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4/21/2013
Court considers fate of Barley Mill project in case expected to impact development across Delaware - News Journal

DEBACLE OR COMPROMISE: Court considers fate of Barley Mill project in case expected to impact development across Delaware


By Maureen Milford and Adam Taylor
Contact Maureen Milford at 324-288 or mmilford@delawareonine.com.
Contact Adam Taylor at 324-2787 or ataylor@delawareonline.com.


Soon after top New Castle County officials helped craft an agreement in late 2010 between a community group and the developer of a massive commercial project in Greenville, the county’s own planners privately mocked the scaled-down development called for under the compromise.

“I am thrilled to be part of this historic debacle that will forever scar this area,” land planner Michael Ben-nett wrote in an April 2011 email to assistant planning manager director Kenneth Bieri.

Bieri fired back: “You know – it’s so sad, it’s no longer funny!!”

The behind-the-scenes ridicule of the Barley Mill Plaza redevelopment planned for Del. 141 and Lancaster Pike stands in stark contrast to the upbeat portrayal of community cooperation presented by Stoltz Real Estate Partners.

“Some might think this compromise plan could be held out as an example of the land use process func-tioning properly,” Stoltz’ lawyers and county council say in legal documents.

Now, it’s up to a Delaware judge to determine if the 2011 rezoning of onethird of a 92-acre office park for conversion to a regional mall was a triumph or a travesty. Chateau Country homeowners, county officials and the developer will all have their day in Chancery Court on Monday.

The stakes are high, for the state’s wealthiest community and for development across Delaware. The case will decide whether Stoltz’s Barley Mill LLC moves forward with a new retail complex that will transform the pastoral appearance of the suburban Wilmington corridor.

The case also is expected to impact Delaware’s development process, determining whether an ex-pensive traffic impact study must be completed, reviewed and considered by a county council before any vote on a rezoning.

Save Our County citizens group and four homeowners near Barley Mill Plaza are appealing the rezoning to commercial use of 36.8 acres, saying the county council erred by not receiving and analyzing traffic data before the vote.

“You have to have a traffic study before you risk destroying a neighborhood and state law requires that,” said Tom Neuberger, a Wilmington attorney and one of the homeowners near Barley Mill. “The second reason I’m a plaintiff is somebody has to stand up to Stoltz. You can’t bully a community.”

If Save Our County is successful, the developer, who paid a rich price of nearly $1 million an acre in 2007, will be faced with hard decisions. Stoltz could opt to go through rezoning again or return to the original plan of a 2.8 million-square-foot project. It could decide to come up with an entirely new plan.

Stoltz and county council say there is no legitimate basis to reverse the rezoning because they “acted precisely as the law demands” and did not “bend to any prevailing breeze, but instead rationally and fairly interpreted and applied” state and county law.

Some say a favorable decision for the community group would add risk to real estate development in Delaware, forcing developers to produce costly traffic studies early in the process.

“It could mean that future projects seeking a rezoning will require the developer to make significant expenditure upfront without knowing whether the rezoning gets approved,” Richard Beck, a land use attorney involved in reaching the compromise for the project as a member of Citizens for Responsible Growth.

But for land use attorney Larry Tarabicos, a Save Our County win will help restore confidence and credibility to the development process.

“It’s never good for people in my business when there’s a land use decision that casts doubt or suspicion on the land use process,” Tarabicos said. “When you vote on a rezoning without full in-formation, including traffic studies, it creates doubt and suspicion.” 

Compromise critics 

After years of political battles, community conflict and cronyism claims, the fate of the Barley Mill project rests on highly technical legal arguments outlined in hundreds of pages of dry court briefs.

But the battle outside the court, with dramatic political twists and turns, has received the most at-tention.

At the center is the work under Chris Coons, now a Democratic U.S. senator who as New Castle County executive in 2010 helped craft the agreement between Citizens for Responsible Growth and Stoltz that has triggered so much opposition.

Neighbors have long harbored suspicions that the land approval process had been tainted by political influence exerted by Stoltz. Not only was Stoltz’ former attorney, Pam Scott, married to the former county council president and county executive, Paul Clark, but she helped craft the compromise , a News Journal investigation found. Scott and lobbyist Roger Roy also worked behind the scenes at the Delaware Department of Transportation to ease the process, emails and department documents show.

Coons’ compromise became the subject of criticism even within the county, and those internal criticisms have made their way into the lawsuit challenging it.

Save Our County argues in its briefs that the plan did not conform to the county comprehensive plan or maps. The map for Barley Mill Plaza is for “community redevelopment.” The rezoning is for commercial regional.

“The rezoning for a ‘regional’ shopping mall – approaching half the size of Christiana Mall and obviously intended to draw shoppers from the tristate area – is anything but oriented to the ‘community,’” Save Our County says.

Indeed, there were some county planners, like Bieri and Bennett, who agree the compromise does not fit the comprehensive plan. In an interview last week, they said the compromise eliminated the most important element – that it be mixed use. To them, it’s also a poor use of land that already has infrastructure in place. The earlier plan could have been made more palatable to neighbors by softening the mass of the buildings using such things as subterranean parking levels.

Now, Chateau Country will just get another “typical strip center with pad sites,” Bennett said.

“Senator Coons, then the county executive, negotiated a compromise that was significantly inferior to the original plan,” he said.

“And the compromise plan was exactly what Stoltz wanted,” Bieri added. 

Five-year fight 

The lawsuit is a culmination of five years of antagonism between the Stoltz organization and some of the state’s most powerful and moneyed residents, including du Pont family members and executives of major corporations.

After buying the nearly 100-acre parcel in 2007 for $94 million, Stoltz filed its massive mixed-use plan in the spring of 2008. Neighbors immediately mobilized as Citizens for Responsible Growth to fight the project. The truce reached in late 2010 eliminated the project’s residential component and reduced the commercial and office space, decreasing the total square footage to 1.65 million from 2.85 million. The proposed development would take up about a third of the property and require a rezoning from regional office space to regional commercial. The agreement was hailed as a model of cooperation, but not everyone was happy. Eight freestanding building sites – the equivalent of 10 football fields – would dot Del. 141 with restaurants and retail. One group of residents thought the plan was more intrusive and intensive than the earlier one. They formed Save Our County. Nevertheless, the re-zoning passed in October 2011. Save Our County sued two months later, naming the county, county council and the developer.

Tom Gordon changed the dynamic again when he returned to office last year as county executive, immediately siding with Save Our County. The change adds a legal twist to the case, with the county still a defendant, but supporting certain arguments raised by Save Our County. 

Argument for study 

The heart of the community group’s argument is that the rezoning is illegal because an analysis of the traffic impact was not considered before the rezoning.

According to Save Our County, state law requires the county council to determine the “effects of ex-isting traffic, projected traffic growth in the area surrounding the proposed rezoning classification and the projected traffic generated by the proposed development” before approving a zoning classification. In addition, the county’s development code requires traffic data and analysis be submitted to the land use department prior to the council vote, the citizens allege. “And that was not done here,” their brief states.

To turn “a blind eye” to the effects of traffic was irrational and arbitrary because the roads were al-ready at marginal levels and a major concern of neighbors. “The traffic effect is first on the list of disruptive elements that would have an irreparable deleterious effect on nearby properties. Yet it was not considered at all, and deliberately so,” the neighbors allege. “On the record presented here, this was the height of irrational, arbitrary and capricious inaction, followed by an irrational, arbitrary and capricious vote.”

Other decisions that are contrary to county law should result in the rezoning being thrown out, Save Our County says. Under the development code, a rezoning should consider if the development is consistent with the character of the neighborhood and the zoning and use of nearby properties, the group says. 

Traffic dispute 

To Stoltz and county council, the lawsuit is really “about one word: traffic.” But state law doesn’t allow the community group to bring a lawsuit, say the developer and county council. The law is intended to encourage cooperation between the state and county, the developers and county council say in their brief. Within that law, there is no enforcement mechanism to challenge the county or state for not complying with the statute “nor any language even so much as suggesting that the General Assembly intended to allow private individuals to bring claims challenging the provisions of this statute, which directs governmental entities to take certain actions.” They cite a 2009 Chancery Court opinion that states there is no reason to believe the General Assembly intended to give private citizens the right to sue to enforce it. The law also says the traffic analysis must be conducted as “part” of the rezoning reclassification process. County council’s vote on a rezoning does not end the zoning reclassification process, but continues until the plan is recorded, Stoltz and county council say. A plan can’t be re-corded without a “letter of no objection” from the Delaware Department of Transportation and Del-DOT will not issue the letter until it has finished its analysis and identified the required roadway im-provements, the brief says.

Stoltz and the county council say the project was consistent with the comprehensive development plan. The land use department thoroughly vetted the compromise plan to determine it was consistent, the brief says. Save Our County also has not met the burden to show county council’s de-cision on the rezoning was arbitrary and capricious. There was heavy debate, plenty of public comment and council members publicly gave the reasons for their votes, the brief says. 

Legal drama unfolds 

Save Our County is asking the court to declare the rezoning invalid and wants a “fresh start” on the traffic data and analysis prior to a council vote. “If not reversed, this zoning will have serious adverse effect on travel patterns of thousands of commuters and area residents and will greatly diminish other aspects of quality or residential life for its members by virtue of the light and noise from a large commercial shopping center,” the neighbors say in their complaint. Stoltz and county council are asking the court to affirm the rezoning vote.

The trial Monday is expected to take most of the day. The judge could issue an opinion from the bench or take it under advisement. Either side can appeal to the Delaware Supreme Court. “Anybody who knows me, knows I’m not going away. We will exhaust all our legal remedies,” Neuberger said. 


TIMELINE 

» 2007: Stoltz buys Barley Mill Plaza, a half-vacant DuPont Co. office complex 

» 2008: Stoltz announces 2.8-million-square-foot plan for homes, offices and a shopping center at Barley Mill. Commu¬nity group opposes plan.

» September 2010: Stoltz and County Exec¬utive Chris Coons announce compromise at Barley Mill reduced from 2.8 million square feet to 1.6 million square feet. A rezoning is added, allowing construction of commercial first.

» November 2010: Coons becomes U.S. sena¬tor. 

» February 2011: Citizens for Responsible Growth, which fought Stoltz redevelopment plan, agrees to help Stoltz get the compro¬mise through council.

» October 2011: The council passes the Barley Mill rezoning by a 7-6 margin. 

» December 2011: Save Our County, a splin¬ter group of CRG, sues Stoltz and the county, seeking to reverse Barley Mill rezoning.

» 2012: The county and Stoltz join forces to defend against the lawsuit. 

» November 2012: Tom Gordon takes office as county executive. 

» Jan 4, 2013: Days before trial, Gordon publicly opposes the county’s alliance with Stoltz and county tells court it no longer wants to win the case.

» January 2013: The County Council retains its own counsel. 

» January 2013: Sid Liebesman hired to represent county executive. A county attorney resigns, saying county shouldn’t change posi¬tion in court without telling County Council.

» Feb. 4, 2013: Vice Chancellor Sam Glasscock issues indefinite stay in case after Liebesman announces discovery of documents he says could show wrongdoing in Barley Mill rezon¬ing process.

» Feb. 19, 2013: Glasscock, after reviewing documents, finds no reason to delay trial, reschedules to April 22.

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