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New Castle County v. Pike Creek Recreational Services, LLC

Superior Court of Delaware, New Castle

September 5, 2013

NEW CASTLE COUNTY, Subdivision of the State of Delaware, Plaintiff, Respondent,
PIKE CREEK RECREATIONAL SERVICES, LLC, a Delaware limited liability company, Defendant, Petitioner.

Submitted: June 14, 2013

Corrected: September 6, 2013

Withdrawn and Reissued With Clarifications: December 30, 2013

Upon Plaintiff's Motion for Partial Summary Judgment GRANTED, IN PART.

Upon Defendant's Motion for Partial Summary Judgment GRANTED, IN PART.

Upon Petitioner's Petition for Writ of Mandamus DISMISSED.

Upon Application to Intervene DENIED.

Max B. Walton, Esquire, Connolly Gallagher LLP, Newark, Delaware, Bernard V. Pepukayi, Esquire, County Attorney, New Castle County Office of Law, Wilmington, Delaware, Attorneys for Plaintiff/Respondent.

Richard P. Beck, Esquire, A. Kimberly Hoffman, Esquire, Morris James LLP, Wilmington, Delaware, Attorneys for Defendant/Petitioner.

Richard L. Abbott, Esquire, Abbott Law Firm, Hockessin, Delaware, Attorney for Interested Parties.


Paul R. Wallace, Judge

I. Introduction

Plaintiff New Castle County (the "County") moves for partial summary judgment, asking the Court to uphold alleged land use restrictions created by two agreements – a 1964 agreement and a 1969 amendatory agreement (later described and hereinafter referred to collectively as the "Master Plan") that were executed to govern the development of Pike Creek Valley – and thus prevent Defendant Pike Creek Recreational Services ("PCRS") from developing any portion of approximately 177[1] acres that once operated as a golf course.[2] The County argues PCRS must follow the procedural process required by the County's Unified Development Code ("UDC") § 40.31.130, also known as the "Restriction Change Statute, " before PCRS can develop any part of the land.[3] PCRS has also moved for partial summary judgment requesting an order from this Court that UDC § 40.31.130 does not apply to the subject land either because no such restrictions exist on that acreage, or because the PCRS development plans would not violate any now-extant restrictions.[4] Both parties were heard at oral argument before this Court[5] in November 2011.

The County first filed a Complaint in November 2010 in the Court of Chancery.[6] It seeks to compel PCRS' compliance with alleged restrictions in the Master Plan and to "maintain and operate an 18-hole golf course."[7] In December 2010, PCRS countered with a mandamus action in Superior Court[8] seeking "plan review, engineering approvals and building permits" for its proposed residential development of the Golf Course (the "Mandamus Action").[9] The action in Chancery[10] was consolidated with the Mandamus Action. [11] For the reasons described below, both Motions for Summary Judgment are GRANTED, in PART.

II. Factual and Procedural Background

In 1964 the four original owners[12] of 1, 141 acres in Mill Creek Hundred, now known as Pike Creek Valley, in New Castle County, operated as Mill Creek Ventures and entered into an agreement to develop the land "pursuant to a comprehensive master plan, applying the principles of a planned unit development."[13] At the time, New Castle County was governed by the Levy Court, and the County's zoning code had not yet evolved to include provisions to accommodate such mixed-use development plans.[14] In order to "permit the [Levy Court] to consider the proposed rezoning in the light of specific proposed uses, "[15]the original owners voluntarily entered into the 1964 Agreement[16] which imposed restrictions on the subject acreage in the event that the Levy Court approved the owners' petition for rezoning.[17] The original owners also made the Levy Court a third-party beneficiary of the 1964 Agreement.[18] As such, the Levy Court and its successors were given the power to prospectively enforce the 1964 Agreement.[19]Similarly, any amendments to the 1964 Agreement would require approval by the Levy Court or its successors in interest.[20] With respect to a golf course, the 1964 Agreement set aside open space for "a par three golf course or other recreational use."[21] The original owners requested the area set aside for the par-three golf to be zoned commercial, and in return covenanted to use the land for either commercial recreational purpose or non-profit recreational use only.[22] In December 1964, the Levy Court approved the original owners' development plan as described in the 1964 Agreement and rezoned the subject acreage. As a result, the voluntary restrictions in the 1964 Agreement became effective. The 1964 Agreement was recorded in the Recorder of Deeds office.[23]

In 1969 the original contracting parties executed an amendment to the 1964 agreement (the "1969 Amendatory Agreement").[24] The 1969 Amendatory Agreement had several distinct objectives: (1) to acknowledge New Castle County Council (the "County Council") as the Levy Court's successor in interest, and thus the governmental organization with final jurisdiction over the subject acreage;[25] (2) to identify changes in the corporate identities of two of the original owners;[26] and (3) to expand the "SUBJECT ACREAGE" from approximately 1, 141 acres to approximately 1, 364 acres.[27] As required by the 1964 Agreement, the 1969 Amendatory Agreement was subject to the County Council's approval.[28] And, just as the restrictions in the 1964 Agreement were contingent upon the County approving certain rezoning, the 1969 Amendatory Agreement was contingent upon the County approving additional zoning changes.[29]

Whereas the 1964 Agreement had contemplated a par-three golf course, the 1969 Amendatory Agreement required the "set aside and hold[ing] throughout the course of development of the entire SUBJECT ACREAGE the following land use[] . . . [o]pen spaces [] including 130 acres set aside for an 18-hole golf course. . . ."[30] In addition, the contracting parties agreed that 85 additional acres would be set aside as "non-golf open space" for a total of 215 acres set aside for open or recreational space.[31] At the time of covenanting, the parties agreed that if construction of the golf course did not begin within five years, "the open space set- aside for the [golf course] shall be devoted to uses approved by the Department of Planning and the New Castle County Council."[32] The owners' requested zoning changes were approved by the County Council in early 1970.[33] The voluntary restrictions in the 1969 Amendatory Agreement then became effective.[34]

Nearly two years later, in September 1971, the then-owners recorded a plan for Pike Creek Golf Course, which established "private open space . . . in accordance with the [1964] agreement as amended, " and which again also designated the County as a third-party beneficiary.[35] In order to develop the open space set-aside as a golf course without losing the land's residential zoning designation, the owners sought and were granted a special exception by the County.[36] Soon thereafter, the plot was sold to Pike Creek Valley Country Club.[37]

In 1970, the owners had prepared an "Approved Tentative Master Plan Pike Creek Valley, "[38] (the "Distributed Master Plan") which developers distributed to prospective purchasers of Pike Creek residential units.[39] The Distributed Master Plan included a signature block whereby lot purchasers acknowledged that the Distributed Master Plan derived from the Master Plan and could be changed only with approval by the County Council.[40] In the decade or so immediately following, a series of revised subdivision plans document minor modifications to the Golf Course, some containing language establishing the Golf Course as "private open space" in accordance with the Master Plan.[41] Subsequent recorded plans, however, made no mention of the two Agreements, and did not make reference to the "private open space, " as previous plans had done.[42]

In 1980, G.R.G. Realty Co. ("G.R.G."), then-owner of the Golf Course, sought approval to subdivide twenty townhouse lots from a portion thereof along Hogan Drive (the "Hogan Drive Plan"). In response to the County's refusal to review its plans for the Hogan Drive Plan, G.R.G. filed a mandamus action in Superior Court.[43] The limited question then decided by the Court was whether such writ should issue.[44]

The Court's conditional writ ordered the Department of Planning to carry out its statutory duty to review the Hogan Drive Plan "as to content."[45] The Court also instructed the Department of Planning to "make it clear in its decision that it is not passing upon the issues which fall outside its assigned duties."[46] As a result, after the Department of Planning reviewed and approved the Hogan Drive Plan in 1982, it placed the following note on the recorded plan:

This plan has been reviewed as to content and compliance with the New Castle County Subdivision and Land Development Regulations. The Department of Planning has not reviewed the Plan as to compliance with the 1964 Agreement or the 1969 Amendatory Agreement of record pertaining to the development of the Pike Creek Valley Community or any other applicable agreement per letter opinion of the Superior Court dated 12/30/81 re: G.R.G. Realty vs. New Castle County 81M-MR-18.

The Hogan Drive Plan was recorded thereafter, and each of the twenty lots assigned a tax parcel number, [47] but the County took additional action to block development of Hogan Drive. The County Council's attorney directed the County Director of Public Works not to issue any building permits related to the recorded plan.[48] The County Council also adopted Resolution 82-092 in which it, inter alia, authorized the County to join a lawsuit filed by Pike Creek Valley residents.[49]That lawsuit was dismissed, however, after G.R.G. went bankrupt, and before the County joined.

Three Little Bakers, Inc. ("Three Little Bakers") purchased the Golf Course from G.R.G. in December 1982.[50] In 1985, in order to entice the County to rezone portions of the 170 acres they owned, Three Little Bakers recorded a declaration (the "1985 Declaration") through which it voluntarily entered into a series of covenants restricting the use of the subject land.[51] The 1985 Declaration established "covenants running with the land . . . binding upon the Declarant, its successors and assigns, and . . . for the benefit of New Castle County, its successors and assigns."[52] Specifically, Three Little Bakers covenanted to restrict the commercial development on the land to "a restaurant, golf course, club house, pro shop, parking lot, and uses allied, ancillary and accessory to said uses, and to the golf course."[53] No changes were to be made "without the prior consent of New Castle County Council . . . ." Finally, the 1985 Declaration stated that any rezoning would not prejudice the County, the County Council, or civic associations with respect to "agreements, restrictions, easements, conditions or other matters relating to the Pike Creek Golf Course."[54]

The 1985 Declaration was recorded, and the County rezoned a portion of the Three Little Bakers' land.[55] Three Little Bakers operated the Golf Course until 2008, when the property was sold to the current owners, PCRS.[56] At no time prior to selling the Golf Course did Three Little Bakers attempt residential development of the twenty Hogan Drive lots.

In 2008, prior to the sale of the land, the title to the Three Little Bakers property was divided in order to separate the Golf Course from the other operations on the land.[57] PCRS took title to the Golf Course, including the Hogan Drive lots, while Pike Creek Healthcare Services LLC ("PC Healthcare") took title to the remaining land.[58] That remainder was commercially-zoned.[59] In order to build a nursing home facility, PC Healthcare applied to have the restrictions contained in the Master Plan and the 1985 Declaration removed.[60] Pursuant to the County's UDC[61] § 40.31.130, the "Restriction Change Statute, " which states "any amendment to a declaration of restrictions to which the County is either a party or a beneficiary of the covenants therein shall follow the [statutory] procedure, " PC Healthcare submitted its deed restriction change request to the Department of Land Use.[62] The Department of Land Use recommended the change to the Planning Board, which also endorsed the change to the County Council.[63] On July 8, 2008, the County Council formally removed any deed restrictions on the commercially- zoned portion of the land that originated from either the Master Plan or the 1985 Declaration.[64] The Golf Course was unaffected by this 2008 deed change.[65]

The Golf Course's current owners, PCRS, shut it down in 2010, intending to construct thereon the Terraces at Pike Creek (the "Terraces"), a mixed-use development comprised of 288 residential dwellings[66] and commercial buildings totaling 62, 000 square feet.[67] As a prelude, PCRS first submitted engineering plans for the development of the twenty Hogan Drive lots.[68] The County responded with a letter dated September 23, 2010, in which it notified PCRS that no approvals could be granted until PCRS could show that the development of Hogan Drive would not violate "any other deed restrictions affecting the property."[69] PCRS filed an appeal from the September 2010 letter with the County Planning Board, [70] and as a result the County review process was put on hold.[71]With its appeal pending, PCRS submitted additional engineering drawings and applications for Hogan Drive on October 14, 2010.

On November 9, 2010, before the County took action on the appeal, New Castle County Council adopted Resolution 10-197, which authorized legal action against PCRS and asserted the County's main contention that the Master Plan prohibited any development on the entirety of the Golf Court as it was configured, including the Hogan Drive lots.[72] The resolution also directed the Land Use Department not to issue PCRS engineering approvals or building permits for residential or other construction.[73] On the same day, the County filed its Complaint in the Court of Chancery, arguing that PCRS' development plan for the shuttered Golf Course violated the applicable restrictions, covenants, and dedications.[74]

PCRS countered with a petition for a writ of mandamus filed in Superior Court on December 1, 2010, seeking a court order directing the County to review the engineering plans and applications. Nearly a week later, the County Council adopted Resolution 10-217, [75] which corrected and amended Resolution 10-197, and filed its First Verified Amended Complaint in the Chancery action. In December 2010, the County, through counsel, notified PCRS that it would review the plans, but simultaneously told PCRS that no building permits would issue until the County approved, pursuant to the Restriction Change Statute, the deed restriction changes it deemed necessary.[76] Additional appeals of County agency decisions were stayed by this Court's order.[77]

Immediately before this Court are the remaining actions: (1) the County's Chancery action seeking equitable relief in the form of a ruling that PCRS is required to maintain and operate an 18-hole golf course on the existing approximately 177 acres previously known as the Pike Creek Golf Course;[78] and (2) PCRS' mandamus action seeking a court order instructing the County to review and approve its proposed plans for both the Hogan Drive lots and the Terraces. This decision also addresses the Motion to Intervene, filed in November 2011, by several residents of Pike Creek Valley.[79] Yet, before the Court considers the merits of each argument, it is first necessary to review several prior decisions, which address the 1964 and 1969 Agreements' effects, and which the parties frequently cite as precedential to the instant case.

III. Prior Judicial Proceedings

The development of Pike Creek Valley has a tortured legal history. The interpretation of the various agreements and the Pike Creek Valley Master Plan has been the subject of several notable decisions in the nearly 50 years since the 1964 Agreement was first memorialized. The first such decision was issued by the Delaware Supreme Court in 1975. In New Castle County v. Richeson, [80] the Supreme Court held that the ultimate decision in a dispute over whether any proposed plans for the Pike Creek Valley conformed to the Master Plan was properly left to the courts, not the New Castle County Planning Board.[81]

Six years later, the Superior Court addressed a different issue: whether the Court could compel the Department of Planning to review and act on G.R.G.'s plan to subdivide a portion of what was then approximately 199 acres on which the Golf Course was situated.[82] G.R.G., which had purchased the Golf Course in 1980, intended to develop 8.7 acres of the 199 for residential use, and to re-design the Golf Course around the new construction.[83] The County's Department of Planning argued, however, that it was not compelled to review and act upon G.R.G.'s submissions because G.R.G. had not secured consent from the County Council, successor in interest to the Levy Court and third-party beneficiary of the Master Plan.[84] The Superior Court disagreed and compelled the Department of Planning to review G.R.G.'s proposal as to content only, with the caveat that the Department of Planning "make it clear in its decision that [the Department of Planning] is not passing upon the issues which fall outside its assigned duties."[85] The Department of Planning could not avoid its statutory duty to review the plans, and determining whether the plans were in accordance with the Master Plan was outside the Department of Planning's jurisdiction.[86] Therefore, the County's Department of Planning, under G.R.G. and Richeson, was both compelled to conduct its review and limited in its regulatory review of the then-pending development plan's content.[87] The issue of whether the then-planned development was in accordance with the Master Plan was a question properly left to the Court.[88]

In Regency Group, Inc. v. New Castle County, the Court of Chancery addressed yet another Pike Creek Valley development issue: whether a designation on the Master Plan map alone creates a restrictive covenant.[89] In Regency, the County argued that the designation on the Master Plan map of certain acreage as "Motor Inn Site" created a covenant that restricted use of that acreage to a motor inn.[90] Again, the Court did not agree with the County and found that enforcing a restrictive covenant against Regency in particular, would be "arbitrary and inequitable, " in light of the fact that the County had neglected to enforce other similar designations on the Master Plan map as restrictive covenants.[91] Relying on the following clause from the 1964 Agreement, the Court found that the specific designation on the planning map of "Motor Inn Site" was not controlling, and that portions of the subject land zoned for business may be used in any way that accorded with the County zoning code:

The acreage set aside for commercial use on the updated Master Plan and rezoned for that purpose; whether the classifications be G-1, C-2, R-C, or C-3, shall be utilized for the land uses and purposes described in the zoning Code of New Castle County as the same now is or may hereafter be amended to restate such uses; provided, however, and as the only exception to the foregoing, the area shown on the updated Master Plan set aside for a par 3 golf course if zoned commercial shall only be used for a recreational purpose.[92]

In determining that the "Motor Inn Site" map designation did not constitute a restrictive covenant, the Court did not address the primary question raised here: whether the 1964 Agreement and 1969 Amendatory Agreement created a restrictive covenant with respect to the entirety of the acreage previously operated as the Golf Course.[93]

IV. Standard of Review

This Court cannot grant either party's motion for summary judgment "unless no genuine issue of material fact exists and one of the parties is entitled to judgment as a matter of law."[94] The moving party has the burden of showing that there is no genuine issue of material fact.[95] If that burden is met, the non-moving party must demonstrate that "there is a genuine issue for trial."[96] And in determining whether there is, the Court must view the facts in the light most favorable to the non-moving party.[97]

Where cross-motions for summary judgment are filed and neither party argues the existence of a genuine issue of material fact, "the Court shall deem the motions to be the equivalent of a stipulation for decision on the merits based on the record submitted with the motions."[98] Where cross-motions for summary judgment are filed, however, and an issue of material fact exists, summary judgment is not appropriate.[99] In its evaluation of whether there is a genuine issue of material fact, the Court should evaluate each motion independently.[100] Where it seems prudent to make a more thorough inquiry into the facts, summary judgment is inappropriate.[101]

V. Discussion

A. The Law of the Case

New Castle County argues that the Court's oral rulings of November 16, 2011 should not be disturbed, while PCRS argues that the Court should reconsider those 2011 bench rulings. A successor judge overruling a decision of a predecessor judge of the same Court is strongly disfavored.[102] Such a situation is guided by the doctrine of the law of the case so as to promote "fundamental fairness and . . . judicial efficiency."[103] Yet unlike res judicata, the "law of the case doctrine is not inflexible . . . it not an absolute bar to reconsideration of a prior decision that is clearly wrong, produces an injustice or should be revisited because of changed circumstances."[104] This is to ensure that, especially where the case is taken on by a successor judge, the parties are not "entrapped by varying philosophies of different judges of the same Court in the case."[105]

Based on the merits of the arguments presented to the Court in November 2011 and in subsequent briefing, the Court adopts the oral rulings of the November 2011 hearing in all instances except in those extraordinary circumstances where justice demands revisiting the merits of the parties' claims. This is the Court's decision on summary judgment in the Chancery Action and final judgment in the Mandamus Action, as those present the issues that the parties have agreed are ripe for decision at this point.

B. The Master Plan created a restrictive covenant on the Golf Course that runs with the land.

Courts generally favor the free use of land.[106] Clearly, restrictive covenants, such as the ones alleged here, interfere with free use.[107] To mediate the "tension between protecting neighboring property owners' expectations for their community and the rights of landowners to use their property as they may lawfully choose, " courts have developed precise rules to govern restrictive covenants.[108] Specifically, "[restrictive covenants] are recognized and enforced . . . where the parties' intent is clear and the restrictions are reasonable."[109] To determine the intent of the parties, the Court must look to the plain meaning of the restrictive covenant or deed restriction.[110] "[C]ovenants restricting the free use of property must be strictly construed."[111]

"[R]estrictive covenants may be enforced against a purchaser only if he or she had notice, either actual or constructive, of their existence."[112] Importantly, "[b]uyers with knowledge or the means of gaining knowledge of covenants restricting use of the land they propose to purchase cannot effectively object to the enforcement of such covenants when they are reasonable, realistic and are fairly administered."[113] Finally, as a general rule, the party advocating for the land use restriction bears the burden of demonstrating the restriction is valid and enforceable.[114]

The County argues the Master Plan establishes the original owners' clear and unambiguous intent to create restrictions that run with the land. Thus the County contends it is entitled to summary judgment on this issue. PCRS opposes the County's interpretation of the Master Plan as demonstrating a clear intent to create enforceable restrictions that run with the land. Because the issue of intent is disputed, PCRS contends, summary judgment is not warranted on those restrictions.

The purpose of the 1964 Agreement and 1969 Amendment was to memorialize a land-use plan across more than a thousand acres in Pike Creek Valley, in order to entice the County to approve the original owners' multi-use community development plan. The Agreements evidence a clear intent by the original owners to balance residential and commercial construction with open and recreational space for the benefit of the County's residents.[115] To that end, the original owners covenanted to set aside a certain amount of open space and to provide an option to construct a golf course on a portion of that otherwise undeveloped land. While the 1969 Amendatory Agreement indicates a set-aside of 215 acres[116] of open space, the Court has not been asked, nor has a record been developed that would allow the Court to rule on the modern-day application and meaning of the entirety of that set-aside. Rather, the parties' contentions surround the current 177± acres owned by PCRS, the entirety of which the County has argued must operate as a golf course. Thus, for these cross summary judgment motions, the Court's focus is specifically on the golf course restriction created by the 1964 and 1969 Agreements.

In construing restrictive covenants, the Court must, where possible, give effect to the plain meaning of the language by the grantor.[117] Article 3 of the 1964 Agreement explicitly states the original owners' intent to (a) impose land use restrictions, and (b) bind themselves and their successors in interest: "The DEVELOPER does hereby, for itself, its successors, transferees and assigns, impose the restrictions, limitations and covenants, with respect to use and occupancy hereinafter set forth in detail upon . . . the SUBJECT ACREAGE." There can be no mistaking the intent of the original owners to institute a series of restrictive covenants that would run with the land.

The 1964 and 1969 Agreements, by their plain and unambiguous language, also evidence the original owners' clear intent to set aside, or dedicate, certain acreage as open space. Article 7 of the 1964 Agreement states: "DEVELOPER, its successors and assigns, will set aside and hold throughout the course of development of the entire SUBJECT ACREAGE the following land uses irrespective of the ultimate zoning of the SUBJECT ACREAGE: . . . Open Spaces, 158.0 acres minimum."[118] The 1969 Amendatory Agreement modifies Article 7 so that the open space set-aside, irrespective of the ultimate zoning of the subject acreage, is described as "Open spaces (including 130 acres set aside for an 18-hole golf course and 85 acres [10% of net residential lands which shall be non-golf open space]), 215 acres."[119] The parties' language in both agreements clearly evidences the intent to dedicate open space.

1. The Master Plan does not require PCRS to operate the Golf Course, but does preclude development on 130 acres of the set-aside open space.[120]

The County argues that the 1969 Amendatory Agreement plainly requires operation of an 18-hole golf course on the set-aside open space.[121] PCRS counters that nothing in either the 1964 Agreement or 1969 Amendatory Agreement requires a golf course to be constructed, let alone operated in perpetuity.[122] The restrictive covenant must be construed as a whole so that none of the individual provisions of the covenant themselves become "illusory or meaningless."[123]Reading the two Agreements as a whole, and strictly construing the plain meaning of the golf course restriction, the Court must conclude there is a "set-aside for a specific use of 130 acres" of the subject acreage. That "specific use" of 130 acres is the "development of an 18-hole golf course."[124]

So the two Agreements provide plainly that the "130 acres set aside for an 18-hole golf course", or more precisely "the development of an 18-hole golf course", was included among the "areas set aside for specific land uses."[125]Moreover the language used demonstrates the explicit original intent that the 130 acres would be dedicated to the specific single purpose of development of a golf course, and would not serve double-duty to meet some other "open space" requirement.[126] Accordingly, unless validly changed or amended, the restriction limits the 130-acre set aside to a single specific use.

While the County argues that the Master Plan requires that the Golf Course, having been constructed, must remain in its constructed configuration and must remain in operation, no language from either the 1964 Agreement or the 1969 Amendatory Agreement supports such an assertion. The only requirement established by the Master Plan with respect to a golf course is that land be set aside for the development of such. Actual operation is not required by the Master Plan.[127] Because PCRS admitted knowledge of the restrictive covenants contained in the Master Plan – although it claimed not to have interpreted them as such – the Court need not make further inquiry into notice.[128] Thus the County, as a third-party beneficiary of the 1964 and 1969 Agreements, may insist that 130 acres must remain set aside for development as a golf course.[129]

As such, the Court cannot say that the restrictive covenant, itself, prevents PCRS from constructing the proposed Hogan and Terraces developments. At the same time, the Court cannot speak to the other procedural disqualifications that may prevent the projects from moving forward. The restrictive covenant does, however, require PCRS to demonstrate how their planned development projects would conform to the Master Plan, and does require PCRS to set aside a minimum of 130 acres of land which may feasibly be developed as an 18-hole golf course.[130]

The Agreements require PCRS to set aside and dedicate 130 acres minimum, but the Agreements do not mandate that the Golf Course operate as a going concern.[131] PCRS is correct that courts generally disfavor equitable enforcement of affirmative, rather than restrictive covenants.[132] Practically, a restriction on land is less burdensome than a covenant that requires action on behalf of the owner. In 1969, when the covenanters set aside land to be dedicated as open space and likely used to develop a golf course, they did not, in the same Agreement, execute an affirmative covenant that would require the owner of that land to operate a golf course in perpetuity. In the years since Pike Creek Valley was first developed, operating the Golf Course became economically unfeasible. And while changed economic circumstances will not normally suffice as a basis for removing restrictions, here it is possible that even if an affirmative covenant was found to exist, removal of that covenant might be justified due to changed circumstances.[133]

PCRS claims that summary judgment is inappropriate at this juncture because "intent is a question of fact that, if disputed, cannot be resolved by inference against the non-moving party."[134] While it is true that the Court must view all evidence and draw all inferences in favor of the non-moving party, where the record supports the moving party's assertion that there are no material issues of fact remaining, the burden then shifts to the non-moving party to demonstrate which issues of material fact remain.[135]

The record supports the County's motion for summary judgment, so PCRS may not "rest upon [] mere allegations or denials of the [County]'s pleadings, " but must demonstrate to the Court where there are genuine issues of material fact.[136]PCRS has failed to establish that a true question of fact exists, and notwithstanding voluminous submissions, PCRS has not disclosed what additional evidence it would develop, beyond the current record, to demonstrate the original owners' intent was something other than that which is clearly stated in the Agreements comprising the Master Plan. Instead, PCRS makes the bald assertion that there exists an issue of material fact, without indicating what evidence, if any, would support such a claim.

The restriction requires a 130-acre set-aside. In order to meet this restriction PCRS must, of the land at issue here, leave set aside no less than 130 acres for the specific use of development of an 18-hole golf course; for that restriction to not be "illusory or meaningless, "[137] it must be a parcel of land of sufficient quantity, quality, contiguity and configuration to meet that specific purpose.[138] And if it cannot, or should PCRS want to develop another use within the 130-acre set-aside, PCRS must avail itself of the Restriction Change process.[139]

2. By collecting taxes on the Hogan Drive lots as if subject to development, the County waived its right to object to PCRS' proposed Hogan Drive Plan.

The restriction on PCRS' use and development of the subject land is limited to the set-aside of 130 acres for the specific use of development of an 18-hole golf course. But PCRS' landholding exceeds 130 acres. The proposed Hogan Drive development would not cause the acreage set aside for such specific use to fall below the minimum. The fact that the County now wants the acreage set aside to include the Hogan Drive parcels cannot control here. PCRS argues that the County's failure to take any action to dispute the G.R.G. Realty decision, subsequent taxation of the Hogan lots, and persistent zoning of the Hogan lots as residential, together serve as a waiver of its third-party beneficiary rights to enforce any land use restriction or covenant which would prevent construction of the Hogan Drive development. The Court agrees.

While the County contends any waiver must be a "voluntary and intentional relinquishment of a known right, " it also does not dispute that the Hogan Drive lots have been taxed for approximately thirty years based on their value as buildable townhouse sites and retained their residential zoning classification as part of a 1998 rezoning of the entire County. Moreover, the County took no action to challenge the 1982 recorded subdivision plan for the Hogan Drive Townhouse Addition.[140] While the County's inaction was likely premised on G.R.G.'s sale of the Golf Course and the new owner's abandonment of the Hogan Drive development plan, that inaction, when taken in conjunction with the County's taxation and zoning decisions, amounts to a voluntary and intentional relinquishment of the County's right to insist that the Hogan Drive lots remain as open space to meet the requirements of the covenant running with PCRS' land.

Equitable principles do not permit the County to reap the benefit of thirty years of tax income from Hogan Drive's developable or buildable parcels, only to now argue those same parcels must be retained as open space. The approximately 1.4 acres of proposed development may be accomplished without contravening the golf course restriction created by the Master Plan.[141] Thus the PCRS application to develop the Hogan Drive lots does not divest the County of a right that it has not waived, nor does it violate the restrictive covenant requiring 130 acres of open space set aside for development of a golf course. Absent a finding of technical or regulatory noncompliance, the Hogan Drive development must be allowed to proceed.

3. The Court will not defer to the County's interpretation of the scope of the restrictive covenant created by the Master Plan.

The County argues that the Court should not substitute its judgment for that of the County Council, as expressed in Resolution 10-217, adopted December 2010. Resolution 10-217 reads, "WHEREAS, under applicable covenants, agreements, dedications, and plans enforceable by the County, the current owners plan to build in violation [of] the requirement that an 18-hole golf course continue on the property in its current form and also violates the concepts of the applicable [M]aster [P]lan."[142] While the Court will generally defer to the County's interpretation of its own code, [143] the Court is the proper body to decide the extent of restrictive covenants created by the Master Plan, especially where two parties stand in opposition.[144]

The several Delaware decisions dealing with the Master Plan demonstrate that when the scope of a restriction flowing therefrom is questioned, the determination is a judicial function.[145] Thus to the extent that Resolution 10-217 attempts to define the restriction, it cannot.

4. The doctrine of merger by deed does not serve to extinguish the golf course restriction.

Despite the restrictive covenants described in the Master Plan, subsequent deeds of sale for the subject Golf Course did not explicitly incorporate those restrictions. PCRS argues the doctrine of merger, therefore, necessarily extinguishes any restriction on the Golf Course this Court may find, because, "as a general rule, after a property has been conveyed to a purchaser, the rights of the parties are to be determined by covenants of the deed."[146] PCRS' reliance on the doctrine of merger, however, is flawed.

Under the doctrine of merger, any "agreement[s] [are] said to merge with the deed and become void."[147] It was "developed to resolve issues raised where a seller of real property undertook certain obligations in a contract of sale and then delivered something less than he promised . . . ."[148] The doctrine, however, is subject to certain exceptions, namely that the intent of the parties is controlling.[149]Generally, collateral matters do not merge into the deed, [150] and, under Delaware law, the merger doctrine has been "largely limited" to the non-collateral questions of "title, quantity, and land use."[151]

PCRS mistakenly relies on the doctrine of merger to extinguish clear restrictions in the Master Plan. It attempts to extinguish the restriction found in the 1964 and 1969 Agreements by arguing that no restriction not contained in the deed of sale is enforceable against PCRS. The doctrine of merger, however, serves only to extinguish contracts for sale, not contracts memorializing voluntary land restrictions executed by the original owners – with a clear and express intent that those restrictions be imposed on their "successors, transferees and assigns"[152] – and benefitting the County.

To apply the merger doctrine in the instant case would be to summarily divest the County of its third-party beneficiary status as granted in the Master Plan and multiple subsequent recorded plans for the Golf Course, which contain language incorporating the Master Plan.[153] Simply invoking the doctrine without acknowledging the County's right of enforcement would be counter to the plain language of the Master Plan, and the intent of the parties, which is controlling.[154]Restrictions on land development cannot be said to merge with the deeds here, where the primary purpose of the Master Plan was to bind the original owners, their successors and assigns, and therefore convince the County to approve the original owners' planned mixed-use community. The legal force and origin of the restrictive covenants that bind the subject acreage here is contractual in nature and has been so construed.[155] And again, restrictive covenants, the existence of which a purchaser has "notice, either actual or constructive, " not merely by deed provision, may be enforced.[156] PCRS had such knowledge.[157]

Because the Master Plan creates an enforceable limited restriction regarding the land on which the Golf Course was situated, because subsequent recorded plans demonstrate subsequent owners' intention to dedicate "Private Open Space" in accordance with the Master Plan and for the benefit of the County, and because it had knowledge of the restriction, PCRS cannot seek refuge in the doctrine of merger to extinguish the 130-acre restriction created by the Master Plan.

5. The Motion to Intervene is denied because, in part, no implied servitude functions to enlarge the original set-aside beyond 130 acres.

The County's position is that an implied servitude requires 177 acres, the size of the Golf Course immediately prior to its closure, rather than the 130 acres explicitly reserved in the Master Plan, be set aside. PCRS argues against the existence of the implied servitude and the County's standing to raise such a claim. The County's claim is predicated upon the affidavits of several Pike Creek Valley residents who claim to have purchased property and/or paid lot premiums in reliance upon both oral representations of developers and upon the Distributed Master Plan, which showed the Golf Course abutting certain residential properties.[158]

These residents, reacting to PCRS' claim that the County lacks standing, filed a Motion to Intervene in the instant action on November 14, 2011, two days prior to the scheduled oral argument on the real parties' cross-motions for summary judgment.[159] The Interested Parties state their only purpose in intervening is to provide affidavits to support and supplement the County's claim that an implied servitude requires the Golf Course to continue as a 177-acre entity.[160]

If the Court were to dismiss the County's implied servitude claim on standing alone, the Interested Parties wish to assert the claim so it may be decided upon the merits. PCRS opposes the Interested Parties' motion, and further contends that the Court should only consider the motion if it considers PCRS' pending Motion for Defendant Class Certification.[161] Should the Court grant the class certification, PCRS argues, the Interested Parties would qualify as members of the proposed defendant class comprising 20, 812 residents and 100 area organizations.[162]

No intervention will be permitted, because the application to intervene was untimely and the claim the Interested Parties wish to "echo" is futile. Pursuant to Chancery Court Rule 24, a party will be permitted to intervene as a matter of right either where there is an unconditional statutory right to do so, or where "disposition of the action" would "impair or impede [an] applicant's ability to protect" his or her interest "relating to the property . . . which is the subject of the action."[163] Even so, a party will not be permitted to intervene where its interests are adequately represented by an existing party to the action.[164]

Should a party fail to meet the test for intervention of right, the Court may still permit intervention where the claim of the would-be intervener shares common questions of law or fact with the action.[165] The Court, however, must take into consideration whether allowing intervention would "unduly delay or prejudice the adjudication of the rights of the original parties."[166]

The Interested Parties suggest that the Court should allow them to intervene in the instant action because this Court's disposition of the "issue, " – namely whether the implied servitude which the County, as one of its many arguments, claims to exist and operate as a ban to PCRS' development – may "impair or impede the [Interested Parties'] ability to protect their interests to preserve the Golf Course, which abuts their residential properties and directly enhances their property values and qualit[ies] of life."[167] PCRS counters that the Interested Parties' motion is untimely without excuse for delay. The County supports the Interested Parties' implied servitude claim on the grounds that the claim is identical to that raised by the County. No party directly claims that the County has (or will) inadequately represent the Interested Parties' interests with respect to the implied servitude claim.

The Interested Parties have failed to demonstrate that the disposition of the issue will "impair or impede" their alleged right to pursue a claim based on the theory of implied servitude. In their supporting Motion to Intervene brief, the Interested Parties predict that PCRS intends to assert the County lacks standing to block PCRS' development plan based on the creation of an implied servitude, or common scheme of development, that was established between the original owners and homebuyers at the time the Golf Course and the land surrounding it was first developed.[168] In actuality, however, the Interested Parties have failed to demonstrate that this right to pursue such a claim is affected by this Court's determination of the County's claim.

Were the County's claim dismissed for lack of standing, the Interested Parties would retain their own potential implied servitude claim wholly unaffected by a prior dismissal of the County's claim for a lack of standing. Moreover, should the Court find the County does indeed have standing to assert an implied servitude claim, Counsel for the Interested Parties has indicated that the County would adequately represent their rights.[169] Therefore, there is inadequate support in the record that the Interested Parties are entitled to intervene as a matter of right.[170]And given the Court's simultaneous decision on summary judgment, the Interested Parties' claim is likely moot.

Even where intervention of right is not appropriate, the Court in its discretion may permit a party to intervene where the party's "claim or defense and the main action have a question of law or fact in common."[171] "[W]here an original plaintiff pleads a cognizable claim of wrongdoing, but is prevented from pursuing the claim because of a technical standing issue, a motion to intervene by a party who stands in a position to press the claim should be viewed favorably by a court of equity."[172] In determining whether intervention is appropriate, however, the Court "shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties."[173] Here, given the futility of the claim itself, that is a true concern.

Assuming arguendo that the County does have standing to pursue the implied servitude claim, the County's claim and the Interested Parties' claim would each be premised upon the common question of whether an implied servitude prevents PCRS from developing the Golf Course. That leaves the Court to decide only whether allowing the Interested Parties to intervene would cause undue delay or otherwise prejudice PCRS.[174]

At the time the Interested Parties filed their Motion to Intervene, the existing parties had fully briefed the cross-motions for summary judgment, and argument was imminent.[175] A year prior to the Interested Parties' motion, information regarding PCRS' planned development of the Golf Course was widely, publicly available.[176] To that end, the Interested Parties fail to satisfactorily explain their delayed response to this ongoing litigation.[177]

While PCRS is indeed engaged in the process of defending the implied servitude claim raised by the County, the additional discovery and preparation required to effectively defend the Interested Parties' claim would clearly prejudice PCRS and unduly extend what has already been a prolonged process.[178]

Allowing the Interested Parties' intervention is neither required nor advisable. Thus, the Court, assumes without deciding that the County has standing to assert the implied servitude claim, and, even considering the additional facts supplied by the Interested Parties' affidavits, finds the claim without merit.

Under Delaware law, a servitude may be established in one of two ways: (1) "by explicit written language of the intent of the grantor and the grantee to create a restrictive covenant in the deed . . . or another recorded document;" or (2) "by implication as is usually ascertained from a common plan of development."[179] Under the first method, a plaintiff must show the restriction touches and concerns the land, the original covenanting parties intended to establish the restriction, and that the purchasing party was on actual or constructive notice of the restriction.[180] The second method, an implied servitude, operates to substitute a common development scheme for constructive notice, as is required by the test.[181] Essentially,

[W]here an owner of a tract of land lays it out in building lots, makes a plot showing a general building scheme, and sells to various purchasers in accordance therewith, inserting the same or similar covenants in all the deeds, it seems that an intent to benefit all the land in the tract and to induce purchases thereby may be inferred.[182]

Implied servitudes are disfavored by the Court, but necessarily negotiate the "tension between protecting neighboring property owners' expectations for their community and the rights of landowners to use their property as they may lawfully choose."[183] "[W]hether there has been an implicit imposition of a restrictive covenant is an issue of fact."[184] The County, as the proponent of a restrictive covenant preventing development on any of the 177 acres on which the Golf Course was situated, "has the burden of establishing the equitable restrictions that they seek to have imposed."[185] Thus, in order to enforce the 177-acre restriction it suggests, the County must demonstrate, by clear and convincing evidence, that it has a "right to benefit from an implicit imposition" on the Golf Course, now owned by PCRS.[186]

The County would argue (as the Interested Parties would argue) that if the 1964 Agreement and 1969 Amendatory Agreement alone created only an actual restriction over 130 acres of the Golf Course, then the theory of implied servitude supports expanding that express restriction to the entire 177 acres on which the Golf Course was last situated. Working through the three-part test relied upon by Delaware Courts, neither party would disagree that an alleged expanded golf course restriction would touch and concern the land. The remaining issues therefore, are whether the covenanting parties intended a more expansive restriction and whether the taking party, PCRS, had actual or constructive notice that the restriction was greater than what had been memorialized in the Master Plan. As far as the Court can ascertain, the County argues a common plan of development provides both evidence of the parties' intent to restrict a land area greater than the 130 acres explicitly described in the 1969 Amendatory Agreement, and constructive notice to PCRS that an expanded restriction exists.

There are several problems with the County's claim that an implied servitude, derived from a common plan of development, requires PCRS to set aside a plot of land for the Golf Course more than 25 percent larger than that which is explicitly required by the Master Plan; it is necessary to address two of those issues here. First the common plan or scheme of development is not applicable to the case at bar. The equitable doctrine operates to enforce the express scope of a written restriction which has been unintentionally omitted from one of several similarly-situated deeds.[187] The doctrine simply does not operate, as the County suggests, to expand the geographic scope of an express restriction where no writing exists to evidence such intent.[188] Thus the County's attempt to expand the scope of the explicit 130-acre restriction through a "common plan of development" theory fails. The theory does not operate under these factual circumstances.

Second, even if a common plan or scheme theory was applicable here, the County has not demonstrated the 1964 Agreement and the 1969 Amendatory Agreement created a common scheme of development that would serve as a basis for expanding the golf course restriction to 177 acres.[189] The essence of an implied servitude based on a common scheme is the shared benefit and burden that reciprocal servitudes provide to similarly-situated residents.[190] But just because land parcels lie adjacent to one another, does not perforce mean they are within the same common scheme of development. Implied servitudes are not created simply because lots or parcels are included in the same plan, but by a finding that there was intent to similarly bind the lots and parcels such that each benefited from the shared burden.[191] In order for an implied servitude to bind the Golf Course, "it must arise by implication from the restrictions imposed in the deeds, " to the subdivided lots.[192]

By the sheer fact that the several subdivided communities surrounding the Golf Course exclusively allow residential construction, those properties, some of which are held by the Interested Parties, do not contain reciprocal servitudes with the Golf Course. The Golf Course is a separate land entity not included in the Interested Parties' respective subdivisions.[193] Nor can it be said that a lack of reciprocal easements is the result of some mistake of recording; the plats were clearly designed for distinct and separate purposes. The Interested Parties mere claim that they believed the Golf Course would continue in perpetuity to benefit their residential property is not a basis for an implied easement.[194]

Moreover, the Distributed Master Plan, or other subsequently recorded plats did not amend the express 130-acre restriction.[195] Although various plats have been prepared, distributed, and recorded over the years, there is no evidence of an intent, either explicit or implied, to enlarge the Golf Course minimum acreage requirement. The Distributed Master Plan, for example, references the Master Plan and the restrictions contained therein.[196] As previously established, nothing in the Master Plan requires PCRS set aside any more than 130 acres for development as a golf course.[197] The Distributed Master Plan also contains the disclaimer that the drawing represents "concepts" only, and that modifications were possible, albeit only with the consent of the County Council and in accordance with the Master Plan. While the affidavits confirm residents were shown drawings, they also demonstrate the residents were informed, both by the drawings and the sales representatives, [198] that the 1964 Agreement and the 1969 Amendatory Agreement governed land use in Pike Creek Valley.

Since the Master Plan created the 130-acre restriction, owners have altered the Golf Course acreage multiple times, resulting in a decrease in acreage from the original 199± acres in 1971.[199] The County cannot now, after acquiescing to changes in the total acreage and configuration of the Golf Course over the years, argue that 177 acres must be the inviolate size of the land mass restricted. The Court finds no intent by the parties to support restricting more than 130 acres for development of a golf course, and the County has failed to establish that a common scheme of development governs the imposition of an implied covenant beyond that which is stated in the Master Plan. At any time, the Interested Parties had access to recorded Agreements and recorded plats which reference the Master Plan containing the express terms of the restriction. They cannot now argue that the original and now-operable restriction requires PCRS to maintain additional land for a golf course. Finally, the Interested Parties have no explicit rights under the Master Plan, which states: "no person, firm or corporation other than the parties, LEVY COURT and governmental body enumerated . . . shall have any rights whatever arising out of or by virtue of the execution of delivery of this agreement . . . ."[200]

Thus, even assuming the County does have standing to assert the common plan of development claim on behalf of the Interested Parties, the claim ultimately fails. "At the core of the common plan doctrine is the intent of the parties."[201] The Court can find neither evidence of an implicit intent to restrict the land for potential golf course use beyond 130 acres, nor an implied assignment of rights to parties outside the Master Plan. The Motion to Intervene is DENIED.

C. PCRS has not met its burden of demonstrating that mandamus should lie here.

"Mandamus is an extraordinary writ used to compel performance of a duty by an administrative agency, " public body, or public official[202] which the Superior Court will issue only where the petitioner has demonstrated a "clear legal right to the performance of a non-discretionary duty."[203] Petitioners do not have a right to a writ of mandamus; it will issue only in the exercise of the Court's sound discretion.[204] But as a condition precedent to the issuance of a writ of mandamus, a petitioner must demonstrate that: (1) it has a clear right to the performance of a duty imposed by law; (2) the entity against which the writ is sought has arbitrarily failed or refused to perform that duty; and (3) no other adequate remedy is available to the petitioner.[205] In turn, a writ of mandamus will only issue to require the performance of a clear legal or ministerial duty, that is, a duty "prescribed with such precision and certainty that nothing is left to discretion or judgment."[206] And the petitioner must demonstrate an arbitrary failure or refusal to perform that duty.[207] Lastly, the Court will not issue a writ where a petitioner has an adequate remedy at law.[208] In fact, mandamus will not lie unless the petitioner has no other remedy.[209]

PCRS wishes the Court to issue a writ of mandamus directing the County to approve the previously submitted plans for the Terraces and the Hogan Drive lots. To compel PCRS to undergo the Restriction Change process as required by UDC § 40.31.13, PCRS argues, would be futile.[210] The County argues the opposite: PCRS has failed to demonstrate that the process would be futile, and thus the County code requires PCRS to exhaust all administrative remedies before bringing any court action.[211] And further, says the County, in the absence of compelling circumstances, a Court should not intervene in a legislative and/or executive process before the legislative and/or executive authority is permitted to comment on the meaning of its own regulations or otherwise perform its duty under applicable law.[212]

Failure to meet any of the several conditions precedent to issuance of a writ of mandamus renders the grant of such extraordinary relief inappropriate.[213] PCRS first fails to adequately demonstrate that it has no other remedy available.

Under the exhaustion doctrine, "where a remedy before an administrative agency is provided, relief must be sought by exhausting this remedy before the courts will either review any action by the agency or provide an independent remedy."[214] Under Delaware Law, there is a strong presumption in favor of exhausting administrative remedies.[215] The doctrine "allows administrative bodies to perform their statutory functions in an orderly manner without preliminary interference from the courts . . . ."[216] Still, in certain circumstances, including where administrative review would be futile, exhaustion is not required.[217] This is not one of those circumstances.

PCRS faces a high burden to demonstrate futility.[218] In Salem Church (Delaware) Association v. New Castle County, the Court found the rare instance where the plaintiff overcame the strong presumption in favor of administrative exhaustion.[219] There the Court determined an appeal by Salem Church would have been futile because the clear and unambiguous meaning of a contradictory statute would prevent the Planning Board from interpreting that statute in any way not adverse Salem Church.[220] Not so here.

The Restriction Change Statute requires petitioners, such as PCRS, who wish to alter the restrictions to which the County was a party or a beneficiary, to submit to the statutory Restriction Change process.[221] PCRS chose not to pursue that avenue, presumably based on its belief that no use restrictions on the Golf Course exist.[222] Now, however, having pursued this action to compel the County to approve the proposed Hogan Drive and Terraces plans by positing that no restrictions exist, PCRS cannot rely on the County's opposition to the lawsuit as a basis to claim the restriction change process would be futile.[223] And now given the Court's holding regarding the limitations on the applicable restriction, the County's position certainly may change. In short, PCRS has never made its case for the necessary restriction change under the applicable provisions of the UDC. That UDC process affords PCRS defined avenues prescribing review by the Planning Board and the County Council. Consequently, PCRS' futility argument must fail.[224]

PCRS' second failure is its inability to demonstrate that the County and its administrative bodies have arbitrarily failed or refused to carry out its legally-imposed duty. The process of its Hogan Drive and Terraces application described below make this manifest. Lastly, the Court is not convinced that PCRS' complaints, at this point, implicate "a clear legal right to the performance of a non-discretionary duty."[225] Thus, the extraordinary remedy of a writ of mandamus is not warranted.[226]

D. PCRS cannot avoid the applicable County approval processes via the presumption statute, res judicata, collateral estoppel, or by claiming violations of constitutional guarantees.

1. The presumption statute does not apply and will not serve as a mechanism for automatic approval of the subdivision plan submitted on October 14, 2010.

Under Delaware Law, for any matter requiring submission to the County Department of Land Use or the County Planning Board, "approval shall be presumed, " unless either the Department or Planning Board acts within 45 days.[227] PCRS claims that the County's delay in acting on their October 14, 2010 Hogan Drive submission renders the submission approved.[228] The County challenges PCRS' claim on three grounds: (1) the Department of Planning did not have jurisdiction to act on the October 14th submission during the 55-day period between the submission and the Department's comments because PCRS incorporated the October 14th submission into an appeal before the County Council; (2) the presumption statute can, and should, be rebutted where no bad faith or dilatory delay is evidenced; and, (3) any plan found to be in violation of other laws or regulations cannot be presumed to be approved. Because the presumption of approval can be rebutted, and the October 14th submission failed to comply with the County development code, the County prevails.

On June 25, 2010, the Land Use Department received an engineering submission for the Hogan Drive Townhouse Addition.[229] In a letter dated September 23, 2010, and authored by a Department Planner, the Land Use Department informed PCRS that their application required submission of a re-subdivision plan.[230] On October 14, 2010, the Land Use Department received the previously-requested revised drawings, along with several other documents.[231]Soon after, PCRS administratively appealed the September 23rd letter to the County Planning Board, and when doing so, incorporated the plans that were submitted on October 14, 2010.[232] A Planning Board hearing was scheduled for December 7, 2010.[233] On October 19, 2010, the Land Use Department, through an assistant general manager and the assigned planners, decided to defer their decision on the October 14, 2010 submission until the Planning Board ruled on the pending appeal.[234] That decision was logged in the Land Use Department's application tracking software.[235] Only after PCRS filed for a writ of mandamus in Superior Court, did the Land Use Department issue its comments relating to the October 14th submissions, out of an abundance of caution.[236]

Regardless of whether PCRS' appeal of the Land Use Department's September 23, 2010 letter truly divested it of jurisdiction to review the plans for technical compliance, the Department reasonably concluded that, "the ultimate design of the subdivision depended on the outcome of the appeal before the Planning Board."[237] PCRS has not demonstrated that the Land Use Department's actions in postponing review of the October 14th submission was either purposeful or dilatory.[238] To the contrary, an apparently routine "note to file" made on October 19, 2010 in the Department's application tracking software, clearly evidences its intention to place the application on hold until the Board appeal was decided.[239] Moreover, the Department's December 7, 2010 letter makes clear that the plans as submitted on October 14th did not comply with County regulations and required amendment before they could be approved. Thus, the plans were never valid on their face and would in any case necessitate additional regulatory review.[240] There is no reason to believe that with the restriction no longer at issue for the Hogan Drive lots, that the County would not undertake its regulatory review in good faith and due course.[241] As such, PCRS cannot rely upon the presumption statute as a basis for relief here.

2. Principles of res judicata and collateral estoppel do not require this Court to issue a writ of mandamus ordering the Department and the Planning Board to review the contents of PCRS' October 14, 2010 submission.

PCRS argues that principles of res judicata[242] and collateral estoppel[243] require this Court to issue a writ directing the County, and specifically the Department of Land Use, to review the subdivision plans. Where a court has previously adjudicated the issues and rights at bar, PCRS contends, a party should not be permitted to re-litigate. Specifically, PCRS relies on Regency v. New Castle County[244] for the proposition that the County is estopped from arguing the Master Plan establishes enforceable restrictions.[245] As described before, in Regency the Court prevented the County from restricting the use of a plot of land to a "Motor Inn" solely because the recorded plan map labeled the plot "Motor Inn Site." It relied on language in the 1964 Agreement stating "acreage set aside for commercial use on the updated Master Plan and rezoned for that purpose . . . shall be utilized for the land uses and purposes described in the zoning Code of New Castle County . . . ."[246] The Court reasoned that the language of the 1964 Agreement created some ambiguity as to the original owners' intentions with respect to the Motor Inn Site, and that any ambiguity must be construed against grantor.[247] Importantly from PCRS' perspective, the Court found the County had, on numerous occasions, "acquiesced in and permitted uses by other owners of other designated sites that are inconsistent with their corresponding Master Plan designations."[248] PCRS now argues the Master Plan creates no enforceable restrictions[249] and enforcing any supposed restrictions against it as current owner would be inequitable. Such claims ignore those facts which distinguish the golf course restriction from the general commercial zoning restrictions of the Master Plan. The Court in Regency did not find an enforceable restriction as to the "particular plaintiff" wishing to build a shopping center on grounds which the recorded plan map labeled as the "Motor Inn Site." But the Court did not address the issues now raised by the County's opposition to potential development of the Golf Course.[250]

This Court's decision in Regency is clearly limited in scope to the "particular plaintiff."[251] Paragraph 12 of the 1964 Agreement, upon which Regency relied, specifically carves out, "as the only exception" to the fairly general language permitting development on commercially-zoned land in Pike Creek Valley, that "the area shown on the updated Master Plan set aside for a par 3 golf course if zoned commercial shall only be used for a recreational purpose."[252] In contrast to the Motor Inn designation – a sole notation on a recorded plan map which the Court did not uphold – the golf course use designation is both noted on the recorded plan and specifically carved out and set aside[253] in Article 12 of the 1964 Agreement.[254] Even Regency acknowledged "the contracting parties . . . intended to permit commercially zoned land (other than the golf course) to be used for any purpose allowed by the applicable zoning classification."[255] Nothing in the Court's Regency decision precludes the finding of a restrictive covenant, as the Court has interpreted it above, limiting development on a certain portion of the land on which the Golf Course is situated.

Nor can G.R.G. Realty Co. v. New Castle County, [256] support PCRS' collateral estoppel and res judicata claims. G.R.G. Realty involved the isolated issue of whether mandamus should issue, requiring the Department to exercise its "stated duties" to review development plans, even where legal issues outside its expertise and scope arise.[257] In granting the limited writ and instructing the Department to review the plans "as to content, " the Superior Court expressly reserved decision on the contested legal issues.[258] The G.R.G. Realty decision did not reach the restrictive covenant or the County's third-party beneficiary rights. Nor did the Court examine the specific language of the Master Plan related to the Golf Course. The G.R.G. Realty decision is not controlling here. And the Court cannot find under the instant circumstances that PCRS has demonstrated a "clear legal right to the performance of a non-discretionary duty."[259]

3. PCRS' constitutional claims are not ripe for adjudication at this stage.

PCRS raises numerous under-developed arguments claiming the County's position offends constitutional principles governing separation of powers, delegation of powers, due process, equal protection, and private property rights. Without a full record on the multitude of ancillary constitutional claims PCRS raises in its briefs, the Court is ill-prepared to address each in turn. Moreover, the constitutional claims are not yet ripe for, as discussed above, PCRS must exhaust its administrative remedies before bringing its grievance to the Court.[260] Finally, considering the Court's rulings herein related to the enforceability of the restriction created by the Master Plan, such claims may no longer be at issue.

VI. Conclusion

For the reasons stated above: the Interested Parties' Motion to Intervene is DENIED; the County's Motion for Summary Judgment is GRANTED, in PART; PCRS' Motion for Summary Judgment is GRANTED, in PART; and the Petition for a Writ of Mandamus is DISMISSED. PCRS is required to follow the Restriction Change Statute where applicable if it wishes to modify the restrictive covenant found by the Court to exist and described above. That restriction cannot be applied to the Hogan Drive Plan. The County and its regulatory and administrative bodies shall not unnecessarily delay review and approval of the Hogan Drive subdivision plans if such are otherwise in conformity with the County Code and any other applicable regulations.


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