Conditional use saga ends on sour note

Sussex County Council and its insurance carrier recently agreed to a $725,000 payment to attorney Chase Brockstedt to settle a conditional use fiasco.

The issue involved property on Savannah Road, outside Lewes, on which Brockstedt proposed  two office buildings. Sussex is out the $25,000 deductible, the legal fees it incurred in defending the case and any future increases in insurance policy premiums that may result. The insurance company is out the rest.

That ends a messy saga. The judge rightly ruled that Brockstedt’s due process rights were violated when he wasn’t allowed to address concerns, raised by the City of Lewes and the county’s wastewater systems officials, prior to council voting on the conditional use request.

Violation of a right guaranteed by the U.S. Constitution triggered Brockstedt’s appeal to the federal court. The judge signaled, through her decision, that she considered council’s action so arbitrary and capricious it required council members be held individually responsible for negative consequences suffered by Brockstedt as a result of council’s due process misstep.

That clearly sent a chill through council chambers. Insurance or no insurance, threat of individual liability potentially involving millions of dollars is sobering.

The judge ruled the county should approve the conditional use request as recommended by the Planning and Zoning Commission.  That ruling and the threat of individual liability felt like a gun to council’s collective head.  They wasted no time in revoting and approving the conditional use unanimously.

Forget City of Lewes concerns about the haphazard evolution of its Savannah Road gateway from residential to commercial and professional.  Forget concerns about the county’s capacity to treat the additional wastewater generated by the proposed use.

Those were potentially legitimate concerns that deserved discussion, along with Brockstedt’s opportunity to address them, before council voted. That’s where justice left the rails.

Instead of putting the gun to council’s head, the judge should have suggested the process start anew at the point where it went astray.  Brockstedt would still have had proper claim to sue for damages, but the ultimate decision about the conditional use would still have been in council’s hands where it belongs, but only after all parties had their chance to weigh in.