A major decision over how New Castle County's redevelopment code is applied is headed to County Council without the planning board's endorsement.

The New Castle County Planning Board made no recommendation Tuesday on the rezoning of 32 acres at U.S. 40 and Del. 7 in Bear, where a developer plans to build a new Lowe's across the road from an existing one.

The board voted 4-4 on rezoning the tract of mostly vacant land from office to commercial use.

But the board also voted 7-1 to lift deed restrictions on the property, which is required for rezoning older properties. It's now up to County Council to decide whether to allow the rezoning, said Planning Board Chairman Victor Singer, who voted "no."

The council is expected to take up the rezoning later this month.

The board was divided over DelleDonne & Associates' use of the redevelopment ordinance, which is under scrutiny for its application at development sites across New Castle County.

In this case, most of the land has never been developed, but the county Land Use Department said it qualified for redevelopment because it was approved for office space before a new code was adopted in 1998. A TD Bank occupies a corner of the property.

County Council members have begun scrutinizing the redevelopment code, concerned that it's being broadly applied to never-developed or even thriving properties.

"What it is doing is corrupting our code," board member Sandra Anderson said of the redevelopment code before voting "no."

Before voting "yes," board member Bill McGlinchey said he was "worried about setting a precedent" for potential redevelopment projects in the future: "There's clearly concern in redevelopment and the application of the ordinance."

Singer said the U.S. 40 and Del. 7 intersection already has enough commercial space. Furthermore, Singer said, allowing the project violates "the theology" of mixed-use developments of shops, offices and residential space that the Land Use Department was espousing less than two years ago.

Dave Culver, general manager of the Land Use Department, said the agency's role is to judge the proposal "in front of us," not what others may envision as the best use of a site.

Some board members said the Land Use Department and developer had not made a good case for why it should get redevelopment status, especially since it wasn't taking advantage of the extra density that the ordinance allows. Also, nothing would be torn down, which is how authors of the redevelopment code say they envisioned it would be used to redevelop abandoned and underutilized shopping centers and buildings.

The redevelopment code will allow DelleDonne to get through the approval process faster and break ground on the Lowe's building by next spring, said Jim Collins, vice president of the firm.

"The advantage for us is it saved us a little bit of time because Lowe's wants to open by Thanksgiving of next year," Collins said.

Collins said DelleDonne has already made about $2 million in roadway and infrastructure improvements at the site, which would be called Governor's Square Commercial Center.

In addition to the Lowe's, DelleDonne plans to build a restaurant and another big-box retailer on the land. The property owners have tried, to no avail, for 22 years to develop the land for office or residential use, but have found no takers, Collins said.

There is an existing Lowe's across U.S. 40 in the Eden Square Shopping Center, whose owners oppose the plan because they would lose their anchor tenant.

Board member Mark Weinberg, who voted "no," expressed concerns about the economic harm additional retail space could do to existing shopping centers with high vacancy rates.

"If you put in more commercial, you cannibalize the other commercial [space]," Weinberg said.

Culver said Lowes' desire to move into a bigger building with better visibility and access to U.S. 40 is "a function of the market" beyond the government's control.

Culver noted the existing Lowe's moved to Eden Square after its former location along Old Stanton-Christiana Road frequently flooded during heavy rainfalls. "If a business decides they want a better location, they move," Culver said.

Board members Art Wilson, Robert McDowell, June MacArtor and McGlinchey voted "yes" on the rezoning. Voting "no" were Anderson, Weinberg, Singer and Victor Udo. Weinberg cast the lone vote against lifting the deed restrictions.

The planning board has had tie votes on rezoning just three other times since 1998, when the Unified Development Code was implemented. Next week, Robert Snowden, a construction engineer from Wilmington, is expected to fill the board's ninth seat, which has remained vacant for 15 months.