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Judge rules Sussex council must re-hear Overbrook rezoning

Proposed shopping center would be largest ever in the county
A sign posted near the proposed land for the Overbrook Town Center shopping center asked county officials to cast a no vote on the rezoning application. Planning and zoning commissioners recommended approval of the application, but county council voted 4-1 to deny it. RON MACARTHUR PHOTO
August 14, 2017

Story Location:
Cave Neck Road
Milton  Delaware
United States

A Delaware Chancery Court judge has ruled that Sussex County Council will have to re-hear a rezoning application for the proposed Overbrook Town Center, the largest retail center ever proposed in the county.

On Aug. 11, Vice Chancellor Joseph Slights wrote: “The rezoning application must be re-submitted to council for another vote. That vote will be what it will be. And so long as the record of the vote is adequate to allow for meaningful review, and the vote itself is not the product of arbitrary or capricious decision-making, the results of the vote, whatever they are, will stand.”

Chip Guy, Sussex County's public information officer, said the ruling was received by county officials late on Aug. 11. “With council not returning until its next scheduled meeting Aug. 22, members will not have a chance to discuss this with legal counsel until at least that time,” he said.

Guy said it would be premature to speculate on the next steps other than to say options include an appeal of the ruling to Delaware Supreme Court or accepting the ruling and scheduling a new public hearing and another vote.

One unanswered question is whether Councilman I.G. Burton would be permitted to participate in a new hearing. During the original hearings, as a member of the county's planning and zoning commission, Burton voted against the rezoning application. He was not a member of county council at the time. He was elected to take the District 3 seat when Joan Deaver retired.

Guy said that is a question that will need to be discussed with the county's legal team.

County council voted 4-1 at its April 12, 2016 meeting to deny a commercial rezoning application that would have paved the way for an 849,000-square-foot shopping center, the largest ever proposed in the county. Following the decision, developers TD Rehoboth LLC and Overbrook Acres LLC filed a lawsuit against the county.

The developers sought to rezone a 114-acre parcel along Route 1 at Cave Neck Road from AR-1, agricultural-residential, to CR-1, commercial-residential. The county's planning and zoning commission voted 3-2 recommending approval of the application.

Oral arguments on a lawsuit brought by the project developers were heard July 12 in Kent County Court of Chancery. According to the lawsuit, county council members who voted against the application did not provide a clear record for their votes as required by state law.

The county's legal team contends the council members' votes are supported by the record.

Council members Joan Deaver, George Cole, Mike Vincent and Sam Wilson voted to deny the application; Rob Arlett voted in favor of it. Deaver has since retired from council and been replaced by Burton.

Slights said the court’s decision is limited to whether council created a sufficient record for the court to review and whether the decisions of certain council members were arbitrary and capricious.
“What is not at issue here is whether the rezoning application is proper… or if council should approve or deny it,” Slights wrote.

He ruled that the record relating to the vote of one of the council members is inadequate to allow for a meaningful review of the record. As for another member, he ruled the vote reflected an arbitrary and capricious process because the alleged harm identified by the councilmember as a basis for denying the rezoning application pre-existed the filing of the application and bore no relationship to it. The two council members’ votes in question were those of Wilson and Vincent.

He said if the two votes were cast in favor of the rezoning, the outcome of council’s decision would have been different.

“I must conclude that his vote was not valid as a matter of law,” Slights ruled on Vincent’s vote.

Wilson’s comments were printed verbatim in the ruling because the judge said he has had difficulty understanding Wilson’s remarks. He said the lack of clarity is consequential when others must try to make sense of the comments to determine whether an orderly deductive process has been followed. “Unfortunately, that is where we are in this case,” he wrote.