(cross posted at DE Way - New Castle County In The News)
There's a Comp Plan Update meeting tonight at 6:30 at the Gilliam Building in the New Castle complex. The general public might take an interest. Paul Clark thinks that those who show up to meetings don't represent the public. I know that civic leaders, conservation and environmental leaders are participating in these planning activities along with the usual suspects (found on Clark's infamous memo [Paul Clark is dumb, not unethical?] with the Saul Ewing confidentiality tag). Meanwhile, those of us attending the process are still waiting for access to a report on the current Comprehensive Plan (2007).
(WNJ Delaware Voice) Vic Singer, president of the New Castle County Planning Commission writes ~ Planning board stands by oversight power
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UNEXPURGATED TEXT OF OP ED ESSAY:
State and County law give the New Castle County Planning Board a large role in New Castle County's 2012 Comprehensive Plan Update (CPU) now ongoing. As PB Chairman, I must assure intense examination of facts and laws relevant to this and other assigned responsibilities, to prevent arbitrary or capricious decisions. At our 12/21 Meeting, I requested a summary of the Land Use Department (LUD) staff views on which features of the 2007 CPU need fixing, and which are fine as is.
The County's request for proposals (RFP) for Professional Planning Services for the 2012 CPU announces that "The County is currently in the process of reviewing and planning for the 2012 update. The review of accomplishments of the goals set forth in the 2007 update and an evaluation of recent economic trends are being analyzed." Further, the RFP defines as the first deliverable Consultant work product, an "Analysis of Current plan and data" due 9/1/2010 after two months of work. I requested a copy of that also.
We didn't get the LUD's staff work product, clearly public property. Nor did we get the Consultant's work product, which according to the RFP needn't be disclosed until the end of the consulting contract. Nor were we advised how to find them. Instead, the LUD General Manager (GM) said that nothing is in writing. Reacting, I called a 1/4/2010 Special Meeting (following our Public Hearing) where the LUD GM stonewalled again. Since the State's Quality of Life Act of 1988 requires an ANNUAL report presenting "an assessment and evaluation of the success or failure of the comprehensive plan or element or portion thereof," I demanded copies of the most recent version.
Incidentally, the Quality of Life Act defines "Local Planning Agency" as "the agency designated to prepare the comprehensive plan required by this subchapter," and requires County Council to "designate and by ordinance establish a 'local planning agency.' " Further, it assigns to the local planning agency "the GENERAL responsibility for the conduct of the comprehensive planning program." County Council's response: direction in the UDC requiring the Planning Board "to prepare or cause to be prepared the Comprehensive Development Plan, or any element or portion thereof" and requiring the LUD to "assist the Planning Board in its current and long range comprehensive planning responsibilities."
Instead of releasing documents that are public property, the LUD argued with the incidental issue. It interpreted other parts of State law as contradictions and thus invalidations of Council's authority to designate the local planning agency, and declared that "The contract was secured by the Department on behalf of the Department and is solely responsible for overseeing the contract and its provisions."
Clearly, the LUD GM regards the LUD as the "Local Planning Agency" for the CPU, and the Planning Board's role as subordinate. It's a nice theory but it's not what was given the force of law by the General Assembly and County Council. Contradictions among the relevant provisions of Delaware law can be found when they are isolated rather than considered cumulatively. The Delaware Supreme Court addressed precisely that issue in a 1984 case, declaring that:
"The golden rule of statutory interpretation . . . is that unreasonableness of the result
produced by one among alternative possible interpretations of a statute is reason for
rejecting that interpretation in favor of another which produces a reasonable result."
Cumulatively, the relevant provisions clearly express the General Assembly's intent for the bulk of the work of preparing and updating the Comprehensive Plan to be performed by the Land Use Department and for a separate entity to have GENERAL oversight responsibility. That shows insight into human nature. Working on complicated matters, we're often so close to the trees that we don't see the forest. The General Assembly sought to avoid that by assigning oversight responsibility to folks far away enough to see forest and trees together.
In summary, the LUD GM is concealing public information not exempted from public disclosure by Delaware's Freedom of Information Act. Concealing it from the public prompts suspicions of undetectable schemes too nefarious for sniff testing. The LUD GM is under notice that the in-house review must be exposed. Yet he stonewalls. A formal FOIA demand is now timely.
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TEXT OF BOTH Feb 2, 2011 FOIA REQUESTS:
FIRST FOIA REQUEST: By this Information Request, I ask for an opportunity during usual business hours to examine in the Land Use Department facilities the following documents:
<> The review and evaluation described in the two sentences in the indented quotation below,which appear in two places: !) The General Information section in the 4/13/2010 solicitation for proposals for "PROFESSIONAL PLANNING SERVICES BID #10PP-012"; and 2):NC County's contract with JMT, the CPU Consultant engaged pursuant to BID #10PP-012, in the first two sentences of Section I.A.1.of Exhibit "A" therein.
"The County is currently in the process of reviewing and planning for the
2012 update. The review of accomplishments of the goals set forth in the
2007 update and an evaluation of recent economic trends are being analyzed."
<> The ANNUAL REPORT for the years 2008, 2009, and 2010 required by 9 Del. C 2658(c) and (d) of the Quality of Life Act of 1988 to be submitted to the Governor's Advisory Council on Planning Coordination, which "shall present an assessment and evaluation of the success or failure of the comprehensive plan or element or portion thereof . . .".
SECOND INFORMATION REQUEST:
By this Information Request, I ask for an opportunity during usual business hours to examine in the Land Use Department facilities the CPU Consultant's response to the DELIVERABLES SECTION of the 4/13/2010 solicitation for proposals for "PROFESSIONAL PLANNING SERVICES BID #10PP-012" which cites as the first "deliverable" the Consultant's "ANALYSIS OF CURRENT PLAN AND DATA" covering the period between 7/1/2010 and 9/1/2010.
That response is further described in the resulting contract, with Johnston, Mirmiran & Thompson, JMT, dated 6/30/2010, wherein Section 1 binds JMT to perform all services necessary and appropriate to complete the tasks defined and set out in JMT's 6/17/2010 proposal responding to the #10PP-012 solicitation and incorporates the proposal into the contract as Exhibit A. Within Exhibit A, Section I.A.1 repeats the following two key "Project Background" sentences from the County's solicitation, therein termed "Background," with an added third sentence, the underlined portion of which describes what I seek to examine:
"The County is currently in the process of reviewing and planning for the 2012 update. The review of accomplishments of the goals set forth in the 2007 update and an evaluation of recent economic trends are being analyzed. JMT's Comprehensive Plan Team will conduct a review of the current plan, analyze data, conduct public workshops and other means to actively engage input on (sic) from the community on various elements of the Plan, assist in drafting Plan goals, and objectives and draft the 2012 Plan. . ."
At this point, the requests are from me as an individual rather than me as Planning Board Chairman, for several obvious reasons.
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