SOC ANSWERS NOTICE OF APPEAL FROM BARLEY MILL PLAZA, LLC
By Christine Whitehead
Reprinted from the September 2013 edition of "County Comments," the newsletter of the Civic League for New Castle County, on whose board Ms. Whitehead serves.
The land use players watching the legal battle between residential plaintiffs who are fighting the development of Barley Mill Plaza as a string of huge box stores and pad sites along Route 141 at the Lancaster Pike were hardly surprised to learn that the decision handed down by Vice Chancellor Glasscock will be appealed by the defendants to the Delaware Supreme Court. They will also find no surprise in the readiness of those plaintiffs to defend the decision in their favor. But the public is about to learn the meaning of the term "cross appeals." Not all winning opinions satisfy the purposes of a lawsuit, and some winning decisions can result in unfortunate precedents or rules that will strangle open government in the future. The opinion in SOC, et al v. New Castle County Council and Barley Mill Plaza, LLC is one of those which will lessen public participation in the rezoning process if allowed to stand unmended. What it has shown is that the public who has the most at stake can fight with stamina through years of public hearings and still be ignored by the Department of Land Use and County Council. The Vice Chancellor refused to find that BMP, LLC, was legally required to produce a traffic analysis before the Council voted on the rezoning, although he did find that the deciding vote was illegal and nullified it. What the plaintiffs-who are now the appellees-hope to have the Supreme Court do by briefing a cross appeal is correct the errors of law made by the court below in writing its opinion, but confirm its final decision.
If you think this sounds tricky, it is. Fortunately, the excellent legal counsel for the plaintiffs is assisted by volunteer attorneys who have spent countless hours on this case. With the help of contributors who understand the importance of Council seeing professional traffic studies in the rezoning process, money has been and will be found to keep up the fight against the well-heeled appellants (sometimes referred to as "Stoltz") and the Council (using your tax money).
The appellants managed to split the public opposition to this too-large project by threatening to build other over-sized projects in various locations. The reason the Civic League supported fighting--even in the face of an unenforceable, loophole riddled compromise agreement--is that the principles at the heart of this fight are too important to the future of this county to allow it to be uncontested. Adjacent property owners have a constitutional right to present evidence of the harm that a rezoning will cause. County Council does not have the authority to pass ordinances in defiance of the Constitution and a law enacted by the General Assembly for the purpose of insuring that the Council would see a professional traffic analysis before voting on a rezoning. The Civic League tried to warn our membership what the passage of 09-066, 067, and 068 would mean for land development in this County, but not enough people complained to their Council member about them. The sections which pushed the traffic analysis to the last stage of a plan were included, in my opinion, for the sole purpose of getting rezonings approved which would be revealed by a traffic analysis to be too large for the roads in an area to handle or too poorly located for the developer to afford the necessary traffic mitigation measures.
Developers' attorneys have acted for years as though they have a right to build anything that meets the rules and regulations on any parcel. This is just not true. There are rational limits to the size of a plan generally established in the past by LOS or level of service limits. If we do not shout to the hilltops that we refuse to give up those limits, we will all be surrounded by sky high or hugely bulky buildings in the future. That is what "Smart Growth" means-building to a level that will support mass transit no matter what is does to your roads until you reach that population number. That's the theory most land use planners have adopted in the past few years. Thank heavens Tom Gordon has found a planner to lead the Land Use Department who talks about "sustainable" growth. There is hope for us yet.
Meanwhile, if you would like to support SOC (Save Our County) in the Supreme Court fight, please go to the PayPal on this website and contribute.
by Christine Whitehead