October 2, 2002

Developers will be required to be more environmentally sensitive when they design major residential and commercial projects if a measure being prepared by the county Department of Land Use is enacted into law. General manager Charles Baker denied that material which has been selectively issued is intended as anything more than a starting point in crafting a proposed ordinance.

Baker said that "it was probably a mistake" to circulate the proposal, albeit quietly, in the form of an ordinance ready for introduction, or nearly so. It was intended instead, he said, to draw attention and spark discussion. "It is obviously not an ordinance" at this stage of the process, he said.

Although a reliable source previously told Delaforum that County Council members have been prepped to enact the measure quickly -- possibly before the end of the year -- Baker told Council's executive committee on Oct. 1 that he was "not trying to ram something down your throat."

It would appear that whatever eventually emerges would bid to be the most significant change in the Unified Development Code since enactment of that comprehensive law nearly five years ago.

Since the draft of an enacting ordinance with a 70-page appendix listing proposed additions to and deletions from the code was given limited distribution in late August, Baker said he has "received a lot of good feedback from the business community, the development community and the civic community." He said that a more-open discussion process, which will include public meetings, will continue for at least another month and, if necessary, longer. "All good ideas are welcome; bad ideas we'll listen to," he quipped.

As first reported by Delaforum, the draft ordinance would require that builders not only reserve recreational space in major subdivisions but also set aside land which would constitute "natural resource areas."

The latter would be deeded to "a county-approved conservation organization" to be permanently maintained in a natural state or something as close to that as possible. The builder would have to establish an escrow account to finance the preservation, presumably from the proceeds from the sale of properties in the subdivision.

Another key feature of the proposed ordinance would be elimination of  the requirement to install stormwater drainage ponds in favor of controlling such runoff by employing natural features of the land.

Delaforum obtained a copy of the documents, which contain a large amount of technical jargon, but was unable to arrange an interview with a knowledgeable official in the land use department as this article was being prepared.

A careful reading of the proposal, however, provides a broad-brush view of what the ordinance is intended to accomplish. As stated in the preamble of draft enactment ordinance: "The New Castle County Department of Land Use has determined that utilization [sic] of conservation design methods are the most effective means to address adverse impacts by preservation of natural resources and wildlife habitats in open space corridors that may be linked together, simulating the natural hydrology (water balance) in the after-development conditions, [and] incorporating unique natural, scenic and historic features into the subdivision plans."

That approach seems directed primarily at the southern portion of the county, particularly the area south of the Chesapeake & Delaware Canal, but, as written, the ordinance would apply to any project which meets the definition of a major subdivision. The proposed upscale residential development off Naamans Road on a portion of the old Brandywine Raceway property, for instance, is a major subdivision.

Most of the provisions of the proposed changes in the land-use code appear to affect primarily residential development, but a portion of the ordinance specifically addresses their application to commercial development.

Although the proposal links the new conservation areas to the long-existing open space set-aside -- which it refers to as "community areas" -- it appears to draw a sharp distinction between them. The latter are intended "to provide a benefit to residents" as places for passive or active recreation or both. It would be up to the conservation organization to decide whether natural resource areas would even be open to access by community residents or the general  public.

Community areas would continue to be maintained and administered by "homeowner organizations," a new term which the proposed ordinance would substitute for the presently used "maintenance organizations" throughout the development code. Those are established by developers and all property owners become members when they buy into the community. After the development is nearly finished, the running of the organization is turned over to elected volunteers. Its activities are financed by mandatory annual assessments levied on all property owners.

The proposed ordinance does not spell out how a "a county-approved conservation organization" would be selected, but said that it would have to be bona fide chartered organization with a track record in the field of conservation. It would own the natural resource area, which would be deed-restricted to remain permanently undeveloped. The wording indicates that it is believed proceeds from the builder-established escrow fund would be sufficient to finance the relatively limited maintenance necessary in natural areas. It does not specify what would happen if that money runs out, but does refer to the organization as one having resources to sustain its obligation.

In subdivisions with 30 or more dwelling units, at least one acre of usable open space for each 100 dwelling units would have to be deeded to the homeowner organization.

Another paragraph states: "Within a subdivision involving 50 acres or more, a certain portion of the open space shall be classified as natural resource area open space; generally no more than five percent of the base site shall be established as community areas open space. In smaller subdivisions, the classification of the type of open space parcels shall be determined by the [land use] department during the review of the subdivision plan."

As to stormwaer drainage, the ordinance requires "the application of Stormwater Green Technologies." That term is defined as "applying the principles of filtration, infiltration and storage most often associated with natural vegetation and undisturbed soils." The ordinance specifies use of "the most effective low-impact nonstructural stormwater drainage practices."

A plan for complying with the preservation requirements would have to be approved as part of the subdivision review process, with the county retaining the right to compel compliance with the plan after it is approved.

2002. All rights reserved.

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