For approximately 5 years, we have been battling DNREC over a "buffer zone" that we believe was established by them illegally. Today, December 29, 2011, the Delaware Supreme Court confirmed that we were correct.
The first 2 years of the fight were through resolutions in the Delaware General Assembly and direct negotiations with DNREC. Nevertheless, in October, 2008, then Secretary of DNREC John Hughes signed the Inland Bays Pollution Control Strategy into law, including buffers. This buffer zone went so far as to prevent lot lines from extending into buffers and forbade landowners from even applying to the Sussex County Council with a project until they had met DNREC dictates.
All of this was despite numerous warnings by the PGA and a variety of attorneys that these actions were illegal. DNREC's excuse was that "their deputy attorney general" told them it was okay.
Thus, the Positive Growth Alliance organized a lawsuit in Superior Court with several affected landowners as plaintiffs. At the same time, Sussex County government also filed to protect their statutory zoning power.
The Superior Court of Delaware ruled against DNREC on February 25, 2011, voiding the buffer provisions in the Inland Bays Pollution Control Strategy. Despite very clear legal language in the ruling, DNREC then appealed to the Delaware Supreme Court.
Today, the Supreme Court has rendered their opinion, fully confirming the previous ruling by the Superior Court. DNREC's buffer zone and associated provisions are void.
Furthermore, one of the Supreme Court justices went so far as to make a statement during oral arguments that even the Delaware General Assembly probably couldn't legally pass a law giving this authority to DNREC. This is because the Delaware State Constitution allows the General Assembly to delegate land use authority to the counties and municipalities, not the executive branch of which DNREC is a part.
For the Positive Growth Alliance, this battle has always been about the rule of law. It is shocking to us how many people both inside and outside the government have expressed the opinion that if DNREC says it will benefit the environment, then they should be able to do whatever they want whether it's legal or not.
In other words, they are apparently perfectly fine with the idea of hiring people that are supposed to serve us and then paying them to wield unchecked authority over us. In the case of buffers, they didn't even require proof that there would be any real environmental benefit, or more benefit than existing Sussex County buffer requirements!
As a matter of fact, due to the devastation in the housing market, virtually no DNREC buffers have yet been created. Very few knowledgeable people felt there would be for years into the future, either.
To be perfectly clear, if we citizens tolerate unelected state employees making up any law they like, there will soon be little that resembles the American concept of liberty. We vow to you that we will do all we can to prevent that from happening.
We have attached the Supreme Court ruling to this message. All landowners and lovers of liberty should carefully study the opinion.
P.S. Since the Superior Court voided the DNREC buffer regulation, DNREC has been doubling and tripling down. They are working on several ongoing rule-makings that will likely be impacted by this Supreme Court decision. We'll keep you posted as we move forward.
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