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 

GOLDSBOROUGH 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 Delaware 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 CEDAR 

TRUST,

 Defendants.

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C.A. No. 2022-0287-NAC

ORDER DISMISSING COMPLAINT 

WITH LEAVE TO TRANSFER
2

WHEREAS:

1. The Kent County Levy Court granted 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”). Plaintiffs 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 invalidating 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 for 

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, the 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. This 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 without 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 jurisdiction 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 plaintiff in Delta Eta and moved to reargue the decision. See C.A. No. 2021-

1106 (Del. Ch. Feb. 3, 2023) (Dkt. 48). Quite notably, however, counsel did not contend 
5

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 COVIDRelated Restrictions on Religious Servs., 285 A.3d 1205, 1230 (Del. Ch. 2022) 

(dismissing complaint that sought to ground equitable 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’ attempts to generate jurisdiction by combining 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 an independent basis 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 Status Quo Order). This argument

was not raised in Delta Eta. Still, one venerable treatise teaches that the 

commencement 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, the 

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).