The Delaware Court of Chancery upheld a Kent County Levy Court Adequate Publlic Facilities Ordinance Feb. 11 despite objections from developers.

    A Court of Chancery opinion Feb. 11 favoring Kent County ordinances that promote responsible development throughout the county has been taken as a welcome sign by commissioners after losing the last couple of land-use lawsuits against them.
    “We’ve worked diligently to try and achieve success with the adequate public facilities ordinances and … we are very pleased that the judge found in our favor,” said P. Brooks Banta, Levy Court president.
    Commissioners adopted the APFOs in 2006 requiring road improvements and adequate sewer, emergency services and school occupancy be in place before a development is built. The ordinances were in answer to the onslaught of building that beset the county throughout the 1990s, leaving many areas with overstressed roadways and removed from emergency services.
    The lawsuits were filed in July 2008 by a team of lawyers led by John Paradee, representing a group of area farmers. Paradee did not return phone calls for comment.
    In the suit, he contends the APFOs are “unenforceable because they are unconstitutionally vague and ambiguous.”
    Vice Chancellor John W. Noble disagreed with Paradee’s assertion for all of the APFOs except for the ordinance relating to school capacity. On that count, Noble agrees that it is vague and needs work.
    Banta said commissioners already have begun reworking the school capacity ordinance and expect to have a new ordinance in the near future.
Vested rights
    Another part of the lawsuit specifically deals with a Camden development that had begun the planning approval process when the APFOs were introduced and later adopted. The lawsuit contends the development should be exempt because it was far along in the planning process when the land-use laws were enacted.
    Noble ruled differently, however, and said that the county is within its rights to place infrastructure requirements on areas earmarked for development.
    “The public benefit to be achieved by the APFOs is significant ... this factor must be given greater emphasis because of the benefits that the APFOs would confer on the public health and welfare through the funding of essential public facilities,” he wrote.
    Commissioner Bradley Eaby said the ruling against the Camden development is significant because there are a host of other developments that were hoping to be grandfathered in after the APFOs were enacted. The Camden development was the farthest along in planning process when the APFOs went into effect, and he said for the judge to rule against them makes it less likely that the court would rule favorably for the others.
    “They were picked as the white horse to challenge the vested rights,” Eaby said.

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