One of Delaware’s largest residential developers is suing the town of Middletown, its mayor and members of the Town Council over their denial of an apartment project where a shopping center had previously been approved.
Capano Residential, which operates more than 6,000 multi-family apartments, last year proposed building 192 apartments on open land next to the Dove Run shopping center off Route 299 in Middletown.
The Capano-owned property was approved as commercial space in 2002 and holds a commercial zoning designation that requires Capano to obtain a conditional-use permit to construct apartments. Middletown Town Council in February denied Capano’s permit application, a decision the developer is now fighting in Delaware Chancery Court.
“There is nothing about this site or this proposed use that is any different than the garden apartments that you have approved previously,” John Paradee, a lawyer representing Capano, told Middletown Town Council in February. “It would be arbitrary and capricious for the town to deny the application.”
At the council meeting, Mayor Kenneth Branner Jr. shared concerns about traffic and displeasure that residents of the neighboring Estates of Dove Run community bought their homes under the impression the land would be developed as a shopping center, not apartments.
He also argued the apartment project would be not in keeping with Middletown’s next comprehensive plan, which guides the town’s land-use decisions and is currently being crafted to be finalized later this year.
“The thing that really raises an eye with me is I have had several people say, ‘What would you feel if you lived in one of these houses and this was going there?” Branner said, arguing the neighborhood would become a more popular cut through with the apartments.
Middletown Town Council denied the application in a unanimous vote. The reasons stated by the other council members were a preference to stick with the current commercial zoning and that the project is in conflict with the comprehensive plan.
More than a dozen residents who live near the property applauded the decision at the meeting.
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“This is supposed to be some kind of place where people can purchase things, get services, have employment,” said Chuck Longfellow, a Middletown resident of 17 years.
“We have done a lot of things in the past several years to bring more employment. But we need more. We need more so Middletown can stand on its own.”
In the lawsuit, Capano says the denial runs counter to the recent precedent established by the Middletown Town Council, citing four garden apartment projects approved in other locations that share the same type of commercial zoning.
Among the precedent-setting developments is Capano’s Westown apartment complex, which the developer said the Dove Run project would be similar to.
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Capano argues the project satisfies the code requirements for conditional use approval as it will not “adversely impact the health or safety” of residents and is not in conflict with the current comprehensive development plan, particularly given council’s precedent.
A state transportation planner at previous meetings said the apartment project would generate a third of the traffic as the approved shopping center, according to the department’s projections.
DelDOT started a renovation project last year that will widen Route 299 and Brick Mill Road, which runs north and south just east of the existing shopping center and neighborhood. A roundabout will be added at the Brick Mill Road entrance to the ChristianaCare emergency center, which is on the opposite side of the road from the shopping center.
At the council meeting, Paradee also argued that the project would benefit the town by varying the available housing types and promoting a mixed-use style of development, given the project’s proximity to the Dove Run shopping center. Paradee noted increasing the number of apartments and emphasizing mixed-use development are both tenets of Middletown’s comprehensive plan.
The lawsuit seeks a reversal of the Town Council’s decision and compensation for lost development time and attorneys fees.
The plan for the development calls for eight apartment buildings with 24 units each (primarily be one- and two-bedroom units with a few three-bedroom units). The complex would also have a community center and a pool, according to the plan.
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Contact Brandon Holveck at bholveck@delawareonline.com. Follow him on Twitter @holveck_brandon.
