Judge dismisses action against Atlantic Concrete

Case recommended to be heard by Sussex BOA
March 24, 2023

A Delaware Court of Chancery master has granted Atlantic Concrete’s motion to dismiss in a lawsuit involving a Lewes-area neighbor who challenged the company’s operations as unlawful.

The suit was filed by Julian Karpoff, a Villages of Five Points resident, over Atlantic Concrete moving some of its cement batching operations to a parcel of land adjoining the subdivision. Atlantic Concrete has operated on a 4.97-acre piece of land on Old Orchard Road since 1970, and in 2001, it bought a second parcel between its main plant and the Villages of Five Points, which began development in 2003. Atlantic Concrete did not operate on the second parcel until June 2021, after Sussex County officials deemed the original parcel nonconforming. 

On the second parcel, Atlantic Concrete began a concrete recycling operation, where the company dumped and broke cement using a pneumatic breaker device, which, according to court documents, “emits noise and vibration like a pile driver.” Operations would run from 7 a.m. to 3 p.m.

Karpoff, whose property is near these operations, claimed that the breaker produced excessive noise and dust, and was generally disruptive to the Villages of Five Points residents closest to the facility. According to court documents, Karpoff first brought his complaints to Janelle Cornwell, director of Sussex County’s Department of Planning and Zoning at the time. He told Cornwell that Atlantic Concrete’s activities were a nonconforming use that Atlantic did not have an exception for. Shortly thereafter, Cornwell left the office and was replaced by Jamie Whitehouse.

In April 2022, Whitehouse ruled that Atlantic Concrete’s operations were a valid expansion of Atlantic’s pre-existing land use. Karpoff appealed to the county board of adjustment, but the appeal was stayed. In July, Karpoff filed suit with the Court of Chancery, seeking to have the use of the site declared unlawful. 

Sussex County, which was a defendant in the suit, sought to compel Karpoff to pick a venue, the court or the board of adjustment. Atlantic Concrete went one step further and asked for the suit to be dismissed. Karpoff, on the other hand, sought to move the case forward to discovery. 

Chancery Court Master Selena Molina heard oral arguments in the case in November and ruled with Atlantic Concrete, granting the motion to dismiss, which rendered moot the county’s motion to compel. 

In her decision, Molina said the proper venue to hear Karpoff’s case is the board of adjustment, and he should pursue his appeal there. She said the board can determine whether the use of the Atlantic Concrete property was nonconforming, and a parallel process with the board and the court was not necessary. 

Karpoff, a retired attorney with a background in commercial litigation who is representing himself, said he filed the suit in Chancery Court because of its discovery procedures. He said during the limited discovery he was able to pursue in the suit, county officials admitted, in writing, that the planning and zoning director’s reasoning for supporting Atlantic Concrete’s use of the property was mistaken.

Of living near the facility, Karpoff said, “Living next to the concrete recycling operation is like living next to a pile driver. In addition to the noise, my house shakes. The operation consists of dumping the residual cement from the trucks daily. The cement hardens into concrete, and when the 5-acre parcel is full, they use a skid breaker to break the resulting concrete into basketball-size chunks, which are then loaded onto dump trucks to be crushed elsewhere. This breaking operation lasted about six weeks in January-February 2022, somewhat longer in July-August 2022, and restarted last week.”

He said his ultimate goal is to stop the concrete recycling operations.

The board has not yet scheduled a date to hold a hearing on Karpoff’s appeal, as it was not on the board’s March 20 agenda. The next scheduled board meeting is Monday, April 3, but an agenda has not yet been released.

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