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The
project has been the nub of a frequently emotional community
controversy since Vogel purchased the property on Silverside
Road across from Green Acres in 1999. Residents of other nearby
developments and their civic associations maintain it would
change the character of the neighborhood.
At a
Superior Court hearing on Mar. 22, Chabad's lawyer, David
Margules, stated that would not be the case and argued that New
Castle County Council joined counterparts elsewhere in
determining that houses of worship are appropriate in
residential areas when it enacted the Unified Development Code.
Vogel has conducted services and hosted other religious
activities in his nearby home in Green Acres for about 15 years.
Margules
further argued that the rabbi and congregation have "made every
conceivable effort to accommodate the neighbors" and allay their
fears.
Gebelein
has not actually been asked to directly settle the controversy.
The civil suit before him seeks instead to overturn a county
Board of Adjustment decision last August which granted five of
six requested variances from the land use code. The board, in
effect, said it was all right for Chabad to use a portion of
adjacent land it will lease from Conectiv Power to fulfill some
of the code requirements.
The suit
was brought by Bernard Dempsey, vice president of the Council of
Civic Organizations of Brandywine Hundred and the council itself
on behalf of member civic associations in the area.
In asking
for a prompt ruling in the lawsuit, Margules told Gebelein that
Chabad has raised about $1 million of the estimated $1.5 million
to $2 million the expansion will cost and a pledge of an
additional substantial contribution is conditioned upon the
project's moving forward by the end of this year.
Edward
Danberg, attorney for the suing parties, said the the adjustment
board erred in not rejecting the variances request on the
grounds that Vogel and Chabad had brought the hardship to be
corrected upon themselves by proceeding with the purchase of
their property knowing that it did not meet the land-use
requirements for the use they intended to make of it.
Also, he
said, Conectiv did not have any hardship related to use of the
portion of its property that the board agreed to include as part
of the synagogue petition. The utility company property is part
of the right-of-way for a high-tension power line strung along a
line of tall poles.
Danberg
argued that a house of worship is not a right granted by the
development code but a "special use permitted only when a
property is in compliance with the code." In this case, he said,
variances are necessary to deal with five places where it is not
in compliance with the code's set-back requirements.
Neither
lawyer called any witnesses during the hearing, thus avoiding a
repeat of the emotional exchange, pro and con the project, which
occurred when the adjustment board considered the issue.
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