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Friends of Historic Glasgow (Delaware)
La Grange Facts Sheet (1/18/2008)
LA GRANGE (the FORMER BARCZEWSKI FARM) AND SLAPP SUIT
1) BACKGROUND ON LA GRANGE
- La Grange farm (formerly owned by the late Anne N. Barczewski) is
located at 2467 Pulaski Highway, Glasgow, DE. It is comprised of a single
tract of 236 acres. Approximately 100 acres are open fields and
pastures, and approximately 135 acres are wooded. The Muddy Run
creek and some of its tributaries run through and form the northern
boundary of the property.
- In 1942, the late Anne and Steven Barczewski, Jr., bought the
historic home and farm and set about restoring it. It was operated as a
dairy farm (West End Dairy) until the 1960s. Anne stated on numerous
occasions throughout her life that she did not wish to see the farm
developed.
- Robert L. Middleton first owned the La Grange farm. He was the
father of Dorcas Armitage Middleton, who married Dr. Samuel Henry
Black in 1807 at the Pencader Presbyterian Church. Dr. Black was
a Glasgow physician, University of Delaware trustee, a Brigadier
General of Delaware's First Brigade of Militia, a State politician, and
owner of La Grange. During a visit in 1824, General Marie Joseph
Lafayette, of Revolutionary War fame, gave the farm its name,
"La Grange" (the Farm). Lafayette remarked that Black's farm and
house reminded him of his estate in France.
- For over 100 years, La Grange remained largely intact as a single
parcel of several hundred acres of land owned by descendants of Dr.
Black. In the early 1920s, the farm was sold out of the Black family to
Charles and Katie Leasure.
- Dr. Black's wife, Dorcas Middleton Black, was a great-granddaughter
of Cooch family patriarch Thomas Cooch, Sr., who owned Cooch's Mill in
1777.
- The 1815 federal style manor house and nearby granary building are
listed on the National Register of Historic Places. The granary, which
is the earliest documented example of a building of its type, is also
listed on the Historic American Building Survey. The house is believed to
be vacant, ever since George Barczewski vacated the premises in the
summer of 2006.
- The entire property has been under a New Castle County Historic
District zoning overlay since 1982 (County Ordinance 82-103). The farm
abuts and overlaps two other historic district overlays, along its east
side. Strict enforcement of existing regulations could prevent demolition
of the historic structures.
- There are now 11 archeologist documented La Grange sites where high
concentrations of Native American artifacts, ranging from 9000 BC to
1000 AD, have been found.
- In the farm's woods are authenticated, intact remains of British and
Hessian earthen trenches from the period proximal to the 3 September
1777 Revolutionary War battle of Cooch's bridge. Although the battle was
fought about two miles away, Revolutionary War cannon and musket
balls have been found in the farm's fields over the years, as the British
forces camped on the premises.
- Also on the farm is a documented, intact remnant of Benjamin
Latrobe's venture to build a feeder canal in 1804 (New Castle County
Historical Marker NC-59). The canal was to be built from the Elk Creek to
the Christiana River, with the ultimate goal of the canal connecting the
Delaware and Chesapeake waterways. The project failed, however,
because Latrobe's employer, the Chesapeake and Delaware Canal
Company, went bankrupt before the canal could be completed.
- In the U.S. Census of 1810 and of 1820, there are three free
African-Americans (unnamed husband, wife, and daughter) listed as
part of Dr. Samuel H. Black's household.
- Major areas of drainage and wetlands crisscross the Barczewski farm
property. Eight distinct and separate areas have been designated as
national wetlands. Seven distinct areas have been designated as state
wetlands. The total state wetland areas are larger than the total national
areas. These wetlands warrant protection under existing environmental
regulations.
- A quarter of the ground water recharge area for Glasgow is on the
former Barczewski farm.
- In 1989, La Grange was designated as a Delaware Farm of Distinction.
- In 1994, with the help from the US Department of Agriculture's local
National Resources Conservation Service, a long-term tree management
plan was implemented for the farm.
- In 1996, Anne Barczewski was honored with a prestigious preservation
award from the New Castle County Historic Preservation Review Board.
- In 1997, Anne Barczewski was recognized as Delaware's Tree Farmer
of the Year.
- Until her death on 6 January 2006, at age 95, Anne Barczewski
retained 75% ownership rights in La Grange or its proceeds. Her three
children each owned just over eight percent. Together, Anne and her
three children constituted the La Grange Tenants in Common (LGTIC) partnership. Anne suffered from advanced Alzheimer's disease, and
spent her last four years in a nursing home.
- Approximately four acres of the farm, at the western end, are zoned
commercial. The rest of the farm is zoned suburban.
2) THE SALE AND PENDING DEVELOPMENT
- In 2004, New Castle County officials made a $9.6 million offer to
buy all but the commercially zoned acres of the farm for preservation.
- At a September 2004 public hearing before the New Castle County
Council, attorney David Ferry, who represents brothers Steven and
George Barczewski, insisted the farm was worth at least $12 million,
and that his clients would not accept anything less. Steven and George
Barczewski actively courted development offers in recent years.
- In January 2005, New Castle County and Delaware state government
officials were again in contact with Anne Barczewski's daughter, Joanne
Lewis, about putting together another deal to purchase the farm for
preservation, at a price of roughly $12 million. Although Mrs. Lewis was
amenable to further discussions, she succumbed to pressure from her
brothers and agreed to sign a sales agreement with a developer at the
end of January.
- On 3 February 2005, a sales agreement was completed with local
developer Stephen J. Nichols, at an offering price of $14.25 million. The
initial deposit paid to the family was $25,000, with another $225,000
due in early May. The agreement gave Nichols 90 days to determine if
the farm could be developed to his satisfaction, then gave him another
six months to close the sale.
- The farmhouse roof has been neglected for several years and is
believed to be in need of replacement. In response to several "demolition
by neglect" complaints filed with County code enforcement, a County
inspection took place in late March 2005. Although old water damage
was noted on least one interior wall, no active roof leak was found.
However, the exterior paint was found to be in poor repair (cracking and
peeling) and a violation notice was issued.
- After the LGTIC (owners) attempted to ignore the initial notice, a
second violation notice was issued. Exterior painting of the manor house
and repairs to the structure of the granary building were then
apparently completed to the County's satisfaction during the summer of 2005.
- Pamela Scott, an attorney with the firm of Saul Ewing and also the
wife of New Castle County Council President Paul Clark, is representing
Mr. Nichols before New Castle County government. In response to
conflict of interest concerns first raised by Friends of Historic Glasgow,
(FOHG) Mr. Clark has promised to recuse himself from any County
Council decisions involving the La Grange farm. The Council will need
to vote on requested zoning changes if cleared by the Land Use Department.
- The Nichols development team first appeared before the New Castle
County Historic Review Board (HRB), off the agenda, on 13 April 2005.
Nichols presented what were called conceptual plans for development of
the farm. The plans showed the fields full of housing, some commercial
development along U.S. Route 40, and a new school west of the La
Grange manor house. The house was shown with a 500 ft. buffer
surrounding it, which is the minimum requirement under existing county
codes. Pam Scott attempted to obtain informal approval of the plans,
but the HRB refused, and informed the developer that archeological
and historical investigations would be required.
- Mr. Nichols failed to make the full second down payment called for
in the original sales contract, but instead made a partial payment and
renegotiated an extension of the due diligence period. He then further
delayed making the final down payment and attempted to renegotiate a
lower sales price. However, in July 2005, he finally completed all down
payments and agreed to honor the original sales price.
- A Delaware State Preliminary Land Use Service (PLUS) meeting took
place on 3 August 2005, in Dover, DE. The La Grange project was
described as "Rezoning of 236 acres from Suburban to Suburban and
Commercial for 232 residential units, 82,600 sq. feet of strip commercial
and a 135,000 sq. ft. elementary/middle school." (See PDF file of PLUS
report on FOHG web site.)
- The PLUS meeting report, released in late August, outlined the
likely environmental degradation that would occur if the La Grange farm
was to be developed, as proposed. In particular, construction would
adversely impact the Glasgow groundwater recharge area and the
wetlands associated with the environmentally sensitive Muddy Run.
The Delaware Division of Historic and Cultural Affairs stated it was
opposed to the development.
- In September 2005, an initial site plan was filed with New Castle
County Land Use (NCCo LU), and a revised exploratory plan was filed in
December 2005. Both plans required zoning changes to proceed. Twelve
acres of new commercial zoning was shown along Route 40 for over
53,000 sq. ft. of commercial space. The site plan now included 224
housing units on the western end of the farm and a roughly 2-acre
parking lot on the northeast part of the farm. (See PDF file of site plan
on FOHG web site.)
- Although the school building and surrounding parking areas were no
longer included on the site plan, Christina School District has
expressed interest in constructing a school on land near the manor
house and farm buildings.
- A required phase I bog turtle survey was completed in September
2005. This survey found two wetland areas that were suitable habitats for the bog turtle, which is a threatened species. However, the survey
erroneously stated that allowing a 300 ft. buffer around the identified
habitat areas would be sufficient to otherwise allow construction on the
remainder of the site.
- On 12 October 2005, the development team made a scheduled,
preliminary presentation before the HRB. It was announced that the
Level I archeological study, which Nichols had contracted for in May,
had found nine previously unidentified Native American sites, confirmed
the two previously identified ones, and had recovered nearly 1700
prehistoric artifacts and over 1000 historical artifacts. Several newly
found Native American archeological sites were located in the area of
the proposed elementary school construction. As of October 2006, all
recovered artifacts remained in the possession of Kise, Straw, and
Kolodner, the firm which did the survey work and recovered them.
- During their October 2005 appearance before the HRB, the
development team contested the veracity of the Latrobe feeder canal
remnant and the Revolutionary War trenches, both of which are located
in the area of the proposed residential construction. The December 2005
plans largely ignored the remnants of the 18th century road and
Revolutionary War trenches along side it. The plans showed construction
within 50 ft. of the trenches and the obliteration of much of the road.
- On 25 October 2005, the New Castle County Council passed Ordinance
05-087, sponsored by Paul Clark and Robert Weiner. This ordinance
deleted the requirement for certain public hearings on major
development plans involving open space requirements. Public hearings
will now take place in the exploratory and initial phases only. This will
effectively restrict the public's right to a final hearing on development
plans for projects such as La Grange, once the initial plans have been
approved.
- Stephen Nichols, operating as La Grange Communities, LLC, closed
and took possession of the Barczewski farm on 10 November 2005, for
theoriginally agreed upon sales price of $14.25 million. A $14.25 million
mortgage was obtained on the property from Wilmington Trust. The
signatories on behalf of La Grange Communities, LLC, are Steven J.
Nichols and Lowell W. McCoy.
- On 17 January 2006, the HRB held a hearing on the revised December
2005 site plan. The development team reluctantly conceded that the
Latrobe feeder canal remnant was real and that both the canal remnant
and portions of the 18th century road were located as previously claimed
by FOHG. However, the development team continued to contest the
veracity of the Revolutionary War trenches and the portion of the 18th
century road that runs along side them.
- On 7 February 2006, the Planning Board held an initial hearing on
the site plan and the request for a zoning change. Nine citizens spoke in
opposition to the plan, a tenth offered a conditional endorsement.
- In a 30 January 2006 response letter, NCCo LU found numerous
problems with the exploratory plan filed the previous month, and asked
that they be addressed by the developer. Some of the problems or issues
cited were: possible inappropriate zoning change request, encroachment
on or inappropriate disturbance of riparian buffers, omission of an
impacted water course from the drawings, failure to properly delineate
limits of disturbance, need for a nondelineated floodplain study,
unacceptable parking rationale for the housing units, failure to comply
with various sections of the Unified Development Code, need for a
phase II bog turtle survey, and need for an Army Corps of Engineers
wetlands jurisdictional determination, along with many others. (See PDF
file of NCCo LU of letter on FOHG site.)
- In a 15 February 2006 response letter, the HRB took a very strict
position that the site plan should be modified to expand the developer's
500 foot buffer zone around the manor house to include and extend
further out from all of the historic structures, that the trenches and road
be protected, and that all of the identified prehistoric sites either
be fully explored prior to development or protected in place. The HRB
also opposed the zoning change request. Although the HRB has stated
that it is opposed to most development on the property, the HRB cannot
halt development. (See PDF file of letter with HRB stipulations on FOHG
site.)
- A phase II survey to determine the actual presence of bog turtles
was undertaken in April and May of 2006. No bog turtles were reportedly
found. However, the phase II survey had several errors that reduced the
probability of finding any bog turtles. (See CEDS letters on FOHG site.)
- In a June 2006 letter, Pamela Scott responded to the HRB
stipulations on behalf of her client. Nichols agreed to undertake Level II
and Level III archeological studies, as necessary, to mitigate any
identified prehistoric sites that were to be disturbed by construction.
This mitigation took place during the fall of 2006. However, Nichols
objected to most of the remaining stipulations and continued to ignore
them. (See PDF file of Scott letter on FOHG site.)
- In September 2006, Nichols filed a new minor land use plan, proposing
to transfer 1.74 acres on the northeast border of La Grange to the
neighboring Friendship Baptist Church in exchange for sewer and
utility easements across church property. The land to be transferred
includes part of the historic road trace and is within the HRB's stipulated
buffer zone around the historic farm buildings. The church wants to pave
the land over for a parking lot.
- In October 2006, DelDOT offered to waive the usual traffic impact
study requirement, which would normally be imposed prior to approval of
a development such as La Grange, in exchange for a significant
commitment from the developer to undertake needed road
improvements along U.S. Route 40. This is because DelDOT is already
aware that the proximal portions of Route 40 are failing, and further
development will only make things worse. Nichols apparently accepted
DeDOT's terms, in January 2007. (See PDF file of DelDOT letter on FOHG
site.)
- In late 2006, Nichols purchased the contiguous Congo property,
located at the northwestern corner of La Grange. This roughly 10-acre
parcel is largely wetlands. But by adding it to the existing La Grange
lands as "open space," additional residential lots can be carved out of La
Grange.
- Nichols filed his preliminary plan for the La Grange development on
24 January 2007, only days before the exploratory plan was due to
expire. The preliminary plan remains little changed from the previous
exploratory plan, with most of the HRB stipulations still being ignored, and the developer pressing ahead with his zoning change request and
other efforts to subdivide the property for planning purposes. Nichols did
make minor adjustments to the plan that allowed him to increase the
number of residential lots back to 232, after having lost a half-dozen lots
during the earlier reviews. (See overall map of preliminary plan and
FOHG position paper on FOHG site.)
- In March 2007, Councilman David Tackett introduced Ordinance
07-019, to rezone 12 acres of La Grange from suburban to commercial
so that Nichols can build yet another commercial strip mall along U.S.
Route 40.
- Nichols again appeared before the NCCo HRB on 20 March 2007, to
request approval of his rezoning application. Opponents pointed out that
the January 2007 preliminary plan failed to comply with six of the ten
HRB stipulations issued in February 2006. The HRB unanimously ruled
against the rezoning request for a second time, but added new
stipulations on the commercial construction should such a rezoning
be approved over their objections. (See HRB analysis document on
FOHG web site.)
- Despite past indications by NCCo LU that it was opposed to rezoning
any of the La Grange property to allow commercial, industrial, or
high-density residential construction, LU failed to fully support its own
HRB, and recommended conditional approval of the rezoning request.
The rezoning request then went before the NCCo Planning Board (PB),
which held a public hearing on 2 May 2007. The PB voted 5-3 in favor
of the rezoning, but included the condition that Nichols comply with all
HRB stipulations before the zoning change request is voted on by the
County Council. It is interesting to note, however, that the report issued jointly by the PB and LU, following the public hearing, states at the end: "In the phraseology of 9 Delaware Code Section 2603 (a), the Department of Land Use finds that this rezoning as proposed WOULD NOT [emphasis included in original] promote the convenience, order, and welfare of the present and future inhabitants of this state." (See May 2007 PB document on FOHG site.)
- In late April 2007, and without obtaining a permit from the HRB,
Nichols ripped out the historically accurate landscaping immediately in
front of the 1815 manor house. One of the apparent casualties of this
action was a wisteria bush that had been planted by Dr. Black, and which
had survived in the front garden for nearly 200 years. Another was an
original Peace rose, planted in 1945. Most of the plantings that were
removed were English boxwoods that had been installed by Anne
Barczewski, using historic illustrations of the original plantings as a guide.
It is not known why Nichols removed the landscaping. To date, NCCo
has taken no known enforcement action over the failure to obtain prior
HRB approval for the landscape removal.
- In May 2007, Nichols installed a new fence and gate in front of the
manor house, to prevent vehicular access by unknown persons.
- In mid July 2007, Nichols submitted a revised preliminary plan to NCCo LU. The plan was little changed from the previous plans, other than that the commercial strip mall had been broken up into six smaller structures, in response to the latest HRB review.
- On 25 July 2007, Nichols posted a $741,800 performance guarantee in the form of an irrevocable letter of credit and executed a Land
Development Improvement Agreement with New Castle County. Should
La Grange Communities, LLC, fail to comply with the terms of the
agreement, then NBRS Financial Bank is authorized to pay New Castle
County such portion or all of said proceeds to secure completion of site
improvements, such as sewers and stormwater management.
- On 8 August 2007, NCCo LU determined the revised plan was
unacceptable, due to failure to comply with many HRB stipulations,
wetlands disturbance, and other issues. According to the review, the bog
turtle issue also remained unresolved with NCCo LU.
- In August 2007, after inspecting La Grange for bog turtles in the
middle of a drought, DNREC determined that all legal requirements for
bog turtle protection had been met, and no further action was required.
However, the DNREC letter goes on to point out the weakness in their
own position by adding, "Due to the elusiveness of the species and the
proximity of the site to historic records, a result of 'No Bog Turtles Found'
does not conclusively confirm their absence. Bog turtles can persist in
low numbers or could move into the habitat in the future. Therefore,
we recommend that impacts to the habitat be minimized." (Rhetorical
question: How does developing La Grange minimize impacts?)
- On 16 August 2007, Nichols demolished the 1940s-era La Grange
tenant house, located along Route 40 in the area the developer is
demanding be rezoned commercial. The HRB had determined the house
was not of historic value and a demolition permit had been issued.
- On 18 September Nichols filed a revised preliminary plan, responding to
the problems identified in the July plan. In the accompanying cover
letter, signed by Tomas Prusak, of Landmark Engineering, the
development team reiterated its position on historic preservation of the
manor house and outbuildings: "Any recommendation of the Historic
Review Board/Department of Land Use to limit development of the 48-
acre parcel of land that is [no longer] part of this application is arbitrary,
capricious, and improper, and therefore, we have been instructed by our
client and their legal counsel not to place this note on the plan." In other
words, the developer has refused to offer any plan for the preservation of
the historic manor house and outbuildings.
- On 3 October 2007, Nichols refiled his Preliminary Plan for La Grange,
and withdrew his request for commercial rezoning.
- On 25 October 2007, LU replied to the revised Preliminary Plan and
found it ACCEPTABLE, with some comments. Of note, the review states,
"The Historic Review Board has approved the residential development."
Apparently, LU has finally given up on full preservation of the 18th
Century road trace, the Revolutionary War entrenchments, and the
Latrobe canal remnant. About the same time, Nichols' minor land use
plan was approved, paving the way for a second subdivision of La Grange,
and transfer of 1.74 acres to the neighboring church, so that a parking lot can be built over part of the historic road trace, and leaving less than
a 500 ft. buffer around some of the historic outbuildings. This is in spite
of the stated HRB objections to this plan. Furthermore, the planned
sewer construction across church property still appears to encroach on
the wetlands buffer area for Muddy Run creek.
- In mid October 2007, a legal notice posted by the DE Dept. of Natural
Resources & Environmental Control (DNREC) announced that La Grange
Properties, LLC, had applied for a dewatering permit, to sink 200 wells
and temporarily pump 1200 gallons per minute of effluent into the Muddy Run, so as to run a sewer line across wetlands on La Grange. In
response to a letter sent by FOHG, DNREC determined that the
application had been improperly submitted at that time, and the permit
was withheld. Drilling had been scheduled to begin in late October,
despite the fact that the construction plans had not yet been fully
approved and recorded.
3) THE SLAPP SUIT
- On 4 November 2005, roughly one week before closing and taking
possession of La Grange, Stephen Nichols filed a lawsuit against the La
Grange Tenants in Common (LGTIC), claiming one or more of the
partners damaged his ability to fully develop the property as originally
planned by failing to fully cooperate under the sales contract. He
immediately attempted to gain a temporary restraining order (TRO) that
would have allowed him to withhold part of the final payment at closing,
and to compel cooperation by the sellers and by Friends of Historic
Glasgow (FOHG) member, Susan Arday. However, the Court refused his
TRO request.
- On 15 December 2005, the original lawsuit was amended to name
Friends of Historic Glasgow (FOHG) activists Susan and David Arday as
additional defendants. Susan L. Arday is Joanne B. Lewis' daughter. The
Ardays, along with FOHG member Nancy Willing, received a subpoenas
demanding they turn over all correspondence, including e-mails, related
to all FOHG activity, dating back to 2004. The Ardays were accused of
both "breach of contract" and "tortious interference" with the sales
contract, due to their speaking and petitioning government officials in
opposition to the development of La Grange. Mr. Nichols is being
represented by the law firm of Saul Ewing in this suit, the same law firm
that employs his land use attorney, Pamela Scott, who is also the wife of
NCCo Council President, Paul Clark.
- A strategic lawsuit against public participation (SLAPP) is defined
as a civil complaint or counterclaim, filed against individuals or
organizations, arising from their communications to government or
speech on an issue of public interest or concern. Corporations, real
estate developers, government officials and others often bring SLAPPs
against individuals and community groups who oppose them on issues
of public concern. SLAPP filers frequently use lawsuits based on
ordinary civil claims such as defamation, conspiracy, malicious
prosecution, nuisance, interference with contract and/or economic
advantage, as a means of transforming public debate into lawsuits. And
while most SLAPPs are legally unsuccessful (Delaware has an
anti-SLAPP statute), they can be effective in chilling public opposition,
due to the time and expense involved in fighting such a suit.
- On 17 February 2006, DE Chancery Court Vice Chancellor Leo Strine
refused to consider an initial motion to dismiss the SLAPP suit against
the Ardays on First Amendment grounds, and allowed merits-based
discovery to proceed. Strine showed sympathy for the plaintiff's
unsubstantiated claim that the Ardays were acting on behalf of LGTIC
principal, Joanne Lewis, because of the familial relationship alone.
Previous SLAPP suits have also exploited a presumption of familial
conspiracy.
- Although originally having sued the LGTIC partnership members, the
plaintiff soon ignored them and began directing all legal activity at
FOHG members Nancy Willing, David Arday, and Susan Arday. All
three of them were forced to turn over thousands of documents related
to their FOHG advocacy and each was deposed during the spring of
2006. It appears that the original suit was filed for no other reason than
to provide a backdoor means to pursue a SLAPP suit against the
Ardays, because of their appearances at hearings and contacts with
NCCo officials expressing opposition to development.
- A second motion to dismiss, to stay discovery, and to request
reimbursement of attorney's fees on behalf of the FOHG defendants was
filed by the Ardays' attorney, David Finger, on 15 May 2006. In classic
SLAPP suit fashion, however, the plaintiff responded by requesting to
amend his complaint to add an "injurious falsehood" claim against the
Ardays, and to further extend the discovery period, in order to continue
the action against the Ardays. On 27 May 2006, V.C. Strine granted the
plaintiff's motion, and gave him permission to inspect the Ardays'
computer hard drives for additional evidence that the plaintiff
fantastically claimed was lost or missing, because nothing to substantiate
his earlier pleadings was uncovered in the initial round of discovery.
- Nichols' court approved search of the Ardays' computers (including
the children's computer) produced nearly 30,000 documents that had
nothing to do with the lawsuit, because the plaintiff's Saul Ewing attorneys and Legis Discovery experts refused to construct their
computer search terms to exclude obviously unrelated material.
Instead, the Ardays' attorney (David Finger) was forced to review many
thousands of unrelated documents and affirm that they were, in fact,
nonresponsive to the plaintiff's discovery demands.
- As of the twice-postponed close of discovery, in December 2006,
Nichols still refused to specify and quantify what damages he had
suffered as a result of FOHG's activity. During his September 2006
deposition, Nichols was unable to show how any action by the
defendants had cost him any money. Yet he continued to broadly claim
damages in the form of "reduced development potential of the property,
additional site preparation costs, archeological expenses and attorney's
fees." He delayed his deposition of Joanne Lewis, the only one of the
original LGTIC defendants that he did depose, until December 2006.
In the mean time, a number of other attempts to delay resolution and
continue discovery proceedings against the Ardays were pursued, as
the primary focus of a SLAPP suit is to keep it going as long as possible
in order to chill public opposition. The suit has consumed more than
500 hours of the Ardays' combined time over its course, and their full
legal bill is now into six figures. Meanwhile, FOHG has been seriously
hurt, as many participants have faded away to avoid being targeted in
the suit and suffering similar expense and aggravation.
- In a belated attempt to establish damages after discovery had
closed, Nichols' land use attorney, Pamela Scott, filed an affidavit on his
behalf claiming that the Ardays' actions had delayed approval of Nichols' development plans by several months. In the affidavit, she stated that
"...after 31 months in the land use approval process, we have still not
gotten beyond the initial stages of the process and formally filed a
Preliminary Plan for the development project." The affidavit was sworn to
less than 24 months after the sales agreement was signed by all sellers.
No formal approval process for the development could have begun before
the sales agreement was completed.
- A third motion to dismiss the SLAPP suit was filed at the end of
November 2006, and was further joined in January 2007 by motions to
dismiss filed by the original LGTIC defendants. On 6 February 2007, a
hearing was held before V.C. Strine, who ruled from the bench that the
plaintiff had failed to show sufficient evidence to support his case. The
entire suit was dismissed without applying Delaware's rather weak
anti-SLAPP law, leaving the defendants with many tens of thousands of
dollars in legal bills. However, in further sympathy to the plaintiff, Strine
allowed for Nichols to refile a new amended defamation claim against
the Ardays.
- On 19 February 2007, a revised defamation and injurious falsehood
SLAPP suit was filed by Nichols against both Ardays. This third revision
of the original November 2005 lawsuit claimed Nichols was damaged by
four e-mails sent by Susan Arday, in the spring of 2005, to fewer than six other FOHG members and/or to a former NCCo LU staffer involved in
historic review issues. The e-mails expressed an opinion or relayed other
information from third-party sources. There is no evidence that any of
the e-mails was further distributed by any of the recipients, and the LU
staffer departed NCCo government in January 2006, before any decisions were made on any of Nichols' development plan filings. Even so, communications sent to government representatives concerning
governmental actions are a protected First Amendment petitioning activity.
- The plaintiff also filed an appeal over the dismissal of his case against
the original seller defendants. On 1 May 2007, the DE Supreme Court
threw out that appeal on the grounds that it was interlocutory.
- In late April 2007, the Ardays filed a motion to dismiss the new
defamation and injurious falsehood claims against them, citing
jurisdictional issues, evidence issues, First Amendment issues, and failure to state a claim. On 24 May 2007, V.C. Strine exercised discretion and
granted the Arday's jursdictional request for a jury trial, dismissing the
defamation case from Chancery Court, which does not offer jury trials.
Nichols was given the option to refile his case in Superior Court, and had
until the beginning of August to do so.
- After waiting until the August 2007 deadline date, Nichols notified the
Court of his decision to drop his claims, resulting in the second SLAPP
being dismissed with prejudice. The Chancery Court subsequently
awarded the Ardays just under $2200 in court costs, but no attorney's
fees, as V.C. Strine refused to recognize the case as a SLAPP suit under
Delaware law. Nichols has not yet paid one cent of the award.
- In September 2007, the Ardays filed a Notice of Appeal to the
Supreme Court of Delaware concerning the Chancery Court's failure to
recognize the case as a SLAPP suit and other issues, including V.C.
Strine's possible inappropriate application of existing jurisdictional
statutes. Nichols immediately filed a cross claim appealing the original
February 2007 dismissal of the initial tortious interference and injurious
falsehood SLAPP suit.
- In December 2007, the Ardays filed their opening brief in their appeal. They were joined by the Delaware Chapter of the ACLU, which filed an amicus brief on their behalf, pointing out that no matter the
outcome, the Ardays were entitled to an initial review of the claims
against them under the existing DE anti-SLAPP law, something which the
Court of the Chancery ignored. Rather than respond directly to the briefs,
Nichols filed a motion to affirm V.C. Strine's rulings, a move that usually
results in a one- to two-month delay while the DE Supreme Court
reconsiders the merits of the appeal. In near record time, however, the
Court rejected Nichols' motion, granting that the Ardays' appeal was
worthy of being heard. The hearing will likely take place in Spring 2008.
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*** There remains significant community opposition to development of
this farm. To date, Friends of Historic Glasgow has gathered over 2,300
signatures opposing development.
*** IF YOU WANT TO SIGN THE PETITION SAVE LA GRANGE, PLEASE CLICK ON THE LINK BELOW. THANK YOU!
Save La Grange Petition
Click here to access the petition.
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