By Brian Gilliland

GEORGETOWN — In August 2023, County Council voted 3-2 to deny a conditional use application for a solar farm south of Frankford but reversed course Tuesday because of conditions set forth in litigation.

“There was litigation involving this matter,” J. Everett Moore, one of the county’s attorneys, explained to the council members. “There was Chancery suit litigation, and on March 20, 2024, there was a stipulated order of judgment.”

Mr. Moore went on to explain that the matter was returned to the county, which could not defer its decision or hold new public hearings; it was required to vote based “solely upon the existing record in this matter,” he said.

Based on that record and the recommendations of the Planning & Zoning Commission at the time, council unanimously voted to approve the land use, with Councilman Douglas Hudson absent.

Members Cynthia Green and Mark Schaeffer reversed their previous votes.

According to an audio recording of the Aug. 29 meeting where the matter was first considered, Councilman Hudson said the parcel where the solar farm was to be built was “very important to ag” and that “agriculture is No. 1” in Sussex County.

In addition, Councilman Schaeffer said he felt that the use wasn’t appropriate for the location, and Councilwoman Green voted no based on testimony heard earlier, she said.

The president and vice president of council, Michael Vincent and John Rieley, respectively, voted to approve.

Delaware’s Chancery Court rules on corporate and business matters where the principle of equity, rather than law, is paramount and is considered a hub of corporate governance, due to the large number of Fortune 500 companies incorporated in the state.

The parcel in question — bordered by U.S. 113 on the west and the railroad to the east — is about 43 acres, and the application was made by the Frankford Community Energy Initiative. According to the initial site plan, the lot would use a little more than 17.5 acres for the solar array and is expected to generate 4 megawatts.