Lingo-Townsend Associates takes Sussex County to court

Lingo-Townsend Associates LLC has filed a lawsuit against Sussex County Council over council’s denial of a zoning change that would have paved way for the Village Centre shopping and office complex on 46 acres of land off Kings Highway, Lewes.

LT Associates is asking the Court of Chancery to review and reverse council’s 3-2 decision with council members Joan Deaver, Mike Vincent and George Cole voting in opposition and Vance Phillips and Sam Wilson voting in favor. On Oct. 14, 2009, the planning and zoning commission recommended denial of the application by the same 3-2 margin.

The suit’s first count alleges the council’s decision was not supported by substantial evidence on the record of the public hearing, elements required by law were not considered and the decision was arbitrary and capricious.

Attorney Dennis Schrader, spokesman for LT Associates (LTA), said decisions on an application should be based on its merits and evidence presented during public hearings, and no more. “LTA believes that protests, yellow signs and an email and telephone barrage should not be basis for a land-use decision,” he said. Although all five members of council are named in the lawsuit, Deaver is named separately in the second count.

The suit alleges Deaver opposed, and encouraged opposition to, the application before the public hearing and decision-making process. It also alleges she met with groups opposed to the application. The suit alleges Deaver, prior to being elected to council, sent letters in opposition and represented a group opposed to a similar LT Associates application. Because of her actions, the suit claims, Deaver should have recused herself from participating in discussions on the revised application.

The suit claims Deaver’s bias, predisposition and actions against the application so tainted the proceedings that the application could not have received a fair hearing as long as she participated in the proceedings.

Under council rules, with a tie 2-2 vote applications are not approved.

Deaver said she has received many calls about the lawsuit, but can’t comment on it. Phillips also said he could not comment.

Schrader referred to a 2005 court ruling, Gibson vs. Sussex County Council, which stated in part: “In making a land-use approval decision, the council is not free to bend to the prevailing breeze, but must rationally and fairly apply its zoning code and regulations.”

LT Associates believes the record in support of the application was more than sufficient to warrant approval, Schrader said. LT Associates is asking the court to determine if council’s reasons for denial were legally sufficient and based on county code, not on vocal sentiment from Lewes residents, he said.

LT Associates is asking the court to declare that Deaver denied the applicant a fair hearing and the appropriate remedy is to grant the application. The developer is also seeking all court costs and attorneys’ fees.

Vince Robertson, assistant county attorney, has been assigned to the case. County attorney J. Everett Moore has recused himself because he has business dealings with LT Associates.

Robertson could not be reached for comment, but in similar cases, the county has had between 20 and 30 days to respond.