Sussex defends public record in lawsuit

In an answering brief filed last week in Delaware Chancery Court, Sussex County's legal team says the developers of the proposed Overbrook Town Center failed to show council's vote denying rezoning was arbitrary and capricious or not supported by substantial evidence in the record.

Council voted 4-1 April 12, 2016, to deny a rezoning request by TD Rehoboth LLC, a Timonium, Md. Developer, for a 114-acre parcel of farmland at the Route 1-Cave Neck Road intersection that would have paved the way for a 850,000 square-foot-shopping center, the largest commercial complex ever proposed in the county.

Developers TD Rehoboth LLC and Overbrook Acres LLC filed suit June 8, 2016, against council stating three council members who voted against the application made statements not supported by the public record. They are requesting that the “vote taken to deny the rezoning of the property should be permanently enjoined and a new vote ordered.”

Council members Mike Vincent, Sam Wilson, George Cole and Joan Deaver, who has since retired, voted against the application. Councilman Rob Arlett voted in favor.

In the county's 44-page brief, attorney David Rutt lays out a detailed explanation of each council member's comments answering the plaintiffs' contention that council's decision was not based on the record. Reasons for denial vetted by the council included traffic concerns, impacts on adjacent farmland, issues with the future of crop dusting on nearby farms, impacts on the adjacent Great Marsh and the inappropriateness of commercial zoning based on the surrounding area.

Rutt wrote that according to the law, the reviewing court's role “in reviewing a zoning decision is limited to reviewing the record to determine whether the decision is supported by substantial evidence, and if so, whether the decision is arbitrary and capricious.” According to the brief, the council created a record in order that withstands judicial challenge.

“Each council member explained their reasoning and then cast their vote,” he wrote.

The plaintiffs' brief paid particular attention to Wilson's comments. Wilson spoke at length highlighting reasons for and against the application. “Plaintiffs' analysis of his vote points only to his statements in favor of the application to argue that his reasoning demonstrates support for the application. However, they completely ignored Councilmember Wilson's very clear intent to give a sense of both sides of the issues before council,” Rutt writes. “Councilmember Wilson gave an adequate and rational explanation for his vote.”

According to the brief, Cole cited the 14 reasons for denial listed by then Planning and Zoning Commissioner I.G. Burton. In addition, Rutt writes that Deaver's concern for the size of the commercial rezoning is “clearly related to the public's health, safety and welfare” and can “impact traffic, environmental issues and other matters clearly within council's legislative authority.”

The plaintiffs contend that Vincent offered only one reason. Hutt writes that Vincent – the last to speak – offered several reasons including those stated by Deaver and Cole. He also stated his concerns for property rights of adjacent farmers and impacts on crop dusting.

Rutt writes that council must consider the impact of any proposed rezoning on the surrounding properties as they exist. “Plaintiffs have submitted no evidence that council could not, would not, impose a similar restriction on a similarly situated agricultural-residential property. There has never been a similar rezoning application in the county,” he writes.

In addition, he writes that the plaintiffs' “clearly self-serving and misplaced opinion that a commercial center of this magnitude is more appropriate adjacent to farmland than a residential community is not supported by the record.”

Sussex County is joined in the lawsuit by a group of resident intervenors, including John and Judy Vincent and Kenny and Susan Hopkins whose farms border the proposed shopping center.

The court could rule to deny the appeal or grant the appeal and force a council revote.