The Law

Developer Hopes Dashed By DelDOT? by Ron Davis There remains only a slim hope for the developer of a proposed shopping center in Wilmington, DE, that his project may someday get off the ground. The developer’s plans call for a 915,000-square-foot retail facility on property that he currently owns. Standing in the way, however, has been the Delaware Department of Transportation (DelDOT), which must approve the developer’s plans as they relate to traffic impact. Previously, DelDOT recommended that local officials deny or defer the development until the state has the resources to improve highways in the area of the proposed shopping center. Moreover, DelDOT wants certain “infrastructure, site access, and pedestrian improvements” from the developer. Without the DelDOT approval, local officials had no alternative but to reject the developer’s plans. The developer then petitioned local officials that DelDOT simply needed to address only a few minor street and sidewalk changes. And when local officials failed to respond within a timely manner to his petition, the developer claimed that as a result of their delay, they are required by law to accept his development plans. Local officials replied that the developer is well aware of the DelDOT requirements and that the delay in their responding to his petition caused him no harm. The developer nevertheless asked the courts to decide the matter. A Delaware court ruled that the DelDOT recommendation specifically called for denial or deferment of the shopping center development. Explained the judge, “It is hard to see how a review as to form could reach any decision other than that the development plan lacked a DelDOT letter of approval.” The court did not, however, completely shut the door on the development. The judge added, “DelDOT failed to provide a letter of no objection despite the developer’s repeated requests. If he can persuade DelDOT to provide a letter of no objection and show that DelDOT improperly caused his plans to expire by withholding the letter, the courts could unexpire the plans.” (Acierno v. New Castle County, 2004 WL 745715 [Del.Super.] Decision: April 2004 Published: May 2004