L.T. Associates takes case to federal court

A Lewes-based developer says its constitutional rights were violated when Sussex County Council denied an application for a zoning change for a shopping complex off Kings Highway. Developer L.T. Associates LLC also claims due process was violated when a council member actively opposed the project.

L.T. Associates has asked for a change of venue to U.S. District Court where cases involving constitutional matters are decided.

Council turned down a zoning-change application filed by L.T. Associates, voting 3-2 to deny it, nearly 1½ years ago. The decision effectively put plans for Townsend Village Centre along Kings Highway and Gills Neck Road on hold pending an appeal filed by the developer in Chancery Court.

The move to U.S. District Court was made Sept. 30; Sussex County officials agreed to the change. In the court filing, L.T. Associates claim federal court has jurisdiction because the developers’ constitutional rights were violated.

The developer contends the council’s decision was not supported by substantial evidence on the record of the public hearing, and that Councilwoman Joan Deaver, D-Rehoboth Beach, “actively undertook to oppose, to encourage opposition to, and to seek denial of the application” when she was supposed to be impartial.

It’s Deaver who represents the area around Lewes where the proposed complex would be located. According to court documents, Deaver met with opposition groups – including Managing Growth Around Lewes – and prior to her election wrote letters in opposition to the project and zoning change. Deaver said she did attend meetings but left the room whenever the project was discussed. A county attorney said even if she had recused herself, the application would have been denied, as it would have resulted in a 2-2 vote, and would not have been approved.

Even so, court records claim Deaver should have recused herself from the vote as required by law.

“Councilmember Deaver’s bias, predisposition and actions against the application of L.T. Associates LLC so tainted the proceedings that it could never have received a fair hearing or decision so long as Mrs. Deaver participated in the proceedings,” wrote attorney Dennis Schrader.

She is named in the lawsuit as a member of council as well as being named individually.

Schrader and county officials declined comment on the change.

Lingo-Townsend Associates – a partnership of two prominent Cape Region business families – requested a change in zoning from AR-1, agricultural-residential, to commercial zoning for a 46-acre parcel to construct a 300,000-square-foot shopping complex across from Cape Henlopen High School.

Fallout from the application became heated with 6-hour public hearings before county planning and zoning commissioners and county council. The planning and zoning commission voted 3-2 recommending denial of the application.

Opponents said the project would be detrimental to the small-town and historic image of Lewes and create traffic problems in an area that is already congested.

Opponents of the application included several Lewes-based grassroots community groups, Lewes City Council and Lewes Board of Public Works. Beebe Medical Center officials expressed concern about delays for emergency vehicles using Kings Highway to and from the hospital.

Developers argued state transportation officials were not opposed to the application, and they had pledged more than $10 million to make road improvements in the area of the proposed shopping complex.

L.T. Associates wants the court to overturn council’s decision and declare Deaver’s conduct improper. The developer also wants compensatory damages and attorneys’ fees. No date has been set for oral arguments in the case.

The developers went through the county review process twice after withdrawing an application Dec. 16, 2008, for a 521,000-square-foot complex on 68 acres. Frank Kea, a spokesman for the developers, said plans were changed because of concerns expressed by area residents.

The same magistrate assigned to this case, Judge Mary Pat Thynge, recently overturned a council denial of a conditional-use application filed by Chase Brockstedt for professional offices on a parcel along Savannah Road and Dove Drive near Lewes.