Submitted: August 7, 2019
P. Tucker, Esquire & Sawyer M. Traver, Esquire, DRINKER
BIDDLE & REATH, LLP, Wilmington, Delaware, for the
Petitioner Race Track Car Wash, LLC.
William W. Pepper, Sr., Esquire, SCHMITTINGER &
RODRIGUEZ, P.A., Dover, Delaware, for the Respondents City of
Dover Planning Commission and City of Dover.
W. Paradee, Esquire, Daniel F. McAllister, Esquire, Stephen
A. Spence, Esquire & Brian V. DeMott, Esquire, BAIRD
MANDALAS BROCKSTEDT, LLC, Dover, Delaware, for the
Respondents Bluesky Dover Properties, LLC & Kathleen J.
OPINION & ORDER
Jeffrey J Clark Judge
Petitioner Race Track Car Wash, LLC., ("Race
Track") petitions for a writ of certiorari
seeking reversal of a decision of the City of Dover Planning
Commission ("DPC" or "Commission").
Earlier this year, the DPC approved a site plan to place a
car wash at the site of the former Kirby and Holloway
Restaurant (the "Site"). Race Track alleges that
the DPC violated City ordinances and State law when approving
the plan. The Site falls, in part, within a Tier 3: Excellent
Recharge Area in a Source Water Protection Overlay Zone (the
"Zone"). Race Track alleges that a City ordinance
prohibits a car wash in that Zone. A separate ordinance
imposes a thirty-foot buffer from U.S. Route 13 (the
"arterial street buffer") upon the Site. Race Track
also challenges the DPC's partial waiver of that
DPC, City of Dover, Bluesky Dover Properties, LLC, and
Kathleen Gray (collectively "Bluesky") counter that
Race Track, as a business competitor, has no standing to
challenge the DPC's approval. Furthermore, if Race Track
does have standing, Bluesky argues that the DPC committed no
error of law that would justify reversal or remand.
reasons discussed below, Race Track has not demonstrated its
standing to challenge the DPC's decision finding the
proposed car wash to be a permitted use in the Zone. Race
Track also does not demonstrate standing to challenge the
DPC's partial waiver of the arterial buffer requirement.
As a result, its petition for certiorari must be
DISMISSED at this stage of the proceedings.
The Record and Procedural History
facts of record relevant to the petition come from two
sources: the certified record of the DPC proceedings, and the
documents Race Track now proffers to demonstrate its
standing. The Site falls within City limits, and abuts U.S.
Route 13. Kathleen Gray contracted to sell the approximately
one-acre Site to Bluesky Dover Properties LLC, which is now
the Site's equitable owner.
February 6, 2019, Dover's Development Advisory Committee
("DAC") held a meeting and considered Bluesky's
application to construct a new 5, 194 square foot car wash at
the Site. Dover's DAC in turn issued a written report to
the DPC recommending approval. In it, the DAC first reviewed
and commented on the City of Dover ordinance prohibiting
certain uses in the Zone. That ordinance, adopted as required by
7 Del. C. § 6082, recognizes critical feeder
areas ("recharge areas") that supply sources of
drinking water to the City.
Site falls partially inside and partially outside of the
Zone. The relevant provision of Dover's Code prohibits
uses within the Zone as follows:
a) [a]utomobile body/repair shop, motor vehicle, boat or farm
b) [g]as stations and motor vehicle service
report relayed the Planning Director's opinion that the
proposed car wash would not involve motor vehicle service.
Accordingly, the DAC advised the DPC that the ordinance does
not prohibit the operation of a car wash at the Site.
application, Bluesky also requested a waiver of a separate
Code requirement that there be a thirty-foot buffer along the
Site's U.S. Route 13 frontage. The DAC report also
discussed that request. City Code refers to this as an
arterial street buffer. City Zoning Ordinance, Article 5,
Section 7.33, provides that an applicant may request a waiver
of this requirement by approving:
[a] buffer less than 30 feet in depth. In approving a lesser
amount of buffering, the Planning Commission shall consider
the following factors:
a) Whether there are specific constraints related to existing
lot size, lot configuration or the orientation of existing
buildings on adjoining properties that would severely limit
the development potential of the property if a deep buffer
b) Whether a deep or shallow buffer would cause the property
to be out of character with the surrounding built
c) Whether there is significant landscape area within the
right-of-way of the arterial street itself that can
contribute to the buffer, and whether future road improvement
activities are likely to reduce the depth of this area.
d) Whether the landscape design and planting plan for the
buffer achieve the standards of subsection 7.32 -
Standards for Arterial Street Buffer
referencing the four required factors, Staff recommended (in
the DAC report) that the DPC approve a partial waiver of the
arterial street buffer, reducing it from thirty feet to ten
feet. Staff recommended that the DPC grant the waiver because
(1) the Site plan already called for an additional fourteen
feet of dedicated right-of-way, (2) adjacent properties did
not have thirty-foot buffers (in fact, one recently approved
adjacent property had no buffer); and (3) the plan, as
submitted, provided for an adequate buffer for aesthetic
first considered Bluesky's application at its meeting of
February 19, 2019. There, the DPC received and considered the
DAC's report. Bluesky commented at the meeting that (1)
only a small portion of the building intended to house car
dryers would cross into the Zone, (2) the building was a
prototype and was the smallest one available, and (3) a
dedicated right-of-way along U.S. Route 13 reduced the
available area for a buffer.
Track, through counsel, also addressed the DPC during the
public hearing portion of the meeting. There, Race Track
argued that a car wash is a motor vehicle service station and
is therefore a prohibited use. Further, it argued that the
DPC must evaluate all four factors listed above before
waiving the thirty-foot buffer requirement. Race Track argued
that had the DPC considered the four factors, it could not
have granted the waiver.
the close of the public hearing, a commissioner asked City
planning staff for a legal opinion regarding whether a car
wash falls within the definition of a motor vehicle service
station. The DPC then tabled the application to seek a legal
opinion on that issue.
next considered the matter at its March 18, 2019 meeting.
Between the two DPC meetings, the record expanded. Namely, on
March 8, 2019, Dover's Planning Office submitted a
memorandum to the DPC. The memorandum relayed both the
Planning Director and the City Solicitor's opinions that
the proposed use would not include motor vehicle service.
Furthermore, Staff provided further analysis and
recommendations regarding the four factors for the buffer
waiver. In doing so, it recommended that the Commission also
approve the arterial buffer waiver.
before the March DPC meeting, Race Track submitted a letter
expanding its arguments against the application. Namely, it
provided additional support for its interpretation of the
term "motor vehicle service station" and why a car
wash should fit within that definition. It also argued that
the application did not meet the four factors for approval of
a waiver of the thirty-foot buffer requirement. Lastly, it
argued that the City of Dover Code improperly delegated
waiver ability to the Planning Commission. In doing so, it
argued that the Delaware Code required the City's Board
of Adjustment to consider the request as a variance.
thereafter, Bluesky countered with a letter asserting that
Race Track had no standing to contest the application. In its
letter, Bluesky also countered Race Track's substantive
March 18, 2019, DPC meeting, Bluesky offered additional
information supporting its application. The DPC entertained
no further public comment. Thereafter, the DPC orally
approved the application, and when doing so, it waived the
full arterial buffer requirement. The commissioners recited
several reasons for approval including: the comments made in
support of the application; Staff's recommendations; the
City Solicitor's legal opinion; and the City
Planner's recommendations. On April 15, 2019, the DPC
issued its written approval.
Race Track filed a petition for writ of certiorari.
Bluesky then filed a motion to dismiss, pursuant to Rule
12(b)(6), alleging lack of standing. The Court denied the
motion because Race Track's petition adequately alleged
standing. When doing so, the Court confined its decision to
the allegations in the petition.
now renews its request to dismiss the petition based upon a
lack of standing. In response, Race Track cites no evidence
from the underlying DPC record that supports its claimed
standing. Race Track, however, now offers several documents
that it alleges do. First, it offers a 2007 report to the
Governor and the General Assembly entitled "Delaware
Source Water Assessment and Protection Program." It also
offers a Delaware Geological Survey's 2018 Report
regarding the "Results of Groundwater Flow Simulation,
in the East Dover, Area," and a one page information
sheet referencing groundwater studies. Finally, it provides a
copy of its City of Dover March water bill, and a copy of
Dover's 2008 Comprehensive Plan. Race Track offers no
affidavits in support of its standing to challenge this DPC
the parties have fully briefed the issues. As opposed to the
prior motion to dismiss, the Court may now properly review
the record below and consider recently submitted information,
if appropriate, in assessing standing. Only if the Court
finds that Race Track possessed standing to challenge the
decision will a review of the substantive issues addressed by
the parties be appropriate.
majority of the parties' briefing addressed their
standing arguments. At the threshold, the Court must define
the scope of the record available to assess standing. When
doing so, the Court recognizes that determining standing in
the context of a petition for a writ of certiorari
challenging a DPC decision generates a tension. On the one
hand, when evaluating the DPC's actions, the Court must
confine its decision to the record below-even to a
significantly greater degree than if this were an
administrative appeal. On the other hand, Race Track had no
ability or obligation in the proceedings below to demonstrate
standing when offering public comment. Because standing is a
requirement for this Court to review the petition,
the Court will consider the supplemental materials offered by
Race Track. After considering those materials, however, Race
Track has not demonstrated standing to seek redress from the
DPC's approval decision.
Standards for Standing and for Certiorari
seeking to invoke the Court's jurisdiction must establish
standing.Standing is a threshold question because
the Court must ensure that the matter is a "case or
controversy" that is appropriate to address as a
judicial matter. While this Court is not constrained by the
requirements of Article III of the United States Constitution
as are the federal courts, Delaware courts nevertheless apply
the same standard by analogy. They do so "as a matter of