Barley Mill Fiasco
Op-Ed, Victor Singer, Former Chair, New Castle County Planning Board
The News Journal, December 1, 2011
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.