OTC developers ask court for new hearing

Developers of the proposed Overbrook Town Center say Sussex County Council's denial of a rezoning application is not supported by the public record, and they now seek a new public hearing.

In a Jan. 17 brief, TD Rehoboth LLC and Overbrook Acres LLC, plaintiffs in a lawsuit against the council, state county council members who voted against the application did not provide a clear record as required by state law.

Sussex County Council has until Thursday, Feb. 16, to file its opening brief in the Court of Chancery.

County council voted 4-1 at its April 12, 2016 meeting to deny a rezoning application that would have paved the way for an 849,000-square-foot shopping center, the largest ever proposed in the county.

The developers wanted 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.

“Despite that recommendation, Sussex County Council voted against rezoning. In doing so, however, certain council members either failed to explain their reasons for their votes or gave reasons for their votes that were contradicted by the record evidence or contrary to law,” according to the brief.

Council members Joan Deaver, George Cole, Mike Vincent and Sam Wilson voted to deny the application; Rob Arlett voted in favor of it.

Among the issues raised in the brief as a reason for denial was the potential loss of crop dusting on farm fields near the parcel.

According to the brief, that even if an area is congested, Federal Aviation Administration regulations do not prohibit crop dusting: “Councilman Vincent announced that he would also vote no, although he was clear that he was doing it for one reason only – crop dusting.”

The brief noted that use of the property would be considered congested whether developed for commercial purposes or for residential purposes under current AR-1 zoning. He said the FAA only requires a crop duster file a plan demonstrating that flight operations will not be conducted in a hazardous manner.

The plaintiffs contend that all AR-1 zoned lands could be developed in a manner that could impact crop dusting, so council cannot use the possible impact on crop dusting as a basis to deny rezoning.

 Brief details how council voted

The brief devotes nearly five pages to Wilson's statements, including a complete transcript of his comments. According to the brief, “Wilson voted against the application but he failed to provide supporting reasons, and in fact went on at length explaining why the rezoning made sense and should be approved.”

The brief also states Deaver and Cole made statements containing errors when voting against the application.

According to the brief, Deaver said the parcel is a large tract of land and inappropriate for CR-1 rezoning. “Whether the property is large or not, nothing in the county's comprehensive plan suggests that commercially zoned properties should be smaller or that a 114-acre tract is too large to zone commercial,” Ewing wrote.

The brief notes that Deaver said there were “many other reasons for opposition” that were “extremely, extremely important.”

“Without a complete set of the reasons for her vote, the property owner and reviewing court are left to speculate,” the brief states.

The brief noted that Cole claimed approval of the application would create a substantial impact on the county's infrastructure, the Delaware Department of Transportation and neighboring agricultural uses. That statement, Ewing said, is not supported by the record.

The developer has committed $8 million to road improvements and would cover costs of other infrastructure at the site without any strain on county infrastructure.

In addition, the brief notes, neighboring properties can still be farmed. “If anything, one might conclude that a commercial use adjacent to farmland is better than a residential use, as residents are more likely than commercial tenants to complain about dust, noise, etc. from a farming operation,” according to the brief.

“Neither councilman’s vote complies with established Delaware case law, and the rezoning vote should therefore be set aside and a new vote taken,” the brief states. “In addition to the errors associated with councilmen Wilson’s and Vincent’s statements, portions of the statements made by Councilwoman Deaver and Councilman Cole are also contrary to the record and further support the need for a new hearing and vote.”

The defendant in the case is Sussex County Council and intervenors include residents Rich Borrasso, John and Judy Vincent, Judy Vincent, Kenneth and Susan Hopkins, and Susabar LLP.