Court upholds exception for Harim plant

A decision issued by Sussex County Superior Court Judge Richard F. Stokes has upheld a Sussex County Board of Adjustment decision to grant a special-use exception to Allen Harim Foods, to renovate and utilize the former Pinnacle Foods plant outside of Millsboro as a chicken processing plant.

In 2013, Allen Harim announced its $100 million plan to redevelop the former Vlasic pickle plant site for poultry processing. As part of its confidential agreement of purchase and sale, Harim in April 2013 filed an application to the Sussex County Board of Adjustment for a special-use exception.

Protecting Our Indian River, a group comprising residents who are opposed to Harim taking over the vacant brownfields site, appealed the BOA’s decision to the Delaware Superior Court.

Attorneys for POIR and Harim convened in court in October of 2014 for a hearing regarding POIR’s appeal of the BOA’s decision. POIR argued that the BOA’s decision was not based on substantial evidence, that notice requirements were not fulfilled and that the BOA did not properly exercise its jurisdiction.

But in Stokes’ July 2 decision, he noted that the appeal could have been dismissed just based on the appellants failing to give the correct name of the property’s owner in its appeal.

“As the record title owner is an indispensable party on appeal, the failure to join this party is a fatal defect,” he wrote. “The [initial appeal] names Pinnacle Foods Corporation in paragraph one as the owner of the property. This is incorrect, because the owners is [Pinnacle Foods Group]… To the extent there was discretion to dismiss the appeal, however, the Court preferred to decide the case on its merits,” he said.

In their appeal, POIR argued that the BOA erred by exercising jurisdiction over the special-use exception proceeding.

“BOA properly exercised their express and implied jurisdictional authority by directly accepting the application for a special-use exception from Harim… A decision giving rise to an appeal need not be rendered before BOA may approve a special-use exception request.

“Moreover, utilizing the technical definition of the word ‘appeal’ to reach the conclusion that jurisdiction is lacking is inconsistent with the historical origins of zoning, the procedural purpose of the statute, and BOA’s broad express and implied statutory and regulatory power,” wrote Stokes.

POIR also argued that the decision was void because the property owner of record has standing to request a special-use exception, noting that Harim had sought the exception, not Pinnacle. Stokes ruled, however, that as Pinnacle was constructively before the BOA in support of the application, and Harim proceeded to request the exception with their support, Harim was “a proper party able to file a direct application to BOA.”

The appeal also argued that the BOA received, “nothing but legal truisms from agencies it did contact,” that Harim failed to solicit comments from additional agencies and that the BOA decision was not based on substantial evidence.

“The absence of comments from the Sussex Conservation District, the EPA and the Delaware Center for Inland Bays are not sufficient grounds for reversal, because it was not necessary for each of these authorities to be consulted in order for BOA to render a decision,” wrote Stokes, noting that the BOA had, in fact, tried to contact the Sussex Conservation District via a June 2014 letter but did not receive a response.

“The attempt to consult with this agency is sufficient, as it was outside of BOA’s control whether a response would be provided for BOA’s consideration.”

Stokes wrote that the record reflects “substantial evidence supporting the application because numerous agencies were consulted and thorough documentation, testimony and input was provided to BOA for consideration.”

As part of the process, the County BOA was required to consult with other agencies created for the promotion of public health and safety, prior to making a decision.

Stokes noted that the BOA had voted to leave the record open in order to solicit comments from other agencies and also decided to leave the record open an additional seven days to allow the public an opportunity to provide input related to the comments offered by the consulted agencies.

Stokes also addressed POIR’s argument that due-process notice requirements were not satisfied. In his decision, he ruled against them, noting, “BOA published, posted and advertised the hearing several ways.”

He stated that the hearings were publicly advertised in two state papers, well before the 15-day notice requirement. He added that notice was posted on bulletin boards at the Sussex County Planning & Zoning Office, and provided Harim a separate written notice.

“Later on, written notice was sent out to Harim for a second time, along with six local government agencies and municipalities. Property owners residing within 200 feet of the subject property’s perimeter were also notified by a direct mailing…”

Stokes wrote, “It was not unknown to the community that Harim’s special-use exception application was a forthcoming issue,” and that the notice requirements were fulfilled.

He stated that participation in a public hearing “does not invariably mean that notice was effective,” noting the BOA collected approximately 220 letters and 12 emails during the public comment period.

“Considering the foregoing, Appellants failed to satisfy their burden to the BOA’s decision was arbitrary and unreasonable… Therefore, the BOA decision is affirmed,” concluded Stokes.

POIR can appeal Stokes’ decision to the Delaware Supreme Court within 30 days.