The owner of Blessing Greenhouses and Compost has filed a complaint in Delaware Chancery Court against the Sussex County Planning and Zoning Commission for violating the Freedom of Information Act when it terminated a conditional-use permit issued to the company.
According to the complaint, owner Bruce Blessing alleges proposed amendments to the conditional use were advertised in a public notice for a Feb. 22 meeting. “The public notice gave no indication that plaintiff’s conditional-use permit might be terminated . . .” the complaint notes. “Had plaintiff known that the commission was considering termination or might take action to terminate, plaintiff would have presented evidence and testimony demonstrating why such action would not be appropriate and why plaintiff's actions to date were not inconsistent with the conditional use permit.”
On Sept. 25, 2017, Blessing filed to amend several of the conditions placed on the application after the public hearings were concluded, including changing the closing time from 4 p.m. to 6 p.m.
At the Feb. 22 meeting, commissioners voted 4-0 on a motion presented by Commissioner Kim Hoey Stevenson who said owner Blessing had testified Feb. 8 he had not fully complied with all conditions placed on approval of his application in August 2017 by the commission and county council.
Specifically, she said he had accepted up to 15,000 tons of wood and 20,000 tons of yard waste that was not all used in the composting process.
One condition stated he was forbidden from accepting any material not directly used for composting. Among the conditions was an option for the commission to terminate the conditional-use application for noncompliance with any condition.
The complaint alleges a commission member read a “prepared statement and made a motion that had been written in advance to terminate the conditional-use permit.”
Commission Chairman Marty Ross said the commission’s hands were tied because the application could be terminated for noncompliance. “The applicant testified he had not adhered to the conditions,” Ross said. “We can't change the ordinance. It's not a matter of opinion.”
Planning and zoning attorney Jamie Sharp said the conditional use allowed planning and zoning commissioners – not county council – to terminate the application or hold another public hearing.
On Feb. 26, Tim Willard, the applicant's attorney, filed for a rehearing on behalf of his client. Willard said his client was denied due process because the commission failed to provide notification or place on the agenda that termination of the application was a matter to be discussed. Another hearing was not allowed by county officials.
In addition, he said, the public record had been left open to allow for testimony from Department of Natural Resources and Environmental Control scientist Brian Churchill, and to allow the public or applicant to respond. “There was no opportunity to respond,” Willard said.
The original Feb. 8 public hearing was continued to Feb. 22 to hear testimony from Churchill, who said he had seen no violations, and Blessing was making progress toward complying with a 2014 Department of Natural Resources and Environmental Control Secretary's Order, which had no timeline for cleanup.
Blessing operates a composting, flower-growing and yard-waste recycling business along Draper Road near Milford. County officials approved a conditional-use application for Blessing to continue operation of the business with several strict conditions, including cleanup of a 100,000-ton pre-compost pile that had been accumulating on the property for years. He was given a four-month deadline starting in September to remove the pile or post a $1 million bond while continuing to remove material from the property.
Blessing testified he was making progress on removal of the pile, and it should be off the property by June. He said it was not possible for him to obtain a $1 million bond because the cost of the work required to remove the pile was much less than $1 million.
Blessing is asking the court to void the commission's Feb. 22 decision to terminate the conditional use, as well as asking for monetary damages for lost revenue and attorney's fees.