March 13, 2003

Plans to build a Seven-Eleven convenience store and gasoline station on Philadelphia Pike midway up the slope of Penny Hill, which has drawn intense community opposition for several months, have been scrapped.

That surprise announcement was made by Andrew Taylor, lawyer for Carol Harrington, who owns a house said to date to Colonial times on the one-acre site, at a New Castle County Historic Review Board public hearing. Later in the session, the board agreed unanimously to recommend to County Council that it establish an historic overlay on the property.

If approved, that will trigger more stringent protective measures in connection with any future development. Councilman Robert Weiner, who represents the area, told the hearing on Mar. 12  that he will introduce legislation to establish the overlay as soon as he receives the necessary paperwork. Approval by Council is considered at this stage as little more than a formality.

Harrington, however, testified that the house, associated with several generations of the Weldin family, one of Brandywine Hundred's pioneers, is in imminent danger of falling down. "What you're saving may not be saveable," she said.

Taylor said that an option  to purchase the house, held by an unidentified developer who would have built the store and station for the Seven-Eleven unit of Southland Corp., had been cancelled two

days earlier -- evidently in light of an adverse finding by the Delaware Department of Transportation concerning suitability of the site for the intended use.

Secretary of Transportation Nathan Hayward came to the hearing  to testify that informal conversations by DelDOT staff with the prospective developer led to the conclusion that having such an establishment at the three-way intersection of Philadelphia Pike, Marsh Road and Lore Avenue would be a "difficult and unsafe" proposition. Specifically, he said, there is not enough room for a gasoline delivery truck to make a turn off

The Weldin House

Lore Avenue into the site. "It just doesn't work," he said, adding that DelDOT is not of a mind to "make an accommodation for this particular situation" by widening Lore Avenue, which beyond the immediate vicinity of the intersection is essentially a neighborhood street.

He explained that that conclusion was reached "in the spirit of cooperation which we are trying to encourage" although the developer had not filed a formal development proposal with the county Department of Land Use. DelDOT is required to evaluate such plans from a transportation perspective as part of the approval process.

Hayward  then went on to say that DelDOT is going even further to deal with this situation and is negotiating with Harrington to purchase an historic conservation easement. In return for receiving an as-yet-undetermined amount of money, she would agree to permanently bind the property in a way that would preclude future development or use in a manner which would compromise the building's historic character. The payment would be financed through the federal 'traffic enhancement' program which is intended, among other things, to protect cultural resources, he said.

Weiner immediately lauded the transportation secretary for having "done a very courageous act" in initiating the easement. "This is the first time the Department of Transportation has done this," the councilman said, noting that past department policy appears to have been to do whatever it could to facilitate development.. Hayward gave an 'aw shucks' response, saying that the move was not intended to establish a new policy, but was simply a matter of "wanting to do the right thing" after reviewing the facts of a particular situation. "We're trying to maximize the value of your tax-paying dollar," he added.

While the appearance of a member of the governor's cabinet at a proceeding such as an historic review hearing is unusual in itself, it served in this case to underline the linkage of the Seven-Eleven dispute with a major state economic development project on nearby Governor Printz Boulevard. Hayward had come before the board a month earlier in support of granting a demolition permit for the one-time Delaware Oldsmobile showroom to permit construction of a multi-million dollar data processing center there by Bank One. Earlier, at a meeting of the Fox Point Association, he had promised to do what he could to support opposition to the gas station-convenience store in return for the umbrella civic association's support of the bank project.

Be that as it may, both board chairman John Shields and Taylor raised the possibility that the historic overlay could be challenged by an 'illegal taking' lawsuit. The Bill of Rights in the U.S. Constitution forbids seizure of private property by a government agency without just compensation to the owner. Courts have ruled that limiting the economic potential of a property without offsetting the resultant decline in its value amounts to a 'partial taking' in that regard.

Nannette Swadey gave the board a memorandum of law on behalf of the Friends of Penny Hill, the group opposing the Seven-Eleven and razing of the Weldin house, which argues that an historic overlay in not a government 'taking' because it does not preclude commercial development of the site. There are already two small businesses there and Shields pointed out that the overlay does not alter a site's underlying zoning classification. In this instance, that is neighborhood-scale commercial use.

Several members of the Friends group testified that that organization has no objection to such use, even to the point of converting the house itself into professional offices.

Barred by board member Thomas Crumpler from straying from the point at issue, the overlay, in his presentation to the board, Taylor said 'partial taking' is "an issue that may have to be dealt with in a different forum."

He immediately softened what might have been taken as a threat by saying that he and his client appreciate the historic nature of the house and  both are willing and anxious "to pursue good-faith discussion" of the future of the Weldin House. With the option to purchase negated, "the pressure is off," he added.

He testified that Harrington "needs the money" that would result from selling the property for personal and familial reasons. In that regard, its destruction appears to be the most practical avenue for realizing the greatest return. "It's in deplorable condition. It would take an enormous sum of money to renovate," he said.

Taylor and Harrington were the only ones who testified at the hearing against granting the historic overlay. A parade of witnesses supported it.

David Ames, a University of Delaware history professor who is heavily involved in historic preservation, testified that the Weldin House is one of a relatively few remaining properties which impart historic value to Philadelphia Pike. The original Kings Highway of pre-Revolutionary War vintage has long since disappeared under the present highway, he said.

James Hanby, a former member of the Historic Review Board who traces his descendancy to several of Brandywine Hundred's pioneer families, including the Weldins, said that tearing down the Penny Hill house would "speed up the process of dismantling the rest of the historic resources" in the area north of Wilmington.

If the house goes, "future generations will have to refer to history books to experience our past," said Michelle Reed, of the Friends group.

2003. All rights reserved.

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