After a nearly four-year process of litigation, Delaware Court of Chancery has ruled that Sussex County Council must hold a new hearing on whether to rezone a parcel outside Milton to allow for an industrial park.

At issue is the future of Reed Farm, a 67-acre parcel at the intersection of Route 16 and Route 30. In March 2020, Reed Farms submitted an application to Sussex County for an amendment to the county’s future land-use map to reclassify the property from low density – classified for rural, farmland areas – to a developing area, which is a higher-density growth area. At the same time, the farm sought to rezone the parcel from AR-1, agricultural residential, to HI-1, heavy industrial, with plans for an industrial park on the parcel. The requests were put into separate ordinances and then reviewed by the planning & zoning commission.

In February 2021, the commission recommended approval of the ordinances. In April 2021, county council, by a 3-2 vote, denied the two ordinances, with council members Doug Hudson, John Rieley and Mike Vincent voting against and council members Cindy Green and Mark Schaeffer voting in favor. 

In his statement in voting no, Hudson said, “I do not support an amendment for least intense-use area designation to most intense-use designation. Such a significant change undermines any predictability of the comprehensive plan and its future land-use map.” 

Reed Farm filed litigation in June 2021 declaring the council’s denial was arbitrary and capricious, and not supported by evidence on the record at the public hearing. After the county answered the suit, the legal action sat mostly dormant until June, when the parties agreed to forego oral argument and let Vice Chancellor Bonnie David decide the case based on briefs, with Reed Farm seeking approval of its rezoning and amendment of the future land-use map, and the county seeking to have the case dismissed.

In her ruling, David agreed with Reed Farm that council’s ruling was arbitrary and capricious in disregard of the facts and circumstances of the case. 

The county’s argument was that what Reed Farm wanted to do is industrialize the property, and that a developing area and an industrial area allow for the same industrial uses. David said the county is conflating two separate issues. Council voted on the two measures separately, and the basis for denying the request to go from AR-1 to HI-1 is not the same as its denial of the land-use amendment. In addition, David said the court is unable to discern from the record as to why a developing area designation is inappropriate. 

David ruled the appropriate measure is to resubmit an ordinance on the land-use amendment for a new hearing and vote.