Ocean View resident Kathy Vengazo recently spoke before the Sussex County Council on behalf of the Allied Communities to Improve our Neighborhoods (ACTION) to voice their upset at the council regarding the council’s decision to not appeal the Superior Court ruling in the case of AT&T v. Sussex County Board of Adjustment.
The decision, dated April 30, modified the Board of Adjustment’s decision, allowing for a special-use exception to construct a permanent 100-foot telecommunications tower just south of Bethany Beach town limits, behind the BP gas station on Route 1, adjacent to the Sea Pines Village community.
A temporary wooden pole has housed AT&T’s equipment since the board initially approved the exception in 2009, leading to six years of court filings, appeals and ruling reversals as opponents sought to get it firmly denied and removed.
In her decision, Brady wrote, “The Court finds that the Board unreasonably concluded that there was no need for the proposed tower and that the proposed tower would have a substantial adverse effect on the use of neighboring property.”
At the May 19 council meeting, Councilman Rob Arlett publically went on record to consider comments the council had received regarding Brady’s decision.
Following an executive session, Councilman George Cole made a motion to appeal the decision of the Superior Court, stating it sets a bad precedent.
“The Applicant applied on multiple occasions to place a telecommunications tower on a subject property. After a public hearing on the latest application, the Board of Adjustment denied the application. Neighbors have opposed the application each time the matter came before the Board [of Adjustment] and they spent a considerable amount of time and money arguing against the proposed tower.
“The decision of the Superior Court to modify the decision, instead of affirming or reversing the Board of Adjustment’s [decision], differs from any prior decisions of the Court in its treatment of Board of Adjustment cases. I believe the decisions concerning Sussex County should come from our government, not a court.”
Council President Michael Vincent asked County Solicitor J. Everett Moore for a recommendation to the council.
“First, I would indicate that I, too, disagree with the ruling and I cannot disagree with the reasons in Mr. Cole’s motion. However, when I look at the case, and I went back in the last week and looked at our case very carefully, I saw that there were several things I disagreed with…
“I disagree that if we do not appeal this that a precedent has been set in the state of Delaware.”
Moore said his advice would be to not appeal the Court’s decision.
Councilwoman Joan Deaver voted against Cole’s motion to appeal.
“In consideration of everybody that we represent, all of the people and the tax money, I have to go with our attorney’s advice,” she said.
“I think in the end, sometimes principle has to prevail, and I think, for me personally, this is that case,” Councilman Rob Arlett said, voting for the appeal.
Councilman Sam Wilson also voted against the appeal, stating it would cost the County, “literally thousands and thousands of dollars… and more likely we can’t win.”
Vincent said he has great faith in the County’s legal counsel and staff.
“I do feel sorry for the people and what’s happened, but we are where we are, through whatever reason we got there,” he said, voting against the motion.
The motion to appeal failed, with a vote of 2-3.
At the June 16 council meeting, Vengazo said she and Frankford resident Pat Woodtring coordinate and represent the consortium of homeowners associations located in the county, “which has allied to share information and work together regarding issues of mutual concern.
“I am here today to make a statement to express our disappointment in the County Council’s failure to adequately research the implications of a recent Superior Court decision issued on April 30, 2015, by Judge M. Jane Brady.”
Vengazo said that ACTION had reached out to a number of attorneys within the state for an opinion.
“The unanimous opinion of those consulted is that the advice provided to the County Council by your legal counsel was flawed and failed to see the proverbial forest for the trees…
“The legal consensus of all we consulted — except the Council’s ‘legal eagle’ — is that Judge Brady’s decision so far overstepped her authority that this decision demanded an appeal to forestall the establishment of the unacceptable precedent her decision establishes.
“Your legal counsel failed to see and address this issue in providing advice to you, and the majority decision was based upon his flawed advice.”
Vengazo said ACTION questioned whether or not Moore had consulted with other attorneys, within his firm or outside of it, prior to advising the council on the matter.
“We recommend that — if Mr. Moore’s contract is renewed to continue next year, or even continues after the Council reviews our testimony — that he be required by both the county administrator and the council members to thoroughly research his advice before providing ‘seat-of-the-pants’ cursory advice to this body.
“We believe you should ensure that he consults his colleagues in state government, those who represent the other two Delaware counties and experienced attorneys in private practice before he advices our County Council to set unacceptable precedent that affects the citizens beyond the boundaries of those you represent.”
Vengazo said the council would have had to have filed an appeal to the Court by June 1, however, even with the help of Arlett to persuade an additional council member to vote in favor of an appeal, they were unable to meet the deadline.
“We were unable to persuade Ms. Deaver because of her reliance on the advice of counsel, and were unable to reach Mr. Vincent or Mr. Wilson in time for them to call a last-minute meeting of the Council to vote to submit the appeal form with proper notice. We literally placed marathon calls repeatedly for several days, to no avail.”
Vengazo said the group did receive return calls from Vincent and Wilson, after 4 p.m. on May 31, which was too late to give proper notice needed to hold a meeting on June 1.
“We are very sorry that Ms. Deaver — who was reached in time — said she did not want to hear the rationale for our request to simply vote to hold the meeting to have the discussion and give Mr. Moore the opportunity to explain his rationale for failing to discuss or even alert the council to the unacceptable precedent established by Judge Brady’s decision.”
Deaver said that, although it is a matter of litigation, Vengazo had mischaracterized her response.
“I have heard and I read it all.”
“I spoke to Ms. Woodring again last night. She basically said you said, ‘I don’t want to hear it.’”
Vengazo said ACTION would like to see the County “take the lead” to ask the state legislature to pass legislation to “undo the damage wrought by Judge Brady’s decision.”
“Sussex County has again been humiliated by the behemoth AT&T and has allowed the citizens of Bethany Beach and Sea Pines Village to be victimized without benefit of their due process…
“Our group would very much like to see the County take some affirmative action to amend the county regulations as recommended by the Sea Pines Village Community, and as endorsed by our ACTION committee, to preclude this nightmare from occurring to other communities in Sussex County; hopefully, not near any of the areas where council members and Mr. Moore or [County Administrator Todd] Lawson reside.”
To read Brady’s full decision, visit http://courts.delaware.gov/opinions/download.aspx?ID=223090.