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Responding to NIMBYism

Delaware Housing Coalition > Strategies > Responding to NIMBYism
Ask the question: "Why NOT in my back yard?"

The Delaware Housing Coalition is collecting a growing set of resources that make the case that a better geographic distribution of affordable housing gives households greater choices and, has high positive economic and social impacts on communities, and benefits the state as a whole. It is part of the Good Neighborhood Project of the Delaware Housing Coalition.

  • The page WhyNIMBY, serves as an accessible repository for the growing local and national research supporting “Why NOT In My Back Yard?” It is a new, independent website, with a set of resources featuring all the most recent research on the impact of affordable housing on communities and the means of responding to unwarranted fears of "affordable housing."
  • Good Neighborhood Endorsers: We encourage endorsements of the Good Neighborhood Project. We are using the list of endorsers to build support for acceptance of more equitable geographic distribution of affordable housing in Delaware.
  • Good Neighborhood Memo of Agreement: We actively solicit mutually supportive agreements with public bodies that uphold the principles of Good Neighborhood, a more equitable geographic, and opportunity-sensitive, distribution of affordable housing opportunities. Thanks very much to the Commissioners of Kent County Levy Court who recently voted unanimously to enter into a memo of agreement with the Delaware Housing Coalition.

Why Not In My Backyard? Affordable Housing, both from practical example and through empirical research, has been found to have positive effects on communities. Some of the evidence is collected here. For a fuller discussion of this topic, we refer you to the page, Why Not In My Back Yard?.

Housing Development and Furthering Fair Housing

Why NOT In My Back Yard? – Case Studies of Affordable Housing in Delaware

Legal Opinions from Delaware Courts in Support of the Right to Develop Affordable Housing

Case Summary

Tony Ashburn & Son, Inc., v. Kent County Regional Planning Commission, Albert Holmes, Jr., Ken Edwards, Denise Kaercher, Bill Jester, Gene Thornton, Paul Davis and Clifton Coleman, Jr. , individually and in their official capacities as members of the Kent county Regional Planning Commission, Kent County Levy Court, the governing body of Kent County, Delaware; P. Brooks Banta, Allan F. Angel, Bradley S. Eaby, Eric L. Buckson, W.G. Edmanson, Harold K. Brode and Richard E. Ennis, individually and in their official capacity as members of the Kent County Levy Court

Prior to hearing the case, the Kent County Planning Commission denied a subdivision application by the developer. The Levy court upheld the decision, as did the Superior Court. The case was then appealed to the Supreme Court of Delaware. The Supreme Court determined that the subdivision fully complied with county code and could not be denied outright. The court determined that ordinances amending county code subsequent to the application for subdivision could not be applied when reviewing the application.

In the initial denial, the commission cited three reasons for denying the application, 1) the infrastructure was not in place, 2) the property was outside the Growth Zone and 3) the application would negatively affect the health, safety and welfare of the community. The Levy Court upheld the decision because of 1) concerns by the local school district regarding school capacity, 2) increased traffic that would create a safety hazard and 3) the water supply in the area would be negatively impacted.

The Supreme Court overturned the decision because the zoning statues do not give the Commission discretion to deny a legally conforming subdivision application based on impact-related concerns expressed by state agencies. It further states that the denial lacked any reference to specific facts or legal provisions that would allow the court to determine whether substantial evidence existed on the record to support the Commission’s findings.

Case Summary

JNK, LLC v. Kent County Regional Planning commission, Bill Holmes, Ken Edwards, Denise Kaercher, Phil Smetana, Jack Melvin, Paul Davis, Clifton Coleman, The Kent County Levy Court, David R. Burris, Roland D. Smith, Allan F. Angel, P. Brooks Banta, Donald A. Blakey, Richard E. Ennis, and Harold J. Petermann

In this case, the Commission refused to approve a site development plan based on 1) the health safety, and welfare of the public, 2) the environmental health, safety and welfare of the river, and 3) the lack of information about the proposed community septic system. The decision was appealed to the Levy court where the decision was affirmed. Finally, it was appealed to Superior Court. The courted noted that if the plat conforms to the requirements of the regulations then it must be approved; however, the commission may impose reasonable conditions. Furthermore, the case clearly states the requirement that any grounds for denial must be done on the record and that, on appeal, Levy court does not have the authority to weigh evidence, determine the credibility of witnesses or make any independent factual findings. Instead, they much affirm or remand the decision based on it’s determination of the commissions interpretation of the law.

Case Summary

East Lake Partners v. City of Dover Planning Commission, John. G. Davis, Roy Bogus, Michael Ambruso, William J. DiMondi, John Friedman, Clarence Wallace Hicks, Thomas Hold, Ann M. Baker Horsey, and Rexene A. Ornauer.

In this case, the commission refused to approve a site development plan for the following reasons: 1) 139 residents petitioned for denial, 2) the extra traffic would inconvenience residents of the area, 3) concern over limited access to the rear of the proposed buildings for fire department access which could hinder response time, 4) the existing businesses may experience a loss in business and off-street parking, 5) the possibility of increase crossings at the intersection, and 6) concern over the safety of residents entering and exiting at the highway.

The Superior court decided that the planning commission exceeded its authority by denying the subdivision. Under the code, the commission’s review was limited to consideration of conditions and safeguards which could be reasonably imposed on the plan. They could not reject the plan because residents did not want the land used for the project, because of increased traffic without evidence that the roads and intersections weren’t capable of handling the increase, or because the plan would adversely affect the neighborhood.

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