MEMORANDUM OPINION AND ORDER
LAMB, Vice Chancellor.
On November 12, 2003, the Court heard argument on the plaintiff's motion for a preliminary injunction. For the reasons explained in this opinion, the court has concluded that no injunctive relief is warranted at this time because the owner has not made a good faith effort to complete the permitting process. However, the motion will be denied without prejudice to its being reasserted later if, after the owner has requested the remaining inspections, the respondent county government should improperly refuse the issuance of a certificate of occupancy.
This case represents the most recent episode in a running battle between New Castle County and Frank E. Acierno over the development of a new shopping center called the Christiana Town Center ("CTC"), located at the intersection of Route 273 and Main Street near the village of Christiana. In this case, Bertucci's Restaurant Corp., a Massachusetts corporation, seeks mandatory preliminary injunctive relief in the form of an order directing New Castle County to issue a certificate of occupancy ("CO") permitting the operation of a restaurant in a structure built at the new shopping center on which it has a lease. The County and County Department of Land Use respond that the County cannot issue a CO to Bertucci's until the owner, CTC, first obtains a CO relating to the building shell that houses the proposed restaurant. Further, they argue, no CO can issue to the owner at this time because the owner has neither paid certain sewer charges due nor asked the County to perform certain necessary final inspections relating to the building shell. CTC and Acierno did not join the action as parties and have not sought to intervene, although their regular counsel appears on behalf of Bertucci's.
The posture in which this motion for preliminary injunction arises is, itself, a by-product of the state of hostilities between Acierno and the County. The County's oral decision to refuse a request for a CO came on Friday, October 31, 2003. Counsel, acting for Bertucci's, then hastily prepared a verified complaint and accompanying documents seeking preliminary and permanent injunctive relief and filed those papers on Tuesday morning, November 4, 2003. The letter from the Department of Land Use giving its reasons for denying a CO to CTC, however, was not sent until Wednesday, November 5, 2003. A second letter explaining the reasons for denying Bertucci's request for a temporary CO is dated November 10, 2003.
During the afternoon of November 4, the court held a hearing on the request to schedule expedited proceedings. Based on representations that the County had positively misled Bertucci's with respect to its ability to open for business, the court agreed to schedule a preliminary injunction hearing for November 12, 2003. Discovery and briefing took place in the week leading up to the hearing. It is fair to say, however, that the structure of Bertucci's argument presented on November 12, 2003, differed significantly from that which moved the court to schedule the proceeding in the first place. In particular, the claim for equitable estoppel-i.e. that the County had misled Bertucci's-fell away. Instead, the dispute now appears to center on questions relating to the interplay between the final inspection and approval of the shell structure in which the proposed restaurant is housed and the final inspection
Having reviewed the record and considered the parties' arguments, the court concludes that Bertucci's has not shown a basis for the entry of a mandatory preliminary injunction requiring that the County issue a CO permitting the operation of the restaurant. This is so even though the record supports a conclusion that the tenant space that Bertucci's seeks to occupy is fully compliant with all applicable rules and regulations. The only material obstacle to opening that space is the issuance of a CO on the building shell itself. Nevertheless, Bertucci's has not met its burden of showing that the building shell is also fully compliant or that the County has no good faith basis for refusing to issue a CO on it.
On the contrary, the record shows that the major sticking point between the County and Acierno (and CTC) is the County's insistence that a final plan review of the site is necessary before a CO can be issued. At oral argument, the parties discussed the fact that the shell building is some 30-40% smaller than the building shown on the site plan. Evidently, Acierno wants to decouple that final plan review from the process of issuing a CO on the shell building, for fear that the County will take the position that it cannot do so until a new site plan is submitted and reviewed, a process that could take months.
Briefly, the facts are as follows. CTC entered into a lease agreement with Bertucci's for the operation of a restaurant in a to-be-constructed, free standing building. On July 6, 2002, the County issued a building permit to 395 Associates, Inc., a business affiliated with Acierno, to construct a "shell," or exterior structure, for the Bertucci's restaurant at CTC's site (the "Shell Permit"). On July 10, 2003, the County issued a building permit to Crossection, Inc., a contractor hired by Bertucci's, to construct the tenant space for Bertucci's in the shell (the "Tenant Fit-Out Permit").
By the end of October, the work on the building was nearing completion. In the process of arranging for a final inspection
Also on October 30, 2003, Joseph Caruso, a County building inspector came to the site at Bertucci's request in order to do a tenant fit-out inspection. That inspection was entirely satisfactory with the single exception that the Fire Marshall inspection had not yet taken place but was expected to occur later that day. Caruso suggested to Wayne Scott, a representative of Bertucci's, and Jim King, the Crossection job supervisor, that they fax the results of the Fire Marshall's inspection to him and he would attempt to expedite the paperwork. According to Caruso's deposition, he also specifically told Scott and King that he knew there were "still issues on the shell of the building" and that they would "have to have the shell CO'd before you can have any fitout CO'd."
While Caruso was still at the site, Crisconi arrived and reported that he had more or less worked out the shell permit issues in his meeting with County officials. At the time, Scott was very anxious to begin stocking the restaurant. In fact, supplies, including foodstuffs, were en route to the site. Before Caruso left, there was some discussion about the best way to expedite the final approval process. Caruso told the others that they could call him early the next morning.
When he arrived at work the next morning, Caruso found the Fire Marshall's report that had been faxed over to him late the previous afternoon. Caruso also found an e-mail from George Haggerty, Assistant Manager of the Land Use Department, to the entire department stating that all matters for action relating to CTC were to be sent to him through James Edwards, before "any findings, decisions, or approvals are granted."
Bertucci's was understandably concerned that the permitting process was coming off the tracks and immediately prepared a letter to the County requesting a temporary CO, sent by fax to the County at approximately 9 a.m. the same morning. The Bertucci's representatives then spent the day at the County offices but did not
On November 5, 2003, Haggerty wrote to CTC listing the items that remained open on the shell permit and the tenant fitout permit. On November 10, 2003, Haggerty wrote to Crossection, Inc., explaining the reasons for denying Bertucci's request for a temporary CO. Principally, this letter bases the refusal to issue a temporary CO on the failure of the building owner to obtain a CO for the shell. By the time the argument took place on November 12, 2003, the remaining issues relating to the shell CO were the need for a record plan inspection and the payment of certain sewer fees the County said were owing. The parties also disagreed over whether the County Code contemplated the issuance of one or two COs.
A preliminary injunction is an extraordinary form of relief that will be granted only where a party demonstrates: (1) a reasonable probability of success on the merits at a final hearing; (2) that the failure to issue a preliminary injunction will result in immediate and irreparable harm; and (3) that the harm to the plaintiffs if relief is denied will outweigh the harm to the defendants if relief is granted.
The court has little difficulty in concluding that Bertucci's has not met its burden of clearly establishing its right to the immediate issuance of a CO allowing its use of the building as a restaurant. The reason for this, briefly, is that CTC has not done all of the things the County contends are necessary for the issuance of a CO relating to the building shell. The only question is whether the court should ignore or excuse CTC's and Acierno's failure to act and, instead, rule as a matter of law that the County cannot condition the issuance of a CO on CTC's compliance with its demands. The court concludes that it should not.
A certificate of occupancy is issued pursuant to New Castle County Code § 6.03.018(C) only after the following items are completed:
In cases where something prevents the issuance of a final CO, the County has the power to issue a temporary CO, where no issue of health or safety is involved, in accordance with New Castle County Code § 6.03.018(D), as follows:
The parties devote much time and energy arguing about whether the County Code requires one or two COs for the operation of the Bertucci's restaurant. The issue is inconsequential. If only one CO is required, it certainly cannot be issued until both the building shell and the tenant space pass final inspection and otherwise satisfy the above-quoted requirements of New Castle County Code § 6.03.018(C). If, instead, both Bertucci's and CTC need to obtain COs, the issuance of a CO to Bertucci's for its tenant space is necessarily dependent upon the prior existence of a CO covering the building shell. In either case, logic dictates that Bertucci's cannot occupy its space and operate a restaurant until the building itself satisfies subsection (C), quoted above.
As already discussed, the record shows that, by October 30, CTC and Acierno knew the County's position that there were inspections remaining and sewer bills to pay. Since this lawsuit was filed, CTC has taken steps to satisfy some of the items identified in the County's letter of November 5. For instance, a certificate of inspection of the HVAC units on the roof of the building shell was handed up in open court on November 12. Nevertheless, CTC and Acierno continue to resist the County's demand that they make a request for the final plan inspection and refuse to pay certain sewer bills, even under protest. By this stratagem, CTC and Acierno evidently believe they can force this court to rule as a matter of law that neither the final plan inspection nor the payments demanded is a proper condition to the issuance of a CO on the shell.
The court declines to rule on these questions in the abstract posture in which they are presented. To begin with, the County's position is neither obviously mistaken nor apparently advanced in bad faith. On the contrary, a plain reading of subsection (C), quoted above, supports the view that the requirement of a final plan review is within the ambit of that statute. Similarly, it is not readily apparent why the issuance of a CO should not be conditioned on the payment of outstanding sewer charges. Thus, the right Bertucci's insists upon is not clearly established on this record.
These observations also support a conclusion that Bertucci's has not shown the likelihood of imminent irreparable harm. Such a showing might be made if, as CTC and Acierno apparently fear, the County refuses to issue a CO permitting operation of the restaurant simply because the building is smaller than that shown on the approved plan. At this stage of the proceedings, however, there is no reason to expect that to happen. Certainly, there would be no reason to deny the issuance of a temporary CO in that case, since the discrepancy between the building and the plan would not raise any concern about the safe operation of the restaurant.
For the foregoing reasons, the plaintiff's motion for a preliminary injunction shall be, and hereby is, DENIED. IT IS SO ORDERED.