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2/10/2011
Council was tricked into voting on half the approval of Governor's Square - said NCCo Councilman Bob Weiner - News Journal

Governor's Square vote slips past New Castle County Council
Smiley has deed restriction lifted as consent item

Opponents of the proposed Governor's Square III Commercial Center were shocked to learn Wednesday that New Castle County Council on Tuesday unanimously lifted a deed restriction on the property at Del. 7 and U.S. 40 in Bear.

Even two council members said they didn't know what they had done the night before.
Councilman George Smiley said he would table a vote on whether to rezone the property from its current designation that allows for offices to be built to one that would permit the construction of the shopping center.

That ordinance was tabled at Tuesday's meeting and the vote rescheduled for Feb. 22.
But a deed restriction on the property was lifted by a resolution that was listed on the "consent calendar" portion of the agenda. According to council rules, "the consent calendar is intended for noncontroversial items that are not contemplated for discussion on the floor of council or objection."

DelleDonne & Associates' proposal to build the 230,000-square-feet shopping center has been hugely controversial in Bear.

All the items on the consent calendar are voted on in bulk. Although each council member was given a copy of the resolution, which detailed the lifting of the deed restriction, there was no hint on the meeting agenda that the item in the consent calendar involved Governor's Square III. Only the tax parcel number of the property was listed on the agenda.

The deed restriction that was lifted removed the amount of office space that could be built on the property so the land could be used for commercial space if rezoned, county spokeswoman Angie Basiouny said.

Barry Shotwell was one of several residents opposed to the rezoning who attended Tuesday's council meeting just in case Smiley didn't keep his promise to table the rezoning vote. He sat through the entire meeting and wasn't aware that the deed restriction had been lifted.

"That happened at the meeting I was at? I'm amazed," he said. "They put this under the category of something that isn't controversial or wouldn't have any objections? I can't believe that this slid through and wasn't spelled out on the agenda for what it was."
Smiley defended his actions Wednesday.

"I said I would table the rezoning and I did what I said I was going to do," Smiley said. "The bottom line is, if the rezoning doesn't pass, the deed restriction reverts back to what it was anyway."

Smiley added that while the county planning board did not recommend the rezoning, it approved the lifting of the deed restriction, as did the county Land Use Department.

But Mark Dunkle, the attorney for Eden Square Shopping Center, which is across the road from the proposed Governor's Square III and whose owners oppose the new development, said the deed restriction is more than just a housekeeping measure.

"The lifting of the deed restriction is part and parcel of the entire rezoning application," Dunkle said. "Mr. Smiley only kept half his promise to not vote on Governor's Square Tuesday night. He spoke of the transparency of the process, but this part of the process was very opaque."

Councilmen Bob Weiner and Tom Kovach said they were upset to learn that they had inadvertently voted to lift the deed restriction. Weiner and Kovach said they did have copies of the resolution, but didn't look at them because there was no clue on the meeting's agenda that it had anything to do with Governor's Square III.

"The council was tricked into voting on half the approval of Governor's Square," Weiner said. "This was clearly in conflict with the standard procedure of what appears on the consent calendar."

Kovach said he is particularly troubled because he had vowed to recuse himself from all Governor's Square III votes. Dunkle, the Eden Square attorney, works at the law firm of Parkowski, Guerke & Swayze, where Kovach used to be a partner.

"I'm not going to make any accusations because I haven't gotten to the bottom of what happened yet," Kovach said. "But I had a general understanding that nothing regarding Governor's Square would come to a vote Tuesday and it's awful funny that the agenda didn't make a reference to the resolution as having anything to do with Governor's Square."

Smiley said Kovach and Weiner are responsible for their own votes.
"They had a copy of the resolution," he said. "I'm not here to be a baby sitter or to run a training center."

Councilman Jea Street agreed with Smiley, although Street also said he wasn't aware that his vote approving the items on the consent calendar included anything about Governor's Square.

"Councilmen Weiner and Kovach can cry foul all they want, but you can't play the game if you don't know the rules," Street said. "They should have done their due diligence by reading the resolution, but did not."


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