IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

KAPPA ALPHA EDUCATIONAL )

FOUNDATION, INC., )

Plaintiff, )

)

v. ) C.A. No. N19M-10-175 ALR

)

CITY OF NEWARK, a municipal )

corporation of the State of Delaware, )

Defendant. )

Submitted: January 17, 2020

Decided: January 27, 2020

ORDER CONTINUING STAY OF LITIGATION

By Order dated December 17, 2019, this litigation was stayed; and the Court 

set forth a schedule for status reports. Thereafter, by Order dated January 6, 2020, 

reargument was denied pursuant to Rule 59(e) of the Delaware Superior Court Rules 

of Civil Procedure. In addition, by Order dated January 6, 2020, the Court declined 

the request of Kappa Alpha Educational Foundation, Inc. (“KA”) to address its 

efforts to obtain information from the City of Newark using FOIA.

Nevertheless, while the Court ruled that the question of appropriate zoning 

designation for the property located at 19 Amstel Avenue, Newark, Delaware and 

owned by KA (the “Property”) is best addressed within the political process in the 

City of Newark, the Court ordered that the City of Newark file a status report no 

later than January 10, 2020, notifying the Court of the outcome of the January 7, 

2020 Planning Commissioner meeting; identifying the next step, if any, in the zoning 
2

process; and stating whether the City of Newark seeks an additional stay and for how 

long. By letter dated January 10, 2020, the City of Newark has notified the Court 

that the Planning Commission meeting was duly noticed and took place on January 

9, 2020. According to the City of Newark, the City’s Planning Department 

recommended a Comprehensive Plan change from “University” to low density 

residential classification. Counsel for both parties in this Superior Court litigation, 

made presentations. After deliberation, the City Planning Commission voted against 

recommending that the City Council amend the Comprehensive Plan to a low density 

residential classification. Also, according to the City of Newark, the City Council 

will consider the recommendation of the Planning Commission on February 24, 

2020. Accordingly, the City of Newark requests that the stay of litigation continue 

through at least March 1, 2020.

KA opposes the relief sought by the City of Newark. By letter dated January 

17, 2020, KA concedes that the political process may render this litigation moot but 

argues that the Court should allow at least limited discovery without which KA is 

unfairly disadvantaged in the political process addressing zoning. 

In consideration of the relevant statutes; the Delaware Rules of Civil 

Procedure; applicable decisional law; the parties’ various submissions and letters; 

and the entire record, the Court finds it is not in the interest of judicial economy for 
3

the Court to address the zoning of KA’s Property because the political process 

underway may render the Court’s ruling moot. Essentially, any ruling on the merits 

by this Court would be an advisory opinion.1 Moreover, Delaware statute provides 

enforcement mechanisms to address a citizen’s access to public records2and it is 

therefore neither necessary nor appropriate for this Court to intervene in the FOIA 

request process.

NOW, THEREFORE, this 27

th day of January, 2020, this litigation 

remains STAYED. The City of Newark shall file a status report no later than 

February 26, 2020, notifying the Court of the outcome of the February 24, 2020 

City Council meeting; identifying the next step, if any, in the zoning process; and 

stating whether the City of Newark seeks an additional stay and for how long. KA 

may respond no later than March 5, 2020. Thereafter, the Court will notify the 

parties whether the stay shall remain in effect or be lifted.

IT IS SO ORDERED. 

Andrea L. Rocanelli

_______________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________________

The Honorable Andrea L. Rocanelli

 

1 See Howell v. Justice of Peace Court No. 16, 2007 WL 2319147, at *9 (Del. Super. 

July 10, 2007) (declining to address moot issues “since doing so would require the 

rendition of a non-dispositive, advisory opinion”).

2 See 29 Del. C. § 10005(b).