Delaware State News
DOVER — Vice Chancellor John W. Noble has rejected a plan to use a vacant lot in a housing subdivision near Magnolia as the entrance to a proposed new campus of Dover Montessori Country Day Academy.
In an opinion made public Tuesday, Vice Chancellor Noble noted that when the subdivision was created about two decades ago, lots there were subjected to a restriction that they be used for "residential, single-family purposes only."
The restriction "has a plain meaning, at least in this context," he wrote. "The school, a for-profit venture, is not residential in nature. Access to it is a critical element of the venture’s success and, thus, is part of that endeavor."
The private school would move from its current location near Dover Air Force Base to a property off Plaindealing Road, north of Magnolia. It would serve preschool, kindergarten and elementary-school students.
The school site itself is not subject to the residential-only restriction, but its sole entrance would be through the lot, where the restriction applies.
Attorney Gregory A. Morris, who represents the school, the owners of the lot and the father-daughter team of William M. Simpson and Margaret Kling, who propose to build the new school, said Tuesday afternoon that he has yet to meet with his clients about the decision.
Ms. Kling, the school’s director, could not be reached for comment.
Kent County Levy Court in November approved a site plan for the school, despite concerns by neighbors Richard S. and Sherry K. Pues about the possibility that horses on their horse farm next to the school site might be disturbed by schoolchildren trying to play with them. The couple, represented by attorney Alexander W. Funk, took the matter to Court of Chancery in February.
The school officials and the owners of the affected lot contended the couple was not truly motivated by the proposed use of the lot, but were using it to keep the school from being built, Vice Chancellor Noble wrote. He conceded that that "may well be right," but he added that Mr. and Mrs. Pues are entitled to enforce the restriction.
"Requiring courts resolving this type of dispute to figure out ‘the real reason’ why the action was filed would not likely be a productive effort," he stated. "In addition, as (Mr. and Mrs. Pues) have argued, a failure to enforce a restrictive covenant may jeopardize future enforcement," resulting in other restricted lots being used as entrances to land where commercial enterprises would be established.
