Lewes Mayor and City Council met in executive session Jan. 7 to discuss a letter from the developer of the Brittingham property on New Road.

City Solicitor Glenn Mandalas said the developer’s attorney, Jim Fuqua, raised the threat of litigation if the city imposed future zoning changes on the 34-acre property it recently annexed.

When asked why the matter was discussed in private, Mandalas said he provided legal advice related to vested rights. He said he also discussed litigation the city may have faced if officials retroactively applied amended zoning regulations.

“In telephone conversations Jim Fuqua and I had, he basically said if your client applies this against mine, you’d be inviting litigation,” Mandalas said. 

The agenda for the Jan. 7 executive session was posted to the city’s website Dec. 31 and stated it was to be held to discuss personnel matters and documents protected under the Freedom of Information Act. There was no reference to the Brittingham property.

Mayor Ted Becker said the city has a history of allowing applicants to operate under regulations in place when the application is made.

“After consideration, council decided that we had represented to the developer that these were the terms under which we would consider development,” Becker said. “The developer had made his decision [to annex] on what was on the books at the time.”

Council voted 3-1 in support of a motion to exempt the developer from any future amendments to zoning. Councilman Rob Morgan voted against. Councilwoman Bonnie Osler was absent.

Morgan said the executive session lasted nearly two hours. He voted against the motion because he felt the matter should have been discussed in a public setting and public comment was essential. 

“We had scheduled a public workshop three days later on the subject of amending a zone that now applies only to the Brittingham property,” he said. 

He said the motion also conflicted with the city solicitor’s public opinion at the council’s Dec. 14 special meeting, where Mandalas said the the legal test for when a developer has vested rights is more rigorous than it used to be. Mandalas also discussed the pending ordinance doctrine and the city’s legal options for applying amended regulations to existing projects. Mandalas said he did not speak specifically about the Brittingham property.

Developer Joe Setting has announced plans to build 90 attached villas on the property, zoned AX-RES, annexation residential. The project, called Lewes Waterfront Preserve, will be discussed at the city’s parks and recreation commission meeting Jan. 8, at 5 p.m.

The city will hold a workshop at 7 p.m., Thursday, Jan. 10, to discuss possible changes to the way density is calculated in the city’s two annexation zones.

Debra Evalds, speaking on behalf of the New Road Preservation Alliance, said the group is shocked and dismayed by council’s decision.

“How can our mayor and city council vote to hold a workshop on annexation and wetlands density calculation to include stakeholders in the process and then vote to exempt the development that it applies to three days before the workshop?” she said. “This action undermines our faith and confidence in our elected Lewes officials and makes us feel that the input of constituents is not welcome or wanted.”

Becker said the ramifications of Sussex County’s decision to remove tidal wetlands from density calculation are still not known. He said the city will consider similar changes, but the final product is ultimately up to council.

He expected council would receive a preliminary draft ordinance related to density calculations at the Jan. 10 meeting, but it is just a jumping-off point for discussion.

As to the development of the Brittingham property, Becker said the process is just beginning.

“The site plan has not been approved yet,” he said. “There is still a considerable amount of work left with the planning commission and byways before we see how it all shakes out in the end.”

The developer must also receive approval from the Department of Transportation before moving forward, he said. With DelDOT planning to improve the Canary Creek bridge, just north of the project, Becker said, there could be other changes to the project on the horizon.

Editor’s note: This article has been updated with new information.