FENWICK ISLAND – A Delaware Court of Chancery official has issued a temporary restraining order prohibiting the Town of Fenwick Island form enforcing a new ordinance banning low-speed vehicles.
Following a motions hearing Wednesday, Patricia Griffin, master in chancery for the Delaware Court of Chancery, issued a temporary restraining order, effectively stopping the town from enforcing a low-speed vehicle ban that took effect earlier this year.
The ruling comes less than a month after Fenwick Island resident Kim Espinosa – a candidate in this year’s municipal election – filed suit against the town seeking injunctive and declaratory relief from an ordinance prohibiting the use of low-speed vehicles. Espinosa said the ordinance has restricted her family from using their Moke low-speed, electric vehicle on town streets.
“We appreciate the Court’s time and diligence,” Espinosa said in a statement this week. “We are pleased with the ruling.”
In March, the Fenwick Island Town Council voted to approve an ordinance banning the operation of low-speed vehicles on town streets, with the exception of construction equipment, lawnmowers, emergency and town vehicles and assistive mobility devices. Town officials argued the vehicles posed safety risks.
“Sadly, I feel Fenwick is not build for an increase in LSVs and golf cart traffic,” Councilman Bill Rymer said at the time. “We are a small community, but we have a major highway running right down the middle of it … I think it’s going to get worse if we don’t deal with it now.”
Council members in March also argued the low-speed vehicle ban aligned with the town’s comprehensive plan, as well as efforts to protect pedestrians along Bunting Avenue.
“I would have a difficult time living with myself if I put more vehicles – albeit smaller ones, albeit electrical ones, albeit green ones – onto a roadway I know the people of Fenwick have basically declared to be their Boardwalk,” said Councilwoman Natalie Magdeburger, chair of the town’s charter and ordinance committee. “And I think it would be contradictory to our 2017 comprehensive plan.”
Several residents, however, have voiced their objections to the low-speed vehicle ban, arguing they posed no safety issues.
“I hear all the safety issues, but nowhere has anybody provided any documented evidence, submitted anything, to show these are actually safety hazards,” resident Mark Tingle said at the time.
In her complaint to the Delaware Court of Chancery, Espinosa also highlighted state statute allowing the use of low-speed vehicles.
“The General Assembly enacted the Statute in 2007 and allows for the operation of low-speed vehicles throughout Delaware on streets with speed limits of not more than thirty-five miles per hour,” the complaint reads.
In the order issued this week, the Chancery Court official opined the municipal ordinance conflicted with state law.
“This Court has remarked that ‘the deprivation of right—whether conferred by constitution or statute’ is sufficient to create actionable irreparable harm,” the order reads. “Because I conclude that the Ordinance colorably conflicts with the Statute, I conclude that there is some quantum of ongoing irreparable harm sufficient to support a temporary restraining order.”
The order also disputes the town’s claims that Espinosa delayed in bringing legal action against the town regarding low-speed vehicles. While the ban was enacted in March, Espinosa filed suit on June 21.
“Here, the record indicates that the parties engaged in months-long good faith negotiations before resorting to judicial intervention,” the order reads. “Because the delay resulted from good faith efforts to reach a non-judicial resolution and no prejudice has been shown by the Town because of the delay, I conclude that the delay does not bar the issuance of a temporary restraining order.”
In the case against the town, Espinosa argued the low-speed vehicle ban caused some degree of hardship, as she would not be able to use her Moke for her travel needs. The town, however, argued that safety concerns for pedestrians, cyclists and other drivers, particularly in the summer season, outweighed Espinosa’s claims of hardship.
The official opined a temporary restraining order would not stop the town from enforcing any other safety and traffic regulations.
“Should Espinosa, for example, drive recklessly or violate some other traffic regulation with her Moke, the Town would be free to enforce those safety statutes or ordinances against her or anyone operating a Moke regardless of this temporary restraining order,” the order reads. “Thus, I conclude that the balancing of the hardships favors Espinosa because the Town is otherwise free to enforce safety regulations.”
To that end, the court this week granted Espinosa’s motion to expedite the legal proceedings, as well as a motion for a temporary restraining order against the town’s low-speed vehicle ordinance.
“The parties shall coordinate on a scheduling order and shall advise the Court on whether they will seek a hearing on a preliminary injunction or move forward to a final resolution of this matter,” the order reads.
The order adds that it is a final master’s report, and that exceptions could be taken. In a statement issued Friday, the town reported litigation is ongoing, and that some of the statements made against the town in the case were misleading.
“Ms. Espinosa asked the court to grant a temporary restraining order (“TRO”) to stay the enforcement of the ordinance that had been unanimously passed by Fenwick’s Town Council banning the operation of low speed vehicles (“LSV”) on town streets, before hearing the merits of her claims,” a statement reads. “A TRO is temporary by nature and simply maintains the status quo while a full record, discovery and legal briefing can occur before a final decision is made on the merits.”
The statement continues, “If the TRO is granted, this would not overturn the ordinance, but would mean that for a temporary period of time (typically 10 days) the Town would not stop LSVs operating in accordance with other applicable laws on town roads. The hearing that was held yesterday was on the sole issue of whether a TRO should be entered while the substantive legal matters raised by Mrs. Espinosa’s Complaint are fully litigated.
“After hearing argument on this limited issue, Master Patricia W. Griffin filed a final master’s report recommending that the court enter a TRO. Master Griffin’s final master’s report is not a final decision on the merits, and will be reviewed de novo, meaning that all of the parties’ submission will be reviewed anew without assuming Master Griffin’s legal conclusions, by a Chancellor of the Court before the Court determines whether or not to issue the TRO. Before the Court’s review, the Town is entitled to take exceptions to the final master’s report, and it intends to do so. Any final decision on the merits of the action filed by Ms. Espinosa will not occur until after discovery and legal briefing is completed and, as yet, a schedule for those events has not been determined.”
