Federal suit over Townsend Village Centre zoning moves forward

A federal judge has denied Sussex County's motion to dismiss two counts of a federal lawsuit involving a zoning change denied by county council.

A trial date for the case, filed by Lewes-based Lingo-Townsend Associates LLC against the county, has not been set. The discovery phase of the case is ongoing as attorneys seek computer records of Sussex County Councilwoman Joan Deaver, D-Rehoboth Beach, who is named in one of the counts.

Sussex County asked the court to dismiss the two counts requesting compensatory damages because the plaintiff “failed to identify any experts regarding damages and is unable to prove lost profits, future damages, or other compensatory damages which resulted from the alleged due-process violations.”

U.S. Magistrate Judge Mary Pat Thynge did not agree. In an August decision, she wrote that expert testimony is not required to recover compensatory damages. “Lay witnesses identified by plaintiff may provide the required evidence,” she wrote. She said the plaintiff has raised allegations demonstrating a right to relief.

In the two counts that involve compensatory damages, the plaintiff alleges county council “knowing and purposefully denied the application despite compliance with county code,” and that Deaver improperly voted on the application.

The county asked the court to dismiss both counts, but the motion was denied.

Judge Thynge wrote: “Deaver's involvement with plaintiff's applications, as well as her attendance at several anti-commercial meetings, adequately pleads that a potentially partial tribunal denied the application request, constituting a violation of plaintiff's procedural due process rights at the application hearing.”

In court papers, the county has denied those charges, saying Deaver did nothing wrong. According to court documents, Deaver met with members of the Managing Growth Around Lewes group but left the room whenever the project was discussed and did not take part in any protest.

L.T. Associates wants the court to overturn council’s decision and declare Deaver’s conduct improper. The developer also wants compensatory damages and attorneys’ fees.

Shopping center planned for King's Highway

Lingo-Townsend Associates LLC filed a lawsuit against Sussex County Council over its denial of a zoning change that would have paved the way for the 300,000-square-foot Townsend Village Centre shopping and office complex, planned on 46 acres off Kings Highway just outside Lewes limits.

County council voted 3-2 to reject the zoning change Jan. 19, 2010. L.T. Associates appealed the decision to Chancery Court two months later. The developer refiled the case in federal court, which their attorney said had jurisdiction.

 L.T. Associates is asking the court to review and reverse council's decision on two counts. The vote was 3-2 with council members Deaver, Mike Vincent and George Cole voting in opposition and Vance Phillips and Sam Wilson voting in favor. 
On Oct. 14, 2009, the county's planning and zoning commission recommended denial of the application by the same 3-2 vote.

All five members of council are named in the lawsuit, but Deaver is named separately in the second count.

L.T. Associates wants the court to overturn council’s decision and declare Deaver’s conduct improper. The developer also wants compensatory damages and attorneys’ fees.

The developers went through the county review process twice after withdrawing an application Dec. 16, 2008, for a 521,000-square-foot complex on 68 acres. Plans were changed because of concerns expressed by area residents.