Ashburn & Son, Inc. v. Kent County Regional Planning Commission (Planning & Zoning)


Delaware Supreme Court

NAHB Involvement


NAHB member Tony Ashburn applied for site approval to develop a subdivision in Kent County, Del. Although the application complied with current zoning, the subdivision code and the county's comprehensive plan, the county planning commission denied Ashburn's application because of general health and welfare concerns regarding the development's impact on traffic and school capacity. The appellate court deferred to the planning commission's decision, holding that the planning commission had discretion to deny the application despite its compliance with applicable law. Ashburn has appealed this decision to the Delaware Supreme Court.

NAHB filed a motion asking the Delaware Supreme Court leave to file an amicus brief contemporaneous with its amicus brief on March 31, 2008. NAHB's amicus brief argued that local governments do not have absolute discretion to deny such "as of right" developments under both Delaware law and precedent in a significant number of other states. On Dec. 5, 2008, the Supreme Court reversed the trial court, holding that the county abused its discretion when it denied Ashburn's application. The court favorably cited NAHB's amicus brief, and our participation is now complete.