AG: Lewes officials violated FOIA

January executive session did not meet requirements
March 4, 2019

An executive session to discuss the Brittingham property in Lewes violated the Freedom of Information Act, the Attorney General’s Office has ruled.

Residents Doug Spelman and John D.W. Hurlock filed a complaint with the Attorney General’s Office in February, alleging a Jan. 7 executive session to discuss the applicability of future regulation changes to the Brittingham property on New Road was unnecessary and the agenda was insufficient.

Deputy Attorney General Dorey L. Cole agreed violations occurred.

Spelman and Hurlock also challenged whether the agenda was properly noticed, but Cole sided with the city on that issue. However, while Lewes sufficiently noticed the executive session, Cole wrote that does not mean the executive session was necessary in the first place.

The purpose of the behind-closed-doors meeting was to discuss potential litigation related to the property.

Shortly after the city’s decision to approve annexation and zoning Nov. 13, Sussex County Council voted to change the way density is calculated on land in its jurisdiction.

Lewes council then held a special meeting Dec. 14 to discuss if it wanted to adopt similar changes in the city’s two annexation zones, AX-MIX and AX-RES. The Brittingham parcel was annexed and assigned the AX-RES zone. 

Following the meeting, the attorney for Setting Properties Inc., developer of the Brittingham property, told the city that applying any future changes to the annexation zones to his client’s project would “invite litigation.” That comment formed the basis for the city’s Jan. 7 executive session, but Cole determined it was not enough of a reason to hold a private meeting.

She said the city may not circumvent the requirements of FOIA by discussing legal advice in the context of an attorney-client privileged memorandum.

“The city has not addressed how its discussions that occurred in executive session would have an adverse effect on their eventual litigation position,” Cole said.

Cole also determined the city  did not provide sufficient notice that a possible vote related to the Brittingham parcel could occur once council came back into open session at the meeting.

“We find that the agenda was flawed,” Cole wrote.

Cole recommended the city appropriately notice and address the topic of zoning of the Brittingham parcel at a future public meeting.

At the meeting, he says, council members should explain the reasons for their vote.

Lewes City Solicitor Glenn Mandalas said, “The city is reviewing the opinion and considering what response is appropriate.”

Cole warned that if Spelman and Hurlock wish to invalidate council’s vote, it is not within the Attorney General’s Office’s authority to force the city to do so.

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