GLASSCOCK, Vice Chancellor.
The Plaintiff, Col. Gerald A. Lechliter, lives on a cul-de-sac in Lewes. His property abuts a large parcel of land (the "Lewes Property") set aside as, but never used for, an industrial park. This large parcel was owned by the University of Delaware, and is adjacent to its Lewes campus. It is generally south of Canary Creek, and adjacent to the Great Marsh which lies north of Lewes. In 2002, the University sold the Lewes Property to the Delaware Department of Natural Resources and Environmental Control ("DNREC"), to be used as open space. The University reserved an easement over a portion of the Lewes Property near the Great Marsh, which gave it the right to enter and deposit dredge spoils. Eventually, the University and DNREC modified this easement, to allow the University and an entity it created to build a large windmill—an electricity-generating wind turbine— in the easement, with which the University could do research on generation of "clean" energy and supply itself and others with electrical power. The turbine was constructed in the easement, approximately one-half mile from Lechliter's home.
According to Lechliter, the operation of the wind turbine, through its noise and its stroboscopic emanations, disturbs his quiet enjoyment of his property. He brought this action for nuisance and related torts, pro se. In a manner reminiscent of his similar crusade against another use being made of a different portion of the old industrial park—a public dog park
Lechliter is a citizen of Lewes, Delaware.
The State Defendants are the Delaware Department of Natural Recourses and Environmental Control ("DNREC"); Collin O'Mara, Secretary of DNREC; David Small, Deputy Secretary of DNREC; and Charles Salkin, Director of the Division of Parks and Recreation within DNREC (together, the "DNREC Defendants").
The University of Delaware Defendants are the University of Delaware ("UD" or the "University"); Patrick T. Harker, UD President; Scott R. Douglass, UD Executive Vice-President; and Nancy M. Targett, UD Dean (together, the "UD Defendants").
The Defendants also include the City of Lewes (the "City"); Blue Hen Wind, Inc. ("Blue Hen"); Gamesa Technology Corporation, Inc. ("Gamesa"); and First State Marine Wind, LLC ("First State") (together with the UD Defendants, the "City/UD Defendants").
In 2002, using State funding through Delaware's Open Space Program, DNREC purchased from the University the Lewes Property, 260.94 acres of land adjacent to the University's Lewes campus.
The University first began contemplating the construction of a wind turbine in 2007 when it met with the City's Board of Public Works (the "City BPW") to discuss the possibility of constructing a wind turbine in Lewes.
During 2009, the University moved beyond the planning phase and began taking steps toward the construction of a wind turbine. On July 24, 2009, UD and Gamesa
On the same day, UD and Gamesa finalized an agreement to build a 410-foot tall, utility-scale 2 megawatt Gamesa Turbine (the "Turbine") on the University's Lewes Campus.
A few months later, on January 11, 2010, the Lewes City Council ("City Council") held a public meeting, the agenda for which included the "presentation and consideration" of a memorandum of agreement with the University (the "City-MOA").
Shortly thereafter, on February 2, 2010, DNREC, recognizing that the land had not yet been transferred in accordance with the DNREC-MOU, amended the Original Easement (as amended, the "Amended Easement") to allow the University to access the Encumbered Land to begin building the Turbine.
The next day, on February 3, 2010, DNREC Deputy Secretary David Small sent a letter to the City Solicitor stating that DNREC had approved the construction of the Turbine.
In addition to its negotiations with the City and State, the University also applied to the United States Department of Energy ("USDOE") for federal grants, pursuant to the National Environmental Policy Act ("NEPA"), to assist in the construction and operation of the Turbine. On April 1, 2010, the USDOE informed the University that an environmental assessment ("EA") would be required to receive federal funds under NEPA.
Construction of the Turbine commenced in March 2010 and the Turbine was operational in June 2010.
On July 1, 2010, the Delaware Governor signed the 2011 Bond Bill, in which the General Assembly included in the bill's "epilogue language" a provision that authorized DNREC to sell back a portion of the Lewes Property to the University.
In September 2010, the Plaintiff and two other citizens met with DNREC Secretary O'Mara and inquired as to whether DNREC had consulted the Open Space Council (the "OSC"), a body formed by statute to advise DNREC on land preservation issues, in regards to the DNREC-MOU or the Amended Easement.
On November 30, 2011, the City BPW entered into an agreement with First State to purchase excess electricity generated by the Turbine.
Finally, in anticipation that UD and DNREC would soon enter into an agreement to transfer the Encumbered Land, the General Assembly again adopted "epilogue language" in the 2012 Bond Bill that authorized DNREC to transfer the parcel to UD; the language was nearly identical to that in the 2011 Bond Bill, except that it mentioned the operation of the Turbine and the use of the land for research purposes.
The Turbine is located approximately one-half mile from the Plaintiff's residence. According to the Plaintiff, since the construction of the Turbine, many citizens living in close proximity have complained about its negative effects, including the level of noise it generates.
Concerns of the type expressed by the Plaintiff have not been completely ignored, however. The University hired Tech Environmental, Inc. to perform two acoustical studies to examine the acoustic effects of the Turbine: one in 2009, before the Turbine's construction; and another in 2011, six months after the Turbine was operational.
In 2006, DNREC received $2.2 million from the Delaware Department of Transportation to construct a road connecting New Road to Pilottown Road in Lewes (the "Connector Road").
The Plaintiff filed his Verified Complaint on October 11, 2012. The Complaint alleged seven counts against the Defendants: Count I alleges that DNREC violated numerous statutes to illegally build the Turbine; Count II alleges that the City violated statutes and zoning ordinances to illegally issue the Building Permit; Counts III and IV allege violations of the Delaware Freedom of Information Act ("FOIA") against DNREC and the City, respectively; Count V alleges that DNREC allows selected individuals to hunt illegally; Count VI alleges that the Defendants committed nine torts in the construction and operation of the Turbine; and Count VII alleges that DNREC and UD acted with gross and wanton negligence by approving UD's realignment of the Connector Road. In addition, the Plaintiff alleges that DNREC conspired with UD, Gamesa, Blue Hen, and First State to perform the wrongs alleged in Count I; similarly, the Plaintiff alleges that the City conspired with the UD Defendants to perform the wrongs alleged in Count II.
In relief, the Plaintiff seeks numerous declaratory judgments and various forms of injunctive relief, including the removal of the Turbine, as well as damages.
On June 24, 2013, I granted the parties' Stipulation to Stay the Case pending the resolution of a related federal action, also brought by the Plaintiff, which "involve[ed] the same universe of alleged facts underlying [] this action." On October 10, 2013, Plaintiff filed a Motion for Temporary Restraining Order to prevent construction of the Connector Road, which I denied via Letter Opinion of October 22, 2013.
On January 16, 2015, the District Court granted the defendants' motion to dismiss and on January 28, I granted Plaintiff's Motion to Lift Stay of Proceedings.
On April 2, 2015, the City/UD Defendants filed a Motion for Summary Judgment. On April 6, 2015, the DNREC Defendants filed a Motion to Dismiss. The parties submitted briefing on both Motions in June and July. I heard oral argument on September 4, 2015. This is my Memorandum Opinion.
The Defendants filed two dispositive motions in response to the Plaintiff's claims. The City/UD Defendants filed a Motion for Summary Judgment on Counts I, II, IV, VI, and VII. The DNREC Defendants filed a Motion to Dismiss Counts I, III, V, VI, and VII under Court of Chancery Rule 12(b)(6), for "failure to state a claim upon which relief can be granted." However, the DNREC Defendants' opening brief and the Plaintiff's answering brief cited evidence that was not included in the Plaintiff's Complaint. Moreover, the City/UD Defendants moved for summary judgment on many of the same counts. All of the parties, including the Plaintiff, have been given ample opportunity to supplement the record and I find that none of the parties would be prejudiced by an application of the standard applicable to a motion for summary judgment. In light of the foregoing, I convert the DNREC Defendants' Motion to Dismiss to a Motion for Summary Judgment,
Summary Judgment should be granted where, considering the facts in the light most positive to the non-moving party, the moving party has established that "there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
The Plaintiff's Complaint asserts a slew of claims against the Defendants, both individually and as a part of a conspiracy. Col. Lecliter is an intelligent man, articulate in written and oral communication. He is not legally trained, however, and has taken the opportunity here to complain of the actions of the Defendants in ways that sometimes approach the border between creative and frivolous. As a result, my analysis below is necessarily
In Count I, the Plaintiff alleges that the Original Easement granted in 2002 represents "a misuse of taxpayer dollars," and argues that the use prescribed therein did not conform to any of the purposes enumerated in the Delaware Land Preservation Act (the "DLP Act") for which DNREC can acquire real property.
The doctrine of laches supports denial of a plaintiff's request for equitable relief when the plaintiff has unreasonably delayed in seeking that relief, and such delay has prejudiced the defendant.
The Plaintiff's argument is not persuasive, however. The Original Easement provided that the University could continue using the Encumbered Land for the disposal of dredge spoils, which the Complaint itself avers that the University did for seven years before the Plaintiff filed his Complaint. It is clear that there was no attempt to conceal the fact or effect of the University's retention of the Original Easement.
The Plaintiff has failed to allege any additional facts to establish unusual or extraordinary circumstances that would justify tolling his claims beyond the statutory time limitations, and his claims are therefore barred by laches. As a result, I grant summary judgment in favor of the Defendants for the claims in Count I that allege violations of statutes arising from the grant of the Original Easement. Because of this decision, I need not reach the Defendants' argument that the Plaintiff lacks standing to proceed on this claim. However, I note that even if this claim was not time-barred, the Original Easement was a part of the purchase transaction itself, and thus did not involve the disposition of public lands, or the granting of an easement thereon; accordingly, the Plaintiff's claims are without merit.
In Count I of the Complaint, the Plaintiff alleges that DNREC acted ultra vires when it approved the DNREC-MOU in October 2009 and also when it amended the Original Easement in February 2010. The Plaintiff argues that in each instance DNREC violated numerous statutes because it failed to take mandated prerequisite action before entering these agreements.
The DNREC Defendants argue that the Plaintiff's claims based on alleged statutory violations should be rejected because the Plaintiff lacks standing to bring his claims. A private individual has a right of action under a statute, in general, only where the statute so provides.
This Court applies the "concept of standing as a matter of self-restraint to avoid the rendering of advisory opinions at the behest of parties who are mere intermeddlers."
Finally, in order to establish standing, the plaintiff's "interest in the controversy must be distinguishable from the interest shared by other members of a class or the public in general."
In Count I of the Complaint, the Plaintiff does not allege a particular injury, but instead relies solely on the contention that the alleged statutory violations have caused him "tort damages."
The Plaintiff also alleges that he has suffered adverse "health effects."
The first statutory violation alleged by the Plaintiff is that DNREC violated the DLP Act because it failed to consult with the OSC before approving the DNREC-MOU and before granting the Amended Easement. The DLP Act, at 7 Del. C. § 7506(6), provides that the OSC shall "[a]dvise and consult regarding any change from permanently protected status of open space lands acquired or otherwise protected." Plaintiff asserts that DNREC was required to consult the OSC here because the DNREC-MOU and the Amended Easement changed the status of the Encumbered Land from permanently protected status.
Second, the Plaintiff argues that DNREC violated statutes concerning the "Conservation Trust Funds" because DNREC failed to obtain an Act of the General Assembly before signing the DNREC-MOU and granting the Amended Easement.
The Plaintiff alleges that DNREC was required to obtain an act of the General Assembly pursuant to Section 5423 because the DNREC-MOU and the Amended Easement converted the use of the Encumbered Land. Furthermore, the Plaintiff argues that due to this statutory violation
Finally, the Plaintiff argues that DNREC violated Delaware Code Chapter 94, titled "Real Property Distributions," because DNREC failed to follow the statutory procedures that are required to declare property surplus. The Plaintiff points to three provisions within that Chapter. First, the statute provides that the "Commission on State Surplus Real Property" is tasked with determining how to utilize land that has been designated as surplus.
The Plaintiff alleges that DNREC violated the statute because, before signing the DNREC-MOU, it failed to (1) properly designate the Encumbered Land as surplus, and (2) notify the members of the General Assembly in whose district the Encumbered Land lies. Additionally, the Plaintiff alleges that DNREC improperly granted the Amended Easement because it failed to seek the discretion of the Director of the Office of Management and Budget. The Plaintiff again argues that he suffered "tort damages" as a result of these statutory violations.
The syllogism advanced by the Plaintiff, as I understand it, runs thus: the Defendants failed to clear certain procedural hurdles required to lawfully build the Turbine, and if the Turbine had not been built, it would not emit sounds or create the flicker effect, and it is those emissions that have injured him. Thus, he has suffered an injury-in-fact and has standing to litigate the violations of statute. This analysis, however, is fatally flawed.
First, the injury complained of is not sufficiently related to the statutory breaches to amount to an injury-in-fact for standing purposes. The Plaintiff has not alleged, nor could he, that the Defendants could not have cleared the hurdles he alleges they wrongfully refused to try. There is nothing in the record to show that the failure of DNREC to consult with the OSC, for instance, which failure the Plaintiff alleges violated the DLP Act, would have resulted in the OSC recommending against the Turbine; or that DNREC would have followed such a recommendation, which would have been purely precatory. Thus, the relationship between any violation and the damage alleged is insufficiently concrete to afford standing here.
More fundamentally, the Plaintiff's injuries are not in the zone of interest addressed by any of the statutes he cites. The DLP Act seeks to preserve open space and protect the environment. The same is true of 30 Del. C. § 5423. Finally, 29 Del. Code §§ 9401 et seq. is intended to protect the property interests of the State of Delaware, as well as to preserve open space. The fact that violations of these statutes led to construction of a windmill, emanations from which subsequently injured the Plaintiff, is a mere fortuity; none of the statutes cited had the intent of preventing the harm the Plaintiff has allegedly suffered, and his injuries, therefore, are outside the zone of interests protected thereby. The Plaintiff, if he has suffered an injury, may pursue his damages in tort, but lacks standing to vindicate the statutory violations of which he complains.
The Plaintiff argues that he has taxpayer standing to challenge the Original Easement and Amended Easement. In Delaware, taxpayer standing is "reserved for a narrow set of claims involving challenges either to expenditure of public funds or use of public lands."
Here, the Plaintiff argues that he has taxpayer standing because the grants of the Original Easement and Amended Easement represent both a "misuse of taxpayer dollars" and a "misuse of public land."
That leaves the Plaintiff's claim that the Amended Easement is a misuse of public land. The foundational case for taxpayer standing regarding publicly-owned real property is City of Wilmington v. Lord.
Accordingly, the Court held that "where a property is held under an express trust for public park purposes, a taxpayer has standing to sue to enjoin an alleged violation of that trust."
I have already described the statutory violations that the Plaintiff alleges to establish his claim that the Amended Easement was a misuse of public property. In sum, the Plaintiff argues that there are various statutes to which DNREC failed to adhere in amending the Original Easement and creating the Amended Easement, because that amendment resulted in a change of the status of the land from DLP Act-protected open space.
DNREC contends, and I agree, that the Plaintiff's challenge to the Amended Easement must be dismissed because it is based on the "false premise" that the Encumbered Land was once state-owned, permanently protected open space under the DLP Act,
In Count I, the Plaintiff also alleges that the University violated the terms of the Amended Easement by allowing First State, a "third-party, for-profit LLC" to sell electricity generated by the Turbine.
Based on the foregoing, I grant summary judgment in favor of the Defendants for all of the Plaintiff's claims in Count I.
In Count II of his Complaint, the Plaintiff challenges the process by which the City approved the construction of the Turbine, asserting claims against the City and the UD Defendants.
The Plaintiff alleges that the City-MOA "effectively rezoned the [Encumbered Land] from Open Space in the 2005 Comp Plan to University without following proper procedures."
I find the Plaintiff's rationale hard to follow. As the Defendants point out, the City-MOA contains a simple inaccuracy: the City-MOA mistakenly indicates that the Encumbered Land was zoned "University" when it was actually zoned as "Open Space." The Plaintiff has failed to show how this inaccuracy caused the Plaintiff an injury or is otherwise actionable.
The Plaintiff also challenges the issuance of the Building Permit for the Turbine by the City. First, he argues that if the City-MOA did not effectively rezone the Encumbered Land, the University would have had to request that the parcel be rezoned before receiving a Building Permit for the Turbine, which it failed to do.
The Plaintiff's challenge to the issuance of the Building Permit is fatally untimely. The City Building Code provides that an appeal may be taken to the Board of Building Code Appeals "by any person aggrieved by a decision of the Building Official" within 20 days.
The Plaintiff alleges in Counts III and IV that both DNREC and the City violated the Delaware FOIA.
In Count IV, the Plaintiff alleges that "City Council has flagrantly and consistently violated provisions of the FOIA."
The Plaintiff filed his complaint on October 11, 2012, well beyond the FOIA's six-month statute of repose. Therefore, 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 repose, and grant summary judgment in favor of the Defendants for the FOIA claims embedded in Count II.
In the Plaintiff's answering brief, he concedes that most of the FOIA claims alleged against the City are time-barred; however, the Plaintiff argues that he has properly alleged "FOIA claims that fall with[in] the six-month statutory period for filing a complaint," citing paragraphs 220 through 232 of his Complaint.
In Count V, the Plaintiff accuses DNREC of "allow[ing] selected individuals to hunt illegally on State-owned Open Space Park land." The Plaintiff concedes that DNREC has the authority to regulate hunting in State parks,
In Counts VI and VII, the Plaintiff alleges eight tort claims: (1) private nuisance,
A private nuisance is "a nontrespassory invasion of another's interest in the private use and enjoyment of land."
The Plaintiff alleges that the Turbine—one-half mile distant from his property—produces "disturbing noises, flashing red light, strobe/shadow effect and unreasonable interference with [his] use and enjoyment of his property, including sleep deprivation."
At oral argument, the Plaintiff maintained that he had not understood it was necessary to provide evidence of harm at this stage of the litigation, but he represented to the Court that he could provide expert testimony to support his nuisance claim if given more time. I note that the Plaintiff is representing himself pro se in this matter and has made allegations that, if true, could lead to relief. Given these considerations, I find it equitable to give the Plaintiff the opportunity to submit expert testimony to support his private nuisance claim. Therefore, I will reserve my decision regarding the Plaintiff's private nuisance claim for 60 days, within which time the Plaintiff should submit affidavits and an expert report sufficient to sustain a finding of nuisance. If the Plaintiff fails to submit additional evidence, I will revisit the Defendants' Motion for Summary Judgment as to the private nuisance claim.
The Plaintiff also alleges the Turbine has caused a public nuisance. A public nuisance is a nuisance that "affects the rights to which every citizen is entitled."
The Plaintiff's public nuisance claim suffers the same shortcoming as does his private nuisance claim: he has failed thus far to present any scientific evidence that links his complaints of special injury—physical and property damage—to the operation of the Turbine. Assuming he does so in the time I have allotted him, he will have met the requirement of special injury. The infringement of a public right he alleges is that the Turbine presents a safety hazard to the public using the Connector Road, an allegation that awaits factual development. For the reasons stated above, I reserve decision on the Defendants Motion for Summary Judgement with respect to the public nuisance claim for 60 days, during which time the Plaintiff may supplement the record with affidavits and an expert report.
The Plaintiff alleges that the Defendants have damaged him, and are negligent per se. To establish negligence per se, a plaintiff must first demonstrate that the defendant committed a "violation of a Delaware statute enacted for the safety of others."
Here, the Plaintiff alleges that the Defendants violated the City's Comp Plan and the DLP Act by constructing the Turbine at its present location.
The Plaintiff alleges that the Defendants were negligent in locating the Turbine. To establish negligence, a plaintiff must show that the defendant owed the plaintiff a duty; that the defendant breached that duty; and that the defendant's breach proximately caused an injury to the plaintiff.
The Plaintiff alleges that "UD owed a duty to Lechliter to locate and operate the Turbine with reasonable care because it knew, or should have known, the Turbine would affect residents whose homes are in close proximity to it with nuisance noise, flicker, and even vibration."
The Plaintiff has alleged that UD owes the Plaintiff a duty of reasonable care to locate the Turbine so as to not damage neighboring property, which duty it breached, and that Plaintiff has suffered damages thereby. While the Defendants are correct that the Plaintiff may not recover damages for the same injuries under separate theories of nuisance and negligence, they are not entitled to summary judgment on this record. However, I reserve decision on these claims for the same reason as with the nuisance claims—the Plaintiff must in 60 days supplement the record to show injury, or face summary judgement.
Finally, in Count VII, the Plaintiff attempts to state another negligence claim: he asserts that by locating the Connector Road too close to the Turbine, DNREC and UD acted "with gross and wanton negligence" in creating "a public safety hazard for citizens by approving UD's realignment of the Connector Road."
The Plaintiff asserts numerous claims of fraudulent misrepresentation. In order to establish a claim for fraudulent misrepresentation, a plaintiff must show: (1) that the defendant made a false representation of a material fact to the plaintiff; (2) that the defendant must have knowledge of the falsity of the representation, while the plaintiff must be ignorant of the falsity; (3) that the misrepresentation was made with the intent that the plaintiff would believe it to be true, act in reliance thereon, and be deceived thereby; and (4) that the plaintiff actually did so believe, act, and was deceived, as well as having been harmed thereby.
The Plaintiff asserts that "UD never informed the public about any problems associated with Turbines," and, instead, presented the Turbine as "[g]reen [e]nergy, the wave of the future, and completely benign."
The Plaintiff has not, and cannot, allege that he was harmed by the misrepresentation of the Defendants, if any. His contention that he would have "taken action" does not amount to an allegation that he could have blocked the construction of the Turbine, and he cannot, therefore, demonstrate that he has been harmed by any statements of UD. With respect to his claims that UD should have provided him additional negative information about wind turbines in general, the failure to inform without more is not actionable misrepresentation. In effect, the misrepresentation claims are merely an attempt to repackage his stale FOIA and process arguments. I grant the Defendants' Motion for Summary Judgment as to the Plaintiff's claim for fraudulent misrepresentation.
In the Plaintiff's Complaint, he asserts that he "meets the minimal requirements for this tort claim."
The Plaintiff's Complaint contains multiple allegations of conspiracy, all of which I address in this section. To 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."
Similarly, in Count II of the Complaint, the Plaintiff alleges the following:
As the result of my decision above, none of the Plaintiff's individual allegations in Count I or II survive. Therefore, the Plaintiff's related conspiracy claims must fail because the Plaintiff has not alleged a surviving substantive cause of action on which to base his claims.
Finally, in Count IV of the Complaint, the Plaintiff asserts that his "claim of fraud readily meets the requirement for an underlying wrong." It is unclear whether the Plaintiff alleges a fraud in relation to his allegations in Counts I and II, or if he alleges a separate count for fraud. I have already rejected the Plaintiff's allegations in Counts I and II, and to the extent the Plaintiff attempts to rely on a separate allegation of fraud, he has failed to state a claim for fraud with particularity.
The Complaint pleads tort claims that will require expert testimony to withstand summary judgment, barnacled with improperly alleged or stale process claims. Based on the foregoing, I grant summary judgment in favor of the Defendants on all of the Plaintiff's claims, except for certain of the Plaintiff's tort claims alleged in Count VI, upon which I reserve decision pending the Plaintiff's submission of expert opinion. The Defendants should present an appropriate form of order.
However, the Plaintiff did not include in his Complaint any claims concerning DNREC's involvement with the USDOE. To the extent the Plaintiff attempts to use these facts to establish a new cause of action against the Defendants in his answering brief in opposition to the Motions to Dismiss and for Summary Judgment, such a claim is untimely.