FENWICK ISLAND – A lawsuit challenging Fenwick Island’s low-speed vehicle ban has been dismissed.
Last Wednesday, Fenwick Island property owner Kim Espinosa submitted a Notice of Voluntary Dismissal in her case against the Town of Fenwick Island. The action came roughly a week after a Delaware Court of Chancery vice chancellor overruled a recommended temporary restraining order against the town’s low-speed vehicle ban.
“The town was very pleased with the Vice Chancellor’s definitive ruling establishing that the ordinance was not preempted by State law,” a statement from Mayor Natalie Magdeburger reads. “We are also grateful that Ms. Espinosa voluntarily dismissed her suit before the Town incurred additional expenses. Since we do not have sidewalks in our community, this ordinance will help keep Bunting Avenue a safer roadway for our pedestrians and bicyclists who use it as their unofficial Boardwalk.”
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, particularly along the heavily traveled 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,” Magdeburger said at the time. “And I think it would be contradictory to our 2017 comprehensive plan.”
Several residents, however, have since voiced their objections to the low-speed vehicle ban, arguing they posed no safety issues. And in June, 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 report issued in July, Delaware Court of 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 not exceeding 35 mph.
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 Vice Chancellor Morgan Zurn for consideration. In an order issued late last month, 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 submitted a notice to dismiss the case a week later. She did not return requests for comment this week.