A local developer has sued the state’s two top environmental officials after they decided not to permit construction of a wastewater treatment plant meant to serve a planned 132-home development near the town of Leipsic.


Ashburn Homes Inc., owned by Tony Ashburn and his son Jordan, allege in a Superior Court complaint filed earlier this month that Department of Natural Resources and Environmental Control Secretary Collin O’Mara and Deputy Secretary David Small conspired to kill the development project by interfering with the public hearing process and bending to behind-the-scenes pressure from elected officials.


A local developer has sued the state’s two top environmental officials after they decided not to permit construction of a wastewater treatment plant meant to serve a planned 132-home development near the town of Leipsic.

Ashburn Homes Inc., owned by Tony Ashburn and his son Jordan, allege in a Superior Court complaint filed earlier this month that Department of Natural Resources and Environmental Control Secretary Collin O’Mara and Deputy Secretary David Small conspired to kill the development project by interfering with the public hearing process and bending to behind-the-scenes pressure from elected officials.

“Secretary O’Mara and Mr. Small deliberately, intentionally and willfully concocted a scheme to delay consideration of the permit application and ultimately deny same, based upon grounds which they knew or should have known to be false, improper, contrary to the dictates of [state law], legally unsupportable and otherwise unlawful,” the plaintiff’s wrote in court documents filed Feb. 7 by their attorney, John Paradee.

At issue is a proposed wastewater treatment center designed to service The Landings, a development of single-family homes slated for construction off Fast Landing Road.

Kent County’s Regional Planning Commission twice denied Ashburn’s development application for The Landings, based, in part, on concerns over flooding in the area and public outcry from Leipsic residents.

But, Ashburn succeeded in having those denials overturned in court and RPC ultimately approved The Landings application in 2009, with the stipulation that they receive, among other things, DNREC’s blessing of their wastewater treatment plant.

When Ashburn applied for a DNREC permit, Leipsic residents made an official request for a public hearing on the project, which was conducted in July of 2010.

At the hearing, Ashburn’s engineer outlined the plan for the treatment plant, while residents and other local officials, including state legislators and Kent County Levy Court commissioners, testified in opposition to the project.

After the hearing, Ashburn’s suit alleges, O’Mara personally handled the drafting of the “hearing officer’s report,” which is supposed to be written by the impartial moderator who conducted the hearing.

“Secretary O’Mara and Mr. Small were receiving an unprecedented amount of political pressure to do something — anything — to deny the permit application,” the lawsuit reads.

The Ashburn suit says that’s the reason DNREC waited a full six months to issue the hearing officer’s report, which ultimately concluded that the project should not be approved.

Days after the report, O’Mara sent Ashburn his official order denying their permit request.

In that order, he cited flooding and adverse environmental impact as the main reasons for his decision.

“First, the department does not support placing property and lives at an undue risk from flooding,” O’Mara wrote. “The project area historically has been subjected to flooding and the department’s experts have concluded that The Landings would experience increased and potentially more intense flooding in the expected time span that the [wastewater treatment plant] would be in service, putting residents at avoidable risk.”

In the lawsuit, Ashburn alleges that O’Mara was really talking about global warming and sea-level rise. Furthermore, the suit says, O’Mara’s main reason for denying the permit, the threat of worsening flood conditions over time, are based on “sea-level rise standards and analyses which are nowhere codified in DNREC regulations.”

When asked to elaborate on his reasons for denying Ashburn’s permit application, O’Mara defended his reliance on DNREC’s global warming science.

“It’s a consideration in a low-lying, coastal area that already has significant flooding,” he said. “It would be irresponsible not to consider sea-level rise.”

O’Mara also said that his staff are directed to look at the impact of global warming on pending permit applications when appropriate, and that the priority his agency places on considering the effects of global warming is only going to increase.

As for the residents of Leipsic, they’re happy O’Mara killed The Landings project for the foreseeable future, since without the DNREC permit, Kent County won’t allow development to commence.

Leipsic Councilwoman Nancy Goodfellow, who is mentioned by name in the Ashburn suit as a persistent critic of The Landings, said DNREC was right to take its time with the application.

“I think they waited for their scientific reports to be done, and they did their job protecting the health, safety and welfare of residents,” she said. “While they may have taken some time, they did it because they wanted to do the proper studies; they did what they felt needed to be done. Everyone here, we appreciate that they did their job.”

Email Doug Denison at doug.denison@doverpost.com