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7/19/2013
Judge's Final Order: Barley Mill rezoning vote invalidated because Councilman Bob Weiner was only Councilman to demand...and be denied ... his right to traffic data.

Councilman Bob Weiner said he wished he had the traffic data before his vote, so Vice Chancellor Glasscock ruled that his vote was invalid. Because the vote to approve the rezoning was 7-6, the judge’s ruling means the rezoning vote didn’t pass. Glasscock ruled that County Council was given bad advice by county officials.


NCCO REZONING CASE: Order starts clock ticking for Barley Mill appeal 

By Adam Taylor  The News Journal 7/19/13

A Delaware Chancery Court judge has issued an order that makes official his recent ruling that invalidated New Castle County Council’s vote to rezone nearly 40 percent of the Barley Mill Plaza office complex in Greenville.

Vice Chancellor Sam Glasscock III’s order, issued Wednesday afternoon, triggers the 30 day clock that property owner Stoltz Real Estate Partners has to appeal the decision to the Delaware Supreme Court, county spokesman Antonio Prado said.

Stoltz spokesman Tom Gailey declined comment Thursday on whether the development company would appeal the case. Stoltz wants to put 1.6 million square feet of office and commercial space on the site at Del. 141 and Del. 48.

Jeff Goddess, the attorney for the citizens group Save Our County Coalition, said attorneys in the case have discussed the possibility that Stoltz would appeal the decision in recent discussions mandated by Glasscock. The judge wanted the attorneys’ input in crafting language for the order that captured his June 11 decision to invalidate the council’s October 2011 vote.

“County Council’s attorney Bob Katzenstein and myself said, ‘Why try to craft an order that would encapsulate what County Council should do when there very well might be an appeal?’ ” Goddess said.

Save Our County sued Stoltz, the county and County Council over the rezoning, saying that the results from a traffic-impact study should have been considered before the rezoning vote.

Stoltz and county officials contended that the time to review traffic data was after a rezoning vote, not before it. Glasscock ruled that County Council was given bad advice by county officials. While council members weren’t required to have the traffic data before their vote, they were entitled to it.

Bob Weiner said he wished he had the data before his vote, so Glasscock ruled that his vote was invalid. Because the vote to approve the rezoning was 7-6, the judge’s ruling means the rezoning vote didn’t pass.

The county’s position on the lawsuit changed in November 2012, when County Executive Tom Gordon took office. Under the previous county executive, Paul Clark, the county defended itself against the suit.

Gordon railed against the rezoning in his successful campaign against Clark, whose wife Pam Scott was Stoltz’s attorney until March 2011.

After his election victory, Gordon took the extraordinary step of changing the county’s legal position in the case. Even though the county was a defendant, it argued in support of Save Our County, with Gordon saying he hoped the county loses the court case.

Gordon could not be reached Thursday, but his spokesman said Gordon was happy with Glasscock’s order. “His opposition to Barley Mill was a big part of his platform when he ran for this office,” Prado said. “This is looked at as a big promise kept.” Stoltz has options for its next step at Barley Mill. It could: 

» Appeal the decision in court. 

» Try to go through the rezoning process again. 

» Try to move forward with an earlier 2.8-million- square-foot mixed use plan. 

» Come up with a new proposed use. A land-use attorney with no involvement in the Barley Mill case said an appeal makes the most sense. “Assuming Stoltz believes a legal basis exists to file an appeal, an appeal would seem the most logical next step,” Shawn Tucker said. “Even if the appeal failed, Stoltz could still pursue a new [rezoning] hearing and vote before County Council later.'

Prado said the county is confident the state Supreme Court would uphold Glasscock’s decision. 

Contact Adam Taylor at 324-2787 or ataylor@delawareonline.com.

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