      IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

KAPPA ALPHA EDUCATIONAL                      )
FOUNDATION, INC.,                            )
    Plaintiff,                               )
                                             )
      v.                                     )     C.A. No. N19M-10-175 ALR
                                             )
CITY OF NEWARK, a municipal                  )
corporation of the State of Delaware,        )
      Defendant.                             )

                           Submitted: January 17, 2020
                            Decided: January 27, 2020

               ORDER CONTINUING STAY OF LITIGATION

      By Order dated December 17, 2019, this litigation was stayed; and the Court

set forth a schedule for status reports. Thereafter, by Order dated January 6, 2020,

reargument was denied pursuant to Rule 59(e) of the Delaware Superior Court Rules

of Civil Procedure. In addition, by Order dated January 6, 2020, the Court declined

the request of Kappa Alpha Educational Foundation, Inc. (“KA”) to address its

efforts to obtain information from the City of Newark using FOIA.

      Nevertheless, while the Court ruled that the question of appropriate zoning

designation for the property located at 19 Amstel Avenue, Newark, Delaware and

owned by KA (the “Property”) is best addressed within the political process in the

City of Newark, the Court ordered that the City of Newark file a status report no

later than January 10, 2020, notifying the Court of the outcome of the January 7,

2020 Planning Commissioner meeting; identifying the next step, if any, in the zoning
process; and stating whether the City of Newark seeks an additional stay and for how

long. By letter dated January 10, 2020, the City of Newark has notified the Court

that the Planning Commission meeting was duly noticed and took place on January

9, 2020.    According to the City of Newark, the City’s Planning Department

recommended a Comprehensive Plan change from “University” to low density

residential classification. Counsel for both parties in this Superior Court litigation,

made presentations. After deliberation, the City Planning Commission voted against

recommending that the City Council amend the Comprehensive Plan to a low density

residential classification. Also, according to the City of Newark, the City Council

will consider the recommendation of the Planning Commission on February 24,

2020. Accordingly, the City of Newark requests that the stay of litigation continue

through at least March 1, 2020.

      KA opposes the relief sought by the City of Newark. By letter dated January

17, 2020, KA concedes that the political process may render this litigation moot but

argues that the Court should allow at least limited discovery without which KA is

unfairly disadvantaged in the political process addressing zoning.

      In consideration of the relevant statutes; the Delaware Rules of Civil

Procedure; applicable decisional law; the parties’ various submissions and letters;

and the entire record, the Court finds it is not in the interest of judicial economy for
                                           2
the Court to address the zoning of KA’s Property because the political process

underway may render the Court’s ruling moot. Essentially, any ruling on the merits

by this Court would be an advisory opinion.1 Moreover, Delaware statute provides

enforcement mechanisms to address a citizen’s access to public records2 and it is

therefore neither necessary nor appropriate for this Court to intervene in the FOIA

request process.

      NOW, THEREFORE, this 27th day of January, 2020, this litigation

remains STAYED. The City of Newark shall file a status report no later than

February 26, 2020, notifying the Court of the outcome of the February 24, 2020

City Council meeting; identifying the next step, if any, in the zoning process; and

stating whether the City of Newark seeks an additional stay and for how long. KA

may respond no later than March 5, 2020. Thereafter, the Court will notify the

parties whether the stay shall remain in effect or be lifted.

      IT IS SO ORDERED.

                                               Andrea L. Rocanelli
                                               ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ___ ________ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ______ ____




                                               The Honorable Andrea L. Rocanelli




1
  See Howell v. Justice of Peace Court No. 16, 2007 WL 2319147, at *9 (Del. Super.
July 10, 2007) (declining to address moot issues “since doing so would require the
rendition of a non-dispositive, advisory opinion”).
2
  See 29 Del. C. § 10005(b).
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