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Race Track Car Wash Llc v. City of Dover Planning Commission

Superior Court of Delaware, Kent

September 5, 2019


          Submitted: August 7, 2019

          Shawn 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.

          John 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. Gray.

          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 requirement.

         Respondents 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.

         For the 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.

         I. The Record and Procedural History

         The 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.

          On 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.[1] 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.[2]

         The Site falls partially inside and partially outside of the Zone. The relevant provision of Dover's Code prohibits uses within the Zone as follows:

[u]ses prohibited:
a) [a]utomobile body/repair shop, motor vehicle, boat or farm equipment service:
b) [g]as stations and motor vehicle service stations.[3]

         The DAC 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.

         In its 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.[4] 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 was required.
b) Whether a deep or shallow buffer would cause the property to be out of character with the surrounding built environment.
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 Landscaping.[5]

         After 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 purposes.

         The DPC 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.

         Race 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.

         After 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.

         The DPC 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.

         Shortly 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.

         Shortly 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 arguments.

         At the 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.

         Thereafter, 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.

         Bluesky 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 action.

         Now, 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.

         II. Standing

         The 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.

         A. Standards for Standing and for Certiorari

         A party seeking to invoke the Court's jurisdiction must establish standing.[6]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.[7] 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 ...

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