New Castle County Council voted in favor of an appeal filed by CCS Farms Tuesday, overturning the Dec. 18 decision denying the developer a variance for the Walker Farm Subdivision in Hockessin.
The appeal was filed Dec. 18, calling the decision made by the Planning Board "unjust."
"Just because someone doesn't get what they want, doesn't mean it's unjust," said attorney Monica Horton. "The board has granted some variances in similar situations, and some board members have had issues with setting precedent."
County code allows for 16 units to line a cul-de-sac, but CCS Farms wants to have 46.
Council acted as a quasi-judicial body during its biweekly Land Use committee meeting Feb. 5, overturning the County Planning Board's decision to deny the variance for the Walker Farm Subdivision.
The surrounding community has about a dozen other developments with similar cul-de-sacs, Councilwoman Janet Kilpatrick (R- Hockessin) pointed out on a map.
Despite winning the appeal though, the rezoning for Walker Farm will still have to be approved by council.
The variance was originally denied by the Land Use Department and Planning Board because they did believe that the developer would suffer a hardship without it.
Without the variance, the cul-de-sac sought by the developers would have been a through road, running through the community Chester Oaks, said Shawn Tucker, an attorney representing CCS Farms.
The cul-de-sac is planned to have 46 homes line it. The original plan called for 56 homes and the demolition of a historic house – which the community opposed.
Neither the Delaware Department of Transportation nor the Fire Marshall's Office oppose the variance, Horton said.
Councilmen Bob Weiner (R- Brandywine Hundred) and Jea Street (D- Wilmington) were the only two members of council to vote against the appeal.
Street said that he couldn't vote in favor of the variance because it doesn't abide by the law.
"The departments made the determinations and follow the law," he said. "Now we're saying the law doesn't matter."