COURT OF CHANCERY
OF THE
SAM GLASSCOCK 111 STATE OF DELAWARE COURT OF CHANCERY COURTHOUSE

VICE CHANCELLOR 34 THE CIRCLE
GEORGETOWN, DELAWARE 19947

Date Submitted: June 8, 20151
Date Decided: June 9, 2015

K. William Scott, Esquire Mary G. Matheos

Scott and Schuman, P.A. a/k/a Mary Waters

33292 Coastal Highway, Suite 3 37245 Clam Shell Lane

Bethany Beach, DE 19930 Selbyville, DE 19975
John Joseph Vizzini

37253 Clam Shell Lane
Selbyville, DE 19975

Barbara Lynn Carr
37253 Clam Shell Lane
Selbyville, DE 19975

Re: Keenwick West Property Owners Association v.
Mary G. Matheos, et al.
Civil Action No. l 1037-VCG

Dear Litigants:

This letter opinion represents my decision on the Plaintiff’s request for a
temporary restraining order, heard Friday, June 5, 2015. This matter involves an
allegation that the Defendants, homeowners in Keenwick West2 and former

members of the Architectural Review Committee for that subdivision, improperly

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1 A hearing on the Motion for a Temporary Restraining Order was held by phone on June 5,
2015. I conducted a site visit, discussed below, on June 8, 2015.

2 The Keenwick West subdivision is located on Dirickson Neck, which separates Little
Assawoman and Assawoman Bays, just north of the Maryland state line in eastern Sussex
County.

approved one another’s applications to erect four-piling boat lifts in the canal
adjacent to their properties in violation of the applicable deed restrictions, then
installed the improper boat lifts. The Plaintiff is the homeowners association for
Keenwick West. It seeks, via this litigation, to have the Defendants remove the
offending boat lifts. At the telephonic hearing on June 5, the Plaintiff sought a
temporary restraining order prohibiting the Defendants’ use of their boat lifts
pending a resolution of this matter on the merits,.,_.

The path to a temporary restraining order is well—worn. The applicant must
show a reasonable probability of success on the merits, threatened irreparable harm
absent entry of the restraining order, and that that threatened irreparable harm
outweighs the harm that may result if the restraining order is improvidently
granted.3 In this matter, as is typical with a TRO request, the first prong—success
on the merits—is of minimal importance given the undeveloped state of the
record.4 It is clear from a review of the Complaint that the Plaintiff has alleged
sufﬁcient facts to satisfy this requirement. I turn to an evaluation of threatened
irreparable harm and the balance of the equities;

Any interference with the enjoyment of a right in real property involves

some quantum of irreparable harm. However, the harm alleged here—that

_=..a._

3 See, e.g., Gimbel v. Signal Companies, Inc, 316 A.2d 599, 601—03 (Del. Ch.) aﬂ'd, 316 A.2d
619 (Del. 1974).
4 See, e.g., Cattle v. Carr, 1988 WL 10415, at *2 (Del. Ch. Feb. 9, 1988);

 

Keenwick West property owners must endure their neighbors’ imprOperly—placed
four-piling boat lifts pending resolution on the merits—would not be alleviated via
an injunction of the use of those boat lifts. The Plaintiff alleges that the harm
threatened is far greater, however. The Plaintiff argued at the hearing and in the
pleadings that use of the boat lifts threatened both the safety and the convenient
use of the waterways of Keenwick West, which are canals accessing Roy Creek
and Maryland’s Assawoman Bay. The Defendants strongly denied this allegation.
In order to resolve this issue, I made a site visit by boat to the particular canal in
Keenwick West where the purportedly non-complying four-piling boat lifts are
located. It was clear on traversing this waterway—which I did in a boat with a 7
1/2 foot beam, without incident—that the lifts in question posed no hazard to
navigation or the convenient use of the canals by the owners of Keenwick West or
the public.5 Of course, this has no bearing on whether the Defendants had the right
to place these boat lifts adjacent to their property, but it strongly indicates that any
irreparable harm that the Plaintiff and its members will have to endure during the
pendency of this action—absent relief—is minimal. On the other hand, if the
Defendants are correct in their assertion that they had a right to place and use the

lifts, they would lose a signiﬁcant riparian right during the pendency of this action.

5 One of the two boat lifts in question was empty at the time of the site visit, consistent with the
relief requested via the TRO; the other contained a vessel, the “Just J.” Neither lift impeded
navigation, and the lift occupied by the Just J was not more intrusive into the navigable portion
of the canal than was the empty lift.

 

I note that this is an action under 10 Del. C. § 348 which will be referred to a
Master and mandatory mediation, on a statutorily-required expedited basis,
Notwithstanding this expedited proceeding, the Defendants risk loss of the use of

their boat lifts during the summer boating season.

For the foregoing reasons, I ﬁnd that on balance, the equities do not favor

entry of a temporary restraining order. That request is DENIED. I direct the Court

Clerk to refer this matter to the appropriate Master in Chancery for proceedings

under 10 Del. C. § 348. To the extent that the foregoing requires an order to effect,

IT IS SO ORDERED.

Sincerely,

/s/ Sam Glasscock 111

Sam Glasscock III

