January 22,  2009

County appears to ward off
'workforce-housing' stay

As parent-offspring confrontations go, this one was mild. But it appeared that the kid not only had made his point but had won the argument.

Its housing and community affairs committee, on a voice vote, cleared proposed legislation to impose a six-month moratorium on filing any new residential development plans under New Castle County's 'workforce housing' ordinance for action by the full state House of Representatives.

However, eight of the committee's 10 members recommended against its passage and one took a neutral position, recommending that it be considered "on its merits." At the conclusion of a two-hour committee hearing on Jan. 21, it was obvious that the moratorium would most likely be figuratively dead-on-arrival if it made it to the House floor at all.

Representative Earl Jaques, the measure's sponsor, adamantly refused two requests by committee members to allow an amendment that would cut the length of the moratorium, but did not indicate whether he would pursue the matter further. Sponsors often decide not to bring legislation to a vote if they do not have sufficient support to have it enacted. Jaques, a first-term legislator, is not a member of the housing committee.

At the hearing the issue quickly rose beyond objections by some residents of southern New Castle County and their legislators that a significant increase in the number of houses on a given tract that the county ordinance allows in exchange for voluntarily including 10% to 20% of moderately-priced units in a residential development would overburden area roads and public schools.

As Delaforum previously reported, county government officials regard the proposed state legislation as an improper intrusion into their jurisdiction over zoning and land-use regulation. Legally, county government is a creature of state government. Moreover, state law trumps county law just as federal law trumps state and local laws.

Testifying before the committee, County Executive Christopher Coons said he was willing to regard the proposed moratorium as a good-faith effort to allow the General Assembly time to enact legislation to more closely tie adequate road and school capacities to approval of residential development plans. Presently, the county Department of Land Use is specifically prohibited by state law from considering school capacity as a condition for plan approval and is required to abide by a no-objection response from Delaware Department of Transportation.

Coons noted, however, that many supporters of the workforce-housing ordinance consider the roads-and-schools argument to be a thinly veiled effort to block inclusion of moderately-priced housing in new neighborhoods near existing upscale ones. County Councilman Penrose Hollins, the original sponsor of the county ordinance, has said that some opponents seek to preserve economic and racial segregation.

"If your goal is to stop 'workforce housing', why don't you just say [that] and do it," Coons told the committee.

Jaques and several members of the public who testified at the hearing insisted that they were not opposed to 'workforce housing'. The term is considered less onerous than 'affordable housing', which is believed to imply government- subsidized and other low-income housing. Committee chairman Gerald Brady cut off several testifiers who strayed into discussing merits of 'workforce housing' instead of limiting their remarks to the moratorium issue.

Representative Richard Cathcart, who supports a moratorium but is not a member of the housing committee, said he was "insulted" by implications of ulterior motives. "This has nothing to do with 'workforce housing'," he said. "I have yet to hear one constituent or anyone else say one word other than what has been said here."

Rebecca Walker, a member of the public, testified that the only purpose of a moratorium is "to buy time to deal with the [capacity] issues."

Coons reiterated the position that has been taken by his administration in defining 'workforce housing' as meaning "mak[ing] sure that people who work in New Castle County can afford to live in New Castle County."

He did acknowledge that the ordinance "has had some unintentional and undesirable consequences." He did not specify what they were, but said county government "welcomes the opportunity to work with you" to rectify them. That can be done, he said, while the county is considering development plans and accomplished before the plans are approved.

Some of its shortcomings will be remedied, he said, by an amending ordinance which Hollins is sponsoring and which has been scheduled to be brought before County Council at its plenary session on Jan. 27. Hollins, however, has said he is not sure whether he will seek a vote then or leave the measure tabled. With the now-probable sidetracking of the moratorium legislation, it seems likely that Hollins's ordinance will go before Council and most probably be enacted. Hollins did not attend the House committee hearing.

Coons said that a state moratorium would not only affect 'workforce housing' but also would "set a precedent for how we deal with land-use legislation."

Representative Bryon Short agreed with Coons, adding that "if the state wants to take on zoning issues we should take on the entire [land-use function]."

Council in December enacted its own moratorium, which will expire on Jan. 31 or with the passage of amending legislation. County Councilman William Powers, who represents a southern Council district and has voiced the roads-and-schools arguments of his constituents, told the committee that Council's procedures would not allow for him to bring forward legislation extending the county moratorium sooner than two months after its expiration.

The moratorium which he and Councilman William Bell sponsored "was just to take care of the county side" and a state moratorium is necessary "to provide time for the state side," Powers testified. "There are a lot of problems that need to be worked out by [both] the state and county."

Representative Greg Lavelle said that, even if a state moratorium were enacted, it would be an idle gesture. "We're just kidding ourselves if we think we're going to solve [the] roads and schools [issues] in six months," he said.

Moratoriums at either level would not apply to the 17 plans filed under the 'workforce housing' ordinance that are now making their way through early stages of the land-use approval process. Fifteen are in the exploratory phase and two are preliminary. It typically takes 18 months to two years to get a plan approved.

The Coons administration was able to get Jaques to agree to an amendment to the original moratorium measure which specifies that it does not bar new filings of development plans which do not include 'workforce housing'.

Jaques also is sponsoring pending legislation that would increase the voluntary impact fees developers pay to help defray the cost of providing school facilities to accurately reflect current construction costs. Jaques told the hearing that the 17 pending 'workforce housing' development plans would provide housing for families with a combined total of "a little over 5,900 children." That, he said would require 10 new schools which would cost a total of $350 million.

Edward Czerwinski, president of the Appoquinimink school board, said that those fees "do not begin to cover" the cost of school construction. The fees are not paid until a development plan is approved and recorded. Houses would be occupied long before a new school could be built.

Coons said that is not a realistic supposition. Moreover, he added, "these plans will not be producing houses for many years."

Representative John Viola suggested that the county "gave away too much [additional] density to get a small amount of 'workforce housing'."

Beverly Baxter, testifying on behalf of the Committee of 100, a developers' organization, said "traditional neighborhoods were outlawed" when the county's Unified Development Code was enacted 11 years ago. Even with its 'workforce housing' provision, "neighborhood after neighborhood in desirable Brandywine Hundred could not be built today [anywhere] in New Castle County," she said.

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