Three members of Delaware's Supreme Court decided March 23 Kent County cannot require companies to comply with regulations changed after work begins on land development applications.


Three justices on the Delaware State Supreme Court said March 23 Kent County cannot require companies to comply with regulations that are changed after work begins on land development applications.

The decision by Justices Carolyn Berger, Randy J. Holland and Henry duPont Ridgely reverses a Chancery Court case that was in Kent County’s favor.

In this case, Chase Alexa, which had applied to build a 166-acre residential subdivision, dubbed Winterberry Woods, west of Wyoming, argued it did not have to comply with the county’s new Adequate Public Facilities Ordinances because it had met the regulatory requirements in effect at the time it applied. The company sued when Kent County officials decreed otherwise.

“What the court said is that as long as you file a preliminary subdivision application within six months of your pre-application meeting, then the rules that apply to your project from that point forward will be whatever the rules are in effect at the time of the pre-application meeting,” said John Paradee, attorney with Prickett, Jones & Elliott. Paradee represented developer Rodney Mitchell’s Chase Alexa LLC in the suit.

Calls made to Kent County Administrator Mike Petit de Mange requesting comment on the Supreme Court decision were not returned prior to press time.

The timeline of the case showed Chase Alexa submitted its concept plan and held a preliminary conference with Kent land use officials in May 2005 and turned in a revised plan and held its second preliminary conference in March 2006; in July the company submitted an application for a preliminary subdivision plan. The Regional Planning Commission approved the preliminary plan in September 2006.

From October 2006 to March 2007, Kent County Levy Court enacted four Adequate Public Facilities Ordinances, but backdated their effective dates to June 2006.

Chase Alexa attorneys argued the company should not be subject to the new ordinances, but after being told otherwise, filed suit against the planning commission, Levy Court and their individual members.

The case was heard by Chancery Court and decided in Kent County’s favor in April 2009; Chase Alexa filed the appeal in January 2010.

In its lawsuit, Chase Alexa argued it complied with requirements in Kent County code that it was not subject to the new APFOs because it filed its preliminary paperwork on Winterberry Woods within a six-month required timeframe. County attorneys counter argued Levy Court and the planning commission would be deprived of its rights to change zoning regulations and apply them to applications already in the review process.

The Supreme Court justices decided Chase Alexa’s argument trumped that of Levy Court.

“… it follows that applicants who meet the six-month deadline need only comply with the standards in effect at the time of their preliminary conference,” Berger wrote in the decision.

“The county overlooked the meaning of that code section,” Paradee said, “and tried to apply the AFPO rules retroactively. We said you can’t do that, you can’t change the rules overall.”

Paradee said following the decision, Chase Alexa moved ahead with the Winterberry Woods application, filing a final subdivision application March 26.

“We hope to get on the Regional Planning Commission’s agenda as soon as possible,” he said.

Email Jeff Brown at jeff.brown@doverpost.com.