Lawsuit filed against Sussex P&Z

Food & Water Watch alleges commission erred in CleanBay decision
November 19, 2021

Story Location:
Breasure Road
Route 113
Georgetown, DE 19947
United States

Food & Water Watch, alongside and on behalf of an unnamed resident, filed a lawsuit Nov. 12 against the Sussex County Planning and Zoning Commission for its zoning decision regarding CleanBay Renewables’ planned poultry litter recycling plant south of Georgetown.

The petitioners argue that the commission exceeded its jurisdiction and ignored county law when it found that construction at the site was substantially underway, and therefore, CleanBay Renewables’ conditional-use approval could remain in effect.

Food & Water Watch filed the lawsuit after county officials did not process its appeal to the Sussex County Board of Adjustment.

With the filing, Food & Water Watch attorney Emily Miller issued the following statement:

“In flagrant violation of their own county code, the commission’s decision to allow CleanBay Renewables’ zoning approval to remain in effect flies in the face of the law and the best interests of their own constituents. Commissioners claimed they were giving the company the benefit of the doubt when they made this unlawful decision.”

Petitioners are represented by Kenneth Kristl, professor of law and director of the Environmental & Natural Resources Law Clinic at Widener University Delaware Law School.

Sussex County officials do not comment on matters in litigation.

On Sept. 9, commissioners agreed the poultry litter recycling project is substantially underway, a determination used by the county to gauge the status of a conditional use. Once approved, developers have three years to start a project. CleanBay Renewables' conditional use was approved July 31, 2018.

A letter from Kristi Shaw, CleanBay director of environmental and regulatory compliance, said clearing of the right of way, roadway and parking area has taken place. In addition, she said, the company is working with Melvin Joseph Construction Co. on scheduled improvements at the site, which commenced before the end of the 3-year period.

About CleanBay plant

CleanBay Renewables received a conditional-use permit to build a chicken litter nutrient recovery/electrical generation facility on a 17-acre parcel at the intersection of Route 113 and Breasure Road. The plant would be able to process up to 250 tons of litter per day.

Methane gas would be produced using an enclosed anaerobic digestive/fermentation process, and that gas will power generators to provide electricity to the power grid. The company has signed a contract with Delaware Electric Cooperative to purchase the electricity.

Some of the litter will be recycled through a nutrient recovery facility where phosphorus and nitrogen will be separated into a granular phosphorus product to be trucked to markets in the Midwest where it is in great demand. Leftover nitrogen would be turned into a soil product and sold to fertilizer companies.


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