Delaware Court Affirms Denial of Wildlife Center’s Special Permit Based on Odors and Traffic

This post was authored by Amy Lavine, Esq.

An application for a special exception to operate a wildlife educational center was found to be consistent with the comprehensive plan in a Delaware case decided in 2019, but the court nevertheless affirmed the denial of its permit application because it failed to provide sufficient evidence regarding its impacts on odors and traffic.

In finding that the wildlife center was consistent with the comprehensive plan the court explained that the application supported the plan’s goal of encouraging “existing businesses… but not large-scale, regional retail uses” as well as the goal of promoting wildlife and natural habitat education. Moreover, by designating wildlife educational centers as a specially permitted use, the court found that the town legislature had already determined that the use conformed to the comprehensive plan.

The court nevertheless upheld the board of adjustment’s denial of the wildlife center’s application because it failed to satisfy all of the ordinance’s requirements for granting special exceptions. First, there was substantial evidence for the board of adjustment to conclude that the wildlife educational center would cause objectionable odors. As the court explained, “Considering that the animals are to be housed outside, the number of total animals is uncertain, and several of the animals are scent marking, a reasonable person could find that odors from urine and other animal waste would produce objectionable odors to neighboring property owners, even though the animals are considered ‘small’, ‘low waste producing’ and Barn Hill provides cleaning and maintenance.” The wildlife education center also failed to provide sufficient evidence for the board of adjustment to determine whether the proposed use would have detrimental impacts on traffic. The only evidence that it submitted regarding traffic consisted of the size of the parking lot and estimated attendance figures, but as the court noted, this evidence provided little to no information about the wildlife center’s likely traffic impacts.

Barn Hill Pres. of Del., LLC v. Bd. of Adjustment, 2019 WL 2301991 (5/29/19).