Why Should Delaware Care?
The Sussex County Council has seen a backlash from residents over the onslaught of new developments in the county. Now it also is fielding a formal complaint from the other side of the debate, after a developer sued the county over a zoning denial for a shopping center. If the county loses this suit, its ability to control that development could be limited.
The fight over plans to build a Costco-anchored shopping center in the Lewes-Rehoboth Beach area may not be over after all.
The project’s Baltimore-based developer, Southside Investment Partners, filed a complaint last week in the Delaware Court of Chancery claiming that the Sussex County Council’s denial last month of its rezoning request amounted to a “misapprehension of the applicable law and facts.”
In the lawsuit, the developer also emphasized that the denial came despite a recommendation from county planners that the council approve the rezoning.
“The land use approval process is not a game of ‘gotcha,’” the complaint stated.
The legal claim marks the latest in months of drama over plans to build a 655,000-square-foot retail development – about half the size of the Christiana Mall – that would include a Costco, Target and Whole Foods. The proposal, dubbed Atlantic Fields, would be located about 5 miles from Delaware’s popular beaches and a mile southwest of Route 1.
The claim also highlights years of tension in rapidly growing southern Delaware between developers who say the region needs more amenities, and residents who fear that new projects will bring worse traffic and environmental degradation.
Prior to the vote that denied Atlantic Fields’ zoning request last month, County Councilwoman Jane Gruenebaum was the only councilmember to speak on the issue. The others simply stated they agreed with her comments, which centered around concerns about the tens of thousands of additional cars the project could bring to Route 24, and the lack of housing within the plan.
“The list of transportation deficiencies that exist today or that will be felt if this development gets approved are too great,” Gruenebaum said then.
The Delaware Department of Transportation has plans to upgrade the roads around the development, but they are not likely to be completed until at least the early 2030s — after the shopping center was to have opened in 2028.
Additionally, a scheduled completion date for all road improvements in the larger Cape Henlopen Transportation Improvement District is 2045.
Gruenebaum said she believed that area roads could not handle the added traffic until then.
In response to such claims, the attorneys for Southside Investment Partners stated in their complaint that the company had already agreed as part of their proposal to pay for legally required traffic improvements.
Any delays for the other road work within the corridor should not be a legal reason to stop their project, they said.
“If this were true, then no projects should be allowed to move forward until all the improvements are in place,” the attorneys stated in the complaint.
The complaint further states that Southside Investment Partners spent two and a half years and over $3.5 million preparing for the proposed rezoning.
The county has not yet filed a response to the complaint. A spokesman for the county declined to comment for this story.
A housing requirement?
In her comments last month, Gruenebaum also said she felt that retail developments in C-4 districts — the type of zoning that Southside Investment Partners sought — need to include both housing and retail.
“The housing component is important because it allows people to reside near where they shop, thus cutting the necessary trips on the road,” she said.
But in its appeal, Southside Investment Partners’ attorneys asserted that county officials never said housing was required for its plans to be approved. They further said the plan followed everything in the county code,
The C-4 zoning district that Southside Investment Partners applied for does not appear to explicitly require housing. But county code does state that the zoning district is meant to “encourage carefully planned large-scale commercial, retail, and mixed-use developments.”
