Agenda - Planning Commission - 08/07/2014

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May 10, 2014 I Volume 8 I Issue 9 Zoning Bulletin cess from a three -step process to a two-step process. This led to some er- roneous conclusions on the process, including by Barley Mill's attorney who advised the County Council that the change in review process pushed the consideration of traffic issues to after the Council made a discretionary vote on the rezoning ordinance. Thus, in summary, the County Council was wrongly advised that: "(i) it could not obtain the traffic information and analysis (for ease of reference, the `Traffic Information') that Barley Mill was required to provide to the Delaware Department of Transporta- tion (`DelDOT') under 9 Del. C. § 2662 (`§ 2662') as part of the overall rezoning process before the Council exercised its discretionary authority to vote on the rezoning ordinance; and (ii) that the Traffic Information was not legally relevant to the Council's analysis." Although Council members wanted more information on traffic related to the proposed redevelopment, ultimately, the Council voted to approve the rezoning ordinance by a vote of seven to six. After the rezoning ordinance was approved, nearby resident homeown- ers and an organization, Save Our County, Inc. ("Save Our County"), challenged the zoning ordinance in the Court of Chancery. They argued that not only was the Council allowed to consider the Traffic Infoiivation, but both § 2662 and the UDC required it to consider that information before its discretionary vote. They also argued that, even if the Council was not required to consider the Traffic Information before its discretion- ary vote, the vote on the rezoning ordinance was arbitrary and capricious because the Council had received erroneous legal advice that the Traffic Information was both unavailable and irrelevant at the time the Council cast its discretionary vote on the rezoning ordinance. As a result, they contended, the Council voted in the absence of material information that certain Council members had expressed a desire to have before the discretionary vote took place. The Court of Chancery held that neither § 2662 nor the UDC required the Council to consider a traffic analysis before casting its discretionary vote on the rezoning ordinance. However, it also held that the Council's vote in the absence of that information —which was material to the Council's consideration of whether to approve the rezoning —was arbitrary and capricious. Barley Mill appealed. Save Our County and the County cross -appealed, arguing that the Court of Chancery erred in holding that neither § 2662 nor the UDC required the Council to consider a traffic analysis before casting its discretionary vote on the rezoning ordinance. DECISION: Judgment of Court of Chancery affirmed. • The Supreme Court of Delaware agreed that the mistake of law as to the County Council's ability to review the Traffic Information prior to the discretionary vote on the rezone request was material to the Council's vote, rendering that vote arbitrary and capricious. In so holding, the court explained that a rezoning ordinance is usually 8 © 2014 Thomson Reuters