Middlecap Associates, LLC v. The Town of Middletown

IN THE SUPERIOR COURT FOR THE STATE OF DELAWARE

MIDDLECAP ASSOCIATES, )
LLC, )
)
Plaintiff, )
) C.A. No. N23C-03-181 CEB
v. )
)
THE TOWN OF )
MIDDLETOWN, a municipal )
corporation of the State of )
Delaware, and THE TOWN OF )
MIDDLETOWN TOWN )
COUNCIL, the governing body )
of the Town of Middletown, )
)
Defendants. )

Submitted: December 1, 2025
Decided: January 30, 2026

MEMORANDUM OPINION

Upon Consideration of Plaintiff’s Appeal:
AFFIRMED.

John W. Pardee, Esq. & Mark A. Denney, Jr., Esq., BROCKSTEDT MANDALAS &
FREDERICO, LLC, Dover, Delaware. Attorneys for Plaintiff.

Scott G Wilcox, Esq., GIORDANO & GAGNE, LLC, Wilmington, Delaware. Attorney
for Defendants.

Butler, R.J.
This dispute is back before the Court after a remand to the Middletown Town

Council which, consistent with the Court’s previous ruling, has again considered a

conditional use permit requested by Middlecap and again voted against it. The Court

in this decision must reckon with “the record” and the quite circumscribed scope of

review of the Town Council’s decision against the development of the apartment

complex proposed by Middlecap.

FACTUAL AND PROCEDURAL BACKGROUND

Middlecap Associates owns approximately fifteen acres of land in the Town

of Middletown. 1 The property is located along Route 299, what some would call the
F

“main road” into Middletown off Route 1. About twenty years ago, long before the

instant dispute began, Middlecap proposed a “big box” shopping center on the site

and the Town approved of the idea. 2 As future plans for growth were formalized for
1F

Middletown, the as yet unbuilt shopping center remained a part of them. Indeed, the

land was zoned C-3 “Employment/Regional Retail.” 3 The zoning code describes
2F

the Town’s aspirations for the use of land in that area:

Development design within the C-3 district will provide service and
retail environments and employment/office opportunities in a manner
compatible with the historic character, scale, and architectural type of
Middletown. 4 3F

1
Second Amended Verified Compl. [hereinafter Compl.] ¶6.
2
Defs.’ Opening Br. in Support of Mot. to Dismiss Compl. at 3.
3
Id.
4
Middletown Zoning Code § 4.I.
2
Had Middlecap stuck to its original plan, it could have built a shopping center at the

site “by right” because that use was specifically permitted by the zoning code.

Times changed, as did Middlecap’s vision for its use of the land. Development

in C-3 zoning in Middletown permits “conditional uses subject to special

requirements” that are not necessarily tied directly to “employment” or “regional

retail.” 5 These include 1) day care centers, 2) selling goods directly from trucks, and
4F

3) garden apartments. 6 Middlecap decided to seek a conditional use permit to
5F

develop the land as garden apartments.

The route to a conditional use permit in Middletown begins with the Planning

Commission. 7 Middlecap presented its plan for a garden apartment complex to the
6F

Planning Commission. The Planning Commission voted against it. 8 But the 7F

Planning Commission’s vote is not the final word – the Town Council makes the

ultimate decision. 9 After a public hearing in February 2022, the Town Council also
8F

voted against the conditional use permit. 10 9F

5
Id. § 4.I.(2).
6
Garden apartments are contemplated by the Zoning Code and are permitted by right in R-3
districts. Id. § 4.E.
7
Id. § 10.A.
8
Compl. ¶14.
9
Middletown Zoning Code § 10.A.(1).
10
Compl. ¶20.
3
Middlecap filed a Verified Petition in the Court of Chancery to challenge the

Council’s decision. At the time, there was a long history of Chancery reviewing

county and local government control of land use matters. 11 These typically were
1 F

styled as complaints for declaratory judgment and an injunction. The Town Council

moved to dismiss the Chancery case, arguing that the Court lacked subject matter

jurisdiction because Middlecap had an adequate remedy at law, to wit: review by

way of a certiorari proceeding in Superior Court. 12 11F

Apparently, Middletown was not the only local jurisdiction questioning

Chancery’s jurisdiction in land use cases. At about the same time, the Town of

Newark had a case that did so, 13 as did the City of Rehoboth. 14 The Newark case –
12F 13F

Delta Eta Corp. v. Newark – became the flagship decision marking Chancery’s

departure from its participation in reviewing conditional use permits.

11
Cases supporting this notion are legion. Middlecap’s brief in the Court of Chancery cited to
eighteen such cases. Pet’r’s Answering Br. in Opp’n to Mot. to Dismiss at 14-15, Middlecap
Assocs., LLC v. Town of Middletown, 2023 WL 2981893 (Del. Ch. Feb. 2, 2023). In Delta Eta,
the Plaintiff cited to thirty cases in its answering brief. Pl.’s Answering Br. in Opp’n to Def.s’
Mot. Dismiss at Ex. B, Delta Eta Corp. v. City of Newark, 2023 WL 2982180 (Del. Ch. Feb. 2,
2023).
12
Resp’ts’ Opening Br. in Support of Mot. Dismiss at 8-9, Middlecap Assocs., LLC v. Town of
Middletown, 2023 WL 2981893 (Del. Ch. Feb. 2, 2023).
13
Delta Eta, 2023 WL 2982180.
14
330 Hospitality Group, LLC v. City of Rehoboth Beach, Del. Ch., C.A. No. 2022-0424, Will,
V.C. (Oct. 17, 2022) (Bench Op.). A fourth case – Citizens Against Solar Pollution v. Kent
County – should have collected frequent flyer miles for all its travels. In March 2025, it was
finally concluded by the Supreme Court. Citizens Against Solar Pollution v. Kent Cnty., 339
A.3d 1229 (Del. 2025).
4
In Delta Eta, Newark denied a conditional use permit to the Delta Eta

fraternity and Delta Eta sued in Chancery. 15 In reviewing what Delta Eta called a
14F

long history and tradition of Chancery Court rulings in conditional use cases, the

Chancery Court found that many of them were really zoning disputes, not

conditional use disputes. 16 Separating the “legislative act” of zoning, for which no
15F

adequate remedy at law existed, from “quasi-judicial” acts, for which certiorari

review is available, Chancery decided that a conditional use permit was “quasi-

judicial” and there was an adequate remedy at law by way of certiorari review in

Superior Court. 17 The Court dismissed Delta Eta’s case but permitted its transfer to
16F

Superior Court. 18
17F

On the same day as the Delta Eta ruling, Chancery Court dismissed

Middlecap’s Chancery lawsuit, transferring it to this Court. 19 18F

Once in Superior Court, other issues surfaced. The Town Council argued that

the Superior Court case was time-barred. Council members were sued individually

and sought dismissal as individual defendants. After briefing, the Superior Court

15
Delta Eta, 2023 WL 2982180, at *1.
16
Id. at *11-17.
17
Id.
18
Id.
19
Middlecap Assocs., LLC, 2023 WL 2981893, at *2 (Del. Ch. Feb. 2, 2023).
5
issued a split decision – dismissing the individual council members but ruling that

the certiorari case was not time-barred. 2019F

After further briefing, the Court ruled that the record was insufficient to permit

review. The Court said:

merely reciting a code provision in support of a “no” vote is not a
statement of reasons for the vote. Certainly, a reviewing Court does not
need an extensive recitation of all the whys and wherefores, but some
connection of the facts as found by the council person and the legal
standard being applied is essential to ensure that the quasi-judicial
decision was made with fidelity to the law. 21 20F

The Court therefore denied Plaintiff’s claim for relief but remanded the

dispute for further deliberations by the Town Council so it could create a record

capable of review. 22
21F

The matter went back to the Town Council, where by agreement of the parties,

it was again put to a hearing and vote by the Council. 23 The second hearing featured
22F

a full presentation by Middlecap, including a review of the other garden apartment

applications that had been granted conditional use permits in Middletown, a warning

to the Council about the Gibson decision (to be discussed presently), and a refutation

20
Middlecap Assocs., LLC v. Town of Middletown, 2023 WL 6848999, at *6 (Del. Super. Oct. 16,
2023).
21
Middlecap Assocs., LLC v. Town of Middletown, 2024 WL 3385825, at *5 (Del. Super. July 11,
2024).
22
Id. at *6.
23
Pl.’s Opening Br. On Appeal from Second Denial of Application [hereinafter Pl.’s Opening
Br.] at 4.
6
of any complaints about traffic because the Delaware Department of Transportation

had assured Middletown that garden apartments would result in less peak traffic than

the previously planned shopping center would. 24 23F

The Town Council heard all of this and again voted against the proposal.

While not as fulsome as a written, judicial ruling, the hearing transcript is quite clear

that Council had read and understood the legal framework in which they were

operating. Each vote referenced at least one of the three analytical terms for deciding

conditional use permits: 1) adverse effects on the surrounding neighborhoods, 2)

detriment to the public welfare, or 3) conflict with the Comprehensive Plan. 25 24F

Indeed, most of Middlecap’s presentation was an attempt to convince the Council

that the plan satisfied these very criteria. When the vote was called, Middlecap’s

arguments did not convince the Council that the permit should be granted and the

Council members each stated their reasons for concluding as much.

This brings us finally to the present iteration of this lawsuit. Middlecap has

appealed the Town Council’s second “no” vote on its application for a conditional

use permit and the matter has now been fully briefed.

24
Id. at 4-6.
25
See Middletown Zoning Code § 10.A.
7
ANALYSIS
I. Writ of Certiorari Review

A writ of certiorari is simply the power of a superior court to call for

examination of the record of an inferior tribunal, be it a court, administrative agency

or other “quasi-judicial” body. 26 The writ is available when other forms of review
25F

– such as direct appeal by right – are not. 27 A writ of certiorari permits the reviewing
26F

court to consider only whether the lower tribunal 1) exceeded its jurisdiction, 2)

committed an error of law, or 3) proceeded irregularly. 28 27F

A. The Record for Certiorari Review

The fact that review is available does not define the Superior Court’s scope or

standard of review of the record received or, for that matter, exactly what “record”

is being reviewed. Fleshing out these details has been examined in a number of

judicial decisions.

One instructive case from the Delaware Supreme Court, Black v. New Castle

County Board of License, is worth quoting at some length:

By its nature, the extent of the record appropriate for review on a writ
of certiorari is limited: “A certiorari proceeding differs fundamentally
from an appeal in that the latter brings the case up on its merits while
the ... (former) brings up the record only so that the reviewing court can
26
14 C.J.S. Certiorari §1.
27
Delta Eta Corp. v. City of Newark, 2023 WL 2982180, at *10 (Del. Ch. Feb. 2, 2023) (citing In
re Petition of Howell, 2007 WL 1114123, at *1 (Del. 2007)).
28
Christiana Town Ctr., LLC v. New Castle Cnty., 2004 WL 2921830, at *2 (Del. 2004).
8
merely look at the regularity of the proceedings.” The proper record for
review is “limited to the complaint initiating the proceeding, the answer
or response (if required), and the docket entries.” Any “evidence
received in the inferior court is not part of the record to be
reviewed.” This Court has thus stated that the transcript of the
proceedings is not a proper part of the record, at least in the context
of certiorari review of a Justice of the Peace Court proceeding.

The majority of cases addressing what constitutes a proper record, like Black,

are appeals of decisions from a Justice of the Peace Court. In Maddrey v. Justice of

the Peace Court 13, 29 the Supreme Court discussed the record on certiorari in detail.
8F

Maddrey was summarily dispossessed of her rental unit after a hearing in the

Justice of the Peace Court. 30 That decision was affirmed by a three-judge panel of
29F

Justice of the Peace Court judges. Normally, direct appeals or trials de novo are

available for judgments in JP Court, but neither avenue is available in summary

possession cases. The absence of any statutory right of review in any forum caused

Maddrey to seek review by writ of certiorari in Superior Court. 3130F

After Superior Court denied relief, Maddrey appealed. On appeal, the

Supreme Court held that while certiorari review was proper, it was “limited to errors

which appear on the face of the record and does not embrace an evaluation of the

evidence considered by the inferior tribunal,” and as such, “[t]he transcript of the

evidence below is not part of the reviewable record and the [Superior] Court cannot

29
Maddrey v. Just. of Peace Ct. 13, 956 A.2d 1204 (Del. 2008).
30
Id. at 1207-08.
31
Id. at 1208.
9
examine the transcript in order to evaluate the adequacy of the evidence . . . .” 32 31F

Rather, the record may only consist of initial papers, the complaint, answer or

response, and the docket entries. 33 32F

The Supreme Court’s concern was that common law writs of certiorari not be

used as “an end run around” the General Assembly’s decision to not permit

traditional appellate review of certain types of cases. 34 33F

“Common law writs of certiorari in this context cannot, therefore, be
the functional equivalent of an appeal. The General Assembly could
have provided for ordinary review de novo, traditional appellate review
on the record or statutorily defined certiorari review. They did none of
the above. To allow common law writs of certiorari to be used to
prolong summary possession actions defeats the clear legislative intent
to end those proceedings quickly.” 35 34F

The record is necessarily limited to prevent certiorari review from evolving

into “an impermissible full appellate review that is inconsistent with both the

function of the common law writ and the General Assembly’s intent.” 36 Thus, the 35F

Court held that the JP Court transcript could not form part of the record as it

32
Id. at 1216-17 (first quoting Mason v. Bd. of Pension Trs., 468 A.2d 298, 299 (Del. Super.
1983); and then quoting Green v. Sussex County, 668 A.2d 770, 773 (Del. Super. 1995)).
33
Id. at 1216.
34
Id. at 1214.
35
Id. at 1215.
36
Id.
10
“necessarily contemplates that the Court will weigh and evaluate the evidence” and

thus enlarge certiorari review. 37
36F

B. The Record In This Case

We might question whether the limitations on review set by the Supreme

Court in Maddrey are confined to Justice of the Peace Court appeals in summary

possession cases, but the Court said the limitation was for a reason: if the General

Assembly wanted to provide for full appellate review, it could have done so. 38 The
7F

General Assembly has provided for Superior Court review of decisions of zoning

boards of county and local governments. 39 There is no similar provision in the Code
38F

with respect to conditional use decisions of a County or Town Council. It is

reasonable to conclude that the General Assembly does not wish to authorize a full

review of local government legislators’ conditional use decisions. This may be due

to the fact that a full review necessarily puts the Court in the position of examining

the entrails of the decisions of a locally elected town council.

Certiorari review of conditional use permits is novel, and this Court must

reconcile the Supreme Court’s instructions in Maddrey with the record available for

review in conditional use permitting. When Superior Court reviews decisions of a

37
Id. at 1216-17.
38
Id. at 1215.
39
22 Del. C. §328.
11
JP Court, the record consists of a complaint and an answer, and docket entries

established by court procedures. None of these exist in conditional use permit

decisions by a town council. The Middletown Town Council did not create a

“docket,” nor did it write out a judicial opinion, “quasi” or otherwise. Its reasons

are stated in a transcript, which must be reviewed to perform even the most basic

judicial oversight. 40
39F

That said, this Court’s review continues to be informed by the limitations

articulated in Maddrey. For example, Middlecap argues that the Town Council failed

to give due consideration to the fact that DelDOT studies indicated the garden

apartments would create less traffic than the previously planned shopping center. 41 40F

DelDOT’s opinions on traffic volume do not necessarily negate the Council’s more

generalized concerns for “both traffic and safety.” 42 How the Council chose to
41F

weigh the evidence before it and the importance, or lack thereof, that it placed on

traffic impact would necessarily embroil the Court in a review of the evidence and

the relative strength of the competing arguments, inviting the Court to substitute its

40
See 330 Hosp. Grp., LLC v. City of Rehoboth Beach, 2024 WL 3520448, at *5 (Del. Super. July
23, 2024), appeal dismissed, 328 A.3d 285 (Del. 2024) (finding that the Court had no choice but
to review the transcript where no other record existed to conduct review). See also Citizens
Against Solar Pollution v. Kent Cnty., 2025 WL 751102, at *3 (Del. 2025) (individual docket
exhibits were not necessary for Superior Court review but that the Court could have requested
the exhibits if needed).
41
Pl.’s Opening Br. at 11,18.
42
Id. at 28.
12
judgment for that of the Council. To do so cannot be accomplished without

contravening Maddrey’s instruction that the court not “weigh and evaluate the

evidence.”

C. The Allegation of Procedural Defect is Outside the Record

Middlecap asserts that the Council members “prejudged” their votes before

the second vote on remand and that they were “coached” on what to say in explaining

their reasons and were reading from prepared scripts. 43 42F

These allegations are made by counsel in Middlecap’s brief but are

unsupported by any specific evidence. Even if Council members read from scripts,

the parties were gathered because this Court ruled that their previous vote “fail[ed]

to articulate a record of reasons sufficient for judicial review.” 44 It is not shocking
43F

to imagine that some of them may have prepared notes to try to make a more

thorough record this time. That does not prove they had “prejudged” their

conclusions. Perhaps it only shows that if they were going to come up with the same

conclusion, they wanted to articulate it better for later judicial review.

43
Pl.’s Opening Br. at 37-38.
44
Middlecap Assocs., LLC v. Town of Middletown, 2024 WL 3385825, at *5 (Del. Super. July 11,
2024).
13
In any event, all of this is outside the record in this review. The Court cannot

take testimony or discovery, and the record - as far as the Court understands “the

record” on certiorari review - does not support the allegation.

D. The Allegation of Disparate Treatment Is Not Reviewable

Middlecap argues that the Town Council granted conditional approval to at

least three garden apartments in zone C-3 in the past and its failure to grant

Middlecap’s permit constitutes disparate treatment. 45 Middlecap calls the previous
4F

approvals “decisional precedents.” 46 45F

There is little room for stare decisis in conditional use permitting. The

conditional use permits granted by the Town Council for garden apartments in C-3

zones were in various locations throughout the town. Granting them in some

locations does not bind the Town Council to granting them everywhere. If

Middlecap’s argument was correct, the Town would be powerless to prevent garden

apartments from springing up all over its C-3 zones, even though that zone is

intended for retail/office buildings.

More time and effort could be expended reviewing each of the conditional

uses granted in the past to explore Middlecap’s disparate impact claim. But given

45
Pl.’s Opening Br. at 38.
46
Id. at 39.
14
the constraints of certiorari relief, such wrongs would have to appear on the face of

the record. They do not. Even with the expanded exhibits Middlecap inserted into

its briefing, prior decisions of the Zoning and Planning Commission regarding other

similarly situated properties are not identified. This claim cannot be reviewed.

I. Gibson and Arbitrary & Capricious Review

A. Gibson v. Sussex

In its briefing, Middlecap asks this Court to find that the Council’s vote was

“arbitrary, capricious, and otherwise contrary to the law.” 47 This argument stems
46F

from a Chancery Court case that applied an “arbitrary and capricious” standard in a

conditional use permit case from Sussex County. Because of Middlecap’s insistence

that arbitrary and capricious is the proper standard, we will examine the case of

Gibson v. Sussex County Council 48 in detail.
4 F

The Gibsons were a Wilmington couple who purchased land on Lake

Comegys in Sussex County. 49 48F The land was zoned M-3 – medium density

residential. Because their plan was for three multi-family unit townhomes, they

needed a conditional use permit from the County to proceed. 50 49F

47
Pl.’s Opening Br. at 17.
48
Gibson v. Sussex Cnty. Council, 877 A.2d 54 (Del. Ch. 2005).
49
Id. at 56.
50
Id.
15
The Gibsons first presented their plan to the Sussex County Planning and

Zoning Commission, which gave its approval. 51 But as in Middletown, the Planning
50F

Commission’s approval is only advisory, and the elected County Council has the

final word on conditional use applications. When the Gibsons’ application was

presented to the Council, it was met with vocal public objections, not the least of

which were from other homeowners on Lake Comegys. Council voted against the

permit. 52 The Gibsons filed their lawsuit in the Court of Chancery. Discovery was
51F

taken and cross motions for summary judgment came before the Court.

In the Gibsons’ case, the Zoning and Planning Commission approved of the

permit and the County Council essentially vetoed that decision with a “no” vote.

The Vice Chancellor held that the Zoning and Planning Commission’s decision was

supported by substantial evidence, and therefore the Council bore the burden of

proving its decision was not arbitrary and capricious. 53
52F

From here, the Court took a deep dive into the record. The Council members

voiced a total of eight different objections to the plan and the Court dutifully went

through all eight, discounting and repudiating each of them, before holding that the

Council’s denial was arbitrary and capricious. 5453F

51
Id.
52
Id.
53
Id.
54
Id. at 68-79.
16
A salient feature of the Gibson opinion was the Court’s belief that the Council

had “bent to the wind in the room” and weighed too heavily the opinions of nearby

homeowners that the Gibsons’ project would interfere with their enjoyment of their

own homes. “What is not acceptable is for Council to retain general rules that permit

some residents . . . to burden the environment, roads, and water quality while

reserving to itself the right to pick out those to whom the same privilege should be

denied.” 55 While not articulated in so many words, the specter of disparate treatment
54F

of the Gibsons looms large over the Gibson opinion.

Sitting as it did as a court of equity, the Vice Chancellor not only reversed the

County Council’s denial of a conditional use permit, but also disallowed further

proceedings and directed that Council issue the permit. 56 55F

B. The Applicability of Gibson

Middlecap urges the Court to follow Gibson, find that Middletown’s vote was

arbitrary and capricious, and grant it a conditional use permit. 57 The Court cannot
56F

agree that “arbitrary and capricious” is an appropriate framework for analysis in a

certiorari case. Gibson calls on a long line of Chancery cases applying arbitrary and

55
Id. at 78.
56
Id. at 79-80.
57
Pl.’s Opening Br. at 14.
17
capricious review to Chancery zoning decisions, so some historical context is

necessary.

The arbitrary and capricious standard of review was developed by Chancery

in the exercise of its exclusive jurisdiction over zoning disputes as actions that were

“legislative in nature.” One of the earliest articulations of the standard can be found

in McQuail v. Shell Oil, where the Supreme Court said that “the judgment of the

Levy Court on zoning matters is presumed to be reasonable and valid and beyond

court interference unless shown to be arbitrary, unreasonable, or capricious. The

burden of rebutting this presumption and establishing such arbitrariness is imposed

on the plaintiffs in this action.” 5857F

Thus, arbitrary and capricious review became a remedy to be exercised by

Chancery Court reviewing legislative zoning acts. 59 The important distinction then,
8F

as discussed thoroughly in Delta Eta, is whether the act for which review is sought

is legislative or judicial in nature. Delta Eta distinguished between area-wide zoning

and conditional use permits. When a zoning ordinance has provided for uses that

58
McQuail v. Shell Oil Co., 183 A.2d 572, 579 (1962) (emphasis added).
59
See Shellburne, Inc. v. Roberts, 224 A.2d 250, 253 (1966) (stating that the proper judicial
review of the Levy Court’s legislative act of rezoning was arbitrary and capricious); Willdel
Realty, Inc. v. New Castle Cnty., 281 A.2d 612, 614 (Del. 1971) (“Zoning is a legislative action
presumed to be valid unless clearly shown to be arbitrary and capricious because not reasonably
related to the public health, safety, or welfare.”); Steen v. Cnty. Council of Sussex Cnty., 576 A.2d
642, 648 (Del. Ch. 1989) (“This Court’s role in reviewing a zoning decision of the County
Counsil is limited to a review of the record to ascertain . . . that the decision is supported by
substantial evidence and that it is not arbitrary, capricious or an abuse of discretion.”).
18
are permissible, but not guaranteed as a matter of right, the decision whether to

permit the use is quasi-judicial, not legislative. 60 Because the decision is not
59F

legislative, resort to the arbitrary and capricious standard of review is inappropriate.

Shortly after Delta Eta, the Delaware Supreme Court decided Citizens Against

Solar Pollution v. Kent County. 61 60F It held that a Levy Court’s approval of a

conditional use permit for a solar panel farm was a quasi-judicial act for which the

adequate remedy at law, in accordance with “Delta Eta’s thorough analysis,” was

writ of certiorari review. 62
61F

Finally, resort to Chancery’s arbitrary and capricious standard for reviewing

legislative/zoning decisions is inconsistent with the limitations on the record for

review in a certiorari case. To determine if Council’s actions were “arbitrary and

capricious” will always require an examination of all of the relevant evidence before

the Council and an analysis of its stated reasons for acting. Indeed, Gibson serves

as a good example of the depth of inquiry required. 63 Mindful of the Supreme
6 F

Court’s circumscription of the record for review, and the General Assembly’s

60
By contrast, if the zoning ordinance allows the municipal body to decide that the special use
will be permitted in all zones indiscriminately, then it may effectively be a rezoning which is
legislative. See Delta Eta, 2023 WL 2982180, at *13 (citing Bay Colony Ltd. P'ship v. Cnty.
Council (Bay Colony I), 1984 WL 159382, at *3 (Del. Ch. Feb. 1, 1984); Gibson v. Sussex Cnty.
Council, 877 A.2d 54, 65 (Del. Ch. 2005)).
61
339 A.3d 1229, 2025 WL 751102 (Del. 2025).
62
Id. at *2.
63
Gibson v. Sussex Cnty. Council, 877 A.2d 54, 67 (Del. Ch. 2005).
19
apparent wish that a “quasi-judicial” decision made by a legislative body should

receive only limited review, the Court concludes that there is no room for an

“arbitrary and capricious” standard of review for conditional use permit litigation in

Superior Court. 6463F

CONCLUSION

For all the foregoing reasons, the decision of the Middletown Town Council

is AFFIRMED and Middlecap’s Complaint in certiorari must be DISMISSED.

IT IS SO ORDERED.

/s/ Charles E. Butler
Charles E. Butler, Resident Judge

64
Delta Eta similarly recognized the limited nature of certiorari review, calling it “less rigorous”
and “a more deferential standard of review that would otherwise be applied if it were properly
seeking review by [Chancery] Court.” Delta Eta, 2023 WL 2982180, at *15.
20