IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

GLEN ALLEN FARM, LLC,

 Petitioner,

v.

NEW CASTLE COUNTY, a

Political subdivision of the State

of Delaware, and MATTHEW S.

MEYER, individually and in his 

official capacity as the County 

Executive for New Castle County, 

TRACY SURLES, individually 

and in her official capacity as

the General Manager of Public

Works for New Castle County; and

RICHARD E. HALL, individually

and in his official capacity as the

General Manager of Land Use for

New Castle County,

 Respondents.

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C.A. No. 2019-0425-PAF

MEMORANDUM OPINION

Date Submitted: June 3, 2020

Date Decided: September 29, 2020

Sidney S. Liebesman, E. Chaney Hall, and Wali W. Rushdan, FOX ROTHSCHILD 

LLP, Wilmington, Delaware; Attorneys for Petitioner.

Max B. Walton and Lauren P. DeLuca, CONNOLLY GALLAGHER LLP, 

Wilmington, Delaware; Brian J. Merritt, NEW CASTLE COUNTY OFFICE OF 

LAW, New Castle, Delaware; Attorneys for Respondents.

FIORAVANTI, Vice Chancellor
2

Nearly two decades ago, a group of property owners in southern New Castle 

County sought to develop their property into a residential development. The 

property owners entered into an agreement with developer Toll Brothers, Inc. (“Toll 

Brothers”) that contained several contingencies, one of which was obtaining sewer 

service from the County. The County rejected the development application. Toll 

Brothers and the owners of one of the properties in the group filed an action against 

the County and certain County officials in the United States District Court for the 

District of Delaware seeking to compel the County to provide sewer service to their 

property (the “Federal Action”). The parties to the Federal Action settled their 

dispute in 2010, which is memorialized in a settlement agreement with the County 

(the “Settlement Agreement”). The Settlement Agreement obligates the County to 

build a sewer main and provide sanitary sewer service to all of the properties if 

certain conditions are met. The County’s obligations to build the sewer main expire

on July 1, 2021, unless certain conditions in the Settlement Agreement are satisfied

by that date.

Petitioner Glen Allen Farm, LLC (“Petitioner” or “GAF”) was among the 

property owners that had signed on to the Toll Brothers development agreement. 

GAF was not a party in the Federal Action and is not a signatory to the Settlement 

Agreement. Nevertheless, GAF’s property would be among the properties obtaining 

sanitary sewer service if the County were to provide sewer service under the terms 
3

of the Settlement Agreement. In this action, GAF seeks to enforce the Settlement 

Agreement against the County and certain County government officials 

(collectively, “Respondents”), contending that GAF is a third-party beneficiary to 

that agreement. GAF makes no secret of its objective: 

Petitioner has been approached by one or more prospective purchasers 

of the Property whom have indicated that they would be willing to 

purchase the Property, at a premium, if Petitioner can confirm the 

County still intends to honor its obligation under the Settlement 

Agreement to provide sanitary sewer service to the Property.

Compl. ¶ 31. GAF seeks an order compelling the County to perform under the 

Settlement Agreement if GAF, a purchaser of its property, or a developer other than 

Toll Brothers satisfies the terms of the Settlement Agreement that obligate the 

County to provide sanitary sewer service to GAF’s property. Respondents have 

moved to dismiss the complaint. Their primary argument is that the Petitioner’s 

claims are not ripe for resolution. This Opinion resolves the motion to dismiss in 

favor of Respondents.
4

I. BACKGROUND

The facts recited in this opinion are drawn from Petitioner’s Verified 

Amended Complaint (“Complaint” or “Compl.”), documents incorporated by 

reference or integral thereto, and matters to which the Court may take judicial notice.

A. The Parties

GAF is a Delaware limited liability company and the owner of record of 

approximately 141 acres of undeveloped farmland located on the northern side of 

Port Penn Road in New Castle, Delaware (the “Property”).1

 

Petitioner seeks relief from the County and three County government 

officials: Respondent Matthew S. Meyer (individually and in his capacity as the 

County Executive for the County), Respondent Tracy Surles (individually and in her 

capacity as the General Manager of Public Works for the County), and Respondent 

Richard E. Hall (individually and in his capacity as the General Manager of Land 

Use for the County).2

 

Under Delaware law, the County has “all powers which, under the 

Constitution of [Delaware], it would be competent for the General Assembly to grant 

by specific enumeration, and which are not denied by statute[.]”3

 The County has 

 1 Compl. ¶ 1. 

2 Id. ¶¶ 2-5.

3 9 Del. C. § 1101. 
5

authority over zoning and the power to regulate land use within the territory of New 

Castle County.4

 The County’s authority includes the power “to act upon all matters 

pertaining to sewers, sewerage disposal plants, trunk line sewers and sewerage 

systems generally.”5

B. The Planned Development of the Port Penn Assemblage

The Property is part of a sanitary sewer district for the southern portion of the 

County designated as the County Southern Sewer Service Area (the “SSSA”).6

 In 

2003, the County Council, the legislative branch of the County government, passed 

a resolution affirming the County’s commitment to construct a sewer system in the 

SSSA.7

 

 4 Id. § 2602(a) (“[T]he County Council may divide the territory of New Castle County into 

districts or zones of such number, shape, or area as it may determine, and within such 

districts . . . may regulate the erection, construction, reconstruction, alteration, and uses of 

buildings and structures and the uses of land.”).

5 Id. § 1521(a)(1). 

6 Compl. ¶ 7.

7 Id. ¶ 8.
6

In the early 2000s, Petitioner and four other owners of contiguous land entered 

into a development agreement with Toll Brothers to create a large residential home 

tract within the SSSA named the “Port Penn Assemblage.”8 The Toll Brothers

development agreement with the Port Penn Assemblage was subject to 

contingencies, including that the County would provide sewer service sufficient for 

the development.9

 According to the Complaint, Toll Brothers and the Port Penn 

Assemblage, including Petitioner, relied upon representations from the County that 

the SSSA would receive sewer service.10 

After developing engineering plans and conducting due diligence, Toll 

Brothers submitted a land development application to the County for the Port Penn 

Assemblage (the “Application”).11 The County rejected the Application.12 Toll 

Brothers and the property owners of the Port Penn Assemblage pressed the County 

to make public sewer service available for the Port Penn Assemblage.

13 

In November 2007, Toll Brothers and Gary and Gale Warren, the owners of 

the Warren Farm—a property in the Port Penn Assemblage—filed litigation against 

 8 Id. ¶¶ 10-11. 

9 Id. ¶ 12. 

10 Id. ¶ 13. 

11 Id. 

12 Id. ¶ 14. 

13 Id. ¶ 16. 
7

the County in an action captioned Warren et al. v. New Castle Cty., C.A. No. 07-

725-SLR-LPS (D. Del.) (i.e., the Federal Action) to compel the County to process 

the Application and to provide sewer service necessary to service the development 

contemplated by the Application. On June 26, 2008, the Magistrate Judge, nowChief Judge Leonard P. Stark, issued a report and recommendation recommending 

dismissal of the Federal Action. See Warren v. New Castle Cty., 2008 WL 2566947 

(D. Del. 2008).

C. The Settlement Agreement

The County, Gary Warren, Gale Warren, and Toll Brothers entered into the

Settlement Agreement, dated November 29, 2010, providing for a settlement of their 

disputes, including the Federal Action.

14 The Settlement Agreement defines the 

Warrens and Toll Brothers as the “Developer.”15 

In Paragraph 1 of the Settlement Agreement, the County agreed that the 

properties in the Port Penn Assemblage could connect to the County sewer system 

in the SSSA and that the County would provide guaranteed sewer capacity to those 

properties.

16 The Settlement Agreement identifies, using Tax Parcel Numbers, the 

 14 The Settlement Agreement, entitled “Settlement Agreement and Mutual Release,” is 

attached to the Complaint as Exhibit A. 

15 Id. 1. 

16 Settlement Agreement ¶ 1 (“The County agrees that the Properties may connect to the 

County sewer system in the SSSA for a maximum of 631 housing units.”). 
8

properties that may connect to the County sewer system.

17 Petitioner’s Property is 

among the properties identified in the Settlement Agreement. The County further 

agreed that “[t]his guaranteed sewer capacity shall be available even if the Developer 

or the property owners abandon the applications for the [then-pending development 

plans] and pursue other development options for the Properties.”18 

Under the Settlement Agreement, the County and the Developer each has

obligations to construct sewer infrastructure to connect the Port Penn Assemblage 

to the County’s sewer system. Paragraph 2 addresses the County’s side of the 

equation and, in pertinent part, states that “[t]he County agrees to construct, at its 

own cost and expense, a force main line from the current central core facilities in the 

SSSA,” at a location “just east of the existing SSSA central core boundary.”19 The 

Settlement Agreement defines the sewer line referenced in Paragraph 2 as the 

“County Force Main.”20 Under the Settlement Agreement, the Developer or the 

property owners may provide notice of commencement of physical construction of

sewer service infrastructure to connect to the County Force Main (defined in 

Paragraph 3 of the Settlement Agreement as “Developer’s Infrastructure 

 17 Id. at 1. 

18 Id. ¶ 1. 

19 Id. ¶ 2. 

20 Id.
9

Improvements”) to trigger the County’s obligation to begin construction of the 

County Force Main.

21 The County’s obligation to provide sewer capacity and to 

build the County Force Main expires on July 1, 2021 “unless Developer has 

connected two or more owner/renter occupied housing units to the County’s Force 

Main by such date.”22

Paragraph 3 addresses the Developer’s obligation to construct infrastructure 

improvements to connect to the County Force Main. Under Paragraph 3, the 

Developer is responsible for constructing Developer’s Infrastructure Improvements 

from the Properties to the County Force Main at its own cost and expense, and is to 

do so “in accordance with all applicable laws, regulations, standards, and policies.”23 

Paragraph 3 further obligates the Developer to apply for and receive approval for 

“all sewer infrastructure construction” from all applicable governmental 

 21 Id. ¶ 4 (“The County agrees to commence construction of the County Force Main under 

Route 1 and Route 13 . . . within sixty (60) days of receiving written notice from Developer 

or the property owners of commencement of physical construction of Developer’s 

Infrastructure Improvements.”). 

22 Id. ¶ 5. 

23 Id. ¶ 3 (“For connection to the County Force Main described in paragraph 2 above, 

Developer, at its own cost and expense, shall be responsible for running all necessary sewer 

service infrastructure from the Properties to connect to the County Force Main, in 

accordance with all applicable laws, regulations, standards, and policies (“Developer’s 

Infrastructure Improvements”). Developer shall be responsible for all infrastructure costs 

for Developer’s Infrastructure Improvements, including, but not limited to, all costs and 

expenses associated with design, construction, engineering, and right of way acquisition.”). 
10

authorities.24 The Settlement Agreement also provides Toll Brothers an extension 

of time to complete its Application to develop the Port Penn Assemblage, but it does 

not limit the Developer or the property owners “from pursuing other development 

options and/or different development plans for the Properties.”25 

The parties to the Settlement Agreement agreed that the Settlement 

Agreement would be “binding upon and inure to the benefit of the Parties and their 

respective owners, investors, members, directors, officers, employees, heirs, 

executors, successors, and assigns.”26 The parties further agreed that the 

“Agreement shall run with the Properties.”27 

According to Petitioner, in October 2016, Respondent Surles, the County’s

General Manager of Public Works, provided the Settlement Agreement to an 

attorney for one of the Port Penn Assemblage property owners and told the attorney 

 24 Id. (“The County shall assist, if necessary, with the acquisition of required easements (at 

the expense of the Developer) for the sewer lines to be owned by the County running from 

the Properties to the connection point. Developer shall be required to apply for and receive 

approval for all sewer infrastructure construction for Developer’s Infrastructure 

Improvements from applicable governmental approvals bodies, including, but not limited 

to, the County’s Department of Special Services. Developer shall also be required to pay 

all applicable fees associated with the connection, including plan review fees and capital 

recovery fees. One half of the applicable capital recovery fee shall be due upon the 

application for each building permit, and the remainder of the capital recovery fee shall be 

required to be paid upon application for a certificate of occupancy.”).

25 Id. ¶ 6. 

26 Id. ¶ 16.

27 Id. ¶ 13. 
11

“that the Settlement Agreement was intended to benefit all of the Properties, not just 

the named individual parties to the Settlement Agreement.”28

D. The County Has Not Committed to Constructing the County Force 

Main.

The Complaint alleges that Petitioner approached the County, including 

Respondent Meyer, in an attempt to “confirm the County’s commitment to the public 

sewer rights provided for in the Settlement Agreement.”29 Other Port Penn 

Assemblage property owners have also approached the County to confirm that the 

County would “honor its obligation under the Settlement Agreement.”30 According 

to the Complaint, Respondents did not provide the requested confirmation to 

Petitioner or the other members of the Port Penn Assemblage.31 To the contrary, 

Respondents have “indicated to prospective developers and purchasers of the 

property that the County is not obligated to perform its obligation to provide water 

and sewer service under the Settlement Agreement.”32

Petitioner alleges that the County has treated it and other Port Penn 

Assemblage property owners unfairly in three respects. First, Meyer and certain 

 28 Compl. ¶ 24. 

29 Id. ¶ 32.

30 Id. ¶ 28. 

31 Id. ¶¶ 28-33. 

32 Id. ¶ 29.
12

other former public officials have met with real estate developer Louis J. Capano to 

develop and provide public sewer service to Carter Farm, a property outside of the 

Port Penn Assemblage.33 Second, the County has enacted an ordinance preventing

the installation of on-site septic systems in suburban subdivisions of the County until 

August 2021, and selected that date because the County’s obligations under the 

Settlement Agreement to construct the County Force Main expire in July 2021.34

Third, the County settled a different lawsuit filed by another Port Penn Assemblage 

property owner against Respondents, captioned Good v. Meyer, C.A. No. 2018-

0152-PAF.35

Petitioner principally seeks an order compelling Respondents “to affirm, 

confirm, honor, and perform the County’s obligations under the Settlement 

Agreement to (a) build the County Force Main . . . and (b) provide sanitary sewer 

service to the Petitioner’s Property.”36 Petitioner also seeks an order requiring 

Respondents to “process, evaluate, and review any development application for the 

Property submitted to the County as if the Property will have County sewer and 

water service once it is developed.”37 

 33 Id. ¶ 34. 

34 Id. ¶ 36.

35 Id. ¶ 37.

36 See id. ¶ 57. 

37 Id. 
13

The Complaint contains eleven counts, listed here for ease of reference: 

Count Number Count Title Compl. ¶

I Breach of Contract 38-43

II Declaratory Judgment 44-50

III Permanent Injunctive Relief 51-59

IV Specific Performance 60-64

V Equal Protection Violation Pursuant to the 

14th Amendment of the U.S. Constitution

65-71

VI Modification of Settlement Agreement 72-76

VII Bad Faith 77-81

VIII Equitable Enforcement of Covenant 82-86

IX Breach of Implied Covenant of Good Faith 

and Fair Dealing

87-90

X Anticipatory Breach of Contract 91-95

XI Preliminary Injunctive Relief 96-106

Petitioner filed its original complaint on June 6, 2019, and filed the operative 

amended complaint on January 30, 2020. The parties completed briefing on the 

Respondents’ motion to dismiss on May 22, 2020, and the Court held oral argument 

on June 3, 2020. 
14

II. ANALYSIS

A. Legal Standard for Motion to Dismiss for Lack of Ripeness

Respondents have moved to dismiss, arguing the Complaint is not ripe and 

fails to state a claim. The parties dispute whether Court of Chancery Rule 12(b)(1) 

or 12(b)(6) applies to the ripeness challenge. If Rule 12(b)(1) applies, the Court may 

consider facts outside the complaint. If Rule 12(b)(6) applies, the Court is generally 

limited to the Complaint, all documents incorporated by reference therein, and facts

subject to judicial notice.38

This Opinion analyzes the ripeness challenge under Court of Chancery Rule 

12(b)(6) for two reasons. First, the ripeness challenge involves a threshold question 

of contract construction and, therefore, should be resolved pursuant to Court of 

Chancery Rule 12(b)(6). Appriva S’holder Litig. Co., LLC v. ev3, Inc., 937 A.2d 

1275, 1285 (Del. 2007) (noting that “the interpretation of a contract as a prerequisite 

to . . . standing is . . . a determination involving the merits” warranting review 

 38 Compare Shellburne Civic Ass'n, Inc. v. Brandywine Sch. Dist., 2006 WL 2588959, at 

*1 (Del. Ch. Sept. 1, 2006) (evaluating a motion to dismiss under Court of Chancery Rule 

12(b)(6) and noting that, “[w]hen reviewing a motion to dismiss, generally only the matters 

referred to in the pleadings are considered. The court may also take judicial notice of 

certain facts pursuant to Delaware Rule of Evidence 201.”), with Acierno v. New Castle 

Cty., 2006 WL 1668370, at *1 n.8 (Del. Ch. June 8, 2006) (holding that the Court of 

Chancery may consider documents external to the complaint on a motion to dismiss for 

lack of subject matter jurisdiction). 
15

pursuant to Rule 12(b)(6)). Second, even under the plaintiff-friendly standard of 

Court of Chancery Rule 12(b)(6), the Complaint is not ripe and must be dismissed.39

On a motion to dismiss for failure to state a claim under Court of Chancery 

Rule 12(b)(6):

(i) all well-pleaded factual allegations are accepted as true; (ii) even 

vague allegations are well-pleaded if they give the opposing party 

notice of the claim; (iii) the Court must draw all reasonable inferences 

in favor of the non-moving party; and ([iv]) dismissal is inappropriate 

unless the plaintiff would not be entitled to recover under any 

reasonably conceivable set of circumstances susceptible to proof.

Savor, Inc. v. FMR Corp., 812 A.2d 894, 896-97 (Del. 2002) (internal citations and 

quotation marks omitted); accord Central Mortg. Co. v. Morgan Stanley Mortg. 

Cap. Hldgs. LLC, 27 A.3d 531, 536 (Del. 2011). “[A] trial court is required to accept 

only those ‘reasonable inferences that logically flow from the face of the complaint’ 

and ‘is not required to accept every strained interpretation of the allegations 

proposed by the plaintiff.’” In re Gen. Motors (Hughes) S’holder Litig., 897 A.2d 

162, 168 (Del. 2006) (quoting Malpiede v. Townson, 780 A.2d 1075, 1083 (Del. 

2001)). “Moreover, a claim may be dismissed if allegations in the complaint or in 

the exhibits incorporated into the complaint effectively negate the claim as a matter 

of law.” Malpiede, 780 A.2d at 1083.

 39 Because this Opinion concludes that the Complaint must be dismissed because the 

dispute is not yet ripe, the Opinion does not address whether the Complaint otherwise states 

a claim, except to the extent the Court must address threshold matters of contract 

construction to determine whether the dispute is ripe.
16

B. The Complaint Is Not Ripe.

This Court may decline to exercise jurisdiction over a case if the underlying 

dispute is not ripe. XI Specialty Ins. Co. v. WMI Liquidating Trust, 93 A.3d 1208, 

1217 (Del. 2014). “Generally, a dispute will be deemed ripe if litigation sooner or 

later appears to be unavoidable and where the material facts are static. Conversely, 

a dispute will be deemed not ripe where the claim is based on uncertain and 

contingent events that may not occur, or where future events may obviate the need 

for judicial intervention.” Id. 1218-19 (internal citations and quotations omitted);

see also New Castle Cty. v. Pike Creek Recreational Servs., LLC, 2013 WL 6904387, 

at *7 (Del. Ch. Dec. 30, 2013) (noting that the ripeness doctrine exists “to prevent 

the courts, through avoidance of premature adjudication, from entangling 

themselves in abstract disagreements over administrative policies”), aff’d, 105 A.3d 

990 (Del. 2014). The purpose of the ripeness doctrine is “to conserve limited judicial 

resources and to avoid rendering a legally binding decision that could result in 

premature and possibly unsound lawmaking.” XI Specialty, 93 A.3d at 1217. The 

ripeness doctrine further serves to “to protect . . . agencies from judicial interference 

until an administrative decision has been formalized and its effects felt in a concrete 

way by the challenging parties.” Pike Creek, 2013 WL 6904387, at *7. 
17

The Complaint does not present a ripe dispute for two reasons. First, 

Petitioner has not exhausted its administrative remedies. Second, Petitioner’s claims 

are too contingent and hypothetical to be justiciable. 

1. The Doctrine of Exhaustion of Administrative Remedies

Delaware “has adopted the doctrine of exhaustion of administrative 

remedies,” Levinson v. Del. Comp. Rating Bureau, Inc., 616 A.2d 1182, 1187 (Del.

1992), which this Opinion will refer to as the “Finality Doctrine.” As the Delaware 

Supreme Court has explained the doctrine: 

A judicially created rule, the doctrine requires that where a remedy 

before an administrative agency is provided, relief must be sought by 

exhausting this remedy before the courts will either review any action 

by the agency or provide an independent remedy. The policy which 

sustains the doctrine is one of maintaining the proper relationship 

between the courts and administrative agencies. It accomplishes this 

by: (1) favoring a preliminary administrative sifting process, especially 

when matters at issue are largely within the expertise of the involved 

agency; (2) avoiding interference with the administrative agency by 

withholding judicial action until the administrative process has run its 

course; and (3) preventing attempts to burden the courts by a resort to 

them in the first instance. It applies only where a claim must be 

initiated before an administrative agency which has exclusive 

jurisdiction over the matter and is able to provide an adequate remedy.

Id. (internal citations omitted). Although the Finality Doctrine is “a matter for 

discretionary determination,” that discretion is constrained by the “strong 

presumption favoring the requirement of exhaustion of administrative remedies.” 

Id. 1190.
18

New Castle County Council has statutory jurisdiction over sewer service to 

the County: “New Castle County Council shall have general jurisdiction over all 

matters pertaining to the County . . . including the power to act upon all matters 

pertaining to sewers[.]”40 The Delaware Code further provides that the “Department 

of Special Services . . . [i]n cooperation with the Department of Land Use” may 

“manage and develop plans for public facilities and infrastructure including sanitary 

sewers and treatment facilities.”41 

The New Castle County Unified Development Code (the “UDC”) provides 

“standards, procedures, and minimum requirements . . . which regulate and control 

the planning and subdivision of lands . . . and the general development of real estate 

in the unincorporated areas of New Castle County, Delaware.”42 Thus, under the 

UDC, the Department of Special Services (“Special Services”)43 has authority over 

 40 9 Del. C. § 1521. 

41 Id. § 1341. 

42 UDC § 40.01.010. The Court can take judicial notice of the UDC. D.R.E. 202(d)(1)(B)

(“The court may, without request by a party, take judicial notice of . . . the duly enacted 

ordinances and duly published regulations and determinations of governmental 

subdivisions or agencies of . . . this State”); see also Prince v. Ferritto, LLC, 2019 WL 

5787988, at *2 (Del. Super. 2019) (taking judicial notice of the Kent County Code). 

43 The Department of Special Services is now known as the Department of Public Works. 

Because the Delaware Code and the UDC have not yet been amended to reflect the new 

name, for clarity and consistency, this Opinion refers to the Department of Public Works 

as “Special Services.” 
19

determining the availability of sewer capacity.44 In that regard, “land development 

applications that contemplate connection to County sewer,” must attach “a letter 

from the Department of Special Services indicating that sewer is or will be available 

for the proposed development.”45

a. Petitioner Has Not Requested Sewer Capacity.

Petitioner’s claim for sewer capacity is premature. Petitioner has not 

requested a letter from the Department of Special Services indicating whether sewer 

will or will not be available for any proposed development. Hence, the

administrative agency has not had an opportunity to decide on Petitioner’s request 

to extend sewer service to the Property. Petitioner has not even initiated the 

administrative review process for connecting the Property to the County’s public 

sewer system. As a result, each of the three policy rationales for the application of 

the doctrine of administrative remedies articulated in Levinson applies here, and all 

three warrant dismissal of the Complaint.

 44 UDC § 40.05.000(b) (“County sewer service may represent a limiting factor for 

development. The County has conducted an analysis of various areas of the County to 

determine the sewer capacity of each area. In all sewer service areas in the County, sewer 

capacity shall be provided on a first come, first serve basis if and/or when sanitary sewer 

service becomes available, as determined by the Department of Special Services.”). 

45 UDC App’x 1 1(A)(10). 
20

First, the “matters at issue are largely within the expertise of the . . . agency” 

because determinations relating to sewer capacity are within the expertise of Special 

Services. Levinson, 616 A.2d at 1187. 

Second, it is desirable to “avoid[] interference with the administrative agency” 

here because Special Services has not made any determination regarding the 

availability of sewer capacity for the Property. Id. Petitioner argues that the County 

has made its position known by allegedly ignoring Petitioner’s requests for meetings 

“to discuss and confirm the County’s commitment to the public sewer rights 

provided for in the Settlement Agreement.” Compl. ¶ 32. Special Services, 

however, has promulgated a written policy stating that it will only respond to 

requests in writing, and Petitioner has not made any written request to Special 

Services.46 Further, even if Special Services eventually determines that Petitioner 

does not have any rights to connect to the County’s public sewer infrastructure under 

the Settlement Agreement, that does not render the agency’s involvement 

meaningless or excuse Petitioner from avoiding the administrative review process. 

 46 See New Castle County Sewer Capacity Policy (attached as Exhibit A to Respondents’ 

Opening Brief). Petitioner does not contest the applicability of the policy cited by 

Respondents. The Court may take judicial notice of the County’s policies in evaluating a 

motion to dismiss pursuant to Court of Chancery Rule 12(b)(6). Frank C. Sparks Co. v. 

Huber Baking Co., 96 A.2d 456, 462 (Del. 1953) (taking judicial notice of Delaware 

agency policy); In re Wheelabrator Techs., Inc. S’holders Litig., 1992 WL 212595, at *12 

(Del. Ch. Sept. 1, 1992) (noting that the Court may take judicial notice of publicly filed 

documents). 
21

Third, the Finality Doctrine bars the Complaint because Petitioner is 

improperly attempting to “burden the courts by a resort to them in the first instance.” 

See Levinson, 515 A.2d at 1187. The Complaint expressly seeks to have this Court 

usurp the role of Special Services in determining whether the Property is eligible for 

sewer service. See Compl. ¶ 57 (seeking an order requiring Respondents “to process, 

evaluate, and review any development application for the Property submitted to the 

County as if the Property will have County sewer and water service once it is 

developed”). Preventing the agency’s review of any development plan is 

inconsistent with the Settlement Agreement and the role of the Court. Under the 

Settlement Agreement, the County retained discretion regarding the approval or 

disapproval of any development plans to provide the Property with sewer service. 

See Settlement Agreement ¶ 6 (“Developer agrees to diligently pursue all 

applications for the Plans, and nothing herein shall relieve Developer of its 

obligation to obey all Federal, State, and County laws, ordinances, regulations, and 

policies in seeking development approval for Plans or any future development

options for the Properties.”). More important, it would be inefficient to expend 

judicial resources to adjudicate a dispute where the Petitioner has not requested a 

sewer capacity determination for a development proposal upon which the County 

could express a formal position. If “[t]he finality requirement is not satisfied when 

a developer, unhappy with a mere recommendation of a first-level land use agency, 
22

runs immediately to court,” Warren, 2008 WL 2566947, at *14, then it cannot be 

satisfied when a party has not even taken the first step to obtain an administrative 

recommendation, let alone a final ruling. 

b. Exceptions to the Finality Doctrine

Petitioner argues that three exceptions to the Finality Doctrine apply.47 As 

discussed below, the exceptions cited by Petitioner only apply to claims that would 

survive regardless of the administrative agency’s decision. Here, however, 

administrative review remains relevant to Petitioner’s request for sewer capacity and 

sewer infrastructure. Therefore, the exceptions to the Finality Doctrine do not apply. 

“First, a party pressing a facial challenge to a zoning ordinance, on either 

substantive due process or equal protection grounds, need not wait for a final 

decision applying the zoning ordinance to the party’s particular project.” Warren, 

2008 WL 2566947, at *15. Claims that zoning ordinances are unconstitutional on 

their face are not subject to dismissal on the basis of the Finality Doctrine because 

facial challenges claim that “‘any application of the regulation is unconstitutional.’” 

Cty. Concrete Corp. v. Town of Roxbury, 442 F.3d 159, 164 (3d Cir. 2006) (quoting 

Eide v. Sarasota Cty., 908 F.2d 716, 724 n.14 (11th Cir. 1990)) (emphasis in 

original). By contrast, “for an as-applied challenge, the landowner is only attacking 

 47 Petitioner’s Answering Br. 21-23 (citing Warren, 2008 WL 2566947, at *15-16).
23

the decision that applied the regulation to his or her property.” Cty. Concrete Corp., 

442 F.3d at 164 (quoting Eide, 908 F.2d at 724 n.14).

Petitioner contends that its claims must survive because it “challenges the 

County’s actions on equal protection grounds.”48 Petitioner’s equal protection 

claim, however, is an as-applied challenge to the County’s purported decision 

regarding Petitioner’s request for sewer service, not a facial claim that any 

application of a legislative act or ordinance fails.49 In its briefing (but not its 

pleading), Petitioner cites a 2003 ordinance as the subject of its equal protection 

claim, but Petitioner does not argue that the ordinance is facially unconstitutional. 

See Cty. Concrete, 442 F.3d at 164. Accordingly, the exception for facial equal 

protection challenges is not applicable here. 

Second, Petitioner invokes an exception to the finality doctrine for “as-applied 

substantive due process claim[s] when the landowner alleges extreme ‘wrongful 

conduct’ by the governmental entity directed at the landowner.” Warren, 2008 WL 

2566947, at *16. The exception exists for substantive due process claims that do 

“not really challenge the land use decision but . . . [are] directed to related wrongful 

conduct, because the claim would survive ‘even if the ultimate outcome of plaintiff’s 

permit applications was favorable.’” Id. (quoting Cty. Concrete, 442 F.3d at 164). 

 48 Petitioner’s Answering Br. 22. 

49 See Compl. ¶¶ 65-71. 
24

Here, the Complaint does not contain an as-applied substantive due process 

claim. In fact, Petitioner conceded in its pleading and at oral argument that it did 

not have a constitutional right to sewer access.50 In re New Maurice J. Moyer 

Academy, Inc., 108 A.3d 294, 321 (Del. Ch. 2015) (“[T]he protections of substantive 

due process attach only where a plaintiff has demonstrated deprivation of an interest 

that is considered a ‘fundamental’ right under the United States Constitution.”). As 

a result, the exception for as-applied substantive due process claims does not apply 

in this case.

Third, the Court may decline to dismiss an action for failure to comply with 

the Finality Doctrine where pursuit of the administrative remedy would be futile, 

“generally because the administrative body the plaintiff avoided had no power to 

provide the relief sought.” Warren, 2008 WL 2566947, at *16. Petitioner does not 

argue that Special Services or the County lacks the power to provide sewer capacity 

and construct the County Force Main. Rather, Petitioner maintains that it need not 

pursue administrative remedies because the County has ignored its entreaties to 

 50 See Compl. ¶ 70 n.11; Oral Arg. Regarding Mot. to Dismiss 30 (COUNSEL FOR 

PETITIONER: “We’re not alleging there’s a constitutional right to sewer.”) (Dkt. 34) 

(“Oral Arg. Tr.”). The provision of sewer service is not a right protected by substantive 

due process protections under the Due Process Clause of the Fourteenth Amendment to the 

United States Constitution. Port Penn Hunting Lodge Ass’n v. Meyer, 2019 WL 2077600 

at *3-4 (Del. Ch. May 9, 2019) (holding that sewer service is not an established 

fundamental right protected by substantive due process), aff’d, 222 A.3d 1044 (Del. 2019). 
25

confirm its purported rights under the Settlement Agreement. Petitioner’s reliance 

on informal entreaties do not allow it to ignore administrative remedies. Petitioner 

has not adequately pleaded—and the record does not support—that obtaining 

administrative review of its proposal would be futile.51 Rather, Petitioner has only 

pleaded facts indicating that, in its view, the County is likely to deny its request for 

sewer capacity.52 That is not sufficient to excuse Petitioner’s failure to seek 

administrative remedies prior to litigation. See Levinson, 616 A.2d at 1190-91 

(holding that an agency’s discretion to deny a proposal does not render obtaining 

 51 In their Reply Brief, Respondents state: “The County has confirmed and reaffirms that 

if the contractual contingencies are satisfied by the Developer . . . the County will honor 

its commitments.” Respondents’ Reply Br. 6. 

52 Petitioner alleges that Respondents have anticipatorily repudiated any obligations owed 

to Petitioner under the Settlement Agreement because the County has not responded to the 

Petitioner’s requests. Compl. ¶¶ 28-31. These allegations do not adequately allege that 

Respondents have repudiated the Settlement Agreement, especially in light of Special 

Services’s policy requiring written requests. Ignoring Petitioners’ requests to confirm its 

obligations under the Settlement Agreement does not constitute a statement that the County 

“outright refus[es] . . . to perform [the Settlement Agreement].” HIFN, Inc. v. Intel Corp., 

2007 WL 1309376, at *14 (Del. Ch. May 2, 2007). Petitioner also alleges that the County 

has “indicated to prospective developers and purchasers of the property that the County is 

not obligated to perform its obligation to provide water and sewer service under the

Settlement Agreement.” Compl. ¶ 19. Again, this allegation is too vague to sustain a claim 

for anticipatory repudiation and, in any event, the County’s statements to third parties could 

not constitute an anticipatory repudiation. Restatement (Second) of Contracts § 250 cmt. 

c (1981) (noting that the statement giving rise to a repudiation “must be made to an obligee 

under the contract, including a third party beneficiary or an assignee”); see also id. at 

illustration 4 (“A tells C, a third person having no right under the contract, and not B, that 

he will not perform. C informs B of this conversation, although not requested by A to do 

so. A's statement is not a repudiation.”). 
26

administrative review “futile,” including where an agency had already preliminarily 

disapproved an application). 

Because none of the exceptions to the Finality Doctrine apply, in the exercise 

of the Court’s discretion, dismissal for failure to exhaust administrative remedies is 

appropriate. 

C. Petitioner’s Claims Are Contingent and Hypothetical.

The Complaint does not present a ripe dispute because Petitioner’s claims are 

too contingent and hypothetical to be justiciable. First, Petitioner seeks an order 

requiring the County to construct the County Force Main. The County’s obligation 

to construct the County Force Main, however, is contingent upon the County’s 

receipt of notice that construction of sewer infrastructure has begun. There is no 

allegation that the Developer (or any other developer) seeks to build the

infrastructure to connect the Property to the County Force Main. Second, Petitioner 

seeks a general order requiring the County to affirm and comply with its obligations 

under the Settlement Agreement to provide sewer service and capacity to the 

Property if Petitioner or another developer seeks to connect the Property to the 

County Force Main. This is a request for an impermissible advisory opinion. 

“Delaware courts do not render advisory or hypothetical opinions.” XI Specialty, 93 

A.3d at 1217.
27

1. The County’s Obligation to Construct the County Force 

Main Is Contingent.

In Counts III, IV, X, and XI, Petitioner seeks an order requiring the County to 

construct the County Force Main.

53 Petitioner ignores, however, that the Settlement 

Agreement does not impose upon the County an unconditional obligation to 

construct the County Force Main. Rather, the Developer (i.e., the Warrens and Toll 

Brothers) or the property owners listed in the Settlement Agreement must provide 

notice to the County that construction of Developer’s Infrastructure Improvements

has begun in order to trigger County’s obligation to begin construction of the County 

Force Main. Paragraph 4 of the Settlement Agreement states that the “County agrees 

to commence construction of the County Force Main . . . within sixty (60) days of 

receiving written notice from Developer or the property owners of commencement 

of physical construction of Developer’s Infrastructure Improvements.”54 The same 

paragraph states that “[t]he County may, but shall not be required to, begin 

 53 Count III (Permanent Injunctive Relief) alleges that “Respondents have repeatedly 

refused to affirm or confirm the County’s obligations under the Settlement Agreement to 

(a) build the County Force Main (as defined by the Settlement Agreement) and (b) provide 

sanitary sewer service to the Petitioner’s Property, despite the plain language of the 

Settlement Agreement.” Compl. ¶ 53. Counts IV and XI allege the same obligations. Id. 

¶¶ 63, 100; see also Compl. 32 (seeking injunctive relief compelling Respondents to 

“affirm, confirm, honor, and perform the County’s obligations under the Settlement 

Agreement to (a) build the County Force Main (as defined by the Settlement Agreement) 

and (b) provide sanitary sewer service to the Petitioner’s Property)”). 

54 Settlement Agreement ¶ 4.
28

construction of the County Force Main . . . at an earlier time.”55 It is undisputed that 

construction on Developer’s Infrastructure Improvements has not yet begun. The 

Complaint also contains no well-pleaded allegation that Developer’s Infrastructure 

Improvements will be constructed (by either the Developer or by any other 

developer), and that the County has repudiated its obligation to begin construction 

of the County Force Main. 

Thus, under the terms of the Settlement Agreement, the County owes no 

present obligation to begin construction of the County Force Main, and any 

obligation to do so remains contingent. Accordingly, the question of whether 

Petitioner is entitled to an order compelling the County to begin construction of the 

County Force Main does not present a ripe dispute. XI Specialty, 93 A.3d at 1218-

19 (holding that a dispute is “not ripe where the claim is based on uncertain and 

contingent events that may not occur, or where future events may obviate the need 

for judicial intervention”) (internal citations omitted); see also Energy P’rs Ltd. v. 

Stone Energy Corp., 2006 WL 2947483, at *7 (Del. Ch. Oct. 11, 2006) (“[I]f a 

plaintiff's action is ‘contingent,’ that is, if the action requires the occurrence of some 

future event before the action's factual predicate is complete, the controversy is not 

ripe.”) (internal quotations omitted). 

 55 Id. 
29

2. Petitioner Seeks an Impermissible Advisory Opinion.

Counts III, IV, and XI seek to compel the County to guarantee and provide 

sewer capacity for the Property in the event that Petitioner or another developer seeks 

to build infrastructure improvements to connect the Property to the County Force 

Main.

56 The remaining counts of the Complaint—Counts I, II, V, VI, VII, VIII, X, 

and IX—also seek a determination of the parties’ respective rights and obligations 

under the Settlement Agreement if someone other than the Developer seeks to 

connect the Property to the County Force Main. 

The foundation of the Complaint is not grounded in any specific breach of the 

Settlement Agreement. Instead, Petitioner builds its Complaint on the theory that 

the County has acted wrongfully by failing to confirm its purported legal obligations 

under the Settlement Agreement. For example, Count I (Breach of Contract) claims 

that Respondents have “intentionally delay[ed] any resolution of the inquiries of 

Petitioner . . . as to the parties’ respective obligations under the Settlement 

Agreement.”57 Count VII (Bad Faith) argues that Respondents have acted in bad 

faith because they “refused to confirm whether they believe the County is obligated 

to abide by its terms.”58 Petitioner further alleges in Count VII that this is an 

 56 See Compl. ¶¶ 53, 63, 92, 100. 

57 Id. ¶ 42. 

58 Id. ¶ 79. 
30

“obvious effort to leave the Petitioner with no remedy due to the Petitioner’s 

inability to meet the precedent condition necessary to obligate the County to provide 

water and sewer service to the Property.”59 Through Count X (Anticipatory Breach 

of Contract), Petitioner seeks “the County’s assurance that it will comply with its 

obligations” if Petitioner or another developer “satisfies the construction 

requirements set forth in the Settlement Agreement.”60 Similarly, Counts II, V, VI, 

VIII, and IX advance alternative theories for relief on the grounds that the County

purportedly owes obligations to Petitioner under the Settlement Agreement.

61

Petitioner argues that without an order requiring the County to confirm its alleged 

 59 Id. ¶ 79. 

60 Petitioner’s Answering Br. 28. 

61 Count II (Declaratory Judgment) generally seeks a declaration that the County owes 

obligations under the Settlement Agreement. Compl. ¶ 50. Count V (Equal Protection) 

alleges that the County has treated Petitioner differently from other property owners in the 

Port Penn Assemblage “by acknowledging the rights of other beneficiaries to sewer service 

or entering into negotiations to compensate those beneficiaries for the same rights to the 

exclusion of the Petitioner.” Id. ¶ 66. Count VI (Modification of Settlement Agreement) 

seeks a modification of the Settlement Agreement arising from the County’s failure to 

provide assurances. Id. ¶ 74. Count VIII (Equitable Enforcement of Covenant) argues that 

Petitioner has standing to enforce the Settlement Agreement against the County because 

“Toll Brothers abandoned its Application to develop the Property and failed to perform its 

contractual obligations to Petitioner.” See id. ¶¶ 83, 85. Count IX (Breach of the Implied 

Covenant of Good Faith and Fair Dealing) alleges that the County has breached the implied 

covenant of good faith and fair dealing, although the Complaint does not specify what the 

implied terms are or how they arise from the contract. Id. ¶ 89.
31

obligations under the Settlement Agreement, Petitioner has been “delayed in 

securing a buyer or developer willing to develop the Property.”62 

These claims seek a determination of Petitioner’s rights under the assumption 

that the Petitioner, a future owner of the Property, or a developer other than the 

Developer eventually seeks to connect the Property to the County public sewer. 

These claims also assume that the County will disapprove every development plan 

to do so. These claims are “an invitation for a court to render an advisory opinion 

based on a hypothetical case.” Stroud v. Milliken Enters., Inc., 552 A.2d 476, 481

(Del. 1989). “Delaware courts do not render advisory or hypothetical opinions.” XI 

Specialty, 93 A.3d at 1217; see Aviva Life and Annuity Co. v. Am. Gen. Life Ins. Co.,

2014 WL 1677798, at *13 (Del. Ch. Apr. 29, 2014) (declining to opine on plaintiff’s 

claims based on its own contingencies, “which may never come to pass,” because 

“the opinion sought would be advisory”).63 Here, considering all of the possibilities 

that would render Court intervention unnecessary or uncertain “underscore[s] that 

 62 Id. ¶ 55. 

63 Petitioner’s claim for declaratory judgment regarding its rights under the Purchase 

Agreement in Count II is not exempt from the ripeness requirement. Stroud, 552 A.2d at 

479 (declaratory judgment cannot serve “‘as a means of eliciting advisory opinions from 

the courts.’”) (quoting Ackerman v. Stemerman, 201 A.2d 173, 175 (Del. 1964)); see also 

Aviva Life and Annuity Co., 2014 WL 1677798, at *10 (Del. Ch. Apr. 29, 2014) 

(declaratory relief cannot be provided to resolve “hypothetical disputes or . . . situations in 

which a judicial declaration will not end the dispute between the parties”) (quoting Hoechst 

Celanese Corp. v. Nat'l Union Fire Ins. Co. of Pittsburgh, Pa., 623 A.2d 1133, 1137 (Del. 

Super. 1992)).
32

any judicial determination at this stage would necessarily amount to an 

impermissible advisory opinion.” XI Specialty, 93 A.3d at 1219. 

First, it remains possible for the County to approve a development plan 

connecting the Property to the County sewer. As noted above, Petitioner has not 

adequately alleged that seeking administrative approval would be futile. It remains 

possible that Special Services and the County could approve a plan to develop the 

Property and to connect the Property to the County’s public sewer. That possibility 

would render the Court’s intervention unnecessary. XI Specialty, 93 A.3d at 1217 

(holding that a dispute is not ripe where “future events may obviate the need for 

judicial intervention”) (internal quotations omitted). Even assuming that the County 

owes contractual duties to Petitioner as a third-party beneficiary, the County’s

ultimate reasons for disapproving a plan to connect the Property to the County’s 

public sewer could implicate different sections of the Settlement Agreement.64

Because Petitioner has neither presented a plan nor begun to seek administrative 

approval, however, the nature and scope of any eventual dispute remains unclear.

 64 In their briefing, the parties dispute whether Petitioner is a third-party beneficiary with 

rights under the Settlement Agreement or whether Petitioner is a mere incidental 

beneficiary. Because the Court dismisses the Complaint for failure to present a ripe 

dispute, this Opinion does not address the issue of whether Petitioner is a third-party 

beneficiary. 
33

Second, it is possible that neither Petitioner nor any developer ultimately 

seeks to develop the Property and connect the Property to the County’s public sewer. 

As Petitioner acknowledged at oral argument, the Petitioner is not currently seeking

to develop the Property.65 There is also no indication from the record that any 

developer is willing to undertake development of the Property. In the event that no 

developer seeks to connect the Property to the County’s public sewer, the County’s 

purported obligations owed to Petitioner remain inchoate, and there will be no need 

for the Court to issue an opinion. XI Specialty, 93 A.3d at 1217.

Third, the dispute is not ripe because the Court cannot assume that the 

Developer will not construct Developer’s Infrastructure Improvements. The 

Complaint does not allege that the Developer or its assignee66 could not initiate 

construction of Developer’s Infrastructure Improvements. The Complaint also does 

not allege that the Developer has waived or forfeited its rights under the Settlement 

 65 See Oral Arg. Tr. 38 (“THE COURT: [I]s it correct that your client is not pursuing any 

development options for the properties? COUNSEL FOR PETITIONER: Yes.”). 

66 See Oral Arg. Tr. 7 (Counsel for Respondents acknowledging that Toll Brothers’ rights 

under the Settlement Agreement could be assigned); Settlement Agreement ¶ 16 (“This 

Agreement shall be binding upon and inure to the benefit of the Parties and their respective 

. . . assigns.”).
34

Agreement.67 In the event the Developer seeks to construct Developer’s 

Infrastructure Improvements, there would potentially be no need for an order 

determining whether Petitioner or another developer could construct Developer’s 

Infrastructure Improvements and obligate the County to construct the County Force 

Main and to provide sewer capacity. XI Specialty, 93 A.3d at 1217.68 

In sum, the Complaint is not ripe because Petitioner’s claims require the Court 

to assume a hypothetical situation subject to numerous contingencies that would 

significantly affect the dispute before the Court, or moot the dispute altogether. 

Adjudicating this dispute would thus require the Court to issue an impermissible 

 67 The only allegation in the Complaint regarding Toll Brothers’ decision not to pursue 

development pursuant to the Settlement Agreement in the Complaint is a conclusory 

allegation. Compl. ¶ 83 (“When Toll Brothers abandoned its Application to develop the 

Property and failed to perform its contractual obligations to Petitioner including those 

under the Settlement Agreement, it effectively reconveyed the Property, of which it had 

been equitable owner, back to Petitioner.”). This allegation is not sufficient to demonstrate 

that Toll Brothers and the Warrens no longer have any right to construct Developer’s 

Infrastructure Improvements pursuant to the Settlement Agreement. The Answering Brief 

states that “[t]he Developer as defined by the Settlement Agreement is no longer involved 

with the Property or any of the Port Penn Assemblage properties.” Petitioner’s Answering 

Br. 12; see also id. 41 (“As the Developer is no longer involved in the development of the 

Property, the Developer is not going to complete the conditions.”). This argument also 

does not demonstrate that Toll Brothers and the Warrens waived or forfeited their rights 

under the Settlement Agreement. 

68 If this litigation continued on the theory that Petitioner or developers other than the 

Developer could construct Developer’s Infrastructure Improvements to benefit Petitioner 

in lieu of the Developer, it is possible that this action could affect the rights of the Warrens 

and Toll Brothers under the Settlement Agreement. Because this Opinion dismisses the 

Complaint, this Opinion does not reach the question of whether Toll Brothers and the 

Warrens are indispensable parties to this litigation. See Ct. Ch. R. 19(a)(2).
35

advisory opinion regarding Petitioner’s potential rights over a dispute that is not yet 

ripe. 

III. CONCLUSION

For the foregoing reasons, the Respondents’ Motion to Dismiss the Complaint 

is granted. 

IT IS SO ORDERED.