The Committee of 100 | FYI Archives

On March 11th, New Castle County Councilperson Patty Powell introduced Ordinance 03-024, a revision to the Unified Development Code's so-called "Clean-Hands" provision. Currently, Section 40.31.901 D provides that, "no land use application shall be granted by any board, Department, or Council if the applicant is not in good standing with New Castle County." "Not in good standing" means that the applicant is "delinquent in the payment of monies owned to the County" or is "in violation of the Code." Code, in this instance, means the UDC.

It appears that a creative attorney claimed that his client, who was in violation of the Code, was not subject to the provision because he was not the "applicant," merely the owner. While the County expects to win this legal challenge, the Department of Land Use said it wanted to clarify New Castle County Council's original intent, and the Law Department drafted an amendment which expanded the clean-hands provision beyond any reading of the existing Code.

Ordinance 03-024, as introduced, would deny any land-use application if not only the "applicant" was in violation of the Code, but also, "the property owner, equitable owner, any individual with a 5% or greater controlling interest in the property, corporate officers, general partners, limited partners, directors, corporation, partnership, or other legal entity." In addition, "violation of the Code" was expanded beyond the Unified Development Code to include the entire New Castle County Code.

Beverley Baxter testified at the April 1st Planning Board Hearing (testimony attached). On April 23rd, New Castle County Department of Land Use General Manager Charles Baker and Assistant General Manager George Haggerty met with representatives from the business community to discuss problems with the Ord. 03-024, as drafted, and find a way to address the County's very real problem of applicants/owners who repeatedly violate the Code. Beverley and The Committee of 100 Land Use Committee Chairperson Juli Hammond of Blank Rome and member Pam Scott of Saul Ewing joined with representatives from the New Castle County Chamber of Commerce, Delaware Contractors Association, Associated Builders and Contractors, and Home Builders Association of Delaware as well as County Councilpersons Karen Venezky and Bob Woods to address the Department's concerns in a more targeted and viable way. The consensus included expanding "applicant" to "owner" and "equitable owner" (with a careful definition) and expanding "Code" to a listing of pertinent codes, including the UDC, the drainage code, the building code, and the maintenance code. The Department will draft a substitute.

Delaware Senator Tony DeLuca's Senate Bill 43 requires that all corporate or limited liability company "applications for rezoning, variance from zoning restrictions or subdivision approval" must identify by name and address not only the owner, but also, "all officers, members of the board of directors, and shareholders or members of the organization" and the same information for partnerships. Shareholders or limited partners are exempt only if there are more than 100. Purchasers or potential purchasers must "be identified in the same manner."

TIS For Minors Study Results

In 1999, a daycare submitted a minor plan in New Castle County Councilperson Karen Venezky's district. In response to a safety concern over insufficient stacking distance for cars dropping off children, an ordinance was drafted that, instead of addressing the particular problem, would have subjected all minor plans to a Traffic Impact Study (TIS) and to the County's Level of Service (LOS) requirements. After Karen introduced Ordinance 99-146, it became apparent that the Ordinance would have a devastating impact on economic development in New Castle County.

In response, Karen called into session her Small Business Commission (SBC) and this group, with expanded membership, worked for over a year on the issue and determined that the most important solution to addressing congestion (which had become the major issue) was to fix the County's failing intersections. Working with DelDOT, WILMAPCO, and the NCC Department of Land Use, the SBC crafted criteria for prioritizing the County's most congested intersections and called for WILMAPCO's TIP and DelDOT's CIP to include their improvement. In response to WILMAPCO's subsequent review, the intersections were included in the WILMAPCO congestion management program.

However, some civic activists continued to lobby for passage of Ord 99-146, in spite of its clear negative impact on economic development, especially for small businesses. Some of these activists saw Ord 99-146 as a way of achieving their goal of stopping development they didn't want. As a result, the Department of Land Use commissioned consulting firm Public Works to do "an independent assessment of Ordinance 99-146." In a cover letter to Councilperson Venezky which accompanied a copy of the study results, Department of Land Use General Manager Charles Baker wrote, "Public Works has concluded that, while the change to the UDC could cause some minor plans to undergo the TIS process, the underlying problem of traffic congestion would still not be fixed. Public Works concludes that the ultimate solution would be to continue to work with DelDOT to address the failing intersections and to strike a clear agreement with DelDOT to have the traffic congestion problems addressed."

In his letter, Charles Baker also pointed out negative impacts of Ord 99-146. "The majority of the minors that would have reached the threshold for a TIS were services that are generally needed for existing and growing residential communities. . . . The majority of these plans were infill development sites that would not necessarily generate new traffic to the area, instead, they would be taking advantage of the existing traffic on the road that needs or desire these services." In addition, "the Department is concerned that if these businesses cannot locate in already urbanized areas that they will seek out more rural, greenfield sites and thus continue the cycle of sprawl."

The Land Use Manager also expressed concern about the additional time and cost this ordinance would add to the process. "The time for the completion and review of the TIS could add up to one year to the development process," and, "for smaller, infill sites, this cost may make the project more marginal. . . . The minor size of the development versus the costs of the improvements may again force the applicant to seek other, less desirable locations and decrease opportunities for redevelopment or appropriate infill." He concludes, "the passage of this ordinance may have unintended consequences of pushing needed services into less developed portions of the County because those areas may have more capacity in the intersections. Again, this begins the cycle of sprawl in parts of the county that may not be prepared for growth."

Echoing The Committee of 100's position since 1999, both the Public Works study and Charles Baker's letter clearly show that Ord 99-146 would cause far more harm than good. The next step will be ordinances to address stacking at daycare centers and safety in high-traffic minor plans.