New Castle County Residents File Suit To Overturn Rezoning Of Barley Mill Plaza

The “Save Our County” news release on their Delaware Chancery Court - Barley Mill Plaza Lawsuit: We are asking the Court to overturn this rezoning and send it back to Council for an informed debate and vote. This would provide the opportunity for a full and frank discussion of the true traffic impact on our community and whether this proposal would need to be downsized. The timing and scope of needed road improvements, and who pays for these upgrades, would also be identified -- all based on thorough, in depth traffic analysis. Council would then be in a position to make an informed decision as to whether this rezoning should occur at all or on what terms.

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New Castle County Residents File Suit To Overturn Rezoning of Barley Mill Plaza

Wilmington, Delaware-- The civic association “Save Our County” and four individual plaintiffs filed suit in the Delaware Court of Chancery seeking to overturn New Castle County Council’s approval of Commercial Regional rezoning at Barley Mill Plaza. Among other things, the suit contends that the County should not have granted the zoning change from Office Regional requested by the Stoltz real estate organization ("Stoltz") without following the mandate of Delaware law to first consider existing and projected traffic impact.

On October 25, the County Council approved, by a bare 7-6 majority, developer Stoltz’s proposal calling for a more intensive, commercial use at the site it purchased from DuPont in 2007. The Council’s decision capped several years of local and regional opposition to various plans for the site by Stoltz, which represented the owners and wealthy investors in the parcels.

Stoltz proposes to build a large regional mall with high traffic pad sites along Route 141 at the site. The suit alleges that Commercial Regional zoning, the most intensive commercial zoning status available and intended to attract retail activity from throughout the region, was inappropriately granted to a site primarily surrounded by residential and low impact use uses, and where significant traffic congestion and other problems already exist. Plaintiffs claim that state law required Council to consider effects of existing traffic, projected traffic growth in the area, and projected traffic generated by the proposed Barley Mill development as a regional shopping area. Neither the Council nor the County Department of Land Use, which recommended approval of Stolz’s proposal, had done so.

David Culver, general manager of the Land Use Department and who reports directly to County Executive Paul Clark, is also named as a defendant in the case, as well as New Castle County, the Department of Land Use, County Council, and Barley Mill LLC, applicant for the rezoning and property owner of record. The individual plaintiffs of record are local residents whose homes are located at various points near the Barley Mill Plaza site.

Attorney Joseph Kelly, a leading member of “Save Our County,” said, “Residents throughout New Castle County are quite frankly shocked that aproject of this magnitude and precedence was approved without regard to expert traffic data, despite clear state law requirements. The lawsuit seeks simply to ensure that our decision makers follow the law and review all relevant and appropriate data in order to make informed decisions on behalf of county residents. I am convinced that once a full traffic analysis is presented, it will show that this project or any alternative project must be significantly downsized or scrapped altogether.”

Plaintiff Thomas S. Neuberger, an individual plaintiff in this case, stated, “It was irrational and arbitrary to rezone property bigger than 5 football fields, found along two major highways and in our home neighborhoods, without first requiring a completed traffic study, as state law requires. But instead the County narrowly gave in to the big bucks pressure and threats of the Stoltz machine which never saw a quiet residential neighborhood it did not want to destroy. Fortunately, the Delaware courts will not be bullied or outsmarted by Stoltz, as were the politicians. The other plaintiffs and I will never give up and will fight Stoltz to the end on this new battlefield where the law and not politics will decide this David and Goliath battle.

Mail contributions toward this legal action to: Save Our County, PO Box 4164, Wilmington, DE 19807-0164. soc@hushmail.com - The future of our County is in our hands.

And here's more from (News Journal) Adam Taylor today ~ Group files suit seeking to overturn Barley Mill development vote
...County Attorney Gregg Wilson said Tuesday he hadn’t seen the suit, so it was difficult for him to comment in detail. But Wilson said the intersection has been sufficiently studied by DelDOT for years. In addition to the county government, the suit names County Council, the county Land Use Department, Land Use Department General Manager David Culver and Barley Mill LLC, the owner and developer of the site, as defendants. The suit identifies Keith Stoltz of Stoltz Real Estate Partners as member of Barley Mill LLC.

.... The suit also alleges other “procedural irregularities,” such as adding on 10 deed restrictions late in the process that the suit says “turned the tide” of the Oct. 25 council vote. The legal action is also critical of the Land Use Department’s recommendation that council approve the rezoning. The suit claims that the report, and by extension the council’s vote, could have been influenced by the fact that Pam Scott, County Executive Paul Clark’s wife, was Stoltz’s attorney for three years, until March. Scott resigned from the Saul Ewing firm after the county Ethics Commission said either Scott or Clark would have to step down from their positions to prevent a conflict of interest on Clark’s part. Because Scott was Stoltz’s attorney for so long, the suit claims that the “orientation and mindset” of the Land Use Department officials who authored the report was skewed because of Scott’s former role as Stoltz’s attorney. “The departmental review should be conducted and then reported with total impartiality,” the suit says.