Posted by: Patricia Salkin | May 16, 2014

DE Supreme Court Upholds Lower Court’s Overturning of Rezoning Where Council’s Failure to Consider Traffic Information Was Arbitrary And Capricious Vote

Barley Mill, LLC (Barley Mill) appealed the Court of Chancery’s decision, overturning the New Castle County Council’s (Council) approval of a rezoning ordinance. Barley Mill sought to transform a 92-acre property (Property) into a large development, which included office space and a shopping mall. However, the new plan worried the public because of the potential for an increase in traffic. After Barley Mill initially received approval for the ordinance, Save Our Country, Inc., (Save Our Country) questioned the decision. They argued before the Court of Chancery that the Council was required to consider traffic information prior to the discretionary vote under 9 Del. C. § 2662 (§ 2662). Further, they alleged that the vote was arbitrary and capricious because the Council based its decision on flawed legal advice, as it believed the traffic information to be unavailable and immaterial. The Court of Chancery agreed with Save Our Country, finding the vote to be arbitrary and capricious.

On appeal, Barley Mill contended that the Court of Chancery should not have invalidated the vote. “A rezoning ordinance is usually presumed to be valid unless clearly shown to be arbitrary and capricious because it is not reasonably related to the public health, safety, or welfare.” The Delaware Supreme Court agreed with the Court of Chancery that “(i) the Council was told, by Barley Mills attorney and by the manager of the New Castle County Department of Land Use that the Council could not obtain or consider the Traffic Information before the Council exercised its discretionary vote on the rezoning ordinance; (ii) that advice was incorrect and there were no legal obstacles that prevented Council from obtaining and considering the Traffic Information; (iii) that the mistaken legal advice caused members of the Council to vote without the Traffic Information, which was material and relevant to their decision; and (iv) the mistake of law tainted the final vote because the ordinance passed by only a seven-to-six vote and Councilman Weiner’s affirmative vote was necessary to its adoption.” Additionally, the Traffic Information would have been vital to the vote, as an increase in traffic is “reasonably related to the public health, safety, or welfare.”

Barley Mill, LLC v. Save Our Country, Inc., 89 A.3d 51 (Del. 3/25/2014).

The opinion can be accessed at:

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