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Weather or Not Fines OK
by Ron Davis
Construction of Christiana Town Center in Delaware is on hold until the developers fully address claims of shoddy site preparation.
Progress on the Wilmington-area shopping center came to a halt last year when local land-use officials alleged that the developers committed numerous violations of county drainage laws. The officials specifically cited evidence of sediment pollution of nearby streams.
In response to those charges, the developers and officials discussed the situation at formal hearings. After a fourth hearing, officials required the developers to pay a penalty of $500 a day until approval of a revised erosion-control plan. That fine would increase to $1,000 a day after two weeks. Then if a plan was not in place within five additional days, officials would stop all work at the site.
The developers seemed eager to comply with the requirements. They quickly submitted an erosion and sediment plan. And local officials accepted the plan to allow the developers to put into place the necessary controls.
But shortly after that, local officials decided that the developers were not complying with the plan and issued them a notice citing 27 violations. The fines then started to mount.
The developers appealed that such harsh penalties were not justified. But a review board backed local officials despite evidence that adverse weather conditions at the time prevented the developers from compliance.
Again the developers appealed, arguing that local officials failed to outline the rationale for their decisions. Moreover, the developers added, the time period in which they were supposed to comply failed to consider the weather at the time.
The Superior Court of Delaware rejected the arguments of the developers, explaining, “It is for local officials, not the court, to weigh evidence and resolve conflicting testimony and issues of credibility. The hearing mediator made a careful analysis of both the developers’ and the county’s arguments with regard to this issue. The ultimate conclusion to affirm the decision of local officials is supported by substantial evidence and therefore cannot be disturbed.” (Christiana Town Center v. New Castle County, 2004 WL 1551457 [Del.Super.])
Decision: July 2004
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