Ruling in favor of Millsboro chicken plant upheld

A Millsboro-area grassroots environmental group is running out of appeals in its quest to halt a chicken processing plant on the outskirts of the town.

A Superior Court judge has affirmed a Sussex County Board of Adjustment decision giving Allen Harim Foods LLC a special-use exception to operate a chicken processing plant at the site of the former Vlasic pickle plant.

After hearing an appeal filed by Protecting Our Indian River and several residents, Judge Richard Stokes ruled July 2 that the board's Nov. 5, 2013 decision was procedurally valid. Stokes's decision can be appealed to Delaware Supreme Court.

The appellants alleged the board erred in its decision because it acted outside its jurisdiction; granted the exception to an improper party; made a determination based on a record that reflected insufficient evidence to ensure public health, safety and general welfare; and failed to adhere to due-process standards by providing adequate public notice.

Stokes ruled on the side of Allen Harim that the proper party filed the application, due-process notice requirements were satisfied, jurisdiction was proper and the decision was supported by substantial evidence.

In November 2014, the group – along with The Inland Bays Foundation – lost an appeal before the state's environmental appeals board of the Delaware Department of Natural Resources and Environmental Control-backed brownfield plan.

The brownfield plan requires monitoring groundwater at the site and at one off-site public well at nearby Holiday Acres. It also provides a management plan for any contaminated soils found during construction and renovation at the site.

Judge rules against all appeals

The judge found the case could have been dismissed due to a technicality – the appeal names Pinnacle Foods Corp. as owner of the property when the actual owner is Pinnacle Foods Group LLC.

“To the extent there was discretion to dismiss the appeal, however, the court preferred to decide the case on its merits,” Stokes wrote.

Allen Harim plans to purchase the 107-acre parcel and convert the former pickle-processing plant to process up to 2 million chickens per week.

The appellants alleged the decision was void because only Pinnacle – the record property owner – had standing to file an application.

Stokes ruled that it's undisputed that Allen Harim was the advocate for the special-use exception application. However, he said, code does not limit potential applicants to only one record title owner of a property. “Multiple persons can have various interests in the same parcel,” he wrote. “At the board of adjustment level, there is a long-standing practice in Delaware permitting investors who are not the legal title owners to apply for special-use exceptions.”

The appellants alleged that the board of adjustment did not have authority to grant the application. Stokes stated that the State Zoning Act of 1924 provides for a board of adjustment granting it the power to “hear and decide special exceptions.”

In addition, he wrote, the Delaware Constitution provides authority to Sussex County to develop zoning regulations. The code provides for the creation of a board of adjustment of five members appointed by Sussex County.

Stokes wrote that the board's duties are to hear and decide appeals, decide on special exceptions and to hear and decide variances.

“The Board of Adjustment properly exercised their express and implied jurisdictional authority by directly accepting the application for a special-use exception....” Stokes wrote.

The appellants also alleged that insufficient evidence was presented to support the board's decision.

Stokes wrote in the 47-page ruling the extent of evidence presented by Allen Harim including testimony and reports from various county and state agencies. The board of adjustment also left the public record open to accept additional testimony from state agencies. “It is significant that not a single objection to Harim's application was raised by an authority the board of adjustment consulted,” Stokes wrote.

“Many of the comments reiterated the authority to review the project for permitting purposes and requested updates should there be any modifications to the application. Their acquiescence combined with their duties to engage in a continued monitoring of the proposed Harim chicken plant provide assurances that the public health, safety, moral and general welfare would be properly protected,” Stokes wrote.

The appellants argued that testimony from several key agencies was missing including Sussex Conservation District, the Environmental Protection Agency and Delaware Center for the Inland Bays.

Stokes ruled that it was not necessary for each of these agencies to be consulted for the board to make a decision. He said the conservation district did not respond to a June 18, 2014 letter. He wrote that it's DNREC – an agency that did provide comments – and not the EPA that has been delegated as the permitting authority to enforce and monitor federal environmental regulations in the state and county.

He said the same reasoning can be applied to consultation from the Center for the Inland Bays.

Stokes said the scope of the board's duties includes reviewing proposed plans, testimony and input from state agencies according to Sussex County code. “The board has satisfied that duty by considering ample evidence submitted by Harim, testimony and comments from agencies offering support or noting nonobjections to Harim's application. Based on the extensive record, the board's determination was legally sound,” Stokes wrote.

The appellants alleged there were issues with public notification of hearings, in particular confusion created when the board voted in June to require another round of public notifications. “The purpose of public notice requirements were fulfilled – the public was in fact on notice that this was a pending matter and was apprised of the time and place for the scheduled discussion,” Stokes wrote. “Adequate notification was provided and those interested in participating in the process were welcome to participate.”

The judge noted that board received more than 200 letters and 12 emails during the public comment period, including many from the appellants.

Members of Protecting Our Indian River did not respond for comment before presstime.