Written by Robert S. Weiner

News Journal Opinion - May 24, 2013

After the 2011 decision by New Castle County Council in favor of Stoltz Partners, Save Our County, which opposed the smaller compromise plan negotiated between Citizens for Responsible Growth and Stoltz Partners, filed a Chancery Court appeal seeking to overturn the Council’s 7 to 6 rezoning vote of the Barley Mill Plaza from office to commercial.

Unfortunately, defeating the rezoning will not save Barley Mill Plaza from becoming a “sea of asphalt” strip shopping center. A victory will simply increase the shopping center’s size from 450,000 square feet under the compromise, to 750,000 square feet under the original plan that the county already approved for final engineering.

However, if the rezoning is upheld, Stoltz cannot proceed with construction until after the state Department of Transportation, the county and the community have analyzed highway capacity and taken all the necessary steps to prevent unlawful impacts.

Ordinarily, the community does not participate when DelDOT and a developer make traffic decisions. However, the compromise plan provides extraordinary community protections in binding deed restrictions regarding traffic, reduced square footage and significantly lower building heights – protections that will be lost if the rezoning decision is overturned.

These protections, especially the community’s right to participate in the traffic evaluation process, were the reason for my tie-breaking vote in favor of “the lesser of two evils.”

I respect the view of those who believe it is better to defeat Stoltz Partners by overturning the rezoning and “taking our chances” with a larger project in the future. Sadly, many citizens who opposed the compromise plan were operating under a false assumption. Based on assurances from the Land Use Department (the same department that gave Stoltz approval to submit final engineering plans for the 2.8 million-square-foot mixed-use project), some think that if rezoning fails, and the project proceeds as a “by-right” mixed-use redevelopment, the county will not allow Stoltz (or whoever buys Barley Mill Plaza from Stoltz) to “cherry pick” the strip shopping center and begin constructing it first.

They are trusting the county to require, and the courts to enforce, that the office and residential portions of mixed-use “by-right” plan be constructed at the same time as the strip shopping center.

Unfortunately, the county code does not require all components of a mixed-use project to be constructed in tandem. This “requirement” is unwritten, unestablished policy and not consistently applied. In fact, the county has previously taken conflicting positions on whether each phase of a mixed-use project must be constructed in tandem with the other phase.

Even if county code clearly contained such a requirement, Stoltz could argue that the law was arbitrary and capricious, because it would prevent the very “redevelopment” that the law supposedly encourages. The practical impossibility of achieving concurrent construction, which some citizens are counting on to thwart Stoltz, is the very reason that Stoltz will assert that such an unwritten policy is arbitrary, capricious, unworkable and, therefore, unenforceable (absent a finding that Stoltz had legal “unclean hands”).

If the county attempts and fails to enforce this requirement, it could be liable for enormous damage claims asserted by Stoltz for unlawful delay, which we all will pay through increased taxes.

Regardless of whether a concurrent construction requirement could be beaten in court, Stoltz might decide just to sell Barley Mill Plaza to several builders who would build concurrently. The land along Route 141 could be sold to a shopping center developer. The land closest to Wilmington could be sold to an apartment complex builder.

Finding separate buyers isn’t difficult. Since there are many existing office buildings, Stoltz or its successors, could simply demolish what is needed for construction to start on the shopping center and apartments, while not demolishing other offices to satisfy the office square footage requirement. Demand for new affordable apartments is still very strong. The improving economy supports high-end shopping centers again.

If the rezoning is reversed, Stoltz could sell to builders who would immediately start construction of the first commercial buildings on Del. 141 and residential towers overlooking backyards in Westover Hills and Westhaven, as already conceptually approved by the county’s Land Use Department.

While no one likes the choices forced upon the community by Stoltz Partners’ business strategy, the compromise plan was and is the best choice available under these circumstances.