The Committee of 100 | FYI Archives

At the December 21st Council meeting, New Castle County Councilperson Patty Powell introduced Ordinance No. 04-181, which would put another moratorium on land-use plans in New Castle County. We are still living with the effects of the six-month moratorium which the Gordon Administration put in place prior to adoption of the Unified Development Code (UDC) on December 31, 1997. The aftermath of that moratorium, has lingered with real estate location specialists who still steer businesses away from New Castle County.

The memory of that moratorium, the fact that the UDC has among the most stringent standards in the country, and the continuing perception that the approval process in New Castle County is one of the most difficult and time-consuming, join to make attracting businesses to New Castle County difficult. We've been working since 1997 to amend the UDC to make it more workable and we've been pressing for a speedier, more consistent, approval process to make the impact of the UDC and its approval process less onerous. There have been some solid accomplishments, including the Redevelopment Ordinance and several omnibus UDC amendment ordinances.

Now, just as we're seeing some progress, Councilperson Patty Powell is calling for another moratorium. In Ordinance 04-181, Councilperson Powell claims that a moratorium is necessary “to ensure that future development and its associated demands in the County do not contribute to future flooding catastrophes.” This ignores the fact that the recent flooding has resulted from development which was constructed prior to the current stormwater management requirements of the UDC. Councilperson Powell proposes to stop development which–unlike development from the past–would be subject to the most stringent stormwater management requirements in Delaware and the surrounding states. Indeed, new development, in addition to ensuring that it will not cause any flooding, often ends up addressing existing flooding problems.

Councilperson Powell is calling for punishment of the future for sins of the past. While her target is any and all development in New Castle County, she will be shooting down not only immediate economic development, but also, the potential for new businesses and new jobs in the future. If New Castle County gets labeled again as a place closed for business, we will have a hard time overcoming this second onslaught of anti-business legislation.

In addition to calling for a moratorium, Ordinance 04-181 has many other problems. First, it gives power to–and places expectations on–the Governor and the General Assembly to determine when the moratorium ends. The moratorium would be effective “upon passage” of the ordinance and end on March 30, 2005 “or at such earlier point in time as the County Government, the Office of the Governor of the State of Delaware and the General Assembly of the State of Delaware have concurred on a means to resolve the recent flooding problems that have occurred within the County, including appropriate means to alleviate the economic losses and burdens that residents of the affected areas have suffered.” It requires “recrafting of County Code sections on drainage and Land Use application requirements regarding drainage, among others.”

Second, the moratorium is inclusive. “All applications” are “stayed,” for processing and approval of any new zoning applications, minor plans, major plans, re-subdivision plans, conditional use applications, floodplain applications, traffic impact studies, or “other special studies, the purpose of which is to accommodate additional development not previously approved.”

Third, although “land-use action requests” made prior to passage of the ordinance are not considered “new,” if any of those prior applications are deemed unacceptable, they will be considered “new” and subject to the moratorium.

Fourth, the ordinance ties these land-use applications to the Comprehensive Development Plan Update initiatives in a way that is unclear. The new applications subject to the moratorium include any plans which “will impact on” Comp Plan initiatives, including, “1. public health and environmental safety surrounding wastewater treatment and groundwater quality; 2. floodplain and drainage; 3. inter-governmental coordination and annexation; 4. defining areas best able to accommodate future growth; and 5. establishment of areas of growth management and agricultural preservation.” Just what this means and what impact it will have is not clear.

Fifth, the concluding date for the moratorium is unclear. While paragraph A indicates that the moratorium is to end on March 30, 2005, paragraph D says that, “After March 30, 2005, all requests for land use actions subject to the provision of subsection A above will continue to be accepted by the Department of Land Use and date-stamped for processing.” But then the ordinance says, “These requests will be processed in the order received following adoption by the County Council for all related New Castle County Comprehensive Development Plan Update legislation.” The Department of Land Use is just now beginning the process of preparing for the update of the County's Comp Plan. The Comprehensive Plan Update is not expected to be complete and ready for Council's adoption until 2007!

Sixth, paragraph E says, “the construction” of public owned facilities, such as schools, prisons and other infrastructure shall be exempt from the provisions of this ordinance,” but doesn't exempt new applications for public facilities. It is new applications, not construction, which is impacted by the moratorium.

Seventh, paragraph F discusses hardship exemptions, but the paragraph is unclear. Among other things, it reads, “In order to qualify for this hardship exception, the applicant must provide evidence to the County, no later than January 30, 2005 that 'but for' the adoption of the Ordinance, the applicant's land use application would have been submitted by January 15, 2005.” What difference the timing of one's application makes in determining hardship is unclear. What is intended by this paragraph is uncertain.

Eighth, paragraph H provides for a waiver from County Council for “rare instances of critical need or unique circumstances,” but the ordinance doesn't define either.

Ninth, the fiscal note is incomplete. Ron Morris, New Castle County Chief Financial Officer, wrote in the fiscal note that, “the immediate fiscal impact of this ordinance will be the postponement of planning revenues for the third quarter of FY 2005" which will be approximately $136,000. He adds that licensing revenues would also be delayed and, even with “catch up” after the moratorium is lifted, there would be a loss of $134,000 to $268,000. The biggest impact, though, is unknown. Ron notes that the impact on new assessments, which are triggered by the issuance of Certificates of Occupancy, “will require further research.”

The introduction of this Ordinance alone may cause damage. A resounding defeat by responsible members of County Council may serve to protect the County's economic health.