An ordinance designed to limit the height of a landfill in New Castle County and give county leaders more input in the development of industrial properties will remain in full effect after a Delaware Supreme Court judge last week reaffirmed a lower court’s decision in a case challenging the ordinance.
Croda, a British chemical manufacturer that has a plant near New Castle on Cherry Lane, filed a lawsuit against New Castle County in 2020. The company claimed an ordinance passed by the county a year prior violated its due process rights.
The ordinance requires a special use review for future industrial uses in areas zoned for heavy industry. That means to win approval for future changes or expansion at the New Castle-area site known as Atlas Point, Croda will have to enter the lengthier and more discretionary review process for special use. Previously, it could have submitted a plan that would be approved “by right” as a heavy industry use in an area zoned for heavy industry.
What is the ordinance and why did New Castle County pass it?
The first section of the ordinance limits the height of landfills in New Castle County to 140 feet and was the primary selling point when New Castle County Council discussed the ordinance in 2019. The second section changes the code to require property owners with heavy industry-zoned property to obtain a special use permit before expanding heavy industry use of their property.
The County Council passed the ordinance in response to Waste Management’s request to increase the height of its Minquadale landfill between Route 13 and the Jack Markell Trail from 130 feet to 190 feet. At the time, Waste Management representatives said the height increase was necessary to continue operations.
Council members and community opponents argued the landfill, which rests on top of an aquifer, shouldn’t be raised because it is a source of water and air pollution. Many viewed the landfill as evidence of environmental justice issues that have plagued the Route 9 corridor.
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“Raising the height of the landfill is asking the residents of Minquadale and surrounding communities to shoulder an unfair burden,” County Executive Matt Meyer wrote at the time.
Waste Management sued the county in November 2019 for unfairly singling out its Minquadale landfill and rushing the ordinance through the council unlawfully. It settled the lawsuit a month later when New Castle County agreed to not oppose the company’s plans to raise the landfill 10 feet to 140 feet.
But the ordinance became the subject of a second lawsuit about a year later when Croda challenged the secondary aspect of the ordinance that imposes special review requirements.
How did the courts rule?
Vice Chancellor Morgan Zurn of the Delaware Chancery Court ruled last year that because Croda brought the action against New Castle County more than 60 days after notice of the ordinance was published in a local newspaper – a violation of state code – its complaint must be denied.
Referencing legal precedent, Zurn wrote “Delaware courts strictly apply the sixty-day limit from the date of publication to ‘promote predictability, stability.'”
Zurn also denied Croda’s due process claim, stating the company had no protected property interest because it could not demonstrate a vested right to develop its property under the former zoning rules.
On appeal, Croda claimed the Chancery Court erred because the county didn’t properly notice the ordinance and the company did not have to show a vested right to develop its property. Croda said it learned of the ordinance’s impact on its development only shortly before filing the lawsuit.
Supreme Court Chief Justice Collins Seitz ruled that Croda’s argument of insufficient notice, even if correct, would not pause or delay the implementation of the ordinance. On the second issue, Seitz said due process protections do not apply to legislation.
“It was not aimed at Croda and its industrial property because it applies to all [heavy industry]-zoned property in the County,” Seitz wrote.
What could happen next?
Croda will have to receive a special use permit to proceed with its expansion plans.
To receive the permit, the landowner must show that the proposed project satisfies several standards, such as compatibility with the character of the land in the immediate vicinity, minimal adverse impact on the environment or government services and minimal adverse “visual impact” on adjacent lands. The permit can be revoked if any conditions of the permit are violated.
Croda has submitted several plans to New Castle County, including plans to construct a building for a replacement boiler, make safety and environmental improvements and build a fire water tank structure and supporting pump house.
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Contact Brandon Holveck at bholveck@delawareonline.com. Follow him on Twitter @holveck_brandon.
