June 4, 2003

Pending legislation to mandate that all new residential development comply with more stringent requirements for preserving open space and natural resources received general support -- albeit some of it heavily qualified -- at a public hearing before the New Castle County Planning Board.

Councilwoman Karen Venezky, who is sponsoring the ordinance, which clearly would be the most sweeping change in the Unified Development Code since its adoption, said it meets half of the 'core goals' in the county's comprehensive plan, "completes what we started with the [code] and places [the] environment first."

Primary provision in the proposed law is that developers set aside at least half of the land in every subdivision as open space and, in larger communities, dedicate half of that to be a managed natural-resources conservation area. Drainage ponds, which have become common features of the suburban landscape during the past decade or so, would give way to systems to control stormwater with vegetation and by other natural means.

That, Venezky said, is tantamount to stepping aside "and let[ting] Mother Nature do her job."

Rather than place consideration of environmental effects well down in the sequence of events during the subdivision review and approval process, they would necessarily have to be incorporated into the subdivision's  initial design.

That approach -- which emulate some practices that have been common for a long time in Europe and are gaining favor in this country -- would eventually change the basic appearance of suburbia, at least its newer components. Strings of individual homesteads with manicured lawns and dwellings of similar size and style, which emerged during the post-Second World War housing and baby booms,

would be replaced by a variety of structures in more compact configurations interspersed among extended splotches of woodlands, meadow, minimally disturbed steams and other pristine features.

"The conservation-design principles put forth in the ordinance offer critical opportunities to help Delaware develop responsibly while protecting the state's natural resource base," Eileen Butler, of the Delaware Nature Society, testified at the hearing on June 3.

Stephen Johns, of the American Council of Engineering Companies, charged that it would "greatly reduce the amount of land available for development."

Beverly Baxter, executive director of the Committee of 100, a development-related trade organization, testified that the version of the ordinance which finally emerged from a quasipulic drafting process violates some basic premises that were established last autumn. Specifically, she said, the proposed law would now apply to all residential development instead of just large subdivisions, emphasizes regulation instead of encouraging voluntary participation, and fails to provide builders with compensating

They're really teed off

How you feel about golf courses might signal how you feel about the proposed conservation design ordinance.

Beverly Baxter, of the Committee of 100, protested against their being disallowd in natural resources open space while such things as stables, day camps and picnic areas are permitted.

Engineer Stephen Johns said banning courses is ridiculous so long as they can pass an environmental assessment test.

"A golf course is not anti-environment," homebuilder Richard Wooden testified.

Ellen Butler, of the Delaware Nature Society, however, supported the ban, saying that greens and fairways eat up large doses of stuff which doesn't get along well with natural growth.

advantages, such as greater housing densities, as inducements.

"We're all looking for ways to protect the environment, but at the same time do something positive in connection with development," she said.

Both Johns and Baxter said that the ordinance requires construction of the originally planned sanitary sewer system in the area of the county south of the Chesapeake & Delaware Canal. The reasoning is that residential lots will necessarily be smaller to economically justify setting aside half of the total development area and their size will not support septic systems. County Council is currently attempting to decide whether the sewer project should be allowed to proceed in its original scope.

Because it will apply only to new development, southern New Castle County is the area that will be most impacted by the conservation design ordinance if it is adopted.

Second only to the question about sewers, they and others at the hearing raised the matter of to what extent the county is willing to permit so-called cluster development; that is, construction of housing of different sizes and presumed values in the same general area.

Richard Wooden, president of the Homebuilders Association of Delaware, took up on a comment made by Planning Board chairman Victor Singer and testified that cluster development "should become the norm, rather than the exception" under the Unified Development Code.

In the southern part of the county, small lots are obviously not compatible with surrounding rural areas, he said, adding that unavailability of townhouses, the suburban equivalent of urban row houses, is the most pressing housing concern in the county.

"If we're serious about being able to control [suburban] sprawl, we're going to have to get serious about clustering," said Lisa Goodman, an attorney who specializes in land-use law.

As the ordinance was being drafted, there were suggestions that builders be given a 'density bonus' in return for employing conservation design techniques. That idea was dropped by the time the Department of Land Use staff finished its crafting of the ordinance.

That was deliberate, according to Charles Baker, general manager of the department. Allowing builders to put more structures on a given tract of land than has been deemed reasonable under the development code, he said, is unwise and apparently unnecessary. Currently, new subdivision proposals average 47% open space, he said.

Baker also supported the concept of the ordinance's going beyond assigning responsibility for maintaining open space to community maintenance organizations supported by mandatory fees levied on property owners within the respective communities to also providing for the possibility that recognized conservation organizations take it over.

Goodman raised a question about relying on the long-term viability of such organizations. "How to bring in third-party conservancies is something that will have to be worked out. ... They will not replace maintenance organizations," she said.

Butler said the nature society currently manages conservation easements on about 1,000 acres throughout the state. While it has the resources to continue to do so indefinitely, she said, there is an understanding that, should that not be the situation in the future, state government will assume the responsibility.

Baker said none of the open space set aside during the subdivision and renewal process under the proposed ordinance will ever be available for development. But he said a corollary of that assurance is that "the community that benefits from the open space ought to pay for it."  Allowing conservation and similar organizations to assume responsibility for conservation easements provides an alternative for community-run maintenance organizations to seek and negotiate for their assistance.

"One of our objectives was to look for means to get maintenance corporations out of [having to care for the natural resources areas] without having county government take it over," Baker said.

Several at the hearing lauded George Haggerty, assistant general manager of the land use department, for having managed the drafting process, which involved about 20 structured sessions with an advisory group representing a broad range of business and community interest and perhaps twice that many individual meetings with affected organizations. Venezky referred to that as a possibly unique example of public participation in drafting significant legislation.

2003. All rights reserved.

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