IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

DENNIS L. SCHAFER AND :

GEORGEANNA F. SCHAFER, :

husband and wife, and DAVID : C.A. No. K22C-11-014 JJC

W. CAHALL and MARSHA L. :

CAHALL, husband and wife, :

 :

Petitioners, :

 :

v. :

 :

KENT COUNTY DEPARTMENT :

OF PLANNING SERVICES, an :

agency of Kent County, a political :

subdivision of the State of Delaware, :

and CHING, LLC a Delaware :

limited liability company, :

 :

Respondents. :

Submitted: February 10, 2023

Decided: May 31, 2023

MEMORDANDUM OPINION 

John W. Paradee, Esquire, Brian V. DeMott, Esquire, and J. Garrett Miller, Esquire,

BAIRD, MANDALAS, BROCKSTEDT, FEDERICO & CARDEA, LLC., Dover, 

Delaware, Attorneys for Petitioners.

Daniel A. Griffith, Esquire, WHITEFORD, TAYLOR & PRESTON, LLC., 

Wilmington, Delaware, Attorney for Respondent The Kent County Department of 

Planning Services.

Richard A. Forsten, Esquire, Pamela J. Scott, Esquire, and Gary W. Lipkin, Esquire, 

SAUL, EWING, ARNSTEIN & LEHR, LLP., Wilmington, Delaware, Attorneys for 

Respondent Ching, LLC.

Clark, R. J.
2

This decision examines a landowner’s challenge to a Kent County Department 

of Planning Services (“DPS” or alternatively “DPS staff”) decision to approve a 

subdivision application. Petitioners Dennis Schafer, Georgeanna Schafer, David 

Cahall, and Marsha Cahall (hereinafter collectively referred to as “the Schafers”) 

attempt to appeal DPS’s approval of Respondent Ching, LLC’s minor subdivision

plan (the “Plan”). In their petition, the Schafers ask the Court to expunge the Plan 

from Kent County’s property records because DPS unlawfully approved it. Ching 

counters by filing a motion to dismiss the petition because the Schafers have no right 

to appeal the decision. 

For the reasons discussed below, the Superior Court has no jurisdiction to 

consider the Schafers’ appeal because no statute authorizes it. Under the 

circumstances of this case, however, the Court grants their alternative motion to 

amend the petition to request a writ of certiorari. As explained below, the motion 

to amend is timely and the Court has common law jurisdiction to review the 

lawfulness of DPS’s approval. 

I. PROCEDURAL AND FACTUAL BACKGROUND

The facts recited below are those alleged in the Schafers’ verified petition and 

are assumed to be true at this stage of the proceedings. The Schafers and the Cahalls

own separate one-acre parcels close to one another in Kent County. Those parcels, 

in turn, are close to a twenty-acre parcel owned by Ching. The Schafer, Cahall, and 

Ching parcels all abut the same existing roadway. 

In November 2021, Ching requested that DPS approve its minor subdivision 

plan. The Plan sought, inter alia, to subdivide the twenty-acre parcel into two 

parcels and to authorize at least one new roadway within the twenty-acres. DPS staff 

approved the Plan as submitted in March 2022 without providing community notice 

or a hearing.
3

State and County Code provisions provide for a formal approval process for 

a “standard” subdivision plan. The initial review of a standard subdivision plan is 

conducted by Kent County’s Regional Planning Commission (“the RPC”).

1

 Public 

notice, a public hearing, and a decision by the RPC are all prerequisites for approval.

2

 

After the RPC approves or denies it, an aggrieved party may then appeal the RPC’s 

decision to Kent County’s Levy Court.3 

Because Ching proposed a minor subdivision, however, neither Kent 

County’s Regional Planning Commission nor the Kent County Levy Court reviewed 

DPS’s decision. Moreover, DPS provided no public notice and received no public 

comment. As a result, seven months passed before the Schafers inadvertently 

discovered that DPS had approved the Plan. 

When the Schafers learned of the approval, they filed a “verified petition for 

expungement.” The petition presents as a combination of an appeal and a 

declaratory judgment action.4 In it, the Schafers rely primarily on a provision that 

permits Kent County land use appeals, 9 Del. C. §4818 (hereinafter “Section 4818”), 

as the basis for their requested relief. 

At this stage of the proceedings, Ching moves to dismiss the petition pursuant 

to Superior Court Civil Rule 12(b)(6). In Ching’s motion, it contends that no statute 

provides the Schafers the right to appeal DPS’s decision to approve a minor 

1

9 Del. C. § 4818; Kent Cty. C. § 187-85(B).

2

9 Del. C. § 4810.

3

9 Del. C. § 4811.

4

See Mot. for Expungement, ¶¶ A–G (requesting that the Court (1) declare DPS’s approval of 

Ching’s application improper and a violation of the Schafers’ procedural due process rights; (2) 

declare the recording process unlawful; (3) prohibit Ching from developing the property; (4) find 

that DPS must expunge the Plan; and (6) award costs and attorneys’ fees). At oral argument, the 

Schafers abandoned their declaratory judgment claims, and clarified that they intend to pursue only 

an appeal. Accordingly, the balance of the Court’s opinion will address (1) whether there is a 

cognizable appeal and (2) whether the Court should grant the proposed amendment to seek a writ 

of certiorari. 
4

subdivision plan.5 The Schafers disagree and contend that Section 4818 permits 

their appeal.

6

 In the alternative, the Schafers move to amend their pleading to 

request review on certiorari.

7

 Ching, in turn, requests that the Court deny the 

motion to amend because it is untimely.8 

II. THE PARTIES’ ARGUMENTS

Ching contends that Section 4818 provides no right to appeal DPS’s decision 

to approve a minor subdivision because it permits an aggrieved party to appeal only 

the decisions of the “county government.” Ching then relies on the definition in 9

Del. C. §4801(4) that defines “county government” as “the county governing body 

of Kent County” for all of Chapter 48.9 The governing body of Kent County, Ching 

emphasizes, can only be Kent County’s Levy Court.

The Schafers counter that they have a statutory right to appeal DPS’s decision. 

For that, they advocate a broader reading of the phrase “county government.”10 In 

essence, they rely on the common and ordinary meaning of the phrase and contend 

that Section 4818 provides them a direct appeal of DPS’s decision because that 

agency is part of the county government. 

As to substance, the Schafers contend that DPS committed an error of law by 

approving the Plan contrary to statutory and ordinance-based requirements.

11

 In

part, the Schafers contest the lawfulness of the Plan because it creates two new 

parcels that, in turn, are located on a “new road.”

12

 They contend that the inclusion 

5 Mot. to Dismiss ¶ 2.

6 Resp. in Opp’n to Mot. to Dismiss ¶ 1.

7 Mot. to Amend ¶ 6.

8 Resp. to Mot. to Amend ¶ 3.

9

Id. ¶ 2.

10 Pet’r’s Supp. Br.’g at 2.

11 Mot. for Expungement ¶¶ 23–26. 

12 Id. ¶ 23.
5

of a new road disqualified the Ching’s parcel from being treated as a minor 

subdivision as defined in 9 Del.C. § 4801(8). The Schafers further rely on the 

definitions and requirements for a standard subdivision and contend that the Plan fits 

squarely within those requirements, thereby making DPS’s approval of the Plan 

contrary to law, by implication.

13

The Schafers alternatively seek to amend their petition to request a writ of 

certiorari. When doing so, they emphasize that the proposed amendment is nearly 

identical to their initial filing.

14

 In response, Ching concedes that the Schafers could 

have challenged DPS’s decision pursuant to a writ of certiorari because there is no 

right to appeal.15 Nevertheless, Ching contends that the motion to amend is untimely 

because they did not file it within thirty days of their initial petition. For that 

argument, Ching relies upon recent decisional authority that imposes a “typical” 

period for filing an administrative appeal – thirty days – by analogy.

16

 

Finally, Ching challenges the Schafers’ standing to challenge the Plan and the 

ripeness of the matter for review by either appeal or certiorari. As to standing, 

Ching contends that DPS’s approval does not impact any recognized property right 

due the Schafers. As to ripeness, Ching relies on the recent Delaware Supreme 

Court decision, JMER Properties, LLC v. State of Delaware Department of 

Transportation.

17

 Ching argues that, according to JMER Properties, DPS’s 

approval of a minor subdivision is only an intermediary step toward developing the 

land, which leaves it unripe for judicial review.

18

 

13 Mot. for Expungement ¶¶ 24–27.

14 Mot. to Amend ¶¶ 10–11.

15 Resp. to Mot. to Amend ¶ 11.

16 Resp’t’s Supp. Br’g at 2.

17 291 A.3d 1089, 2023 WL 1097340 (Del. Jan. 30, 2023) (TABLE).

18 Resp’t’s Supp. Br’g at 3–4.
6

III. STANDARD OF REVIEW

Ching moves under Superior Court Civil Rule 12(b)(6) to dismiss the 

Schafers’ petition for failure to state a claim. When the Court considers a motion to 

dismiss on that basis, it accepts the facts alleged in the original pleading as true.

19

A pleading survives a Rule 12(b)(6) review if it provides adequate notice of the basis 

for the claim and demonstrate a conceivable basis for success.20

Ching further contends that the Court has no jurisdiction to consider the appeal 

because no statute authorizes it. In other words, Ching challenges the Court’s

subject matter jurisdiction to do so, which implicates Superior Court Civil Rule 

12(b)(1) rather than Rule 12(b)(6).

21

 In Delaware, the Superior Court has 

jurisdiction to consider an appeal of an agency’s case decision in two circumstances:

(1) if there is a provision in the agency’s enabling statute that authorizes the appeal; 

or (2) the agency is an enumerated agency whose case decisions are subject to appeal

through Delaware’s Administrative Procedures Act (“APA”).

22

 

At this stage of the proceedings, the Court considers both a motion to dismiss 

and a motion to amend, which in turn implicates Rules 12(b)(1) and 12(b)(6). 

Typically, there is a difference in the scope of the record when the Court decides 

these respective motions.23 Rule 12(b)(6) confines the record to the initial pleading 

and anything integral to the pleading.24 A Rule 12(b)(1) challenge, on the other 

19 Spence v. Funk, 396 A.2d 967, 968 (Del. 1978). 

20 Id. 

21 Abbott v. Vavala, 2022 WL 453609, at *5 (Del. Ch. Feb. 15, 2022), aff'd, 284 A.3d 77, 2022 

WL 3642947 (Del. Aug. 22, 2022) (TABLE).

22 29 Del. C. Ch. 101; Haden v. Bethany Beach Police Dep’t, 2014 WL 2964081, at *4 (Del. Super. 

June 30, 2014).

23 Doe v. Cahill, 884 A.2d 451, 458 (Del. 2005) (explaining that the Court’s review in a Rule 

12(b)(6) motion is limited to the allegations in the initial pleading); cf. Abbot, 2022 WL 453609, 

at *6 (explaining that in a Rule 12(b)(1) motion the Court may expand the record to matters 

touching on the Court’s power to hear the case).

24 Duncan v. Garvin, 2021 WL 2550656, at *2 (Del. Super. June 21, 2021).
7

hand, may require the Court to consider matters outside the pleadings to evaluate

subject matter jurisdiction.25 In this case, however, the Court relies only on the facts 

and law cited in the petition and considers no outside material for either challenge. 

It need not because the question of the Court’s jurisdiction over administrative 

appeals presents a narrow issue: either a statute authorizes it or it does not. 

IV. DISCUSSION

The Court has no jurisdiction to hear the Schafers’ appeal. A writ of 

certiorari, however, is an appropriate mechanism to review DPS’s decision for legal 

error. Furthermore, a straightforward application of Rule 15(c)’s relation back 

standard makes the Schafers’ motion to amend timely. Finally, Ching’s challenges 

to the Schafers’ standing and the ripeness of their claims do not make the amendment

futile for the reasons explained below. As a result, the Court will fully consider the 

amended petition’s merits after briefing. 

A. The Superior Court may hear an administrative appeal only if the 

General Assembly provides it jurisdiction to do so. 

The Superior Court is Delaware’s court of general jurisdiction.26 Appeals of 

decisions of administrative agencies, however, do not fall within the Court’s 

common law jurisdiction. Rather, a statute must authorize them. Here, the Court 

will first address the two relevant subdivision application processes in Kent County

to explain how the General Assembly provided no right of appeal in this instance. 

First, the Delaware Code provides the following procedure for approving a 

Kent County minor subdivision application:

25 Abbott, 2022 WL 453609, at *5.

26 10 Del. C. § 541; Del. Const. art. IV, § 7; New Castle Cty. v. Chrysler Corp., 681 A.2d 1077, 

1080 (Del. Super. 1995).
8

approval for [a] minor subdivision shall be by administrative 

Commission staff pursuant to minor subdivision regulations which the 

county government is hereby authorized and directed to adopt.27

Because Ching submitted the Plan as a minor subdivision, there was a staff-only 

review of the application. Commission staff in this subsection refers to DPS. The 

process used by DPS includes no right to public notice, public hearing, or internal

appeal elsewhere within the County’s governmental structure. 

Second, an applicant for a standard subdivision plan must submit the plan to

Kent County’s Regional Planning Commission for approval.28 Section 4818 then 

provides a party aggrieved by an RPC decision the right to appeal to the “county 

government.”

29

 Then, after the county government renders its final decision, an

aggrieved party may file an administrative appeal to the Superior Court.

30

 

In this case, the Schafers base their appeal on Section 4818 which specifies 

what Kent County land use decisions may be appealed to the Superior Court. In 

relevant part, it provides the following:

[a]ll decisions of the county government pursuant to applications made 

under this chapter are appealable to the Superior Court of Kent County

. . . within 10 days of the written decision of the county government.31

The Schafers contend that DPS provided the decision of “the county government”

when it approved the Plan so they can now appeal that decision to the Superior Court. 

In support, they promote the common and ordinary definition of the phrase “county 

government” and contend that DPS’s approval, because it was final, became the 

government’s final decision.

27 10 Del. C. § 4810. See Kent Cty. C. §§ 187-29–187-33 (providing the process and procedure 

for an applicant to submit a plan to seek DPS approval of a minor subdivision plan).

28 Kent Cty. C. §§ 187-7–187-27. 

29 9 Del. C. § 4811; Kent Cty. C. § 187-85(B).

30 9 Del. C. § 4818; Kent Cty. C. § 187-85(C).

31 9 Del. C. § 4818 (emphasis added).
9

Ching counters by relying on the statutory definition of “county government.” 

That definition, found in Section 4801(4), applies to all of Chapter 48, including 

Section 4818. It defines “county government” as “the county governing body of 

Kent County.”32 Ching contends that such a reference can only refer to the Levy 

Court, which means that the Schafers cannot appeal DPS’s decision because DPS is 

not the Levy Court. 

On reflection, Ching’s proffered statutory construction is the correct one. 

Namely, the General Assembly can, and often does, limit a statute’s application by 

narrowly defining its scope.

33

 It is axiomatic that if the General Assembly provides 

such legislative direction, a court must apply the statute’s plain language.34 As a 

result, a statute’s plain language controls even when the General Assembly enacts a 

definition that is narrower than the common and ordinary meaning of a word or 

phrase.35

In this case, the General Assembly is presumed to have understood that it 

limited appeals to only decisions by the Levy Court by defining county government

as the governing body of Kent County. It did so primarily by including a defined 

term in Section 4818 that limits what body’s decisions are subject to Superior Court 

appeal. Furthermore, in addition to Subsection 4801(4)’s definition, the Delaware 

32 9 Del. C. § 4801(4) (emphasis added).

33 See Tesla Inc. v. Del. Div. of Motor Vehicles, 2023 WL 3470406, at *5 (Del. May 15, 2023) 

(recognizing that “[w]hen a statute specifically defines a term, even if it is different than its 

ordinary meaning, the Court will apply the definition used by the General Assembly.”). 

34 The rules of statutory construction are designed to ascertain and give effect to the General 

Assembly’s intent, as expressed in the statute. Mayor and Council of Wilmington v. Dukes, 157 

A.2d 789, 793 (Del. 1960). First, the Court must determine if a statute is ambiguous. Dir. of 

Revenue v. CNA Holdings, Inc., 818 A.2d 953, 957 (Del. 2003). If not, “then the plain meaning 

of the statutory language controls.” Id. Simply because the parties cannot agree regarding the 

meaning of the statute does not create ambiguity. Centaur Partners, IV v. Nat’l Intergroup, Inc., 

582 A.2d 923, 927 (Del. 1990). Rather, a statute is ambiguous only if it is reasonably susceptible 

to different interpretations. Id. 

35 Id.
10

and County Codes recognize that Levy Court is the governing body of Kent County. 

The Delaware Code does so by recognizing that “[i]n Kent County, the governing 

body shall consist of 7 elected officials,”

36 which provides an inescapable reference 

to the Kent County Levy Court’s seven members. Furthermore, the Kent County 

Code recognizes, even more specifically, that the Levy Court is the “governing body 

of Kent County.37 

The Schafers also rely on Section 4818’s legislative history when arguing the 

opposite. They stress that the 1970 version of Section 4818 initially referred to “the 

Levy Court.” They then highlight that the General Assembly later amended the 

statute to its current form by substituting the phrase “the county government” for 

“the Levy Court.”38 That change, the Schafers argue, demonstrates the General 

Assembly’s intent to expand the scope of appealable decisions beyond those of the 

Levy Court. 

Notwithstanding this substituted phrasing, the Court must ascertain the 

General Assembly’s intent by applying the plain meaning of the current version if it 

contains no ambiguity.39 Despite the substitution of terms, the Schafers do not 

explain how the Court can ignore (1) the clear statutory direction in Section 4818

and Subsection 4801(4), and (2) the absence of an alternate provision in Chapter 48 

that permits their appeal. In other words, a change in phrasing from a prior version 

of Section 4818, alone, cannot negate the statute’s unambiguous reference to the 

36 9 Del. C. § 4103 (emphasis added). The phrase “county government” is used elsewhere 

throughout Chapter 48. For instance, the right of appeal from the Regional Planning Commission 

is to “the county government.” 9 Del. C. §4811. No reasonable reading of the statute would 

provide for any entity other than the Levy Court to fulfill that role. 

37 Levy Court, Kent Cty. C. § 184-5.

38 See 57 Del. Laws ch. 710, § 1 (1970) (providing “[a]ll decision of the Levy Court . . .”) (emphasis 

added); cf. 9 Del. C. § 4818 (1975) (providing “[a]ll decision of the county government. . .”) 

(emphasis added).

39 See CNA Holdings, 818 A.2d at 957 (explaining that a court need not interpret an unambiguous 

statute because its plain meaning controls).
11

only entity from which an aggrieved party may take an appeal. Since the DPS’s

decision is not one of “the governing body” of Kent County, the Schafers have no

appeal right. 

Finally, the General Assembly had the ability, independent of Chapter 48’s 

internal appeal mechanism, to provide an alternative route of appeal by including 

Kent County agencies within the APA’s case-decision appeal provisions,

40 but did 

not. The APA’s list of agencies whose case decisions are subject to Superior Court 

appeal does not include any political subdivision of the State or their departments.41 

Accordingly, the APA does not provide the Schafers an alternate route of appeal. 

B. The Schafers’ motion to amend is timely because it relates back to 

their initial filing. 

In the absence of an available appeal, the focus turns to whether the Court 

should grant the Schafers’ motion to amend. Here, Ching conceded that a timely 

petition for review on certiorari would permit Superior Court review of a DPS 

decision. Ching further conceded at oral argument that although the Shafers did not 

file their original petition until seven months after DPS approved the Plan, 

exceptional circumstances excused the seven-month delay because the Schafers had 

no knowledge that DPS had approved the Plan.42 These two concessions narrow the 

analysis to the issue of whether the proposed amendment was timely. 

40 See 29 Del. C. § 10142 (allowing an appeal to the Superior Court of any case decision); see also

29 Del. C. §10161(a) (providing through further reference that the case decisions of only 

enumerated agencies may be appealed and including no governmental subdivisions in the list).

41 Id.

42 Ching conceded at oral argument that the Schafers’ original filing was timely as discussed above. 

To the extent its supplemental briefing seems to retract this concession, the Court applies the 

original concession because the parties filed their supplements simultaneously, giving neither party 

the opportunity to address any changes in position. 
12

Ching contends the motion was untimely because no exceptional

circumstances excuse the Schafers’ failure to request review on certiorari in their 

initial filing or within thirty days of that filing.

43

 Docket entries demonstrate that 

the Schafers filed their motion to amend approximately two months (fifty-eight 

days) after their initial filing. 

At the outset, leave to amend pleadings should be freely given in the interests 

of justice.44 The claim for relief that the Schafers seek is a narrow review that is 

only appropriate when: (1) there is a credible claim that a lower tribunal’s unlawful 

decision subjected the petitioner to an adverse final judgment, and (2) there is no 

other means of review.45 Here, the Schafers set forth a credible claim in their 

petition that DPS’s final decision constituted legal error. Furthermore, there is no 

other basis for review because no appeal is available from DPS’s final decision. 

The substantive review triggered by a writ of certiorari is limited “to 

jurisdictional matters, errors of law, or irregularity of proceedings which appear on 

the face of the record.”46 At oral argument, the Court asked the parties if a writ of 

mandamus may not be the more appropriate remedy because DPS’s decision to 

approve the Plan required, at most, minimal discretion. DPS’s discretion when 

approving the Plan was narrowly limited by the statutory and code definitions that 

define a minor subdivision. Both parties, nevertheless maintained at oral argument,

and Ching maintained in its supplemental filing, that review on certiorari, and not 

mandamus, is the appropriate mechanism. Because some discretion lied in DPS’s 

43 See In the Matter of Gunn, 122 A.3d 1292, 1293 (Del. 2015) (providing for the first time in 

Delaware decisional law that “exceptional circumstances” as opposed to “appropriate 

circumstances” are needed to excuse an untimely petition for writ of certiorari).

44 Super. Ct. Civ. R. 15(a).

45 The Matter of Butler, 609 A.2d 1080, 1081 (Del. 1992); see also Elcorta, Inc. v. Summit 

Aviation, Inc., 528 A.2d 1199, 1201–02 (Del. Super. 1987) (explaining that the court considered 

timeliness to be a discretionary matter because of the lack of prescribed time limit at common law).

46 Butler, 609 A.2d at 1081 (quoting Goldstein v. City of Wilmington, 598 A.2d 149, 152 (Del. 

1991).
13

review and approval of the Plan and the parties stipulate that review on certiorari is 

the appropriate mechanism, the Court will accept that premise and move to the issue 

of timeliness.47

The common law historically provided no time restriction for filing a petition 

for a writ of certiorari.

48

 Rather, any untoward delay in filing became a factor 

considered by the Court when it decided whether to exercise its discretion to issue 

the writ.

49

 Furthermore, there are no statutorily prescribed filing deadlines for a

common law writ.

50

 Nor does any court rule provide a time restriction. As a result, 

the Court has historically maintained discretion over the issue of timeliness.51

More recently, Delaware courts have begun imposing a thirty-day 

requirement by analogy so as to mirror a typical (although far from uniform)

47 While the Court considers the parties to have stipulated to the appropriateness of review on 

certiorari (subject to the Schafers maintaining that they have a statutory right of appeal and 

Ching’s timing, standing, and ripeness arguments), the Court must also independently conclude 

that this form of review is appropriate before issuing the writ. A writ of certiorari provides for 

review of an agency’s quasi-judicial action. While this matter presents a close call, the statute

defining DPS’s role provides further support for finding certiorari to be appropriate. Namely, it 

charges DPS with the “approval” of a minor subdivision under 9 Del. C. § 4810)(a). To approve 

something, one must first consider it, which involves judicial-like discretion. Furthermore, the 

approval in this case is the final decision on the matter and there is no avenue of appeal. Finally, 

there will be at least some record for the Court to review on certiorari including the application, 

its attachments, the plat, and any contemporaneous submission by Ching that DPS considered. Cf. 

Couch v. Delmarva Power & Light Co., 593 A.2d 554, 560–61 (Del. Ch. 1991) (distinguishing 

quasi-judicial action of an agency and routine decisions by an operating officer where there is no 

record to review).

48 Elcorta, Inc., 528 A.2d at 1201.

49 Id.

50 Id.

51 See In re Downes, 571 A.2d 786, 1989 WL 160434, at *2 (Del. Dec. 12, 1989) (TABLE) 

(acknowledging the Court’s discretion to permit an untimely filing in “appropriate circumstances,”

rather than “exceptional circumstances”); see also Petition of Fridge, 604 A.2d 417, 1991 WL 

247811, at *1 (Del. Nov. 20, 1991) (TABLE) (observing that the case did not present an 

“appropriate circumstance,” rather than an “exceptional circumstance,” to exercise the court’s 

discretion).
14

statutory appeal period.52 It is likely that this approach found further support in 

statutorily created rights for review on certiorari that separately impose thirty-day 

requirements.53 As to the standard for excusing a late filing, the Delaware Supreme 

Court decision in The Matter of Gunn54 first imposed the requirement that a 

petitioner demonstrate exceptional circumstances to file outside of thirty days. In 

Gunn, however, the Court did not explain what rises to the level of exceptional.55

The Schafers filed their initial pleading approximately seven months after 

DPS approved the Plan, well past any analogous appeal period. Nevertheless, at oral 

argument, Ching conceded that the lack of notice of approval qualified as an

“exceptional circumstance” to justify the delay in the initial filing. Ching’s 

timeliness challenge focuses separately on the delay between when the Schafers filed 

their initial petition and when they moved to amend – a lapse of approximately two 

months.56 Ching contends that this two-month segment of delay bars the 

amendment because no exceptional circumstances excused it.

In this case, the Court need not determine whether the reason for the delay 

meets the exceptional circumstances standard. Rather, the result turns on the relation 

back principle of Superior Court Civil Rule 15(c). There, an amendment relates 

back to the date of the original pleading when the claim or defense asserted in the 

amended pleading arose out of the conduct, transaction, or occurrence set forth in 

the original pleading.57 Although Superior Court Civil Rule 72(c) includes certain 

52 Fridge, 1991 WL 247811, at *1; Downs, 1989 WL 160434, at *2; Elcorta, Inc., 528 A.2d at 

1200–01; McIntosh v. City of Newark, 2006 WL 1134894, at *1 (Del. Super. Mar. 31, 2006). 

53 See, e.g., 9 Del. C. § 1314(a) (granting a right of review by writ of certiorari in New Castle 

County land use decisions requested within thirty days).

54 122 A.3d at 1293.

55 Id.

56 Mot. for Expungement (filed Nov. 7, 2022); cf. Mot. to Amend (filed Dec. 28, 2022). 

57 Super. Ct. Civ. R. 15(c)(2); See 6A Charles Alan Wright & Arthur R. Miller, Federal Practice 

and Procedure § 1496 (3d ed. 2010) (recognizing that Federal Rule 15 applies to all original 

pleadings rather than exclusively to complaints). 
15

minimum requirements for a notice of appeal, a notice of appeal nevertheless 

qualifies as a pleading for purposes of Rule 15(c)’s relation back principle when the 

amendment seeks a common law writ of certiorari. 

Here, the proposed amended petition relies upon the same facts and land use 

laws identified in the original pleading. In fact, the initial petition reads as a detailed 

declaratory judgment complaint and fully recites the Schafers’ position. The 

proposed amendment adds only a new, and significantly narrower theory of review, 

while the Schafer’s requested relief remains unchanged. Namely, they allege 

identical legal error throughout and in that way provided Ching notice of their 

contentions from the outset. Ching will suffer no unfair prejudice.58

When Ching focuses on this two-month delay, it bases a significant part of its 

argument on the Delaware Supreme Court’s decision in Gunn. In Gunn, the 

Supreme Court found a candidate’s petition challenging a Board of Canvass’s result 

untimely because his request for relief came (1) later than thirty days after the 

challenged conduct and (2) included no exceptional circumstances to justify 

excusing the untimeliness.

59

 As explained above, the Court declined to define what 

constituted exceptional circumstances. Rather, it observed merely that the 

58 Ching cites State Pers. Comm’n v. Howard, 420 A.2d 135 (Del. 1980), when arguing that Rule 

15 does not permit an amendment to a writ of certiorari outside of 30 days because a notice of 

appeal cannot be amended or modified after the expiration of the appeal period. As noted in 

Howard, however, that rule applies only in cases where a party attempts to alter the ground or 

scope of the appeal after the appeal period in a way that unfairly prejudices the respondent. Id. at 

138. Here, there is no such attempt or effect, leaving no inconsistency between that “general rule” 

and modern pleading standards as recognized by Rule 15. Moreover, although the Schafers’ initial 

petition alleged jurisdiction under Section 4818, it read in all other respects as a petition for relief 

on certiorari, though it did not request the writ. See also Weston v. State, 554 A.2d 1119, 1119–

20 (Del. 1989) (citing Howard when recognizing that amending a notice of appeal is appropriate 

where it does not substantially prejudice the appellee). 

59 Gunn, 122 A.3d at 1293.
16

candidate’s seven-month delay in filing the petition for certiorari was untimely 

because he pursued the matter “in the wrong court and sought the wrong remedy.”

60

 

The Schafers’ motion to amend aligns more with the Superior Court’s 

decision in Haden v. Bethany Beach Police Department,

61 than Gunn. In Haden, 

the respondent moved to dismiss the opposing party’s attempted appeal of a 

municipal decision based on lack of subject matter jurisdiction.62 The court granted 

the motion to dismiss in part, because no statutory provision provided the Court 

jurisdiction to consider an appeal.63 The court then addressed whether it should 

grant an alternatively proposed amendment to add a claim for a writ of certiorari.

64

 

Despite much longer than a thirty-day delay, the court explained that Delaware 

courts recognize that a petition for writ of certiorari is the functional equivalent of 

a notice of appeal.

65

 When the court found the amendment timely, it recognized 

that Delaware courts apply the modern view of pleadings to appeals and noted their 

reluctance to dismiss them on technicalities absent the threat of unfair prejudice.

66

 

Because the two claims for relief in Haden arose from the same conduct, transaction, 

and occurrence, the amendment related back to the time of the initial notice of 

appeal.67

The Schafers’ amendment similarly relates back to their initial filing because 

it too arises from the same conduct, transaction, and occurrence alleged in the initial 

60 Id.; cf. FMC Corp. v. Special Services Dept., 2017 WL 2378002, at *4 (Del. Super. May 31, 

2017) (finding exceptional circumstances existed where (1) it was unclear whether a party had a 

direct right to appeal, and (2) it resulted in no prejudice to the adverse party). 

61 2014 WL 2964081.

62 Id. at *2.

63 Id. at *5.

64 Id. at *6.

65 Id.

66 Id.

67 Id. The court ultimately found, however, that the amendment was futile because the decision 

below was not final and there were no errors of law. Id. at *7.
17

pleading. In Ching’s opposition, it identifies no unfair prejudice that will befall it 

from an amendment that adds only a narrower scope of review than the original 

pleading. 

C. Ching’s standing and ripeness challenges do not demonstrate the

amendment’s futility. 

In addition to jurisdiction, Ching raised two substantive reasons for dismissing 

the appeal pursuant to Rule 12(b)(6): (1) the Schafers’ lack of standing, and (2) the 

matter’s ripeness for judicial review.68 As explained above, the Court dismisses

Schafers’ appeal pursuant to Section 4818 on jurisdictional grounds.69 Ching’s 

standing and ripeness arguments, however, also apply to its opposition to the 

Schafers’ motion to amend. With that shift in focus, the inquiry pivots to whether 

the proposed amendment would be futile.70 In answering that question, the Court 

must determine if the proposed amendment would survive a Rule 12(b)(6) motion.

71

Here, the Schafers amendment clears the Rule 12(b)(6) hurdle for standing

purposes because it adequately alleges aggrieved status. As the Court recently 

recognized in Race Track Car Wash, LLC v. City of Dover Planning Commission, 

et al., a petitioner cannot be expected to make a record before an agency on standing 

if there was no need or opportunity to do so below.72 If DPS committed an error of 

law, as the Schafers contend, there was no opportunity for them to create a record 

on standing because there was no hearing to do so. In situations such as this, a 

party must demonstrate his or her standing at the time in the proceedings “when it 

68 Resp’t’s Supp. Br’g at 3–4.

69 As provided supra, Section IV(A). 

70 See Schaffer v. Dixon, 2023 WL 2493279, at *3 (Del. Super. Mar. 14, 2023) (explaining that 

leave to amend a complaint should be freely given unless the amendment would be futile –

meaning, subject to dismissal under Rule 12(b)(6) for failure to state a claim).

71 Id. 

72 2019 WL 4200623, at *5 (Del. Super. Sept. 5, 2019), aff’d, 277 A.3d 139, 2020 WL 1503260 

(Del. Mar. 27, 2020) (TABLE).
18

first matters.”

73

 Accordingly, both parties may submit extraneous materials,

contemporaneously with their substantive briefing, to support or contest the 

Schafers’ standing to seek review on certiorari.

74

 

Finally, Ching contends that the matter is not ripe for review because 

additional land use review and approval steps must be met before the land is 

developed. In support, it relies on the Supreme Court’s decision in JMER 

Properties.

75

 

In JMER Properties, the Delaware Supreme Court reviewed the Court of 

Chancery’s dismissal of a declaratory judgment and injunction action where the 

petitioner sought to enjoin landowners from building an access ramp to a state

highway.76 Unlike in the Schafers’ case, the petition in JMER Properties focused 

its challenge on a Delaware Department of Transportation traffic impact study, and 

not on an approved final plan. As the Supreme Court emphasized in that decision, 

the traffic impact study was merely one of many conditions required before 

submission of the final plan.77 

In contrast, the Schaffers allege in their petition that DPS approved a final 

minor subdivision plan that was filed with the Kent County Recorder of Deeds.

78

 

Although a minor subdivision may differ from a standard subdivision in scope and 

effect, they do not differ conceptually for purposes of determining ripeness. The 

73 Id. at *6.

74 See id. (explaining that the Court must separately and independently review standing on appeal 

or certiorari, which may include considering supplemental information not typically included 

within the record below). Even though the review on certiorari is significantly more limited than 

on appeal. The parties’ ability to supplement the record for this limited purpose does not broaden 

the scope of the Court’s substantive review. Id. 

75 Resp’t’s Supp. Br’g at 3–4.

76 2023 WL 1097340, at *1.

77 Id. at *3.

78 See 9 Del. C. § 4810(b) (providing that upon approval, the plat is filed with the recorder of 

deeds).
19

Plan’s approval has the same finality as would a standard subdivision approval. As 

a result, the amended pleading demonstrates that DPS’s approval is ripe for review. 

V. CONCLUSION

For the reasons explained above, Ching’s motion to dismiss is Granted, in 

part. The portion of the Schafers’ initial petition that seeks to appeal DPS’s 

decision pursuant to 9 Del. C. § 4818 is dismissed. The Schafers’ motion to amend, 

however, is Granted, and a writ of certiorari will issue to Kent County Regional 

Planning Services. Upon return of the writ and the filing of a response by Ching

(and DPS as the deciding agency, if it chooses to participate), the parties are 

requested to confer and propose a stipulated briefing schedule to address the merits 

of the Schafers’ claim of legal error. 

IT IS SO ORDERED.

 /s/ Jeffrey J Clark

 Resident Judge

Via File & Serve Express