Judge upholds Sussex board decision on Allen Harim

A Delaware Superior Court judge has upheld a decision by Sussex County Board of Adjustment to allow Allen Harim a special-use exception for a chicken processing, packaging and deboning facility in Millsboro.

In his written decision issued May 17, Judge Richard F. Stokes said plaintiffs Protect Our Indian River failed to show that the board acted in an arbitrary and unreasonable manner. He said the board properly exercised its jurisdictional authority, did not demonstrate bias, and based its decision on evidence and testimony presented at a public hearing.

Protect Our Indian River, a citizens’ group consisting of eight nearby residents, could still appeal the decision to Delaware Supreme Court. The group’s attorney, Andrea Green, said her clients are reviewing their options.

“It’s disappointing to the members of Protect Our Indian River that their concerns and objections were not accepted by the court as grounds for reversal.  They believe adequate grounds were presented for a reversal,” she said. “The Petitioners believe that the board failed in its duty to protect the health, safety and general welfare of the citizens of Sussex County; the board, and now the court, have not agreed with that assessment.” 

Allen Harim bought the former Vlasic pickle plant in Millsboro in 2013 with the idea of making it a poultry-processing plant. Those plans changed after public opposition and court challenges, and Allen Harim decided to make the plant its new corporate headquarters with a packaging and deboning operation on-site.

Allen Harim went to the county board of adjustment for a special-use exception in January 2018, and a public hearing was held in March. On May 7, 2018, the board approved the special use with two conditions: the approval is limited to poultry deboning and packing of the size Allen Harim proposed, meaning it cannot expand, and an updated spray irrigation system must be up and running before operations begin.

Green said the court overlooked that after the board ruling, Allen Harim sought, and was granted, removal of that condition. 

“So the deboning facility is now fully operational, with the processing wastewater being trucked across the county from Millsboro to Harbeson, where it is treated and released into Beaverdam Creek,” Green said.  “According to DNREC, no spray irrigation permit application has been filed by Allen Harim, and it may be another year before that happens.”

Protect Our Indian River filed suit, saying the findings of fact did not accurately represent testimony at the public hearing, that Protect Our Indian River did not have the opportunity to review material presented by Allen Harim before the hearing, that Allen Harim’s application was incomplete, the board demonstrated bias toward Allen Harim and the board failed to meet its obligation to protect the public’s health, safety and welfare.

In his decision, Stokes said besides exhibits and testimony presented by Allen Harim, the board solicited comment from numerous state and local agencies, including Delaware Department of Natural Resources and Environmental Control, Delaware Department of Transportation and the Sussex Conservation District. Stokes said those agencies raised no objections to Allen Harim’s application.

While Protect Our Indian River argued that the board also needed to seek input from Delaware Division of Public Health, Stokes said the board has discretion over what agencies it needs to contact and was not under any duty to consult with a universe of agencies. He said the board is also allowed to rely on permitting agencies to perform their duties.

Stokes said the board conducted a fair hearing, weighed all the evidence and allowed due process for all parties. Protect Our Indian River had claimed bias when a number of concerns about Allen Harim’s Harbeson facility and health issues related to the plant were dismissed by the board. But Stokes found those claims unfounded and stated a zoning authority should not defer to generalized concerns without specific evidence.

“The expression of fears by witnesses or the mere possibility of negative future events is clearly insufficient to justify the denial of an otherwise permitted use,” Stokes said.