11/6/2013
Delaware Supreme Court to hear case dealing with traffic, rezoning issues

Justices could decide if counties have to think of traffic in process

Nov. 6, 2013 11:31 PM   Written by Maureen Milford The News Journal

An appeal of a court ruling that struck down the rezoning of Barley Mill Plaza in Wilmington could result in the Delaware Supreme Court weighing in on whether state law requires counties to consider traffic issues before voting to rezone land to another use.

Barley Mill LLC, the Stoltz entity that owns Barley Mill Plaza and sought to redevelop it for commercial use, appealed in August a decision by Delaware Court of Chancery that found the 2011 rezoning of the office park was invalid. Vice Chancellor Sam Glasscock III ruled in June that a vote by at least one member of New Castle County Council was arbitrary and capricious because Councilman Robert Weiner said he desired traffic data  but was under the mistaken impression that there was no legal way for him to get the information at that stage of the approval process.

But by appealing the ruling, the developer has reopened the door for the citizens’ group Save Our County and homeowners who brought the original lawsuit to raise the argument that a provision within the Quality of Life Act imposes an obligation on County Council to obtain traffic analysis.

Glasscock rejected that argument, although he agreed with Save Our County that the vote was arbitrary and capricious.

Based on the appeal brief, rulings on the state law issue are not consistent. A prior Chancery Court decision found that Delaware law mandates that County Council consider traffic analysis by the Delaware Department of Transportation before deciding on a rezoning

Jeffrey Goddess, the lawyer for Save Our County, said his clients would have stayed silent on the state law issue if Stoltz had not appealed. But with the filing of the appeal, Save Our County has cross appealed to the Supreme Court, saying Glasscock erred on the state law issue although it agrees with his reasons for invalidating the vote.

New Castle County, which filed its own cross appeal, was aggressive in arguing in the lower court that state law required County Council to consider a traffic analysis before a vote on a rezoning.

“While perhaps the statute could have been more artfully drafted, the county believes the language is free from ambiguity,” Sidney Liebesman said. “Reading the statute as a whole leads inescapably to the conclusion that a traffic analysis was required and should have been considered before the vote.”

The Supreme Court could decide to interpret the provision dealing with traffic issues in the zoning process or it could suggest that the General Assembly look at the statute, observers say. It’s expected to hear the case early next year.

Contact Maureen Milford at 302-324-2881 or mmilford@delawareonline.com.

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