden 

fences and chain link fences must be approved by the Architectural 

Committee. 

No use of any Lot which creates a nuisance or which is dangerous or 

offensive to the neighborhood is permitted. No structure upon a Lot shall be 

used for manufacturing, business, trade, sales activities or any use other than 

residential use, except home occupations as may be permitted under the 

Kent County Zoning Code. The Architectural Committee shall determine 

whether a use is violative of the above provisions, and the decision of the 

Committee shall be binding upon the Lot Owners.18

It is undisputed that Rossell did not seek permission from the Architectural 

Committee prior to erecting her accessory structure. Although Rossell argues that 

(a) the prior approval restriction has been waived because of the existence of other 
Page 8 of 15

similar violations in Quail Village and (b) this restriction has not been enforced in 

an evenhanded fashion, I do not need to address these arguments, which are 

affirmative defenses that Rossell must prove,19 because the HOA is not objecting 

to the appearance or location of Rossell’s accessory structure. Instead, the HOA is 

objecting to Rossell’s alleged use of this structure to house feral cats. Therefore, 

Quail Village’s separate deed restriction pertaining to animals must be closely 

examined. 

Article II, paragraph five provides as follows:

Animals. No fowl shall be raised or kept and no kennel for the 

breeding or boarding of dogs shall be erected, maintained or used upon any 

Lot, and no horses, ponies or livestock shall be housed or maintained on any 

Lot. Dogs, cats or other domesticated household pets may be kept, provided 

(1) that they are not kept, bred or maintained for any commercial purpose, 

and (2) any outside housing for any such animals or pets must be approved 

by the Architectural Committee.

This restriction prohibits fowl, dog kennels, horses, ponies and livestock 

from being raised, kept, erected, maintained or housed on the lots in Quail Village. 

It does not limit the number of “[d]ogs, cats or other domesticated household pets” 

that may be kept on any lot,

20 but if a homeowner desires to provide any outside 

 

18 Verified Complaint to Enforce Deed Restrictions Pursuant to 10 Del. C. Section 

348, Ex. A. DI 1.

19 See Henderson v. Chantry, 2003 WL 139765, at *3 (Del. Ch. Jan. 10, 2003).

20 See, e.g., McCullough v. The Mansions of North Park Homeowners Association, 

2013 WL 11283784 (Pa. Super., Jan. 25, 2013) (upholding dismissal of

homeowner’s breach of contract and wrongful use of civil proceedings claims 

against Association that had enforced its by-laws limiting each household to two 
Page 9 of 15

housing for “any such animals or pets,” she must seek approval from the 

Architectural Committee before doing so. Subsection two of paragraph five 

contains no fixed standards to guide the architectural review of any proposed 

outside housing “for such animals or pets.” Under Delaware law, if there are deed 

restrictions requiring approval from a body like an architectural review committee 

before a dwelling or structure can be erected, but the restrictions lack standards 

outlining the factors the reviewing committee should apply, then the restrictions 

are unenforceable.21 The gist of the HOA’s complaint is that Rossell has invited 

cats that are not domesticated cats to use the accessory structure.22 According to 

the HOA, Rossell has violated subsection two of this paragraph because the 

accessory structure is not being used to house domesticated cats. 

Rossell denies that she is using the accessory structure to house or shelter

any type of cat. Even though it is undisputed that the accessory structure has a cat 

 

cats by obtaining permanent injunction requiring homeowner to keep no more than 

two cats in his unit “upon the death of his last grandfathered cat”). 

21 See Benner v. The Council of the Narrows Assoc. of Owners, 2014 WL 7269740, 

at **1, 7 (Del. Ch. Dec. 22, 2014) (Master’s Final Report) (citing Seabreak 

Homeowners Ass’n, Inc. 517 A.2d 263, 269 (Del. Ch. 1986) (citing Alliegro v. 

Home Owners of Edgewood Hills, 122 A.2d 910, 912 (Del. Ch. 1956); Point Farm 

Homeowner’s Ass’n, Inc. v. Evans, 1993 WL 257407, at *3 (Del. Ch. June 28, 

1993)). 

22 Petitioner’s Motion for Summary Judgment, at ¶ 8 “It is undisputed, based on the 

Respondent’s deposition and “expert witness” materials that were provided by her 

counsel, that the Respondent has invited and encouraged undomesticated cats to 

recreate on her property, in violation of the language in Article II, paragraph 5 

which clearly contemplates the keeping of only domestic, household dogs and 

cats.” DI 45. 
Page 10 of 15

door, I must view this sparse record in a light most favorable to the nonmoving 

party, who testified in her deposition that the cat door is mostly locked and she 

does not house or shelter cats on a continuous basis in that structure. Because 

there is a genuine issue of material fact, summary judgment is not appropriate here.

Finally, there is another issue that needs to be assessed by delving more 

thoroughly into the facts.23 Even if Rossell is using her accessory structure to 

house cats, how does one distinguish cats that are domesticated from cats that are 

not domesticated? According to one authority, they are indistinguishable except 

for “their degree of familiarity with humans.”24 The deed restriction does not 

define the term “domesticated.”25 State law defines a feral cat as “an offspring of 

abandoned domestic cats who reverts to a semi-wild state and lives outside in 

family groups called colonies. Feral cats have a temperament of extreme fear and 

resistance to contact with humans.”26 Delaware also specifically excludes feral 

 

23 See Brandywine Hills Community Ass’n, 1995 WL 767336, at * 4; Benner, 2014 

WL 7269740, at *7.

24 Verne Smith, “The Law and Feral Cats,” 3 Journal of Animal Law and Ethics 7, 

12 (2009) (“[F]eral cats and domesticated or owned cats -- commonly referred to 

as housecats -- are the same species (Felis catus). They are indistinguishable but 

for their degree of familiarity with humans.” See the use of the phrase “feral 

domestic cats” in S. Gorman & J. Levy, “A Public Policy Toward the Management 

of Feral Cats,” 2 Pierce L. Rev. 157, 158 (2004). 

25 Indeed, it is not clear whether the word “domesticated,” as provided in the 

phrase “other domesticated household pets” refers back to modify the words 

“dogs” and “cats” when subsection two appears to distinguish between “animals” 

and “pets.” 

26 16 Del. C. § 3013F(g). 
Page 11 of 15

cats from its definition of non-native indigenous wildlife species.27 Moreover, 

Delaware provides that a “person in possession or control of a cat, dog or other 

animal becomes the keeper of a stray domesticated animal, other than livestock, if 

the person feeds that animal for at least 3 consecutive days.”28 If Rossell is 

housing and feeding these cats, as has been alleged, are they considered “stray 

domesticated” cats within the scope of Delaware’s domestic animal laws?29 

Another deed restriction, pertinent to the Complaint but not this motion, is 

found at the end of Article II, paragraph two of the Declaration of Restrictions of 

Quail Village.30 The issue to be determined is whether Rossell’s use of her 

property to house and shelter numerous cats and to engage in trap, neuter, and 

release (“TNR”) activities to address a feral cat problem (a problem that Rossell 

claims has been caused by other people who fail to properly care for their cats) 

violates the deed restriction by creating a nuisance or is dangerous or offensive to 

 

27 7 Del. C. § 800(2). 

28

 16 Del. C. § 3013F(i). 

29 See S. Gorman & J. Levy, “A Public Policy Toward the Management of Feral 

Cats,” 2 Pierce L. Rev. 157, 160 (2004).

30 “No use of any Lot which creates a nuisance or which is dangerous or offensive 

to the neighborhood is permitted. No structure upon a Lot shall be used for 

manufacturing, business, trade, sales activities or any use other than residential use, 

except home occupations as may be permitted under the Kent County Zoning 

Code. The Architectural Committee shall determine whether a use is violative of 

the above provisions, and the decision of the Committee shall be binding upon the 

Lot Owners.” Complaint, Ex. A. DI 1.
Page 12 of 15

the neighborhood. A claim of nuisance is highly fact-intensive,31 as both the HOA 

and Rossell appear to acknowledge. The HOA has 12 residents who are ready to 

testify that Rossell’s property is a continuing nuisance and Rossell is prepared to 

proffer expert testimony regarding trap, neuter, and release programs. It appears 

that a trial would be the best setting for resolving all these factual and legal issues 

at the same time. 

V. Exception

The HOA has taken exception to the assertion in my draft report that the 

HOA is not objecting to the appearance or location of Rossell’s accessory 

structure. The HOA argues that my assertion mischaracterizes its position and 

compromises the integrity of the community’s architectural review process, 

creating a situation where homeowners would ignore the application process and 

then try to “ask for forgiveness” afterward.32 According to the HOA, my assertion 

is merely speculative because the Architectural Committee was deprived of the 

 

31 See Kyles v. Great Oaks Interest, 2007 WL 495897, at *13 (Cal. Ct. App. Feb. 

16, 2007) (reversing summary judgment on nuisance cause of action that was 

based on the presence of large number of cats on plaintiff’s property). See 

generally, State v. Zimmerman, 228 P.3d 1109 (Mont. 2010) (after his criminal 

conviction for maintaining a public nuisance by feeding feral cats, defendant 

unsuccessfully appealed a sentencing condition requiring him to remove his indoor 

pets from the county); Feeley v. Borough of Ridley Park, 551 A.2d 373 (Pa. 

Cmwlth 1988) (upholding determination that house was a public nuisance due to 

noxious and overpowering odors of cat urine). 

32 Petitioner’s Opening Brief in Support of its Exceptions to Master Ayvazian’s 

Draft Report Dated July 18, 2016, at p. 6. 
Page 13 of 15

opportunity to either approve or reject Rossell’s plan to build the accessory 

structure because no such plan was ever submitted for its review. 

Rossell, in turn, supports my assertion as evidencing the fact that the HOA 

never raised the issue whether Rossell had complied with the deed restrictions 

regarding the color and location of accessory structures. Rossell views the HOA’s 

exception as an informal attempt to amend the pleadings which, after nearly three 

years of litigation, would unfairly prejudice her. 

In reply, the HOA concedes that my assertion is factually correct, but argues 

that it: (1) injects the issue of aesthetic compliance into the analysis; (2) is purely 

speculative because the Architectural Committee never reviewed any plans for the 

accessory structure since none were submitted; and (3) detracts from the 

fundamental point that Rossell did not abide by the rules applicable to all 

homeowners in Quail Village. As a result, the HOA is asking the Court to remove 

the issue of aesthetic compliance from its analysis on the grounds that the issue is 

irrelevant and susceptible to improper speculation. 

The HOA moved for summary judgment on two grounds. First, the HOA 

claimed that it was undisputed that Rossell had constructed her accessory structure 

without prior approval from the Architectural Committee in violation of Article II, 

paragraph two of the deed restrictions. Second, the HOA claimed that it was 

undisputed that Rossell was using her accessory structure as outdoor housing for 

feral cats in violation of Article II, paragraph five of the deed restrictions. Because 
Page 14 of 15

Rossell had raised affirmative defenses to the prior approval deed restriction and I 

found a genuine issue of material fact exists whether Rossell’s accessory structure 

is being used to house or shelter feral cats, I recommended that the motion for 

summary judgment be denied and the matter proceed to trial. Upon review of the 

HOA’s exception, I now agree with the HOA that my statement regarding the 

appearance and location of Rossell’s accessory structure was unnecessary to my 

analysis and potentially misleading. Therefore, to avoid any confusion about this 

language, I am modifying my draft report by deleting the following words “is not 

objecting to the appearance or location of Rossell’s accessory structure. Instead, 

the HOA” from the first paragraph of page eight of my report and inserting the 

word “also” in their place so that the first paragraph now should read: 

It is undisputed that Rossell did not seek permission from the 

Architectural Committee prior to erecting her accessory structure. 

Although Rossell argues that (a) the prior approval restriction has 

been waived because of the existence of other similar violations in 

Quail Village and (b) this restriction has not been enforced in an 

evenhanded fashion, I do not need to address these arguments, which 

are affirmative defenses that Rossell must prove, because the HOA 

also is objecting to Rossell’s alleged use of this structure to house 

feral cats. Therefore, Quail Village’s separate deed restrictions 

pertaining to animals must be closely examined. 

VI. Conclusion

Although I have modified my report in response to Petitioner’s exception, 

my recommendation that the Court deny Petitioner’s Motion for Summary 
Page 15 of 15

Judgment remains unchanged. The parties are referred to Rule 144 for the process 

of taking exception to a Master’s Final Report.

Respectfully,

/s/ Kim E. Ayvazian

Kim E. Ayvazian

Master in Chancery

KEA/kekz