   IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

GERALD A. LECHLITER,             )
                                 )
               Plaintiff,        )
                                 )
      v.                         ) C.A. No. 10430-VCG
                                 )
DELAWARE DEPARTMENT OF           )
NATURAL RESOURCES (“DNREC”), )
DNREC DIVISION OF PARKS AND      )
RECREATION, DELAWARE             )
DEPARTMENT OF                    )
TRANSPORTATION, THE MAYOR        )
AND COUNCIL OF THE CITY OF       )
LEWES, J.G. TOWNSEND, JR. & CO., )
LINGO ASSET MANAGEMENT, LLC, )
LEWES UNLEASHED ASSOCIATION, )
and LIFETIME LIVING, LLC,        )
                                 )
               Defendants.       )


                         MEMORANDUM OPINION

                       Date Submitted: August 17, 2015
                       Date Decided: November 30, 2015

Gerald A. Lechliter, Lewes, DE, Pro Se Plaintiff.

Stephen E. Smith and Glenn C. Mandalas, of BAIRD MANDALAS BROCKSTEDT,
LLC, Dover, DE, Attorneys for Defendants the Mayor and Council of the City of
Lewes.

Ralph K. Durstein, III, Devera B. Scott, and William J. Kassab, of DEPARTMENT
OF JUSTICE, Wilmington, DE, Attorneys for Defendants DNREC, DNREC Division
of Parks and Recreation, and Delaware Department of Transportation.

David C. Hutt and Eugene H. Bayard, of MORRIS JAMES LLP, Georgetown, DE,
Attorneys for Defendants J.G. Townsend, Jr. & Co. and Jack Lingo Asset
Management, LLC.

Robert W. Whetzel and Travis S. Hunter, of RICHARDS LAYTON & FINGER,
P.A., Wilmington, DE, Attorneys for Defendant Lewes Unleashed Association.




GLASSCOCK, Vice Chancellor
      The Plaintiff here, Colonel Gerald A. Lechliter, is a resident of Lewes. His

home is situated on a quiet cul-de-sac, and his property abuts a parcel of land once

part of a planned, but never used, industrial park owned by the University of

Delaware. The land was acquired from the University by the State Department of

Natural Resources and Environmental Control (“DNREC”), and the portion nearest

the Lechliter property was leased by DNREC to the City of Lewes for use as open

space. The City, in turn, has permitted a non-profit organization, Lewes Unleashed

Association, to “develop”—that is, clear of brush and fence in—a small parcel of

the land as a dog park, an area where members of the public can allow their dogs to

run freely and safely. Lechliter, used to having this area in close proximity to his

property exist as unoccupied brushland, is concerned that traffic and the baying of

the happy dogs in the park will, once the park is completed and opened, interfere

with his quiet enjoyment of his home and constitute an actionable nuisance. He

brought this action, seeking equitable relief to prevent the construction or use of the

dog park.

      To the extent this action sounds in nuisance, I have already dismissed those

claims, without prejudice, as premature.        Lechliter, however, has raised an

extraordinary number of objections to the process by which the dog park was

approved. In researching these issues, he apparently discovered what he

characterizes as numerous other irregularities in the use, by the City, the State, and

                                          1
other entities, of other parts of the old industrial park parcel—unrelated to the dog

park—which he seeks to litigate as well. He filed his Amended Complaint on

January 20, 2015, naming as defendants the City of Lewes, several State entities,

and a handful of businesses with interests in the property near the dog park. Most

of the Defendants moved to dismiss, and those motions were briefed and argued. I

granted some of the motions and denied one in part from the bench; this

Memorandum Opinion addresses the remaining Motions to Dismiss.

                                   I. BACKGROUND1
       A. The Parties

       The Plaintiff, Colonel Gerald A. Lechliter, resides at 44 Harborview Road in

Lewes, Delaware.

       The Defendants include the Mayor and Council of the City of Lewes (the

“City”); the Delaware Department of Natural Resources and Environmental Control

(“DNREC”), a Delaware state agency; the Department of Parks and Recreation, a

division of DNREC; the Delaware Department of Transportation (“DelDOT”), a

Delaware state agency (collectively with DNREC, the “State”); J.G. Townsend, Jr.

& Co. (“Townsend”), a Delaware corporation located in Georgetown, Delaware;

Jack Lingo Asset Management, LLC (“Lingo”), a Delaware limited liability



1
 The facts are drawn from the allegations of the Plaintiff’s Amended Complaint (the “Complaint”
or “Compl.”) and all documents incorporated by reference therein, and are presumed true for the
purposes of evaluating the Defendants’ Motions to Dismiss.
                                              2
company located in Rehoboth Beach, Delaware; Lewes Unleashed Association

(“Unleashed”), a private, non-profit organization located in Lewes, Delaware; and

Lifetime Living, LLC (“Lifetime”), a Delaware limited liability company located in

Wilmington, Delaware.

       B. Overview

       On July 19, 2002, DNREC purchased 260.94 acres of land (the “Land”)—

lying generally east of Canary Creek, between New Road and Pilottown Road in

Lewes, Delaware, and adjacent to the Plaintiff’s property—from the University of

Delaware for “active and passive recreational use.”2 In March 2006, DNREC and

the City executed a lease (the “Ground Lease”), whereby the City leased from

DNREC 66.34 acres of the Land (the “Leased Premises”) that it designated as open

space (“Open Space”).3 Pursuant to the Ground Lease, the City was required to

establish, with the participation and commentary of State representatives, a

Development and Use Plan (“D&U Plan”) for the Leased Premises.4 The Ground

Lease also gives the City the authority to sublease portions of the Leased Premises



2
  Compl. ¶¶ 1, 10.
3
  Id. at ¶ 10. “Open space” is defined under 7 Del. C. § 7504(6) as:
         any open lands characterized by (i) great natural scenic beauty, or (ii) whose
         existing openness, natural condition or present state of use, if retained, would
         maintain important recreational areas and wildlife habitat, and enhance the present
         or potential value of abutting or surrounding urban development, or would maintain
         or enhance the conservation of natural or scenic resources, including
         environmentally sensitive areas.
4
  Compl. ¶ 11.
                                                 3
“to organizations that are engaged in recreational, environmental or natural resource

pursuits,” provided the use supports the D&U Plan.5

       In November 2011, the City approved a concept, put forth by Unleashed, for

the creation of a dog park (the “Dog Park”).6 A portion of the Leased Premises was

mentioned as a possible location for the Dog Park as early as December 15, 2011, in

correspondence between Unleashed and City officials.7 Conversations concerning

possible locations of the Dog Park continued for several months, including

discussions at public meetings held on August 12, 2012, October 15, 2012, and

November 19, 2012.8

       The Plaintiff first complained to the City in a memorandum dated March 13,

2013, arguing that the Dog Park “was inconsistent with the permitted land uses of

land zoned Open Space by the City . . . .”9 The Plaintiff further objected in an August

26, 2013 memorandum, alleging possible Freedom of Information Act (“FOIA”)

violations resulting from “behind-the-scenes negotiations” between the City and

Unleashed.10 Despite these protests and several other communications from the

Plaintiff,11 plans for the Dog Park moved forward, and at an October 6, 2014


5
  Id. at ¶ 12 (quoting Pl’s Answering Br. to DNREC’s Mot. to Dismiss, Ex. 1, ¶ 5.A (the “Ground
Lease”)).
6
  Id. at ¶ 17.
7
  Id. at ¶ 18.
8
  Id. at ¶¶ 19–21, 24, 27.
9
  Id. at ¶ 28.
10
   Id. at ¶ 29.
11
   See id. at ¶¶ 30, 35.
                                              4
meeting, the City and Unleashed approved a memorandum of understanding

(“MOU”), and the City announced DNREC’s approval of the Dog Park.12

       C. Procedural History

       The Plaintiff filed his Amended Complaint on January 20, 2015, seeking

declaratory judgments and injunctive relief.                  The Plaintiff challenges the

Defendants’ respective roles in the execution of the Ground Lease;13 the transfer of

a small portion of the Land from DNREC to DelDOT and the granting of an

easement thereon for a road to provide access to land owned by Lifetime;14 the City’s

October 2014 designation of 4.5 acres of the Leased Premises to be used for the Dog

Park;15 and the August 20, 2014 execution of an amendment (the “Amendment”) to

a pre-existing easement agreement between DNREC and Townsend which had been

in effect since 1992 (the “1992 Easement”).16

       In response, all of the Defendants except Lifetime submitted Motions to

Dismiss.17 After full briefing on those motions, I heard oral argument on June 25,




12
   Id. at ¶¶ 31–32.
13
   Oral Argument Tr. 40:17–20.
14
   Compl. ¶¶ 87–88.
15
   Id. at ¶ 71; Oral Argument Tr. 45:4–6.
16
   Compl. ¶¶ 78–86; Oral Argument Tr. 15:17–17:1.
17
   Lifetime did not enter an appearance at Oral Argument and it has not submitted any briefing to
the Court. While Lifetime is named as a Defendant in the Plaintiff’s Complaint, it does not appear
that the Plaintiff has actually asserted any claims against Lifetime; Lifetime is only mentioned in
Count V of the Complaint, which asserts a claim against DNREC for the alleged ultra vires grant
to Lifetime of an easement through Open Space for access to a private subdivision. Accordingly,
to the extent needed, I dismiss any claims against Lifetime as a party to this action.
                                                5
2015 (the “Oral Argument”). For the reasons set forth in my bench decision, I

granted the Motions to Dismiss as to Townsend,18 Lingo,19 and Unleashed20 in full,

and as to the State with respect to claims arising from the alleged impropriety of the

Ground Lease.21 I denied the City’s Motion to Dismiss with respect to allegations

that the October 6, 2014 City Council Meeting was improperly noticed under

FOIA.22

       I then requested that the Plaintiff, the State, and the City submit letters to the

Court, summarizing their views as what issues remain at this stage of litigation.

After reviewing these letters and the decisions I made during the Oral Argument, I

find that it remains for me to address the following: (1) any remaining FOIA claims

against the City or State; (2) whether the Dog Park violates the Ground Lease; (3)

the legal effect of DNREC’s failure to consult with the Open Space Council

regarding the Dog Park and its grant of an easement to Lifetime; (4) whether the

Dog Park violates the City’s 2005 Comprehensive Plan; (5) whether the City

violated its authority granted by the City Charter in assuming the custody and

responsibility for road maintenance of a portion of Park Road and Samantha Drive;

(6) whether the City was “biased” in selecting a location for the Dog Park; and (7)



18
   See Oral Argument Tr. 16:24–17:1.
19
   See id. at 8:2–4.
20
   See id. at 7:3–4.
21
   See id. at 63:2–6.
22
   See id. at 63:7–64:4.
                                           6
whether any civil conspiracy exists between the remaining parties.23                      For the

following reasons, I dismiss all of the remaining claims, leaving only the FOIA claim

relating to the October 2014 City Council meeting for further litigation.

                              II. STANDARD OF REVIEW

       When considering a motion to dismiss, the Court must accept all well-pleaded

factual allegations in the Complaint as true,24 and draw all reasonable inferences in

favor of the non-moving party.25 “[E]ven vague allegations are ‘well-pleaded’ if

they give the opposing party notice of the claim.”26 However, the Plaintiff must still

provide a “reasonably conceivable set of circumstances susceptible of proof,”27 and

the Court need not “accept conclusory allegations unsupported by specific facts

or . . . draw unreasonable inferences in favor of the non-moving party.”28

                                       III. ANALYSIS

       Addressing the Defendants’ Motions to Dismiss was made particularly

difficult by the fact that the Plaintiff, in stating his claims, has made bald assertions



23
   The Plaintiff also suggests that the 1992 Easement (as discussed in Count II) remains at issue in
this case—that is, the Plaintiff contends that DNREC exceeded its authority in amending the
easement. This issue was addressed from the bench in the granting of Townsend’s Motion to
Dismiss.
24
   In re Gen. Motors (Hughes) S’holder Litig., 897 A.2d 162, 168 (Del. 2006) (citing Savor, Inc.
v. FMR Corp., 812 A.2d 894, 896–97 (Del. 2002) (footnotes omitted)).
25
   Id.
26
   Id.
27
   Central Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d 531, 536 (Del.
2011) (citing Savor, Inc., 812 A.2d at 896–97).
28
   Price v. E.I. duPont de Nemours & Co., 26 A.3d 162, 166 (Del. 2011) (citing Clinton v. Enter.
Rent–A–Car Co., 977 A.2d 892, 895 (Del. 2009)).
                                                 7
of the violation of numerous statutes by the City and State, failing to follow those

allegations with any explanation. I am limiting my analysis to those claims that have

been clarified in the briefing or at Oral Argument; all remaining allegations not

briefed or otherwise explained are considered waived.29

       A. FOIA Claims Against the City and State

       The Plaintiff alleges in Count II of the Complaint that “[t]he entire State

agency and municipal permitting process is marked by egregious, arbitrary and

capricious government decision-making in violation of . . . FOIA in approving this

location for the Dog Park”;30 that the City “approved an MOU with [Unleashed] in

October 2014 that is in violation of the Open Meeting provisions of the FOIA”;31

and that the City “also violated the Open Meeting provisions of the FOIA . . . by

agreeing behind the scenes to establish a [Dog Park] within the [Leased] Premises

without the required D&U Plan and public process.”32 In relief for these alleged

FOIA violations, the Plaintiff seeks a declaratory judgment that “the approval of the

Dog Park and MOU associated with it are void.”33



29
   See In re Crimson Exploration Inc. S’holder Litig., 2014 WL 5449419, at *26 (Del. Ch. Oct. 24,
2014) (waiving the plaintiffs’ claim where they “did not mention [the claim] in their Opposition
Brief or at the Argument”) (citing Emerald Partners v. Berlin, 2003 WL 21003437, at *43 (Del.
Ch. Apr. 28, 2003) (“It is settled Delaware law that a party waives an argument by not including
it in his brief.”)).
30
   Compl. ¶ 69.
31
   Id. at ¶ 71.
32
   Id. at ¶ 73.
33
   Id. at ¶ 103.
                                               8
       At Oral Argument, the State argued that it did not violate FOIA because many

of the communications between government officials that the Plaintiff alleges were

violations of FOIA did not rise to the level of a “meeting” as defined by FOIA.34

The State argued in the alternative that, even if I were to find that the

communications required a public meeting under FOIA, the Plaintiff’s challenges

are time-barred by the “60 day limit” for FOIA claims. 35 The City seconded the

State’s position, stating that it “largely join[ed] in the presentation as made by . . . the

State.”36 Following the Oral Argument, I found from the bench that all of the

Plaintiff’s allegations of FOIA violations—with the exception of those surrounding

the October 6, 2014 City Council Meeting—were time-barred.37 To the extent that

it was unclear from that bench ruling, the statute of repose as provided by 29 Del. C.

§ 10005(a) is six months.38 And to reiterate that bench ruling, I find that the

Plaintiff’s failure to contest the alleged FOIA infractions within six months amounts

to laches, by analogy to the statute of limitations period, and dismiss the remaining



34
   Oral Argument Tr. 19:18–20:1.
35
   See id. at 19:18–20:13.
36
   Id. at 29:7–9.
37
    I denied the City’s Motion to Dismiss with respect to the Plaintiff’s sole “timely FOIA
complaint,” holding that the current state of the record did not support the City’s contention that
the public notice given for the meeting was sufficient. See id. at 62:14–64:2.
38
   29 Del. C. § 10005(a) provides:
         Any action taken at a meeting in violation of this chapter may be voidable by the
         Court of Chancery. Any citizen may challenge the validity under this chapter of
         any action of a public body by filing suit within 60 days of the citizen’s learning of
         such action but in no event later than 6 months after the date of the action.
(emphasis added).
                                                9
FOIA claims.

       B. The Dog Park as a Violation of the Ground Lease

       In Count I of the Complaint, the Plaintiff alleges that “[t]he entire State agency

and municipal permitting process is marked by egregious, arbitrary and capricious

government decision-making in violation of the Ground Lease . . . in approving this

location for the Dog Park,”39 and that the City approved an MOU with Unleashed in

October 2014 that is “in violation of the . . . terms of the Ground Lease which

mandate a public process.”40 Specifically, the Plaintiff asserts that the Ground Lease

calls for the City to “undertake a public process to establish a Development and Use

Plan . . . for the Leased Premises,”41 but that the City approved the D&U Plan without

input from the public.42 The Plaintiff seeks, again, a declaratory judgment that “the

approval of the Dog Park and MOU associated with it are void,”43 as well as “an

injunction enjoining [Unleashed] and [the City] from establishing a Dog Park in the

proposed location on the [Leased] Premises until the City and DNREC conform to

the terms of the Ground Lease or amend it . . . .”44 Both the City and the State

contend that the Plaintiff lacks standing to enforce the Ground Lease. In response,

the Plaintiff argued at Oral Argument, as a basis for standing, that “I, as a member


39
   Compl. ¶ 69.
40
   Id. at ¶ 71.
41
   Ground Lease ¶ 5.A.
42
   Compl. ¶ 14; Pl’s Answering Br. to DNREC’s Mot. to Dismiss 6.
43
   Compl. ¶ 103.
44
   Id. at ¶ 111.
                                            10
of the public, am the third-party beneficiary. [The Ground Lease] certainly wasn’t

written for the benefit of DNREC.”45

       Under Delaware law, “[t]he party invoking the jurisdiction of the Court bears

the burden of first establishing the elements of standing.”46 “To establish standing,

a plaintiff must demonstrate: (1) an injury in fact; (2) a causal connection between

the injury and the conduct of which plaintiff complains; and (3) that a favorable

decision is likely to redress the injury.”47 Here, the Plaintiff seeks to invoke

contractual rights that he argues run to DNREC, and incidentally to the public at

large, under the terms of the Ground Lease. An incidental beneficiary to a contract

generally does not have standing under Delaware law to enforce the terms of an

agreement to which it is not a party.48 An exception to this rule applies where:

       (i) the contracting parties . . . intended that the third party beneficiary
       benefit from the contract, (ii) the benefit [was] intended as a gift or in
       satisfaction of a pre-existing obligation to that person, and (iii) the
       intent to benefit the third-party [was] a material part of the parties’
       purpose in entering into the contract.49

However, where the plaintiff–third-party beneficiary is at most part of a “poorly

defined” group of incidental beneficiaries, the plaintiff lacks standing to enforce the


45
   Oral Argument Tr. 38:9–12.
46
   Cartanza v. Del. Dept. of Natural Res. and Envtl. Control, 2008 WL 4682653, at *4 (Del. Ch.
Oct. 10, 2008) (citing Historical Soc’y v. City of Dover Planning Comm’n, 838 A.2d 1103, 1109
(Del. 2003)).
47
   Id.
48
   See Triple C Railcar Serv., Inc. v. City of Wilmington, 630 A.2d 629, 634 (Del. 1993).
49
   Comrie v. Enterasys Networks, Inc., 2004 WL 293337, at *3 (Del. Ch. Feb. 17, 2004) (citing
Madison Realty Partners 7, LLC v. Ag ISA, LLC, 2001 WL 406268, at *5 (Del. Ch. Apr. 17, 2001)).
                                              11
contract.50

       Here, due to the highly generalized language of the Ground Lease, I find that

the Plaintiff cannot assert standing as a third-party beneficiary. The Ground Lease

mentions only that the land shall remain open to the “general public” and lacks

specific language to support a finding that the parties intended for any particular

member of the public, such as the Plaintiff, to be able to sue to enforce its terms.51

Helpful to me here is our Supreme Court’s analysis in Triple C Railcar Service, Inc.

v. City of Wilmington.52 In that case, the Court held that the plaintiff did “not enjoy

standing to bring suit” on a contract between the federal government and the City of

Wilmington—a contract broadly in favor of the public interest—under which the

City agreed to maintain a flood gate. The Triple C Court adopted the “Restatement

rule” that “a promisor bound to . . . a State . . . by contract to do an act or render a

service to some or all of the members of the public . . .” is not liable to such members

upon breach, absent manifestation of such intent in the contract.53 Similarly, the

Plaintiff here, as a member of the public, lacks standing to specifically enforce the

contract in equity.

       I find that the Plaintiff lacks standing to enforce the Ground Lease, to the




50
   See Triple C Railcar Service, 630 A.2d at 634.
51
   See Ground Lease ¶ 5.A.
52
   630 A.2d 629 (Del. 1993).
53
   Id. at 633 (citing Restatement of the Law: Contracts § 145).
                                                12
extent it forms a contract between the City and the DNREC Department of Parks

and Recreation, of which the Plaintiff is only one among a large and poorly defined

group of incidental beneficiaries, namely, the public at large, or all residents of the

City of Lewes.54 Therefore, I dismiss the claims arising from the Ground Lease in

Count I.

       C. DNREC’s Failure to Consult with the Open Space Council Regarding
       the Dog Park and its Grant of an Easement to Lifetime in Violation of the
       Delaware Land Protection Act

       The Plaintiff seeks to enjoin the use of the Dog Park and the use of the

easement to the Lifetime subdivision under the Delaware Land Protection Act (the

“DLP Act”).55 First, in Count I of the Complaint, the Plaintiff alleges that DNREC

“was obligated to seek the advice and consultation of the [Open Space] Council [the

“OSC”] if any use of the Open Space affects the existing environment, i.e., flora and

fauna,”56 citing 7 Del. C. § 7506(5). No such consultation was obtained. The

Plaintiff seeks, accordingly, an injunction enjoining Unleashed and the City from

establishing the Dog Park until “DNREC obtains the advice and consultation of the

[OSC] on the effect of a Dog Park on the flora and fauna in this location.”57 At Oral

Argument, the Plaintiff clarified that he alleges in his claim that “it was illegal for



54
    See id. at 634. The Plaintiff suggests that, at least, all residents of Lewes are intended
beneficiaries of the Ground Lease. See Oral Argument Tr. 38:13–20.
55
   7 Del. C. §§ 7501–10.
56
   Compl. ¶ 75.
57
   Id. at ¶ 111.
                                             13
DNREC and the City to use [the 4.5–acre parcel] as a dog park without consulting

the [OSC],” because the decision affected a statutory “preservation matter.”58

       Second, the Plaintiff alleges in Count V that DNREC violated the DLP Act

and “other statutory procedures” in granting to Lifetime in 2010 an easement through

the Leased Premises for use as an access road—Samantha Drive—to a private

subdivision.59 Specifically, the Plaintiff objects to the approximately 600 feet of the

access road that fall on State-owned public trust land in the Open Space program,60

asserting, as with the Dog Park, that DNREC was obligated to first “seek the advice

and consultation of the [OSC] since that transaction was a conversion in use of Open

Space.”61 The Plaintiff seeks in relief a “declaratory judgment that DNREC acted

ultra vires [apparently, in failing to consult with the OSC] in allowing Lifetime to

use public trust land in the [Open Space] program as an access road to the []

subdivision”62 and an “injunction enjoining DNREC to take measures to rectify the

granting of an easement to Lifetime for the use of public trust land in the [Open

Space] program as an access road to the [] subdivision.”63 I note that, in its reply


58
   Oral Argument Tr. at 43:1–5.
59
   Compl. ¶¶ 94–98.
60
   Id. at ¶ 64.
61
   Id. at ¶ 96. In the Complaint at Paragraph 98, Lechliter also alleges that DNREC improperly
“failed to obtain an Act of the General Assembly approving the conversion in use of Open
Space . . . .” I consider this argument waived, as it was not addressed by the Plaintiff at Oral
Argument or in his briefing regarding the City’s or DNREC’s Motions to Dismiss. See supra note
29.
62
   Compl. ¶ 106.
63
   Id. at ¶ 114.
                                              14
brief, DNREC impliedly concedes that the Land is Open Space, such that the DLP

Act applies to DNREC’s use of the Land, and I so assume for purposes of this motion

only.

        DNREC first argues that I am without jurisdiction to hear these claims, since

the appropriate remedy here, if any, is via a writ of mandamus, which is not available

from this Court. The Plaintiff is not seeking simply to cause DNREC to act,

however; he is, as laid out above, seeking equitable relief. I find for purposes of this

motion that the Plaintiff has invoked equitable jurisdiction. Next, DNREC argues

that the Plaintiff lacks standing to bring both claims. The Plaintiff does not cite any

statute that itself provides standing to seek review of the complained of actions by

DNREC. Instead, he argues that he has standing to challenge DNREC’s approval of

the location of the Dog Park because that decision caused him to suffer an injury,

and that he has standing as a taxpayer to challenge DNREC’s grant of an easement

to Lifetime. In addressing standing, it is crucial to keep in mind the actions

complained of here: DNREC’s granting of an easement and agreeing to the location

of the Dog Park without affording the OSC an opportunity to provide its advice and

consultation.

              1. Standing and Injury in Fact

        The standing requirement exists to ensure that the courts of this state do not

address issues in an advisory manner, or to satisfy the interests of mere

                                          15
intermeddlers; it limits matters on which the courts must devote scarce public

resources to actual controversies, and ensures that the common law is created in light

of presentations by parties with a concrete interest in the outcome. In order to be

able to point to an injury sufficient to demonstrate standing, the Plaintiff must show

that he has “suffered an injury in fact—an invasion of a legally protected interest

which is (a) concrete and particularized and (b) actual or imminent, not conjectural

or hypothetical.”64     The injury must be causally connected to “the conduct

complained of” and “it must be likely, as opposed to merely speculative, that the

injury will be redressed by a favorable decision.”65

      The OSC is a body of nine members, created by the DLP Act, that advises on

matters relating to the administration, implementation, and financing of the Open

Space program.66 As explained more fully below, the DLP Act requires that, with

respect to “preservation matters” involving land covered by the Act, the OSC must

“[a]dvise and consult” with DNREC.67 The Plaintiff cannot demonstrate an injury

in fact related to the failure of DNREC to consult with the OSC. That action has not

caused him concrete or actualized harm, and any injury is purely speculative. The



64
   Dover Historical Soc. v. City of Dover Planning Com’n, 838 A.2d 1103, 1110 (Del. 2003)
(quotations omitted).
65
   Id.
66
   7 Del. C. § 7505(a)–(b). The OSC consists of one member of the Senate, one member of the
House of Representatives, and seven members appointed by the Governor. Id. at § 7505(b)(1)–
(3).
67
   Id. at § 7506(5).
                                            16
Plaintiff has not alleged, nor could he, that in a consultation with DNREC, the OSC

would have recommended against the location of the Dog Park, nor that DNREC

would have followed such a recommendation. Therefore, the Plaintiff cannot

successfully assert standing to proceed against DNREC here.

              2. Taxpayer standing

        The Plaintiff alleges taxpayer standing to contest DNREC’s grant of the

easement to Lifetime. Taxpayer standing allows a plaintiff–taxpayer to challenge

an illegal use of public funds or property, regardless of any special injury.68

“Taxpayer standing in Delaware is reserved for a narrow set of claims involving

challenges either to expenditure of public funds or misuse of public lands.”69 It is

focused on whether use of public funds or property itself is legal, not merely on the

process by which decisions regarding such use are made—otherwise, the breadth of

taxpayer standing would be near-limitless. In that case, the salutary limitation on

advisory or hypothetical opinions provided by the standing requirement would be

lost.

        The Plaintiff does not contend that the grant of the easement itself is an

unlawful use of public property; the Plaintiff’s challenge is that DNREC failed to

consult with the OSC before deciding to grant the easement.            Such a requirement,


68
   Danvir Corp. v. City of Wilmington, 2008 WL 4560903, at *3 (Del. Ch. Oct. 6, 2008) (citation
omitted).
69
   Reeder v. Wagner, 974 A.2d 858, at *2 (Del. 2009) (internal quotation omitted).
                                              17
according to the Plaintiff, arises from the DLP Act, at 7 Del. C. § 7506, which sets

forth the duties of the OSC. Section 7506 provides in part that the OSC shall

“[a]dvise and consult with the Secretary of the Department of Natural Resources and

Environmental Control and with other state land preservation agencies and staff on

preservation matters . . . .”          The Plaintiff argues that the easement involves

“preservation matters,” and that 7 Del. C. § 7506(5) required a consultation with the

OSC before taking action.            The statute does not define the term “preservation

matters”; regardless, even in the unlikely event that the granting of an easement or

the use of Open Space as a dog park—neither of which involve the status of the

preservation of the property as Open Space—can be considered matters of

preservation, the statute does not require any action of DNREC. Impliedly, it directs

DNREC to receive the advice and counsel—but not the consent—of the OSC.

However, nothing in the DLP Act as I read it would bind DNREC to follow the

counsel of the OSC regarding the easement. DNREC has the independent statutory

authority to manage public lands.70


70
  See 7 Del. C. § 4504(a). The Plaintiff points to this Court’s decision in Cartanza v. Delaware
Department of Natural Resources and Environmental Control, 2008 WL 4682653 (Del. Ch. Oct.
10, 2008), as holding that Section 7506(5) places an affirmative duty on DNREC to consult with
the OSC, absent which DNREC’s actions are illegal, but the Plaintiff misreads that case. Cartanza
holds that the “[r]eview and recommend” language found in subsections (1) through (4) of Section
7506—language absent from subsection (5) at issue here—when considered in conjunction with
other statutory provisions, makes clear that the General Assembly intended the recommendation
of the OSC to be a condition precedent to DNREC’s creation of “state resource areas.” Since the
OSC had failed to act as required by law, and since that action was a condition precedent to creating
the “state resource areas” at issue in Cartanza, the purported creation of the areas was a nullity.
                                                18
       The foundational case applying taxpayer standing to use of real property is

City of Wilmington v. Lord.71 That case involved land that Wilmington had acquired

outside the city limits as a park, subject to a public trust. An express deed restriction

embodied this trust. Wilmington sought to develop this property industrially by

erecting a water tank and related structures incompatible with a park. Because the

taxpayer objected to the industrial development as a direct violation of the trust, he

had standing on that ground.72 Here, as stated above, the Plaintiff does not contend

that DNREC was constrained by a public trust from conveying an easement to

Lifetime, or otherwise lacked the authority to convey the easement—he merely seeks

to constrain the conveyance until after consultation with the OSC. In other words,

the Plaintiff challenges only the process by which DNREC made the decision to

convey the easement.73 It is unclear if the Plaintiff also seeks to assert taxpayer

standing with respect to DNREC’s decision to consent to the location of the Dog

Park without the consultation of the OSC. If so, the same analysis would apply. I

conclude that the Plaintiff lacks taxpayer standing.

       Accordingly, the Plaintiff’s challenges to DNREC’s actions under the DLP

Act in Counts I and V are dismissed for lack of standing.



Conversely, nothing in the DLP Act precludes DNREC’s ability to act in “preservation matters,”
and Section 7506(5) simply directs the OSC to “advise and consult” in such matters.
71
   378 A.2d 635 (Del. 1977).
72
   Id. at 638.
73
   See Compl. ¶¶ 95–98.
                                             19
       D. The Dog Park as Violation of the City’s 2005 Comprehensive Plan

       The Plaintiff alleges in Count I of the Complaint that the City “violated the

Comprehensive Plan and Zoning regulations by approving the Dog Park.”74 No

specific relief is sought with respect to this claim. At Oral Argument, the Plaintiff

attempted to clarify the allegation as follows: the City’s 2005 Comprehensive Plan

(the “Comp. Plan”) designates the Land as Open Space; parks are a permissible use

of Open Space under the Comp. Plan, but, per the City’s Zoning Table of Permitted

Uses (the “Zoning Table”), land zoned as Open Space may not be used for

“recreation”; thus, establishing a dog park on the Lease Premises, in which

“recreation” (presumably human as well as canine) will occur, violates the Comp.

Plan.75 I expressed great skepticism76 that the Comp. Plan prohibits recreation in

public parks,77 but at the Plaintiff’s request, I reserved ruling on the claim to allow

the Plaintiff time to address a letter to the Court pointing out the provision at issue.78

       Upon review of the supplemental submission, I find the Plaintiff’s argument



74
   Id. at ¶ 77.
75
   See Oral Argument Tr. 45:19–51:2.
76
   I am not, however, so naïve as to dismiss the idea that some municipal government, somewhere,
has banned recreation in its public parks.
77
   See id. 48:19–21.
78
   In his supplemental briefing to the Court, the Plaintiff repeats the allegations made at Oral
Argument with respect to the Zoning Table and attempts, belatedly, to raise a new argument: that
7 Del. C. § 7509(a) required DNREC to obtain the approval of the OSC for the Dog Park. While
I question the applicability of this statute to the matter at hand, I will not consider the merits of
this argument at this stage; the parties were directed only to provide an informal, targeted memo
on the remaining issues left for the Court’s review. It is too late for the Plaintiff to assert novel
claims not pled in the Complaint.
                                                20
that “recreation is not permitted in [O]pen [S]pace”79 to be an incorrect interpretation

of the Zoning Table. A review of the Zoning Table reveals that, while a “[r]ecreation

facility” is not a permitted use of Open Space, “[p]arks and open space” is a

permitted use.80       The Plaintiff apparently reads the prohibition of “recreation

facilities” as a ban on all recreation, but such a reading is neither warranted by the

Zoning Table, nor has the Plaintiff proffered any other support for this contention.

“Recreation facility” is an undefined term in the Zoning Table, but since “parks” are

permitted in Open Space but “recreational facilities” are not, the definition of the

latter must necessarily exclude the former. Nothing in the cited materials bans parks

in Open Space, or recreation in parks, in the City of Lewes.

       At Oral Argument, the Plaintiff also contended that the Dog Park is not a

“park”—and thus is not a permitted use of Open Space—because, in the Plaintiff’s

view, a City “park,” to be considered such, must be administered by a public entity.81

I find this argument unavailing. The State—a public entity—owns the land at issue.

This land, which I have termed the “Leased Premises,” has been leased to the City—

another public entity. While Unleashed, a private non-profit entity, has been given

responsibility for establishing the Dog Park, via a sublease of the 4.5 acres at issue,


79
   Oral Argument Tr. 48:17.
80
   See Pl’s Memo. of Remaining Issues, Ex. B, 007–010 (the “Zoning Table”) (emphasis added).
81
   Compl. ¶ 28. I presume that the Plaintiff, though he cites no authority for this contention, refers
to the definition of a “park” as provided by the Lewes City Code: “[l]and, a playground, recreation
center, or any other public area in the City owned or used by a public entity and devoted to active
or passive recreation.” Lewes City Code, Chapter 197, § 197-106 (emphasis added).
                                                 21
the Dog Park will be made available, without restriction, to the public at large.

Moreover, the land is still owned by a public entity. The Plaintiff has cited no

authority to suggest why circumstances such as these would take the Dog Park out

of the definition of a “park.”           Thus, because the facts pled in the complaint

demonstrate that the Dog Park is in fact a “park,” which is a permissible use of Open

Space under the Zoning Table, I dismiss these allegations for failure to state a

claim.82

       E. Transfer of Custody and Responsibility for Road Maintenance

       In January 2013, the City and DelDOT signed a Transfer of Custody and

Maintenance Agreement (the “Transfer Agreement”), pursuant to which the City

assumed the custody and maintenance responsibility for a small portion of Park Road

and Samantha Drive in Lewes, Delaware.83

       The Plaintiff alleges in Count III of the Complaint that the City “failed to

adhere to the terms of its Charter for opening a new street when it signed the

Transfer Agreement with DelDOT,”84 arguing that the City, under Section 34 of its

City Charter,85 was obligated to “appoint a committee to investigate the pros and

cons of assuming responsibility for the portion of Park Road and Samantha Drive



82
   I therefore need not resolve the issue of whether the Plaintiff has standing, as the City contends
he does not, to challenge the Dog Park as non-conforming under the City’s Comp. Plan.
83
   Compl. 3, ¶ 55.
84
   Id. at 31.
85
   Id. at ¶ 56.
                                                22
referenced in the Transfer Agreement and to hold a public hearing prior to opening

a new street,”86 and that the Transfer Agreement is “a misuse of Lewes taxpayer

funds and a misuse of public land.”87 The Plaintiff seeks in relief a declaratory

judgment that “the City violated its enabling legislation in its Charter when it signed

the Transfer Agreement; and that said Transfer Agreement is void,”88 and an

injunction “enjoining the City from using any taxpayer funds to maintain the

segment of Park Road and Samantha Drive referenced in the Transfer Agreement

until the City, DNREC, and DelDOT amend the controlling agreements and comply

with all the provisions of the City Charter, DLP Act, and 30 Del. C. § 5423(c)(2)

required for said Transfer Agreement.”89

       Section 34 of the City Charter provides that, “[t]he City Council shall have

the power and authority to lay out, locate and open new streets or to widen and alter

existing streets or parts thereof . . . ,”90 and details the proper procedure by which

the City should complete any of these tasks.91 That procedure is only triggered by a

petition filed by five or more affected property owners, and such a petition is lacking

here. Moreover, while the City Charter prescribes the City’s actions with respect to



86
   Id. at ¶ 88.
87
   Id. at ¶ 90.
88
   Id. at ¶ 104.
89
   Id. at ¶ 113. The Plaintiff did not further explain his argument with respect to 30 Del. C. §
5423(c)(2) in his briefing or at Oral Argument, and accordingly, it is waived. See supra note 29.
90
   The City’s Reply Br., Ex. A (the “Charter of Lewes”) § 34(a).
91
   Id. at § 34(b).
                                               23
creating new roads, or for altering the course of or adding to the width of an existing

road, it is silent as to assuming maintenance obligations, the action challenged here.

That is because the purpose of the section is to establish a procedure for the location

of a street, the resulting condemnation of land, and compensation therefor. The

portion of the City Charter to which the Plaintiff refers is inapplicable to an

agreement to maintain an existing public roadway, and the Plaintiff’s argument

borders on the frivolous.

       The Plaintiff has not elaborated on his argument that the Transfer Agreement

violated the DLP Act, except to repeat the allegation in his answering brief to the

City’s Motion to Dismiss.92 To the extent that this allegation is not waived, I can

conceive of no legal basis for it. Accordingly, I dismiss these claims in Count III.93

       F. Bias as to Location of the Dog Park

       Count VI of the Complaint claims that the City “was not an impartial

disinterested administrative body in voting for approval of the Dog Park location

and size.”94 The Plaintiff does not seek any relief specifically with respect to this

claim. I assume for purposes of evaluating the City’s motion, however, that the

Plaintiff seeks a declaration that the legislative action of the City and its Council




92
   Pl’s Combined Answering Br. to the City’s and Unleashed’s Mots. to Dismiss 3.
93
   Again, I need not reach the City’s assertion that the Plaintiff lacks standing to bring raise this
issue, because he clearly fails to state a claim.
94
   Compl. at ¶¶ 99–100.
                                                24
regarding the location of the Dog Park are void.

       Generally, our courts will not inquire into the motives of a legislative body in

order to invalidate actions within the scope of the legislators’ power.95 Rather,

legislators’ decisions will be upheld unless “fraud or bad faith is proved.”96 Even

where the Council may be “convinced from the outset that the balance of community

interest” lies in favor of a certain decision or outcome, no claim of bad faith may be

sustained if the Council “considered the matter in an appropriate procedure;

considered factors appropriate to the public interest; was legally free to exercise

judgment[;] and had not been corrupted through bribery or other illegal means.”97

       The Complaint is innocent of allegations that any Council member has a

pecuniary interest or is otherwise impermissibly invested in locating the Dog Park

behind the Plaintiff’s house.98 The Plaintiff argues that an allegation of a particular



95
   See, e.g., Ash/Rummunno Associates, Inc. v. Branner, 1993 WL 11701, at *3 (Del. Ch. Jan. 19,
1993); McQuail v. Shell Oil Co., 183 A.2d 581 (Del. Ch. July 26, 1962) (citing Klaw v. Pau-Mar
Const. Co., 135 A.2d 123 (Del. 1957).
96
   Krahmer v. McClafferty, 288 A.2d 678, 681 (Del. Super. 1972) (quoting Piekarski v. Smith, 153
A.2d 587 (Del. Ch. July 28, 1959)); accord Pau-Mar Const. Co., 135 A.2d at 127–28 (“Courts
inquire into the motives of municipal legislators acting within their powers only when there is a
showing of bad faith or fraud.”).
97
   Pettinaro Enterprises v. Stango, 1992 WL 187625, at *5 (Del. Ch. July 24, 1992) (“The
individuals who hold municipal office are residents of the town or county whose municipal
instrumentalities they are responsible for. They bring to this responsibility their experience as
citizens and residents of the town or county. When exercising judgment required by their office
they may be required to follow a process set-out by statute or dictated by due process standards.
But unlike a judge who sits in a court of law, they need not approach their duties with no pre-
conceptions about the course that would best promote the public good. . . . [I]t does not matter that,
in fact, its members had made up their minds early on and never deviated from that view.”).
98
   See generally Oral Argument Tr. 36:21–38:2.
                                                 25
financial interest is unnecessary to sustain a claim but fails to allege any other bad-

faith motivation for the acts of which he complains, either in the briefing or at Oral

Argument.99 The Plaintiff’s claim falls short of pleading facts even implying

misconduct by the City Council members; in the Count, the Plaintiff merely

incorporates by reference the allegations already set forth in the Complaint, adding

only that unidentified members of the City Council were associated with Unleashed,

and have lobbied for it.100 At most, the Plaintiff has alleged facts to show inclination

on behalf of certain Council members in favor of the creation of the Dog Park in

Lewes. But, as pointed out multiple times in the briefing and at Oral Argument, the

Plaintiff is not challenging, and actually generally supports, the construction of the

Dog Park in Lewes.101 The underlying driver of this action is the Plaintiff’s objection

to the City’s decision as to the specific location of the Dog Park.102 Thus, I find that


99
   Id. at 35:15–19. The Plaintiff’s argument for completely impartial decision-makers appears to
be taken to such an extreme as to bar decision-makers from having any opinion whatsoever in
regard to the matter they are legislating. Notwithstanding the impracticality of such a requirement,
the Council members at issue were elected to their positions, presumably, to some degree because
of their opinions and vision for the future of Lewes. That the Plaintiff disagrees with the Council
members’ decision is not enough to demonstrate bad faith. See Pettinaro Enterprises, 1992 WL
187625, at *5.
100
    Compl. ¶ 100.
101
    See Pl’s Answering Br. to DNREC’s Mot. to Dismiss 25 (“Lechliter did not object to the Dog
Park per se, but only the procedures used by [Unleashed] to achieve its goal and by the [City] and
DNREC officials to approve the final concept and location.”).
102
    See id. at 25 n.43 (“[Unleashed] could have had its Dog Park at the original site on the [Leased]
Premises, but the surreptitious move to behind Lechliter’s residence was the straw that borke [sic]
the camel’s back.”). At Oral Argument, the Plaintiff advocated for location of the Dog Park on
the hummock in the Great Marsh known locally as the Green Hill, connected to town by the
remnants of a narrow dirt causeway that once provided access over the marsh. The location
certainly has the advantage over the current location in being remote from the Plaintiff’s home.
                                                26
the Plaintiff has failed to allege bad faith sufficient to set aside a legislative act, and

I dismiss this claim.

       I. Civil Conspiracy Among the Remaining Parties

       That leaves only the Plaintiff’s repeated allegations of conspiracy between

various Defendants. As a result of my decisions above, only a single FOIA claim

survives as a substantive clause of action. The Plaintiff agreed at Oral Argument

that his civil conspiracy claims must be based on conspiracy regarding non-

dismissed underlying claims.103 Thus I need only consider Count I of the Complaint,

where the Plaintiff alleges that

       Defendant City, DNREC, and [Unleashed] conspired to circumvent the
       requirements of the Open Meeting Provisions of the FOIA and the
       terms of the Ground Lease for a public process to establish a State-
       approved D&U Plan for the [Leased] Premises prior to approving any
       specific use on a portion of the [Leased] Premises, such as a Dog
       Park.104

       To properly state a claim for civil conspiracy under Delaware law, a plaintiff

must plead facts supporting “(1) the existence of a confederation or combination of

two or more persons; (2) that an unlawful act was done in furtherance of the

conspiracy; and (3) that the conspirators caused actual damage to the plaintiff.”105




103
    See Oral Argument Tr. 6:9–14. Consequently, to the extent that civil conspiracy claims have
been pled based on other (non-FOIA) substantive alleged wrongs, those claims are dismissed.
104
    Compl. 28.
105
    Allied Capital Corp. v. GC-Sun Holdings, L.P., 910 A.2d 1020, 1036 (Del. Ch. Nov. 22, 2006)
(citing Nicolet, Inc. v. Nutt, 525 A.2d 146, 149–50 (Del. 1987)).
                                              27
“Because ‘a plaintiff often cannot produce direct evidence of a conspiracy,’

circumstantial evidence can be offered as ‘proof that it occurred.’”106

       The Plaintiff’s conclusory allegations in Count I fail to state a claim. The

hallmark feature of a conspiracy is the confederation among two or more parties to

commit an unlawful act, as set out in prong (1) above. To simply allege that two or

more parties have committed the same wrong, without more, is not enough to satisfy

this element; at the pleading stage, the Plaintiff must allege that the parties knowingly

participated in the conspiracy and that there was coordination of action among the

parties.107 Here, the Plaintiff has alleged in separate parts of the Complaint that the

City and DNREC violated FOIA in dealings related to the Dog Park, but has alleged

no facts whatsoever to suggest that those FOIA violations were related—that the

City, State, or Unleashed knowingly conspired, or otherwise coordinated actions, in

order to violate the Plaintiff’s rights under FOIA. Therefore, I dismiss the remaining

conspiracy claim in Count I for failure to state a claim.

                                    CONCLUSION

       As Andrew Jackson said (or perhaps did not say), one man with courage

makes a majority. No one can accuse Colonel Lechliter of lacking the courage of

his convictions. If one man with intelligence and energy could make a cause of


106
    Matthew v. Laudamiel, 2015 WL 5723985, at *18 (Del. Ch. Sept. 28, 2015) (quoting Reid v.
Siniscalchi, 2014 WL 6589342, at *6 (Del. Ch. Nov. 20, 2014)).
107
    See OptimisCorp v. Waite, 2015 WL 5147038, at *57–*59 (Del. Ch. Aug. 26, 2015).
                                            28
action, the Plaintiff would have stated a slew of them here. To state a cause of action

requires a legal basis and standing, however, which are lacking in most of his claims

regarding the Land. For the reasons set out above and in my bench decision, all of

the Plaintiff’s claims are dismissed with prejudice, except for any claims sounding

in nuisance, which are dismissed without prejudice, and his allegation that a 2014

City Meeting violated FOIA, which awaits litigation.108

       The parties should provide a form of order consistent with this Memorandum

Opinion and my bench ruling, and consult regarding a schedule for further litigation.




108
   Because of decisions made in this Opinion, I need not address many of the arguments raised by
the Defendants, including, for example, those concerning whether certain of the Plaintiff’s claims
are barred by laches, whether the Plaintiff exhausted his administrative remedies, and whether the
Plaintiff has an adequate remedy at law.
                                               29
