Supreme Court: County can make developers improve traffic

The Delaware Supreme Court has affirmed New Castle County's ability to reject a development proposal over concerns about traffic near the project.

The ruling, for now, puts to rest a long-running legal challenge that sought to undercut the county's traffic and development rules, regulations that have been criticized by developers as "unfair." It also opens the door for a new development plan for the former Hercules Country Club in Mill Creek.

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The lawsuit stems from an attempt by Pennsylvania homebuilder Toll Brothers to override the county's rejection of plans to build 263 homes on the 200-acre property that straddles Red Clay Creek near Lancaster Pike and Hercules Road.

The course, which was founded by the chemical company Hercules Inc. in the 1930s, closed in 2010 and was then known as Delaware National Country Club.

At the center of the lawsuit are county laws meant to limit traffic congestion by gauging the effect of a proposed development on nearby roadways. The impact is measured by how long it takes motorists to get through intersections.

If a nearby intersection is deemed failing by traffic analysts, the county can’t approve a development nearby unless the builder agrees to make sometimes-expensive road improvements. Measures can include widening roads and adding turn lanes and traffic signals.

Developers regard the result of this rule as unfair because it puts the expensive burden of fixing an already congested road on their particular development instead of spreading the cost more evenly.

In the case of Hercules, the intersection of Lancaster Pike and Centerville Road was already considered failing before the projected traffic from the country club development was factored in. Previously, DelDOT outlined a $3.5 million fix, and Toll Brothers had agreed to pay $1 million of that, according to the company's lawsuit.

Despite DelDOT's satisfaction, that solution was rejected by county planners, who said it would be inadequate to solve the traffic problem at the intersection. The project application expired as litigation dragged on.

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Toll sued in 2015, arguing that DelDOT should be the final arbiter on traffic issues and the agency's endorsement of a larger fix should compel the county to approve the development.

Toll argued the development would account for only 1 percent of congestion so immediately paying the $3.5 million cost DelDOT outlined was disproportionate. Toll also argued that because the intersection was already failing, the development wasn't driving it into failure and should be approved.

But the law also states the county shall approve a project when "acceptable levels of service will be maintained," a Superior Court judge wrote. The court found the intent of these laws is not only to bar developments that create new congestion but limit the increase of existing congestion. The court also found precedence, and the law gives final authority to the county.

"When it comes to traffic, DelDOT plays merely an advisory role," said attorney Sid Liebesman, who represented the county in the case. "That is the takeaway."

Last week, the Delaware Supreme Court upheld that ruling, which attorneys for Toll had challenged.

"Any other project that is pending or that comes in the future, the Superior Court decision affirmed by the Supreme Court will be something the citizens always have to their benefit," Liebesman said.

The final tab is unclear but as of Dec. 5, the county had spent $62,000 on outside counsel fighting the lawsuit.

County Councilman Bob Weiner, who represents the area, called the ruling a "victory for transparency."

"The courts have upheld a well-established principle that local land use decision making was delegated to local government, which is in the best position to evaluate the impacts and infrastructure limitations upon proposed development projects," Weiner said.

The end of litigation means local developer Gregory Pettinaro, who owns the land, can move forward with a new attempt to develop the property.

Earlier this year, Pettinaro said he was committed to working with the county to get approvals for the same development Toll Brothers proposed.

At the time, Pettinaro said his company was exploring paying the full, $3.5 million to $4 million cost to rework the intersection. He said those discussions, along with potential state money helping cover the cost, will be ongoing in the coming months.

Rush-hour traffic flows earlier this year along Lancaster Pike at Centerville Road, near the former Delaware National Country Club. New Castle County Council is weighing tweaks to the rules that dictate new building. 

All eyes will be on Pettinaro in the new year as he will likely float development plans for two controversial parcels that have seen the Delaware Supreme Court weigh in on recently. He could not be reached for comment.

In addition to Hercules, Pettinaro is expected to present plans to develop Barley Mill Plaza in Greenville. Plans to build a shopping center and residences on that former DuPont Co. office park touched off an intense battle with residents over traffic worries five years ago.

The development later resulted in successful legal action against New Castle County's rezoning of the property, which was approved without consideration of traffic impact. The development proposal was ultimately shelved and Pettinaro acquired the property for $27 million earlier this year.