2/18/2014
Delaware Supreme Court will hear Barley Mill zoning case arguments March 5 - The News Journal

By Adam Taylor  The News Journal 2/18/14

Arguments before the Delaware Supreme Court on a New Castle County case that could impact land-use decisions across the state have been postponed until next month.

The Supreme Court was scheduled to hear arguments over a Chancery Court judge’s ruling against the county council’s 2011 commercial rezoning of Barley Mill Plaza in Greenville this week, but delayed the case until March 5. The parties in the case were in-formed of the continuance Friday, attorneys said. The court did not give a reason for the change.

Last June, Vice Chancellor Sam Glasscock III ruled that the council’s 7-6 rezoning vote was invalid, saying Councilman Bob Weiner’s deciding vote was “arbitrary and capri-cious” because he had been misled to believe that he couldn’t have detailed traffic data before the vote. Glasscock said that while the council wasn’t required to have the traffic data before the vote, it could insist on it before the vote was taken. “Never before has a major rezoning taken place in New Castle County when there has not been a traffic study before the vote,” said Joe Kelly, a member of the Save Our County citizens group that appealed the council’s vote to Chancery Court. “That’s really the essence of this case.”

Glasscock’s ruling was appealed to the state Supreme Court by the property owner, Barley Mill LLC, an entity affiliated with Stoltz Real Estate Partners. The entire Supreme Court, including recently confirmed Chief Justice Leo E. Strine Jr., will hear the case. Strine hasn’t been sworn-in yet, but must take his oath no later than Feb. 28. The other justices are Randy J. Holland, Carolyn Berger and Henry DuPont Ridgely. Justice Jack B. Jacobs recused himself from the case for unknown reasons. He will be replaced by Kent County Superior Court President Judge James T. Vaughn Jr. Attorneys in the case said the justices will make their ruling based largely on briefs filed since Stoltz filed its appeal last August. The hearing will be an hour long, with each side getting 25 minutes to speak. Attorneys not involved in the case have said the ruling could have a wideranging impact on landuse decisions by all three counties in Delaware. Sid Liebesman, the attorney for the county’s executive branch, said the case is important for future rezonings.

“It’s about time that New Castle County Council acknowledge what the Kent and Sussex county councils understand to be the law in connection with analyzing traffic studies prior to a rezoning vote,” Liebesman said. “That is what is required by the Delaware Quality of Life Act.” The case might be as bizarre as it is important. Save Our County sued Stoltz and the county. But after Tom Gordon beat incumbent County Executive Paul Clark in the September 2012 Democratic primary and took office two months later, the county changed sides in the lawsuit. While still technically a defendant, the county now sides with Save Our County. So, for more than a year now, the county has been fighting to lose the suit that was filed against it. The county’s reversal led County Council to get its own attorney in the case. Unlike the executive branch, the council is still defending itself in the case. In its appeal briefs, Stoltz attorneys argued that Glasscock wrongly concluded that Weiner’s vote was arbitrary and capricious. They argued that Glasscock delved too deeply into the written record of the case to find Weiner complaining about the lack of traffic data for all rezoning projects, not just Barley Mill. He never asked for the Barley Mill vote to be tabled until after a traffic study, Stoltz attorneys said.

Stoltz attorneys and company officials could not be reached for comment Monday.

Save Our County and the county’s executive branch countered Stoltz’s appeal brief by arguing that Glasscock was correct in saying Weiner’s vote was taken without the traffic data they wanted.

Save Our County’s briefs ask the court to affirm Glasscock’s opinion, and also re-argue other points it made during its suit in Chancery Court, including the notion that state law requires a traffic study before a rezoning vote is taken.

“All of our arguments logically dovetail around the one absolutely unprecedented fact that a plan for a regional mall got to the point of a council vote and was approved by a bare majority in the absence of any traffic studies whatsoever,” Save Our County attorney Jeff Goddess said.

County Council at first decided to not participate in the appeal, saying it defended itself during the first portion of the lawsuit to get direction from Chancery Court about whether traffic data has to be considered before future rezoning votes, council’s attorney Bob Katzenstein has said.

Council achieved that goal when Glasscock ruled that the state’s Quality of Life Act doesn’t require that a traffic study be completed before a rezoning vote. But the council decided to join Stoltz in the appeal after learning that Save Our County and the county’s executive branch would be arguing that Glasscock erred in his analysis of the Quality of Life Act.

Katzentstein declined comment Monday.

Contact Adam Taylor at (302) 324-2787 or ataylor@delawareonline.com.

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