The developer of the proposed Fisher’s Cove major subdivision in Lewes has filed a lawsuit related to the city’s review process that ultimately resulted in denial of preliminary consent in October.
Developer Burke & Rutecki LLC first submitted a major subdivision application in September 2018, seeking 18 single-family home lots on an 11.08-acre parcel off Rodney Avenue near the University of Delaware’s Pilottown Road campus. The property is located in the R-2, low-density residential, zoning district.
The developer alleges the review process was fraught with bias, outside communications with private opposition groups, unnecessary delays, and the imposition of arbitrary and capricious standards, including standards not found in city code.
The lawsuit was filed in Delaware Superior Court Nov. 15. The developer has indicated a federal lawsuit will likely follow.
Alleged bias and conflicts
In the state lawsuit, the developer alleges Mayor Ted Becker advised members of city council that “the owners of Burke & Rutecki were fatigued and would walk away from their pending application if it were voted down.” The lawsuit also alleges the mayor told council there would be no lawsuit as a result of denial because the developer was prepared to sell the property to the University of Delaware. The developer says none of the mayor’s alleged statements are true. The developer claims the allegations against the mayor were brought to them by a sitting member of council through a third-party intermediary.
“The petition does not focus on the city's denial on the basis of merit, but instead calls into question the character of the individuals involved,” Becker said in response. “I categorically deny the allegations contained in the applicant's court filings and look forward to the court so finding.”
The developer is also alleging violations of the city’s rules of conduct, specifically referencing several conflicts of interest and outside communications. The lawsuit individually mentions Councilman Tim Ritzert, former planning commission member Tom Panetta and current planning commission members Melanie Moser, Debra Evalds, Nancy Staisey and Bob Heffernan.
The developer claims that mayor and city council appointed Evalds, Staisey and Heffernan to the planning commission after it remanded Fisher’s Cove back to the planning commission. Each had spoken out, written a letter or signed a petition in opposition to the project, the developer says.
“Mayor and city council intentionally appointed commissioners they knew or should have known were biased,” the lawsuit reads.
All three recused from deliberations and vote on the project, but the developer says Evalds and Heffernan only did so after being confronted with evidence of their bias.
The developer’s allegations against Panetta and Moser were previously expressed in a Nov. 19, 2019 Cape Gazette article published after the planning commission’s first recommendation of denial. To read about those concerns, go to https://bit.ly/3CLWzTR.
In response to the developer’s claims, City Solicitor Glenn Mandalas said, “The city intends to vigorously defend its decision and the allegations in the petition, including the unsubstantiated and unhelpful personal attacks on the mayor, members of city council and members of the city’s planning commission.”
Regarding Ritzert, the developer says he submitted two letters in opposition to the project prior to being elected to city council. Then, they allege, while a member of council, he attended a meeting on Rodney Avenue with residents opposing the project weeks before council’s consideration and vote. The lawsuit says that action at best gives the appearance of impropriety.
Ritzert says the allegation is unfounded.
“It is unfortunate that the petitioners have wrongly challenged my character and that of other members of council rather than staying focused on the merits of their subdivision plan before the court,” he said.
Flawed review process
In February 2019, the planning commission conducted a site visit on the property, allowing planning commission members and the public to walk the site. Such a visit has not been required for any other applicant, the developer argues. In the lawsuit, the developer says attorney Max Walton advised in subsequent training sessions that site visits should not occur for specific applications.
The developer also raises questions about the planning commission’s handling of a public hearing, which it split into two nights two months apart – June 13, 2019, and Aug. 21, 2019. The developer alleges the planning commission had never bifurcated a public hearing in its history.
“The bifurcated public hearing occurred as a direct result of the Concerned Citizens [of Rodney Avenue, Hoornkill & Friends] attorney being unable to attend the scheduled public hearing date; consequently the planning commission extended the hearing to a later date to accommodate his schedule, despite another attorney from the same firm being present at the hearing and prepared to make a presentation,” the lawsuit reads.
The developer says the application was further delayed when the city engaged consultant AECOM to perform a hydrology study analyzing the entire Canary Creek area. The developer says it was charged $18,000 for the study, and the results were not made available until after its June 2019 presentation. The developer again alleges the flood study is not required in city code and has not been imposed on other applicants.
The planning commission’s recommendation for denial occurred in November 2019. The developer says planning commission members when casting their votes cited concerns outside the parameters of the city’s preliminary consent factors.
Among the commission’s concerns was access to the property. Although the developer proposed using Rodney Avenue as the development’s only access, the planning commission determined it would greatly affect the 16 existing homes on the street and encouraged the developer to construct an access through the Fisher House property, an adjacent parcel along Pilottown Road that the developer owned at one time but has since been sold after a lot-line adjustment. In the lawsuit, the developer cites the city’s engineer and planning staff’s assertion that a road through the Fisher House property could not be code compliant.
“Rodney Avenue provides the only viable access, and Burke & Rutecki has a right of access to the landlocked Fisher’s Cove property, and depriving Burke & Rutecki of its legal right of access constitutes a taking,” the lawsuit reads.
Mayor and city council held a public hearing on the application in April 2020. The developer says it was not allowed to make a presentation. At the meeting, rather than approve or deny preliminary consent, mayor and city council remanded the application back to the planning commission for further review of five issues.
The developer submitted a revised subdivision plan in May 2021 addressing the five areas of concern. The city’s planning staff responded with 54 comments and requested revisions to the plan. The developer says many of the requested revisions exceeded the scope of preliminary consent review, and nearly all of the items exceeded the areas that were supposed to be addressed in city council’s remand to the planning commission. Despite that, the developer says its engineer responded to all comments in a June letter.
Another public hearing before the planning commission was held in July. The developer says its presentation was arbitrarily restricted to 20 minutes, preventing its team from addressing all areas of concern. The developer also alleges its attorney was given an earlier deadline than the opposition’s attorney for submitting their respective presentations.
The planning commission again recommended denial of preliminary consent in September. The developer says the second denial relied on several reasons outside the scope of the remand and city code.
Mayor and city council held a public hearing on the second recommendation in October. The developer says it was not permitted to make a presentation, nor were the “unrefuted opinions” of its expert consultants addressed. Council voted 3-1 with one recusal to deny preliminary consent.
“The preliminary consent decision contains 12 reasons for denial, largely relying on the erroneous and unsupported findings of the [planning commission’s] second recommendation report and otherwise not based on the legal standards and facts before mayor and city council,” the lawsuit reads.
The lawsuit refutes several of council’s reasons for denial.