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 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 (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 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.

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 Sussex
County or the state Department of Natural Resources and Environmental Control
can 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 not
need 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.
Exactly a year ago the county started a series of steps, including many public hearings, which have now produced a blueprint due to be debated and adopted next year.
The challenges faced in drafting this plan are far different from the last time revisions were made five years ago.
Especially crucial is that the economy has largely tanked, resulting in crisis in the
housing market and a sharp drop in much needed revenue for the county and the state.
One result is that planning for the next 10 years is not only difficult but also more vital to the future of New Castle County. Land use manager David Culver believes the document does that planning more smartly than the similar work in the past.
Among the changes Culver and the draft see is a lesser need for suburban developments on large lots, which in this economic climate has resulted in what
are often called zombie subdivisions, where infrastructure exists but few houses are occupied. The plan sees a demand for more smaller lots with houses that young families can afford and older ones desire.
Then there are older houses and businesses, an aging stock in real estate terms
that had to be grandfathered because the present zoning laws would not have
permitted them. These aging communities, urban transition zones, need special
attention and could be redeveloped into sustainable walking communities.
The plan calls for a new commercial zoning designation, between regional and local zoning, where people could live, work, shop and send kids to school without requiring cars or even public transportation. Such a community is now being developed just below the Chesapeake and Delaware Canal.
That southern part of the county, mostly between Routes 1 and 896, is the new
community development area, which should include low-density suburban
neighborhoods but also more innovative development, including building mixed-use communities, building more densely to allow for small lot sizes and more flexibility to meet the need of an aging, changing population.
Today about one-eighth of the population is over 65; by 2030, more than a quarter will be over 60.
Culver says care must be taken to protect the 300 active working farms with increased rural preservation steps.
Then there are all the other varied factors that impact any planning, many of
which have to be coordinated with the Office of State Planning Coordination,
particularly adequate highways and public transportation, and new schools. So
that thin line between the county and state is seen again. This column has not
even touched on planning for businesses, industry and economic growth.
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 their
sewer 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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The New Battle Of Princeton - New Housing Development Planned For Battlefield Area

(wiki image: A painting of George Washington rallying his troops at the Battle of Princeton)

WTF? Princeton Battlefield Area Threatened by a Housing Development ???
By Kim Burdick, Advisor Emeritus National Trust for Historic Preservation

The Institute for Advanced Study wants to build on-campus faculty housing, but faces opposition from many across the nation who want to preserve a potential extension of Princeton Battlefield State Park.
Safely across the Delaware River and out of the line of fire, I am wondering why the Institute for Advanced Studies is being so short-sighted.
By shifting their thinking only a little bit, they could easily emerge as the real heroes of the Battle of Princeton instead of looking like a bunch of goons and bullies.
Is the Institute for Advanced Study’s goal really to destroy an important piece of history? Probably not. However.....
Damage the environment? Probably not. However.....
Did that dude really, truly, say that Einstein is more important than George Washington? Probably yes. Obviously an Idiot. Meh-if George hadn’t been there first, would Einstein have had a safe harbor during WW2.?
I can see why the opposition to the Institute’s lovely housing development is rising—not only in Princeton, but across the Nation.
This situation reminds me of my mother who used to scold her brilliant and beautiful honor roll children by remarking: “Guys. If this is what the smart kids are doing today, I’d hate to see what the dumb ones are doing.”
The Institute’s goal is housing, right? OK. Imagine easy pedestrian access to schools, libraries and grocery stores. Imagine living in beautiful Victorians, brick colonials, charming wood framed houses with spacious porches.

The real deal—authentic—keeps its value; appeals to scholars, preservationists, environmentalists, geeks of all sizes and shapes. The members of the Institute for Advanced Study would look like good neighbors and superior citizens. They could get positive press not only nationally but internationally. As it is, they are being slapped upside the head and irritating potential partners.
Housing is easily come by. Land swaps are cool. Destroying a potential part of an important historical region is stupid, dumb and vulgar.
For the same amount of money the Institute plans to spend on legal fees and new housing construction they could circumvent a lot of ugly publicity and put a positive spin on the situation.
My suggestion, and only a suggestion, is that Institute of Advanced Study take advantage of the bad economy. Tap into Preservation Trust Fund, get business tax credits, and buy up some of the lovely old homes in the Princeton area that are languishing in this economy.
Surely the so-called “smartest people in the world” should have enough brains not to act like such losers. One thing Americans learned from George Washington is that sometimes retreat is an excellent war tactic.
Public Hearing at 7 PM Dec 8 at 400 Witherspoon St., Princeton Township Town across from Conte's.

For more information on the new Battle of Princeton contact: Jerry Hurwitz President, Princeton Battlefield Society ( c )609-947-6574 (w) 609-243-6190
- Princeton Battlefield Society is a 501 c 3 (charitable) corporation.

Institute's Housing Plan Gets Tough Introduction princeton.patch.com.

Kim Rogers Burdick, MA, MPA
Newark, Delaware

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June Eisley Writes: Delaware Pacem In Terris News Update - Must See "Margin Call" Dec. 16-18th At Theatre N In Wilmington

Pacem in Terris: Peacemaking since 1967
302-656-2721 http://www.depaceminterris.org/

"Margin Call" coming soon to Theatre N - From Occupy Delaware - For your information "MARGIN CALL" (2011) - not to be missed at Theatre N - December 16-18 Friday 2 pm - Saturday 2 pm and 8 pm - Sunday 5:30 pm
A Wall Street thriller/drama that revolves around the key people at an investment bank over a 24-hour period during the early stages of the financial crisis. Starring Kevin Spacey, Demi Moore, Jeremy Irons, Stanley Tucci, Simon Baker (the "Mentalist"). This is a current movie but did not play in the larger theatres. Thanks to Theatre N for showing it.

http://www.margincallmovie.com/

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From Occupy Delaware 1 - Please come out for the next NCC sheriff sale on Tuesday, December 13 in the City/County Bldg at 8th & French Streets (directly across from Spencer Plaza/Occupy Delaware). It begins at 10 am and will likely run until 11:30-12 noon. If you are able, please meet at Spencer Plaza at 9 am. They are hoping to fill the auditorium (152 seats) to show concern/outrage at all the homes being foreclosed on and sold at auction. If you have any questions, email Jen Wallace of Occupy DE at jenwallace@comcast.net

2 - Occupy Delaware has begun having rallies every Wednesday from 4:30-5:30 p.m. on the sidewalk along Delaware Avenue at the I-95 bridge to raise awareness about Occupy Delaware. Come and bring a sign. (note: this is where we had our peace vigils for many years)

3 - Also, every Friday Occupy Delaware rallies in Newark at the intersection of Main Street and South College Avenue from 4-5:30 p.m. to raise awareness of Occupy Delaware.

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Senate approves indefinite detention and torture of Americans A terrifying bill that will turn the US into a battlefield with dire effects for Americans has snuck into the Senate, and as lawmakers rush legislation through Congress, the nightmare National Defense Authorization Act is close to becoming a law. Visit link: http://on.rt.com/sfc76y Both Chris Coons and Tom Carper voted in support of the NDAA!!

More military assault on the environment. A 51st State for Armed Robotic Drones http://davidswanson.org/node/3432

PEACE IS NOT A SEASON

IT IS A WAY OF LIFE

Plus, Food Democracy Now! writes ~ Join us, Sunday December 4th for the Farmers March on Wall Street!

Farmers March on Wall Street - farmers, activists
and ranchers will travel from as far as Colorado, Iowa, Maine, Wisconsin and Upstate New York to participate in the Occupy Wall Street Farmers’ March to call
attention to the gross inequities and inherent degradation caused by industrial agriculture and begin efforts to transform food and agricultural production into ways that are economically sustainable for farmers and farm workers, protect biodiversity and the environment and enrich our citizen’s health and communities.

Please click here to commit to attending the Farmers March, a day of action, dialogue, healing and finding common solutions.
Details : THE FARMERS MARCH - A gathering of farmers, community gardeners, food workers and activists for dialogue, solidarity and solutions to corporate control of our food system.
2:00 PM Public gathering and panel discussion at La Plaza Cultural Community Garden (632 - 650) E. 9th Street, (between Avenues B & C)
Google map: http://action.fooddemocracynow.org/go/501?akid=418.94810.Kef_ez&t=8
Speakers include: Karen Washington - Founder of City Farms Market and board member at NYC based organization Just Food; Jim Gerritsen - a Maine organic farmer and lead plaintiff in a class action lawsuit against Monsanto and was named one of 25 World Visionaries by Utne Reader in 2011; Severine von Tscharner Fleming - Food advocate and producer of the film “Green Horns”, profiling young farmer entrepreneurs; Jalal Sabur - Founding member of the Freedom Food Alliance, an alliance of black urban communities with black rural farmers; Mike Callicrate - Colorado rancher, entrepreneur and rural political activist; Andrew Faust - World renowned permaculture expert and educator.
4:00 PM Farmers March to Wall Street! Zuccotti Park (aka Liberty Plaza) b/w Broadway, Trinity Place, Liberty Street and Cedar Street
Google map: http://action.fooddemocracynow.org/go/502?akid=418.94810.Kef_ez&t=10
5:00 PM Circle of Solidarity and Seed Swap at Zuccotti Park - Open to the public
Google map: http://action.fooddemocracynow.org/go/502?akid=418.94810.Kef_ez&t=12

Today farmers need you more than ever, please join them for the Occupy Wall Street Farmers March! Today food and agriculture production is controlled by a handful of agribusiness monopolies that increasingly corrupt the public policies safeguarding our food and the environment. In the past month agribusiness lobbyists have helped stop reforms to food and ag policies in the U.S. that are harmful to America’s health and the survival of family farmers.
Did you know?
Since 1980 more than 600,000 independent hog farmers and 500,000 cattle producers have been forced out of business.
Today with unfair giant food monopolies, only 4 companies control 84% of beef packing and 66% of pork production.
One company, Monsanto, controls the patents on genetically engineered seeds for corn, cotton, soybeans and sugar beets that are planted on more than 90% of the acres farmed in the U.S. We are committed to this fight now, more than ever - please join us. Together, our voices will create the future we deserve.

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Open House - Saturday, Dec. 3rd From 11-5 Hale Byrnes House In Stanton

Kim Burdick writes ~

As you are making your rounds of holiday house tours today, Saturday Dec 3, be sure to swing by the historic Hale Byrnes House at 606 Stanton-Christiana Road, Newark, DE 19711. http://www.halebyrnes.org/

This 1750 brick house was the site of a Council of War in the days following the Battle of Cooch's Bridge in the fall of 1777.

Ladies spinning, a colonial gunsmith, and re-enactors from the Delaware First Regiment will be on hand to greet you.

Open House is free. Children are welcome.
Hours 11am-5pm

Also: Coffee and dessert at 7:30 pm. $5 at the door includes a talk on George Washington's Generals by William Welsh, Chair American Revolution Round Table of Richmond, Virginia.

Exit 4B off I-95, then 7 N to old Stanton-Christiana Road. Stay right and dip down to the old road near White Clay Medical Center, Shones and Bells Supply. - From Newark take Rt 4 until it dead-ends in Route 7 N.

32BJ SEIU: Office Cleaners To Urge City Of Wilmington Council Members To Support Campaign For Good Jobs

From the inbox ~ SEIU writes: Office Cleaners to Urge City Council Members to Support Campaign for Good Jobs

Wilmington office cleaners will tonight urge City Council members to sign a pledge of support (pdf): for their efforts to win an agreement Delaware’s major commercial cleaning companies that includes a fair pay raise. 32BJ SEIU's contract expires at 12:01 AM on January 1, 2012.
“Hundreds of men and women who work for cleaning contractors are earning as little as $8.00 per hour doing backbreaking work cleaning the same big banks that everyday Americans bailed out after the financial crisis of 2008,” said Evelyn Malone, a downtown cleaner and mother of four. “Many of us earn poverty-like wages, so little that we qualify for public assistance, putting taxpayers on the hook again.”
According to the statement, the Chairman and CEO of PNC Bank was paid more than $16 million in compensation in 2010. An office cleaner at a PNC building in Wilmington would need to work more than 850 years to earn what the head of the bank made in one year. Cleaners maintain prominent buildings including the DuPont Building, Brandywine Building, Chase Manhattan Center, Citizens Bank Center, and I. M. Pei Building.
More than 60,000 property service workers from Hartford, Conn., to Virginia are united in a campaign to secure new contracts that raise wage and benefit standards. With more than 120,000 members in nine states, including nearly 7,500 in Philadelphia and Delaware, 32BJ SEIU is the largest property services union in the country.

CONTRACT TALKS OPEN FOR 450 DELAWARE OFFICE CLEANERS - Union Proposals Focus on Fair Wage Increases as Office Market Strengthens
Negotiations for a new union contract covering 450 commercial office cleaners in Delaware began on Friday between 32BJ SEIU and Delaware’s major commercial cleaning companies such as ABM Industries, Inc., Bravo Building Services, and GCA Services Group. 32BJ members clean prominent buildings in Wilmington including the DuPont Building, Brandywine Building, Chase Manhattan Center, Citizens Bank Center, and I. M. Pei Building. The contract is set to expire at 12:01 AM on January 1, 2012.
“We offered realistic proposals to ensure hard-working men and women receive the livable wages critical to supporting their families and strengthening our economy,” said Wayne MacManiman, 32BJ Mid-Atlantic Director. “The multi-billion dollar real estate industry can afford to give workers better than poverty-like wages and to ensure that tenants receive the professional service they want.”
More than half of the Fortune 500 companies are incorporated in Delaware, where wages for part-time workers are only $8.70 per hour ($9,048.00 annually). The federal poverty line for a family of four in the United States is $22,350 annually. With declining vacancy rates and rents on the rise, the commercial office market in Northern Delaware counties remains among the strongest in the metro area according to according to Marcus & Millichap.
"We work hard every day cleaning taking the trash out in this big bank,” said Emiliano Ortiz a cleaner of 5 years working at the Chase building. “We need a fair raise, our wages are not enough to support our families." Ortiz who earns just $8.70 per hour, works two jobs to support his family.
Ad Reveals Office Cleaners’ Poverty-Like Wages - below is text from a radio advertisement scheduled to run all week on WDEL 1150 AM Wilmington – listen here: http://www.seiu32bj.org/32BJAD.mp3. The ad calls on listeners to support over 450 commercial office cleaners in Delaware, in their fight for a good contract and stronger communities.

The ad reads:
HUSBAND: Did you know that the contracted office cleaners at Chase Bank here in Wilmington are making just $8.70 per hour?
WIFE: $8.70 per hour? How can anyone put food on the table on such wages? And they're working at the same big banks you and I bailed-out to get the economy back on track? Look how well that worked out!?
HUSBAND There’s no way our economy can get out of the ditch as long as men and women aren’t getting the fair wages that enable them to support local businesses.
WIFE: What’s going on in this country? It wasn’t so long ago when working hard meant you could get what you needed to support your family.
ANNOUNCER: In Wilmington and Newcastle County, contracted office cleaners are demanding the fair contract they deserve for their hard work. Help support these men and women in their fight for family-sustaining wages.

PAID FOR BY 32BJ

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