OPINION
I. Introduction
Plaintiff New Castle County (the “County”) moves for partial summary judgment, asking the Court to uphold alleged land use restrictions created by two agreements — a 1964 agreement and a 1969
The County first filed a Complaint in November 2010 in the Court of Chancery.
II. Factual and Procedural Background
In 1964 the four original owners
In 1969 the original contracting parties executed an amendment to the 1964 agreement (the “1969 Amendatory Agreement”).
Whereas the 1964 Agreement had contemplated a par-three golf course, the 1969 Amendatory Agreement required the “set aside and hold[ing] throughout the course of development of the entire SUBJECT ACREAGE the following land use[ ] ... [ojpen spaces [] including 130 acres set aside for an 18-hole golf course....”
Nearly two years later, in September 1971, the then-owners recorded a plan for Pike Creek Golf Course, which established “private open space ... in accordance with the [1964] agreement as amended,” and which again also designated the County as a third-party beneficiary.
In 1970, the owners had prepared an “Approved Tentative Master Plan Pike Creek Valley,”
The Court’s conditional writ ordered the Department of Planning to carry out its statutory duty to review the Hogan Drive Plan “as to content.”
This plan has been reviewed as to content and compliance with the New Castle County Subdivision and Land Development Regulations. The Department of Planning has not reviewed the Plan as to compliance with the 1964 Agreement or the 1969 Amendatory Agreement of record pertaining to the development of the Pike Creek Valley Community or any other applicable agreement per letter opinion of the Superior Court dated 12/30/81 re: G.R.G. Realty vs. New Castle County 81M-MR-18.
The Hogan Drive Plan was recorded thereafter, and each of the twenty lots assigned a tax parcel number,
Three Little Bakers, Inc. (“Three Little Bakers”) purchased the Golf Course from G.R.G. in December 1982.
The 1985 Declaration was recorded, and the County rezoned a portion of the Three Little Bakers’ 1 and.
In 2008, prior to the sale of the land, the title to the Three Little Bakers property was divided in order to separate the Golf Course from the other operations on the land.
On November 9, 2010, before the County took action on the appeal, New Castle County Council adopted Resolution 10-197, which authorized legal action against PCRS and asserted the County’s main contention that the Master Plan prohibited any development on the entirety of the Golf Court as it was configured, including the Hogan Drive lots.
PCRS countered with a petition for a writ of mandamus filed in Superior Court on December 1, 2010, seeking a court order directing the County to review the engineering plans and applications. Nearly a week later, the County Council adopted Resolution 10-217,
III. Prior Judicial Proceedings
The development of Pike Creek Valley has a tortured legal history. The interpretation of the various agreements and the Pike Creek Valley Master Plan has been the subject of several notable decisions in the nearly 50 years since the 1964 Agreement was first memorialized. The first such decision was issued by the Delaware Supreme Court in 1975. In New Castle County v. Richeson,
Six years later, the Superior Court addressed a different issue: whether the Court could compel the Department of Planning to review and act on G.R.G.’s plan to subdivide a portion of what was then approximately 199 acres on which the Golf Course was situated.
In Regency Group, Inc. v. New Castle County, the Court of Chancery addressed yet another Pike Creek Valley development issue: whether a designation on the Master Plan map alone creates a restrictive covenant.
The acreage set aside for commercial use on the updated Master Plan and rezoned for that purpose; whether the classifications be G-l, C-2, R-C, or C-3, shall be utilized for the land uses and purposes described in the zoning Code of New Castle County as the same now is or may hereafter be amended to restate such uses; provided, however, and as the only exception to the foregoing, the area shown on the updated Master Plan set aside for a par S golf course if zoned commercial shall only be used for a recreational purpose.92
IV. Standard of Review
This Court cannot grant either party’s motion for summary judgment “unless no genuine issue of material fact exists and one of the parties is entitled to judgment as a matter of law.”
Where cross-motions for summary judgment are filed and neither party argues the existence of a genuine issue of material fact, “the Court shall deem the motions to be the equivalent of a stipulation for decision on the. merits based on the record submitted with the motions.”
V. Discussion
A. The Law of the Case
New Castle County argues that the Court’s oral rulings of November 16, 2011 should not be disturbed, while PCRS argues that the Court should reconsider those 2011 bench rulings. A successor judge overruling a decision of a predecessor judge of the same Court is strongly disfavored.
Based on the merits of the arguments presented to the Court in November 2011 and in subsequent briefing, the Court adopts the oral rulings of the November 2011 hearing in all instances except in those extraordinary circumstances where justice demands revisiting the merits of the parties’ claims. This is the Court’s decision on summary judgment in the Chancery Action and final judgment in the Mandamus Action, as those present the issues that the parties have agreed are ripe for decision at this point.
B. The Master Plan created a restrictive covenant on the Golf Course that runs with the land.
Courts generally favor the free use of land.
“[R]estrictive covenants may be enforced against a purchaser only if he or she had notice, either actual or constructive, of their existence.”
The County argues the Master Plan establishes the original owners’ clear and unambiguous intent to create restrictions that run with the land. Thus the County contends it is entitled to summary judgment on this issue. PCRS opposes the County’s interpretation of the Master Plan as demonstrating a clear intent to create enforceable restrictions that run with the land. Because the issue of intent is disputed, PCRS contends, summary judgment is not warranted on those restrictions.
The purpose of the 1964 Agreement and 1969 Amendment was to memorialize a land-use plan across more than a thousand acres in Pike Creek Valley, in order to entice the County to approve the original owners’ multi-use community development plan. The Agreements evidence a clear intent by the original owners to balance residential and commercial construction with open and recreational space for the benefit of the County’s residents.
The 1964 and 1969 Agreements, by their plain and unambiguous language, also evidence the original owners’ clear intent to set aside, or dedicate, certain acreage as open space. Article 7 of the 1964 Agreement states: “DEVELOPER, its successors and assigns, will set aside and hold throughout the course of development of the entire SUBJECT ACREAGE the following land uses irrespective of the ultimate zoning of the SUBJECT ACREAGE: ... Open Spaces, 158.0 acres minimum.”
1. The Master Plan does not require PCRS to operate the Golf Course, but does preclude development on 130 acres of the set-aside open space.
The County argues that the 1969 Amendatory Agreement plainly requires operation of an 18-hole golf course on the set-aside open space.
So the two Agreements provide plainly that the “130 acres set aside for an 18-hole golf course”, or more precisely “the development of an 18-hole golf course”, was included among the “areas set aside for specific land uses.”
While the County argues that the Master Plan requires that the Golf Course, having been constructed, must remain in its constructed configuration and must remain in operation, no language from either the 1964 Agreement or the 1969 Amenda-tory Agreement supports such an assertion. The only requirement established by the Master Plan with respect to a golf course is that land be set aside for the development of such. Actual operation is not required by the Master Plan.
As such, the Court cannot say that the restrictive covenant, itself, prevents PCRS from constructing the proposed Hogan and Terraces developments. At the same time, the Court cannot speak to the other procedural disqualifications that may prevent the projects from moving forward. The restrictive covenant does, however, require PCRS to demonstrate how their planned development projects would conform to the Master Plan, and does require PCRS to set aside a minimum of 130 acres of land which may feasibly be developed as an 18-hole golf course.
The Agreements require PCRS to set aside and dedicate 130 acres minimum, but the Agreements do not mandate that the Golf Course operate as a going concern.
The record supports the County’s motion for summary judgment, so PCRS may not “rest upon [ ] mere allegations or denials of the [Countyj’s pleadings,” but must demonstrate to the Court where there are genuine issues of material fact.
The restriction requires a 130-acre set-aside. In order to meet this restriction PCRS must, of the land at issue here, leave set aside no less than 130 acres for the specific use of development of an 18-hole golf course; for that restriction to not be “illusory or meaningless,”
2. By collecting taxes on the Hogan Drive lots as if subject to development, the County waived its right to object to PCRS’ proposed Hogan Drive Plan.
The restriction on PCRS’ use and development of the subject land is limited to the set-aside of 130 acres for the specific use of development of an 18-hole golf course. But PCRS’ landholding exceeds 130 acres. The proposed Hogan Drive development would not cause the acreage set aside for such specific use to fall below the minimum. The fact that the County now wants the acreage set aside to include the Hogan Drive parcels cannot control here. PCRS argues that the County’s fail
While the County contends any waiver must be a “voluntary and intentional relinquishment of a known right,” it also does not dispute that the Hogan Drive lots have been taxed for approximately thirty years based on their value as buildable townhouse sites and retained their residential zoning classification as part of a 1998 rezoning of the entire County. Moreover, the County took no action to challenge the 1982 recorded subdivision plan for the Hogan Drive Townhouse Addition.
Equitable principles do not permit the County to reap the benefit of thirty years of tax income from Hogan Drive’s develo-pable or buildable parcels, only to now argue those same parcels must be retained as open space. The approximately 1.4 acres of proposed development may be accomplished without contravening the golf course restriction created by the Master Plan.
3. The Court will not defer to the County’s interpretation of the scope of the restrictive covenant created by the Master Plan.
The County argues that the Court should not substitute its judgment for that of the County Council, as expressed in Resolution 10-217, adopted December 2010. Resolution 10-217 reads, “WHEREAS, under applicable covenants, agreements,, dedications, and plans enforceable by the County, the current owners plan to build in violation [of] the requirement that an 18-hole golf course continue on the property in its current form and also violates the concepts of the applicable [M]aster [P]lan.”
The several Delaware decisions dealing with the Master Plan demonstrate that when the scope of a restriction flowing therefrom is questioned, the determination is a judicial function.
4. The doctrine of merger by deed does not serve to extinguish the golf course restriction.
Despite the restrictive covenants described in the Master Plan, subsequent deeds of sale for the subject Golf Course did not explicitly incorporate those restrictions. PCRS argues the doctrine of merger, therefore, necessarily extinguishes any restriction on the Golf Course this Court may find, because, “as a general rule, after a property has been conveyed to a purchaser, the rights of the parties are to be determined by covenants of the deed.”
Under the doctrine of merger, any “agreements [ are] said to merge with the deed and become void.”
To apply the merger doctrine in the instant case would be to summarily divest the County of its third-party beneficiary status as granted in the Master Plan and multiple subsequent recorded plans for the Golf Course, which contain language incorporating the Master Plan.
Because the Master Plan creates an enforceable limited restriction regarding the land on which the Golf Course was situated, because subsequent recorded plans demonstrate subsequent owners’ intention to dedicate “Private Open Space” in accordance with the Master Plan and for the benefit of the County, and because it had knowledge of the restriction, PCRS cannot seek refuge in the doctrine of merger to extinguish the 130-acre restriction created by the Master Plan.
The County’s position is that an implied servitude requires 177 acres, the size of the Golf Course immediately prior to its closure, rather than the 130 acres explicitly reserved in the Master Plan, be set aside. PCRS argues against the existence of the implied servitude and the County’s standing to raise such a claim. The County’s claim is predicated upon the affidavits of several Pike Creek Valley residents who claim to have purchased property and/or paid lot premiums in reliance upon both oral representations of developers and upon the Distributed Master Plan, which showed the Golf Course abutting certain residential properties.
These residents, reacting to PCRS’ claim that the County lacks standing, filed a Motion to Intervene in the instant action on November 14, 2011, two days prior to the scheduled oral argument on the real parties’ cross-motions for summary judgment.
If the Court were to dismiss the County’s implied servitude claim on standing alone, the Interested Parties wish to assert the claim so it may be decided upon the merits. PCRS opposes the Interested Parties’ motion, and further contends that the Court should only consider the motion if it considers PCRS’ pending Motion for Defendant Class Certification.
No intervention will be permitted, because the application to intervene was untimely and the claim the Interested Parties wish to “echo” is futile. Pursuant to Chancery Court Rule 24, a party will be permitted to intervene as a matter of right either where there is an unconditional statutory right to do so, or where “disposition of the action” would “impair or impede [an] applicant’s ability to protect” his or her interest “relating to the property ... which is the subject of the action.”
Should a party fail to meet the test for intervention of right, the Court may still permit intervention where the claim of the would-be intervener shares common questions of law or fact with the action.
The Interested Parties suggest that the Court should allow them to intervene in the instant action because this Court’s disposition of the “issue,” — namely whether the implied servitude which the County, as one of its many arguments, claims to exist and operate as a ban to PCRS’ development — may “impair or impede the [Interested Parties’] ability to protect their interests to preserve the Golf Course, which abuts their residential properties and directly enhances their property values and qualities] of life.”
The Interested Parties have failed to demonstrate that the disposition of the issue will “impair or impede” their alleged right to pursue a claim based on the theory of implied servitude. In their supporting Motion to Intervene brief, the Interested Parties predict that PCRS intends to assert the County lacks standing to block PCRS’ development plan based on the creation of an implied servitude, or common scheme of development, that was established between the original owners and homebuyers at the time the Golf Course and the land surrounding it was first developed.
Even where intervention of right is not appropriate, the Court in its discretion may permit a party to intervene where the party’s “claim or defense and the main action have a question of law or fact in common.”
Assuming arguendo that the County does have standing to pursue the implied servitude claim, the County’s claim and the Interested Parties’ claim would each be premised upon the common question of whether an implied servitude prevents PCRS from developing the Golf Course. That leaves the Court to decide only whether allowing the Interested Parties to intervene would cause undue delay or otherwise prejudice PCRS.
At the time the Interested Parties filed their Motion to Intervene, the existing parties had fully briefed the cross-motions for summary judgment, and argument was imminent.
While PCRS is indeed engaged in the process of defending the implied servitude claim raised by the County, the additional discovery and preparation required to effectively defend the Interested Parties’ claim would clearly prejudice PCRS and unduly extend what has already been a prolonged process.
Allowing the Interested Parties’ intervention is neither required nor advisable. Thus, the Court, assumes without deciding that the County has standing to assert the implied servitude claim, and, even considering the additional facts supplied by the Interested Parties’ affidavits, finds the claim without merit.
Under Delaware law, a servitude may be established in one of two ways: (1) “by explicit written language of the intent of the grantor and the grantee to create a restrictive covenant in the deed ... or another recorded document;” or (2) “by implication as is usually ascertained from a common plan of development.”
[W]here an owner of a tract of land lays it out in building lots, makes a plot showing a general building scheme, and sells to various purchasers in accordance therewith, inserting the same or similar covenants in all the deeds, it seems that an intent to benefit all the land in the tract and to induce purchases thereby may be inferred.182
Implied servitudes are disfavored by the Court, but necessarily negotiate the “tension between protecting neighboring property owners’ expectations for their community and the rights of landowners to use their property as they may lawfully choose.”
The County would argue (as the Interested Parties would argue) that if the 1964 Agreement and 1969 Amendatory Agreement alone created only an actual restriction over 130 acres of the Golf Course, then the theory of implied servitude supports expanding that express restriction to the entire 177 acres on which the Golf Course was last situated. Working through the three-part test relied upon by Delaware Courts, neither party would disagree that an alleged expanded golf course restriction would touch and concern the land. The remaining issues therefore, are whether the covenanting parties intended a more expansive restriction and whether the taking party, PCRS, had actual or constructive notice that the restriction was greater than what had been memorialized in the Master Plan. As far as the Court can ascertain, the County argues a corn-mon plan of development provides both evidence of the parties’ intent to restrict a land area greater than the 180 acres explicitly described in the 1969 Amendatory Agreement, and constructive notice to PCRS that an expanded restriction exists.
There are several problems with the County’s claim that an implied servitude, derived from a common plan of development, requires PCRS to set aside a plot of land for the Golf Course more than 25 percent larger than that which is explicitly required by the Master Plan; it is necessary to address two of those issues here. First the common plan or scheme of development is not applicable to the case at bar. The equitable doctrine operates to enforce the express scope of a written restriction which has been unintentionally omitted from one of several similarly-situated deeds.
Second, even if a common plan or scheme theory was applicable here, the
By the sheer fact that the several subdivided communities surrounding the Golf Course exclusively allow residential construction, those properties, some of which are held by the Interested Parties, do not contain reciprocal servitudes with the Golf Course. The Golf Course is a separate land entity not included in the Interested Parties’ respective subdivisions.
Moreover, the Distributed Master Plan, or other subsequently recorded plats did not amend the express 130-acre restriction.
Since the Master Plan created the 130-acre restriction, owners have altered the Golf Course acreage multiple times, resulting in a decrease in acreage from the original 199 ± acres in 1971.
Thus, even assuming the County does have standing to assert the common plan of development claim on behalf of the Interested Parties, the claim ultimately fails. “At the core of the common plan doctrine is the intent of the parties.”
C. PCRS has not met its burden of demonstrating that mandamus should lie here.
“Mandamus is an extraordinary writ used to compel performance of a duty by an administrative agency,” public body, or public official
PCRS wishes the Court to issue a writ of mandamus directing the County to approve the previously submitted plans for the Terraces and the Hogan Drive lots. To compel PCRS to undergo the Restriction Change process as required by UDC § 40.31.13, PCRS argues, would be futile.
Failure to meet any of the several conditions precedent to issuance of a writ of mandamus renders the grant of such extraordinary relief inappropriate.
Under the exhaustion doctrine, “where a remedy before an administrative agency is provided, relief must be sought by exhausting this remedy before the courts will either review any action by the agency or provide an independent remedy.”
PCRS faces a high burden to demonstrate futility.
The Restriction Change Statute requires petitioners, such as PCRS, who wish to alter the restrictions to which the County was a party or a beneficiary, to submit to the statutory Restriction Change
PCRS’ second failure is its inability to demonstrate that the County and its administrative bodies have arbitrarily failed or refused to carry out its legally-imposed duty. The process of its Hogan Drive and Terraces application described below make this manifest. Lastly, the Court is not convinced that PCRS’ complaints, at this point, implicate “a clear legal right to the performance of a non-discretionary duty.”
D. PCRS cannot avoid the applicable County approval processes via the presumption statute, res judicata, collateral estoppel, or by claiming violations of constitutional guarantees.
1. The presumption statute does not apply and will not serve as a mechanism for automatic approval of the subdivision plan submitted on October 14, 2010.
Under Delaware Law, for any matter requiring submission to the County Department of Land Use or the County Planning Board, “approval shall be presumed,” unless either the Department or Planning Board acts within 45 days.
On June 25, 2010, the Land Use Department received an engineering submission for the Hogan Drive Townhouse Addition.
Regardless of whether PCRS’ appeal of the Land Use Department’s September 23, 2010 letter truly divested it of jurisdiction to review the plans for technical compliance, the Department reasonably concluded that, “the ultimate design of the subdivision depended on the outcome of the appeal before the Planning Board.”
2. Principles of res judicata and collateral estoppel do not require this Court to issue a writ of mandamus ordering the Department and the Planning Board to review the contents of PCRS’ October 14, 2010 submission.
PCRS argues that principles of res judicata
This Court’s decision in Regency is clearly limited in scope to the “particular plaintiff.”
Nor can G.R.G. Realty Co. v. New Castle County,
3. PCRS’ constitutional claims are not ripe for adjudication at this stage.
PCRS raises numerous under-developed arguments claiming the County’s position offends constitutional principles governing separation of powers, delegation of powers, due process, equal protection, and private property rights. Without a full record on the multitude of ancillary constitutional claims PCRS raises in its briefs, the Court is ill-prepared to address each in turn. Moreover, the constitutional claims are not yet ripe for, as discussed above, PCRS must exhaust its administrative remedies before bringing its grievance to the Court.
VI. Conclusion
For the reasons stated above: the Interested Parties’ Motion to Intervene is DENIED; the County’s Motion for Summary Judgment is GRANTED, in PART; PCRS’ Motion for Summary Judgment is GRANTED, in PART; and the Petition for a Writ of Mandamus is DISMISSED. PCRS is required to follow the Restriction Change Statute where applicable if it wishes to modify the restrictive covenant found by the Court to exist and described above. That restriction cannot be applied to the Hogan Drive Plan. The County and its regulatory and administrative bodies shall not unnecessarily delay review and approval of the Hogan Drive subdivision plans if such are otherwise in conformity
IT IS SO ORDERED.
. For the purposes of this decision, the approximately 177-acre area at issue is referred to as the "Golf Course.”
. County’s Mot. for Partial Summary Judgment (C.A. No. 5969 Docket Item ("D.I.") 49), at 1 [hereinafter N CCo Mot.].
. Id.
. PCRS Mot. for Partial Summary Judgment (D.I. 52), at 3 [hereinafter PCRS Mot.].
. Judge John A. Parkins, Jr., specially appointed Vice Chancellor, presiding. Previously the Superior Court had consolidated the current case, C.A. No. 5969, with Pike Creek Recreational Services, LLC v. New Castle County, C.A. No. N 10M-12-005, for all purposes. See Pike Creek Recreational Services v. New Castle County, Del.Super., C.A. No. 10M-12-005, Parkins, J. (Oct. 11, 2011) (ORDER) (Docket Item ("D.I.* ”) 2), at 1. On March 25, 2013, the President Judge specially re-assigned C.A. No. N 10M-12-005 to the undersigned "for all purposes until final disposition." Memorandum, Mar. 25, 2013 (D.I.* 11), at 1. And on April 8, 2013 the undersigned was specially appointed a Vice Chancellor by the Chief Justice to preside over the consolidated matters in the Court of Chancery pursuant to Del. Const. Art. II, § 13(2). New Castle County v. Pike Creek Recreational Services, LLC, Del.Supr., C.A. No. 5969, Steele, C.J. (Apr. 8, 2013) (ORDER) (D.I. 77), at 1.
. D.I. 1. The County subsequently filed a First Amended Complaint (D.I. 5) and a Second Amended Complaint (D.I. 11).
. D.I. 11 at 1-2.
. C.A. N10M-12-005.
. PCRS Mot. at 1.
. C.A. No. 5969.
. New Castle County v. Pike Creek Recreational Services, Del.Super., C.A. No. N10M-12-005, Parkins, J. (Oct. 11, 2011) (ORDER) (D.I.* 2), at 1.
.Frank A. Robino, Inc., Luigi Fortunato, Inc., Franklin Associates, Inc., and Joseph P. Johnson, Inc.
. Ex. A to NCCo Op. Brf. at 1 [hereinafter "1964 Agreement”]. A "planned unit development” may include "varying densities of residential, light industrial, office research and commercial uses.” Delaware Racing Ass'n v. McMahon, 340 A.2d 837, 839 (Del. 1975).
. See Ex. E to NCCo Op. Brf. at 1-2.
. Id. at 2.
. The Agreement conveyed the entirety of 1,000+ acres from the four original owners trading as Mill Creek Ventures to only one, Frank A. Robi no, Inc., for the sum of $10.00. 1964 Agreement at art. 2. The vast majority of the document, evidencing its obvious purpose, was to set forth how that land would and could be developed, who would and could have say over that development, and that it all would become effective "if, but only” if the Levy Court acted favorably toward the then-pending zoning application that would allow development of the planned unit development. Id.
. 1964 Agreement at art. 2-3 ("The Developer does hereby, for itself, its successors, transferees and assigns, impose the restrictions, limitations and covenants, with respect to use and occupancy hereinafter set forth in detail upon the land herein above described ... being the SUBJECT ACREAGE.”). PCRS has argued that the 1964 Agreement constitutes an illegal zoning by contract. See Hartman v. Buckson, 467 A.2d 694, 700 (Del.Ch.1983) (compromise agreement between developer and town council was "an invalid ultra vires exercise of municipal authority”). But see Wilmington Sixth Dist. Cmty. Comm. v. Petti-naro Enter., 1988 WL 116496, at *4 (Del. Ch. Oct. 27, 1988) ("Contract zoning is usually distinguished from conditional zoning by a finding that in contract zoning, there is a bilateral agreement committing the zoning authority to a legally binding promise while in conditional zoning the zoning authority does not legally bind itself to rezone.”) (assuming without deciding that conditional zoning is legal in Delaware). The County was not a party to the 1964 Agreement, nor did the 1964 Agreement bind the County to rezone the land; the 1964 Agreement merely establishes a scheme of voluntary restrictions which were conditioned upon the County's passing a zoning modification petition. 1964 Agreement at art. 3.
. 1964 Agreement at art. 3 ("Said restrictions shall be for the benefit of the parties hereto and for the benefit of the Levy Court of New Castle County, Delaware, or any governmental body which may hereafter have final zoning jurisdiction over the SUBJECT ACREAGE....”).
. Id. at art. 5 ("[T]he LEVY COURT [may] instructf] its County Building Inspector to refuse to issue a building permit if the issuance of such permit would violate ... any of the terms and provisions of this agreement.”).
. Id. at art. 3, art. 5 ("The commitments and promises of the Developer to the Levy Court of New Castle County, shall inure to the benefit of and be enforceable by the Levy Court of New Castle County, or any successor organization ... which may hereafter be the governmental body having final jurisdiction over the subject acreage.... ”).
. Id. at art. 10; see also id. at art. 12 ("[A]s the only exception to the foregoing, the area shown on the updated master plan set aside for a par three golf course if zoned commercial shall only be used for a recreational purpose.”).
. Id. at art. 10.
. See id. at pp. 1-12 (the 1964 Agreement was retrieved from the Recorder of Deeds). Between 1964 and 1969, several zoning adjustments were made that did not require an amendment to the 1964 Agreement. Second Amended Complaint at ¶ 25. During that same 5-year time period, the owners developed approximately 265 acres of the "SUBJECT ACREAGE,” i.e. PikeCreek Valley. Id. at ¶ 26.
. Ex. B. to NCCo Op. Brf. [hereinafter "1969 Amendatory Agreement”].
. Id. at p. 2.
. Id. ("FRANKLIN ASSOCIATES, INC., changed to LEON N. WEINER AND ASSOCIATES, INC., and JOSEPH P. JOHNSON, INC., to PIKECREEK, INC.”).
. Id. The new acreage estimate adjusted the original based on a subsequent and more thorough survey and increased the overall acreage to include six additional parcels purchased after the owners executed the 1964 Agreement. Id.
. Id. atp. 1.
. Id. at art. 2 (The "updated tentative comprehensive master plan” was "subject to reasonable and beneficial variations and changes to be approved by the New Castle County Council in a ... zoning proceeding.”).
. Id. at art. 3 (amending Article 7 of the 1964 Agreement), art. 7 (amending Article 10 of the 1964 Agreement), art. 9 (amending Article 12 of the 1964 Agreement).
. Id. at art. 3 (amending Article 7 of the 1964 Agreement).
. Id. at art. 7 (the Dep’t of Planning is now known as the Dep't of Land Use).
. See Ordinance No. 69-75. Appendix in Support of New Castle County's Proposed Findings of Fact and Conclusions of Law, at 21-22 [hereinafter A_]. The County Council relied upon the 1969 Amendatory Agreement in approving the zoning changes. Recommendation on Proposed Ordinance 7-8-69-6-C, Nov. 18, 1969. [A54],
. Nevertheless, the 1969 Amendatory Agreement was never recorded. See NCCo Proposed Findings of Fact and Conclusions of Law, June 11, 2013, at ¶ 10.
. Microfilm 1845, Sept. 1971. [A 73].
. Notice of Decision re: Application 2610-A, Oct. 2, 1970. Ex. D. to Second Amended Complaint.
. Deed, March 2, 1976. Ex. H to Aff. of A. Kimberly Hoffman, Aug. 29, 2011.
. See [A334],
. See, e.g., Mot. to Intervene (D.I. 67), at ¶ 9.
. Id. Several residents of Pike Creek Valley (the "Interested Parties”) have moved to intervene in this action, claiming they relied on the representations made in the Distributed Master Plan, and therefore have standing to assert specific claims to block PCRS from developing the Golf Course. Mot. to Intervene (D.I. 67), at ¶¶ 10-14; see, Part V.B.5., infra.
. Microfilm 2456, Nov. 1973 (A 74); Microfilm 4737, Jan. 1978 (A 75); Microfilm 5514, Mar.l980(A76); see also PCRS Supp. Letter, Nov. 23, 2011 (D.I. 68) (and accompanying exhibits).
. The subsequent plans were filed in 1989, 1993, 2007, and 2009. See also PCRS Supp.
. G.R.G. Realty Co. v. New Castle County, 1981 WL 697909 (Del. Super Ct. Dec. 30, 1981) .See Part III, infra.
. G.R.G. Realty, 1981 WL 697909, at * 1.
. Id. at * 2.
. Id. at * 3.
. See Annual Billing Statements, New Castle County, Local County and School Taxes. Ex. N to Aff. of A. Kimberly Hoffman, Aug. 29, 2011.
. Cty. Atty. Memorandum, Mar. 25, 1982. [A86],
. Resolution 82-092, Apr. 13, 1982. [A87-88]. The suit in question was Pike Creek Valley Civic League v. GRG Realty, C.A. No. 6768 (Del. Ch.). In the Resolution, the County conceded that the question of whether the then-proposed Golf Course development plan violated the Master Plan was "a question of law which must be resolved by the courts....” Id. [A88].
. 1985 Declaration, May 24, 1985. [A90],
. Id. [A89-103].
. Id. [A89].
. Id.
. Id. [A90],
. Resolution 08-131, July 8, 2008. [A181].
. See Deed-in-Lieu of Foreclosure, Apr. 15, 2008. [A 123].
. See Id.
. See Ex. A to Deed-in-Lieu of Foreclosure, Aug. 15, 2008 ("Excepting out from Parcel 1 that certain piece of land consisting of approximately 5.3 acres, conveyed to Pike Creek Healthcare Services LLC ... to be recorded separately.”). [A132],
. Id.
. See Recommendation Deed Restriction Change, May 20, 2008. [A 177-80],
. The County adopted the UDC on December 31, 1997. See NCCo Code Chapter 40. [A 118]. Section 40.31.130 applies to any deed restriction change request where "the County is either a party to or a beneficiary of the covenants created....” Id.
. See Recommendation Deed Restriction Change, May 20, 2008. [A179],
. Id.
. Resolution 08-131, July 8, 2008. [A181-83]; see Recommendation Deed Restriction Change, May 20, 2008. [A 177-80],
. Recommendation Deed Restriction Change, May 20, 2008 ("The proposed deed restrictions will have no effect on the 168.7-
. Including 130 townhouses, 42 semi-detached dwellings, 44 single family detached dwellings, and 72 condominiums. Dep't of Land Use Exploratory Sketch Plan Review Report, July 8, 2011. [A314].
. Id.
. See Dep’t of Land Use Letter, Sept. 23, 2010. [A303].
. Id. [A303-04].
. PCRS Letter re: Appeal from Land Use Dep’t Letter Dated Sept. 23, 2010, Oct. 13, 2010. [A305-09],
. Ex. A to Aff. of George O. Haggerty, Jr., Sept. 6, 2011. [A321],
. Appendix to PCRS Op. Brf. in Support of Pet. for Writ of Mandamus, Aug. 5, 2011, at 123-24. See D.I.* 1.
. Id.
. See Complaint (D.I. 1).
. Resolution No. 10-217, Dec. 14, 2010. [A310].
. NCCo Letter, Dec. 28, 2010. [A393-94],
. At a scheduling conference on July 29, 2011, the Court stayed proceedings in Pike Creek Recreational Services, LLC v. New Castle County, C.A. No. N11A-02-002 and Pike Creek
.On September 6, 2013, the Court delivered its order granting partial summary judgment on this issue. New Castle County v. Pike Creek Recreational Services, 77 A.3d 274, 277-78, 310 (Del.Ch.2013). The County timely filed a motion for reargument or clarification of that decision under Court of Chancery Rule 59(f). The Court has granted that motion, in part, now withdraws its September 6, 2013 Opinion, and hereby reissues this Opinion with clarifications. See New Castle County v. Pike Creek Recreational Services, 2013 WL 6904387, at *2 (Del. Ch. Dec. 30, 2013) (granting, in part, County’s motion for clarification).
. See Part V.B.5., infra.
. 347 A.2d 135 (Del.1975).
. Id. at 137 ("As the controversy in this case clearly arose out of interpretation and enforcement of the master plan, and did not in any way concern the substantive provision of the Subdivision Regulations, we hold that the dispute over conformity with the master plan was beyond the scope of the Board’s review power.”).
. G.R.G. Realty Co. v. New Castle County, 1981 WL 697909, at * 1 (Del.Super. Ct. Dec. 30, 1981).
. Id.
. Id. at *3; see Richeson, 347 A.2d at 136 ("[I]n addition to all controls exercised by the Regional Planning Commission ... under its existing statutory authority, practice and procedure, such commission shall also require that each plat conform to the concept of the updated master plan ...(quoting the 1964 Agreement)).
. G.R.G. Realty, 1981 WL 697909, at *3 ("[I]f a controversy arises out of a master plan and rights which may have been created by it, that controversy is 'beyond the scope of the Board’s review power.' " (quoting Richeson, 347 A.2d at 137)).
.Id.
. Id.
. Id. Consequently, the Court granted G.R.G.’s request for a writ of mandamus with certain conditions. Id. at *4.
. Regency Group, Inc. v. New Castle County, 1987 WL 1461610, at * 1 (Del. Ch. Dec. 3, 1987).
. Id.
. Id. at *2.
. Id. at * 1 (emphasis added); see 1964 Agreement at art. 12.
. Land that was also subject to the 1964 and 1969 Agreements was at the center of yet another matter in State v. The Regency Group, Inc., 598 A.2d 1123 (Del.Super.Ct.1991), but the Court in that opinion did not address the questions posed here.
. Emmons v. Hartford Underwriters Ins. Co., 697 A.2d 742, 745 (Del. 1997) (citing Playtex FP, Inc. v. Columbia Cas. Co., 622 A.2d 1074, 1076 (Del.Super.Ct.1992)); Viacom Int'l, Inc. v. Winshall, 2012 WL 3249620, at * 10 (Del. Ch. Aug. 9, 2012); see Ct. Ch. R. 56(c); Del.Super. Ct. Civ. R. 56.
. Moore v. Sizemore, 405 A.2d 679, 680 (Del. 1979).
. Ct. Ch. R. 56(e); see also Tanzer v. Int’l Gen. Indus., Inc., 402 A.2d 382, 385 (Del.Ch. 1979) ("If the movant puts in the record facts which, if undenied, entide him to summary judgment, the burden shifts to the defending party to dispute the facts by affidavit or proof of similar weight.”).
. Tanzer, 402 A.2d at 385 (citing Judah v. Del. Trust Co., 378 A.2d 624, 632 (Del.Super. Ct. 1977)).
. Ct. Ch. R. 56(h).
. Comet Sys., Inc. S'holders’ Agent v. MIVA, Inc., 980 A.2d 1024, 1029 (Del.Ch.2008).
. Fasciana v. Elec. Data Sys. Corp., 829 A.2d 160, 167 (Del.Ch.2003).
. Pathmark Stores, Inc. v. 3821 Associates, L.P., 663 A.2d 1189, 1191 (Del.Ch.1995) ("[Sjummary judgment may not be granted when the record indicates a material fact is in dispute or if it seems desirable to inquire more thoroughly into the facts in order to clarify the application of law to the circumstances.”).
. Frank G.W. v. Carol M.W., 457 A.2d 715, 718 (Del.1983) ("[W]e want to emphasize that we take a dim view of a successor judge in a
. Zirn v. VLI Corp., 1994 WL 548938, at *2 (Del. Ch. Sept. 23, 1994). This is especially true in Delaware where often more than one judge will preside over an individual case during its pendency. Frank G.W., 457 A.2d at 719 ("Considerations of courtesy and comity are particularly relevant in Delaware where it is not unusual for our Superior Court to have various judges involved at different stages of protracted cases. Lengthy Family Court cases and Court of Chancery cases not infrequently have similar dual or multi-judge participation.”).
. Gannett Co., Inc. v. Kanaga, 750 A.2d 1174, 1181 (Del.2000) (emphasis in original). Still, a successor judge should only depart from the general rule in "extraordinary circumstances.” Frank G.W., 457 A.2d at 719 (citing Wilmington Med. Ctr., Inc. v. Coleman, 298 A.2d 320, 322 (Del.Super.Ct.1972)).
. Frank G.W., 457 A.2d at 719.
. Gammons v. Kennett Park Development, 61 A.2d 391, 397 (Del.Ch.1948).
. Greylag 4 Maintenance Corp. v. Lynch-James, 2004 WL 2694905, at *5 (Del. Ch. Oct. 6, 2004); Gammons, 61 A.2d at 391.
. Greylag, 2004 WL 2694905, at * 5.
. Chambers v. Centerville Tract No. 2 Maintenance Corp., 1984 WL 19485, at *2 (Del. Ch. May 31, 1984).
. Mendenhall Village Single Homes Ass'n v. Harrington, 1993 WL 257377, at * 2 (Del. Ch. June 16, 1993).
. Regency Group, Inc. v. New Castle County, 1987 WL 1461610, at *1 (Del. Ch. Dec. 3, 1987).
. Mendenhall Village, 1993 WL 257377, at *2. Actual notice suggests the purchaser is aware of the deed restriction, while constructive notice suggests there is a properly recorded deed or other instrument that includes details of the restriction and which is readily accessible via a routine title search. Greylag, 2004 WL 2694905, at * 5.
. Alliegro v. Home Owners of Edgewood Hills, Inc., 122 A.2d 910, 912 (Del.Ch. 1956).
. Id. ("It is well established that restrictions in deeds will be construed strictly against a person who seeks to place such impediments in the way of the normal purchase and sale of land.”); Gammons v. Kennett Park Development, 61 A.2d 391, 397 (Del. Ch.1948) ("[T]he settled policy of the law ... favors ... placing] the burden of establishing the existence and the right to the benefit of a restriction upon him who asserts it.”).
. See e.g., 1964 Agreement at art. 7; 1969 Amendatory Agreement at art. 3 (amending Article 7 of the 1964 Agreement).
. This included the 130-acre golf course set-aside and 85 additional acres. See 1969 Amendatory Agreement at art. 3 (amending Article 7 of the 1964 Agreement), art. 7 (amending Article 10 of the 1964 Agreement).
. Monigle v. Darlington, 81 A.2d 129, 131 (Del.Ch.1951) (citing Gibson v. Main, 129 A. 259, 260 (Del.Ch. 1925); Daniels Gardens v. Hilyard, 49 A.2d 721, 722-23 (Del. Ch.1946) (same)).
. 1964 Agreement at art. 7.
. 1969 Amendatory Agreement at art. 3 (amending art. 7 of the 1964 Agreement).
. On November 16, 2011, the previous Judge indicated that his "intention” was to rule that PCRS is prevented from building on 177 acres, less the minimal acreage of the Hogan Drive development. Oral Arg. Tr., Nov. 16, 2011, at 186. That intended ruling was made, however, prior to the submission of supplemental briefings by both the County and PCRS. A review of the entire record now before the Court leads the Court to find that rendering the previously intended decision would be "clearly wrong;” the correct interpretation requires a set-aside of only 130 acres. See Gannett Co. Inc. v. Kanaga, 750 A.2d 1174, 1181 (Del.2000).
. NCCo Mot. at 15.
. PCRS Mot. at 31.
. Stecher v. Tate, 1993 WL 287618, at *3 (Del. Ch. July 28, 1993); Seabreak Homeowners Ass'n, Inv. v. Gresser, 517 A.2d 263, 269 (Del.Ch. 1986).
. 1969 Amendatory Agreement at art. 7 (amending Article 10 of the 1964 Agreement) ("The updated tentative comprehensive master plan of Pike Creek Valley shows a minimum area of approximately 130 acres set aside for the development of an 18-hole golf course. This constitutes a set-aside for a specific use of 130 of the 215.00 acres set aside for open spaces.”). This ruling differs from the previous Judge's intended ruling as expressed at oral argument in November 2011. Since that time, however, the parties have significantly supplemented the record to include, among other things, those materials the previous Judge requested following oral argument. Upon review of the entire supplemented record, and in consideration of the maxim that restrictive covenants should be strictly construed and narrowly read, Regency Group, Inc. v. New Castle County, 1987 WL 1461610, at * 1 (Del. Ch. Dec. 3, 1987), the Court now holds that this is one of those rare circumstances where justice requires reconsideration of its earlier findings. See May v. Bigmar, Inc. 838 A.2d 285, n. 8 (Del.Ch.2003). While the 1964 Agreement and 1969 Amenda-tory Agreement envisioned the restriction might need to be greater than 130 acres to truly "develop” a golf course, no written, recorded, or distributed plan contains an express provision requiring a golf course set-aside greater than 130 acres. See PCRS Supp. Letter of Nov. 23, 2011 (D.I. 68) (and accompanying exhibits).
. Id. at art. 3 (emphasis added) (amending Article 7 of the 1964 Agreement which provided that the "DEVELOPER, its successors and assigns, will set aside and hold throughout the course of development of the entire SUBJECT ACREAGE the following land uses irrespective of the ultimate zoning of the SUBJECT ACREAGE: ... Open Spaces ...) (emphasis added).
. See, e.g., id. (setting forth the overall open space set-asides and identifying the different uses thereof as that "set aside for an 18-hole golf course” and that "which shall be non-golf open space”).
. In fact, the Master Plan anticipates that a golf course might never have been built and that land might become non-profit recreational space. 1964 Agreement at art. 10; 1969 Amendatory Agreement at art. 7 (amending Article 10 of the 1964 Agreement).
. Oral Arg. Tr„ Nov. 16, 2011, at 60-61 ("PCRS Counsel: I'll just say, frankly, it was an unrecorded document and I was also aware of the entire context of this. Did I think that that was a restrictive covenant? Absolutely not.”). See also Recommendation Deed Restriction Change, May 20, 2008 (despite a subdivision plan "which separated the dinner theater and associated parking on a 5.3-acre parcel from the larger 168.7-acre parcel containing the golf course,” "[t]he proposed deed restrictions will have no effect on
. The Court notes that the set-aside could be greater if more than 130 acres are required to construct an 18-hole golf course as envisioned in the Master Plan. The issue of whether any particular parcel sufficiently complies with the enumerated restriction remains, however, beyond the scope of this opinion. But beyond doubt, the restriction, unless it is changed, has three lineamental features, the land parcel set aside must: (1) be no less than 130 acres; (2) have physical attributes — i.e., be of sufficient quantity, quality, contiguity and configuration — to accommodate development of an 18-hole golf course; and (3) be set-aside, as it was originally dedicated, for the specific single use of development (or now re-development) of a golf course.
. As set forth in Part V.B.3., infra, the record supports a finding that the Hogan Drive Plan, due to its size and configuration, would not violate the restriction found here. See Hogan Drive Townhouse Addition Plan, Feb. 11, 1982. [A176], The same cannot be said, at this stage, for the Terraces Plan, which is far larger. See Terraces at Pike Creek Exploratory Sketch Plan Cover Sheet. [A392],
. See Regency Group, Inc. v. New Castle County, 1987 WL 1461610, at * 1 (Del. Ch. Dec. 3, 1987) (”[C]ovenants restricting the free use of property must be strictly construed.”).
. Eagle Enterprises, Inc. v. Gross, 39 N.Y.2d 505, 384 N.Y.S.2d 717, 349 N.E.2d 816, 820 (1976) ("The affirmative covenant is disfavored in the law because of the fear that this type of obligation imposes an ‘undue restriction on alienation or an onerous burden in perpetuity.' ” (quoting Nicholson v. 300 Broadway Realty Corp., 7 N.Y.2d 240, 196 N.Y.S.2d 945, 164 N.E.2d 832, 835 (1959))).
. See, e.g., El Di, Inc. v. Town of Bethany Beach, 477 A.2d 1066, 1069 (1984) ("A court will not enforce a restrictive covenant where a fundamental change has occurred in the intended character of the neighborhood that renders the benefits of the underlying imposition of the restrictions incapable of enjoyment.”)
. PCRS’ Corrected Proposed Findings of Fact and Conclusions of Law, dated June 14, 2013, at 19. See Merrill v. Crothall-Am., Inc., 606 A.2d 96, 99-100 (Del. 1992); Shahan v. Shahan, 2012 WL 6114972, at *1 (Del. Ch. Dec. 10, 2012); Bird's Constr. v. Milton Equestrian Ctr., 2001 WL 1528956, at *2 (Del. Ch. Nov. 16, 2001).
. Ct. Ch. R. 56(e) ("When a motion for summary judgment is made and supported as provided in this rule, an adverse party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse party’s response ... must set forth specific facts showing that there is a genuine issue for trial.”); Moore v. Sizemore, 405 A.2d 679, 681 (Del.1979) ("When a motion for summary judgment is ‘supported’ by such a showing under the Rule, the burden shifts to a non-moving party to demonstrate that there are material issues of fact.” (citing Hurtt v. Goleburn, 330 A.2d 134, 135 (Del.1974))).
. Ct. Ch. R. 56(e).
. Stecher v. Tate, 1993 WL 287618, at * 4 (Del. Ch. July 28, 1993); In re Blue Rock Manor Civic Ass'n v. Hartline, 1992 WL 251381, at * 3 (Del. Ch. Sept. 29, 1992).
. See n. 130, supra.
. See Part V.C., infra.
. See Hogan Drive Townhouse Addition Plan, Feb. 11, 1982. [A176], The 1982 recorded subdivision plan was the same plan which was the subject of controversy in G.R.G. Realty. It contains the notation indicating the plan has been reviewed as to "content and compliance” with County regulations. Id. It simply wasn’t reviewed "as to compliance with the 1964 Agreement or the 1969 Amendatory Agreement of record pertaining to development of the Pike Creek Valley community.” Id.
. In fact, it appears there would not even be major disruption of the Golf Course as most recently configured. See,- e.g., id. (demonstrating ability to move thirteenth green in order to accommodate Hogan Drive development). [A176].
. Resolution No. 10-217, Dec.' 14, 2010. [A311].
. See J.N.K., LLC v. Kent County Levy Court, 974 A.2d 197, 209 (Del.Ch.2009); Green v. Sussex County, 668 A.2d 770, 775 (Del.Super.Ct.1995).
. G.R.G. Realty Co. v. New Castle County, 1981 WL 697909, at * 3 (Del.Super. Ct. Dec. 30, 1981) ("If a controversy arises out of a master plan and rights which may have been created by it, that controversy is ‘beyond the scope of the Board’s review power.’ ” (quoting New Castle County v. Richeson, 347 A.2d 135, 137 (Del. 1975))).
. Id. at * 3-4 (Then-Judge, later Chief Justice Christie observed, "the legal issues as to the interpretation of the [Agreements] as to the rights of the third-party beneficiary and as to other legal issues would be ... for eventual determination by a Court.... The legal issues are more properly determined in a judicial setting after both sides have been heard by an impartial judge.... [T]hose issues may be brought before a court once the plans are approved or disapproved on their merits.”); see Part III, supra; see also Richeson, 347 A.2d at 137 ("As the controversy in this case clearly arose out of interpretation and enforcement of the master plan ... we hold that the dispute over conformity with the master plan was beyond the scope of the Board's review.”).
. George v. Kuschwa, 1986 WL 6588, at * 4 (Del.Super.Ct. May 21, 1986); see Del. Code Ann. tit. 25, § 121(b) ("A deed ... unless otherwise restricted or limited, or unless contrary intention appears therein, shall be construed to pass and convey to the grantee therein and to his heirs and assigns the fee simple title....”).
. Pryor v. Aviola, 301 A.2d 306, 308 (Del.Super. Ct. 1973).
. Reed v. Hassell, 340 A.2d 157, 160 (Del.Super.Ct. 1975) (explaining the doctrine of merger "can often be explained as a way of regarding the delivery of the deed as a sort of accord and satisfaction”).
. Id.
. Allied Builders, Inc. v. Heffron, 397 A.2d 550, 553 (Del. 1979); George, 1986 WL 6588, at *4; see Drees Co. v. Osburg, 144 S.W.3d 831, 833 (Ky.Ct.App.2003) ("the merger doctrine does not- apply to collateral agreements.”).
. George, 1986 WL 6588, at *4. At least one other jurisdiction has found "executor agreements for the performance of separate and distinct obligations beyond the conveyance it
. 1964 Agreement at art. 3.
. See, e.g., Microfilm 2456, Nov. 1973 (A 74); Microfilm 4737, Jan. 1978 (A 75); Microfilm 5514, Mar. 1980(A76); PCRS Supp. Letter, Nov. 23, 2011 (D.I. 68) (and accompanying exhibits) (" 'Private Open Space’ is established in accordance with the agreement as amended [Master Plan] designating the New Castle Co. Government as third-party beneficiary.”).
. Reed, 340 A.2d at 160.
. Seabreak Homeowners Ass’n, Inv. v. Gresser, 517 A.2d 263, 269 (Del.Ch. 1986).
. Mendenhall Village Single Homes Ass’n v. Harrington, 1993 WL 257377, at * 2 (Del. Ch. June 16, 1993); Alliegro v. Home Owners of Edgewood Hills, Inc., 122 A.2d 910, 912 (Del. Ch.1956) (buyers with knowledge cannot effectively object).
. Oral Arg. Tr., Nov. 16, 2011, at 60-61. PCRS cannot simply claim that the 1969 Amendatory Agreement, because it was not recorded, carries no weight. Cashvan v. Darling, 107 A.2d 896, 901 (Del.Ch. 1954) ("An additional and independent reason why plaintiff can get no aid from the fact that the plan ... is unrecorded arises from the fact that the deeds ... explicitly refers to the engineers’ plan. Under the law plaintiff was required to take notice of all recorded deeds ... conveying portions of this tract.... An examination of such deeds would have revealed thé restrictions binding on the tract.... Although unrecorded [the restriction] was readily available.”).
. See Mot. to Intervene, Nov. 14, 2011 (D.I. 67), at ¶ 14.
. The Interested Parties claim, they do have standing as original owners of residential properties abutting the Golf Course. Id. at ¶ 14. The Court heard oral argument on the cross-motions for summary judgment as scheduled with PCRS’ Mot. for Class Certification and the Interested Parties’ Mot. to Intervene pending. See generally Oral Arg. Tr., Nov. 16, 2011.
. Tr. of Off. Conf., Apr. 4, 2013, at 12 (Interested Parties' Counsel: "So the purpose of our intervening was primarily to say we agree, support, and wanted to supplement the County's case. That's it. If we're required to file anything beyond that to get something into the record ... we’ll do that. But if these documents that we've attached to the motion to intervene are sufficient, we're pretty must going to echo the County's position and don’t need to file anything further.”). Each of the Interested Parties own property abutting the land in question. Specifically, Karen J. Gamm claims she purchased a lot at a $5,000 premium in the Village of Plum Run, located between the 4th green and the 5th tee of the Golf Course, only after her concerns "about developers someday being able to build on the Golf Course,” were assuaged by verbal assurances from the builder and the presentation of three separate maps, including the Distributed Master Plan. Ex. 1 to Mot. to Intervene (D.I. 67), at 1-2. John L. Tetromono asserts he paid a $2,000 "premium lot” charge for the property he purchased in the Linden Heath subdivision from Luigi Fortunato, Inc., because it was adjacent to the 12th green of the Golf Course. Ex. 2 to Mot. to Intervene (D.I. 67), at 1-2. Finally, Leo. J. McDermott here submits an affidavit he executed in 1983 in which he stated the Golf Course was nearly complete when he purchased his home on a lot directly adjacent to the 10th hole. Ex. 3 to Mot. to Intervene (D.I. 67), at 1. Mr. McDer-mott says he paid the builder a $500 premium for the Golf Course-adjacent lot. Id. at 2.
. Tr. of Off. Conf., Apr. 4, 2013, at 13-14. See also Ct. Ch. R. 23. This Court has stayed the PCRS Mot. for Class Certification. Tr. of Scheduling Conference, July 29, 2011, at p. 18-19; New Castle County v. Pike Creek Recreational Services, LLC, Del.Super., C.A. 5969, Wallace, J. (Sept. 5, 2013) (ORDER) (D.I. 102) (implementing the Court’s July 29, 2011 rulings with modifications).
. PCRS Mot. for Class Certification, July 22, 2011 (D.I. 44), at 11.
. Ct. Ch. R. 24(a)(2).
. Id.; see In re MAXXAM, Inc./Federated Dev. S’holders Litig., 698 A.2d 949, 955 (Del. Ch.1996).
. Ct. Ch. R. 24(b)(2).
. Id.; see Wier v. Howard Hughes Medical Institute, 404 A.2d 140, 145 (Del.Ch. 1979).
. Mot. to Intervene (D.I. 67), at ¶ 2. See also Ct. Ch. R. 24(a)(2). The Interested Parties make no claim that Rule 24(a)(1) is applicable in this case, and the Court finds there is no Delaware statute which "confers an unconditional right to intervene" upon the Interested Parties. See Ct. Ch. R. 24(a)(1).
. Mot. to Intervene (D.I. 67), at ¶ 2.
. Tr. of Off. Conf., Apr. 4, 2013, at 11-13 (Interested Parties’ Counsel: "So the purpose of our intervening was primarily to say we agree, support, and wanted to supplement the County’s case. That’s it.... [W]e’re pretty much going to echo the County’s position. ...”).
. See Ct. Ch. R. 24(a)(2).
. Ct. Ch. R. 24(b)(2). The Interested Parties make no claim that Rule 24(b)(1) is applicable in this case, and the Court finds there is no Delaware statute which "confers a conditional right to intervene” upon the Interested Parties. See Ct. Ch. R. 24(b)(1).
. Flynn v. Bachow, 1998 WL 671273 at *4 (Del. Ch. Sept. 18, 1998). Compare Flynn ("Where the original plaintiff has been disqualified from pursuing the claim, the necessity for the intervenor to step in becomes more apparent”) and In re MAXXAM, Inc./Federated Dev. S’holders Litig., 698 A.2d 949, 955 (Del Ch.1996) ("It is undisputed that no existing party has standing to prosecute the claims_ Moreover, absent [the Inter-venor’s] intervention, those claims would have to be dismissed. In such circumstances intervention is appropriate ....”) with the current case, in which the Interested Parties seek to intervene on an ancillary claim.
. Ct. Ch. R. 24(b)(2).
. The County does not oppose the Interested Parties’ Mot. to Intervene. See NCCo Resp. to PCRS’ Brf. in Opposition to the Mot. to Intervene, Apr. 23, 2013 (D.I. 83), at 3.
. See CAPM Corp. v. Protegrity, Inc., 2001 WL 1360122, at *11-12 (Del. Ch. Oct. 30, 2001) (”[C]ourts generally have been reluctant to allow intervention when the applicant appears to have been aware of the litigation but has delayed unduly seeking to intervene. ... The most important consideration in deciding whether a motion for intervention is untimely is whether the delay in moving for
. See, e.g., various news articles and press releases discussing PCRS' attempt to develop the Golf Course and NCCo’s opposition to the same. Ex. 7-21 to Aff. of A. Kimberly Hoffman, Apr. 16, 2013.
. See Tr. of Off. Conf., at 11 (Interested Parties’ Counsel: "Your Honor, I was under the mistaken belief that there was a hearing or an argument scheduled for late November. That’s why I filed [the Motion to Intervene] November 14.”).
. See CAPM Corp., 2001 WL 136122, at * 12.
. Leon N. Weiner & Assocs., Inc. v. Krapf, 623 A.2d 1085, 1088 (Del. 1993).
. Van Amberg v. Board of Governors of Sea Strand Ass'n, 1988 WL 36127, at *6 (Del.Ch. Apr. 13, 1988).
. Greylag 4 Maintenance Corp. v. Lynch-James, 2004 WL 2694905, at *5 (Del. Ch. Oct. 6, 2004).
. Id.
. Id. at * 5-6.
. Leon N. Weiner & Assocs., 623 A.2d at 1089; see Greylag, 2004 WL 2694905, at * 5 (denying summary judgment based on the incomplete record from which intent of the parties could not be determined). The Court is confident it may rely upon the extensive record created over the course of nearly three
. Van Amberg, 1988 WL 36127, at * 4; see also Leon N. Weiner & Assocs., 623 A.2d at 1088.
. Leon N. Weiner & Assocs., 623 A.2d at 1092.
. See, e.g., Leon N. Weiner & Assocs., 623 A.2d at 1092 ("The issue presented ... was whether certain uniform deed restrictions, individually imposed by a common grantor over time upon each of the Numbered Lots of a residential housing development, apply by implication to the adjacent unsubdivided Quarry Parcel, notwithstanding the common grant- or’s failure specifically to include such seed restrictions when the Quarry Parcel was conveyed.”); Tubbs v. Green, 55 A.2d 445, 447 (Del.Ch.1947) (plaintiffs’ sued defendant neighbors to enforce so-called “Jensen restrictions,” which plaintiffs’ deed contained, but defendants' deed did not).
. Van Amberg, 1988 WL 36127, at *4 ("The equitable restrictions that plaintiffs seek to have declared and enforced require a writing ‘signed by the party to be charged therewith.' ” (quoting Del. Code Ann. tit. 6, § 2714(a))).
. See, Bave v. Guenveur, 125 A.2d 256, 258 (Del.Ch. 1956) (the developer "was free to develop the various portions of the area ... as it saw fit, subject of course to whatever restrictions it desired to impose”); Gammons v. Kennett Park Dev., 61 A.2d 391, 394 (Del.Ch. 1948) ("There is no legal reason why a developer cannot develop successive portions of his lands independently of one another, imposing different restrictions (or none at all) upon each, provided the deeds clearly evidence the explicit intent to limit the burden and the benefit to the designated area of definitely show an intent not to impose similar restrictions upon all.”); See, e.g., 1964 Agreement at art. 7 (setting aside land for specific used included schools and churches, commercial, and open space); 1969 Amendatory Agreement at art. 3 (same).
. Leon N. Weiner & Assocs., Inc. v. Krapf, 623 A.2d 1085, 1092 (Del. 1993); Greylag 4 Maintenance Corp. v. Lynch-James, 2004 WL 2694905, at *6 (Del. Ch. Oct. 6, 2004).
. See Bave, 125 A.2d at 259 ("[A] developer is free to develop an area section by section and by the use of appropriate language to subject it to whatever restrictions he may desire....”).
. Leon N. Weiner & Assocs., 623 A.2d at 1089.
. See Bave, 125 A.2d at 259 ("Nor is there any merit in the point that the plaintiff ... was shown a plot plan ... because, as heretofore indicated, [the Court] cannot agree that a reasonable person viewing the recorded plot ... would conclude that what is now the defendant's lot was a part of the land dedicated by the plot as a [portion of plaintiff's housing block].”).
. See Ex. 2 to Mot. to Intervene (D.I. 67), at ¶ 8.
. See Regency Group, Inc. v. New Castle County, 1987 WL 1461610, at * 1 (Del. Ch. Dec. 3, 1987) (finding a specific use designation on the Master Plan map alone was not controlling and that land zoned for commercial must only accord with acceptable uses under the County zoning code).
. [A334],
. See Part V.B.I., supra.
. See, e.g., Ex. 1 to Mot. to Intervene (D.I. 67), at ¶ 4-6; Ex. A to Ex. 1 to Mot. to Intervene (D.I. 67); Ex. 3 to Mot. to Intervene (D.I. 67), at ¶ 2.
. See PCRS Supp. Letter, Nov. 23, 2011 (and accompanying exhibits) (D.I. 68).
. 1964 Agreement at art. 3.
. Greylag 4 Maintenance Corp. v. Lynch-James, 2004 WL 2694905, at *6 (Del. Ch. Oct. 6, 2004)
. Pleasanton v. Hugg, 2010 WL 5313228, at * 1 (Del.Super.Ct. Nov. 29, 2010); see Guy v. Greenhouse, 1993 WL 557938, at *1 (Del. Dec. 30, 1993); Darby v. New Castle Gunning Bedford Educ. Ass'n, 336 A.2d 209, 209-10 (Del.
. Remedio, 337 A.2d at 318.
. Guy, 1993 WL 557938 at * 1 (citing Ingersoll v. Rollins Broadcasting, 272 A.2d 336, 338 (Del. 1970)); Acierno, 2004 WL 745715, at * 2.
. McCoy v. State, 36 A. 81, 83 (Err. & App.1897) (mandamus is "a remedial writ, the appropriate functions of which are the enforcement of the performance of duties, imposed by law, by officers and others who neglect or refuse to perform their duty.... [I]f there be any other specific and adequate legal remedy” the writ will not be allowed); see Schagrin Gas Co. v. Evans, 418 A.2d 997, 998 (Del. 1980); see also Petition of Hyson, 649 A.2d 807, 808 (Del. 1994) (describing "condition precedent” to Supreme Court’s issuance of mandamus).
. State ex rel. Abbott v. Calio, 2004 WL 2520906, at * 1 (Del. Nov. 4, 2004); Guy, 1993 WL 557938 at * 1 (citing Darby, 336 A.2d at 211).
. In re Anderson, 2012 WL 5990220, at * 1 (Del. Nov. 29, 2012); In re Bordley, 545 A.2d 619, 620 (Del. 1988) (”[I]n the absence of a clear showing of an arbitrary refusal or failure to act, this Court will not issue a writ of mandamus....").
. Acierno, 2004 WL 745715, at *2.
. Brittingham v. Town of Georgetown, 2011 WL 2650691, at * (Del.Super. Ct. June 28, 2011); Pleasanton v. Hugg, 2010 WL 5313228, at * 1 (Del. Super. Ct. Nov. 29, 2010).
. PCRS also argues that the Resolutions passed by the County Council opposing development on the Golf Course land, see Part I, supra, are void ab initio. PCRS Mot. at 47. As has been explained in Part V.B.iii., above, the Court will not defer to the County’s interpretation of the restrictive covenants where there is an adverse party challenging the County’s position. Thus, the Court has essentially declared those portions of the Resolutions void.
. See Levinson v. Delaware Compensation Rating Bureau, Inc., 616 A.2d 1182, 1190 (Del. 1992); Toll Bros., Inc. v. Wicks, 2006 WL 1829875, at *8 (Del. Ch. June 21, 2006).
. Hundley v. O'Donnell, 1998 WL 842293, at * 4 (Del. Ch. Dec. 1, 1998) (A "democratically elected body should, in the absence of compelling circumstances, be allowed to speak to the meaning of their own ordinances, including a legal interpretation, within the factual context of this case.”).
. See Washington v. Dep't of Corr., 2006 WL 1579773, at * 2 (Del.Super. Ct. May 31, 2006).
. Levinson, 616 A.2d at 1187 (citing 2 Am. Jur. 2d. Administrative Law § 595 (1962)); see Salem Church (Delaware) Assoc. v. New Castle County, 2006 WL 2873745, at * 4 (Del. Ch. Oct. 6, 2006) (same); Eastern Shore Environmental, Inc. v. Kent County Dept. of Planning, 2002 WL 244690, at *5 (Del. Ch. Feb. 1, 2002) (same).
. Levinson, 616 A.2d at 1190. Salem Church, 2006 WL 2873745, at *4; Pleasanton v. Hugg, 2010 WL 5313228, at * 1 (Del.Super.Ct. Nov. 29, 2010); Hundley, 1998 WL 842293, at *2.
. Levinson, 616 A.2d at 1190.
. id. ("[E]xhaustion will not be required where administrative review would be futile, where there is a need for prompt decision in the public interest, where the issues do not involve administrative expertise or discretion or where irreparable harm would result from the denial of immediate judicial relief.”); see Salem Church, 2006 WL 2873745, at * 4 (same).
. Salem Church, 2006 WL 2873745, at *5; Kejand, Inc. v. Town of Dewey Beach, 1996 WL 422333, at *3 (Del. Ch. July 2, 1996).
. 2006 WL 2873745, at * 5.
. Id. at * 6 (The Senate Bill in question was unambiguous, thus the Planning Board could not have legally construed the amended statute in favor of Salem Church, and any attempt by Salem Church to appeal the Planning Board's ruling would have been futile.).
. UDC § 40.31.130.
. See Oral Arg. Tr., Nov. 16, 2011, at 60-61 (PCRS Counsel: "I'll just say, frankly, it was an unrecorded document and I was also aware of the entire context of this. Did I think that that was a restrictive covenant? Absolutely not.”).
. See Levinson v. Delaware Compensation Rating Bureau, Inc., 616 A.2d 1182, 1190-91 (Del. 1992) (an administrative hearing is not necessarily futile where the ruling body articulates a pre-hearing statement contrary to the interests of the petitioner) (citing Federal Trade Comm’n v. Cement Institute, 333 U.S. 683, 700-03, 68 S.Ct. 793, 92 L.Ed. 1010 (1948) and United States v. Morgan, 313 U.S. 409, 61 S.Ct. 999, 85 L.Ed. 1429 (1941)).
. Hundley v. O’Donnell, 1998 WL 842293, at *4, n. 5 (Del. Ch. Dec. 1, 1998) ("This futility argument fails, however, in light of ... the County Code which provides that Plaintiff can appeal the [Dep't of Land Use]’s decision to the Planning Board and, if necessary, the County Council.... ”). PCRS does not convincingly advocate, nor does the record support any of the other exhaustion relieving circumstances: that a prompt decision is in the public interest, that there are issues not involving administrative expertise or discretion, or that delay would cause irreparable harm. See Levinson, 616 A.2d at 1190-91.
. Remedio v. City of Newark, 337 A.2d 317, 318 (Del. 1975).
. See n. 205, supra.
. Del. Code Ann. tit. 9, § 1309. A similar provision in the UDC requires the Dep’t of Land Use to issue its decisions on submissions in writing within twenty days. UDC at § 40.31.330.
. The Dep’t of Land Use issued a letter with comments on December 7, 2010, 55 days following the original submission. Dep’t of Land Use Letter re: Hogan Drive Townhouse Addition, Dec. 7, 2010. [A396-98].
. Aff. of George O. Haggerty, Jr., Sept. 6, 2011, a^4. [A318].
. Id. at ¶ 5. [A318],
. /d. at ¶ 6. [A318].
. Id. at ¶ 7. [A318],
. Id. [A318].
. Id. at ¶ 8. [A318].
. Ex. A to Aff. of George O. Haggerty, Jr., Sept. 6, 2011. [A321],
. Aff. of George O. Haggerty, Jr., Sept. 6, 2011, a^9. [A319].
. /d. at ¶ 8. [A318].
. See Cicchine v. Township of Woodbridge, 413 N.J.Super. 393, 995 A.2d 318, 322 (Law. Div.2010) ("The automatic approval is intended to remedy bad faith or overreaching or dilatory conduct of the Board. It should not be applied when the inaction was inadvertent or where there is no evidence of intentional delay or inattention to the application.”).
. Ex. A to Aff. of George O. Haggerty, Jr., Sept. 6, 2011 (“10/19/2010 12:00 Per meeting w/ GOH [the assistant general manager] and MB [the assigned planner], plan review placed on hold until planning board appeal is completed.”). [A321],
. Dep’t of Land Use Letter re: Hogan Drive Townhouse Addition, Dec. 7, 2010. [A396-98]. See Beiser v. Board of Adjustment of Town of Dewey Beach, 1991 WL 236966, at * 5 (Del.Super.Ct. Oct. 25, 1991) (an invalid permit is invalid ab initio); Miller v. Board of Adjustment of Town of Dewey Beach, 521 A.2d 642, 647 (Del.Super.Ct.1986) ("A permit issued illegally, or in violation of the law, or under a mistake of fact, does not confer a vested right upon the person to whom it is issued.”).
. Courts have long held that government officials are presumed to carry out their duties in an appropriate manner. See United States v. Chem. Found., Inc., 272 U.S. 1, 14— 15, 47 S.Ct. 1, 71 L.Ed. 131 (1926) ("The presumption of regularity supports the official acts of public officers, and in the absence of clear evidence to the contrary, courts presume that they have properly discharged their official duties.”); see also Schism v. United States, 316 F.3d 1259, 1302 (Fed.Cir.2002) (citations omitted) ("This presumption of regularity is the supposition that public officers perform their duties correctly, fairly, in good faith, and in accordance with law and governing regulations, and is valid and binding unless 'well-nigh irrefragable proof rebuts or overcomes it.’ "); Dukes v. Shell Oil Co., 177 A.2d 785, 793 (Del.Ch.1962) ("[T]here is a presumption of validity to be accorded to the action of the [County administrative and/or legislative bodies].”).
. See Bailey v. City of Wilmington, 766 A.2d 477, 481 (Del.2001) ("Under Delaware law, a party claiming that the doctrine of res judica-ta bars a subsequent action must demonstrate the presence of five elements: (1) the court making the prior adjudication had jurisdiction, (2) the parties in the present action are either the same parties or in privity with the parties from the prior adjudication, (3) the cause of action must be the same in both cases or the issues decided in the prior action must be the same as those raised in the present case, (4) the issues in the prior action must be decided adversely to the plaintiffs contentions in the instant case, and (5) the prior adjudication must be final.”).
. See Whittington v. Dragon Group L.L.C., 2011 WL 1457455, at *6 ("Issue preclusion applies if: (1) the same issue is presented in both actions; (2) the issue was litigated and decided in the first action; and (3) the determination was essential to the prior judgment.”).
. 1987 WL 1461610 (Del. Ch. Dec. 3, 1987).
. PCRS Op. Brf. in Support of Pet. for Writ of Mandamus, Aug. 5, 2011, at 28. See D.I.* 1.
. Regency Group, Inc. v. New Castle County, 1987 WL 1461610, at * 1 (Del. Ch. Dec. 3, 1987).
. Brookside Community, Inc. v. Williams, 290 A.2d 678, 680 (Del.Ch.1972); see Regency, 1987 WL 1461610, at * 2.
. Regency, 1987 WL 1461610, at * 2.
. See Part V.B., supra.
. Regency, 1987 WL 1461610, at * 1.
. Id.
. Id.
. See n. 124, supra.
. Article 12 as amended by the 1969 Amen-datory Agreement replaces the phrase "par three” with "18-hole.” 1969 Amendatory Agreement at art. 9.
. Regency, 1987 WL 1461610, at *2 (emphasis added).
. 1981 WL 697909 (Del.Super.Ct. Dec. 30, 1981).
. Id. at *2-3.
. Id. at *3-4 ("[I]f the Court requires the Department to act, the legal issues as to the interpretation of the contracts as to the rights of the third-party beneficiary and as to other legal issues would be left open for eventual determination by a Court.”).
. Remedio v. City of Newark, 337 A.2d 317, 318 (Del. 1975).
. The Court has declined to adopt PCRS’ claim that pursuing available administrative remedies would be futile. See Part V.C, supra.