MATTHEW MEYER WILSON B.

DAVIS
COUNTY EXECUTIVE COUNTY ATTORNEY

87 READS WAY
NEW CASTLE, DE 19720
(302) 395-5130
nccde.org

OFFICE OF LAW

MEMORANDUM
TO: Attached Distribution List

FROM: Wilson B. Davis, County Attorney /s/ WBD by KVS

DATE: August 24, 2020

RE: Litigation Hold and Document Review Notice

Croda, Inc. v. New Castle County
Chancery Court of the State of Delaware
C.A. No. 2020-0677-MTZ

ATTACHMENTS: Complaint

Please be advised that on August 17, 2020, Croda, Inc. filed a Verified Complaint for
declaratory and injunctive relief. A copy of the Complaint is attached to this Memorandum. The
litigation relates to the adoption of a zoning ordinance, O19-046, regarding landfills and the HI
(heavy industrial) zoning district by New Castle County. Additional facts pertaining to this action
can be found in the Complaint, attached hereto.

Federal and state laws and rules define obligations to preserve documents, electronic
information, and other materials when a party is involved in or reasonably foresees, as in the instant
matter, that it may become involved in litigation. In this regard, this Memorandum is to remind
you that you should retain, preserve and not destroy any and all documents, information and any
other evidence concerning the person/claims discussed above. For these purposes, documents and
other information includes, but is not limited to, hard copies, handwritten notes, e-mails, text
messages, computer files, correspondence, photographs, audio files, videotapes, voicemails, word
processing documents, power point presentations, spreadsheets, databases, calendars, telephone
logs, internet usage files and all other electronically-stored information maintained, created,
received and/or maintained on computer systems. Sources of the documents and other information
include, but are not limited to, all hard copy files, computer hard drives, removable media (e.g.,
CDs, DVDs and flash drives), social media computers, tablets, smartphones, iPods, zip drives,
offsite storage and any other locations where hard copy and electronic data are stored. The above-
mentioned sources of relevant information may include personal computers you or your employees
have access to at home or other locations. It also includes inaccessible storage media such as back-
up tapes which may contain relevant electronic information that does not exist in any other form.

HONESTY TRANSPARENCY EFFICIENCY

 It is critical that all those who are in possession of documents or information relating to the
person/claims discussed above preserve and not discard, destroy, delete or alter in any way such
documents, files, electronic files, e-mails or other information (including drafts and revisions), in
whatever form that information now exists. Therefore, you must immediately avoid deleting,
overwriting or otherwise possibly destroying relevant documents and information on your
computer or other electronic device. If you need assistance with this function, please contact Jon
Yearly, IS Manager, at (302) 395-5218, or via County e-mail. Failure to take every reasonable
step to preserve this information may result in penalties against the County.

You are required to search all files, documents, and any other information in your
possession where relevant information relating to the person/claims discussed above, including
any electronic files that may have been “deleted,” sent to storage or to other record custodians may
be contained. You also are required to segregate and preserve such documents. The obligations
under this litigation hold are continuing and apply equally to information created after, as well as
before, this Memorandum was delivered.

Please continue to follow the steps listed below to preserve all relevant materials relating
to the person/claims discussed above until this matter has been concluded and you are advised by
the Office of Law to lift the hold:

1. Identify places where potentially-relevant information may be stored and

make appropriate arrangements for its preservation.

2. Distribute this Memorandum to all personnel in your department and any

County agents who may be involved in, or have information pertaining to,
the above-mentioned lawsuit. It also is advised that you document in
writing the specific actions taken by you/others whom you supervise in
response to this Memorandum.

3. Suspend all document deletion programs as applied to documents and other

materials relating to the person/claims discussed above. This includes
discontinuing the Local Government General Records Retention Schedule
as applied to documents and other materials relating to the person/claims
discussed above.

4. Do not delete e-mail messages or other electronic files, including files on

your hard drives, network drives, shared drives, or on any other server,
relating to the person/claims discussed above.

5. Notify Jon Yearly, IS Department, at (302) 395-5218, or via County e-mail,

before making any changes to your computer or the computer of any former
or departing employee who may have relevant information or materials.

6. Do not dispose of any files belonging to the former or departing employees,

unless they have been checked for relevant materials.

7. System administrators are directed to immediately disable the scheduled

purge function and to preserve all e-mails for the individuals.

-2-
 8. Defer any significant hardware/software upgrade, repair or replacement that
might impact the identification and preservation of electronically-stored
information relating to this matter. Any significant upgrade, replacement,
or disposal of hardware or software should be discussed with the Office of
Law beforehand.

9. Defer running compression, disk defragmentation or other computer

optimization or automated maintenance programs and safeguard and
preserve portable or removable electronic storage media containing
potentially-relevant, electronically-stored information.

10. Notify Mary A. Jacobson, at (302) 395-5130, or via County e-mail, if you
have any information or electronic data that may be relevant to the above
person/claims or are aware of others who should be included on the below
distribution list.

If you have any doubt about whether a particular document or file is relevant or should be
maintained, you should err on the side of retention. You should not make a decision to destroy,
otherwise dispose of, or alter a potentially-relevant document on your own.

Jon Yearly may contact you to confirm that your computer files will continue to be
collected and stored properly. You periodically will receive friendly reminders to preserve this
information. In the meantime, if you have any questions concerning this Memorandum, please
contact Mary A. Jacobson, at (302) 395-5130, or via County e-mail.

All communications with and through the Office of Law, its attorneys and outside counsel,
including this Memorandum, are privileged and confidential. Please do not discuss these matters
with anyone outside of the Office of Law or those you must inform so as to ensure that no
potentially-responsive documents are destroyed, discarded, or altered.

Please note that all departing County officers, employees or agents in receipt of this
Memorandum are under an obligation to inform the Office of Law about any impending departure
from the County or cessation of business with the County. You must contact Mary A. Jacobson,
at (302) 395-5130, or via County e-mail, when you learn of your departure so that we can arrange
for preservation of your electronic data and collection of all relevant other information related to
this claim.

This Memorandum is being sent to you via e-mail or U.S. mail. To that end, please
acknowledge your receipt, review, and understanding of this policy by signing your name at the
bottom and forwarding it back to the Office of Law, at your earliest convenience.

I appreciate your cooperation.

CC: Distribution List

Karen V. Sullivan, County Solicitor

Mary A. Jacobson, First Assistant County Attorney
Brian J. Merritt, Assistant County Attorney

-3-
Nicholas J. Brannick, Assistant County Attorney
Mengting Chen, Assistant County Attorney
Matthew Meyer, County Executive
Richard Hall, General Manager, Land Use
The Honorable Kenneth Woods, District 1
The Honorable Dee Durham, District 2
The Honorable Janet Kilpatrick, District 3
The Honorable Penrose Hollins, District 4
The Honorable Lisa Diller, District 5
The Honorable David Carter, District 6
The Honorable George Smiley, District 7
The Honorable John Cartier, District 8
The Honorable Timothy Sheldon, District 9
The Honorable Jea Street, District 10
The Honorable David Tackett, District 11
The Honorable James W. Bell, District 12
The Honorable Karen Hartley-Nagle, President of Council
Michael Migliore, Counsel to County Council
Nellie Hill, Clerk of County Council
Jon Yearly, Manager, IS Department
Stephanie Tickle, Insurance and Loss Control Manager
Audrey Hope-Milton, Central Services Technician

-4-
 EFiled: Aug 17 2020 05:20PM EDT
Transaction ID 65854912
Case No. 2020-0677-
IN THE COURT OF CHANCERY OF THE STATE OF DELAWARE

CRODA INC.

Plaintiff, C.A. _____

v.

NEW CASTLE COUNTY,

Defendant.

VERIFIED COMPLAINT
Plaintiff Croda Inc. (“Croda”) by and through its undersigned attorneys,

brings this action against New Castle County (“Defendant”), and in support alleges

as follows:

NATURE OF ACTION
1. This lawsuit arises out of a New Castle County’s adoption of a mis-

titled ordinance that, because of the mis-titling, violated procedural requirements

imposed by Delaware law and failed to put affected property owners on notice that

a potentially crippling change was being considered by the County. Specifically,

with respect to Ordinance 19-046 (the “Ordinance,” copy attached as Exhibit A),

all “heavy industry” uses in the County’s “HI” zone – which had been permitted by

right – are now required to obtain a “special use permit,” which is a discretionary

permit. As result, all heavy industrial property owners will now need to seek this

discretionary approval should they desire to expand their facilities.

1
37364212.1
 2. New Castle County’s adoption of the Ordinance was invalid because:

(1) the defective title violated Delaware and New Castle County’s single subject

rule; (2) notice of the Ordinance did not comply with Delaware’s and New Castle

County’s notice requirement; (3) the resulting hearing did not provide Croda with a

meaningful opportunity to be heard; and (4) the Council’s adoption of the

Ordinance was arbitrary and capricious. Croda seeks declaratory and injunctive

relief under Delaware and federal law.

THE PARTIES

3. Plaintiff, Croda Inc. (“Croda”), is a Delaware corporation with its

principal place of business at 300-A Columbus Circle, Edison, New Jersey, 08837.

It is the sole owner and operator of the Atlas Point facility located at 315 Cherry

Lane, New Castle, Delaware, 19720.

4. Defendant, New Castle County (sometimes referred to as the

“County”), is a political subdivision of the State of Delaware with its principal

offices located at 87 Read’s Way, New Castle, Delaware, 19720.

JURISDICTION
5. This Court has jurisdiction over this action pursuant to 10 Del. C. §

341 and § 342, which empowers this Court “to hear and determine all matters and

causes in equity.” This action primarily seeks equitable relief and Plaintiff has no

2
37364212.1
adequate remedy at law. This Court has concurrent jurisdiction over Croda’s

Section 1983 claim.

FACTS
6. Croda owns and operates a chemical manufacturing facility in New

Castle County. The facility, commonly referred to as “Atlas Point,” recently

became the first facility in the nation to manufacture ethylene oxide using biofuels

instead of petroleum products. The Atlas Point facility has been in operation at its

current location since at least 1937. Croda purchased the facility in 2006. The

Atlas Point facility is located on land that has been zoned “HI” (Heavy Industrial)

throughout the time Croda has owned and operated the facility.

7. Croda is presently considering engineering designs and significant

capital expenditures of at least $20 million to modernize, improve and expand its

existing production capacity at the Atlas Point site, with all such plans and designs

to be compatible with Croda’s sustainability goals of reducing its overall emissions

and carbon footprint. Among other benefits, the project will reduce Croda’s

current air emissions. Croda is also actively considering significant additional

investment and future expansion, replacement and improvement of Croda’s

production facilities, equipment or manufacturing methods that will, as with the

current project, reduce air emissions. All such plans would have constituted a

conforming use in a district zoned for heavy industrial use prior to the passage of

3
37364212.1
Ordinance 19-046 and would have been permitted “by right;” but now Croda’s

facility is considered a non-conforming use subject to special use permit

requirements and the discretionary standards for the grant of such permits.

Ordinance No. 19-046, “Regarding Landfills”

8. On April 30, 2019, four members of the New Castle County Council

introduced proposed Ordinance No. 19-046 (attached hereto as Exhibit A). The

proposed Ordinance was titled “To Amend New Castle County Code Chapter 40

(“Unified Development Code”), Article 3 (“Use Regulations”) And Article 33

(“Definitions”) Regarding Landfills” (emphasis added).

9. Thus, the title to the Ordinance indicated that it would make changes

to the County Code “regarding landfills.” Those who did not own or operate

landfills would conclude, incorrectly as it turns out, that the Ordinance would not

affect them.

10. Ordinance 19-046 contains three Sections. Sections 1 and 3

specifically relate to landfills. Section 1 limits the height of a landfill to 140 feet.

Previously, there was no height limitation. Section 3 adds “landfill” to the list of

uses considered “heavy industry.”

11. Section 2, however, affects every property zoned HI, whether such

property is used for a landfill or not.

4
37364212.1
 12. Specifically, Section 2 of the Ordinance 19-046 table 40.03.110B

regarding heavy industry. By striking the “Y” in the table for heavy industry in the

HI zone, meaning that heavy industry uses were permitted, and replacing the “Y”

with an “S,” the Ordinance now requires all heavy industry uses to obtain a

“Special Use Permit,” a discretionary permit:

See Ordinance at Section 2.

13. Put another way, prior to the adoption of the Ordinance, heavy

industry uses were permitted “by right,” meaning that no discretionary approvals

were required from the County and a property owner could make use of its “HI”

5
37364212.1
zoned property for heavy industry uses so long as the user complied with the

applicable requirements regarding setbacks, height, lot size, etc.1

14. Except for the change in Section 2 of the Ordinance (which was not

part of any advertisement regarding the Ordinance), nothing else in the Ordinance

indicates that a new Special Use Permit requirement was being imposed on all

heavy industry uses.

15. For example, the synopsis to the Ordinance does not mention the

Ordinance’s impact on Heavy Industry uses. Rather, the Synopsis summarizes the

new height limits for solid waste landfills, and says that the Ordinance “clarifies

that a Solid Waste Landfill (NAICS 562212) is a permissible use in a Heavy

Industry zoning district.”

16. By omitting any discussion or analysis of Section 2, the synopsis did

not comply with New Castle County Council Rule 2.2.6 requiring that “[t]he

synopsis shall summarize the matter addressed and include the title” as well as any

“revisions made by substitutes or amendments.” See Exhibit C, NCC Council

Rules (excerpts).

1
Of course, a property owner intending to use his or her property for a heavy
industrial use would also need to comply with state and federal environmental
laws, and may need to obtain air permits and other permits from state and federal
agencies. The County Code only deals with whether a use itself is permitted on a
property; a property owner must always comply with all applicable environmental
laws.
6
37364212.1
 17. Delaware law and the New Castle County Council Rules require

ordinances to be limited to a single subject, and further require that the title be

descriptive of the purpose of the ordinance. The title of the ordinance must be

published in a newspaper of general circulation to give notice to interested parties.

Finally, interested parties must be given an opportunity to comment during a public

hearing. See generally 9 Del.C. §§1152, 1153, 2607.

18. On information and belief, the title of Ordinance No. 19-046 was

published in a general circulation newspaper in New Castle County, along with

information regarding the various public hearings on the Ordinance. In all such

notices, the title of the Ordinance included the phrase “regarding landfills.”

19. On August 7, 2019, the New Castle County Department of Land Use

held a public hearing on the Ordinance. At the hearing, a representative from the

Department of Land Use introduced the proposed ordinance, and explained that the

zoning ordinance was introduced in response to “concern[s] about quality of life in

general around the site of the landfill.” See Exhibit B, Planning Board Aug. 6,

2019 Transcript 1 (excerpts) at 18:8-9 (“PB Transcript”).

20. Also at the hearing, Michael Migliore, Counsel to the New Castle

County Council, testified that “the intent of this ordinance is to address currently

existing landfills as well as future landfills.” See PB Transcript at 20:22-24.

7
37364212.1
 21. No one at the Planning Board hearing discussed or mentioned the fact

that the new Special Use Permit requirement would apply to all heavy industrial

uses.

22. The Planning Board recommended in favor of the Ordinance on

August 7, 2019; but, in doing so, the Board did not articulate as to any reasons why

imposition of a Special Use Permit requirement for all HI uses was necessary or

made sense or was otherwise related to the promotion of public health, safety, or

welfare.

23. On August 27, 2019, New Castle County Council held a public

hearing on the Ordinance. During the course of the hearing, there was no

discussion of the fact that the Ordinance would require a special use permit for

every heavy industry use and that this was a change from the current code.

24. Because the Ordinance’s title did not indicate that it would affect any

uses other than landfills, the County’s adoption of Section 2 of the Ordinance did

not comply with procedures required by Delaware law, the New Castle County

Council Code, or federal law. As a result, the adoption of Section 2 of Ordinance

No. 19-046 is invalid, and this Court should enjoin its enforcement.2 The

procedural defects in Defendant’s actions are further described below.

2
Although the Ordinance itself does not contain a severability clause, there is no
reason why the Court cannot sever Section 2 from the Ordinance and leave
Sections 1 and 3, which do relate only to landfills, in place.
8
37364212.1
 25. Delaware Code Title 9, Section 1152 codifies this requirement, stating

that “[n]o ordinance, except those relating to the budget or appropriation of funds

and those relating to the adoption or revision of the County Code shall contain

more than 1 subject which shall be clearly expressed in its title.” 9 Del.C.

§1152(a) (emphasis added).

26. New Castle County Council Rule 2.2.1 further requires that the title of

an ordinance “shall clearly express the matter addressed in the legislation for

maximum public notice.” See NCC Council Rules (emphasis added).

27. Ordinance No. 19-046 does not comply with the titling rules. The

Ordinance is titled “[T]o Amend New Castle County Code Chapter 40 (“Unified

Development Code”), Article 3 (“Use Regulations”) and Article 33 (“Definitions”)

Regarding Landfills.” The title of Ordinance No. 19-046 indicates that it concerns

only landfills, yet the substance of the Ordinance affects all heavy industry uses.

Given the broad impact of the Ordinance, and the limited nature of the title of the

Ordinance, the title certainly does not provide “maximum public notice” as

required by New Castle County Council’s own rules.

28. Section 2 of Ordinance No. 19-046 effectively blocks Croda’s planned

expansion, modernization and upgrade of its Atlas Point facility. Before the

Ordinance, Croda’s plans were permitted by right. If the Ordinance is effective

and applies, Croda is required to secure a Special Use permit before conducting

9
37364212.1
any new heavy industrial activities on its property or expanding existing uses, thus

jeopardizing its plans and forcing Croda to undergo a potentially time-consuming,

costly, and uncertain process.

Lack of Notice
29. Although the County published notice of the Ordinance prior to public

hearings on the Ordinance, the title to the Ordinance was misleading (at best) and

failed to put owners of “HI” zoned property on notice that the Ordinance would

affect their property rights. As a result, Croda did not participate in the public

process concerning the Ordinance, as Croda had no notice that the Ordinance

would affect its use of its property.

30. A reasonable person who read the title of Ordinance No. 19-046

would not have understood that the Ordinance impacted allowable uses in areas

zoned for Heavy Industry use. As a result, a person interested in changes to Heavy

Industry zoning requirements—such as Croda—would not have understood that

the Ordinance could impact their use and enjoyment of land zoned Heavy Industry

or that they should seek to have their concerns heard at the public Council meeting.

31. The publication of the title of Ordinance No. 19-046 did not satisfy

the notice requirements for land use ordinances in New Castle County.

32. Since Ordinance No. 19-046 did not provide adequate inquiry notice

to interested parties, the 60-day Statute of Repose codified at 10 Del. C. § 8126(a)

10
37364212.1
was not triggered. To hold otherwise would penalize property owners who rely

upon the titles of ordinances and would, essentially, eviscerate the public notice

requirements.

33. Croda received actual notice of Ordinance No. 19-046 on June 17,

2020.

The Council’s Arbitrary and Capricious Action

34. The New Castle County Council’s decision to enact Ordinance No.

19-046 was arbitrary and capricious, because the Council members did not

consider material and relevant evidence before enacting Section 2 of Ordinance

No. 19-046.

35. A County Council’s action on a zoning ordinance must be supported

by a record sufficient to withstand judicial challenge since, unless the Council

creates a record or states on the record its reasons for a zoning change, a court is

given no means by which to review the Council’s decision. On information and

belief, the New Castle County Council did not state on the record its reasons for

making a county-wide change to all Heavy Industry zones in Section 2 of the

Ordinance. On information and belief, the Council also failed to consider any

material or relevant evidence in enacting Section 2 of the Ordinance.

11
37364212.1
 36. The Council’s failure to consider any material evidence before voting

on Section 2 of the Ordinance, and its failure to state on the record any reasons for

passing Section 2 of the Ordinance, renders Section 2 of the Ordinance invalid.

COUNT I
(Permanent Injunction)

37. Plaintiff repeats and realleges all the allegations set forth above as if

fully set forth herein.

38. No ordinance is valid unless proper public notice is provided of the

nature of the zoning reclassification proposed in accordance with the Delaware

Code. Similar requirements are also provided for in the New Castle County

Council Rules.

39. Delaware law requires that the title adequately describe the subject of

the ordinance. The title of Ordinance No. 19-046 does not adequately describe its

subject matter, as it makes no mention of general changes to heavy industrial uses.

40. Pursuant to Delaware law, the Council must provide notice and a

hearing before passing a zoning ordinance. The publication of the title of

Ordinance No. 19-046 did not satisfy Delaware notice requirements.

41. The New Castle County Council’s adoption of Section 2 of Ordinance

No. 19-046 without proper notice, and the failure to articulate any rational relation

to the public health, welfare, or safety with respect to any uses other than landfills

was arbitrary and capricious.

12
37364212.1
 42. For these reasons, the Council’s adoption of Section 2 of Ordinance

No. 19-046 did not comply with Delaware law or New Castle County rules. As a

result, the Council’s action in adopting Section 2 of Ordinance No. 19-046 should

be enjoined, and the Court should enter an injunction barring the enforcement of

Section 2 of Ordinance No. 19-046.

43. Plaintiff will suffer irreparable harm if the Court does not grant it the

injunctive relief requested. Absent injunctive relief, the Ordinance will stand and

further development on Croda’s Atlas Point site will be halted, impeded or delayed

unless it satisfies highly discretionary criteria for obtaining a Special Use Permit.

The accompanying detrimental effects will irreparably damage Croda’s use and

enjoyment of its property. The requirements will also impede other owners of

“HI” zoned property and may cause New Castle County to lose millions of dollars

of new investment and upgrades as well as potential new employers.

44. The aforementioned harm to be suffered by Croda outweighs any

harm that would befall the Defendant. Defendant New Castle County will suffer

no harm other than reverting to its previous zoning regulation that existed before

Section 2 of Ordinance No. 19-046 was adopted, and Plaintiff will remain

responsible for complying with all other applicable federal, state and local

regulatory requirements relating to building and land use development, as well as

13
37364212.1
environmental, health and safety requirements, on its Atlas Point site.

Consequently, the balance of the equities favors Plaintiff.

45. Plaintiff lacks an adequate remedy at law and will be irreparably

harmed in the absence of injunctive relief. The Council’s adoption of the

Ordinance should be enjoined, and this Court should declare that Section 2 of the

Ordinance is void.

COUNT II
(Declaratory Judgment)

46. Plaintiff repeats and realleges all the allegations set forth above as if

fully set forth herein.

47. This Court may declare the legal rights and responsibilities of parties

pursuant to the Declaratory Judgment Act, 10 Del.C. Ch. 65.

48. For the reasons stated above, Defendant New Castle County has not

complied with the legal requirements of the Delaware constitution, Delaware

statute, or the New County Council Code by approving Section 2 of Ordinance No.

19-046. Specifically, the Council’s approval of the Ordinance is invalid on the

grounds of (1) improper and misleading public notice, (2) lack of any review of

material evidence or articulable reason for why Section 2 of the Ordinance is in the

interest of the public health, safety, or welfare with respect to uses other than

landfills.

14
37364212.1
 49. For the reasons stated above, Plaintiff respectfully requests that the

Court enter a declaratory judgment determining that New Castle County’s approval

of the Ordinance was arbitrary, capricious and illegal and should declare Council’s

Ordinance void and of no legal force or effect.

COUNT III
Procedural Due Process Claim Under § 1983

50. Plaintiff repeats and realleges all the allegations set forth above as if

fully set forth herein.

51. The New Castle County Council was acting under color of state law

when it enacted Ordinance No. 19-046. The New Castle County Council is a

subdivision of the State of Delaware, and was acting pursuant to delegated state

authority in passing the Ordinance.

52. The New Castle County Council’s passage of Ordinance No. 19-046

deprived Croda of rights, privileges, and immunities secured by the Constitution or

laws of the United States. Specifically, the Ordinance substantially impedes

Croda’s use and enjoyment of its property without proper notice or an opportunity

to be heard.

53. Croda has a vested property right in the use and enjoyment of its Atlas

Point facility, including the ability to conduct heavy industrial uses on the land

zoned as “Heavy Industry.” Croda’s property right has been vested at least since it

purchased the Atlas Point facility in 2006, when it relied in good faith on the New

15
37364212.1
Castle County Council’s designation of the site as a “heavy industry” zone. Croda

relied on Defendant’s classification of the site as “Heavy Industry” and expected

that it would be able to use the property for industrial purposes without the need

for additional zoning approvals. Ordinance No. 19-046 has made substantial

changes to how Croda may use its property, and prevents Croda from expanding its

operations at its site.

54. Because Croda’s property right has vested, Croda has a

constitutionally protected property interest in the continued use and enjoyment of

its property for Heavy Industry uses.

55. Croda had protected property interests and was therefore entitled to

procedural due process before Defendant diminished Croda’s property interests.

56. Defendant violated Croda’s right to procedural due process when it

adopted Ordinance No. 19-046 without giving Croda prior notice or a hearing. As

a result, Croda has been denied its procedural due process rights, and Defendant is

liable to Croda under 42 U.S.C. § 1983.

57. In at least one previous Delaware case, the Superior Court has held

that the County violated a property owner’s procedural due process rights when the

County failed to give notice (constructive or otherwise) to property owners about a

change in the applicable zoning laws. See, e.g., Bohemia Mill Pond v. New Castle

County Planning Board, 2001 WL 1221685 (Del.Super.) (copy attached as Ex. D).

16
37364212.1
 COUNT IV
Substantive Due Process Claim Under § 1983

58. Plaintiff repeats and realleges all the allegations set forth above as if

fully set forth herein.

59. The New Castle County Council was acting under color of state law

when it enacted Ordinance No. 19-046. The New Castle County Council is a

subdivision of the State of Delaware, and was acting pursuant to delegated state

authority in passing the Ordinance.

60. The New Castle County Council’s passage of Ordinance No. 19-046

deprived Croda of rights, privileges, and immunities secured by the Constitution or

laws of the United States. Specifically, Croda suffered substantive due process

violations of its property interests, which are protected by the United States

constitution.

61. Croda has a vested property right in the use and enjoyment of its Atlas

Point facility, including the ability to conduct heavy industry uses on the land

zoned as “Heavy Industry.”

62. Defendant violated Croda’s right to substantive due process when it

arbitrarily abused its power in passing Ordinance No. 19-046. The Council’s

decision to pass the Ordinance was arbitrary, capricious, irrational, and not

supported by adequate evidence. As a result, Croda has been denied its substantive

due process rights, and Defendant is liable to Croda under 42 U.S.C. § 1983.

17
37364212.1
 PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully requests that this Court enter judgment

and grant it relief against Defendant New Castle County Council as follows:

(a) Enter a permanent injunction (a) enjoining the Defendant from relying

upon or in any way taking action based upon Section 2 of the Ordinance as it

pertains to Croda’s Atlas Point property; and (b) mandating that Defendant New

Castle County rescind and vacate its approval of Section 2 of the Ordinance, and

(b) Enter a declaratory judgment that the New Castle County’s approval

of Section 2 of Ordinance 19-046 is invalid and null and void, and

(c) Award Croda its costs and attorneys’ fees in bringing this action, and

(d) An order granting such other and further relief in the Plaintiff’s favor

as the Court deems just and proper.

Respectfully submitted,

OF COUNSEL: /s/ Richard Forsten

Richard A. Forsten (Bar No. 2543)
Stephen S. Swedlow Pamela J. Scott (Bar No. 2413)
Quinn Emanuel Urquhart Elizabeth S. Fenton (Bar No. 5563)
& Sullivan, LLP SAUL EWING ARNSTEIN & LEHR
191 N. Wacker Drive, Suite 2700 1201 North Market Street, Suite 2300
Chicago, IL 60606 Wilmington, Delaware 19801
Ph: (302) 421-6833
Fax: (302) 421-4213
Richard.Forsten@saul.com
Pam.scott@saul.com
Elizabeth.Fenton@saul.com
Dated: August 17, 2020 Attorneys for Plaintiff

18
37364212.1
EFiled: Aug 17 2020 05:20PM EDT
Transaction ID 65854912
Case No. 2020-0677-
EFiled: Aug 17 2020 05:20PM EDT
Transaction ID 65854912
Case No. 2020-0677-