IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

Stillwater Harbor, LLC, )

)

Petitioner, )

v. ) C.A. No. S23A-11-001 MHC

)

SUSSEX COUNTY PLANNING & )

ZONING COMMISSION, )

COMMISSIONERS OF SUSSEX )

COUNTY PLANNING & ZONING )

COMMISSION, SUSSEX COUNTY )

COUNCIL, MEMBERS OF SUSSEX )

COUNTY COUNCIL )

)

Respondents. )

ORDER

Submitted: June 11, 2024

Decided: August 8, 2024

Upon Petitioner Stillwater Harbor, LLC’s

Petition for Writ of Certiorari, DENIED.

Richard Forsten, Esquire, Mackenzie Peet, Esquire, SAUL EWING LLP, 1201 N. 

Market Street, Suite 2300, Wilmington, Delaware, 19801, Attorneys for Petitioner.

David N. Rutt, Esquire, MOORE & RUTT, 122 West Market Street, Georgetown, 

Delaware, 19947, Attorney for Respondents.

CONNER, J.
2

This eighth day of August, 2024, upon consideration of the parties’ briefings

and the vast record before the Court, it appears to the Court that:

1. Petitioner Stillwater Harbor, LLC (“Stillwater”) seeks to subdivide a 

tract of land lying north of the Indian River in the Oak Orchard area of Sussex 

County. If approved, the subdivision will convert 57 mostly wooded acres zoned 

for both medium and general residential use into 123 individual lots.1

2. On April 27, 2023, the Sussex County Planning & Zoning Commission 

(“Commission”) held a public hearing on Stillwater’s application for the 57 acre 

subdivision preliminary plan (the “Application”). At the end of the hearing the 

Commission held the record open for: (1) written comments; (2) a review of the 

Subdivision’s Resource Buffers; and (3) a report from the Commission’s Counsel,

Vincent G. Robertson, Esquire, (“Mr. Robertson”), regarding the ability of Stillwater 

to use Jackson Draine Lane.2 Stillwater did not object to the record being held open 

and submitted supplemental briefing to the Commission.3 On June 8, 2023, the 

Commission closed the record following the submission of Mr. Robertson’s Jackson 

Draine Lane easement report.4

1 Record at B0066.

2

Id. at B2427-B2428.

3

Id. at B2535.

4

Id. at B2460.
3

3. On June 22, 2023, Commissioner Hoey-Stevenson moved the 

Commission to deny the Application providing 11 specific justifications in support 

of denial.5 With one abstention the Commission unanimously denied the 

Application by a vote of 4-0.6 On July 20, 2023, Stillwater appealed the 

Commission’s denial to the Sussex County Council (“Council”) on two grounds

arguing: (1) the Application complies with County Code and is therefore entitled to 

approval; and (2) the Commission failed to act upon the Application within 45 days 

of its submission.

4. On October 24, 2023, the Council held a hearing on Stillwater’s appeal 

from the decision of the Commission.7 Mr. Forsten presented Stillwater’s appeal to 

the Council. Mr. Robertson’s presentation of the Commission’s opposition

followed. On November 7, 2023, the Council unanimously voted in favor to affirm 

the decision of the Commission below denying the Application.

8

5. Unhappy with the decision of the Council, Stillwater filed a petition for 

writ of certiorari in this Court. The petition seeks the reversal of the Council’s 

decision affirming the Commission’s denial of the Application. Stillwater argues the 

Council erred on two grounds. First, Stillwater argues that the Application should 

5 Record at B0117-B0135.

6

Id. at B0135-B0136.

7

Id. at B1764-B1916.

8

Id. at B1747.
4

be “deemed approved” because the Commission exceeded the 45-day timeframe to 

approve or deny it. Second, Stillwater argues the Application complied with code 

and therefore its rejection is improper.

6. This matter is before the Court upon a writ of certiorari. “The purpose 

of a writ of certiorari is to permit this Court to review the record of a proceeding 

decided by a lower tribunal. Delaware law is clear that a writ of certiorari is not the 

functional equivalent of appellate review.”9 “Certiorari review differs from 

appellate review in that an appeal ‘brings up the case on its merits,’ while a writ 

brings the matter before the reviewing court to ‘look at the regularity of the 

proceedings.’”10 “The Court may not weigh evidence, disturb the lower tribunal's 

factual findings or decide the merits of the case. Therefore, the Court shall uphold 

the decision of the lower tribunal unless the petitioner can demonstrate that the 

decision was arbitrary and unreasonable on its face.”11

7. Stillwater’s first argument is that pursuant to 9 Del. C. § 6811 the 

Application is “deemed approved” because the Commission failed to approve or 

deny it within 45 days of its submission. The Application was first submitted on 

9 Dorsey v. AKA Mgmt., 2024 WL 1173609, at *2 (Del. Super. Ct. Mar. 18, 2024) (internal 

citations omitted).

10 395 Assocs., LLC v. New Castle Cnty., 2006 WL 2021623, at *3 (Del. Super. July 19, 2006) 

(quoting Breasure v. Swartzentruber, 1988 WL 116422, at *1 (Del. Super. Oct. 7, 1988)).

11 Dorsey, at *2 (internal citation omitted).
5

April 17, 2023.12 Ten days later, on April 27, 2023, the Commission held the record 

open for additional submissions following a public hearing.

13 Stillwater neither 

objected to this decision to hold the record open nor did they request the imposition 

of a temporal restriction for the additional submissions. In fact, Stillwater submitted 

additional briefings on May 5, 2023.14 On June 8, 2023, Mr. Robertson submitted 

his report on Jackson Draine Lane at which point the Commission closed the 

record.15

8. It is clear on the face of the record that the Application is not simply 

deemed approved as a matter of law because the Commission did not approve or 

deny it within 45 days of Stillwater’s initial submission. The record was held open 

for additional briefing necessary for the Commission to make an informed decision 

as to the preliminary plan. Stillwater took part in the submission of additional 

briefing. The record closed on June 8, 2024, following the submission of 

Robertson’s report. It was at this point the 45-day clock began to run. Fourteen

days later, on June 22, 2023, the Commission rendered their decision denying the 

Application in accordance with the statutory requirements of 9 Del. C. § 6811.16

12 Pet’r Op Br. at 6.

13 Record at B2427-B2428

14 Record at B2535.

15 Id. at B2460.

16 Id. at B0135-B0136.
6

9. Stillwater next argues that the Council erred in affirming the 

Commission’s denial of the Application because it “complies with the specific 

criteria set forth in the code.”17 The Commission raised 11 deficiencies in their 

denial of the Application.

18

 The Council cited to four specific deficiencies in the 

Application in its decision to affirm the Commission.

19 First, Sussex County Code 

§ 99-17B requires the access to a subdivision to be a public highway at least 50 feet 

wide and River Road varies from 42-46 feet wide.20 Second, the Commission found 

the application deficient with regards to the 17 mandatory factors it must consider 

in its decisions to approve or deny a subdivision plan pursuant to Sussex County 

Code § 99-9(C).

21 Third, the imposition of additional conditions on the Application 

will not rectify ongoing flooding in the area or cure its deficiencies with regard to 

§99-17(B) and §99-9(C).

22 Finally, the Jackson Draine Lane easement will not 

benefit Stillwater Harbor’s future lots and is inadequate as an emergency access.23

The Council and the Commission below clearly articulated the ways in which the 

Application failed to comply with the standards set forth in the County Code.

17 Pet’r. Op. Br. at 18.

18 Record at B0117-B0135.

19 Record at B1745-B1746.

20 Id. at B1745.

21 Id.

22 Id. at B1745-B1746.

23 Id. at B1746.
7

10. Stillwater has failed to demonstrate that the lower tribunal erred as a 

matter of law or rendered their decision in an arbitrary or unreasonable manner. 

Given the broad deferential standard to the lower tribunal on a petition for writ of 

certiorari this Court must uphold their decision. For these reasons Stillwater’s 

petition is DENIED.

IT IS SO ORDERED.

/s/ Mark H. Conner 

Mark H. Conner, Judge

Via File & Serve

oc: Prothonotary