Delta Eta Corp. v. City of Newark

Decision Date02 February 2023
Docket NumberC. A. 2021-1106-MTZ
CourtCourt of Chancery of Delaware
PartiesDELTA ETA CORPORATION, Plaintiff, v. CITY OF NEWARK, a municipal corporation of the State of Delaware, and MAYOR & COUNCIL of the City of Newark, JERRY CLIFTON, JOHN SUCHANEC, and JAY BANCROFT, Defendants.


CITY OF NEWARK, a municipal corporation of the State of Delaware, and MAYOR & COUNCIL of the City of Newark, JERRY CLIFTON, JOHN SUCHANEC, and JAY BANCROFT, Defendants.

C. A. No. 2021-1106-MTZ

Court of Chancery of Delaware

February 2, 2023

Date Submitted: September 9, 2022

Richard L. Abbott, ABBOTT LAW FIRM, Wilmington, Delaware, Attorney for Plaintiff Delta Eta Corporation.

Max B. Walton, Lauren P. DeLuca, and Erica K. Sefton, CONNOLLY GALLAGHER LLP, Wilmington, Delaware, Attorneys for Defendants City of Newark, Mayor &Council of the City of Newark, Jerry Clifton, John Suchanec, and Jay Bancroft.




A fraternity chapter's housing corporation owns a residence in the City of Newark. In August 2021, the housing corporation applied for a special use permit[1] that would allow the residence to be used as the chapter's fraternity house. The housing corporation obtained a favorable recommendation from the city's planning and development department and proceeded to a hearing before the city council. After the hearing, three city council members voted in favor of approving the special use permit, and three voted against. Because the housing corporation needed a majority vote to receive the permit, the permit application was not approved.

The housing corporation sued in this Court, seeking to compel the city council to issue the permit and prevent the council from relying on its denial. The housing corporation contends the city council did not comply with the applicable municipal zoning ordinance, and that the council members who voted against the permit exhibited anti-fraternity biases and failed to articulate sufficient reasons to support their votes. The housing corporation also brought a claim under 42 U.S.C. § 1983 ("Section 1983"), asserting a violation of a right of intimate association with the fraternity chapter and seeking injunctive relief.


The defendants moved to dismiss the complaint for lack of subject matter jurisdiction. This opinion concludes the Court lacks subject matter jurisdiction over the claims directly challenging the denial of the special use permit application. Contrary to the housing corporation's assertions, this Court does not have subject matter jurisdiction over all cases involving zoning or all cases addressing special use permit decisions. And careful examination of the housing corporation's allegations reveals that the city council acted in a quasi-judicial capacity when it denied the special use permit, and so a writ of certiorari in our sister courts of law is available and affords an adequate remedy. It follows that this Court of equity lacks subject matter jurisdiction over the housing corporation's state law claims.

Additionally, as to the Section 1983 claim, the complaint adequately pleads only that the housing corporation was the fraternity members' prospective landlord. That relationship is not protected by our Constitution's right to intimate association and cannot form the basis of a Section 1983 claim. The housing corporation failed to plead any injury and therefore its Section 1983 claim is dismissed.

Finally, the housing corporation also moved for sanctions on the basis that the defendants' arguments were legally frivolous. As it turns out, they were not. The housing corporation's motion for sanctions is denied.



Nonparty Pi Kappa Alpha is a national fraternity with a chapter at the University of Delaware. This opinion refers to that chapter as "PiKA." Plaintiff Delta Eta Corporation ("Delta Eta") is a not-for-profit organization and "the housing corporation for [PiKA]."[3] Delta Eta owns property located within the city limits of Newark, Delaware, which is improved with a residence (the "House"). It desired to use the House "as a fraternity house and related facilities starting in Fall 2022."[4] The property was, and still may be, used as a treatment facility.


The City of Newark (the "City") is zoned at the municipal level.[5] Property within the City is divided up into districts, including different types of residential, business, and industrial districts.[6] The Code of the City of Newark (the "City Code") provides a list of acceptable uses for each type of district, and property generally may only be used for those specified uses.[7] The House is zoned RM, which allows for multi-family dwellings, including boarding houses and garden apartments.[8]

The City Code also provides for the issuance of special use permits for certain uses depending on the district.[9] The City Council may issue special use permits only for those special uses enumerated for each type of district.[10] Fraternity houses are an enumerated special use for RM districts.[11] The City Code defines a "fraternity and/or sorority house" as

dwelling units used exclusively by a society of either male or female university or college students having a Greek letter name or other designation and sharing common or professional interests, and with the appropriate approval and/or sanction from the University of Delaware or a sponsoring national fraternal organization to operate as a fraternity or sorority.[12]

The City Council determines which applicants are entitled to receive special use permits by applying the criteria set forth in the City Code.[13] Specifically, before issuing a special use permit, the City Council must hold "a duly advertised hearing," and the applicant must demonstrate that the special use will not:

a. Affect adversely the health or safety of person(s) residing or working within the City of Newark boundaries or within one mile of the City of Newark boundaries and within the State of Delaware;
b. Be detrimental to the public welfare or injurious to property or improvements within the City of Newark boundaries or within one mile of the City of Newark boundaries and within the State of Delaware; and
c. Be in conflict with the purposes of the comprehensive development plan of the city.[14]

The City Code provides that "[i]n granting a special use permit the [City Council] shall designate such conditions in connections therewith as will, in its opinion, assure that the use will conform to the foregoing requirements and that such use will continue to do so."[15] When considering whether to grant a fraternity house special


use permit, the City Code requires that the City Council "consider a written report prepared by the planning and development director, or the city manager's designee, in evaluating [the] special use permit request."[16]

A. Delta Eta Applies For A Special Use Permit, And The City's Planning And Development Department Recommends That The City Council Grant It.

On August 3, 2021, Delta Eta applied for a special use permit to use the House as PiKA's fraternity house (the "Special Use Application"), which would allow Delta Eta to rent the House exclusively to PiKA members.[17] Although Delta Eta applied for the permit, the permit itself would be held by PiKA and would not be transferable to any other fraternity or sorority.[18]

Delta Eta also applied for a separate rental permit "allowing 18-person occupancy, which it is entitled to as a matter of right."[19] Delta Eta states that "[a] fraternity student residence only differs from a regular student residence in one respect: assertion with a University recognized fraternity affiliated with a national fraternity organization-i.e. fraternity associational status."[20]


The first step in evaluating a special use permit application to use property as a fraternity house is a review by the City's Planning and Development Department.[21] On September 1, the Planning and Development Department "issued a written report which conditionally recommended approval" of the Special Use Application (the "Report").[22] The Report stated that "the application for the [PiKA] fraternity at [the House] does, or can, meet all the requirements of the [applicable] ordinance."[23] The Report also provided:

The City Solicitor emphasizes to Council that the permit holder will be [PiKA], and not the property owner (Delta Eta Corporation). If Council revokes or suspends the special use permit, then no fraternal organization will be allowed at this location unless a new permit is issued to a fraternal organization, or the suspension is lifted. The special use is for the specific fraternity to operate and reside at the [House]. Therefore, it is recommended that a condition of the special use permit clearly state that if [PiKA] vacates the premises at [the House] for any reason, and the owner (Delta Eta Corporation) wishes to lease to a different fraternity or sorority . . ., the fraternity or sorority must apply for new special use permit. Furthermore, if [PiKA] wishes to relocate or expand to a different property, [PiKA] must apply for a new special use permit.[24]

The Report further noted that the City Council would be able to "suspend the special use permit if [PiKA] violates the terms and conditions set by the Council,"[25] and that


the City of Newark Police Department "does not support the expansion of fraternities and sororities into residential neighborhoods, and does not support the approval of [the Special Use Application]."[26] Nevertheless, the Report concluded: "the Planning and Development Department recommends that City Council approve the special use permit [PiKA] to operate and reside at [the House]."[27]

B. The City Council Does Not Approve The Special Use Permit.

The next step in the life of a special use application is a hearing and vote by the City Council.[28] A majority vote is required to grant the permit.[29] The City Council held that hearing on October 25, 2021. During the hearing, the Report was discussed, and the Planning and Development Department verbally advised in favor of granting...

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