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.