Court: Sussex County Council must revote on Overbrook Town Center
Scott Goss
A Chancery Court judge on Friday invalidated a 2016 zoning decision that effectively blocked construction of what would have been the largest shopping center in southern Delaware.
The ruling means Sussex County Council will be required to re-vote on the proposal from the would-be developers of the controversial Overbrook Town Center planned between Milton and Lewes.
"This is the relief we sought from the court and you're always happy when you get the result you want," said Richard Forsten, the lawyer who represented developers TD Rehoboth LLC of Timonium, Maryland, and property owner Overbrook Acres of Hanover, Virginia.
County spokesman Chip Guy said council members have not yet seen the decision. He declined to comment on whether they will appeal the decision or schedule a re-vote.
"Since Council doesn’t return to session until Aug. 22, any decision on how to proceed will have to wait until at least that time," he said in an email.
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The order issued by Vice Chancellor Joseph R. Slights III on Friday is the latest chapter in a long-running fight over the shopping center proposal that would transform an empty 114-acre field at Del. 1 and Cave Neck Road into a massive strip mall.
With 850,000 square feet of indoor retail space, the proposed Overbrook Town Center would rival the Dover Mall in size. Rather than an indoor mall, the developers' plan calls for six pad sites gradually built around a central parking lot with more than 5,000 spaces.
Before the project could proceed, however, the developers first need permission to rezone the property from agricultural-residential to commercial.
Neighbors vehemently opposed that request, including former Milton Mayor Marion Jones; farmers who own property adjacent to the site; and a group known as the Overbrook Town Center Coalition, made up of people who live in surrounding neighborhoods.
Altogether, more than 1,500 people spoke out against the proposal, according to the county. Many claimed the site would stick out like a sore thumb, hamper the working farms next door and threaten nearby marshlands.
Council ultimately sided with the community and shot down the rezoning in a 4-1 vote decision.
The developers later appealed, claiming that vote was "arbitrary, capricious and not supported by the record." Previous court decisions have required legislative bodies to be clear in their reasoning and base rezoning decisions on the evidence presented.
Slights agreed with the developers, taking particular issue with the votes cast by Councilmen Samuel Wilson and Michael Vincent.
Wilson, he said, gave several reasons for supporting a rezoning before casting his vote against the request with virtually no explanation for his decision.
Vincent, meanwhile, voiced opposition to the rezoning because he believed it would restrict crop-dusting on neighboring properties, something that would occur if the property is developed under the current zoning. Slights determined Vincent's rationale was "arbitrary and capricious."
Slights said those two votes are important because "if cast in the other direction ... the outcome of council's decision on the application would have been different."
Opponents of the project have said they believe it is unlikely the re-vote ordered by Slights will result in a different outcome.
Three of the four council members who cast votes against the project last year still hold seats on the council. Former Councilwoman Joan Deaver did not seek re-election in November, but she was succeeded by Irvin G. Burton, who voted against rezoning while serving as a member of the County Planning & Zoning Commission.
Forsten, however, expressed hope now that his clients have a second chance to win the rezoning they need to begin work on the Overbrook Town Center project.
"I don't think we'd be asking for a new hearing if we thought we'd get the exact same results," he said.
Contact business reporter Scott Goss at (302) 324-2281, sgoss@delawareonline.com or on Twitter @ScottGossDel.