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.
2

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.
3

 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.”). 
4

[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-ofway 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.
5

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. 
6

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 
7

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.
8

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-infact 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.
9

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, 
10

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.
11

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).
12

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.”).
13

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).
14

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). 
15

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.
16

[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.
17

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).
18

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.
19

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