The News Journal reports this week that two Middletown Village, Delaware residents are again suing Middletown seeking to overturn a third rezoning of property for a proposed Wal-Mart. A Chancery Court judge in July ruled against the Town Council’s second rezoning. The court concluded that council members failed to list out sufficient “findings of fact” for designating a 98-acre parcel for commercial development. Catherine and Vincent O’Neill filed another lawsuit this week, charging more procedural errors in the town’s Sept. 11 approval of the rezoning. Their lawsuit alleges that the council violated the Delaware Freedom of Information Act’s open-meeting requirements in discussing the action. The suit also names the project’s developer and Wal-Mart as defendants. The developer’s attorney told the News Journal that there was a public discussion about the project. “Everybody was there, and everybody who wanted to make their voice heard was able to make their voice heard,” he said. The O’Neill’s lawyer accused the town council of conducting secret discussions of the Wal-Mart rezoning in executive session and holding a “sham” public meeting afterwards. A spokesman for Middletown officials told the newspaper that the Wal-Mart project will come up for preliminary approval in November and possibly final approval by December.
Local officials will often use “executive session” meetings with developers to discuss the real details of a project, and say that “real estate transactions” are a legitimate cause for a closed session. In such sessions, they will also discuss the legal ramifications of their actions with town counsel. The result is that the public never learns what happened in such negotiations, and public officials hide behind executive sessions to operate as land developers, using public resources to make deals with private developers. Such laws are written by and for developers, and allow public officials to collude with private developers over land deals that are never made public. The official record only records the final action taken by a planning board, not the give and take that actually took place as the deal was going down. Congratulations to the O’Neill’s for taking on this case, and using Wal-Mart’s favorite land use tool: litigation.
