BY CHAD LIVENGOOD • THE NEWS JOURNAL • SEPTEMBER 19, 2010 

SEE FULL TEXT OF PROMINENT ATTORNEYS’ LETTER TO DELDOT AT HTTP://WWW.DELAWAREONLINE.COM/ASSETS/PDF/BL164253919.PDF 

Some of Delaware's most influential lawyers say the state is abdicating its responsibility by not demanding a meaningful traffic study for a proposed 2.8 million-square-foot commercial complex at DuPont's former Barley Mill Plaza along Del. 141.

Seventeen attorneys signed a letter to Gov. Jack Markell demanding that the Department of Transportation order Stoltz Real Estate Partners to determine how traffic will be affected if the former office complex is leveled, then rebuilt into an upscale shopping, office and residential complex.

Citizens for Responsible Growth, a group representing people from the Hockessin, Greenville and Brandywine Hundred area, orchestrated the letter to Markell to provide the governor with an outside analysis of the issue, said Richard Beck, a member of CRG and an attorney at Morris James LLP.

The letter was written in response to comments DelDOT Secretary Carolann Wicks made to The News Journal in August, explaining that her agency can only make recommendations to New Castle County and cannot force the developer to improve roads that some day may be clogged by its project.

The lawyers contend that DelDOT's argument for not ordering the study carries neither legal weight nor precedent.

"DelDOT sits there and acts like a toothless geriatric lion and says, 'Well maybe we can give you some suggestions.' That's not the role of DelDOT," said Richard Franta, a Wilmington real estate and wills attorney.

It's highly unusual for lawyers of this stature, including DuPont Senior Vice President and General Counsel Thomas Sager, to wade into a land-use dispute with a legal analysis.

They're adding a hefty voice to groups opposed to the development, which includes people from Chateau Country to the Town of Elsmere.

Elsmere Council has passed a resolution in opposition, contending the project will send more stormwater downstream into their flood-prone town. Chestnut Run Creek, which flows into Elsmere, originates at Barley Mill Plaza along Lancaster Pike.

"The last thing we need is a construction project that's north of us that adds to our water, adds to our flooding," said Elsmere Councilman John Jaremchuk, who co-sponsored the resolution.

DelDOT officials have said New Castle County's redevelopment code limits its ability to require a traffic impact study, even though the code says such a study "shall only be required if requested by DelDOT."

Instead of a traffic impact study, DelDOT is requiring Stoltz to conduct a traffic operations analysis (TOA), a study that will examine the broader impact of the development on Greenville-area roads, said Brett Taylor, policy and communications director at DelDOT.

In their letter to Markell, the attorneys cite a 2009 Chancery Court opinion by Vice Chancellor Leo Strine Jr., who said New Castle County's redevelopment ordinance "explicitly allows DelDOT" to require a traffic impact study and road improvements or force the developer to downsize the project.

"If there's ever a need for a traffic impact study, this is a place where it's needed," said Maynard Turk, a Westover Hills resident and former general counsel of Hercules who signed the letter.

Markell's office has instructed DelDOT to research whether Stoltz can be held legally liable for road improvements under the way the agency has handled the project to date, Taylor said.

Wicks, the DelDOT secretary, has said Stoltz was "grandfathered" from normal traffic congestion standards because the developer filed its plans four days before DelDOT and New Castle County adopted new, stricter regulations on March 31, 2008.

But developers, including Stoltz, were given a three-month "grace period" from January through the end of March 2008 to file development plans under the old rules, Taylor said.

"Developers had asked that we allow some time to let their plans go forward, because they were all in the pipeline," Taylor said.

In their letter to Markell, the corporate attorneys say the grandfathering period doesn't matter.

"The mere fact that a developer filed plans for a large redevelopment project prior to March 31, 2008, would not deprive DelDOT of its power to order a Traffic Impact Study independently" of the agreement, according to the letter.

New Castle County Executive Chris Coons has insisted the county can't require maximum rush-hour congestion standards because of a Delaware Supreme Court ruling upholding Strine's decision in a redevelopment lawsuit.

But the attorneys argue the opposite, that the court opinions back the notion that DelDOT's power trumps the county in matters of regulating traffic congestion caused by land development.

"This partnership in no way limits DelDOT's rights and powers to making mere 'recommendations,'" the attorneys wrote to Markell. "Rather, as Vice Chancellor Strine correctly observed in his opinion, regardless of what the Redevelopment Ordinance provides, 'DelDOT may still regulate development in line with its own regulations.' "

Stoltz has not submitted its final building plans or its traffic operations analysis to the state and county. DelDOT officials have said what they require of road improvements from Stoltz could depend on how the mixed-use development is built and traffic is mitigated throughout the day.

"Until that process is complete, it's premature for the county to make any decisions regarding traffic," county attorney Gregg Wilson said. "We're getting all these letters, but we don't have the studies yet."

If DelDOT makes recommendations for Stoltz to improve the roads around Barley Mill Plaza, Wilson said, "we would make them a condition of the plan" getting approved by the Land Use Department and County Council.

Markell has met with CRG leaders. In August, the Democratic governor wrote CRG founder Patty Hobbs a letter, assuring her the state would follow the law.

"To that end, while it appears a 2.8 million-square-foot development, as argued in your letter, could cause significant traffic problems in the area, depending on the proposed use, it is important to allow DelDOT to continue with an objective, scientific and engineer based process for reviewal of this proposal," Markell wrote.

The attorneys disagree, arguing that DelDOT is timidly shirking its responsibilities.

Franta, the Wilmington real estate and wills attorney, said the state cannot ignore the long-term cost of not using its legal leverage to put Stoltz on the hook.

"There are costs to it, especially when the developer can sliver through a sloth of government agencies asleep at the switch and get the taxpayers to pay for all of the ancillary expenses," Franta said.

Charles Crompton Sr., a retired attorney at Potter, Anderson & Corroon who signed the letter to Markell, said DelDOT has the legal "power and really the duty" to require a traffic impact study or force Stoltz to reduce the size of the project. To not do so, Crompton said, is "just totally wrong."

"They can't abdicate their duty to a county planning board," he said.

The group of attorneys and other critics of the project argue that traffic operations analysis lacks the legal teeth to require Stoltz to pay for road improvements to ease traffic congestion.

In response to the letter, Taylor said DelDOT's attorneys are researching whether a traffic operations analysis can be used to legally require Stoltz to make necessary road improvements.

"We just need some time to make sure if we do have the ability to do that," Taylor said.

Stoltz managing director Brad Coburn has said the developer is "playing by the rules that exist, not the rules that people want to exist."

The battle between DelDOT and the citizens group has brought out other critics of the transportation agency's handling of the project.

"DelDOT's trying to make excuses for not requiring what should be required under normal circumstances. It's a total cop-out," said Rich Abbott, a land-use attorney whose clients include developer Frank Acierno.

Abbott, a former county councilman, was not among the attorneys who signed the letter to Markell. But as a longtime critic of DelDOT, Abbott said he wants the agency to treat every developer the same.

By not forcing Stoltz to conduct a traffic impact study, DelDOT could be saving Stoltz millions in the cost of building an interchange bridge at Del. 141 and Lancaster Pike to accommodate the new traffic at Barley Mill Plaza.

"Clearly, Stoltz is getting a sweetheart deal from DelDOT," Abbott said.

Stormwater concerns

The letter arrived on the governor's desk two weeks after Elsmere's Town Council passed its resolution, 6-0.

While Chateau Country and Greenville-area roads may face increased traffic, Elsmere could be awash with additional stormwater, said Elsmere Councilwoman Joann Personti, the other co-sponsor.

In mid-July, an Elsmere day care had to be evacuated from knee-deep flash-flood waters of Little Mill Creek rushing into the building. The nearby Veterans Affairs Medical Center [roperty on Kirkwood Highway also is prone to flooding, with the two creeks running alongside the eastern and western sides of the complex.

"Elsmere has a concern with any development and whatever takes place, we want to be assured it won't increase flooding downstream," Town Manager John Giles Jr. said.

Stoltz spokesman Tom Gailey said studies have shown Elsmere's flooding is caused by Westover Hills and other older neighborhoods upstream that were built without stormwater drainage systems. "The situation is not related to the current Barley Mill Plaza," Gailey said.

Elsmere officials also are concerned about additional traffic. One-fourth of the proposed complex would be dedicated to hotel, retail and restaurant space, which typically draws more evening and weekend traffic.

The most recent DelDOT study shows 56,000 cars travel daily through the Kirkwood Highway and DuPont Road intersection, often creating rush-hour gridlock, Giles said.

"We should not have to pay for their economic ventures," Personti said.

Contact Chad Livengood at 324-2832 or clivengood@delawareonline.com.

 

 

DelDOT chief Carol Ann Wicks is a favorite target of project critics. 

Seventeen prominent attorneys sent a letter to Gov. Jack Markell last week arguing that the state has the legal power to force Pennsylvania-based developer Stoltz Real Estate Partners to downsize its project at Barley Mill Plaza or improve nearby roads to handle increased traffic.

Here's a look at who signed it:

Thomas Sager, general counsel of the DuPont Co. He was named one of the country's most influential lawyers of the past decade by the National Law Journal in March.

Charles Richards Jr., a retired corporate lawyer from Richards, Layton & Finger of Wilmington.

Thomas Allingham, a partner and corporate litigator at Skadden, Arps, Slate, Meagher & Flom in Wilmington.

Rodman Ward Jr. is "of counsel" at Skadden Arps Slate Meagher & Flom's Wilmington office.

Edward McNally, a corporate lawyer and partner at Morris James LLP of Wilmington. He is past chairman and vice chairman of the Delaware State Bar Association, Corporation Law Section. He is also town solicitor of Elsmere.

Maynard Turk is "of counsel" at The Stewart Law firm of Wilmington. He is a retired general counsel and former member of the board of directors of Hercules Inc.

Robert Richards, a retired patent attorney at Richards, Layton & Finger of Wilmington.

Peter Walsh Jr., a partner at Potter, Anderson & Corroon of Wilmington.

Charles Crompton, Jr., a retired corporate litigator from Potter, Anderson & Corroon of Wilmington.

Richard Franta, a real estate, wills and trusts attorney from Wilmington.

Wendell Fenton, retired Wilmington attorney.

Robert Valihura, corporate litigation attorney in Wilmington and former state legislator.

Brett D. Fallon, bankruptcy attorney at Morris James LLP of Wilmington.

Daniel M. Kristol, retired land-use attorney.

Stephen D.M. Robinson, Wilmington attorney.

Edmund Daniel Lyons, Wilmington attorney.

Richard Beck, land-use attorney at Morris James LLP of Wilmington.