April 29, 2013 - UPDATE
Dear friends and civic leaders,
As your New Castle County Councilman for the Greenville, Centreville and Brandywine Hundred west, I wanted to take a moment to comment upon the Stoltz Barley Mill Plaza compromise plan following the passage of that plan at the rezoning hearing by Council on October 11, 2011. As reported in the Wilmington News Journal (attached), Chancery Court is about to render a decision on the Barley Mill project in a case expected to impact development across Delaware.
As most of you are aware, after the rezoning decision by Council, Save Our County (SOC), representing a number of citizens who opposed the plan, filed a lawsuit in Chancery Court seeking to overturn New Castle Council’s 7 to 6 rezoning vote.
Unfortunately, defeating the rezoning will not save Barley Mill Plaza from becoming the site for a “sea of asphalt” strip shopping center or from becoming more intensely developed. 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 has already approved for final engineering.
All residents need to bear in mind that New Castle County Council’s 2011 rezoning vote did not give Stoltz Partners the right to build the smaller compromise plan without regard for traffic.
If the rezoning is upheld, Stoltz cannot proceed with construction until after DelDOT, the County, and in this case, also the community, have studied traffic, analyzed highway capacity and taken all necessary steps to prevent unlawful impacts after construction gets underway.
Ordinarily, the community does not get to participate when DelDOT and a developer make traffic decisions. However, the compromise plan provides extraordinary, and explicit, additional protections for the community regarding traffic and various other concerns. These are protections which our community will not have if the rezoning decision is overturned.
Under the 2011 compromise plan, Stoltz Partners was required to sign (and did sign) deed restrictions giving the community, represented by Citizens For Responsible Growth (CRG) and its traffic engineer, the unprecedented right to participate in the traffic evaluation process along with DelDOT, the County and Stoltz Partners. If the rezoning is upheld, then the deed restrictions will take effect and will require the community’s participation in the traffic evaluation process. This will assure transparency and rigorous compliance with all traffic laws, rules and regulations. The deed restrictions will also provide the community with other protections, such as reduced square footage and lower building heights.
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.” Few outside special development interests want to see Barley Mill Plaza intensely developed – not me, not the other Council Members who voted for or against the rezoning, not SOC and not CRG. But since Stoltz Partners cannot be forced to keep Barley Mill Plaza the same as it was when it was owned by DuPont, I concluded that the safest course of action was to vote for the rezoning in order to assure a smaller project, and citizen participation in the traffic evaluation process.
I very much respect the view of those who believe it is better defeat Stoltz Partners, at least for the near term, by defeating the rezoning, and “take our chances” with a larger project in the future. But I voted my conscience. That led me to favor what I regarded at the time, and still regard, as the safest course of action for our community. Without getting into legalities, there are two major reasons why I did not want to “take a chance” with the much larger project.
First, I believed that many of those citizens who opposed the compromise plan and the required rezoning (and who now hope it will be overturned) were operating under a false assumption. Based on assurances from the Land Use Department (the same Department that has given Stoltz Partners approval to submit final engineering plans for the 2,800,000 mixed-use project), a number of citizens in our community think that if rezoning fails, and the project proceeds as a “by-right” mixed-use redevelopment, then the Land Use Department will not allow Stoltz Partners (or who whoever buys Barley Mill Plaza from Stoltz Partners) to “cherry pick” the strip shopping center and begin constructing it first. They are trusting the Land Use Department 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.
If residential, office and shopping center construction has to proceed in tandem, these same people are counting on this "requirement" to make it impossible for Stoltz Partners or any other builder to obtain construction financing, especially during these economically challenging times.
Unfortunately, nothing in the County Code requires all of the components of a mixed-use project to be constructed in tandem. This "requirement," at best, is simply a matter of unwritten policy. And this “policy” is not even a consistently applied, well established policy. The Land Use Department has previously taken conflicting positions on whether each phase of a mixed-use project must be constructed in tandem with each other phase. In one project, the Land Use Department mandated construction in tandem. In another project, it did not. Unlike Barley Mill Plaza, neither of these projects were massive.
I voted in favor of the rezoning because I did not think it would be prudent to risk our community’s future character on attempting to enforce, against Stoltz Partners, with its $96,000,0000 investment at stake, an unwritten policy of the Land Use Department that has only been applied (and then inconsistently) on two previous occasions.
Even if the County Code clearly contained such a requirement (which it does not), 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 of our citizens are counting on to thwart Stoltz Partners, is the very thing that Stoltz Partners will prove to establish that such unwritten policy is arbitrary, capricious, impractical, unworkable, and therefore unenforceable. If the County attempts and fails to enforce a requirement that is arbitrary and capricious, then I fear that the County will be liable for enormous damage claims asserted by Stoltz Partners for unlawful delay, which every one of us will have to pay through increased taxes.
Second, regardless of whether a concurrent construction requirement could be beaten in court, I believed that Stoltz Partners might decide it made the most sense just to sell Barley Mill Plaza to several different builders who would do their construction at the same time. The land along Route 141 would logically be sold to a shopping center developer for financing and construction. The land closest to Wilmington could be sold to an apartment complex developer and builder for financing and construction. Finding separate developer/buyers, in my mind, is not a difficult proposition, and since plenty of office buildings already exist at Barley Mill Plaza, Stoltz Partners or its successors could simply demolish what was needed for construction to start on the strip shopping center and apartments, while leaving other offices in place to satisfy the office square footage requirement.
Demand for new, affordable apartments is still very strong in New Castle County, and it is rising every day given the lack of inventory. Further, the improving economy is showing support for high-end shopping centers again. Let no one be surprised, if the rezoning is reversed, that Stoltz Partners sells to builders who will hit the ground running with the construction of the first shopping center buildings along route 141 and with the construction of high raise residential towers overlooking backyards in Westover Hills and Westhaven, as already conceptually approved by the County Land Use Department.
For both of these reasons, I opted for certainty, a significantly downsized development and substantial protections for our community, including those on traffic issues. Should the rezoning decision of Council be overturned, for whatever reason, I fear that what will ultimately be built, will be the hellish development nightmare that this community attempted to avoid by seeking acceptance of the compromise plan. Make no mistake, a monsterous retail component will result under any subsequent plan that is built, but only the compromise plan will ensure that retail will remain at a size, scale and mixture that is acceptable given this location. While no one likes the choices forced upon the community by Stoltz Partners' business strategy, the compromise plan, made possible by the rezoning, was and is the best choice available under these circumstances.
Best wishes to all. Bob Weiner, your County Councilman