IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

CITIZENS AGAINST SOLAR POLLUTION
, a Delaware unincorporated nonprofit association, DONALD LEE GOLDSBOROUGH, TRUSTEE UNDER REVOCABLE TRUST AGREEMENT OF DONALD LEE GOLDSBOROUGH DATED 12/22/10, and KELLIE ELAINE GOLDSBOROUGH, TRUSTEE UNDER REVOCABLE TRUST AGREEMENT OF KELLIE ELAINE GOLDSBORO UGH DATED 12/22/10
, Plaintiffs,

v.
KENT COUNTY, a political subdivision of the State of Delaware, KENT COUNTY LEVY COURT, the governing body of Kent County, FPS CEDAR CREEK SOLAR LLC, a Dela ware limited liability company, and THE PINEY CEDAR TRUST, JAMES C. KNOTTS, JR., CHERYL A. KNOTTS, DE LAND HOLDINGS 1 LLC
, a Delaware limited liability company, AMY PEOPLES, TRUSTEE OF THE PINEY CEDAR TRUST, and RICHARD A. PEOPLES, TRUSTEE OF THE PINEY CED AR TRUST,

Defendants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) C.A. No. 20 22

- 0287

- NAC

ORDER DISMISSING COMPLAINT WITH LEAVE TO TRANSFER2 WHEREAS :

1. The Kent County Levy Court grant ed a conditional use permit to FPS

Cedar Creek Solar LLC (“Freepoint” and together with the Levy Court and the state,

company , and individual defendants, “Defendants” ) to construct a “solar farm” near
property owned by members of Plaintiff Citizens Against Solar Pollution (together,

“Plaintiffs”)

. Plaintiff s allege that the Levy Court’s decision rests on procedural

errors and violates state law and county regulations . As relief, Plaintiffs seek (i) a

declaratory judgment inval idating the Levy Court’s decision ; and (ii) a permanent

injunction prohibiting the Levy Court from “relying” on its decision and Freepoint

from constructing the solar farm. Dkt. 1 ¶¶ 73

– 85.

2. The parties cross moved for summary judgment. As one basis f or
summary judgment, Defendants argued that Plaintiffs lacked standing . Defendants’

argument cited a case arising from a writ of certiorari proceeding, Dover Historical

Society v. City of Dover Planning Commission , 838 A.2d 1103 (Del. 2003). Before

addressing standing
, t he Delaware Supreme Court found it “ well established that a

writ of certiorari proceeding in the Superior Court is the appropriate cause of action

for determining whether, on the face of the record , the [agency] exceeded its powers

or failed to conform to the requirements of law .” Id

. at 1106. Th is passage seemed

to implicate subject matter jurisdiction

. But the parties had not discussed that issue

.

So I ordered supplemental briefing

. See Dkt. 42.3 3

. After they filed their supplemental briefs, the parties alerted me to Delta

Eta Corporation v. City of Newark

. 1 Dkt. 53

– 55. In Delta Eta , Vice Chancellor

Zurn held that , unless the claimant demonstrates otherwise, a writ of certiorari

provides an adequate remedy at law to redress harm caused by a quasi

- judicial

decision denying a conditional use permit

. 2 Vice Chancellor Zurn summarized and

applied Delta Eta ’s reasoning in Middlecap Associates, LLC v. Town of Middletown :

Petitioner . . . [seeks] a declaratory judgment and injunction to remedy what Petitioner alleges was . . . [a] legally erroneous denial of a conditional use permit

. . . . Petitioner also alleges procedural defects [in the decision] . . . .
[ Delta Eta ]

. . . explain[ s ] that this Court lacks subject matter jurisdiction over cases like this one

. . . . This type of claim is a legal claim based on statutory rights, but withou t a specific grant of statutory jurisdiction. To secure this Court ’ s jurisdiction, the claim must require equitable relief due to the absence of an adequate remedy at law. Delta Eta explains that this Court will lack jurisdiction where a plaintiff fails to plead an injunction is needed to prevent future harm, or is otherwise necessary to enforce a declaratory judgment as against governmental actors, who our law presumes will comply with any declaratory judgment. It also explains that where a writ of certiorari is available, the plaintiff bears the burden of establishing that writ cannot afford an adequate remedy at law

. . . . Delta Eta appl [ies] with equal force to this matter. The denial of Petitioner ’ s conditional use permit was a quasi

- judicial act

. . . . For the reasons stated in Delta Eta, a writ of certiorari is or was available to Petitioner . . . and capable of affording an adequate remedy at law. Accordingly, this Court lacks subject matter jurisdiction over Petitioner’s claims.

2023 WL 1815798, at *1

– 2 (Del. Ch. Feb. 2, 2023) (citation omitted).

1 C.A. No. 2021

- 1106 (Del. Ch. Feb. 2, 2023) (Dkt. 45 ) ( “ Delta Eta ” ).

2 Although Delta Eta involved a “special use permit,” the terms “special use permit” and “conditional use permit” are generally used synonymously. See id

. at 2 n.1

.4 4

. The parties dispute whether Delta Eta requires dismissal. That question

is now ripe for decision.

NOW, THEREFORE, the Court having carefully considered the parties’

arguments, IT IS HEREBY ORDERED, this 24th day of February 2023 , as follows:

1. “The Court of Chancery is proudly a court of limited jurisdiction.”

Perlman v. Vox Media, Inc. , 2019 WL 2647520, at *4 (Del. Ch. June 27, 2019).

Where, as here, a plaintiff seeks to ground j urisdiction solely on a request for

equitable relief, the plaintiff must demonstrate that it has “no adequate remedy at

law [.]” Kraft v. WisdomTree Invs., Inc. , 145 A.3d 969, 973 (Del. Ch. 2016). “If a

realistic evaluation [of the complaint] leads to the conclusion that an adequate legal

remedy is available[,] this court . . . will not accept jurisdiction over the matter.”

McMahon v. New Castle Assocs. , 532 A.2d 601, 603 (Del. Ch. 1987) (Allen, C.).

2. Based on a realistic evaluation of their complaint, Plaintiffs seek

reversal of the Levy Court’s quasi

- judicial decision granting Freepoint a conditional

use permit

. As explained in Delta Eta
, a writ of certiorari would adequately achieve

that objective. Accordingly, I lack jurisdiction over Plaintiffs’ claims

.

3. To resist this result, Plaintiffs try to distinguish Delta Eta on two

grounds

. 3 Neither is persuasive.

3 Plaintiffs also have argued that Delta Eta misapplied controlling law. Plaintiffs’ counsel represents the p laintiff in Delta Eta and moved to reargue the decision

. See C.A. No. 2021

- 110 6 (Del. Ch. Feb. 3, 2023) (Dkt. 48)

. Quite n otably, however, counsel did not contend5 4

. First, Plaintiffs contend that Delta Eta is inapposite because Delta Eta

considered “a mandatory injunction, not a prohibitory injunction.” Dkt. 55 at 1.

That is incorrect. 4 It also does not matter

. Whether mandatory or “prohibitory
, ” a
permanent injunction is a final remedy. So “what matters is whether there is a basis

for equity to act, namely the absence of an adequate remedy at law.” In re COVID

Related Restrictions o n Religious Servs. , 285 A.3d 1205, 1230 (Del. Ch. 2022)

(dismissing complaint that sought to ground equitab le jurisdiction on a request for a

prohibitive injunction). 5 As Delta Eta explained, persons in Plaintiffs ’ situation do

have an adequate remedy at law: a writ of certiorari

. 6

that Delta Eta misapplied controlling law. See id. ( seeking clarification as to whether the decision granted dismissal with or without prejudice). I reject any attempt here to assert through the backdoor of an unsolicited letter a second motion to reargue a decision of a different judicial officer in a separate case that happens to involve the same counsel.

4 See Delta Eta at 11 (“Count I requests a permanent injunction to ‘ prohibit the City and Mayor & Council from relying on the Special Use Denial based upon its invalidity as a matter of law[.] ’ ” (emphasis added) (quoting Am. Compl. ¶ 60)). Indeed, Plaintiffs use the same language here. See Dkt. 1 ¶ 80.

5 See also COVID

- Related Restrictions , 285 A.3d at 1226 n.4 ( explaining that mandatory and prohibitive injunctions are two types of the same final relief and that their difference lies in their respective evidentiary burdens, rather than in their jurisdictional effects).

6 Delta Eta also addressed Plaintiffs’ attemp ts to generate jurisdiction by combin ing a request for injunctive relief with a request for declaratory relief. As many decisions hold, and Delta Eta reiterates , a party cannot bootstrap a request for prospective injunctive relief into a n independent basi s for equitable jurisdiction by speculatively claiming that, without an injunction, a government actor will disobey a declaratory judgment issued by a court of law. See, e.g.
, United Servs. Auto. Ass’n v. Lions Share Tr. , 2023 WL 2145418, at *2 (Del. Ch. Feb. 21, 2023); Mennella v. Albence , 2023 WL 309042, at * 2 (Del. Ch. Jan. 19, 2023); COVID

- Related Restrictions , 285 A.3d at 1233; Birney v. Del. Dep’t of Safety & Homeland Sec. , 2022 WL 16955159, at *2 (Del. Ch. Nov. 16, 2022); Crown Castle Fiber LLC v. City of Wilm. , 2021 WL 2838425, at *5 (Del. Ch. July 8, 2021)

.6 5

. Second , Plaintiffs suggest that a writ of certiorari proceeding would be

inadequate because it would not afford them the temporary injunctive relief they

have obtained here. See Dkt. 12 (Order Granting S tatus Quo Order ). This argument

was not raised in Delta Eta

. Still, one venerable treatise teaches that the

commen cement of a writ of certiorari proceeding operates to stay implementation of

the decision under review. See 1 Victor B. Woolley, Practice in Civil Actions and

Proceedings in the Law Courts in the State of Delaware § 911, at 635

– 36 (1906).

Defendants agree

. See Dkt. 48 at 2

– 4 (discussing rule)

. Plus
, Freepoint avers that it

would “def [ y ] logic” to think it would begin construction while its permit hangs in

the balance

. Id. at 4 n.6. 7 So I am satisfied that the writ remains adequate here

.

6. In sum, Plaintiffs have an adequate remedy at law. So I lack jurisdiction

over their claims. Accordingly, I DISMISS the complaint WITHOUT PREJUDICE

to Plaintiffs’ right to transfer this action to the Superior Court. See 10 Del. C. §

1902. In recognition of Plaintiffs’ concerns regarding interim injunctive relief, t he

status quo order entered in this action will remain in effect until the earlier of

Plaintiffs’ election to transfer and 60 days from the date of this Order.

/s/ Nathan A. Cook Vice Chancellor Nathan A. Cook

7 Freepoint joined the Levy Court’s brief , which makes this point

. See Dkt. 51. In my view, Freepoint’s position may have judicial estoppel effect in a follow

- on certiorari proceeding, with all that entails. See Motorola Inc. v. Amkor Tech., Inc. , 958 A.2d 852, 859

– 60 (Del. 2008).