July 20, 2005

Developers seeking county approval of major projects would be required to present their plans at a formal public hearing at the beginning of the approval process under terms of an ordinance that Council president Paul Cark said he intends to introduce.

If enacted, the measure would do away with so-called '3.319' hearings which are required only for plans that seek greater building density in return for setting aside relatively large amounts of open space. The number designation refers to the paragraph in the Unified Development Code which sets forth the requirement.

Clark told a meeting of Council's land use committee on Jul. 19 that he had the proposed ordinance drafted as an alternative to a measure which Councilman Robert Weiner is sponsoring. "I don't believe that what we presently have on the table is the way to go," Clark said.

It is not exactly clear what is on the proverbial legislative table.

Weiner, who has been working on the issue for many months, recently presented three possible substitutes for the officially pending ordinance to an advisory group he has convened. They would provide for various combinations of hearings and community meetings in the early stage of the approval process and apply to all major development.

Weiner said at that meeting that he had not decided which version he would move for Council action. But he did indicate that, whichever it was, he would seek a vote at the Jul. 26 Council session.

Weiner and others contend that the code provision runs counter to the county's policy to encourage open-space development in lieu of what the councilman refers to as 'cookie-cutter' suburban sprawl. Instead, they maintain, requiring an additional  hearing acts as a deterrent.

Under existing law, '3.319' hearings take place at a later stage of the approval process, which means the developer has had to spend a considerable amount of money to advance a plan with no reasonable assurance  of success. At the same time, the fact that a project is that far along tends to minimize the weight given to community views expressed at the hearing.

The hearing is to determine if the proposed development is compatible with surrounding communities, but in practice turns out to be  a forum for raising a myriad of other concerns, such as drainage, traffic generation and the like.

Civic associations support keeping the '3.319' hearing requirement; developers and the business community want it eliminated. Whether broadening the preliminary-stage hearing requirement will be an acceptable compromise remains to be seen.

A Planning Board recommendation on the pending version of Weiner's proposed ordinance said such objections frequently are a cover for an effort to block what are perceived to be nearby developments lower on the economic ladder -- townhouses near single-family residences, for instance. There is also a fear of opening an opportunity for subsidized 'affordable' housing in the neighborhood.

Clark said Weiner asked him to take the issue  to the committee meeting to fulfill the requirement that his pending ordinance receive an airing  in order for it to be acted upon at the next plenary session. Weiner is on an out-of-state trip.

Substitutions for pending measures are allowed between the committee meeting and the Council session if they do not change the substance of the original version. Often, substitutions are used to incorporate points raised during committee discussion.

In this case, Clark said, the changes he feels would be necessary in the original version of Weiner's measure were too extensive to be made by substitution.

He said he had discussed that with Weiner by telephone, but received no commitment one way or the other from Weiner. "I believe [his measure] will accomplish what Mr. Weiner wants to accomplish. But I do not know what he will want to do when he gets back. He may choose to proceed on his own. ... I hope that he will agree with me that this is a better way to go," Clark said.

If Weiner agrees to withdraw his ordinance or leave it on the table -- or if Council votes it down -- Clark's measure cannot be acted upon on Jul. 26. It will have to the Planning Board and Department of Land Use for a public hearing and recommendation. Council will be in recess during August, so the earliest it could come to a vote would be late September or October.

That apparently would be all right with some Council members. "We are discussing a major change to the Unified Development Code. Council, and especially the new members of Council, need time to study this," John Cartier said.

Penrose Hollins, however, questioned the unorthodox procedure Clark was following. In actuality, Hollins said, the committee was discussing a measure that is not yet before Council." All of Council's standing committees are committees of the whole.

Clark said he is acting because "'3.319' is not working." There have been only a handful of open-space development plans requiring that kind of hearing and none have been rejected. No one knows, of course, how many potential open-space development plans have been submitted as conventional plans because of the hearing requirement.

The ordinance that Clark said he intends to introduce would completely eliminate paragraph 3.319. In its stead would be a new provision that all major land development plans "shall be subject to public review." The hearing, he said, would be conducted by a professional hearing officer so as not to impose an additional responsibility on the Planning Board.

That hearing would occur during what is known as the exploratory phase of the development process right after land use department professionals agree that the plan complies generally with the development code. Its purpose, the proposed ordinance declares, would be to consider "potential adverse impacts on adjoining lands and the community."

The hearing would not kill a development proposal. Developers could modify their plans to address concerns raised at the hearing and accepted as valid by the department and, thereby, proceed with the approval process. Under existing law, a Planning Board hearing and Council action would be required before approval is granted.

Clark's proposed ordinance also contains a provision that would require at least 200 feet of buffer along the perimeter of any open-space development separating it from an existing development with lots larger than an acre. Present law requires a buffer if the adjacent development has lots larger than two acres.

Councilman David Tackett cautioned that the ability of a developer to change or modify a plan after the first hearing could lead to a public perception of 'bait-and-switch' tactics.

On the other hand, "it is extremely important to have a hearing at the grassroots level" early in the approval process, William Bell said.

Clark said that it is intended that land use hearings involving projects in the southern half of the county be held more conveniently  in the annex to the county's Government Center in New Castle Corporate Commons. Projects in the northern half will continue to be held in the Redding Building in downtown Wilmington.

2005. All rights reserved.

Return to Delaforum Newsfront

What is your opinion about the topic of this article?
Click here to express your views.