Civics Unroll UDC Reform Recommendations At The County Executive's Monthly Civic Umbrella Meeting

A group of civic leaders worked to create this document over the last four months. We presented it to the Gordon administration yesterday at the newly reconstituted New Castle County Administration - Civic Umbrella Group monthly meeting. Last night, GHADA, CCOBH, Bear-Glasgow, Pike Creek, Southern New Castle County Alliance and CLNCC were represented and brought their issues to the table. 

Tom Gordon had department staff present to respond to questions from the civics: Col. Elmer Setting, County Police, Jim Smith, Land Use; Mike Coupe, CFO; Mike Svaby, Special Services, Bill Shahan, Community Governing, Dave Grimaldi, CAO, Andria Smith, Administrative Services, Lynn Beaty, Human Resources.

Tom Gordon told the group that the RFP for a national search for a consultant to lead the revision of the UDC would be released today. We hope that our document will be useful in that regard.

Upgrading the UDC/Comp Plan

We all recognize the importance that land development, homebuilding and construction industries have in the strength and vitality of our local economy. Good paying jobs for our citizens, home purchasing opportunities, and new employment opportunities for a well-trained workforce, are critical to a prosperous and thriving citizenry.

The goals and desires must be pursued, however, in a manner which includes a land use and construction process that 1). is fair and applied equally to everyone; 2). also protects the health safety and welfare of the citizens of New Castle County; and 3). advances and applies the rules that call for orderly, well-planned and logical land use and one which ensures that infrastructure and services are, or will be, in place to support the same.

The quality of life in the county should be of paramount importance.

With these goals in mind, there are some minimal, preliminary initiatives that should be advanced immediately:

1). Traffic Study Before Council Action:

If a land development plan and/or rezoning requires the preparation of a traffic impact study or traffic operational analysis, it should be completed (and reviewed by the appropriate government agencies) prior to County Council approval.

State Code, specifically 9 Del. C. 2662, dictates that New Castle County rezonings already require this and the UDC says how to do it at 40.11.000 and 40.11.100.  On major developments without rezonings, the UDC already requires this at 40.11.000 and 40.11.100.  

2). Traffic Analysis Scoping Meetings:

Interested citizens should be aware of, and have the right to participate in, TIS/TOA scoping meetings.

Further, we recommend that, after the Applicant submits what is required by UDC 40.11.120.A, the Department's and DelDOT's findings as to the need for and scope of further traffic analysis become recommendations subject to approval and/or modification by the Planning Board after a Public Hearing.   

3). Development Zones/Areas, Incentives, and infrastructure Investments:

We need to identify development zones/areas and incentivize development, higher density and infrastructure investment in those areas.

Obviously, since the transportation infrastructure is the most costly single infrastructure component, and since the transportation infrastructure investment is controlled at the State level, NC County has virtually no opportunity to do anything other than react to the system the State provides.  Any alteration of that arrangement would require (at least) expanding the County's taxing authority. 

4). Strengthen Record Plan Oversight:

We need to strengthen citizen's, County Council's, and the County Executive's ability and authority to scrutinize and raise legitimate concerns about Record Plans, and to have these plans tabled unless and until these concerns are resolved.

5). NCC - DelDOT MOU and TIS Regulations:

The MOU with DelDOT needs to be reexamined including with regard to specific LOS standards.  The Comprehensive Plan and DelDOT TIS Regulations must be brought under alignment with any revisions to the UDC and the NCC- DelDOT MOU.

When enacted, the "Quality of Life Act" required that NC County and DelDOT establish a joint agreement on LOS to be memorialized by ordinance.  Today's version of that memorialization is Article 11 of the UDC. 

Whereas Article 11 of the UDC has been enacted by an elected legislative body and no one at DelDOT is elected, the agency may not change anything in Article 11 unilaterally. Whatever changes that could be contemplated in DelDOT Regulations cannot over-rule agreements that have been memorialized by an elected legislative body.  DelDOT's Regulations proposals must be regarded as suggestions to change, rather than orders.

The pointing of fingers and "hot potato" approach over who is responsible for county infrastructure must stop. See: (News Journal) Influence, access taint land-use decisions

“DelDOT officials say when they get the traffic operational analysis, they will rigorously review it and make recommendations for traffic mitigation if level of service falls below acceptable standards.

“At one level the department is still back to an expression of an opinion to the land use agency that makes the determination of whether to say yes, no or maybe to a development proposal,” said DelDOT lawyer Schranck.

Such passing of the buck by DelDOT annoys county officials.

“DelDOT is the road authority and we don’t overrule them,” Culver said. “The county tells developers they have to do what DelDOT says is necessary. If DelDOT doesn’t sign off on a plan, the plan doesn’t get approved by the county.””

6). Ethics Code Update:

The Ethics Code needs to be updated to disclose every relationship, monetary or financial interest or involvement that any elected official or county employee has with anyone seeking approvals or opposing any development project.

The Ethics Commission must uphold their Oath of Office in pursuing complaints for actions violating either County or State law.  When a complaint is determined to be a violation of State law, we expect the County Ethics Commission to forward that complaint as a matter of policy.

7). Workforce Housing Ordinance:

We need to revisit workforce housing and either enact a meaningful and usable affordable housing ordinance or get rid of it entirely.

8). Redevelopment Ordinance:

We need to revisit the Redevelopment Ordinance and make it applicable to true redevelopment projects which provide a benefit to the community.

Redevelopment must be adjusted to be applicable only to areas in need of change and should go through the process the same as zoning changes. LU Dept. should not be allowed to grant redevelopment status without input from the community. 

9). Clean Hands Law:

We need a greater use and strengthening of the Clean Hands law in order to hold developers to their obligations and to get communities’ development plans completed as approved.

10). UDC Definitions:

UDC definitions are unclear and subject to misinterpretation and misuse, e.g.,

a)  The definition of "redevelopment" needs to be returned to its original intent.

b)  “Mixed Use" is so poorly defined in the Code as to be almost meaningless.  Today it can serve as a front for commercial development in office locations. The code must be clarified. If a use is being changed, a rezoning should be required.

c)  "Limited" uses (in the use code) are similarly poorly written and need upgrading.

d)  The intent of the UDC is often ignored.  It requires that buildings be compatible w/ the area.  But developers have claimed the ability to place high rise buildings next to single family homes. Express protections are needed, say, 50 ft height limitation within 500 ft of a single family detached dwelling.

e) What does "by right" mean and how can abuses of that term be avoided?

f) The proportional build-out requirement under mixed use needs to be codified.

11). Return to the Three Step Process:  

The change from a 3 step to a 2 step process, when the County Council only receives substantive information after its vote, has the clear effect of preventing fact-based decision making by the legislative branch and is, in effect, not in the public interest.

12). Deed Restriction Amendments:

To protect the public in the event that amendments are sought to deed restrictions, the UDC should require a 2/3 majority vote by County Council.

13) The 2012 Comp Plan:

The Comprehensive Plan Update process must be revisited. It is too easily subject to manipulation, use of vague terms, and inadequate protections of the public interest. Amend the 2012 Comp Plan to: 

a) Clarify terms used such as "Community Redevelopment", "New Community Development", "Office/Commercial/Industrial", etc.

b) Specifically eliminate zoning code terminology (O/C/I).

c)  Re-install the wording “new development should respect the character and integrity of existing communities” and similar phraseology present in the 2007 Plan

                                                                                   

14) County Council Accountability:

Councilpersons need to be well informed. Of course DLU is relied on to know the code, but often the interpretations from DLU are difficult to understand or decipher.

County Council decisions are not held to the same standards required by the NCC UDC code for DLU and Planning Board decisions. 

This example is from County Council overturning the Planning Board decision on a variance for the Walker Farm. Requested was a variance to allow 37 housing units on a cul-de-sac limited by code to 16 units. The Planning Board voted “no”. It was advertised on the council agenda as a decision on an interconnection to the adjoining neighborhood – not a variance to allow a 100% increase houses on a cul-de-sac.This quote is from the current business minutes from the Planning Board meeting of Feb. 19, 2013, after Council overturned the Planning Board decision:

“the Dept. confirmed that it was the excess number of dwelling units on the dl-de-sac that was at issue. It was also noted that the standard used by County Council to overturn the appeal was a much less difficult standard than the standards the Planning Board must address.” (Gen. Mgr. David Culver)

15). The Department of Land Use:

The LU Department Manager and/or other DLU employees have too much flexibility to make independent decisions and changes on approved plans. The Land Use General Manager should not be a position that serves at the pleasure of the County Executive. Neither DLU nor DelDOT take responsibility for transportation decisions. Current code requirements are not being followed.

16). Variance Process at the Board of Adjustment. 

We need to revisit this process. Sometimes, the applicant chooses to go to the Board of Adjustment before going through the Planning Board hearing. Other applications go to the Board of Adjustment after the Planning Board process but before County Council. Some choose to go to the Planning Board, then Council and finally go to the Board. of Adjustment. It is up to the applicant to decide what works best for their project.

A recent agenda for the Board of Adjustment had several items with three of those requiring multiple variances:

Royal Farms/MAA Real Estate.  12 variances

CCS Farms LLC  - 6 variances

Tupp Signs Inc. - 5 variances

Perhaps some consideration should be given to how many variances for a site are appropriate. Do too many variances suggest the project just simply doesn't fit the site? Should more attention be given to encouraging development to fit into the zoning and code requirements instead of changing/altering zoning and code requirements to fit the desired use of the property? Should all variances be in place and approved before Council votes?