New Castle County Residents File Suit To Overturn Rezoning Of Barley Mill Plaza

The “Save Our County” news release on their Delaware Chancery Court - Barley Mill Plaza Lawsuit: We are asking the Court to overturn this rezoning and send it back to Council for an informed debate and vote. This would provide the opportunity for a full and frank discussion of the true traffic impact on our community and whether this proposal would need to be downsized. The timing and scope of needed road improvements, and who pays for these upgrades, would also be identified -- all based on thorough, in depth traffic analysis. Council would then be in a position to make an informed decision as to whether this rezoning should occur at all or on what terms.

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New Castle County Residents File Suit To Overturn Rezoning of Barley Mill Plaza

Wilmington, Delaware-- The civic association “Save Our County” and four individual plaintiffs filed suit in the Delaware Court of Chancery seeking to overturn New Castle County Council’s approval of Commercial Regional rezoning at Barley Mill Plaza. Among other things, the suit contends that the County should not have granted the zoning change from Office Regional requested by the Stoltz real estate organization ("Stoltz") without following the mandate of Delaware law to first consider existing and projected traffic impact.

On October 25, the County Council approved, by a bare 7-6 majority, developer Stoltz’s proposal calling for a more intensive, commercial use at the site it purchased from DuPont in 2007. The Council’s decision capped several years of local and regional opposition to various plans for the site by Stoltz, which represented the owners and wealthy investors in the parcels.

Stoltz proposes to build a large regional mall with high traffic pad sites along Route 141 at the site. The suit alleges that Commercial Regional zoning, the most intensive commercial zoning status available and intended to attract retail activity from throughout the region, was inappropriately granted to a site primarily surrounded by residential and low impact use uses, and where significant traffic congestion and other problems already exist. Plaintiffs claim that state law required Council to consider effects of existing traffic, projected traffic growth in the area, and projected traffic generated by the proposed Barley Mill development as a regional shopping area. Neither the Council nor the County Department of Land Use, which recommended approval of Stolz’s proposal, had done so.

David Culver, general manager of the Land Use Department and who reports directly to County Executive Paul Clark, is also named as a defendant in the case, as well as New Castle County, the Department of Land Use, County Council, and Barley Mill LLC, applicant for the rezoning and property owner of record. The individual plaintiffs of record are local residents whose homes are located at various points near the Barley Mill Plaza site.

Attorney Joseph Kelly, a leading member of “Save Our County,” said, “Residents throughout New Castle County are quite frankly shocked that aproject of this magnitude and precedence was approved without regard to expert traffic data, despite clear state law requirements. The lawsuit seeks simply to ensure that our decision makers follow the law and review all relevant and appropriate data in order to make informed decisions on behalf of county residents. I am convinced that once a full traffic analysis is presented, it will show that this project or any alternative project must be significantly downsized or scrapped altogether.”

Plaintiff Thomas S. Neuberger, an individual plaintiff in this case, stated, “It was irrational and arbitrary to rezone property bigger than 5 football fields, found along two major highways and in our home neighborhoods, without first requiring a completed traffic study, as state law requires. But instead the County narrowly gave in to the big bucks pressure and threats of the Stoltz machine which never saw a quiet residential neighborhood it did not want to destroy. Fortunately, the Delaware courts will not be bullied or outsmarted by Stoltz, as were the politicians. The other plaintiffs and I will never give up and will fight Stoltz to the end on this new battlefield where the law and not politics will decide this David and Goliath battle.

Mail contributions toward this legal action to: Save Our County, PO Box 4164, Wilmington, DE 19807-0164. soc@hushmail.com - The future of our County is in our hands.

And here's more from (News Journal) Adam Taylor today ~ Group files suit seeking to overturn Barley Mill development vote
...County Attorney Gregg Wilson said Tuesday he hadn’t seen the suit, so it was difficult for him to comment in detail. But Wilson said the intersection has been sufficiently studied by DelDOT for years. In addition to the county government, the suit names County Council, the county Land Use Department, Land Use Department General Manager David Culver and Barley Mill LLC, the owner and developer of the site, as defendants. The suit identifies Keith Stoltz of Stoltz Real Estate Partners as member of Barley Mill LLC.

.... The suit also alleges other “procedural irregularities,” such as adding on 10 deed restrictions late in the process that the suit says “turned the tide” of the Oct. 25 council vote. The legal action is also critical of the Land Use Department’s recommendation that council approve the rezoning. The suit claims that the report, and by extension the council’s vote, could have been influenced by the fact that Pam Scott, County Executive Paul Clark’s wife, was Stoltz’s attorney for three years, until March. Scott resigned from the Saul Ewing firm after the county Ethics Commission said either Scott or Clark would have to step down from their positions to prevent a conflict of interest on Clark’s part. Because Scott was Stoltz’s attorney for so long, the suit claims that the “orientation and mindset” of the Land Use Department officials who authored the report was skewed because of Scott’s former role as Stoltz’s attorney. “The departmental review should be conducted and then reported with total impartiality,” the suit says.

Delaware Land Use And The Law - A Never-Ending Saga?

(News Journal - Delaware Voice) Vic Singer writes ~ County violating own law by approving Barley Mills rezoning (with Del Code and County Code section references)

Perhaps FIASCO is too strong a term for the Barley Mill Plaza rezoning. Maybe
not. Judge for yourselves.

New Castle County Council's rezoning of 36.8 acres of the 92.1 acre Barley MillPlaza parcel from Office Regional to Commercial Regional violates portions of the Unified Development Code and State law. Council accepted the Land Use Department's favorable recommendation, not the Planning Board's unfavorable one. All Delaware public officeholders are by oath bound to uphold the law. Therefore they must read and understand it. Ignorance doesn't excuse malfeasance. They needn't be attorneys; the words were given force by lay legislators.

The UDC constrains land use intensifications initiated after its effective date(12/31/1997) according to the capacity of infrastructure already in place,under construction, or under contract for construction. For land uses thatbecame nonconforming when the UDC became law, a "Nonconforming Situations"Article allows lawful continuation of prior lawful uses without full compliance with the UDC's adequate infrastructure provisions. But redevelopment with a use (zoning) change thereafter had to comply fully with the UDC use provisions (ref: Section 40.08.110).

That was in the UDC at its beginning, and hasn't been amended. Years later, however, Council added subsections (Subsections 40.08.130.B.6.a thru h) establishing for "all major redevelopment plans . . and any plan that is also requesting a rezoning" (Section 40.08.130.B.6.d) that "a traffic impact study (TIS) shall only be required if requested by DelDOT" (Section 40.08.130.B.6.e.7). The first section of the "Transportation Impact" Article of the UDC (Division 40.11.000) states: "No major land development or any rezoning shall be permitted if the proposed development exceeds the level of service set forth in this Article unless the traffic mitigation or the waiver provisions of this Article can be satisfied."The Article requires that "the transportation capacity for a proposed development shall be based upon the available capacity as determined by a traffic impact study" (Section 40.11.110).

No redevelopment exemption is among waiver provisions (Section 40.11.121), but staging to coincide with transportation system improvements and developer contributions to improvement costs are addressed. Our nation is ruled by law, starting with the Constitutions of the US and each State. Each State makes rules governing its Counties and Municipalities. New Castle County Council and the
Land Use Department occasionally forget to comply with State law. Delaware State law demands that when a new County Ordinance repeals or amends prior County law, the new Ordinance must set out in full both the prior language and the new language(Ref. 9 Del. C. 1152).

The recently added UDC subsection clearly authorizes redevelopment with a usechange, which had been forbidden earlier. At the very least, the phrase "except as provided elsewhere in this Chapter" should have been - - but wasn't - - added to the UDC's "Nonconforming Situations" and "Transportation Impact" Articles. Violation of this procedural requirement alone is sufficient to void the UDC change enabling a rezoning without a TIS.

A deeper issue also applies. State law designates that among the purposes of the County's zoning regulations is promoting the safety and convenience of the state's inhabitants by limiting congestion in the streets and roads (Ref. 9 Del. C. 2603(a)). It prohibits any zoning change that doesn't follow an agreement between the County and DelDOT ensuring that while the rezoning is being sought, traffic analyses must be performed that "consider the effects of existing traffic, projected traffic growth in areas surrounding a proposed zoning reclassification and the projected traffic generated by the proposed site development for which the zoning reclassification is sought" (ref. 9 Del. C. 2662).

That State law provision requires the County and DelDOT to share responsibility for congestion on the transportation system. HOW to share - - rather than WHETHER to share - - is left to the County andDelDOT to work out. The County cannot discharge its SHARING responsibility by legislating that it won't think about congestion while giving redevelopment rezonings a free pass. Even if the State's procedural requirements for changing the UDC had been followed to the letter, the recently added UDC changes are voided by their substance.

Plus, (News Journal) Harry Themal writes ~ New Castle County residents must scrutinize county's development plans

News Journal once again demonstrated the real and possible friction between state government and the counties.A story detailed how the State Supreme Court is trying to decide whether SussexCounty or the state Department of Natural Resources and Environmental Controlcan fix the width of buffers along the inland waterways ['Zoning' at issue in court hearing].

In an op-ed column, Victor Singer, former chairman of the New Castle County Planning Board, said the county violated its own Unified Development Code in approving the massive rezoning of DuPont's former Barley Mill Plaza -- in part because it did not get a new appraisal from the state on the transportation effect.

Readers of this column might be aware of my strong feelings that Delaware has too many layers of bureaucracy, and that, as small as our state is, we may notneed the three county governments. But I know that nothing will ever change that constitutional order, which makes it even more important that residents of the counties pay close attention to what's happening on that level. Perhaps nothing is more important to our way of life than the provisions of the New Castle County Development Plan.

....If you are an involved New Castle County resident, you will go to a county library to see all the details and accompanying maps or see them by logging on to nccde.org. Then you may want to attend the first public hearing Jan. 3 at 7 p.m. in the county's Gilliam Building, at 77 Reads Way in New Castle Corporate Commons.

With Charlie's comment and letter from Saturday: I usually agree with Harry Themal, but he is a defeatist on the belief a Constitutional change could not occur on land use. Moreover, the Coastal Zone Act did not require a Constitutional change. Correct me if I am wrong. The only impediment to County change is ourselves----resistence to such needed change must be coming from the quarters that have been accepting Federal and State money for local/parochial desires for over a half a Century---with change, the County direct avenue to such funds could then be denied -
Many parties involved in land use battle

In regards to the recent article "Fight for control of land use heads to Supreme Court," the issue before the court is major. Clearly, the state, having earlier delegated such land use control to the individual counties and incorporated jurisdictions, must now reassert its prerogative, whether through judicial mandate or new legislative change. For Sussex County, land owners, including the chicken/dairy/crop farmer, could earlier rule the day, in being a prime economic generator -- whether or no, the seasonal, vacationing resident might bellyache about nearby stench or reported pollution to recreational waters. Meanwhile, those latter visiting dissidents were, in turn, churning up the bay with their "stink pots" and ignored theirsewer overflow during storms. "The overpopulated geese were the problem." Few were thinking of the fishing economy.

Despite earlier court decisions upholding local, political subjective decisions in land use, the Coastal Zone Act has interceded within its boundaries, such law a basis for counterargument. Beyond the immediate issue, what entity pays for this residential growth and the requisite roads, schools, etc.? Not the county government. It is time to stop this land use dalliance and place such direction strongly to a professional, nonpartisan group, one well-grounded in econometrics -- purpose being long-term [planning], the environment and a prerequisite, viable economy. Let's hope DNREC has their facts straight to every detail. We're now beyond just tree-hugging.
Charles M. Weymouth, Wilmington