SUPERIOR COURT
OF THE
STATE OF DELAWARE

RICHARD F. STOKES SUSSEX COUNTY COURTHOUSE
RESIDENTJUDGE 1 THE ClRCLE, sUITE 2
GEORG ETOWN, I)E 19947
TELEPHONE (302) 856-5264

January 15, 2019

Lydia E. York, Esquire Vincent G. Robertson, Esquire
L.E. York Law, LLC Parkowski, Guerke & SWayZe, P.A.
182 Belmont Drive 19354€ Miller Road

Wilrnington, DE 19808 Rehoboth Beach, DE 19971

Timothy G. Willard, Esquire
Fuqua, Willard, Stevens & Schab, P.A.
26 The Circle
Georgetown, DE 19947
RE: Nicholas Caggiano, Sr., and UCean One Plaza, LLC, v. Lewes
Hotel, LLC, and Sussex County Planning and Zom`ng Commission
C.A. No. S18A-07-003 RFS
Dear Counsel:
This is rny decision on Sussex County Planning and Zoning Commission’s
(the “Cornmission”) Motion to Dismiss appellants Nicholas Caggiano, Sr., and
Ocean One Plaza, LLC’s (the “Appellants”) appeal of its decision to grant Lewes
Hotel, LLC a preliminary site plan approval. The Cornmission contends that the

Appellants have no statutory basis for filing an appeal to this Court. Furthermore,

the Cornrnission argues that not only have the Appellants failed to establish the

jurisdictional authority of this Court over its appeal, any direct appeal from the
Commission to this Court must be authorized by the General Assembly. Lewes
Hotel does not believe the appeal is ripe and they are in full support of the
Commission’s l\/lotion. The Appellants contend that they are properly before this
Court because the County Council has not yet agreed to docket their appeal.

Lewes Hotel seeks to develop land at the corner of Marsh Road and
Delaware Route One in Sussex County, Delaware. Lewes Hotel submitted a site
plan for the construction of a 96-room hotel with 106 parking spaces. Lewes
Hotel requested a waiver reducing the number of parking spots required under the
Sussex County Code for the operation of its proposed hotel. The Commission
granted Lewes Hotel’s waiver request.

The Appellants own a parcel of land that is adjacent to and abuts the land
owned by Lewes Hotel. The Appellants wish to build a 110-room hotel with 177
parking spaces on its parcel. The Appellants site plan is in conformity with the
Sussex County Code.

On June 28, 2018, the Commission met and approved the preliminary site
plans for both the Appellants and Lewes Hotel. The Appellants believe they will
be unfairly harmed by the reduction in the number of parking spaces permitted in
Lewes Hotel’s preliminary site plan. The Appellants have simultaneously

appealed that waiver and the process the Commission used in approving it to both

the Sussex County Council and this Court.'1

Generally, the purpose of a motion to dismiss is to test the sufficiency of the
complaint, not to resolve disputed issues of material fact or decide the merits of
the case. 2 Superior Court Civil Rule 12(b)(1) mandates this Court dismiss an
action for lack of subject matter jurisdiction if it appears from the record that the
Court does not have jurisdiction over the claim. Notably, “[t]he burden of
establishing the Court’s subject matterjurisdiction rests with the party seeking the
Court’s intervention.”3 To prevail on a motion to dismiss, a movant need only
show that the Court lacks jurisdiction.4

This appeal is governed by SusseX County Code §99-39. Section 99-39A
states “No preliminary plat shall be acted upon by the Commission without
affording a hearing thereon as outlined in 9 Del.C. §6812 and after notice of the
time and place of the hearing shall be sent by registered mail to the applicant not
less than five days before the date fixed for the hearing. Following said hearing

any approval or disapproval of the preliminary plat by the Commission may be

 

1 Because this Court has not received a certified record from the Sussex County Planning
and Zoning Commission and neither Lewes Hotel nor the Commission has yet to file an answer
to the Appellants’ appeal, all of the facts have been taken from the Appellants’ brief to County
Council Which Was attached as Exhibit B to its Notice of Appeal with this Court.

2 Loveman v. Nusmile, Inc., 2009 WL 847655, at *2 (Del. Super. Ct. Mar. 31, 2009).
3 Ropp v. King, 2007 WL 2198771, at *2 (Del. Ch. July 25, 2007).

4 Superior Court Civil Rule 12(b)(1).

appealed to the County Council within 30 days of the official action of the
Commission approving or disapproving the preliminary plat (emphasis added). As
provided in 9 Del.C. §6811, an appeal may be filed by a party aggrieved by either
the approval or the disapproval of a preliminary plat (emphasis added).” Section
99-39C states “[a]ny party aggrieved by the decision of the Council may appeal to
the appropriate court, but only after all remedies made available under this
chapter have been exhausted (emphasis added). Such appeals shall be to the
Superior Court in the same manner as appeals from decisions of the Board of
Adjustment as specified in 9 Del.C. §69l8.”

The available facts of this case indicate that the Commission approved the
preliminary site plan for Lewes Hotel. The Appellants argue that they are
aggrieved by that decision. Under Sussex County Code §99-39A, an aggrieved
party may appeal a decision to the Sussex County Council. The Appellants have
done this, however, the Sussex County Council has not docketed its appeal.5
Under Sussex County Code §99-39C, once the Sussex County Council has made a
decision based upon an appeal from the Commission, only then may the
Appellants appeal to this Court. The Sussex County Council has not rendered a

decision, therefore, the current appeal is not properly before this Court. This

 

5 This Court also notes that in its appeal to the Sussex County Council, the Appellants
state under Section lll of their appeal that “County Council has jurisdiction."’ There is no
mention of County Council having concurrent jurisdiction with this Court.

Court understands that the Appellants are currently caught in between code
sections, so to speak, but until the Sussex County Council renders a decision, an
appeal to this Court is simply not ripe. The Appellants have not carried their
burden of demonstrating this Court’s jurisdiction over its appeal under Sussex
County Code §99-39. Therefore, the Motion to Dismiss filed by the Commission
is GRANTED.

IT IS SO ORDERED.

Veryl__truly ours,

   
 

cc: Prothonotary

