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