3/6/2014
Supreme Court Chief Justice Strine supports Councilman Weiner; questions Stoltz' lawyers arguments

In his 1st case, Supreme Court Chief Justice Strine supports Councilman Weiner; disagrees with Stoltz' lawyer "Is [Councilman Bob Weiner] expected to be his own adviser simply because he has a law degree?" Strine asked. The developer’s lawyer noted that Weiner was a veteran councilman and an attorney who should have known what information is available to the Council before the rezoning vote. Strine also questioned that argument.

Strine questions Barley Mill owner's assertion that judge overreached;
Delaware Chief Justice Leo Strine, presiding over his first case as a new member of the state's high court, questioned the arguments made Wednesday by the owner of Barley Mill Plaza in Greenville that a lower court judge overreached when throwing out the project's rezoning.

Written by Adam Taylor, News Journal 3/6/14

Delaware Chief Justice Leo Strine, presiding over his first case as a new member of the state's high court, questioned the arguments made Wednesday by the owner of Barley Mill Plaza in Greenville that a lower court judge overreached when throwing out the project's rezoning.

The property owner, Barley Mill Plaza LLC, an entity affiliated with Stoltz Real Estate Partners, appealed a Chancery Court decision that invalidated the Council's 2011 vote to rezone nearly 40 percent of the 92-acre office park at Del. 141 and 48. The owner's lawyers argue that Chancery Court Vice Chancellor Sam Glasscock III shouldn't have dug into New Castle County Council meeting records to determine Councilman Bob Weiner's reasoning for his vote.

"The court's function is not to review records and figure out what a Council member's reason was," Stoltz lawyer Christian Wright said during a hearing on the owner's appeal of Glasscock's ruling. "At the end of the day, Councilman Weiner gave the reason for his vote. You don't go through the records to see if there are other reasons for the vote."

But Strine asked why it isn't OK to read meeting minutes to find the rationale offered by the Council member just before the vote. "Not even five minutes before?" Strine asked.

Wright noted that Weiner was a veteran councilman and an attorney who should have known what information is available to the Council before the rezoning vote. Strine also questioned that argument.

"Is he expected to be his own adviser simply because he has a law degree?" Strine asked.

At issue is Glasscock's ruling that Weiner's deciding vote was "arbitrary and capricious" because he said he wished he had traffic data before the vote. Save Our County, the group that sued Stoltz and the county after the rezoning was approved, said in its suit that Weiner was told by a Stoltz attorney and a county planner that traffic data is reviewed later in the approval process, not before the rezoning vote.

Glasscock ruled that Weiner was misled. While County Council wasn't required to have the traffic data before the vote, it certainly had the right to the data and could have tabled the vote if it wanted the information before the vote was taken.

But Wright said Weiner's earlier comments during the Council meeting bemoaning the lack of traffic data weren't relevant. Immediately before Weiner cast his vote, he said he was voting in favor of the rezoning based on the positive recommendation in a report the county Land Use Department issued on the project.

Save Our County attorney Jeff Goddess told the court that Stoltz's argument puts too much weight on the Land Use Department's report, "as though it's an antibiotic or kryptonite or something."

Goddess said he thinks the entire Land Use Department's report should be considered invalid, because traffic was the biggest concern of the community about the project, which he referred to as a "regional shopping mall."

Issuing a positive report on the project before DelDOT reviewed potential traffic impact is unthinkable, Goddess said.

"That would be like saying, 'I'm doing a report on a pig farm, but don't bother yourself with the odor. DNREC will take care of that,'" Goddess said. "They turned a blind eye to traffic."

Wright told the court that traffic isn't one of the five elements in the county's Unified Development Code on which Council members must base their rezoning votes. Justice Henry duPont Ridgely wondered if traffic can be considered by the Council at all.

"If it's the worst possible traffic study ever, that said traffic would be snarled and nobody could go anywhere, would that be a basis for a 'No' vote?" Ridgely asked.

Wright explained that approving a rezoning without a traffic study doesn't jeopardize the community. After the rezoning, a traffic study is produced. The Barley Mill development plan couldn't be recorded until DelDOT approved the study and required Stoltz to pay for a part of the road improvements needed.

Strine asked whether this process would still leave the Council without a say in the project, because the Council's final vote to record the plan is ministerial. In other words, if the plan is code compliant, Council members must vote to approve it. If it's not, they must vote to reject it.

Wright said the process is sound because DelDOT engineers and county planners are competent and wouldn't approve a plan that included a nightmarish traffic study such as the one Ridgely described unless significant improvements were made.

Strine questioned whether the portion of Barley Mill Plaza that was rezoned would remain with a commercial designation even if Stoltz's plan was ultimately rejected. Wright said it would not. It would revert to its original office zoning designation, he said.

"If the record plan dies, the rezoning dies," Wright said.

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

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