Proof On Video: Tom Gordon Acknowledged The Bad Law Underlying the Stoltz Rezoning Back In August?

Reposted from DE Way blog

Proof On Video That Tom Gordon Acknowledged The Bad Law Underlying the Stoltz Rezoning Back In August?

Gordon's reversal of NCC's position on the Stoltz Barley Mill Plaza rezoning is not just a political ruse. Back in August, at a CLNCC candidate's forum, Gordon, Bullock and Shahan all answered yes to Vic Singer's questions about their oath and the legality of Council's vote and the UDC Redevelopment Ordinance that eliminated the requirement for a traffic study under state statute. Does it tell you something that Clark, Taschner and Husband all answered no to the latter?

Since leaving the NCC Planning Board, Vic Singer's been circulating legal analysis showing that NCC Executive Coons, DLU and Council violated the Delaware. Code when writing and enacting the 06-007 Redevelopment Ordinance revision and accompanying 2008 Memorandum of Agreement with DelDOT. These acts circumvented their duties under the law in county and state code that mandates when traffic studies shall be warranted (citations are contained within the 12/1/2011 letter below).

Vic's position is that NCC's acts were essentially a veto of acts of the General Assembly and were therefore impermissible. As for the ever-helpful county Law Department, remember, lawyers are bound by a different code - their cannons under the American Bar Association instruct attorneys to first protect the acts of their clients, right or wrong.

Gordon's reversal was not about the inadvisability of the Barley Mill project based on political promises but on the understanding of points of law that the vote on the BMP LLC rezoning was not procedurally sound since it was based on a Redevelopment Ordinance and MOA which violated state statute:

"the full text of 9 Del. C. 2662 imposes on both DelDOT and County Council the burden of establishing LOS standards, on DelDOT the burden of ANALYSIS, and County Council the burden of considering the results in dealing with each rezoning application.  Thus dealing with highway capacity - the title of 9 Del. C. 2662 - - is a SHARED burden.

Vic has urged each member of County Council to consider entering a "No Contest" plea immediately.  

Click on the video of the August 21st, 2012 Civic League for New Castle County's DEM Primary forum http://www.youtube.com/watch?v=_mm7xNWHBJ4

Vic introduces his questions @5 minutes and distributes printed copies

@14 min. Shahan says yes to the three questions

@ 17 min. Taschner says yes to the 1st and no to the 2nd and 3rd. Bullock says yes to all three.

@17 Clark makes a long preamble, says no to the 2nd without answering 1st and 2nd.

@18 Gordon says yes to all three.

@19 Shahan makes further comment

@20 Husband says yes to the 1st and no to the 2nd and 3rd.

Here are Vic's three questions ~ 

THE BARLEY MILL PLAZA CONTINUING SAGA

Subj:  For your information   
Date:  1/25/2013 9:26:38 PM Eastern Standard Time 
From:    VSinger01@aol.com
To:    jmreda@nccde.org, rsweiner@nccde.org, jkilpatrick@nccde.org,
phollins@nccde.org, ediller@nccde.org, wepowersjr@nccde.org, gsmiley@nccde.org, jjcartier@nccde.org, tpsheldon@nccde.org, cljackson@nccde.org, dltackett@nccde.org, jwbell@nccde.org
CC:    VSinger01@aol.com

Members of County Council:

The following e-mail, sent to Council President Bullock at 1:52 pm this
afternoon, urges a no contest plea by County Council in the about-to-start
lawsuit following up your rezoning for the proposed Barley Mill Plaza.  You
should all be aware that 9 Del. C. 2662 requires that Council consider traffic
impact before EVERY rezoning, and that the UDC defines how traffic impact
must be studied.  And you should all be aware that no such study was done.

A no contest plea would acknowledge the truth, and would start on the path
to correction of a grievous error.  AT LONG LAST ! ! 

Sincerely,  Victor Singer

    ~~~~~~~~~~~~~~~~~~~~~~~~~~~
Subj:  about-to-start lawsuit, Barley Mill Plaza re-zoning
Date:  1/25/2013 1:52:19 PM Eastern Standard Time 
From:    VSinger01@aol.com
To:    cabullock@nccde.org 

Dear President Bullock

Perhaps you might remember the 8/21/2012 meeting of Civic League for New
Castle County, where you appeared with Renee Taschner and the four hopefuls
for the Democrat candidacy for County Executive.

And perhaps you might remember that I asked three questions - - orally - -
after a one sentence preface, and after passing hard copies to all six that
included the full text of 9 Del. C. 2662  from the "Quality of Life Act"
(adopted by the General Assembly in 1988).  The preface and questions were:

PREFACE:  According to the Oath of Office required by the Delaware
Constitution, elective and appointive officeholders swear ALWAYS to uphold the
Constitutions of the US and the State.
. . . . .
QUESTION ONE: Do you regard that oath as requiring you to uphold laws duly
enacted at both State and Local levels under authority granted by the State
Constitution?
. . . . .
QUESTION TWO: Do you regard the recent changes to the Redevelopment
provisions of the UDC that allowed the County to rezone WITHOUT a traffic
impact study - - NC County Code, §40.08.130.B.6.a thru h - - to constitute refusal to SHARE the burden imposed by 9 Del. C. § 2662, and therefore violations of the Oaths by the relevant legislators and Executive?
. . . . . 
QUESTION THREE: Do you regard those Council members and the County
Executive who approved a rezoning in violation of 9 Del. C. § 2662 as
having violated their Oaths of Office?
. . . . .
Tom Gordon, Bill Shahan and you answered "YES" to all three.  Jon Husband
and Renee Taschner answered "YES" to the first and "NO" to the 2nd and 3rd.

Paul Clark answered "NO" to the second and responded to the others with
remarks that I (Vic Singer) am a rocket scientist but not a lawyer. 

I'm certain that you have been following media coverage of the SOC lawsuit
about the Barley Mill Plaza rezoning lawsuit that is about to start.
Yesterday's News Journal seems to report that four members of Council are
figuratively wringing their hands about the anticipated expenditure for Council's
defense.  Today's News Journal included my brief letter-to-the-editor quoting
the essence of 9 Del. C. 2662, and pointing out that the rezoning was
forbidden by State law. 

Council's adoption, some years ago, of the "Redevelopment Ordinance" added
to Article 8 of the UDC the following sentence:  "A traffic impact study
shall only be required if requested by DelDOT."  Obviously, that sentence
cannot relieve Council of the obligation establishd by 9 Del. C. 2662, by act of
the General Assembly and the Governor's signature.  Council cannot veto
State law. 

But that sentence validly directs the Land Use Department to base its
recommendation on everything else EXCEPT traffic impact.  The Planning Board, on
the other hand, is required by 9 Del. C. 1304(2) to give recommendations to
County Council on zoning map amendments (and other things) whenever it - -
the Planning Board - - deems it appropriate. That obligation under State law
over-rides the above-quoted sentence.

Since Council's rezoning is not defensible, Council faces two alternatives:

<> Enter a "No Contest" plea immediately, acknowledge the prior error and
beg the public's forgiveness on a "Nobody's Perfect" premise.  That will save
the public a lot of money.

<> Continue the legal battle, at large public cost, and wait to be
disgraced for violating the Oath of Office.  That will WASTE a lot of public money.

Your answers last August told the public where you stood.  We have seen
nothing from you reversing your stated position.  Now, as President of County
Council, you have an opportunity to lead the effort for Council to do the
LAWFUL thing, FINALLY. 

Your comments are invited, of course.

Vic Singer   

And here is Vic's letter published 1/24/13 ~ Court, Council should follow law in Barley Mill case

News Journal coverage of the ongoing Barley Mill Plaza saga has focused intensely on cosmetics and ignored the key issue. State law says: "The County Council shall not approve any proposed change in the zoning classification for land (i.e., any 'rezoning request') without first - - consider[ing] 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." (9 Del. C. 2662) The County's UDC prescribes how to consider those effects. (NC County Code Section 40 Article 11) Council approved the rezoning without the required studies, which don't yet exist.

. . . . . .

County Council, the County Executive and the Chancery Court judge are bound by their Oaths of Office (Article 16, Delaware Constitution) to uphold duly enacted laws of the Nation and the State. When the not-yet-started trial will reach the key issue is a matter of legal procedure and strategy. The public should be reminded of the heart of the complaint.

And Vic's letter published in the News Journal on 12/01/11, complete with citations ~

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 Mill Plaza 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 that became 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 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 use change, 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 and DelDOT 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.

Hopefully, this evidence will serve to disabuse comment that Gordon's stance on the Chancery court case is a mere political machination. It is respect for the law.

County Executive Gordon And COS Dave Grimaldi Set For CLNCC January Meeting, 7PM In New Castle

CIVIC LEAGUE FOR NEW CASTLE COUNTY

Monthly meeting, January 15th at 7PM - all are welcome!

Chuck Mulholland, President

Location:
Paul J. Sweeney Public Safety Building
3601 N. DuPont Hwy
(Route 13)
New Castle, DE

Get Map

AGENDA

 

Guest Speakers
County Executive: Thomas P. Gordon
Chief Administrative Officer: David Grimaldi 

Come out and speak with the new Executive and his Chief of Staff and campaign manager Dave Grimaldi. Find out what is on the table for New Castle County in 2013!

Big news in just today -

Barley Mill Plaza - County Executive Gordon Supports Relief Sought by Save Our County 

Given the magnitude of the proposed Barley Mill Plaza project, the County Executive agrees with the injunctive remedy sought by “Save Our County.” Consistent with his campaign promises, County Executive Gordon firmly believes that a traffic study should have been conducted and provided to County Council prior to the vote to rezone.
Developing over 36 acres of commercial space on Route 141 could have significant consequences to the quality of life of the nearby citizens along with major economic implications for the City of Wilmington.  

Update: Adam Taylor has the story ~ 

The owner of the property, Stoltz Real Estate Part­ners, also is named in the suit. Stoltz attorney John Tracey declined comment.

The suit was filed a year ago, when Paul Clark was county executive. Gordon took office Nov. 13.

Councilwoman Janet Kilpatrick said she was stunned by Gordon’s comments. “I’m shocked,” she said. “This is a lawsuit against the county. Why are we making statements at all?” County Council also is named in the suit. The coun­cil voted 7-6 to rezone 37 of the property’s 92 acres from office to commercial use.  

DelDOT Traffic Study Regulation Changes Face Public Scrutiny

Traffic congestion and concurrency law is the last stand against By-Right land use system forcing development into areas where it doesn't fit. DelDOT is taking a stand that traffic impact analysis is purely political and should not exist (SEE Adam Taylor story below)


Amendment to Standards and Regulations for Subdivision Streets and State Highway Access (Based upon comments received) Comments and Responses - 11/15/12 

RE: DelDOT's Changes to Traffic Study Regulations - 
Submission by New Castle County Civic Umbrella Associations

December 31, 2012

Delaware Department of Transportation

PO Box 778

Dover, DE 19903

Re: Public Comment – Dec 14 Draft Amendment to Traffic Study Regulations

This past October, individual citizens, major civic organizations, and area legislators expressed their concerns about DelDOT’s proposed Amendment to the Standards and Regulations for Subdivision Streets and State Highway Access.  On December 14, DelDOT issued a 2^nd draft of the proposed Traffic Study Regulations, and we were surprised and disappointed to read the new proposal.  After a lengthy public comment period, ostensibly designed to seek/incorporate upgrades to a 1^st draft offering inadequate protection to local communities, we see that DelDOT has both rejected important suggestions to protect the public interest while adding new language to further weaken current/proposed regulations. Our comments on this latest draft are detailed below.

Important Suggestions Rejected

1. Legal Authority. DelDOT failed to address the longstanding issue of “hot potato”, where DelDOT and the County each point to the other on responsibility for transportation infrastructure. Our reading of the law is that the State’s roads are fundamentally the responsibility of DelDOT. The below text, added by DelDOT in the latest draft, perhaps best illustrates the gulf between the public’s expectations and DelDOT’s perspective.  In the preamble discussing the purpose of Traffic Impact Studies, DelDOT has added these words “DIRECT REQUIREMENTS BY DELDOT TYPICALLY ARE LIMITED TO THE LOCATION AND DESIGN OF THE DEVELOPMENT ACCESS” (Sec 2.1).

2. Infrastructure Funding. DelDOT made no changes to the flawed infrastructure funding program whereby developers pay an assessment to DelDOT and are then free to proceed with development. This sets up a situation where developers can pay pennies on the dollar for improvements, the improvements never get made, and the public is left with a traffic nightmare that the taxpayer ends up eventually funding out of our own pockets.  There needs to be DIRECT LINKAGE – needed improvements are identified up front, and developers make (and pay for) the required upgrades CONCURRENT with the build-out of their project.  If this occurs within a TID, DelDOT can apportion the work across the responsible parties, but the developers fund and implement the work as a condition of occupancy.  This is the only way to protect the public.

3. Regional Impact. DelDOT failed to address developments with regional impact to the transportation system. The proposed "3rd road out limitation" specifically prevents this type of analysis and needs to be changed (Sec 2.5.2.2).  Some states such as Florida have a square footage threshold for major land developments that have regional impact.

4. Public Engagement/TIDs.  DelDOT’s responses to specific questions posed by the public continue to indicate their concerns regarding public involvement.  This is particularly significant given DelDOT’s push to broadly implement Transportation Improvement Districts with their long time horizons, complexity and limited role for the public.  As one citizen noted, TIDs may have the effect of further reducing public engagement in an environment where it’s already judged to be insufficient. 

New Language to Further Weaken Current/Proposed Regulations

We believe that traffic study regulations are needed that balance the interests of all stakeholders, supporting needed growth while preserving the character of our communities.  We strongly object to the following new language incorporated in the latest draft.  

1. Non-Residential Rezonings. The latest draft adds a clause that non-residential rezonings without a specific associated development plan should be CONSIDERED WITHOUT A TIS at all, and that the need for a TIS be evaluated when the development proposal is defined (Sec 2.3.1).  This is unacceptable to the community.

2. Existing Conditions. The latest draft REMOVED LANGUAGE that DelDOT will recommend a TIS if development is proposed for a non-rural area where existing conditions are currently below LOS D (Sec 2.3.1).  Again, this is unacceptable.

3. Calculation Methods. The latest draft curiously modified several calculation methods which appear to FURTHER WEAKEN CURRENT/PROPOSED REGULATIONS, and are unacceptable.

-Default Contribution Formula.  For situations in which a TID exists and no formula for developer contributions has been defined, the default formula for contributions is now proposed to be based on % of total traffic vs % of increased traffic, A MAJOR CHANGE (Sec 2.3.4).  To illustrate, lets examine a roadway with, say, 6,000 vehicles of peak hour traffic.  A development is proposed that adds 3,000 vehicles of peak hour traffic.  With no other nearby new developments underway, logic would require that 100% of needed road upgrades be funded by the developer creating the impact (using the % of increased traffic method).  DelDOT, however, is now proposing to use a % of total traffic method.  Under this calculation, the developer would only be required to fund 33% (3,000/9,000) of needed road upgrades, with the REMAINING 67% SUBSIDIZED BY THE TAXPAYER.

-Queuing Analysis Standard.  A Queuing Analysis is utilized to determine whether existing and proposed left hand turn lanes near developments are adequate. Current regulations specify that 98% of expected queues be accommodated at signalized intersections. DelDOT’s latest draft proposes toRELAX THIS TO 95% with the reasoning that it’s “consistent with our current practice”. In our view, the fact that DelDOT may not have followed established rules is no justification to relax existing requirements. This logic, carried forward, creates a host of unintended consequences. 

We appreciate the opportunity to comment for the record and reiterate our offer to meet with you to develop a balanced approach that represents the interests of both the development community and the public.

Respectfully submitted,

Save Our County, Inc

     Joseph C. Kelly, Esq.

     Walter P. McEvilly, Jr., Esq.

     Tom Dewson

Chuck Mulholland, President-Civic League for New Castle County & Southern New Castle County Alliance

Fran Swift, President-Greater Hockessin Area Development Association

Bill Dunn, President-Milltown-Limestone Civic Alliance

From the News Journal's December 20th story ~

Tom Dewson, a member of the Save Our County Coalition that is suing New Castle County for rezoning Barley Mill without sufficient traffic data, said DelDOT should have incorporated more of the public’s comments.

Dewson’s concerns include potential shortcomings of the proposed Transportation Improvement Districts and how developers will pay for road improvements. “On first read, DelDOT appears to have rejected important suggestions intended to protect the public interest while adding new language to further benefit the development community,” he said. “Citizens should be very concerned.”

Minor changes were made in response to public hearings held in each county and to written comments from the public include changing the word “may” to “shall” in one section and “must” to “may” in other. Those modifications were designed to address concerns by builders and residents alike that DelDOT was overreaching in the proposed reforms.

........New Castle County has a redevelopment program that is controversial because it allows developers to skip traffic-impact studies in exchange for building in already developed areas, rather than on farmland. That would be curtailed somewhat by the proposed changes, but not entirely, because not all areas will be within a Transportation Improvement District, acting Land Use General Manager David Culver said.

........Better land-use strategies by all three counties that don't rely on state traffic regulations as a primary way to derail major development projects. “Community activists and legislators have sought to use DelDOT’s traffic regulations as a last-ditch attempt to block a project, which is essentially a political goal,” [DelDOT's Goeff] Sundstrom said. “We think this new approach will better allow members of the community and developers to work with county officials to come up with reasonable land-use decisions.”

........DelDOT Planning Coordinator Bill Brokenbrough agreed. “You shouldn’t base your land-use planning on the outcome of a traffic-impact study,” he said. “The larger question of what you want your neighborhood to look like as it grows ought to be looked at in a more holistic manner. We hope these new regulations foster that kind of a dialogue.”........Brokenbrough said it will likely take six months to set the boundaries for the new districts, then at least two years to conduct traffic-impact studies for all of them.