2/2/2016
Development: Shaping New Castle County's future - News Journal

For example, when speculation arose that the DuPont Country Club may be sold, County Councilman Bob Weiner told The News Journal that any new development would be limited by the Unified Development Code, specifically how a project would impact wetlands and mature forests. The course is along Del. 141 and the often-busy Tyler McConnell Bridge.

"Traffic constraints are always a relevant point of analysis" in approving any project, Weiner said at the time.

Development: Shaping New Castle County's future

Xerxes Wilson, The News Journal - 3:37 p.m. EST February 2, 2016

Revamping the Unified Development Code is a priority of New Castle County Executive Thomas P. Gordon

The balancing act between attracting new building projects and keeping traffic and neighborhood quality-of-life issues in check continues for New Castle County Executive Thomas P. Gordon, whose ambitious, multiyear effort to revamp development standards has been sidelined by delays.

The overhaul, which has been the subject of numerous public meetings and thousands of dollars in consultant fees, has faced continued setbacks as county officials wrestle with how to address ongoing concerns about congestion while not stifling future projects.

"There always has to be a balance. This is the difficult thing,” said Christine Whitehead, vice president of the New Castle County Civic League, which represents various neighborhood groups and who has spent months involved in the conversations. “There has to be a balance between the ease in which investors can come in and start new projects and what happens as a result to the neighbors."

The discussions are being closely watched by both business leaders and community groups because any change to the code would have a lasting impact on future developments in the unincorporated areas. The county also has had to fight lawsuits because of different interpretations to the current code.

Gordon said modernizing the rules regulating development has turned into a political juggling act, especially as developable land becomes more and more prized.

"We do have a difficult problem weighing economic development and quality of life," he said.

The proposed revisions, which would require County Council approval, are to the Unified Development Code, a 515-page document that provides standards for projects being approved by the county Land Use Department.

The code is wide-ranging and detailed, touching on issues from allowable building height and subdivision designs to how developments impact traffic, sewer service and the environment. Any new building or renovation needing a permit has to meet the code, making the document a kind of master blueprint for all future projects.

For example, when speculation arose that the DuPont Country Club may be sold, County Councilman Bob Weiner told The News Journal that any new development would be limited by the Unified Development Code, specifically how a project would impact wetlands and mature forests. The course is along Del. 141 and the often-busy Tyler McConnell Bridge.

"Traffic constraints are always a relevant point of analysis" in approving any project, Weiner said at the time.

Since then, additional golf courses have been eyed for possible development.

The code was approved during Gordon’s first administration, in 1998, but has since been criticized by developers who say the permitting process is still cumbersome and there are unclear standards, especially regarding traffic. Parts of the code, for example, require developers to make improvements on nearby roads to reduce congestion introduced by their project.

The Caesar Rodney Institute, a Delaware-based conservative think-tank, in 2012 said New Castle County building rules also led to stifled economic development, resulting in a loss of 5,500 individuals and $560 million of adjusted gross personal income from out-migration from 2005 to 2010.

Although the rulebook has had more than 100 minor tweaks over the years, the Land Use Department today estimates major projects can take up to two years to get approved.

Delaware State Chamber of Commerce President Richard Heffron said the length of time has given the county a bad reputation among businesses looking to create jobs.

"Lets say you have a market and you need to get stuff out. You want to do things as quick as possible,” he said. “Especially, if you are borrowing, time is money. It is just that simple. Successful businesses are not used to wasting a lot of time.”

Legal issues face county 

Developers also have taken the county to court over the code’s language. Toll Brothers, a prominent national homebuilder, for example, is suing over the approval process for its housing project on the former Hercules Golf Course on Lancaster Pike.

But the biggest legal headache has been over Barley Mill, a controversial commercial and residential development near Greenville announced in 2008 that triggered a wave of disapproval from residents. Much of the opposition was over the amount of projected traffic.

Gordon made Barley Mill a political issue during his 2012 election and the approval process overseen by then-County Executive Paul Clark. He said the code allowed too many ways to get around rules regarding traffic levels, and called for a major overhaul of the code.

He eventually hired Eileen Fogarty, who had experience as a planner in California and Virginia, as general manager of the Land Use Department. The county also allocated $400,000 to pay planning professionals to draft revisions to the code, and a series of meetings were held.

One of those who became interested is Jerry Heisler, principal of the Reybold Group, a building group currently redeveloping the closed Avon manufacturing site on Ogletown Road near Newark. He said it’s well known among developers that the county approval process is challenging.

"Does the county move as fast as smaller municipalities? The answer is no," he said. "If we are going to entice businesses to come here, we need to have a process you can get in and out of in a year."

He pointed to the Avon project, where 600,000 square feet of apartments, office space, retail and dining are planned. County Council approved rezoning the property last year, but Heisler said he’s working with state officials on what highway improvements will be necessary before the project can move forward.

He said regulation tied to traffic remain the biggest cause of delays and unpredictability in the project approval process. Heisler said it’s partially because of the time involved going through the process, as well as the potential cost of fixing intersections to get approval for the development.

"Traffic has a very chilling effect on your ability to develop in New Castle County," Heisler said. "Some of the costs could be $5 million to $10 million, and developers just can't do [that].”

3 proposals offered

Fogarty retired in March, but not before starting the process that has thus far resulted in three proposed law changes to modernize the code, all which require approval from the County Council:

• The first would provide a set of guiding principles for future projects, making sure developments fit the scale and architecture of surrounding neighborhoods. 
• The second would create a new tool for communities to install stricter design rules in certain areas.
• The third would allow for a special zoning district where industrial projects could be fast-tracked through the approval process. 

 The measures were introduced to the County Council in September and were expected to be voted on by Jan. 1, but the effort stalled because of legal questions.

Former County Planning Board Chairman Victor Singer, who studied the proposed changes for the civic league, said the new rules don’t go far enough emphasizing current traffic restrictions and may provide developers with a loophole. He speculated the new rules will shift more regulatory power to the County Council, rather than having standardized guidelines for major projects.

Singer said he is concerned the legislation would set up situations where residents must fight for the full application of traffic and environmental protections with each project.

"One of the lessons taught by the Barley Mill Plaza action, which went to the [state] Supreme Court, is that it cost a fortune. It happened to be in a neighborhood where the houses are big enough and the people have deep enough pockets where they were willing to pay the fare," Singer said. "Where else is that going to happen? That is why you need an overall set of requirements."

In response to Singer's concerns, county land use planners are adding language to the proposed updates to emphasize that existing traffic regulations will not be superseded by changes to the rules.

The new ordinances have not yet been made public.

Paul H. Morrill Jr., executive director of the Committee of 100, a business lobbying group based in Wilmington, said the ironclad language isn’t needed, especially in the economic empowerment zoning district.

"In its original form, it left the door open as part of the initial district establishment process to look at traffic in a different way, rather than going by the book," he said.

Morrill said such a change is a big disappointment.

“I give [Gordon] credit for introducing some reforms. Though he hasn't gone as far as we want.”

Gordon said it was never his intent to provide a way around current traffic restrictions.

“Nobody understands better than me our roads are too congested," Gordon said. "I'm not about to create a loophole for developers to get around level of service."

Agreement among groups 

The business community and civic league do agree that there should be a fresh look at how the county forces developers to improve nearby roads when congestion is projected.

Heisler said regulators should consider using a different method for calculating future traffic problems and the solutions developers help fund.

"We are fixing intersections, but we are not really fixing our road systems," Heisler said. "We are taking public policy dollars and investing in intersections, but we are not really looking at the whole system with each project. That is not a good way to work."

Whitehead, the civic league official, for example, pointed to legislation in the Delaware General Assembly last year to allow for more density in certain areas, in an effort to improve walkability and use of public transit. Gov. Jack Markell also recently started a special task force to examine ways of improving pedestrian access.

Gordon also said it is time to look at a new way of measuring traffic impact in northern New Castle County.

“It is important we take a step back and look at how these things are working," Gordon said. "We do want to look at doing some things differently, but if you jump too fast, you scare everybody."

The three pieces of legislation that comprise this phase of the development code update are now set to be debated by County Council this summer. Two more phases of code updates will follow, but it is unclear when changes might come to traffic regulations.

Whitehead said there is growing momentum to address the traffic planning issue, and county officials recognize community groups are paying close attention.

"I think the leadership is aware that if we are not careful, we can be run over," she said.  "You may be comfortable in your home and property today, but if you are not vigilant, you may find yourself tomorrow with a problem."

Contact Xerxes Wilson at (302) 324-2787 or xwilson@delawareonline.com. Follow @Ber_Xerxes on Twitter. 

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