FENWICK ISLAND – A recommendation to enact a temporary restraining order against Fenwick Island’s low-speed vehicle ban was overruled this week.
In an order issued this week, Delaware Court of Chancery Vice Chancellor Morgan Zurn granted the town’s exceptions to a master’s report issued July 6. The report, which recommended that a temporary restraining order be issued to halt Fenwick Island’s enforcement of a low-speed vehicle (LSV) ban as a lawsuit makes its way through the court system, was ultimately overruled.
“The Town of Fenwick is very pleased with Vice Chancellor Zurn’s ruling,” a statement from the town reads.
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.”
Several residents, however, have since voiced their objections to the low-speed vehicle ban, arguing they posed no safety issues. And in June, Fenwick Island resident Kim Espinosa filed suit against the town seeking injunctive and declaratory relief, arguing the ordinance had restricted her family from using their Moke low-speed, electric vehicle on town streets.
In a master’s report issued in July, Chancery Master Patricia Griffin issued a recommendation to grant Espinosa’s motion for a temporary restraining order and a motion to expedite. The report argued the town’s ordinance conflicted with state law, which allows for the operation of low-speed vehicles throughout Delaware on streets with speed limits of not more than 35 mph.
“This Court has remarked that ‘the deprivation of right—whether conferred by constitution or statute’ is sufficient to create actionable irreparable harm,” the report 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.”
Soon after that report was issued, however, the town filed a Notice of Exception to the master’s opinion, and the matter was reassigned to Zurn for consideration. In an order issued this week, Zurn opined state law did not establish the right to operate low-speed vehicles but rather the regulations for operating low-speed vehicles.
“Where a state statute does not establish a right, and in the absence of intent to the contrary, the statute sets a regulatory floor and not a ceiling,” the order reads. “’In Delaware, the State and its political subdivisions are permitted to enact similar provisions and regulations, so long as the two regulations do not conflict.’ Here, the Statute and the Ordinance do not conflict.”
The order continues, “It is not impossible to comply with both the Statute and the Ordinance. The Statute does not regulate the field of LSV operation on streets within incorporated cities and towns, other than to establish a necessary condition that any LSV operation ‘shall only be … on roads where the posted speed limit is not more than 35 miles per hour.’ The Town enacted the Ordinance to regulate an unregulated gap left by the Statute.”
Zurn ultimately opined Espinosa had no plausible legal claim to her motions.
“In the absence of a colorable claim of preemption, Espinosa has not carried her burden on the Motions,” the order reads. “Consequently, I need not address the elements of irreparable injury or the balance of the hardships. Espinosa’s Motions are Denied, and the Town’s Exceptions are Granted. This matter shall proceed before the Master in Chancery.”
Espinosa did not return requests for comment this week.
