12/23/2009
Stoltz files Barley Mill Plaza Major Plan for 2.8 million square feet of mixed use development

By Councilman Bob Weiner

Taking advantage of a vaguely drafted County redevelopment ordinance, the Stoltz organization, on December 18, 2009, filed a plan for 2.8 million-square-foot development at Barley Mill Plaza featuring an auto-dominated retail, residential and office buildings. The filing on December 18, 2009 was one day before the legal deadline when its plan would have expired. This size of this plan is the largest in the history of Delaware and is similar to King of Prussia in scale. Some of the buildings in the Stoltz plan are ten, eleven and twelve stories tall, and residents -- particularly those living in Westover Hills, Westhaven and other nearby communities -- say that isn't in character with the area. The Stoltz organization had represented to the community that it would file a smaller scaled down plan which would reduce the height of the buildings, create more buffer as between the residential communities behind Barley Mill Plaza and generally work with community leadership to reach accommodation. The community, relying on this representation, retained land use planning firm Torti Gallas to design a more pedestrian oriented mixed use plan. Although the community alternative was endorsed by the community, in the end none of the community endorsed community and pedestrian friendly plan elements were adopted by the Stoltz organization. In my opinion, the community leadership, which had been awaiting Stoltz’ response to its responsible alternative plan, now must consider filing suit to challenge the County’s interpretation as applied to the Stoltz plan.   

The New Castle County Land Use Department's March 11, 2009 follow-up letter to the Planning Board/Land Use Department public hearing found the Stoltz Barley Mill Plaza Exploratory Plan “acceptable”, and advised the applicant that a Record Plan may be submitted.  The recent Stoltz submission (received on 12/18/09 by the County Land Use Department) is that Record Plan.  The NCC Land Use Department website incorrectly had indicated that Barley Mill had received "conditional approval" of a Preliminary Plan.  As now stated by the County Land Use Department, “The Department is currently in the process of enhancing the computer system to provide the most up-to-date, project-specific information possible.  Redevelopment plans such as this do not include a Preliminary Plan review; they proceed directly to final Record Plan stage after the Exploratory Review.”  As further stated by the County Land Use Department: “Now that the Department has received the record plan submission, we will conduct a formal review of the plan.  If the Record Plan is ultimately found to be UDC [NCC Unified Development Code] compliant, the matter will then go before NCC County Council for a vote to adopt a Resolution approving the plan.  As long as the plan complies with the code, Council must approve it, however Council may table the matter and refer the plan back to Land Use with technical questions. 

Please see the applicable section of the UDC below.  This information is on our website www.nccdelu.org.”     

UDC 40.31.114 Record Plan Submission 

C. Council consent.

1. For major plans, the record plan shall be forwarded to County Council for its consent. Upon receipt of the plan, County Council shall schedule the matter for its next public hearing, and may take one (1) of the following actions:

  a.     Adopt a resolution approving the record major plan; or               

b.     Table and refer the plan back to the Department, no more than twice, with specific questions relating to technical compliance with this Chapter, State or Federal constitutional requirements, or any other statute or ordinance for which compliance is required. Upon receipt of a Department recommendation reaffirming approval of the plan, County Council shall adopt the resolution of approval, unless a second referral is made because of additional questions or concerns. Upon receipt of the Department's recommendation reaffirming approval of the plan after review of any additional concerns raised by County Council, Council shall adopt the resolution of approval.  These are my observations and should not to be attributable to Citizens for Responsible Growth [CRG] or any other person or entity.  

The Stoltz Greenville Center application will be on the New Castle County Planning Board agenda on January 5. See Greenville Center article in this newsletter for details. The Greenville Center plan does not come to New Castle County Council until Record Plan consent. We do not know when that will occur since we are still at Preliminary Plan.  

I have not been contacted by the Stoltz organization to date to discuss this, even though legally I am the sponsor of the Greenville Center Resolution. The information which I have received about this has been passed onto to me by the New Castle County Land Use Department.  

I have been advised that the Stoltz Barley Mill Plaza application has no more public hearings except final approval by New Castle County Council as it has obtained all other requisite approvals. The Preliminary plan Stoltz filed for Barley Mill Plaza will not  be subject to another Planning Board Hearing since it is deemed to be a “redevelopment project”. I reserve the right to object to the determination that the Barley Mill Plaza project is correctly deemed to be a “redevelopment project” which is thus entitled to special bonuses under the Unified Development Code.  In my opinion the Stoltz organization will thus obtain “entitlement [approval] status” for Greenville Center [GC] and Barley Mill Plaza [BMP] , should Stoltz opt to seek it in the next few weeks. I am pleased that Citizens for Responsible Growth in New Castle County [CRG] remains on top of the situation, has not been caught off guard by this, and is proceeding in a manner to preserve all litigation options.  In relation to both BMP and GC, Stoltz has still not accepted community endorsed pedestrian friendly alternates which are consistent with the County Comprehensive Plan and with Chapter 40 of the Unified Development Code. 

 The Stoltz plans for 20 Montchanin Road site and the Shoppes of Brandywine have expired due to Stoltz’ failure to advance the plans in the County Land Use process before the deadlines. I anticipate that both plans will be re-filed. The expiration of both plans is due to both the economic downturn and CRG’s aggressive opposition campaign/pro-responsible development alternatives.  

It is my observation that CRG has not issued any progress reports recently because the Stoltz organization did not respond to CRG’s responsible alternatives until “the 11^th hour”---just a few days ago. In my opinion, the Stoltz organization erred in thinking that the community would agree to compromise in Stoltz’ favor by waiting until the 11^th hour.  In the opinion of many --- and I concur, the Stoltz organization [Stoltz] paid a premium price in purchasing Barley Mill Plaza at the top of the market [paying 1 million per acre] and cannot  economically build the proposed 2.8 million square foot project. Neither can the Stoltz organization sell the project to another developer now or in the foreseeable future without sustaining a substantial loss. Even though Stoltz can most likely now legally obtain County approval for its BMP plan of mixed use [absent court challenge], Stoltz is unable to realize a profit, since there is not current demand for residential, commercial and office of this scale. Stoltz would like CRG and County government to help it short circuit the approval process to change the underlying zoning from OR “Office Regional” to CR “Commercial Regional” so Stoltz could obtain approvals to “just build huge 350,000 square foot commercial strip shopping center” as a “phase one” fronting on Route 141.  Phase two would presumably be offices on the back end. Stoltz filed its BMP plan by December 16 to avoid having the plan expire, which would then have required Stoltz to re-file.  In my opinion, the Stoltz organization also erred in relation to Greenville Center by proposing a 12 story tower in the back yards of the community. The plan makes no economic sense. Even though Stoltz is poised to obtain approvals for this structure, Stoltz understands it cannot realize a profit on its own plan here as well. The Stoltz organization has instead proposed a CVS Store type project in Greenville Center as an element to replace any “lost profit” from not constructing a 12 story building.  CRG should not be forced into a premature approval of any alternative plan which may benefit the Stoltz organization. It appears to me that CRG can and will negotiate from a position of strength, recognizing that although Stoltz is poised to obtain approvals for Barley Mill Plaza and Greenville Center, these Stoltz plans are not buildable or economically feasible. CRG continues to preserve its litigation option but should remain open to negotiate with the Stoltz organization on fair terms. Stoltz should understand that the community will not be compelled to make unreasonable compromises just because Stoltz is about to obtain some approvals.  The real pinch point for the Stoltz organization at Barley Mill Plaza is not the square footage – it can obtain the 2.8 million square approval since its plan is “code compliant”.  This compliance is not at all difficult to obtain as the definitions of “mixed use” are thin and traffic is not a limiting factor here as this is deemed a “redevelopment project”, as currently defined by the New Castle County Land Use Department.  The Stoltz organization’s major problem that under OR with Mixed use, the Stoltz organization has to get into three different markets – commercial, residential and office – concurrently in order to build even its first phase. 

In other words, the County Land Use Department, relying upon precedent which I had cited at the County Planning Board Hearing, will not permit Stoltz to “cherry pick” out only commercial for development as its first phase!  

The community endorsed position includes “down sizing” Barley Mill Plaza such that the density is reduced to around 1.7m sq ft., secure a height restriction of about 45 feet [Stoltz is legally allowed to build a 140 ft office building today under his current zoning] and limit commercial to about 350k sq ft.  By way of comparison, the Stoltz filed plan has a 495,000 commercial center together with a 200,000 sq ft hotel.  There is general agreement that seeing a plan first is key before any written agreement can be discussed.

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