Lewes property owners sue city over rezoning

Council’s denial of request challenged in Court of Chancery
January 15, 2018

Two Lewes brothers have filed a lawsuit against the City of Lewes, seeking to overturn denial, last fall, of a rezoning request. 

Mayor and City Council denied an application from Jerome and William Virden to rezone a portion of their Kings Highway property from R-2, low-density residential, to R-4, medium-density residential. The property has been split-zoned since a 2015 land swap with the previous owner of the existing Lewes Public Library property.

The Virdens had sought to rezone their entire property to R-4 because the adjacent library property, now owned by the city, had been R-4 prior to being rezoned by the city to open space. 

Council denied the rezoning request, in part, because the Virdens’ property no longer bordered R-4. 

In a filing with the Court of Chancery, Virden attorney Vince Robertson claims the city erred on several fronts when making its decision. Charging the decision was arbitrary and capricious, Robertson also says council improperly accepted testimony after it had closed the record. 

Council held a public hearing on the request Aug. 15, but did not make its decision until Sept. 11. At the September meeting, council allowed members of the public to make comments prior to the decision. Robertson argues the meeting was not advertised as a public hearing, and testimony should not have been received or considered by council. 

Council voted 3-2 to deny the application. Mayor Ted Becker, Councilwoman Bonnie Osler and Councilman Rob Morgan voted in favor of denial. 

The difference between R-2 and R-4 zoning is density, or the number of units permitted on the parcel. Under R-2, a property owner may build with a minimum lot size of 10,000 square feet, while the minimum lot size for R-4 is 5,000 square feet. 

Along with the parcel in question, the Virden family owns three other adjacent properties, all zoned R-2. The Virden family has owned the property in question since 1908. 

Robertson also argued that by not granting the R-4 rezoning, the Virdens’ property will be nonconforming if the new, smaller section is changed to R-2 to match the zoning of the existing parcel. 

Since the Virdens’ original property had no frontage on any roads, the addition of the new section creates an access point on Kings Highway. Under R-2 zoning, a property is required to have 75 feet of frontage, but this property has only 69 feet. Robertson argues rezoning to R-4 would alleviate this problem, because the minimum frontage requirement is only 50 feet. 

In the lawsuit, Robertson is seeking validation that council’s decision was arbitrary and capricious, that council followed improper procedure, and that the Virdens did not receive a fair and impartial hearing. He seeks reversal of the denied request and that the city pay the Virdens’ court costs. 

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