A Kent County development denied by both the Regional Planning Commission and Levy Court two years ago could get another chance at approval after a recent Delaware Supreme Court decision.

    The 254.33-acre property -- commonly referred to as the Johnson Farm -- that is proposed to be built outside the county’s designated growth zone would consist of 214 lots with on-site water and septic provided by private companies.

    Developer Tony Ashburn submitted his proposal for the Kenton-area project in March 2006 followed by an application for subdivision plan approval in July. A set of adequate public facilities ordinances regarding roads, school capacity, emergency services capability and other infrastructure requirements became effective June 13, 2006.

    In denying his application, the RPC and Levy Court both contended that the infrastructure was not in place, the property was outside the growth zone where the county has tried to funnel development, and the development would negatively affect the health, safety and welfare of the community — particularly the Amish who live in the immediate area.
 
   County commissioners based their decision largely on recommendations by state groups were opposed to the development because of the absence of necessary infrastructure. These groups included the Office of State Planning Coordination, the Department of Transportation, the Department of Natural Resources and Environmental Control, the Department of Agriculture and the Smyrna School District.

    Superior Court consequently affirmed the county’s decision in a lawsuit filed by Ashburn.

    However, on appeal to the Delaware Supreme Court, the previous decisions were reversed in an opinion released Dec. 5.

    Ashburn did not immediately return a phone call inquiring whether he will resubmit his development application for the county approval process. His attorney, Richard A. Forsten, said he assumed the project would be resubmitted. Regardless, Forsten said he was pleased with the outcome because it establishes some rules for the parties involved.

    “I think ultimately the case is good for every property owner because if you want to do something with your property — be it a major subdivision or just adding a two-story garage — if it complies with the applicant code, you can’t be denied,” Forsten said. “Why have a code if the government can say ‘we know we have a code but we’re going to change it anyway,’” he said.

    Though on the losing side of the argument, attorney J. Scott Shannon said he was encouraged by the decision because it establishes much needed case law in clearing up gray areas within the planning realm.

    “The importance of this decision is that for the first time, there is a clear statement of the scope and extent of the Regional Planning Commission’s power to impose conditions on development approvals beyond those stated within the County Subdivision Code,” he said.

    “While we are disappointed in the ultimate result, the Supreme Court’s holding that ‘the Commission may condition its approval of Ashburn’s subdivision application based on non-Code factors such as agency recommendations, school capacity issues, and concerns regarding the health, safety and welfare of the community’ is a clear statement of the Regional Planning Commission’s authority and discretion to impose conditions for development approvals consistent with Kent County’s understanding of the law,” Shannon said.

    A lone dissenting opinion was offered by Judge Henry duPont Ridgely who supported the Superior Court and county rejections largely based on the state agencies recommendations to deny.
 
   “The evidence before the Commission demonstrated that the proposed subdivision plan does not coordinate with the plans of the state, county or school district which the Commission was required to consider. In my view, the Commission’s denial of the subdivision application was a proper exercise of the limited discretion expressly conferred upon it by the General Assembly,” he wrote.
 
   Levy Court Commissioner Bradley S. Eaby said if the application returns to the county approval process, county commissioners will have to be cautious.
 
   “We can put conditions on it but that’s where the rubber hits the road so to speak,” he said. “It depends whether the developer thinks it’s fair and takes it back to court.”

    Email Melissa Steele at melissa.steele@doverpost.com.