Barley Mill Plaza Controversy Delays NCCo Lawsuit Again
By Adam Taylor
The News Journal, February 5, 2013
The emergence of mystery documents on Monday delayed the Barley Mill Plaza civil lawsuit for a second time and could turn into "a criminal matter."
A Chancery Court judge postponed the suit about the commercial rezoning of part of the Barley Mill Plaza office complex indefinitely after New Castle County attorneys dropped a bombshell, saying that they had found documents that could show criminal wrongdoing.
Sidney Liebesman, the private attorney for the county in the suit, said he wrote Delaware Attorney General Beau Biden on Monday about the documents, discovered by top aides to County Executive Tom Gordon over the weekend, and suggested to Biden that a criminal investigation might be in order.
Gordon wouldn't disclose the content of the documents, saying he wants to give state investigators the opportunity to view them first.
"We're very concerned about what we found," Gordon said.
Biden spokesman Jason Miller said the office received the letter from the county Monday afternoon and is reviewing the county's request for an investigation.
Liebesman informed Chancery Court Vice Chancellor Sam Glasscock III about the documents Monday before a hearing in the suit, filed in 2011 by the Save Our County citizens group against the county and Barley Mill LLC, the owners of the former DuPont Co. office plaza at Lancaster Pike and Del. 141 in Greenville. Save Our County claims a traffic study of the roads near the plaza should have been completed before County Council voted to rezone part of the property from office to commercial use in October 2011. The group wants the rezoning reversed. The case took an odd twist a month ago, when the county - one of the defendants - announced it had changed its position in the case and hopes Save Our County wins.
County attorneys had defended the rezoning against the suit for more than a year, when Paul Clark was county executive. Clark's wife, Pam Scott, was Barley Mill LLC's attorney on the project for three years, until March 2011.
The county's position changed about two months after Tom Gordon took office in November. Gordon's opposition to the rezoning was a central campaign theme in his election victory over Clark.
Monday's hearing was supposed to provide order from the chaos that has ensued since the county changed its position. For example, County Council - the county's co-defendant - retained its own private attorney because it still wants to win the case.
But Liebesman's surprise announcement did anything but clarify things.
"It seems every time we meet on this case, I hear something new," Glasscock said. "The ground keeps shifting a little bit."
Liebesman asked for a private meeting in Glasscock's chambers to make the announcement. Glasscock had the transcript from the private session read in open court afterward, saying the public had a right to hear it.
The transcript showed that Liebesman maintained the existence of the documents are at least a violation of the court's rules regarding the discovery process, saying that the county should have turned them over to Save Our County earlier.
"The documents were withheld from the plaintiff's counsel," Liebesman said, according to the the transcript. "Worse, the documents show potential wrongdoing in the rezoning process." Glasscock decided to postpone the case until the Attorney General's Office has finished its review of the county's allegations, which he said could become "a criminal matter."
Glasscock and the attorneys for Save Our County, Barley Mill LLC and County Council don't know what's in the documents. The attorneys for all the parties supported the vice chancellor's decision to delay the case. "I don't know what Mr. Liebesman is referring to, but I want to get to the bottom of it," Save Our County attorney Jeff Goddess said. Glasscock said the Office of Disciplinary Counsel could also play a role, which suggests attorneys were involved in the potential wrongdoing alleged by Liebesman.
Clark, reached Monday, said he doesn't know what the documents in question could be. "All the decisions made on this project were made under the previous administration before I took the county executive's office," Clark said. "There was no change of direction once I took over." Some action on the case was taken Monday.
Glasscock said he would allow the county Land Use Department and its general manager, David Culver, to be dropped as defendants. Since the county itself is named, any ruling Glasscock might make in the case would apply to any decisions made by Culver and his department, the vice chancellor explained.
The attorneys will also enter filings soon on whether a state law that says traffic studies are required before rezonings are granted is clear or vague. Glasscock said he doesn't want to delay that part of the case because County Council needs direction on how to proceed in future rezoning requests and needs judicial direction on the issue as soon as possible.
Contact Adam Taylor at 324-2787 or email@example.com.