Protecting Our Indian River group appeals to Superior Court

A courtroom in the Sussex County Superior Court in Georgetown was packed Monday morning, as Superior Court Judge Richard Stokes heard oral arguments for an appeal to overturn a decision by the Sussex County Board of Adjustment that allows the Allen Harim chicken processing plant to move forward in Millsboro.

Last year, Allen Harim announced its $100 million plan to redevelop the former Vlasic pickle plant site for poultry processing.

Appealing the decision was Richard Abbott, attorney for Protecting Our Indian River, a group comprising of residents who are opposed to Allen Harim taking over the vacant former Pinnacle site.

Abbott said that the Sussex County Board of Adjustment did not follow Sussex County Code regarding potentially hazardous uses in a Heavy Industrial District.

“The Board, in reviewing the plans and statements, shall consult with other agencies created for the promotion of public health and safety and shall pay particular attention to protection of the county and its waterways from the harmful effects of air or water pollution of any type,” Abbott read from the code.

“Shall consult with agencies,” Abbott said, means that Harim should have contacted the Center for the Inland Bays, the Environmental Protection Agency, Delaware Division of Public Health and the Sussex Conservation District.

“It’s a no-brainer that you would go to them,” he said.

Robert Gibbs, attorney for Allen Harim, said that, as the Delaware Department of Natural Resources & Environmental Control’s mission statement reads, “It’s the mission of the Delaware Department of Natural Resources & Environmental Control to protect and manage the state’s vital natural resources, protect public health and safety, provide quality outdoor recreation and to serve and educate the citizens of the First State about the wise use, conservation and enhancement of Delaware’s environment,” and therefore, by consulting with them, addressed the concern for public health and safety.

Gibbs went on to argue that the Code reads, “shall consult with other agencies,” not “all agencies,” and that he believed the Department of Public Health would be contacted when the process was further along.

“They haven’t done anything yet,” he said. “They haven’t even put up a building.”

He said that DNREC’s letter to the Board had showed the department did not have any concerns with the project, and that Harim would have to acquire a number of permits in order for the facility to be established.

“This was just the first step,” said Gibbs. “There’s going to be a lot more hearings.”

Abbott also said that the Board did not properly conduct the public hearings that were held. Although a public hearing was held on June 3, allowing public comment, the subsequent meetings, on June 17 and Sept. 13, did not allow for additional comments from the public.

“They re-opened the record and they solicited all these comments from State agencies, but then they didn’t permit people to come to the Sept. 23 meeting and comment on them,” said Abbott.

The two later meetings, he added, were not noticed or advertised, as the June 3 meeting had been, and a sign was not posted outside of the Pinnacle plant announcing that they were to occur.

“The community was not aware … they could come,” he said. “Fundamentally, the Board erred.”

Gibb argued that the public hearing did not need to remain open while the Board kept the record open to consult with other agencies.

“This is almost a second step,” he said. “There’s nothing that says it has to be a part of the public hearing process. The idea was the Board ... had to look prospectively.”

Following oral arguments, Gibbs said that he felt good about the morning’s proceedings.

“If we win this appeal, it’s just the beginning,” he said, adding that the project would continue to allow for public input in forums where citizens’ concerns would be addressed.

A decision by Stokes was expected within 90 days after the oral arguments. Once it is made, his decision may be appealed to the Delaware Supreme Court.