During a daylong appeal hearing over the rezoning of Barley Mill Plaza, Vice Chancellor Sam Glasscock III repeatedly returned to a key issue Monday, whether New Castle County council members were misinformed about their ability to consider traffic impact at the time of their vote.

In 2011, when council voted whether to rezone 37 acres in Greenville for retail redevelopment, at least some lawmakers mistakenly thought they were prohibited from considering traffic, a lawyer for a community group said.

That “erroneous piece of advice” to council members came from a lawyer representing the developer seeking to transform Barley Mill Plaza on Del. 141 and Lancaster Pike into a 1.6 millionsquare- foot shopping center, said Jeff Goddess, lawyer for citizens group Save Our County.

Goddess told Glasscock that some county lawmakers believed they were hamstrung by a 2010 amendment to county law that “pushes traffic matters to the end” of the process – or recordation phase – when they voted for a commercial classification for Barley Mill. At least two council members made re-marks that “they relied on that advice” Goddess said.

Before casting the deciding vote for the rezoning, Councilman Bob Weiner called it a “shame … we lost the traffic data and commitment to needed improvements at the time we exercise our discretionary rezoning authority. That’s at the time of the rezoning vote. When it comes back to us for a record plan approval we’ll only have ministerial authority which means we can only vote yes once we are convinced that there’s been compliance with all the technical requirements of the code. …” But, in fact, the Barley Mill Plaza rezoning application was being processed under pre-2010 procedures, Goddess said. Council members should have considered traffic before the vote under county and state law, Goddess said.

Save Our County appealed the rezoning in Delaware Court of Chancery in 2011 naming the county council, New Castle County and the developer, Barley Mill LLC, as plaintiffs. After Tom Gordon was elected county executive, New Castle County sided with the community group in January. In a twist, the county lawyer argued against the commercial rezoning Monday.

Glasscock appeared to latch on to Goddess’ argument about the council members being misinformed and returned to the issue throughout the daylong hearing in Dover attended by Greenville residents, council members and county officials.

“Let’s assume [a councilman] was mistaken in his interpretation. Was that arbitrary and capricious?” Glasscock asked Goddess. “What is the remedy? To go back and revote?”

Or should it go through the entire process again, Glasscock asked Goddess said not to consider traffic impact was both arbitrary and capricious. The rezoning should be sent back for an informed vote, he said.

“This is the first time a major redevelopment is approved without a traffic study. There is no evidence, no indication of any [major development] without a traffic study,” Goddess said.

Sidney Liebesman, lawyer for the Gordon administration, said the judge should invalidate the rezoning approval and start at the beginning with a new filing.

“This is a project of historic proportions and it’s not a project to make a mistake with,” Liebesman said.

Glasscock continued that line of questioning with lawyers for Barley Mill LLC, which is a Stoltz Real Estate organization entity.

“What if council members erroneously believed they were unable to consider impact of traffic on the neighbors? Does that vitiate the validity of his vote?” Glasscock asked Barley Mill lawyer Christian Wright. “Doesn’t it matter that advice given by developer’s counsel is erroneous?”

Wright replied that Weiner didn’t vote for the project because he believed he was prohibited from considering the traffic impact, but because Weiner thought the plan was “less harmful” than an earlier de-sign.

Kathleen Miller, the lawyer for county council, said members understood what they could consider and they were not told they could not consider traffic. The proceeding ended with Glasscock saying he will try to reach a decision as “promptly as possible.” 

Contact Maureen Milford at 324-2881 or mmilford@delawareonline. com. Contact Adam Taylor at 324-2787 or ataylor@delawareonline.com.